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A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court (Part III)

Published on August 30, 2019        Author: 

In earlier posts in this series (here and here) I have examined the ICC Office of the Prosecutor’s (OTP) great successes and failures of July 2019. A successful conviction in Ntaganda and a dismissal of its case in Gbagbo and Blé Goudé. I’ve noted a number of important differences between the two cases and in this post I’d like to reflect on the way forward. First, I will ask what lessons appear to have been taken to heart in the OTP’s new strategic plan. Second, I’ll offer a few brief concluding thoughts to this series of posts.

What has the OTP learned? The Strategic Plan 2019-2021

There are a number of encouraging signs in the new OTP Strategic Plan. Broadly, it acknowledges that preparing high-quality cases with the best chances of success in Court will require pursuing fewer cases, those cases may need to be narrower, and there will need to be a process for situations under preliminary investigation to be closed. Read the rest of this entry…

 

A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court (Part II)

Published on August 29, 2019        Author: 

In this three part series of posts I’m reflecting on the lessons to be learned from the sharply contrasting results last month at the International Criminal Court with a conviction entered in Ntaganda and reasons finally being released for the dismissal of the Prosecution case in Gbagbo and Blé GoudéThe former involved a rebel commander accused of being a co-perpetrator of attacks against civilians, including sexual offences and sexual enslavement. Yesterday, I noted that in Ntaganda the ICC Office of the Prosecutor (OTP) benefitted from its long engagement with, and consequent deep knowledge of, the relevant conflict. It also ran a well-prepared case targeting a rebel leader (as both a direct and indirect perpetrator) and had framed charges based in common facts and a limited number of key incidents. Gbagbo and Blé Goudé involved allegations that the former president of Côte D’Ivoire organised attacks upon civilian supporters of his principal political rival in post-election violence. The key question, of course, is what accounts for the difference in outcomes?

Today I will examine Gbagbo and Blé Goudé in some detail, and tomorrow I will ask – looking at the OTP’s new strategy document – whether the right lessons have been learned. 

What went wrong in Gbagbo and Blé Goudé

The majority in the Gbagbo and Blé Goudé Trial Chamber for the no case to answer motion were Judges Henderson and Tarfusser, Judge Herrera-Carbuccia dissenting. For reasons of space, I will focus on the Henderson and Tarfusser separate opinions (although technically, Judge Tarfusser concurs in Judge Henderson’s reasons for dismissing the case which makes his opinion the Chamber’s “reasons”). In sum, though, their account of what went wrong for the Prosecutor was: a poorly conducted investigation was conducted which then had to underpin an inflexible and overly simplistic case theory, which was in turn poorly executed in the courtroom. “In a nutshell, the majority acquitted Mr Gbagbo and Mr Blé Goudé because the way in which the Prosecutor depicted their actions and omissions from a legal point of view could not be sustained by the evidence” (Judge Henderson, Preliminary remarks, para 2). These opinions do not make for comfortable reading. Read the rest of this entry…

 
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A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court? (Part I)

Published on August 28, 2019        Author: 

Last month was a mixed one for the ICC Office of the Prosecutor. On 8 July 2019 it appeared that the ICC “had found its footing”, with a Trial Chamber delivering a staid, methodical judgment in Ntaganda. This was a double victory for the OTP: a conviction of a rebel leader in a truly horrific conflict; and a public affirmation that it could present a well-run and coherent case. However, on 16 July 2019, reasons for the ‘no case to answer’ decision were released in Gbagbo and Blé Goudé (‘Gbagbo’) in which the majority (Judges Henderson and Tarfusser) were scathing in their assessment of the OTP’s performance. Then on 26 July 2019 the OTP released the final version of its Strategic Plan 2019-2021 which noted, with some understatement, there has been “a period of mixed results in court” and “significant setbacks”. In fairness to the OTP no-one, not even the majority in Gbagbo, doubts that the OTP has hard-working and dedicated staff prosecuting cases of great complexity (see para 9 of the Reasons of Judge Henderson). The question is, how can the same Office produce such different results? A key problem in Gbagbo was that the majority of the Trial Chamber were completely unpersuaded by the Prosecutor’s ‘system of evidence’ and case theory. Yet, this was not a problem in Ntaganda. What accounts for the difference?

