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

Stockton IHL/LOAC research portal

Published on June 22, 2012        Author: 

Readers might be interested in the launch of Stockton, an IHL/LOAC research portal made by the US Naval War College. The announcement is below:

The US Naval War College’s International Law Department is pleased to announce the launch of Stockton, our new LOAC/IHL e-Portal (www.usnwc.libguides.com/LOAC-IHL).

Named after Admiral Charles H. Stockton, an early Naval War College President and author of the US Navy’s first law of armed conflict manual, Stockton is intended as an easily accessible “one-stop” research tool for practitioners and academics working on law of armed conflict issues.  It is designed to serve as a single point from which you may conduct most of your on-line research into LOAC issues.  The e-portal contains links to commonly used websites useful for such research, and contains pdfs of frequently used treaties, military manuals and case law.  We will also post important recently released documents on the home page that are especially relevant or difficult to find.  For instance, we have just posted the ICRC’s Occupation report.

Designed by Ms. Sasha Radin, a visiting Fellow in the Department from Melbourne University, “Stockton” is a very much a work in progress. We would appreciate any suggestions on how to improve the e-portal. For questions and suggestions, or to provide documents or links for inclusion, please contact Ms. Radin (Sasha.radin {at} usnwc(.)edu).

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Award of Compensation by International Tribunals in Inter-State Cases: ICJ Decision in the Diallo Case – UPDATED

Published on June 21, 2012        Author: 

UPDATE: See below for answers to my trivia question asking  for cases where compensation was awarded by an international tribunal to one State for violation by another State of international law other than cases of diplomatic protection.

This week, the International Court of Justice decided that the Democratic Republic of Congo is obliged to pay $95,000 to the Republic of Guinea for material and non-material injury arising out of the DRC’s violations of the human rights of a national of Guinea. The case was an old fashioned case of diplomatic protection brought by one State in respect of violations of international law committed towards its nationals by another State. The ICJ decided the case on the merits in 2010 and held that while DRC had violated the rights of Mr Diallo under the International Covenant on Civil and Political Rights and under the African Charter of Human Rights. In 2007, the Court rejected the admissibility of claims brought by Guinea on behalf of companies/firms in which Mr Diallo had an interest. I have a comment about this recent judgment and will then pose a couple of question to readers. The questions will form part of what I hope will be a regular series of trivia questions about international law on the blog. I will have more to say about that series in a future post. For now, let me say that we have a prize on offer to induce you to take part in answering the questions. Read the rest of this entry…

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ICC Pre-Trial Chamber Suspends Libya’s Obligation to Surrender Saif Gaddafi and Asserts Application of ICC Statute to Libya

Published on June 20, 2012        Author: 

Over the past few months, I have written a number of posts on whether Libya would be entitled to suspend (or postpone) its obligation to surrender Saif Gaddafi to the ICC in the event of Libya challenging the admissibility of ICC proceedings (see here, here, here , here and here). In what I thought was a great and really productive exchange of views,I debated the issue with Kevin Jon Heller at Opinio Juris and Jens David Ohlin at LieberCode. In April, the ICC Pre-Trial Chamber rejected Libya’s application to suspend the obligation to surrender Saif Gaddafi holding that although Libya had, at that stage, indicated its intention to challenge admissibility of the case, it had not actually done so. In May, Libya did file a challenge to the admissibility of the proceedings (which has been discussed here on EJIL:Talk!). Earlier this month, the Pre-Trial Chamber held that as a result of Libya’s admissibility challenge, Libya is entitled, under Article 95 of the ICC Statute to postpone its obligation to surrender Saif Gaddafi to the ICC. That suspension of the obligation of surrender will last until the ICC determines the validity of the admissibility challenge.

ICC’s Pre-Trial Chamber took the same position as I took in my blog posts on the issue and in my recent article in the Journal of International Criminal Justice. In fact, the chamber addressed the issue in pretty much the same way as I have, structuring their decision in a similar way to me and using similar arguments. In terms of the structure of the decision, the chamber first addressed the question of whether and how the ICC Statute applies to the obligation of cooperation in cases of a Security Council referral. Then the Chamber addressed the question whether Article 95 of the Statute applies to the obligation of surrender.

With regard to the application of the ICC Statute in case of UN Security Council referrals, the chamber reiterated its earlier decision that:

“the legal framework of the Statute applies in the situations referred by the Security Council in Libya and Darfur, Sudan, including its complementarity and cooperation regimes.” (para. 28)

Read the rest of this entry…

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Drones, Just War and Due Process

Published on June 9, 2012        Author: 

Readers might be interested in two very good recent articles on drones and President Obama’s direct involvement in targeted killing decisions: in the Boston Review, David Luban examines Obama’s alleged reliance on just war theory in deciding on targeted killing policies, while Paul Daly on his new blog looks at the issue from an administrative law standpoint. Reactions are of course welcome.

