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Home Archive for category "EJIL Analysis" (Page 3)

Inter-American Court of Human Rights condemns Venezuelan regime’s political persecution against the opposition in the San Miguel Sosa and others case

Published on June 25, 2018        Author: 
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The Inter-American Court of Human Rights (hereinafter, IACtHR) published a recent decision (only available in Spanish) in the San Miguel Sosa and others vs. Venezuela case, by means of which it rebuts frequent arguments relied on by the Chavista[d1] –i.e. based on the ideas of former president Hugo Chávez— regime of Nicolás Maduro that label external and foreign criticism against its policies, frequently seen as abusive against political dissidents and others as contrary to human rights, as forms of intervention in its domestic affairs. This post translates relevant excerpts of the judgment on merits and reparations, and introduces some observations on the right to political participation under the American Convention on Human Rights.

The case was about the termination of contracts of persons who worked with the state of Venezuela soon after they participated in an initiative that sought to call for the celebration of a referendum on the termination of the mandate of then-president Hugo Chávez (para. 1). The list of those who signed in support of the referendum had been transmitted by the National Election Council (Consejo Nacional Electoral) to a ‘chavista’ member of parliament, Tascón (para. 131). Several state agents had told the applicants that the termination of their contract was the result of their disloyalty (paras. 137-139). While the defendant state argued that the contracts were terminated in order to lower costs and personnel (para. 140), the Court considered that this was not demonstrated. In this sense, it argued that the mere invocation of “convenience or reorganization, without providing more explanations” made the state arguments seem weak and lack precision “in relation to motivation”, supporting the “strength of circumstantial evidence” about actions that were actually meant to target lawful political and legitimate opposition action of some persons. Thus, the IACtHR concluded that there was a “reprisal against them for having legitimately exercised a political right enshrined in the Constitution, i.e. signing their support of the call for a referendum on the revocation of presidential mandate. The Court added, hence, that “the termination of the contracts was a “deviation of power” (para. 150), which exists when “there is a motivation or purpose that differs from that of a norm that confers powers to a state authority, [case in which it can be demonstrated that] the action can be regarded as an arbitrary one” (para. 121).

It is interesting to note that the Inter-American Commission on Human Rights had stated that the state of Venezuela’s assertion that the alleged victims had to fully demonstrate a nexus between an alleged discriminatory treatment and the authorities’ decisions would imply placing an excessive and absolute burden of proof on the applicants without the state having exhausted all the measures at its disposal to find out the truth, considering the complexity of the issue (para. 174). The Court, in turn, considered that while the termination of contracts was permitted by the legal system, it is possible to rebut a presumption that authorities acted in good faith (para. 122), as the Court found in this case based on circumstantial evidence (supra) flowing from evidence on the “Tascón list”, testimonies on conversations with state agents, statements of the president of Venezuela, and other elements that made the Court consider that “the termination of contracts took place in a context of high instability, political polarization and intolerance towards dissent, which could encourage forms of persecution or discrimination […] made possible by acts and declarations of members of the Executive and Legislative Powers, as well as of the competent electoral authority”, there having been no adequate state “precise and detailed explanation as to the motivation of its decision. In cases as the present one, the mere invocation of convenience or reorganization, without providing further explanations, is not sufficient, because the weakness of precisions as to motivation reinforces the likelihood of contrary circumstantial evidence […] Reason why the Court concluded that the termination of contracts was a form of deviation of power, which used [a] clause as a veil of legality to conceal the actual motivation or real purpose: a reprisal […] for having legitimately exercised a political right” (paras. 124-150).

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Will the Global Compact on Refugees Address the Gap in International Refugee Law Concerning Burden Sharing?

