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Home Archive for category "EJIL Analysis" (Page 7)

A Hidden Reading of the ICC Appeals Chamber’s Judgment in the Jordan Referral Re Al-Bashir

Published on June 6, 2019        Author: 

On 6 May 2019, the Appeals Chamber of the International Criminal Court (ICC) issued the Judgment in the Jordan Referral re Al-Bashir Appeal. It found that Jordan had no ground to refuse to execute the request by the ICC for arrest and surrender of Omar Al-Bashir, the then Head of State of Sudan – a State not party to the Rome Statute.  In this highly controversial judgment, the Appeals Chamber held that ‘[t]here is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court.’ (par. 1, 113) Endorsing the ICC Pre-Trial Chamber I’s 2011 Malawi Non-Cooperation Decision, the Appeals Chamber furthermore held that ‘[t]he absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant […] also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State.’ (par. 114)  

The Chamber could have ended its judgment on the issue of immunities there, as this finding on customary international law, if correct, would seem to dispose of the matter. However, it decided to also consider the position taken  by Pre-Trial Chamber II in the Jordan Non-Cooperation Decision, that the immunity of the Sudanese President was removed by virtue of the Security Council (SC) resolution referring the situation in Darfur to the ICC.

In this post, I will argue that the Chamber not only confirmed the legal validity of what has been termed the ‘Security Council route’ – as developed in the Jordan & South Africa Non-Cooperation Decisions – but actually upheld that it is such reasoning that must be applied at the horizontal level to displace the immunity of a Head of State of a non-party State. I will show that this conclusion flows from the Joint Concurring Opinion of 4 of the 5 Appeals Chamber judges (Judges Eboe-Osuji, Morrison, Hofmański and Bossa) – constantly referred to in the main Judgment for further elaboration – and the recently issued Q&A regarding the Appeals Chamber Judgment. Read the rest of this entry…

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CETA Opinion – Setting Conditions for the Future of ISDS

Published on June 5, 2019        Author:  and

The April 2019 New York UNCITRAL Meeting of Working Group III did not discuss the then forthcoming Opinion 1/17 (CETA Opinion) on the compatibility of CETA’s investment court system with EU law. For some the dangers this Opinion could pose to ISDS were altogether non-existent – the Court of Justice of the European Union (CJEU) might as well have considered ISDS in CETA as incompatible with EU law. To others ISDS reform negotiations without the EU, and probably without its Member States, might have seemed a more appealing prospect. The CETA Opinion was rendered on 30 April 2019 and confirmed that the treaty’s investment court system is compatible with EU law. Reaction to it has been immediate, but the real consequences of this (probably explosive or even implosive) opinion will take time to absorb, and a lot of in-depth analysis will certainly follow.

In the past years the CJEU was seemingly headed down a narrow one-way street: its Opinions on a Patent Court, the EU accession to the ECHR or even the Achmea Judgement questioned the participation of the EU and its Member States in international dispute settlement placed outside the control of the EU judicial system. With the CETA Opinion the Court took a U-turn out of the one-way street, back into the path of international dispute settlement. But as the Court managed to turn – and immense pressure was brought to bear – it drafted the conditions for the new multilateral court system that the EU is currently pursuing in international fora. In the remainder of this short contribution we will not canvass the possible contradictions between the Opinion and previous CJEU decisions – although there might be some. We focus on the future instead. In light of the EU’s role as a major investment treaty negotiator and its push for the creation of an MIC, we ask two questions: what this Opinion might mean for the future of ISDS and what open questions remain.

