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Home Archive for category "International Criminal Law"

Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

Published on March 16, 2017        Author: 

From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted “alternative facts”, at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine’s position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues “policies of cultural erasure and pervasive discrimination” against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that “the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself”.

Oral proceedings provide valuable insights into Russia’s litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court “to stigmatize a substantial part of the Ukrainian population” in eastern Ukraine as terrorists, and Russia as a “sponsor of terrorism and persecutor”.

Prima facie jurisdiction

The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. Read the rest of this entry…

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The ‘Command Responsibility’ Controversy in Colombia

Published on March 15, 2017        Author: 

The peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas has led to complex legal debates. One key controversy has stood out as legislation to carry out the agreement moved forward: the “command responsibility” definition the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply to try army and FARC commanders.

This is not just a technical issue. Applying a definition consistent with international law will play a key role in ensuring meaningful accountability for army and FARC commanders’ war crimes during their 52-year conflict. The issue has been part of a key debate in Colombia about how to hold officers accountable for so-called “false positive” killings.

Government forces are reported to have committed over 3,000 such killings between 2002 and 2008. In these situations, soldiers lured civilians, killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. At least 14 generals remain under investigation for these crimes.

Unfortunately, for now, this debate has been resolved in the wrong direction: on March 13, the Colombian Congress passed a constitutional reform containing a “command responsibility” definition for army officers that is inconsistent with international law. This post reviews the background and lead-up to this development.

Command Responsibility in the Original Peace Accord

The parties first announced an “agreement on the victims of the conflict” in December 2015. The agreement included “command responsibility” as a mode of liability for the Special Jurisdiction for Peace in two identical provisions, one applicable to army commanders and the other to the FARC:

Commanders’ responsibility for acts committed by their subordinates must be based on the effective control over the respective conduct, on the knowledge based on the information at their disposal before, during and after the commission of the respective conduct, as well as on the means at his reach to prevent it and, if it has already occurred, promote the relevant investigations (my translation).

Human Rights Watch, the organization where I work, expressed concern that the definition could be interpreted in a manner inconsistent with international law.

Mens rea. As Kai Ambos has recently noted, the mens rea requirement in the definition was unclear. Under international law, including article 28 of the Rome Statute, a commander’s knowledge of crimes committed by their subordinates may be either actual or constructive —that is the commander knew or had reason to know. The definition in the 2015 agreement did not explicitly include a reference to constructive knowledge. This raised questions as to whether it was meant to be included or not.

Read the rest of this entry…

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The Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?

Published on March 14, 2017        Author: 

On March 1, the UN Independent International Commission of Inquiry on the Syrian Arab Republic (“the Commission”) released a report on the horrific events that unfolded in Aleppo last year until it was captured by the Syrian governmental forces. The Aleppo report covers acts which may amount to violations of international human rights law or international humanitarian law (IHL), committed by all warring parties between 21 July and 22 December 2016. The Commission, whose reports will be instrumental for ongoing and future efforts to hold perpetrators accountable, should be commended for collecting and analyzing such an impressive amount of information in so little time.

The Aleppo report contains an appalling catalogue of allegations of egregious violations, including attacks against civilian infrastructures, hospitals, a UN/SARC humanitarian convoy and the use of chemical weapons. One allegation in particular caught the attention of the media: the Commission argues that the evacuation of eastern Aleppo amounts to the war crime of forced displacement. The Commission’s claim may at first seem astonishing not only because it stands in stark contrast with the then prevailing narrative of a humanitarian evacuation designed to alleviate human suffering, but also because the evacuation was based on an agreement between the warring parties – which means that opposing parties would have jointly committed a war crime. This post examines, on the basis of publicly available information, the legal foundation of this serious allegation.

The evacuation agreement

The evacuation of the rebel-held parts of the eastern districts of Aleppo was agreed between the warring parties as part of a cease-fire deal brokered by Russia and Turkey on 15 December 2016. The fall of this key rebel stronghold marked a major victory for the government forces, but it also offered rebels a safe passage into other rebel-held areas elsewhere in Syria. By 22 December, more than 35,000 people had been evacuated from the besieged areas of Aleppo to Idlib province (for the most part) or to western Aleppo. Read the rest of this entry…

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Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal Capacity of Armed Groups to Establish Courts

Published on March 10, 2017        Author: 

 

A Swedish District Court (SD Court) has recently ruled that non-state armed groups have the capacity under international law to establish courts and carry out penal sentences, but only under certain circumstances. While the issue has been widely debated by legal scholars over the past decade (Somer, Sivakumaran, Hakimi), this may very well be the first time that any domestic or international court has made a definitive ruling.

