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Interests of Justice? The ICC urgently needs reforms

Published on June 11, 2019        Author: 

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The demands for an “independent evaluation” through a small group of experts, formulated by four former presidents of the Assembly of State Parties of the International Criminal Court (ICC) and accompanied by several critical blogs (see, inter alia, here, here, here and here) is the outcome of several controversial court decisions and the Court’s manifest problem in its decision-making process, i.e., its serious governance problems.

Probably the most controversial decision, made on 12 April 2019, concerns the rejection by Pre-Trial Chamber (PTC) II of the Prosecutor’s application of the initiation of a (formal) investigation into the Afghanistan situation involving crimes allegedly committed by the Taliban, Afghan and US military forces. The PTC based its decision on a broad interpretation of the ambiguous concept of “interests of justice” (Art. 53(1)(c) Rome Statute) and the expected lack of cooperation by Afghanistan and the USA, allegedly resulting in limited chances of a successful investigation. Thereby the Chamber converts the interests of justice concept into a utilitarian efficiency clause which is predicated on the possible success of the proceedings. Not only is this difficult to reconcile with the rationale of the said concept but also incompatible with the wording of Art. 53(1)(c) which links the “interest of justice” to, inter alia, the gravity of the crime and the interests of the victims. Yet, both of these criteria speak for the opposite result than that reached by the Chamber, namely the opening of the formal investigation. For the gravity of the crimes is acknowledged by the Chamber itself and the victims’ interests are reflected by the submission of information by hundreds of them during the preliminary examination. If a Chamber considers that despite the existence of gravity and interests of victims “an investigation would not serve the interests of justice”, i.e. “nonetheless” (Art. 53(1)(c)) the existence of these criteria, it must show that there are more important “substantial reasons” which displace the prima facie interests of justice (derived from gravity and victims’ interests) in favour of opening a formal investigation. In other words, while the term “nonetheless” makes clear that there may be countervailing considerations which may speak against the opening of an investigation despite gravity and victims’ interests, these countervailing considerations must be thoroughly substantiated and, at any rate, do not turn the interests of justice clause into a mere, free floating policy factor which gives a Chamber an unfettered discretion (see also Ambos, Treatise International Criminal Law Vol. III, 2016, p. 390). The present Chamber fails to grasp these complexities and therebyshows a lack of sensibility with regard to the “interests of justice” concept. Thus, it is not surprising that the decision has met serious criticisms in the international criminal law blogsphere (see here, here, here and here) and the Prosecutor filed a leave to appeal request on 7 June 2019. The most recent Appeals Chamber decision from the 6 May 2019, denying the personal immunity of the then Sudanese President Al-Bashir and interpreting the non-immunity rule of Art. 27 Rome Statute as one of customary law, has also received some criticism (see here and here) but ultimately deserves support (see here and here) since it confirms the historical (Nuremberg) trend of non-immunity in international criminal justice. Read the rest of this entry…

 

More on the Duty to Warn Persons Threatened by Foreign Intelligence Services

Published on June 10, 2019        Author: 

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I recently wrote on the blog about the obligation of states, arising from their duty to protect the right to life under human rights law, to warn individuals subject to their jurisdiction of any real and immediate risk to their life, bodily integrity, or liberty and security of person, posed by foreign intelligence services. That duty arises if the state knows, or ought to know, of such a threat, i.e. if the threat is reasonably foreseeable to it. I’ve argued in that regard how it cannot be conclusively established, but may be so established after further factual inqury, that the United States or Turkey had enough relevant information in their possession to trigger their protective obligation with regard to Jamal Khashoggi and the threat posed to his life by agents of Saudi Arabia. If that obligation was triggered, however, the duty to warn Khashoggi arose, whereas no such warning was given to him before his assassination in the Saudi consulate in Istanbul.

