magnify
Home Archive for category "EJIL Analysis" (Page 4)

The Assange case and the UK’s global defence of media freedom

Published on April 15, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Human rights advocates often point to the lack of consistency and coherence between states’ stated commitments, on the one hand, and their actions, on the other. Even then, the tensions surrounding the UK’s recent approach to the goal of protecting media freedom globally and its projection seem striking.

Within less than a week, the UK government has gone from showcasing its new campaign to defend media freedom – specifically the appointment of the Foreign Secretary’s Special Envoy and a panel of legal experts “to support countries to repeal outdated and draconian laws and strengthen legal mechanisms to protect journalists”, as well as an international conference to be held in London on 10 and 11 July, co-hosted with the Canadian government (on 5 April) – to facing a chorus of warnings from wide range of human rights organisations, authorities and activists  – including the American Civil Liberties Union, Human Rights Watch, the Committee to Protect Journalists, the Knight First Amendment Institute, the UN Special Rapporteur on freedom of expression, David Kaye, and Pentagon Papers whistleblower, Daniel Ellsberg – that the UK’s possible extradition of Julian Assange to the United States to face, at the moment, a single charge of conspiracy “to commit computer intrusion” would pose a threat the lawful and legitimate activity of journalists, especially their communications with their sources, setting a “dangerous precedent” for the future prosecution of “legacy” news media organisations.

Read the rest of this entry…

Print Friendly, PDF & Email
 
Tags:
Comments Off on The Assange case and the UK’s global defence of media freedom

A Neo-Colonial Court for Weak States? Not Quite. Making Sense of the International Criminal Court’s Afghanistan Decision

Published on April 13, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The International Criminal Court (ICC)’s involvement in Afghanistan has received a great deal of attention ever since the Prosecutor announced she would seek to initiate an investigation in November 2017. Rightly or wrongly, what made this inquiry so contentious was not the suffering of millions of Afghan people, but rather the alleged war crimes of a few dozen American nationals. Judging by most of the commentary, analysts worried primarily about one question: would the ICC be able to hold to account powerful states and their citizens?

Yesterday’s decision does not inspire confidence in that regard. Pre-Trial Chamber II unanimously agreed that an investigation into crimes against humanity and war crimes allegedly committed on the territory of Afghanistan was not in the ‘interests of justice’. This came as a surprise, to put it mildly. Against the backdrop of the ICC’s evolving institutional dynamics, this post will argue that, while the Afghanistan decision should not be viewed simply as a capitulation to great power interests, it foreshadows a reckoning with various assumptions that have guided the Prosecutor’s work and civil society support for the Court since 2003.

Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on A Neo-Colonial Court for Weak States? Not Quite. Making Sense of the International Criminal Court’s Afghanistan Decision

Julian Assange arrested in London; Omar al-Bashir being deposed

Published on April 11, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Busy day today – Ecuador has expelled Julian Assange from its embassy in London, revoking the diplomatic asylum it had given him previously (without basis in international law vis-a-vis the UK). Assange was arrested by British police. More consequentially, the president of Sudan, Omar al-Bashir, appears to be in the process of being deposed by the Sudanese military, after escalating street protests against his 30-year rule. He may end up before the ICC, or not.

We will have more coverage in the coming days. For our previous posts dealing with various aspects of Assange’s situation, see here. For our previous coverage of Bashir, see here.

Print Friendly, PDF & Email
Filed under: EJIL Analysis
 
Tags: ,
Comments Off on Julian Assange arrested in London; Omar al-Bashir being deposed

Humanitarian Assistance and Security Council Sanctions: Different Approaches to International Humanitarian Law

Published on April 11, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Under the sanctions regimes established by its resolutions adopted under Chapter VII of the United Nations Charter, the United Nations Security Council (UNSC) can currently impose sanctions on those who obstruct the delivery of humanitarian assistance in eight non-international armed conflict situations. This imposition of sanctions stems from the UNSC’s responsibility to maintain peace, security, and stability. Yet, its approach to humanitarian law (IHL) in these eight regimes has been inconsistent. In most of its current sanction regimes, the UNSC arguably has moved beyond the IHL applicable to humanitarian assistance, with the consequence that it can now sanction obstructions, which are broader than those which would constitute a violation of IHL. This post examines what this means for sanctions investigators and for the enhanced protection of civilians. 