The implications at stake are as clear as the facts of the case. A member of an armed group admits to executing enemy detainees, but argues his actions were lawful as he was carrying out a sentence to punish war criminals as a result of a fair trail of a legitimate (but non-state) court. Notwithstanding the veracity of the claim, does this act amount to summary execution or the execution of justice?

International Humanitarian Law (IHL) prohibits the passing of sentences without fair trail guarantees for acts or omissions related to an armed conflict. For armed groups, this poses two existential challenges to the establishment of criminal courts. First, common article 3 to the Geneva Conventions requires courts to be ‘regularly constituted’. Second, the due process principle of legality (nullum crimen sine lege) requires that criminal offenses be established ‘under the law’.

The SD Court quite remarkably rules that armed group may establish courts in principle, but then seemingly aware of the vast public policy implications of this decision, attempts to rein it in by imposing conditions on armed group trials that seem more attuned to the court’s policy concerns than sound legal reasoning. Read the rest of this entry…

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Unconstitutional and Invalid: South Africa’s Withdrawal from the ICC Barred (For Now)

Published on February 27, 2017        Author: 

On 22 February 2017, the South African High Court handed down a significant decision invalidating South Africa’s notice of withdrawal from the International Criminal Court (ICC). The case was brought by the official opposition party, the Democratic Alliance, and joined by a number of civil society actors. The court’s conclusion that prior parliamentary approval was necessary before South Africa could withdraw from the ICC bears similarities to the recent decision of the UK Supreme Court on the UK’s withdrawal from the European Union.

The South African judgment concerned the decision of the Minister of International Relations and Cooperation to send a notice of withdrawal to the UN Secretary-General in October 2016 (see my previous post on this for more details), without prior announcement that the government had decided to withdraw from the ICC, nor any public consultation on the matter. The government’s reasons for leaving the ICC, as surveyed by Dapo, had centred on the claim that the Rome Statute and the South African legislation domesticating the Rome Statute (the ‘Implementation of the Rome Statute of the International Criminal Court Act of 2002’), required the government to arrest sitting African heads of State, contrary to customary international law rules on immunity. This, it was argued, undermined South Africa’s peace-making efforts on the Continent. These issues had come to a head during President Bashir’s visit to South Africa in June 2015, when South Africa had failed to execute outstanding ICC arrest warrants against him. This led to non-cooperation proceedings against South Africa at the ICC (which will take place in April), and South African High Court and Supreme Court of Appeal decisions holding the government’s failure to arrest President Bashir to be unconstitutional. The pushback was not well received by the South African Executive.

Given the 12-month notice period prescribed in Article 127(1) of the Rome Statute of the ICC, South Africa was set to leave the court in October 2017. However, the High Court decision has, at the very least, pushed back the timeline for withdrawal (absent a rapid successful appeal by the government). It also presents an important, and perhaps final, opportunity to engage the government concerning its decision to leave the ICC. Here I give a brief overview of the decision, highlighting certain issues concerning parliamentary involvement in treaty withdrawal, and discuss some possibilities for persuading South Africa to retain its membership in the ICC.

The High Court Decision

The High Court was faced with a question similar to that decided by the UK Supreme Court in the recent Brexit decision – can the Executive withdraw from an international treaty, which had been ratified and domesticated by Parliament, without prior Parliamentary approval? The question is not directly addressed by the South African Constitution, which contains no explicit provision on treaty withdrawal, and had not yet received judicial attention. Like the UK Supreme Court, the South African High Court answered in the negative. It held that since section 231(2) of the South African Constitution requires Parliamentary approval for treaties subject to ratification, this section also by implication requires the consent of Parliament to withdraw from such treaties. Therefore, the notice of withdrawal was unconstitutional and invalid. Read the rest of this entry…

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Post-Truth and International Criminal Tribunals

Published on February 20, 2017        Author: 

With all the daily going-ons of our new era of resurgent populist nationalism, it’s no wonder that concepts such as ‘post-truth’ and ‘alternative facts’ are so very much en vogue, or that Orwell’s 1984 and other dystopian classics are once more hitting the best-seller lists. But the sad truth is that there’s nothing really new about ‘post-truth’, except that it is today afflicting developed, democratic societies that until now did not experience the phenomenon, or at least did not experience it in full force.