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Lectureships at Edinburgh (ICL) and UCL (PIL)

Published on June 7, 2012        Author: 

Details here and here.

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Professorship/Associate Professorship in PIL at Exeter

Published on May 29, 2012        Author: 

The University of Exeter School of Law is advertising a position in public international law – more details here.

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The Verdict in the Charles Taylor Case and the Alternate Judge’s “Dissenting Opinion”

Published on May 11, 2012        Author: 

Charles Jalloh is Assistant Professor, University of Pittsburgh School of Law, Pennsylvania, U.S.A.; formerly the Legal Advisor to the Office of the Principal Defender, Special Court for Sierra Leone and duty counsel to former Liberian President Charles Taylor. He blogs at International Criminal Law in Ferment and we are grateful to him for accepting our invitation to contribute this piece to EJIL:Talk!

1.      Introduction

On 26 April 2012, Trial Chamber II of the United Nations-backed Special Court for Sierra Leone (SCSL) sitting in The Hague, comprised of Judges Richard Lussick, presiding; Julia Sebutinde, and Teresa Doherty, gave their long awaited verdict in the case involving former Liberian President Charles Taylor.

As has been widely reported since, the judges unanimously found Taylor guilty of five counts of crimes against humanity, five counts of war crimes and one count of other serious violations of international humanitarian law perpetrated by the Revolutionary United Front (RUF) rebels acting in concert with the mutinying elements of the Sierra Leone Army known as the Armed Forces Revolutionary Council (AFRC) in the period between 30 November 1996 and 18 January 2002.

Taylor was convicted as a secondary perpetrator, i.e. as a planner and aider and abettor, of murder, rape, sexual slavery, enslavement, other inhumane acts, acts of terrorism, pillage, outrages upon personal dignity, violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, and conscripting or enlisting children under 15 years into armed forces or groups or using them to participate actively in hostilities.

Although the Chamber has not yet issued its authoritative trial judgment setting out the full reasoning behind its conclusions, the judges made some significant factual and legal findings in the 44-page “summary” that Presiding Judge Lussick read out in open court for about two hours. Having convicted Taylor, they fixed 16 May 2012 for an oral sentencing hearing with each of the parties allocated one hour to address the Chamber. Taylor was offered up to half an hour to make a statement, should he so wish. The sentencing judgment will follow two weeks later (on 30 May 2012).

Taylor is the first former President to have been indicted, fully tried and now convicted in an international criminal tribunal since the immediate post-World War II trial of German Admiral Karl Doenitz at the Nuremberg International Military Tribunal. Not surprisingly, many thoughtful legal commentators have already weighed in on key issues raised by the verdict. These include the Chamber’s findings on Joint Criminal Enterprise, Command Responsibility and Gender Crimes (see, for example, Bill Schabas, Diane Marie Amman, Jens Ohlin, Valerie Oosterveld, Kelly Askin).

 2.     An Omission and a Problem

Briefly mentioned by Kirsty Sutherland, Kevin Heller and Bill Schabas, but not as well discussed (with the exception of Jennifer Easterday and Sara Kendall), was the weighty decision of the alternate (fourth) judge in the Taylor Trial, El Hadji Malick Sow, to enter a “dissenting opinion” to Trial Chamber II’s unanimous judgment.

In this post, I examine Alternate Judge Sow’s views on the verdict. I argue that, while his statement gives cause for concern, and ultimately reflects the tension throughout the trial between him and the other three judges, expressing public views on the verdict was unfortunate because the effect might be to impugn the credibility and legitimacy of an otherwise fair trial that met the due process standards of the SCSL Statute and international human rights law. Read the rest of this entry…

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Kiobel: Universal Civil Jurisdiction under international Law

Published on April 26, 2012        Author: 

 Barrie Sander has law degrees from Cambridge and Leiden, and from September 2012 will be a PhD candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

In an earlier post, I considered the question of corporate liability under international law in light of the case of Kiobel v Royal Dutch Petroleum (“Kiobel”), which is currently before the US Supreme Court.  Kiobel, a case brought under the Alien Tort Statute (“ATS”), concerns claims that various Shell entities (“the respondents”) planned, conspired and facilitated extrajudicial executions, torture and crimes against humanity by Nigeria in the Niger Delta between 1992 and 1995.