Over three blog posts I propose to look at: first, what went right in Ntaganda; second, what went wrong in Gbagbo; and, third, to ask whether the new OTP Strategic Plan has learned the right lessons and set the right priorities. I will also reflect in that final post on whether these results pose a significant challenge to my recent posts critical of ICC performance (spoiler alert: no, they do not). Read the rest of this entry…

 
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How International Law Restricts the Use of Military Force in Hormuz

Published on August 27, 2019        Author: 

We await whether an allied action will protect shipping in the Persian Gulf, and whether it will be led by the USA or by European states. The UK’s new government will support US action, while at least some other European states are reluctant to be seen as supporters of US aggressive policy towards Iran. Political arguments aside, there are important international law concerns with participation in such action, whether American or European-led (see also this recent post by Hartwig).

Absence of a Security Council mandate

The first concern is that such an action would not have a UN mandate. The Security Council can authorize military actions to ensure peace and security, even setting aside other rules of international law. Admittedly, protection of shipping might not fall under the Security Council’s competencies to maintain peace and security. Regardless, a mandate for a military action in the Persian Gulf is in any case politically unlikely.

The law of the sea

Without a mandate from the Security Council, there are strong arguments against the legality of such action. Read the rest of this entry…

Filed under: Law of the Sea, Self Defence
 
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Electoral Cyber Interference, Self-Determination and the Principle of Non-Intervention in Cyberspace

Published on August 26, 2019        Author: 

Introduction

In recent years we have witnessed persistent attempts to interfere in elections by using cyber means. Russia’s cyber interference in the 2016 US presidential election is a prime and perhaps the most discussed example but it is not the only one; other incidents include electoral interference in the Netherlands, the UK, France and Germany to name just a few (see here). Such interference mainly consists of attacks on electoral infrastructure and operations to manipulate voting behaviour. For example, Russia’s electoral interference in the 2016 US election consisted of ‘hack and leak’ operations to ‘expose, disgrace, or otherwise undermine a particular individual, campaign, or organisation in order to influence public opinion during an election cycle’ (see here) and disinformation operations defined as ‘false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm’ including harm to the ‘democratic political processes and value’. (see here at 10).

International law commentators struggled to qualify such operations. Although the majority placed them within the framework of the principle of non-intervention, they concluded that they do not satisfy its conditions and in particular that of coercion (indicatively see here and here).

Against this background, I argue that electoral cyber interference can violate the non-intervention principle. I will do this by reinstating the link between the principle of non-intervention and the principle of self-determination and by introducing control as the baseline of coercion. Before I do this, I will explain how international law traditionally construes intervention in order to expose the regulatory gaps that emerge in cases of electoral cyber interference. Read the rest of this entry…

Filed under: Self-Determination
 
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Announcements: UN Audiovisual Library of International Law; Goettingen Journal of International Law

Published on August 25, 2019        Author: 

1. New Addition to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lecture to the Lecture Series of the United Nations Audiovisual Library of International Law website: Ms Hélène Tigroudja on “Universal and regional systems of protection of human rights: harmonization, complementarity or fragmentation” (in English and French). 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. Goettingen Journal of International Law. The Goettingen Journal of International Law publishes its Vol. 9, No. 2 (2019). This issue spots different fields of international law as itdiscusses the applicability of the ECHR to targeted killings as a measure to combat terrorism, the United Nation’s perception on the rule of law in the case of MINUSCA, and the function of the TPNW as a disarmament device. The full issue can be accessed here

Filed under: Announcements and Events
 
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Bending the Knee or Extending the Hand to Industrial Nations? A Comment on the New Draft Treaty on Business and Human Rights

Published on August 23, 2019        Author:  and

On 16th of July, 2019, the Open-Ended Intergovernmental Working Group (OEIWG) on transnational corporations and other business enterprises with respect to human rights published a revised draft(RD) for a treaty on business and human rights. It is the second substantial draft of such treaty after the zero draft(ZD) released exactly one year earlier. The new draft contains some big concessions to States and businesses opposing the treaty.