  1. Conditions for the Future of ISDS

Although the CJEU only dealt with the narrow question of whether CETA’s investment court system is compatible with EU primary law, its Opinion will likely have consequences well beyond this context, including notably in relation to a future Multilateral Investment Court (MIC). When the CJEU was deciding, the MIC was the invisible elephant in the room: first, because in CETA the EU commits to pursuing the establishment of an MIC; second, because the European Commission in its contributions to UNCITRAL’s WGIII promotes this option as at least at this time the only possible future for ISDS involving the EU. Read the rest of this entry…

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The Future of International Law in an Authoritarian World

Published on June 3, 2019        Author: 

In this short review essay, I would like to offer some thoughts on the future of international law in an increasingly authoritarian world. Even for a discipline which loves a crisis, these are perhaps challenging times. The liberal cosmopolitan project of global governance through international law and multilateral institutions has, at the very least, hit a bump in the road. There is a widespread sense that a change in direction is likely. It is a reasonable time to reflect on questions such as: is international law in trouble? How concerned should we be at attempts to revise the international system? And what might a more authoritarian version of international law look like?

In reflecting on the questions I’d like to offer my readings of three scholars I’ve recently found thought-provoking. These are personal reflections and interpretations, not an effort to capture every nuance of their work. Nonetheless, each has had an impact on my thinking.

  1. Shirley Scott, “The Decline of International Law as a Normative Ideal

In this piece, Scott contrasts her view of international law with what she considers the dangers in the turn to speaking about a “rules-based order”. Scott sees the project of international law as historically containing a commitment to several major principles.

First, the principle that law is politically neutral: a conception that law stands aside from politics, and creates a level playing field for state actors, to engage and to argue with each other. This principle includes the idea of formal sovereign equality.

Second, a commitment to peace through law: the idea that law contains within it the potential for objective dispute settlement, and that this is a contribution to world peace. Read the rest of this entry…

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A Hypothetical on Deprivation of Liberty and Torture

Published on May 31, 2019        Author: 

In light of today’s rather extraordinary statement by Prof. Nils Melzer, the UN Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment or punishment, that Julian Assange has been subjected not only to arbitrary deprivation of liberty, but also to a sustained campaign of collective persecution, the results of which were tantamount to psychological torture, here’s a brief hypothetical that can hopefully shed some light on Assange’s legal situation:

Variant 1: A is a human rights defender living and working in Dystopia, a highly authoritarian police state. He has helped countless people in his work, to much international acclaim. One day he receives reliable information that a Dystopian court has ordered his arrest, on charges of sedition, and that if convicted (which seems very likely) he could spend many years in prison. A decides to evade the police seeking to arrest him.  With the help of friends, A finds refuge in a cave in a remote location. He spends 7 years in that cave, with very little human contact, fearful that if he ever left the cave the police would find him and arrest him. The years take their toll. A starts suffering from a number of physical ailments. Even worse, the virtually total separation from his family, friends and the outside world eventually leads to serious impairment to his mental health, including severe anxiety and depression. After 7 years, the Dystopian police discover A’s hiding place and arrest him.

Questions: (1) While A was in the cave, was he subjected to a deprivation of liberty by the state of Dystopia? (2) If so, was that deprivation of liberty arbitrary? (3) In any event, do the accumulated consequences to A’s mental and physical health, due to the extended period of time he spent in the cave hiding from Dystopian authorities, qualify as torture or cruel, inhuman or degrading treatment of A on the part of the state of Dystopia?

Variant 2: R is the highest-ranking general of the army of a separatist regime in Anarchia, a country ravaged by a sectarian civil war. The International Criminal Court has issued a warrant for R’s arrest for war crimes and crimes against humanity on a massive scale; he is suspected of leading a campaign of ethnic cleansing which claimed the lives of tens of thousands of people. After the Anarchian civil war ends in the victory of his opponents, R decides to go into hiding. With the help of friends, R finds refuge in a cave in a remote location. He spends 7 years in that cave, with very little human contact, fearful that the Anarchian government authorities will arrest him and send him to The Hague for trial. The years take their toll. R starts suffering from a number of physical ailments. Even worse, the virtually total separation from his family, friends and the outside world eventually leads to serious impairment to his mental health, including severe anxiety and depression. After 7 years, the Anarchian police discover R’s hiding place and arrest him.