It had been thought that the question of whether corporations may be sued under the ATS would be the central issue before the Supreme Court in Kiobel. However, during oral argument the Justices became preoccupied with the wider issue of the extraterritorial nature of the ATS. In particular, they focussed on the question  whether US federal courts may rely on the ATS to exercise jurisdiction over human rights abuses which have no connection to the US, i.e. abuses committed by non-US entities against non-US victims on non-US territory.  In short, is universal civil jurisdiction permissible under the ATS?  Such was the focus of the Justices on the extraterritorial reach of the ATS that on 5 March 2012, only one week after hearing oral arguments, the Supreme Court ordered briefing and re-argument on:

“[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

Prior to this order, almost all briefing on this issue had been submitted by the respondents and their supporters, who have argued that broad assertions of universal civil jurisdiction by US federal courts may violate international law. In this post I consider some of the counter-arguments that the petitioners and their supporters may seek to raise in response. I suggest that though reliance on the Lotus principle, which would require a rule prohibiting an exercise of jurisdiction (rather than one permitting jurisdiction) may initially seem attractive, that approach is likely to fail. The strongest point that may be put in support of universal civil jurisdiction is that the existence of universal criminal jurisdiction contemplates a degree of civil jurisdiction as well. Read the rest of this entry…

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The European Emissions Trading System and Extraterritorial Jurisdiction

Published on April 23, 2012        Author: 

Jacques Hartmann is Assistant Professor, Department of Law, University of Southern Denmark and Fellow at the European Inter-University Centre for Human Rights and Democratisation, Venice, Italy.

The history of clashes over extraterritorial jurisdiction between the United States and the European Union (and European States) is long. On several occasions, the EU and European States have objected to the enactment and enforcement of US legislation. Good examples are European objections made in connection with the US’ Helms-Burton Act (imposing sanctions on Cuba), the D’Amato Act (dealing with sanctions on Iran) and also the Alien Tort Claims Act. This tradition might however be about to reverse itself.  The EU is itself facing mounting criticism over its decision to include emissions from foreign aviation within the European Emissions Trading System (ETS). Several States and airlines have objected to the inclusion with in the European ETS of aircraft emissions over the high seas and over foreign territory. Some States objected to these additions to the ETS even before they came into force. The most dramatic expression of such opposition came with a Joint Declaration issued in September 2011 by 21 States (including the US, Japan, India, Russia and China). The signatories declared that the EU’s plan to include extraterritorial emissions within the ETS was “inconsistent with applicable international law.” The declaration called upon the International Civil Aviation Organization (ICAO) to continue its efforts to address emissions from aviation. In addition, China and Russia suggested unilateral retaliation, whereas the US declared that it would respond with “appropriate action” if the extension of the ETS scheme went ahead. On 24 October 2011 the US House of Representatives overwhelmingly voted in favour of legislation, which prohibits “an operator of a civil aircraft of the United States from participating in any emissions trading scheme unilateral ly established by the European Union.”Also China has reportedly banned its airlines from participating in the ETS without governmental approval. The latter measures are in line with established State practice, whereby objecting States adopt so-called ‘blocking laws’, prohibiting compliance with the disputed legislation (see e.g. EC Regulation 2271/96).

On 21 December 2011, the European Court of Justice (ECJ) handed down a long awaited judgement (C‑366/10) in a case brought by a group of leading US airlines and trade associations. The claimants argued that the inclusion within the ETS of aircraft emissions over the high seas and foreign territory violated the EU’s treaty obligations and amounted to an impermissible form of extraterritorial legislative jurisdiction. The ECJ found no violation of international law. Several States have however contested the Court’s findings and a trade war may be looming. The matter at issue raises several fundamental questions concerning jurisdiction and sovereignty. The present note reviews the Court’s reasoning, providing a commentary on a matter that is likely to preoccupy international lawyers for some time to come.

Read the rest of this entry…

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“Jus – Post – Bellum”: Mapping the normative foundations

Published on April 6, 2012        Author: 

The Jus Post Bellum project is proud to host its launch conference, “‘Jus – Post – Bellum’: Mapping the normative foundations”, May 31 – June 1, 2012.  It will be held at the Peace Palace.  The first of several project seminars, this conference will seek to clarify the meaning and content of the concept (including, e.g., its relationship to and distinction from the field of transitional justice), including contemporary understandings and criticisms of the concept, and historical and modern approaches towards the definitions of key notions, such as “jus”, “post” and “bellum”.

The launch conference will include five panels: Situating the Concept, Mapping the Normative Framework(s), the Politics and Practice of Jus Post Bellum, Temporal Dimensions of Jus Post Bellum, and The ‘Jus’ in ‘Jus Post Bellum.’  There will also be a roundtable discussion on ‘At War’s End,’ by Larry May.

Conference speakers and participants include Freya Baetens, Rogier Bartels, Christine Bell, Eric de Brabandere, Robert Cryer, Jennifer Easterday, Mark Evans, Dieter Fleck, Gregory Fox, James Gallen, Terry Gill, Jens Iverson, Dov Jacobs, Jann Kleffner, Claus Kress, Randall Lesaffer, Larry May, Larry May, Jens Meierhenrich, Nneka Okechukwu, Inger Osterdahl, Cymie Payne, Yael Ronen, Aurel Sari, Matthew Saul, Carsten Stahn, Astri Suhrke, Ruti Teitel, Roxana Vatanparast, Martin Wahlisch, and Dominik Zaum.

Please fill out the linked form to apply to attend the Jus Post Bellum Project launch conference.
For more information, please see the draft programme and the call for papers.

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