As I have explained in my previous post, and in more detail in my full paper, the duty to warn does not impose unreasonable burdens on states engaged in intelligence-gathering activities. First, it is subject to a jurisdictional threshold, which may be looser, per the Human Rights Committee’s new functional approach to the extraterritorial application of the right to life, or stricter, per the more traditional spatial or personal conceptions of jurisdiction. Opinions will clearly differ in this regard as to which approach should prevail. The key point here, however, is that a state lacking the capacity to fulfil the duty to warn will never be expected to have to do so. Second, the duty will only be engaged if a specific unlawful threat to the life of an individual was reasonably foreseeable to the state. Third, the duty to warn is one of due diligence, and the state can take a number of relevant considerations into account in deciding on how to fulfil it. It might, for example, choose to convey the substance of the threat in a way that will avoid any risk of compromising intelligence-gathering sources and methods. It might choose to do so through an intermediary, such as a relevant agency of a partner state. In the vast majority of conceivable circumstances the state will be able to convey a warning without compromising its essential interests in any meaningful way. Granted, the state will have to devote some resources towards actually complying with the obligation. But such an expectation is not unreasonable, especially bearing in mind that this rather modest burden will usually fall on the wealthiest, most powerful states in possession of an extensive foreign intelligence apparatus, whose ultimate purpose should after all be the safeguarding of human life.

Importantly, in the past month or so, the CIA and partner security services have actually warned three associaties of Khashoggi of a Saudi threat against them, demonstrating that the duty to warn does not, in fact, impose unreasonable burdens on state authorities and that it can effectively be complied with.

First, after obtaining information about a specific threat from the CIA, the Norwegian security services warned a prominent Arab pro-democracy activist and vocal critic of the Saudi crown prince, who has been granted asylum and is living in Norway. As the Guardian reports:

Read the rest of this entry…

 

Announcements: UN Audiovisual Library of International Law; CfS Trade, Law and Development

Published on June 9, 2019        Author: 

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1. New Addition to the UN Audiovisual Library of International Law. The Codification Division of the United Nations Office of Legal Affairs recently added the following lecture to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Ms Michelle Reyes Milk on “The Ad Hoc International Criminal Tribunals and their Legacy” (in Spanish). The Audiovisual Library is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.

2. Call for Submissions: Trade, Law and Development. The Board of Editors of Trade, Law and Development invites original, unpublished manuscripts for publication in the Winter ’19 Issue of the Journal (Vol. 11, No. 2) in the form of Articles, Notes, Comments and Book Reviews. Manuscripts received pertaining to any area within the purview of international economic law will be received for publication. Founded in 2009, the philosophy of TL&D has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. Manuscripts may be submitted via e-mail or ExpressO. For further information about the journal please click here. For submission guidelines, please click here. In case of any queries, please feel free to contact us at editors[at]tradelawdevelopment[dot]com. Last date for submissions is 30 September 2019.

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A Hidden Reading of the ICC Appeals Chamber’s Judgment in the Jordan Referral Re Al-Bashir

Published on June 6, 2019        Author: 

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On 6 May 2019, the Appeals Chamber of the International Criminal Court (ICC) issued the Judgment in the Jordan Referral re Al-Bashir Appeal. It found that Jordan had no ground to refuse to execute the request by the ICC for arrest and surrender of Omar Al-Bashir, the then Head of State of Sudan – a State not party to the Rome Statute.  In this highly controversial judgment, the Appeals Chamber held that ‘[t]here is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court.’ (par. 1, 113) Endorsing the ICC Pre-Trial Chamber I’s 2011 Malawi Non-Cooperation Decision, the Appeals Chamber furthermore held that ‘[t]he absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant […] also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State.’ (par. 114)  

The Chamber could have ended its judgment on the issue of immunities there, as this finding on customary international law, if correct, would seem to dispose of the matter. However, it decided to also consider the position taken  by Pre-Trial Chamber II in the Jordan Non-Cooperation Decision, that the immunity of the Sudanese President was removed by virtue of the Security Council (SC) resolution referring the situation in Darfur to the ICC.