Different Approaches of the UNSC with Respect to Imposing Sanctions on Obstructions to Humanitarian Assistance

The UNSC imposes sanctions in order to respond to threats to peace, security and stability. In the eight sanctions regimes discussed in this post, impediments to peace, security and stability explicitly or implicitly include obstructions to the delivery and distribution of humanitarian assistance and access obstructions.

Yet, the UNSC takes two different approaches when it imposes sanctions on obstructions to humanitarian assistance. In the first approach,  which is taken with respect to Libya and Sudan, there is no stand-alone criterion (the basis for listing by the UNSC or for being sanctioned) on humanitarian assistance, and humanitarian assistance and access obstructions may be considered under other listing criteria relating to violations of human rights or IHL. In these cases, Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on Humanitarian Assistance and Security Council Sanctions: Different Approaches to International Humanitarian Law

The Hole in the Doughnut – The OTP Strategic Plans and Self-Regulatory Actions in International Criminal Law

Published on April 10, 2019        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The past months have been turbulent at the ICC. The shower of critiques seems to have obscured that, although it is already April 2019, the OTP has not yet published its 2019-2021 Strategic Plan. The Strategic Plan is the main document through which the OTP publicizes its strategy and policies (see Regulation 14 of the Regulations of the Office of the Prosecutor). The goal of the Strategic Plan is to provide ‘transparency and clarity’ on the OTP work, making its actions predictable and allowing others to ‘plan their actions taking into consideration the Office’s work’ (para. 11, 2009-2012 Strategic Plan).

The first Strategic Plan was published in 2006 and, since then, three more came out (2009-2012, 2012-2015, and 2016-2018). In October 2018, the ASP Committee on Budget and Finance reported that it had been informed by the OTP that ‘the Strategic Plan for 2019-2021 is about to be finalized, after the completion of an internal consultation process within the OTP’ (para. 58) and that a draft would be circulated in November 2018 among relevant stakeholders. In December of the same year, the ASP stressed that it is expecting the Strategic Plan for 2019-2021 to be published at the end of the first quarter of 2019. Five months later and at the end of the first quarter, here we are, with no public Strategic Plan in sight. The Court may be facing another turbulence soon.

The Prosecutor has broad discretionary powers to select situations and cases, and enjoys great administrative independence. With the exception of budget approval and management oversight by the ASP (art. 112(b) and (d) of the Statute), other ICC organs cannot limit nor direct the actions of the OTP, and the Prosecutor has full authority over the administration of the OTP and of its resources. However, as per arts. 4 and 34 of the Statute, the Prosecutor is still a public official, and the OTP is still an organ of an international organization. Their freedom to administrate their resources and actions is therefore limited to their institutional functions and roles. 

Dworkin described discretion as a doughnut hole: it does not exist except as an open surrounded by a restrictive belt Read the rest of this entry…

Print Friendly, PDF & Email
 
Tags: ,

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: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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.

Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on 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

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

Published on April 8, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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…

Print Friendly, PDF & Email
 

Colombia: Time for the ICC Prosecutor to Act?

Published on April 2, 2019        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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…

Print Friendly, PDF & Email
 

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

Published on April 1, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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…

Print Friendly, PDF & Email
 
Tags: , ,

Can Incidental Starvation of Civilians be Lawful under IHL?

Published on March 26, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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…

Print Friendly, PDF & Email
 
Comments Off on Can Incidental Starvation of Civilians be Lawful under IHL?