Published on June 20, 2018        Author: 
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Introduction

There are 65.6 million forcibly displaced persons including over 22.5 million refugees in the world. According to UN Refugee Agency (UNHCR), 10 states are hosting more than 60% of the world’s refugees while 10 states are providing 93% of UNHCR’s budget and three states are accounting for 90% of refugee resettlement. The number of refugees is growing and a more equitable sharing of the burden for hosting and supporting refugees is desperately needed. Despite this need international law, in particular, the principal instrument for the protection of refugees worldwide, the Convention relating to the Status of Refugees (the 1951 Convention) does not explicitly deal with burden sharing. The 1951 Convention does not provide clear pre-determined criteria for predictable sharing of burdens among states or introduce any mechanism to ensure adequate compensation to the states hosting or supporting more refugees than others. This creates, a well-documented gap in international refugee law concerning burden sharing. To address this gap and better respond to the changing and growing needs of people on the move, UNGA unanimously adopted the New York Declaration for Refugees and Migrants (New York Declaration) on 19 September 2016. In the New York Declaration, 193 states committed to a more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees. The New York Declaration foresaw adoption of a Global Compact on Refugees (GCR).  UNHCR is tasked to prepare this Compact, which consists of two components: the Comprehensive Refugee Response Framework (CRRF) and the programme of action. The latest draft of the GCR namely, the Third Draft was published on 4 June 2018. The final text of the Compact will be adopted by the UNGA later this year. This post reviews the Third Draft with a view to establishing whether the Global Compact on Refugees will fill the gap in the existing global refugee protection regime relating to burden sharing.  Read the rest of this entry…

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First and Second Degree Genocide? Considering a Case for Bifurcation of the Law

Published on June 19, 2018        Author: 
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At its inception, the crime of genocide, which broadly concerns criminal conduct targeted at a group, was generally seen as somehow more culpable or aggravated than international crimes targeted at an individual. Critical opposition to that view exists (See Milanović on the Karadžić and Mladić Trial Chamber judgments). Contemporary application, however, of the law continues to consider genocide as “horrific in its scope” precisely because perpetrators identify “entire human groups for extinction” and “seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide” (Krstić, Appeals Chamber judgment, para. 36).

The Appeals Chamber in Krstić has emphasized that the gravity of genocide is “reflected in the stringent requirements which must be satisfied before this conviction is imposed” (para. 37). This includes proving a specific intent to destroy a group such that the group targeted for destruction was either the whole “protected group”, or a “substantial” part of that whole (the “substantiality test”). Where the requirements are satisfied, the Appeals Chamber implores that “the law must not shy away from referring to the crime committed by its proper name” (para. 37).

My contention is that the law in fact has shied away from referring to the crime of genocide by its proper name. Read the rest of this entry…

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The Settlement Agreement between Greece and the Former Yugoslav Republic of Macedonia

Published on June 18, 2018        Author: 
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On 12 June, Athens and Skopje announced that they have reached an agreement to resolve a dispute over the former Yugoslav Republic’s name that has troubled relations between the two states for decades. The agreement was signed at Prespes Lake, a lake at the border of Albania, Greece, and the former Yugoslav Republic of Macedonia, on 17 June. Despite the historic significance of the deal, following its announcement, the two governments have faced furious backlash. Voices on both sides condemn the agreement in the strongest possible terms, with the President of Macedonia, Gjorge Ivanov, rejecting the deal point-blank and the Greek opposition submitting a motion of no confidence against Prime Minister Alexis Tsipras and his government, which failed to carry late on the night of 16 June, a few hours before the signing of the Agreement.

The present contribution provides an overview of the main points of the Agreement reached between the two neighbours to end their 27-year-long bitter dispute.

Historical Background

The former Yugoslav Republic of Macedonia is the interim designation of the constitutionally named ‘Republic of Macedonia’ (Republika Makedonija) at the time of accession to the UN. The Republic of Macedonia declared independence in 1991 at the dissolution of the SFRY, and sought international recognition. The use of the name ‘Macedonia’ has created a long-lasting dispute with the neighbouring country of Greece. Read the rest of this entry…

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Here Comes the Name Again: Treaty Making at the Epicenter of the Greek Debate over the agreement with the former Yugoslav Republic of Macedonia

Published on June 16, 2018        Author: 
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This week, the Prime Ministers and Foreign Ministers of Greece and the former Yugoslav Republic of Macedonia reached agreement over the long running dispute regarding the name of the latter. After independence from the Socialist Federal Republic of Yugoslavia, the former Yugoslav Republic continued to use the name it had used as an entity within Yugoslavia, namely the Republic of Macedonia. Greece objected strongly to the use of this name and over the last 25 years or so we have seen sanctions imposed, Security Council Resolutions with provisional designations, an Interim Accord in 1995 and a case before the ICJ which culminated in a 2011 decision finding a violation of that Accord on the part of Greece due to its objections to fYR Macedonia being invited to join NATO in late 2008.