Questions: (1) While R was in the cave, was he subjected to a deprivation of liberty by the state of Anarchia? (2) If so, was that deprivation of liberty arbitrary? (3) In any event, do the accumulated consequences to R’s mental and physical health, due to the extended period of time he spent in the cave hiding from Anarchian authorities, qualify as torture or cruel, inhuman or degrading treatment of R on the part of the state of Anarchia? (4) If you have answered any of the preceding questions differently than their counterparts in Variant 1, please explain why you have done so.

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The Distinction between Military and Law Enforcement Activities: Comments on Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine V. Russian Federation), Provisional Measures Order

Published on May 31, 2019        Author: 

International Tribunal for Law of the Sea (ITLOS) issued a provisional measures order to Russian Federation to release three Ukrainian naval vessels and their servicemen on 25 May 2019. In deciding that the Annex VII arbitral tribunal would have prima facie jurisdiction as required under Article 290(5) of United Nations Convention on Law of the Sea (UNCLOS), the Tribunal held that the case was not “disputes concerning military activities” as provided under Article 298(1)(b) (see Kraska).

This is an important decision considering that there is no settled definition of “military activities” which allows state parties to be exempted from the compulsory dispute settlement procedure under UNCLOS. This is the first time that ITLOS held its interpretation on the former half of Article 298(1)(b) (while the latter half was dealt in the provisional measures order in Arctic Sunrise, para.45), and South China Sea arbitration case of 2016 before Annex VII Arbitral Tribunal remains the only precedent where a third-party dispute settlement institution held its interpretation of the same text.

There seems to be a common understanding that in this order, the Tribunal interpreted the scope of the “military activities” under Article 298(1)(b) quite narrowly, if not diminished, and thereby lowered its jurisdictional bar. While assessments of this decision have already been posted (see Kraska, Schatz), this post adds some comments on the legal framework that the Tribunal relied upon.

Preliminary Remarks

One thing that should be kept in mind is that, since it is a provisional measures order, it suffices if the provisions invoked by the applicant prima facie appear to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal could be founded, and need not definitively satisfy itself that the tribunal has jurisdiction over the dispute (Order, para. 36; see also ARA Libertad, para. 60). Judge Lijnzaad’s commented that the questions of the applicable law and of whether the issues raised are solely to be understood as being related to the interpretation and application of UNCLOS were left to Annex VII arbitral tribunal at a later stage, as they are “matters that go well beyond the prima facie analysis of a request for provisional measures (Declaration, Lijnzaad, para.8).” Read the rest of this entry…

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Did ITLOS Just Kill the Military Activities Exemption in Article 298?

Published on May 27, 2019        Author: 

In a May 25, 2019 interlocutory decision, the International Tribunal for the Law of the Sea (ITLOS) prescribed provisional measures in the case brought by Ukraine against Russia, ordering Russia to release three Ukrainian naval vessels and 24 Ukrainian service members seized on November 25, 2018 in an incident in the Kerch Strait. During the incident last fall, Russian Coast Guard forces, operating in concert with a Russian naval corvette and a military aircraft, fired on two Ukrainian warships and a naval auxiliary as they attempted to transit the strait against the orders of Russian authorities. The ships and their crews were captured and remain in detention in Russia, charged with violating Russian criminal law.

On April 29, Ukraine filed a case with ITLOS requesting provisional measures to order their immediate release. Such measures are authorized under article 290 of the United Nations Convention on the Law of the Sea (UNCLOS) in urgent situations to prevent a real and imminent risk of irreparable prejudice to the rights of a party, in this case Ukraine. Article 290(5) permits such measures before the merits of the case so long as the Tribunal has prima facie jurisdiction in the case. The key question was whether the Russia’s operation constituted a “military activity,” and was therefore exempt from jurisdiction in accordance with a previous Russian declaration under article 298 of UNCLOS. The Tribunal determined that Russia’s operations were not a military activity, but the decision is likely to generate unintended consequences.

The ITLOS order has effectively diminished the military activities exemption which will give pause to the 27 nations that have made such declarations, including China, France, Norway, Denmark, and the United Kingdom – and in the future, most likely the United States, which intends to make such a declaration once it accedes to the Convention. (The states are identified in paragraph 11 of Judge Gao’s separate opinion). In a decision that suggests outcome-based legal reasoning to constrain Russia, ITLOS questions the viability of the military activities exemption based on any rationale.