Trump photographed at Mar a Lago with Japanese Prime Minister Shinzo Abe during the news of North Korean missile launch. Photograph: Erika Bain. Source: https://www.theguardian.com/us-news/2017/feb/13/mar-a-lago-north-korea-missile-crisis-trump-national-security#img-2

Nor did post-truth start in these societies just out of the blue – it was preceded by decades of democratic de-norming, institutional erosion, increasing polarization and identity politics (think, for example, of how climate change became a point of polarized partisan politics in the US, or of the distorting power and influence of the (mainly right-wing) tabloid press in the UK).

Even in democracies politicians are not a species generally known for its love of the truth. It is no wonder then that in a favourable climate a sub-species of particularly cynical manipulators who are either ready to routinely lie outright or are just simply indifferent to the truth will emerge. Coupled with the natural inclination of the human mind to evaluate evidence in a biased way and to reason about it in a way that confirms pre-existing beliefs and protects one’s sense of identity, in much (most?) of the world post-truth politics are the rule, rather than the exception. Trump may be the most important exponent of the current wave of mendacious populism, but he is hardly avant-garde. For decades now, for example, many of the Balkan states have experienced their own ego-maniacal, soft-authoritarian mini-Trumps, and let’s not even mention all of the Putins, Dutertes and Erdogans out there.

Which brings me to my point. Post-truth and alternative facts have historically been perfectly standard when it comes to inter-group conflicts, especially in societies which are not genuinely pluralist. Pick any random group conflict in the world, and you are likely to find that each group lives and breaths its own particular truth. In our international legal community, many have thought that it is the role of international criminal courts and tribunals to generate the ‘real’ truths that will eventually garner acceptance in societies riven by conflict. Unfortunately, however, there is little evidence that such truth-generating potential is anything but theoretical.

Read the rest of this entry…

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International Commissions of Inquiry as a Template for a MH17 Tribunal ? A Reply to Jan Lemnitzer

Published on February 9, 2017        Author: 

In his essay on ‘International Commissions of Inquiry and the North Sea incident: a model for a MH17 tribunal?’ Jan Lemnitzer makes the argument that the origins of commissions of inquiry (COIs) dealing with international criminal law are deep-rooted, dating back well before the Hague Conventions of 1899 and 1907. Presenting the Doggerbank inquiry as a de facto criminal trial, he disputes that contemporary commissions of inquiry should be seen as distinct from the Hague tradition as some scholars, including myself, have argued. In addition, Lemnitzer believes that a MH17 tribunal premised on the historical precedent of the Doggerbank inquiry offers the most promising avenue for justice especially also given the similarity of the position of Russia in both situations. I have truly appreciated Lemnitzer’s indepth account of the Doggerbank inquiry, including his analysis of the politics leading up to the inquiry as well as his points on the reception and subsequent framing of the inquiry’s outcome. Yet, as I will set out in this reply, I do not agree with some of Lemnitzer’s overarching arguments regarding Doggerbank as a precedent, the genealogy of commissions of inquiry and their present-day possibilities as such arguments fail to distinguish between different models of inquiry on the one hand and between inquiry and criminal investigation on the other.

The Pluriformity of Commissions of Inquiry

As Jan Lemnitzer indicates in the opening sentence of his article, commissions of inquiry (COIs) “have recently begun to feature more prominently in academic and political debate”, and I would add, they bourgeon in actual practice. Read the rest of this entry…

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New EJIL:Live! Interview with Philippe Sands on his New Book, East West Street: On the Origins of Genocide and Crimes Against Humanity

Published on January 23, 2017        Author: 

In this episode of EJIL:Live! Professor Philippe Sands, whose article on “Reflections on International Judicialization” appears in EJIL vol. 27, no. 4, speaks with the Editor-in-Chief of the Journal, Professor Joseph Weiler. Unlike other editions of EJIL: Live!, this episode offers a fascinating and moving discussion of Sands’ remarkable new book, East West Street: On the Origins of Genocide and Crimes Against Humanity.