The agreement provides for the use erga omnes of the name ‘Republic of North Macedonia’ as the name of fYR Macedonia, makes provision for other eventualities, such as adjectival uses, commercial brands and designations, and cooperation between the two states in various areas including defence, and seemed to have finally brought resolution to this bizarre dispute. Not so fast. In the last few days, provisions of the Vienna Convention on the Law of Treaties and general international law regarding treaty making powers and the process of signature, ratification, and entry into force, have made their way to the epicenter of the Greek debate over the matter. In an article on 11 June 2018 in the Greek conservative daily Kathimerini[link in Greek], Georgios Gerapetritis, a Professor of Public Law at the University of Athens, argued that by signing the agreement, the Greek Prime Minister (or, as the case actually is, the Foreign Minister) would be binding Greece to the obligations under the Convention irrespective of its (domestic) ratification by the Greek Parliament, which only serves to introduce the treaty into domestic Greek law. This would expose Greece to international responsibility.

 

The argument is flawed. Read the rest of this entry…

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Commanders’ Motivations in Bemba

Published on June 15, 2018        Author: 
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Introduction

No doubt there is much to be written about Jean-Pierre Bemba Gombo’s acquittal by the Appeals Chamber – on its implications for the ICC, for politics in the Democratic Republic of the Congo, and for the standard of review in future appeals. In this post, I will focus on a single issue addressed by the Appeals Chamber: the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This may seem a narrow issue – it was, initially, but one aspect of one element of the test for superior responsibility that formed part of one ground of appeal. However, this issue turned out to play a critical role in the majority’s decision to acquit the defendant.

Background

A majority of the Appeals Chamber – Judges Van den Wyngaert, Eboe-Osuji and Morrison – held that the second ground of appeal and part of the third ground of appeal were determinative of the appeal. The second ground averred that the conviction exceeded the charges. The third ground averred that Mr Bemba was not liable as a superior, with the relevant part upheld concerning whether he took all necessary and reasonable measures to prevent or repress the commission of his subordinates’ crimes. Within this part, the majority’s decision emphasised, in particular, two putative errors in the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures (para 191). The first concerned the Trial Chamber’s assessment of Mr Bemba’s motivation in taking the measures that he did take. This is the issue addressed in this post. Read the rest of this entry…

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In Bemba and Beyond, Crimes Adjudged to Commit Themselves

Published on June 13, 2018        Author: 
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And now, it seems, we must fear to endure crimes adjudged to have no cognizable author – crimes that everyone knows occurred, but that escape the assignment of responsibility that is supposed to be an essential function of international criminal justice. Crimes adjudged, as one commentator lamented, to have committed themselves.

Provoking these dire sentiments is Friday’s International Criminal Court judgment in Prosecutor v. Bemba, in which a bitterly divided Appeals Chamber exonerated a politician-warlord from the Democratic of Congo (DRC) whom a Trial Chamber had sentenced to serve eighteen years in prison. The Appeals Chamber majority, constituting three of the five appellate judges, first maintained that the 2016 trial judgment merited no deference, then proceeded to evaluate the case de novo, and ultimately found all five counts of conviction unsustainable. The man whom para. 13 of the appeals decision identifies as “President of the MLC, a political party founded by him and based in the northwest of the DRC, and Commander-in-Chief of its military branch, the ALC,” thus was acquitted of charges on which he had been held since 2008. Bemba is awaiting the results of his appeal on a separate conviction for witness tampering. Yesterday, the Court ruled that he could join his family in Belgium while he awaits sentencing in that case. Read the rest of this entry…

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Fiddling While Rome Burns?  The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo

Published on June 12, 2018        Author: 
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On March 21, 2016, after a 4-1/2 year-long trial that heard the testimony of 77 witnesses, the introduction of 773 items of evidence, and gave rise to a transcript that was thousands of pages long, a unanimous Trial Chamber convicted Jean-Pierre Bemba Gombo of crimes against humanity and war crimes committed by his troops in the Central African Republic from 2002-2003 and sentenced him to 18 years imprisonment.  The case was the first to find a perpetrator guilty of command responsibility under article 28, and the first ICC case involving a conviction for sexual violence. The three trial judges, were unanimous in their assessment of Bemba’s culpability under the Statute, although two judges raised questions regarding the parameters of article 28.

