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The Reviewability of the Security Exception in GATT Article XXI in Russia – Traffic in Transit: Implications for South China Sea Investment Disputes in GATT Article XXI-type Clauses in ASEAN Regional Investment Treaties

Published on April 9, 2019        Author: 
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The landmark WTO Panel Report on security exceptions in GATT Article XXI came out Friday last week in Russia – Traffic in Transit.  I have written extensively about necessity and national emergency clauses in the past – particularly to reject the position of the supposed wholesale unreviewability of these clauses in the Schmittian sense (on GATT Article XXI exceptions here and here, and on GATT Article XX exceptions, here and here).  The significant valence to this decision, in my view, does not just lie with the Panel’s reasoning (especially as to what they considered to be “objectively” determinable) and its broader implications for the current configuration of the world trading system in this era of increased Trump-driven trade wars.  The greater impact of this decision’s rejection of unreviewability, I submit, will be to enable arbitral tribunals to review security defenses of States anchored on international investment treaties that have purposely grafted GATT Article XXI language.

This phenomenon may be particularly acute for the regional investment treaties of the Association of Southeast Asian Nations (ASEAN). (For the detailed analysis of these clauses, see my previous published work here.)  Attempts by any ASEAN nations (such as the Philippines, Malaysia, Viet Nam, in particular) to impose, in the present or in the future, certain regulatory measures against China-funded development projects or activities of Chinese firms who are increasingly expanding their footprint (from either dredging activities and the creation of artificial islands from dredged and pulverized coral reefs; to tourism; logistics, construction, as well as energy operations in the South China Sea) could, ordinarily, be justified under the GATT Article XXI-type clause of Article 17 (Security Exceptions) in the 2010 ASEAN-China Investment Agreement.  With the declared reviewability of GATT Article XXI in Russia – Traffic in Transit, however, ASEAN Member States should expect that these measures could be challenged (and likely reviewed by arbitral tribunals) in investor-State dispute settlement proceedings permitted under Article 14 of the same 2010 ASEAN-China Investment Agreement.  This is just one illustration of the kind of deep ripple effects that the reviewability of GATT Article XXI-type security exceptions could have across many investment treaties that have kept replicating this clause (and particularly why I have generally, in my own expert work for ASEAN, cautioned against wholesale grafting of trade norms into the regional investment treaties, without setting an explicit treaty provision either rejecting or permitting the justiciability or reviewability of these provisions).  Transposing trade law so unstintingly into investment law creates its own set of unexpected consequences.  Notwithstanding regime differences with world trade law, investor-State arbitral tribunals may find it hard to ignore the authoritativeness of the Russia – Traffic in Transit Panel Report’s finding of reviewability of GATT Article XXI security exceptions.

This post will first give a brief summary of the Panel’s reasoning on reviewability of GATT Article XXI in Russia – Traffic in Transit, anticipating some of the consequences for ongoing trade wars of the United States, the EU, and Russia that depend on the unreviewability of the security exceptions clause in GATT Article XXI. (We expect extensive commentary on this landmark decision from several quarters, and this post certainly does not intend to be the last word on the full elaboration of reasons on all issues in this case.) The remaining part of this post focuses on GATT Article XXI-type security exceptions clauses in the ASEAN regional investment treaties, and how the reviewability of these clauses could potentially impact the investment and development dimension in the South China Sea disputes.

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Germany and its Involvement in the US Drone Programme before German Administrative Courts

Published on April 8, 2019        Author: 
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On 19th March 2019, the German Higher Administrative Court for North Rhine-Westphalia rendered a highly interesting and important judgment. It addresses no less than the compatibility of US drone strikes in Yemen with international law, the role of domestic courts with regard to international law, and the scope – and limits – of judicial review in foreign affairs.