In this post, I will argue that the Chamber not only confirmed the legal validity of what has been termed the ‘Security Council route’ – as developed in the Jordan & South Africa Non-Cooperation Decisions – but actually upheld that it is such reasoning that must be applied at the horizontal level to displace the immunity of a Head of State of a non-party State. I will show that this conclusion flows from the Joint Concurring Opinion of 4 of the 5 Appeals Chamber judges (Judges Eboe-Osuji, Morrison, Hofmański and Bossa) – constantly referred to in the main Judgment for further elaboration – and the recently issued Q&A regarding the Appeals Chamber Judgment. Read the rest of this entry…

 

CETA Opinion – Setting Conditions for the Future of ISDS

Published on June 5, 2019        Author:  and

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The April 2019 New York UNCITRAL Meeting of Working Group III did not discuss the then forthcoming Opinion 1/17 (CETA Opinion) on the compatibility of CETA’s investment court system with EU law. For some the dangers this Opinion could pose to ISDS were altogether non-existent – the Court of Justice of the European Union (CJEU) might as well have considered ISDS in CETA as incompatible with EU law. To others ISDS reform negotiations without the EU, and probably without its Member States, might have seemed a more appealing prospect. The CETA Opinion was rendered on 30 April 2019 and confirmed that the treaty’s investment court system is compatible with EU law. Reaction to it has been immediate, but the real consequences of this (probably explosive or even implosive) opinion will take time to absorb, and a lot of in-depth analysis will certainly follow.

In the past years the CJEU was seemingly headed down a narrow one-way street: its Opinions on a Patent Court, the EU accession to the ECHR or even the Achmea Judgement questioned the participation of the EU and its Member States in international dispute settlement placed outside the control of the EU judicial system. With the CETA Opinion the Court took a U-turn out of the one-way street, back into the path of international dispute settlement. But as the Court managed to turn – and immense pressure was brought to bear – it drafted the conditions for the new multilateral court system that the EU is currently pursuing in international fora. In the remainder of this short contribution we will not canvass the possible contradictions between the Opinion and previous CJEU decisions – although there might be some. We focus on the future instead. In light of the EU’s role as a major investment treaty negotiator and its push for the creation of an MIC, we ask two questions: what this Opinion might mean for the future of ISDS and what open questions remain.

  1. Conditions for the Future of ISDS

Although the CJEU only dealt with the narrow question of whether CETA’s investment court system is compatible with EU primary law, its Opinion will likely have consequences well beyond this context, including notably in relation to a future Multilateral Investment Court (MIC). When the CJEU was deciding, the MIC was the invisible elephant in the room: first, because in CETA the EU commits to pursuing the establishment of an MIC; second, because the European Commission in its contributions to UNCITRAL’s WGIII promotes this option as at least at this time the only possible future for ISDS involving the EU. Read the rest of this entry…

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Delineating the Exclusivity of Flag State Jurisdiction on the High Seas: ITLOS issues its ruling in the M/V “Norstar” Case

Published on June 4, 2019        Author: 

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On 10 April 2019, the International Tribunal of the Sea (ITLOS) gave its judgment in the long-awaited – though somewhat quietly received – M/V “Norstar” (Panama v Italy) case. The Tribunal ruled (by 15 votes to 7) that by arresting and detaining the Panamanian-flagged vessel, the M/V “Norstar”, Italy had violated Article 87(1) of the 1982 UN Convention on the Law of the Sea (UNCLOS) by undermining the vessel’s freedom of navigation. This is the first time that Article 87 has been in direct contention before an international tribunal, and in ruling that Italy contravened the principle the judgment arguably buttresses a quite expansive reading of the exclusive flag state jurisdiction principle under Article 92 UNCLOS.

Whilst the case had previously thrown up interesting jurisdictional and procedural questions at the preliminary objections stage – discussed elsewhere by Mirko Forti here – in this post I will confine my discussion primarily to the ruling on freedom of navigation, insofar as the Tribunal found that Italy’s attempt to exert prescriptive jurisdiction over what were otherwise lawful activities on the high seas violated Article 87(1). In doing so, I will highlight how the Tribunal’s understanding of the exclusive flag state jurisdiction principle arguably runs counter to a notable trend in the academic literature, which was reflected in a somewhat forceful seven-judge dissenting opinion, to treat the principle in a much more circumscribed way. I will also comment on the way in which Italy’s argument in the case seems to put it somewhat at odds with its position in the ongoing Enrica Lexie arbitration – discussed previously by Douglas Guilfoyle here, and Hari Sankar here.