The conversation takes viewers along the many paths of research and discovery that Sands took in writing the book, beginning from a chance invitation to deliver a lecture in Lviv in 2010. In the conversation, as in the book, Sands explores the geographical “coincidence” of his own grandfather as well as Hersch Lauterpacht, founder of the concept of crimes against humanity, and Raphael Lemkin, who invented the concept of genocide, having their origins in the small town of Lviv. He notes that the big lesson he learnt from writing the book is that in order to understand the concepts we deal with in international law, we have to understand personal histories.

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Gender Justice and International Criminal Law: Peeking and Peering Beyond Stereotypes. Book Discussion

Published on December 21, 2016        Author: 

Louise Chappell unpacks how gender justice advocacy at the International Criminal Court contests the gendered legacies of international criminal law. Deploying a feminist institutionalist framework, Chappell provides an anatomy of these advocacy efforts in the establishment of the Rome Statute regime as well as in the ICC’s actual operations. Chappell offers a detailed road-map of gender at the ICC, and does so through a powerful (and seamless) synthesis of qualitative, quantitative, and expository methodologies. In short: her superb book is a must-read.

Chappell unfurls how gender advocacy nested within the ICC. The ICC, assuredly, is not an island. Concerns about gender justice animate the work of other international courts and tribunals. Both concurrently and previously to the ICC, these other tribunals advanced goals of equal representation in international institutions and criminalized acts of gender- and sexual-based violence. The ICTY, for example, confirmed in Furundžija that rape and other forms of sexual violence in armed conflict are war crimes. It also ruled that rape and sexual violence could constitute the actus reus of torture. The ICTR held in Akayesu that rape can constitute genocide as an act integral to the destruction of a group.  Furthermore, as Darryl Robinson and Gillian MacNeill note, in addition to defining rape the two ad hoc tribunals also ‘recognized many other forms of sexual and gender based violence, including sexual slavery, enforced prostitution, enforced sterilization, sexual mutilation, and public humiliation of a sexual nature.’ The ad hoc tribunals also developed procedural rules of evidence that promoted gender justice by protecting witnesses who came forward to testify. Finally, the Special Court for Sierra Leone merits mention. Its ground-breaking work on sexual slavery and forced marriage as an ‘other inhumane act’ has informed the proceedings currently underway at the ICC against the LRA’s Dominic Ongwen.

Gender justice at the ICC cannot be disentangled from gender justice in the enforcement of international criminal law generally. Read the rest of this entry…

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Gender Justice Legacies at the ICC. Book Discussion

Published on December 20, 2016        Author: 

Louise Chappell’s The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy is a wonderfully-written account of the recent history of the International Criminal Court’s (ICC’s) role in promoting gender-inclusive justice. Her book demonstrates deep thinking and cogent analysis. It brings together three strands of political and legal theory – gender justice, feminist institutionalism, and the legitimacy of international organizations – to provide a unique analytical perspective on the mandate of the ICC and its implementation of the gender-related provisions in the Rome Statute. Ultimately, her interdisciplinary analysis provides a convincing analysis of gender-related developments within the Rome Statute and within the ICC.

Adopting a definition of gender justice from social theorist Nancy Fraser (p. 5), Chappell approaches the term from three directions: redistribution; identity recognition; and representation. Quoting Fraser, Chappell explains that redistribution focuses on addressing women’s exploitation, deprivation and marginalization (p. 6). Recognition involves instilling institutional patterns that express equal respect and opportunity for women and men (p. 6). Representation is focused on creating new rules and structures of inclusion, often through procedural means (p. 6).

Throughout the book, Chappell approaches her analysis from the point of view of “critical friendship”. Chappell and Mackay define critical friends as those who offer “sympathetic critique and make contextual judgment. They celebrate the ‘small wins’ that feminist insiders may make against the odds, and expose the gendered obstacles and power asymmetries that blunt reformist potential” (p. 9). Read the rest of this entry…

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