The case was brought by Yemeni claimants against Germany for its alleged involvement in the US drone programme. While Germany neither publicly supports nor actively participates in the US drone programme, it is nearly undisputed that the US Air Base in Ramstein, Germany, plays a vital role therein (see here). The Court held that, first, Germany is constitutionally obliged to ascertain that the US drone strikes conducted via Ramstein are compatible with international law. Secondly, in case the government finds the US practice to be legally contentious, German authorities have to take efforts in order to ensure that international law is complied with.

The full reasoning of the decision is not yet available in writing, but the press release (see here for an unofficial English translation) and the transcript of the oral pronouncement of the decision (see here) allow for some preliminary remarks. (Note that the Higher Administrative Court on the same day rendered a second judgment that concerned US drone strikes, albeit in Somalia (see here). This contribution, however, focuses on the “Yemen case”.)

The Facts

In 2012, Salem bin Ali Jaber, a Yemeni imam known for openly criticising Al Qaeda was invited to deliver a sermon at the local mosque of Khashamir, Yemen, where he attended a family wedding. In that course he was approached by three members of Al Qaeda requesting a meeting. Salem asked his relative, and local police officer, Waleed to accompany him. Shortly after the meeting commenced, US drones fired a series of four Hellfire rockets on the group killing both Salem and Waleed bin Ali Jaber as well as the three Al Qaeda members.

This prompted Read the rest of this entry…

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Colombia: Time for the ICC Prosecutor to Act?

Published on April 2, 2019        Author:  and
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The controversy evolving around the role and competence of the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, SJP) has reached a new peak: Colombian President Iván Duque initiated a frontal attack against the Jurisdiction’s statutory law that goes beyond all previous assaults directed against the country’s Transitional Justice (TJ) system. We argue in this post that the current developments are an alarming threat to the Colombian peace process, and that President Duque’s most recent intent to impede the proper functioning of SJP has the potential to challenge any meaningful existence of that jurisdiction. Ultimately, we argue that this highly critical situation could (and probably should) prompt the Prosecutor of the ICC to take action.      

Previous attempts to weaken the Transitional Justice Process

It is not the first time that President Duque has attempted to undermine the country’s TJ-process. During his election campaign in August 2018, he announced that he would seek amendments to the Final Peace Agreement which was reached in 2016 between the Colombian government  and the Revolutionary Armed Forces of Colombia – Peoples Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP). After his election, Duque’s parliamentary group in the Colombian Congress (Centro Democrático, CD) has turned his words into action launching a proposal for a constitutional amendment that would deny all TJ-organs (including the SJP) access to confidential information affecting national security. The proposal would inhibit the work of all TJ-mechanisms and thus amounts to a frontal attack on the whole system, as has been commented in a previous post.

In October 2018, a new proposal issued by the Colombian Congress suggested the creation of special chambers within the SJP with the sole competence to try members of the Colombian Armed Forces. As a sort of military jurisdiction, whose impartiality and independence is more than questionable, it would unduly privilege members of the Armed Forces involved in international crimes. Thereby, it further threatens to undermine the SJP’s crucial function as the single mechanism responsible to bring all parties of the conflict to justice.

Even though the Colombian Congress has not adopted both proposals so far, they evince the government’s obvious intent to undermine the SJP’s constitutional framework and hinder its proper functioning.

The latest attack on the Special Jurisdiction for Peace

On 10 March, the government doubled down on its attempts to derail Colombia’s TJ-system: President Duque partially objected to the Statutory Law on the Administration of Justice of the SJP Read the rest of this entry…

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Some Reactions to Douglas Guilfoyle’s Posts on the Troubles of the ICC

Published on April 1, 2019        Author: 
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Editor’s note: This post is a response to Douglas Guilfoyle’s recent three part series: ‘This is not Fine: The ICC in Trouble‘ (Part I, Part II, Part III).

It is as if someone at the Court saw Douglas Guilfoyle’s first post here at EJIL:Talk! on the ICC’s troubles and decided that it was crucial to immediately prove him right. 

