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

The Gambia’s gamble, and how jurisdictional limits may keep the ICJ from ruling on Myanmar’s alleged genocide against Rohingya

Published on November 21, 2019        Author: , and

 

On 11 November, The Gambia filed an Application instituting proceedings and requesting provisional measures at the International Court of Justice (ICJ) in relation to the genocide allegedly committed by Myanmar against the Rohingya (for a first analysis of the Application, see this post by Priya Pillai). As notably reported by The New York Times and The Washington Post, the application is at least in part a personal quest for justice by The Gambia’s Minister of Justice and Attorney General, Abubacarr Marie Tambadou, who acts as The Gambia’s Agent and previously worked for the prosecutor of the International Criminal Tribunal for Rwanda. The Gambia’s application is backed by the Organisation of Islamic Cooperation (of which The Gambia is a member) and its legal team is led by the US law firm Foley Hoag (see here). As we will argue below, the peculiar origins of this quest for justice may well be determinative for the establishment of the ICJ’s jurisdiction.

Regarding the atrocities committed against the Rohingya, the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar has found ‘that the factors allowing the inference of genocidal intent are present’ (see here, para 1441). While there appears little reason to disagree with the Fact-Finding Mission’s conclusion, in this post we will not examine substantively whether the atrocities complained of constitute genocide. Instead, we will briefly sketch why it makes sense for The Gambia to seize the ICJ while proceedings relating to the Rohingya are already going on at the International Criminal Court (ICC), after which we will address the request for provisional measures.

Different nature of the ICJ and ICC Proceedings

Just three days after The Gambia submitted its application to the ICJ, Pre-Trial Chamber III of the ICC authorized the Prosecutor to investigate the situation in Myanmar/Bangladesh (see here). As Myanmar is not a party to the Rome Statute, and as the position of China and Russia make a UN Security Council referral highly unlikely (see eg here), the Prosecutor has opened an investigation on her own initiative. The investigation ‘geographically’ focuses on Bangladesh, Myanmar’s neighbouring country to which over 742.000 Rohingya refugees have fled (see here). Bangladesh is a party to the Rome Statute, and accordingly provides a jurisdictional link to the Court. Read the rest of this entry…

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R v TRA: Article 1 of the Convention Against Torture and the Public Official Requirement

Published on November 20, 2019        Author: 

 

Last week’s decision of the UK Supreme Court in the R v TRA (Appellant) case provides an important confirmation that armed group members can be prosecuted under s134 of the Criminal Justice Act 1988. The decision should be welcomed for providing authoritative guidance on how Article 1 of the UN Convention against Torture should be interpreted, when applied to prosecutions at national level.   Specifically, the judgment addresses the interpretation of the phrase ‘public official or other person acting in an official capacity’, finding that the words ‘other person acting in an official capacity’ can be interpreted to include members of armed groups which exercise governmental control over civilian population in a territory over which they control. It distinguishes these kinds of groups from armed groups whose activities are ‘purely military’. This judgment is to be welcomed as it confirms that members of non-State armed groups can be prosecuted for acts amounting to torture. It is also to be welcomed because the interpretation of Article 1 has long been discussed in academic writings (see Gaeta, Clapham & Gaeta, Fortin, Rodenhauser), and partly pertains to the larger question of when and whether armed non State actors are bound by human rights obligations.

It seems that the majority was mainly persuaded by (i) the ordinary meaning of Article 1 and (ii) the purpose of the Convention to establish a regime for international regulation of ‘official torture’, as opposed to private acts of individuals. According to the court, torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the Convention’s regime. The arguments that lead the Court to this conclusion are too detailed and varied to review in their entirety, but I want to address the following three aspects of the judgment: (i) the Supreme Court’s handling of the ordinary meaning of Article 1 (ii) its interpretation of the practice of the Committee Against Torture and (iii) the consequences of the judgment on the relationship between IHL and IHRL.