I will first set out the background to and facts of the case before turning to discuss the contentious position on high seas jurisdiction. I also offer a few final thoughts on the contrasting, arguably conflicted positions adopted by Italy in this case versus its position in Enrica Lexie. Read the rest of this entry…

 

The Future of International Law in an Authoritarian World

Published on June 3, 2019        Author: 

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In this short review essay, I would like to offer some thoughts on the future of international law in an increasingly authoritarian world. Even for a discipline which loves a crisis, these are perhaps challenging times. The liberal cosmopolitan project of global governance through international law and multilateral institutions has, at the very least, hit a bump in the road. There is a widespread sense that a change in direction is likely. It is a reasonable time to reflect on questions such as: is international law in trouble? How concerned should we be at attempts to revise the international system? And what might a more authoritarian version of international law look like?

In reflecting on the questions I’d like to offer my readings of three scholars I’ve recently found thought-provoking. These are personal reflections and interpretations, not an effort to capture every nuance of their work. Nonetheless, each has had an impact on my thinking.

  1. Shirley Scott, “The Decline of International Law as a Normative Ideal

In this piece, Scott contrasts her view of international law with what she considers the dangers in the turn to speaking about a “rules-based order”. Scott sees the project of international law as historically containing a commitment to several major principles.

First, the principle that law is politically neutral: a conception that law stands aside from politics, and creates a level playing field for state actors, to engage and to argue with each other. This principle includes the idea of formal sovereign equality.

Second, a commitment to peace through law: the idea that law contains within it the potential for objective dispute settlement, and that this is a contribution to world peace. Read the rest of this entry…

 

Announcements: Workshop on The Paths of Change in International Law; Prosecution of International Crimes in the UK; CfP The Trials and Prospects of the Universal Declaration of Human Rights; CfP Conference on International Economic Law; CfP EU Trade Agreements and the Duty to Respect Human Rights Abroad

Published on June 2, 2019        Author: 

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1. Workshop on The Paths of Change in International Law. The Graduate Institute of International and Development Studies is hosting an interdisciplinary workshop on The Paths of Change in International Law in Geneva on 6 – 7 June 2019. The workshop is part of an ERC-funded research project on processes of informal change in the international legal order and asks how international law changes, how this change is registered among participants in legal discourses, and how the pathways of change differ across issue areas and sites of international legal practice. The workshop will bring together leading and rising scholars from different disciplines – law, international relations, and political sociology – to explore these issues in a small and interactive format. More information is available here

2. The Prosecution of International Crimes in the UK: Present Problems and Future Possibilities. 6.30pm Tuesday 18 June 2019, Hogan Lovells, Holborn, London EC1A 2FG. Various pieces of legislation have been enacted in the UK to allow those suspected of having committed international crimes to be prosecuted domestically; the most notable example of such legislation is the International Criminal Court Act 2001, which gives effect to the Rome Statute of the International Criminal Court. Despite this, the prosecution of individuals in UK courts for international crimes remains incredibly rare, with other countries, such as Spain, Germany and Sweden taking the lead on this issue. In light of recent reports that individuals suspected of playing key roles in the 1994 Rwandan Genocide may be prosecuted in the UK in the near future, this Human Rights Lawyers Association organised panel event will discuss why prosecutions for international crimes have been wanting thus far and examine whether there is a future for such prosecutions in UK courts. To RSVP for this free event, please contact administrator@hrla.org.uk.

3. Call for Papers: The Trials and Prospects of the Universal Declaration of Human Rights. The Berlin Forum on Global Politics (Berlin, Germany), the Institute for Global Dialogue (Pretoria, South Africa) and the RECLAIM! Universal Human Rights Initiative (Germany, United States, and France) are pleased to announce their joint collaboration on an international call for papers on the trials and prospects of the Universal Declaration of Human Rights (UDHR). The UDHR is the landmark document for the international human rights movement of the 20th century and remains its legal bedrock today. The aim of the multi-author publication is to share ideas that will make this document more effective in the world than it has been as a protector of human dignity and security. The publication will be revised and edited by experienced academics, and published as a free-to-the public .pdf formatted document – licensed as a CC-BY (Attribution only) Creative Commons. This will allow to inform a multiplicity of stakeholders about the UDHR and how its reaffirmation can address and effectively contribute to resolving the challenges of our times. The deadline for submitting papers is 24 June 2019. For further information, please read the call for papers  hereRead the rest of this entry…

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