Last week, on the 22 march 2019, the Court made public a decision from the plenary of Judges allowing Judge Ozaki, who is sitting in the Ntaganda case (currently in the deliberations phase), to also commence her duties as the Japanese ambassador to the Republic of Estonia concurrently to her function as an ICC Judge. Here is not the place to analyse this decision, but it is for me symptomatic of the bubble in which the institution (here the Judges) lives where they seem blind to outside perceptions. Indeed, how can the vast majority of Judges not see that for most people the exercise of a political/diplomatic function is by its very nature incompatible with a judicial function? As noted by the three judges who dissented: 

For the minority, it was evident that the performance of an executive or political function for a State Party by an individual who remained a Judge of the Court was entirely likely to affect public confidence in judicial independence.

This decision is proof – if there was any need for more than provided in the Court’s practice in the past 15 years – of the relevance and timeliness of the 3-part blog series by Douglas explaining why the ICC is not fine and what should be improved. It is a thoughtful and detailed analysis of the Court’s woes and I agree both with its general evaluation and with most of the specific points raised. 

In this post, I would like to humbly propose not so much a response, but a reaction to some of the arguments put forward.

The Utility or Futility of the Pre-Trial Chamber

I would tend to agree with Douglas that today, one has the feeling that the confirmation of charges phase is a waste of time, for example because decisions on the confirmation of charges actually provide very little guidance on the content of the charges (including modes of liability) and relevant evidence. The process appears cumbersome and long and in need of a reform. I would not, however, be as critical as Douglas for a series of reasons. Read the rest of this entry…

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Can Incidental Starvation of Civilians be Lawful under IHL?

Published on March 26, 2019        Author: 
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Two recent posts in the recent joint blog series on international law and armed conflict concluded that the siege of a defended locality was permitted under the Law of Armed Conflict (LOAC)/International Humanitarian Law (IHL), but subject to a series of constraints regarding the protection of civilians. The prohibitions on starvation of civilians (in Geneva Conventions Additional Protocol I Art 54, Additional Protocol II Art 14 and in customary law, applicable both to international and non-international armed conflicts) were in particular analysed in Gloria Gaggioli’s excellent post. Given that ‘the prohibition of starvation as a method of warfare does not prohibit siege warfare as long as the purpose is to achieve a military objective and not to starve a civilian population’ (ICRC Customary IHL database, Rule 53), she notes that it is in practice very difficult to prove that the purpose of a siege is the starvation of civilians. However, she goes on to argue, persuasively, that if a siege can be construed as an ‘attack’ the proportionality rule would apply, thereby requiring any incidental starvation of civilians to be assessed against the concrete and direct military advantage anticipated.

As starvation is so central to much of the suffering inflicted on civilian populations in today’s city sieges in the Middle East, I want to return to the question of whether starvation of civilians needs to be the purpose (or even a purpose) of a belligerent to fall within the prohibition and whether incidental starvation may be lawful (if it is not disproportionate), by way of offering some thoughts as to what a legal analysis of the purpose of the relevant siege tactics might look like. If the prohibition on the starvation of civilians was in practice reduced to a prohibition on excessive starvation of civilians, this would obviously severely restrict the protection offered by Art 54 API and Art 14 APII.

We need to ask, firstly, what is the actual conduct denoted by the term ‘siege’ and, secondly, what is the military objective to which starvation of civilians is incidental? Read the rest of this entry…

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Part III- This is not fine: The International Criminal Court in Trouble

Published on March 25, 2019        Author: 
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Editor’s note: This is the final post in a three-part series. Parts I and II are available here and here.

In this final reflection I would like to offer some concluding remarks based on my previous two posts. Those posts do not break any new ground for those who follow the International Criminal Court closely. However, they represent my attempt to step back and examine some of the Court’s troubles more holistically. Indeed, they barely scratch the surface of various matters one could explore in such a series.

The basic fact remains that in 20 years and almost two complete prosecutorial terms, the Court that ostensibly exists to fight impunity and prosecute those most responsible for the crimes of greatest concern to the international community has managed only three convictions for core international crimes. Of these one was a guilty plea (Al Mahdi), one controversially involved the Court’s judges saving a collapsing case by recharacterizing the mode of liability after the presentation of argument and evidence had concluded and without hearing further argument on point (Katanga), and one took six years to result in a single conviction for the recruitment of child soldiers (Lubanga).