Ordinary Meaning of Article 1

In several different places in the judgment, the Court made clear that it was not convinced by the appellant’s argument that only persons acting for or on behalf of a State can perpetrate torture. Read the rest of this entry…

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Part II: What can be done about the length of proceedings at the ICC?

Published on November 18, 2019        Author:  and

 

Editor’s note: This is Part II of a two-part post. See Part I here.

Recent improvements

In recent years, the Assembly of States Parties, Presidency, Chambers, Registry, and Office of Prosecutor have all made efforts to make the ICC proceedings more efficient.

Back in 2010, the Assembly of States Parties established the Study Group on Governance to expedite the proceedings, and enhance the ICC’s efficiency and effectiveness. In 2012, the ICC created the Working Group on Lessons Learnt to take stock of existing practices and consider measures for improvement. These two groups have, together, galvanised other efforts to tackle the issue. Such efforts include proposing amendments to the Rules of Procedure and Evidence, in particular rules 132 bis and 68, later adopted by the Assembly of States Parties.

By a resolution in December 2014, the Assembly of States Parties requested the development of qualitative and quantitative performance indicators for the Court. The first report on performance indicators was published in November 2015 with the stated goal that ICC proceedings should be “expeditious, fair and transparent at every stage”. It identified ten non-exhaustive factors as likely to affect the length of proceedings. It suggested that these factors could be used to provide benchmark estimates for the likely duration of cases and that the degree of variance from such benchmarks would be the eventual performance indicator. The 2015 report identified three other areas of concern: the interstitial periods between different stages of the proceedings, judicial reaction time in providing decisions on filings, and the fullest possible use of the courtrooms. Read the rest of this entry…

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Part I: What can be done about the length of proceedings at the ICC?

Published on November 15, 2019        Author:  and

 

Editor’s note: this is Part I of a two-part post.

“Judgement does not come suddenly; the proceedings gradually merge into the judgement.”

Franz Kafka, The Trial

Jean-Pierre Bemba made his first appearance before the Pre-Trial Chamber in July 2008. His trial began in November 2010 and lasted four years. Two more years passed before the Trial Chamber found him guilty in March 2016. Another two years passed before the Appeals Chamber finally acquitted him in June 2018. He had been in custody for almost a decade. Other trials at the ICC have lasted nearly as long.

Long proceedings are not unique to the ICC. The most striking case must be the Nyiramasuhuko et al trial at the ICTR. There were six accused, arrested between 1995 and 1998. The trial began in June 2001. All six were convicted ten years later, in June 2011. Their appeals were not resolved until December 2015, by which time one of them had been in detention, awaiting the final resolution of proceedings, for twenty years.

The problem of lengthy criminal proceedings plagues domestic judicial systems, too. Indeed, a significant number of applications before the European Court of Human Rights (“ECtHR”) concern alleged violation of the right to a fair trial within a reasonable time under article 6 of the European Convention of Human Rights (“ECHR”). The extent of the problem in certain countries has prompted the ECtHR to resort to the so-called ‘pilot judgment’ procedure.

What is a reasonable length for criminal proceedings? Read the rest of this entry…

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Of Babies, Bathwater, and List B Judges at the International Criminal Court

Published on November 13, 2019        Author: 

 

The Open Society Justice Initiative recently released an excellent report on the selection of judges at the International Criminal Court (“Raising the Bar”). It is a detailed and thoughtful report combining often eye-opening interviews and desk scholarship. It makes a number of very important recommendations about improving the process by which ICC judges are nominated and elected. In this post, however, I wish to take issue with one of the report’s key recommendations. It is only one recommendation, but it is an idea which is increasingly frequently put forward in various fora as a sine qua non of effective International Criminal Court reform.

This is the suggestion that the only criterion for appointment to the ICC judiciary should be excellence in the practice of criminal law. Thus, the suggestion goes, the statutory provision that judges may be elected either on the basis of expertise in criminal law and practice (the “List A” judges) or expertise in relevant areas of international law and practice (the “List B” judges) should be abolished.