As part of its analysis for jurisdiction, the Tribunal avoided a determination on whether there was an armed conflict between the two states, as would appear from the application of the Geneva Conventions in article 2 common, and as I suggested in an earlier piece. Instead, the ITLOS order accepts without analysis that Ukraine and Russia are interacting during a time of peace, a dubious assumption. In doing so, the Tribunal vindicates two important rights that will be welcomed by maritime powers: sovereign immunity of warships and other government vessels and the peacetime right of freedom of navigation by Ukrainian military vessels. But in reaching this conclusion, the Tribunal diminished the military activities exemption. In a departure from the broader understanding of military activities evident in the 2016 Philippines v. China arbitration, the Tribunal found that the confrontation over innocent passage was a navigational issue, rather than one concerning a military activity, because innocent passage is a right enjoyed by all ships. The Tribunal also determined that Russia’s temporary suspension of innocent passage declared conveniently to halt the transit of Ukrainian warships was a law enforcement activity rather than a military activity. These factors led the Tribunal to conclude that Russia’s actions were “in the context of a law enforcement operation rather than a military operation.”

Read the rest of this entry…

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Justifying Self-defense against Assisting States: Conceptualizing Legal Consequences of Inter-State Assistance

Published on May 23, 2019        Author:  and

Cause for thought: Israel’s airstrikes directed against Iran and Syria

Israel has acknowledged to have repeatedly struck Iranian military targets in Syria. While confrontations occur frequently, the incident of January 21, 2019 has received  particular attention. Israeli guided missiles, apparently fired over Lebanese territory (UN Doc. S/PV.8449, p. 31f), hit Iranian military targets in Syria, also leading to personal and material damage of Syria. Israel invoked its right to self-defense, apparently reacting to Iran firing a surface-to-surface missile towards the Golan Heights on Sunday, January 20 from Syrian territory. Syria’s precise role in the Iranian action beyond this territorial link remains murky.

The problem: self-defense affecting assisting states

The Israeli claim to self-defense faces various legal questions (e.g. whether the attack meets the necessary threshold or whether annexed territories can be defended). This contribution does not aim to assess the Israeli claim, but shall use this example to shed light on one problem only: May the victim of an armed attack defend itself not only against the attacker state, but also against an “assisting” state?

Even if the use of force by the defending state (here Israel) against the attacking state (here Iran) is assumed to be justified by self-defense, it also forcefully infringes upon the territorial integrity of the assisting State (here Syria), as protected under Article 2(4) UNC, and warrants justification, too. The claim that strikes directed against an actor within the territory of another state are not a prohibited use of force against the territorial state has been repeatedly rebutted.

In fact, in the Security Council debate on the January incident, Syria labelled the Israeli strikes as “acts of aggression targeting the Syrian Arab Republic”, a “gross violation of international law” (S/PV.8449, p. 31f). Iran like Russia condemned the Israeli action, emphasizing the infringement of Syria’s sovereignty. Interestingly, Israel (unlike the USA or Germany) showed awareness of the problem by holding “the Syrian regime responsible for the missile that was launched against Israel from Syrian territory” (S/PV.8449, p. 8). The IDF added that “Syria paid the price for allowing Iran to conduct attacks from its soil.”

While the permissibility of self-defense against states supporting non-state actor violence is being extensively discussed, self-defense against states assisting another state has received little attention Read the rest of this entry…

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Symposium on the Genocide Convention: Is the Duty to Prevent Genocide an Obligation of Result or an Obligation of Conduct according to the ICJ?

Published on May 16, 2019        Author: 

Editor’s note: This is the final post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the other posts in this symposium here and here.