This is not a record of success. The argument I have put forward is first that there are real questions as to whether the Court’s job is possible to do on the present conditions. In my first post I argued that many of the defences made of the Court are simply articulations of the structural requirements for success which are not present. In my second post, I argued that even given those structural limitations it is not obvious that the Court as presently constituted is up to the task. The OTP appears unable to consistently mount successful and convincing cases. While the first Prosecutor must certainly take much of the blame, the second does not appear to have had much success righting the ship. Just as worrying, however, appears to be the breakdown in trust between the OTP and Chambers. Beyond the examples given in my second post, the Pre-Trial Chamber has attempted to circumscribe prosecutorial discretion or direct the course of investigations both in relation to the Cormoros and Bangladesh situations. Further, there are very worrying signs of a breakdown in collegiality among the ICC judges which is damaging both the formal coherence of court decisions and its wider legitimacy. This is before we even touch on the Court’s unsightly history of internal employment litigation and pay disputes, and now reports that the ICC mismanaged property in the Bemba case frozen to provide for any reparation orders. The allegation is that over 10 years Mr Bemba’s property was “left to devalue, dissipate or simply rot.” From the outside, the picture is one of dysfunction.

What is to be done? As foreshadowed, I think the answer has to be found in a guiding ethic of modesty and collegiality. I will address this in terms of institutional design, investigations and evidence, and judicial culture. The temptation will be to double down and push harder in the present direction of travel. This would be a mistake. The Court is facing a legitimacy crisis. To survive as an institution, the court is going to need to start making some compromises with reality.

Institutional design

In retrospect, elements of the Court’s design were from the outset overambitious or over-complicated. 

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Part II- This is not fine: The International Criminal Court in Trouble

Published on March 22, 2019        Author: 
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Editor’s note: This is Part II of a three-part series. Part I is available here.

Part I of these reflections focused upon the structural constraints faced by the International Criminal Court as a whole. Within this framework, I wish to focus upon the role of individuals and officeholders in the courts success or failure within those constraints, with a focus on the office of the prosecutor and the judges of the court (Chambers). This post thus sets out to address questions of the Court’s internal workings, practices and culture. In relation to the OTP, I will focus on questions of strategy and management; in respect of chambers, questions of collegiality and assessment of evidence. Space precludes an evaluation of the Registry’s contribution to the court’s present woes beyond my earlier allusion to the well-known, long and expensive series of employment law cases brought against it which followed from a previous registrar’s restructuring exercise. Again, little here will seem especially new to close observers of the Court, the point is to pull together a worrying cluster of issues for a broader audience. Warning: long post ahead.

The Office of the Prosecutor (OTP)

It is worth acknowledging both the enormous power of the role of an international prosecutor, and the very great difficulties in doing the job successfully. As Stahn notes, the Prosecutor is the engine of international criminal tribunal proceedings. He or she conducts investigations, selects defendants, brings cases to trial. In doing so, it is common for prosecutors to say that they are only following the law or evidence, but in practice they have substantial discretion in case and defendant selection. In addition, obtaining defendants and evidence requires, in practice, the cooperation of States. Thus, prosecutors’ work ‘is inherently linked to politics due to the political context of crimes, the politics behind institutional engagement and their large degree of choice.’ That said, international prosecutions are hard. Gathering evidence in conflict zones is hard. Operating in the face of government obstruction is hard. And the reality of selective justice at the international level means prosecutors will always be open to criticisms of partiality or lacking independence. It’s a challenging job. Much was going to depend on the ICC Assembly of State Party’s choice of prosecutor in 2003.

The first Prosecutor

The first Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, was during his tenure an Olympian figure; though the verdict of history on his achievements looks increasingly likely to be that of Ozymandias. 