The OEIWG was established in 2014 by the UN Human Rights Council (through resolution 26/9) to develop a legally binding instrument to regulate, “in international human rights law, the activities of transnational corporations and other business enterprises” (Art. 1 Res. 26/9). The OEIWG held its latest session in October 2018. The RD itself was prepared by the Chairman of the OEIWG over the last months. A first point of procedural criticism is thus that despite the inputs in the previous OEIWG’s sessions, there was no transparent process in the stage of drafting. The text was created by the chairman and his team alone. A drafting team consisting of legal experts representing different areas of expertise and different geographical regions would have given the draft more procedural legitimacy. The “power of the pen” should not be underestimated.

On substance, much could be said about the draft. We will focus on three particularly pertinent points: the new scope of the draft treaty; the comprehensive inclusion of human rights abuses in conflict areas; and the issue of corporate liability.

Read the rest of this entry…

 

Living in the Shadow of Flawed Peace: How General International Law Is Implicated in the Trade War between Japan and South Korea

Published on August 22, 2019        Author: 

As the anniversary of V-J Day approaches, the legacy of World War II still casts a long shadow on its previous Pacific theatre.  Last month, an unprecedented quadripartite incident involving warplanes from, inter alia, Japan and South Korea played out in the territorial airspace of the contested Dokdo/Takeshima islands, disputed territory that was left unresolved in the postwar San Francisco Peace Treaty of 1951 (SFPT).  Yet, the warning shots fired above those tiny rocks is not the only instance of regional tensions heating up in Northeast Asia.  On 2 August, Japan decided to remove South Korea from its list of trusted trade partners, following its restrictions on the exportation of three important chemicals to South Korea imposed last month.  Days later, Japan pulled back and permitted export of a key chemical for semiconductor manufacturing in Korea.  The two Asian economic titans have since brought their trade war to the attention of the WTO’s General Council

Yet the WTO is not the only international legal regime engaged in the escalating trade conflict between Japan and South Korea.  In this contribution, I aim to show that the now seldom-trodden postwar peace treaties concluding WWII are still pertinent to current international relations as evidenced by the diplomatic row between Seoul and Tokyo.  Self-help remains relevant to the effective operation of the international legal order, especially with respect to the enforcement of international legal rules lying outside the purview of any (quasi)judicial fora such as flaws from postwar peace treaties. 

The End of a World War  

While Japan ended its colonial rule of the Korean Peninsula following its surrender to the Allies at the end of WWII, the Peninsula was soon split into two entities.  Because of the Allies’ disagreement as to whether Korea was a belligerent party, neither Pyongyang nor Seoul signed the SFPT.  Despite its exclusion of both Koreas, the SFPT includes a China/ Korea entitlement clause (article 21).  Among other things, article 4—the framework provision on, inter alia, the disposition of property of Japan and of its nationals in the territories renounced by Japan (including the Korean Peninsula) and the relevant claims—is applicable to Korea by way of this special clause.  Yet the apparent omission of the reparation clause (article 14) sowed seeds of the lingering dispute over responsibility and reparations between Japan and South Korea. Read the rest of this entry…

 

Compliance with IHL by Non-State Armed Groups: Some Practical Reflections at the 70th Anniversary of the 1949 Geneva Conventions

Published on August 21, 2019        Author: 

That non-State armed groups (NSAGs) engage in hostilities on a frequent basis is not news. Indeed, NSAGs are active in the majority of contemporary armed conflicts (at 19). What seems to have changed in the last few years is the increasing attention that the international community is paying to their behavior, largely due to the impact that they have on civilians. While it is undisputed that international humanitarian law (IHL) binds NSAGs (para 505), finding effective strategies to enhance their level of compliance remains challenging, especially considering that the baseline expectation is generally low (at 69).