The Open Society Justice Initiative report certainly lends significant credence to the view that the List B route to the ICC bench has on occasion been used to appoint lawyers who have spent their career as diplomats and not prosecutors, defenders, judges, or scholar-practitioners.

However, the idea that a significant number of the Court’s woes would be corrected if only it were properly staffed with solid criminal law judges is, I think, overstated. Let’s briefly consider a few of the decisions of the Court which have been most maligned in recent commentary. Read the rest of this entry…

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Provisional Measures in Ukraine v. Russia: From Illusions to Reality or a Prejudgment in Disguise?

Published on November 8, 2019        Author: 

 

On 19 April 2017, the ICJ rendered an Order dealing with Ukraine’s request for provisional measures concerning the alleged violations by Russian Federation of both the International Convention for the Suppression of the Financing of Terrorism (‘ICSFT’) and International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’).

In assessing the request for provisional measures, the Court moved from requiring plausibility of rights to requiring of plausibility of claims. The latter constitutes a higher threshold compared to the former eloquently described by Judge Abraham in his separate opinion appended to the Pulp Mills judgment and consistently followed by the ICJ as discussed below.

This new test requires the Court, at the provisional measures stage, to consider aspects of the merits, which relates to the probability of the claim’s success, and goes beyond a pure jurisdictional analysis. This post examines the limits of Court’s assessment of the merits of a dispute in the context of a request for provisional measures, in the light of the binding nature of such measures and the need for balance between prejudgment and the protection of adjudication’s consensual nature. Does a requirement of factual plausibility disturbingly blur the distinction between merits and incidental proceedings? Read the rest of this entry…

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo case? (Part 3)

Published on November 6, 2019        Author: 

In this three-part series I seek to draw attention to legally-unprecedented and epistemologically-unsound evidentiary standards emerging at the ICC, particularly in the Gbagbo case.  The mainstream reaction to the Gbagbo case has been to accept the narrative that the problem lies entirely with evidence.  However, when the majority derides the “questionable quality of much of the evidence” (§1608), it speaks from a lens of Cartesian standards. If one reads the judgment instead through the lens of more typical legal standards, the evidence is harrowing.  Thousands of diverse items of evidence – eye-witnesses, videos, insiders, experts, and forensic and documentary evidence – attest to hundreds of instances of killing, wounding, raping, torturing and burning of civilians by police and other pro-Gbagbo forces.

At Nuremberg, Robert Jackson warned that giving the defendants an unfair trial would be a poisoned chalice for the tribunal itself.  My concern is that opposite extreme is also a poisoned chalice.  An exclusive focus on the interests of the accused, to the exclusion of all other considerations, leading to rarified and ungrounded standards, will also collapse the system.  If unchecked, these standards can only lead to repeated collapses of investigations and prosecutions.  We are at an interesting moment, because scholars are rightly warning against ‘crisis narratives’, and I myself have appealed for less alarmism.   Nonetheless I think that evidentiary standards are now one of the most crucial topics for study and reform.

The previous two posts (see Part I here and Part II here) gave only a cursory outline of problematic approaches to evidence and examples thereof. I will now touch on two related points, (1) evidentiary expectations for crimes against humanity and (2) investigative criticisms that overlook the applicable legal regime, and then I will conclude. Read the rest of this entry…

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The International Court of Justice Releases New Rules of Court

Published on November 4, 2019        Author: 

On 21 October 2019 the International Court of Justice released a series of amendments to its Rules of Court. This is the first substantive change to the Rules since 2005 and marks the fifth time the Rules have been amended since the creation of the Court (discounting the PCIJ years, on which more will be said in a moment).

The 2019 amendments are of interest because they come at a time when practical and academic interest in the Court’s procedure is at an all-time high. I say this not only because it is the focus of my own PhD research. Questions of International Law hosted a conference on procedure in May of this year; the International Law Association Committee on the Procedure of International Courts and Tribunals is in its final year and will be reporting in 2020; and the Max Planck Institute released last month a new encyclopedia dedicated to matters of procedure.