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Part I- This is not fine: The International Criminal Court in Trouble

Published on March 21, 2019        Author: 
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Editor’s note: This is Part I of a three-part series.

There is now a real sense that the International Criminal Court is in trouble. The questions are: how much, why and what is to be done?

The UK pulled no punches in its statement to the 17th International Criminal Court Assembly of State Parties:

The United Kingdom strongly supports the aims of the ICC and believes there is an essential role for an international institution like the Court in delivery of justice at the international level. But as an Assembly of States Parties to the Statute, we cannot bury our heads in the sand and pretend everything is fine when it isn’t. The statistics are sobering. After [nearly] 20 years, and 1.5 billion Euros spent we have only three core crime convictions. As others have said, and I quote “it is undeniable that the Rome project still falls short of the expectations of the participants at that ground-breaking conference in Rome”. The time has come for States to take a fundamental look at how the Court is operating. We need to work together to address the challenges, for the future health of the Court, a Court that we care about deeply.

The UK statement, delivered by Legal Director Andrew Murdoch,* ‘welcome[d] the steps taken by the Prosecutor to investigate the media allegations surrounding the former Prosecutor that surfaced twelve months ago’ and noted that the ‘Court is in danger of spending more money on internal litigation, including litigation on salaries, than on victims’.

Some will no doubt point to ongoing ICC investigations into the actions of UK personnel in Iraq, to impugn the UK’s motives in making these points. Its criticisms, however, are undeniably grounded in fact. Things are not fine. In April it will be 16 years since the Court’s first prosecutor was sworn in. A widespread sense among the ICC’s supporters that there is some soul-searching to be done about the future direction of the Court has only been heightened in the weeks since the Gbagbo acquittal.

Let’s be clear about the paucity of concrete results. There have been eight convictions, one overturned on appeal, one arising from a guilty plea and four relating to Article 70 administration of justice offences. The four convictions for offences against the administration of justice all arise out of the Central African Republic investigation and involve sentences of 6 months to 3 years. The other convictions may be summarised as:

  • Bemba (CAR) – sentenced to 18 years, overturned on appeal; an administration of justice case continues;
  • Katanga (DRC) – sentenced to 12 years, transferred back to DRC custody with ‘sentence served’ after 8 years;
  • Lubanga (DRC) – convicted to 14 years;
  • Al-Mahdi (Mali) – proceeded on a guilty plea and was sentenced to 9 years.

This is to set aside the very considerable disquiet expressed regarding the Katanga conviction, involving the dismissal of charges against his alleged co-perpetrator and judicial recharacterization of the relevant mode of liability after the close of proceedings. There is also now the very public embarrassment of both the collapse of the Kenya situation prosecutions and now the entry of acquittals on a “no case to answer” motion by the Trial Chamber in Gbagbo. As Labuda notes, if the Gbagbo acquittal is upheld on appeal, the ICC will be in the ‘rather awkward’ position of having acquitted more alleged international criminal than it has convicted. Indeed, as Dürr points out, to have more acquittals and terminated proceedings than convictions is unique among international criminal tribunals.

There are certainly more complex, and arguably more important, metrics by which to judge the success or failure of an international criminal tribunal than the number of its convictions. Indeed, we would rightly be sceptical of the fairness of proceedings that only resulted in conviction. However, to the extent that the Court is meant to serve expressivist goals, fight impunity, or deter atrocity – it must present some credible threat to those who should fear accountability. It is often argued that the simple possibility of ICC accountability may deter atrocity and that the existence of institutions may change behaviour. As lawyers we know that behaviour changes in the ‘shadow of the court’, but that court must first cast a shadow.