On June 8, the Appeals Chamber reversed, 3-2, and acquitted the accused finding that Bemba’s conviction exceeded the facts and circumstances described in the charges brought against him and declined to permit a trial on the facts it found to be outside the scope of the initial Trial Chamber Judgment. Judges Monagang (Botswana) and Hofmański (Poland) would have upheld the conviction and penned a lengthy Dissenting Opinion.  Judge Eboe-Osuji (now President of the Court) would have permitted a retrial on the new charges his colleagues found to be outside the scope of the original conviction, but was apparently unable to persuade his colleagues to join him in that view. 

How did this happen? Read the rest of this entry…

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The Israeli Strikes on Iranian Forces in Syria: a case study on the use of force in defence of annexed territories

Published on June 8, 2018        Author: 
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Factual Background and Legal Issue

The extensive air strikes launched by Israel on Iranian forces and assets across Syria in the early morning of 10 May 2018 present a complex case study which deserves proper legal scrutiny. According to the reconstruction given by the Israel Defence Forces (IDF), the strikes were decided in retaliation for a rocket barrage fired some hours earlier from Syrian territory on IDF forward outposts in the Israeli-controlled Golan. Despite denials by Iranian officials of any direct involvement of their military in Syria, the rockets were immediately attributed by the IDF to the Quds Force, the special unit of the Iranian Revolutionary Guards in charge of extraterritorial operations.

Reacting to the alleged Iranian attack and to Syria and Iran’s condemnation of Israel’s response as an act of aggression against Syria, the governments of the United States, the United Kingdom and Germany explicitly referred to Israel’s right to act in self-defence against Iran. The same Israeli Prime Minister Netanyahu, before the operation could take place, had invoked ‘Israel’s obligation and right to defend itself against Iranian aggression from Syrian territory’. This claim, although phrased in legal terms, was not formalised in an Article 51 letter filed with the UN Security Council, which should include a justification for the use of force against both Syria (whose territorial integrity was violated) and Iran (whose forces and facilities were targeted). A self-defence argument however would raise in the present case a legal issue related to the status of the territory attacked: the Golan Heights, occupied by Israel after the Six-Day War in 1967 and annexed in 1981. Can an annexing state invoke Article 51 UN Charter to justify the use of force in self-defence against an armed attack directed exclusively at a territory that it annexed? This post submits that the answer to this question, which appears unsettled and largely unexplored, cannot overlook the situation of manifest illegality that a self-defence argument would purport to preserve and protract. Read the rest of this entry…

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Lost Between Law Enforcement and Active Hostilities: A First Glance at the Israeli Supreme Court Judgment on the Use of Lethal Force During the Gaza Border Demonstrations

Published on June 4, 2018        Author: 
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In response to the ongoing violent clashes between the Israeli Defence Forces (IDF) and Palestinian protesters during the so-called ‘March of Return’ along the Gaza border fence several Israeli human rights organizations petitioned the Israeli Supreme Court, challenging the IDF’s rules of engagement, as well as their implementation. The arguments put forward by the petitioners and the Israeli Government, as well as the legal issues involved were  discussed in advance of the Court’s judgment by Eliav Lieblich and Yuval Shany (here and here). Last week, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its decision, which unanimously rejected the petitions. Although the judgment seems to be flawed on several issues, it nevertheless includes a couple of interesting statements regarding the relationship between law enforcement operations and active hostilities in armed conflict. An initial analysis of the decision has been published by Amichai Cohen and I should say at the outset that I share some of his conclusions. Those aspects of the decision that relate to international law will probably spark mixed feelings. As mentioned by Cohen, the fact that the Court explicitly endorsed the ICRC’s Interpretive Guidance on Direct Participation in Hostilities is certainly a welcome development. However, the fact that the justices refused to discuss the applicability of international human rights law (IHRL) in situations of armed conflict; that they invented an obscure new law enforcement paradigm; and expanded the notion of ‘imminent threat’ to allow for the preventive use of lethal force, less so. Read the rest of this entry…

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