This post questions the findings of the International Court of Justice (ICJ) in the 2007 Bosnia v. Serbia case, according to which the duty to prevent a genocide is an obligation of conduct that can be assessed only after the occurrence of a genocide. The post first briefly explores the distinction between obligations of conduct and obligations of result on the basis of the International Law Commission (ILC)’s works and judicial practice. The post moves on to emphasise some inconsistencies in the ICJ’s reasoning in relation to the occurrence of a genocide as a prerequisite for the violation of the duty to prevent genocide. Finally, the post advances some possible explanations of the role of the event ‘genocide’ in relation to the duty to prevent genocide.

The 2007 ICJ’s Decision

In the 2007 Bosnia v. Serbia case, the Court for the first time declared that an autonomous obligation of diligent conduct to prevent genocide exists under Article I of the 1948 Genocide Convention (see my reflections here). According to the Court:

It is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance. (para 430, emphasis added)

The Court went on to affirm that a breach of the duty to prevent genocide can be assessed only after a genocide has occurred. The Court took the view that:

a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs. […] If neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen. (para 431, emphasis added)

However, the view that a genocide must occur before a State’s compliance with the duty to prevent genocide can be assessed ignores the fact that this duty is a due diligence obligation of conduct. This conclusion is supported by the analysis of the evolution of the notion of obligations of conduct. Read the rest of this entry…

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Symposium on the Genocide Convention: Reflecting on the Genocide Convention at 70: How genocide became a crime subject to universal jurisdiction

Published on May 16, 2019        Author: 

Editor’s note: This is the second post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the first post here.

The 9th of December 2018 marked the 70th anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 by the United Nations General Assembly. Article 6 of the Convention expressly grants adjudicatory jurisdiction to the territorial State (the State where the crime occurred) and to an international penal tribunal with the acceptance of the Contracting Parties. However, the textual content of the Article has not prevented the application of extraterritorial jurisdiction to the crime, including universal criminal jurisdiction. Reflecting on the Genocide Convention at 70, this post briefly analyses the development of universal jurisdiction over the crime of genocide. It explains how Article 6 has led to the application of the universality principle to the crime, and considers what can be learned from this phenomenon in the context of the legacy of the Genocide Convention.

The origins of the application of universal jurisdiction to genocide began decades before the drafting of the Genocide Convention in 1947. Read the rest of this entry…

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Symposium on the Genocide Convention: Codification of the Crime of Genocide – a Blessing or a Curse?

Published on May 15, 2019        Author: 

Editor’s note: This is the first post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. 

Codification of the crime of genocide

A lot has been written about the origins of the crime of genocide that need not be repeated here. It is well known that Lemkin originally saw genocide as a broad concept, i.e. as different acts aimed at destroying the culture and livelihood of groups (Axis Rule in Occupied Power, pp. 79-82). Along the same lines, the 1946 UN General Assembly Resolution 96 described genocide as the denial of the right of existence of entire human groups – including political ones. However, the scope of the definition adopted in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide was significantly narrower. Cultural destruction and forcible population transfer were not included in the final text, protected groups were restricted, and jurisdictional reach limited. Yet, the Convention must be understood in the context of time. Indeed, having in mind the historical background, it is quite remarkable that the Convention was adopted at all – and broad support was generated by making concessions and imposing more stringent requirements.

Since the Genocide Convention defined and codified the crime of genocide as an independent crime, the definition of genocide has remained firmly settled in international law. Perhaps prematurely, the ICJ had already proclaimed its customary status in 1951, which was subsequently fortified by the verbatim reproduction of Article II of the Genocide Convention in the statutes of international ad hoc tribunals (here and here) as well as the Rome Statute of the ICC. This surely contributed to legal certainty and, from this perspective, codification can be viewed as a blessing for the relatively consistent application of the definition of genocide at the international level. Yet, simultaneously, it was a curse, preventing the crime from undergoing a development similar to that of crimes against humanity and even war crimes. This downside of the early codification could have been at least partially addressed through teleological and evolutive interpretation of the offence. The international tribunals, however, failed to realize the potential of the definition and thus contributed to frustrations surrounding prosecutions of genocide as well as to claims that genocide today is a redundant crime. Read the rest of this entry…

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