In a series of reflections, I will argue that we should now be very worried about the extent to which the Court is casting much of a shadow at all. In exploring who and what is to blame for this situation, I will pursue two themes: conditions and culture. Read the rest of this entry…

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The IHL Exclusion Clause, and why Belgian Courts Refuse to Convict PKK Members for Terrorist Offences

Published on March 20, 2019        Author: 
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On 8 March, the Chamber of Indictments of the Court of Appeal of Brussels decided to discontinue the prosecution of thirty-nine individuals and two media companies affiliated to the Kurdistan Workers’ Party (PKK). All were being prosecuted for participating in the activities of, or directing, a terrorist group. The Federal Public Prosecutor’s Office had opened the investigation in 2006, and initially also alleged that the Belgian branch of the PKK was responsible for (forcibly) recruiting young Kurds to partake in the conflict with Turkey. However, any specific charges in this respect were dismissed in 2017 due to a lack of evidence.

The judgment forms the (provisional) ending to a procedural saga. On 13 February last year, the Court of Cassation had largely annulled a similar decision by the Chamber of Indictments of 14 September 2017 on the ground of a lack of motivation. That 2017 decision had in turn confirmed a decision of the Correctional Pre-Trial Chamber of the Court of First Instance of Brussels of 3 November 2016. Strikingly, throughout the case, the Turkish state had been a civil party and thus fully joined the prosecution in its argumentation. Not surprisingly, the decisions have caused fierce reactions from Turkey, which has summoned the Belgian ambassador in Ankara to protest the 8 March ruling, calling it ‘unacceptable’ (see here).

This post first explains the IHL exclusion clause, which forms the basis on which Belgian courts have decided to discontinue the prosecution of PKK members. It then briefly addresses how Belgian courts have struggled to apply the clause in other cases, goes over the earlier PKK judgments, and concludes with a short analysis of the decision of 8 March and its implications. Read the rest of this entry…

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Brexit, the Northern Irish Backstop, and Fundamental Change of Circumstances

Published on March 18, 2019        Author: 
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If, dear readers, you have any doubts that the parliamentary politics of Brexit have emerged from the fever dream of some demented game theorist, I would just ask you to take a very quick look at the events of last week. In their second meaningful vote on Theresa May’s Brexit deal, British MPs voted it down by 391 votes to 242, a majority of 149. This was an improvement of sorts on the first meaningful vote, which May lost by a majority of 230. MPs also voted to reject a no-deal Brexit and to instruct the government to ask the other EU states for an extension to the Article 50 withdrawal period. At the same time, by a majority of only 2 votes they defeated the Benn amendment, which would have allowed Parliament to express its preferences as to the outcome of the Brexit process in a series of indicative votes, and thus overcome the current impasse.

This week Theresa May seems poised to take her deal to the Commons for a third meaningful vote, most likely on Tuesday or Wednesday, before the EU Council meets on Thursday. She has worked furiously over the past few days to lobby the Northern Irish DUP and the hard-core Brexiteers within her party to vote for her deal, or risk either a very long extension to Article 50 or the UK remaining in the EU after all. This fear is of course the main incentive to bring the various pro-Brexit factions within Parliament and the Tory party to support May’s deal, and it is growing in power as the Article 50 deadline approaches. But because some of these factions have effectively painted themselves into a corner over the supposed downsides of May’s deal, they need something more than fear itself to justify a change of mind to their electorate. They need, well, a fundamental change of circumstances, like re-revised legal advice from the UK Attorney-General, Geoffrey Cox QC. And they may well eventually find that in the customary rule on fundamental change of circumstances, rebus sic stantibus, codified in Article 62 of the Vienna Convention on the Law of Treaties.

Now, if even after two full years into this whole MCFoHP someone told me that Brexit could ultimately depend on Art. 62 VCLT, I would have been perplexed, to put it politely. This is, for all its Roman pedigree, a rule that has never successfully been applied in real life, I would have said. Its requirements are almost impossibly strict. How could something as important as Brexit depend on an international law doctrine of such relative obscurity that even international law textbooks standing at more than a thousand pages devote it less than two? To paraphrase the late Ian Brownlie’s pithy assessment of jus cogens, the rule on fundamental change of circumstance is a car that has never left the garage.

But – but – over the past week the garage doors have creaked open, with a whiff of something tart and pungent. The stillness of things has become disturbed.

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