Interestingly, while some NSAGs have been responsible for IHL violations, others have also shown a degree of compliance for certain rules during non-international armed conflicts (NIACs). As this year marks the 70th anniversary of the four Geneva Conventions of 1949, some reflections related to how parties to armed conflicts – in this case, NSAGs – actually behave are in order.

Describing NSAGs’ Variations

Generally, compliance has been defined as “behavioral conformity with existing norms and regulations” (at 65). For NSAGs, this implies the observed match between their behavior and their international obligations.

As parties to armed conflicts, NSAGs should not be seen as entities that either violate or respect international law without exception. Instead, they may follow certain rules while disregarding others. For instance, a NSAG may respect the prohibition of using and recruiting children in hostilities, but may summarily execute detainees or take hostages. Similarly, a group may deliberately attack health care facilities and transports in breach of IHL, while prohibiting the forcible displacement of civilians. At the same time, these non-State entities often modify their behaviors throughout the hostilities, reflecting and increase or decrease in their level of compliance with humanitarian norms. Wood has identified that civilian victimization is “anticipated during moments in which the viability of the groups is threatened or when it faces significant military setbacks” (at 15). Variation is particularly evident during peace processes (here, for an example). When a NSAG looks for political recognition, it might adopt a different attitude than a group whose main purpose is to show its strength or to terrorize the civilian population living in the territory it controls.

Accordingly, compliance with IHL should be conceived as a spectrum, rather than an on/off switch. Read the rest of this entry…

 
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Tanker Games – The Law Behind the Action

Published on August 20, 2019        Author: 

The conflict between some western States and Iran has reached a new phase. Last month, both sides arrested tankers off their coasts. Whereas the political intentions of either side are evident, difficult questions come up with regard to the legal assessment of these actions. They concern the extraterritorial application of a sanction regime, the law of the sea and countermeasures. The post will describe the facts related to the detention of a tanker off Gibraltar (1). It will be investigated if the regime of the transit passage (2) or of innocent passage (3) is applicable under the UN Convention on the Law of the Sea (UNCLOS). Thereafter, the post will study which State may rely on the respective rights (4). The post then will turn to the facts of the second case which happened in the strait of Hormuz (5). It will shortly mention Iran’s right to take measures for the safety of navigation beyond its territorial waters (6), and the regime of countermeasures (7). In part (8) the compatibility of military patrols by western States in the strait of Hormuz with the law of the sea will be studied.

The Facts related to the case off the coast of Gibraltar

On July 4, 2019 the British navy detained the tanker Grace 1, allegedly in the territorial waters of Gibraltar. The vessel was passing through the strait of Gibraltar after having circumnavigated Africa. The chief minister of Gibraltar declared in a press release that the vessel was seized in order to enforce EU sanctions against Syria. The decision was based on the EU regulation 36/2012, a law of Gibraltar of 29 March 2019 and a regulation of Gibraltar of 3 July 2019. According to art. 14 para. 2 of the EU regulation it is prohibited to make available economic resources to corporations listed in Annex 2 to the regulation which includes the Banyas Oil Refinery Company. The chief minister of Gibraltar alleged that the oil carried by the tanker came from Iran and was destined to the refinery; this is denied by Iran.

The EU regulation and the above-mentioned legislation of Gibraltar is applicable on the territory of Gibraltar and the territorial waters. Gibraltar claims territorial waters up to 3 nm.

Grace 1 is owned by a shipping company located in Singapore and flew the flag of Panamá. However, according to the Autoridad Marítima de Panamá the vessel was removed from the open registry of Panamá on 29 May 2019.

Transit Passage

It is generally recognized that this strait falls under art. Read the rest of this entry…