This post will set out a brief history of the Court’s Rules, speculate on the driving forces behind the 2019 amendments, and consider the implications of the new Article 79 on preliminary matters. Read the rest of this entry…

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Case Closed, but what about the Execution of the Judgment? The closure of Anchugov and Gladkov v. Russia

Published on October 30, 2019        Author:  and

 

 

In the beginning of October, EJIL: Talk! published a series of posts (here and here) by George Stafford, one of the co-directors of the European Implementation Network, who raised alarm about the status of execution of judgments of the European Court of Human Rights (the ECtHR). Based on the available statistical data, George argued that the problem of non-execution is “far more widespread than many believe.” Our post continues to address the important issue of the execution of judgments of the ECtHR by focusing on a specific case, namely Anchugov and Gladkov v. Russia – a 2013 judgment concerning the disenfranchisement of prisoners in Russia. 

On September 25th, the Committee of Ministers (the CM) of the Council of Europe, which pursuant to Article 46(2) of the European Convention on Human Rights (the ECHR or the Convention) supervises the execution of judgments of the ECtHR, adopted a final resolution CM/ResDH(2019)240, which closed the supervision of Anchugov and Gladkov v. Russia. The closure of the case means that Russia has complied with Anchugov and Gladkov judgment, as per assessment of the CM.

Anchugov and Gladkov became a test case for the Russian Constitutional Court (the RCC) under the domestic mechanism introduced in 2015, which permitted the Russian authorities to refuse the execution of judgments of the ECtHR on the basis of the RCC’s assessment of non-compliance of such judgments with the Russian Constitution. The RCC’s 2016 ruling of 19 April 2016 finding that the execution of Anchugov and Gladkov judgment was “(im)possible” provoked strong criticism from legal scholars and became a symbol of Russia’s resistance to the authority of the ECtHR. Read the rest of this entry…

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Is the UN Violating International Labour Standards?

Published on October 29, 2019        Author: 

The recent controversy regarding UNOPS consultants in Geneva has triggered a much larger and long-overdue debate on the use of ´non-staff personnel´ in the UN system and the asymmetries in their working conditions with respect to UN staff.

On 2012, the United Nations’ Joint Inspection Unit (JIU) published a report on a survey aimed at assessing the practices of individual consultancies and other non-staff personnel in the UN System, including various specialized agencies. The investigation revealed that use of non-staff personnel in the UN amounts to approximately 40 percent of its total workforce. One of the key reasons for the use of non-staff personnel, according to the report, is the lack of sufficient resources to pay for a staff position in conjunction with the strain of having to deliver with scarce funding. A further 2014 report specified another reason to hire non-staff personnel: greater flexibility in the recruitment process in comparison to staff recruitment. In spite of numerous recommendations made by the JIU to UN agencies, regarding contracting practices, no real progress has been made to address the aforementioned issues and solve them.

Consultants in the UN, generally maintain a contractual relationship with a UN Agency but are not considered formal ’employees’. While the use of consultants does not appear prima facie to be a breach of human rights standards on labour, I argue in this post, that the manner in which consultancy contracts are being implemented by the UN is inconsistent with the ‘equal pay for equal work’ principle.

UN Consultancy Schemes and the ‘Equal Pay for Equal Work’ Principle

Article 7 of the ICESCR stipulates that members of the Convention should guarantee fair wages and equal remuneration for work of equal value “without distinction of any kind”. As for the scope of the term “remuneration”, in the ICESCR drafting sessions there was a general consensus that the term comprises other benefits “beyond monetary wages” such as social security, family and child benefits, as was later established in the ILO Convention 100. Therefore the ‘equal pay for equal work’ principle not only involves a monthly salary but it also includes other social benefits. Read the rest of this entry…

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