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Home Archive for category "Jurisdiction"

The Road Less Traveled: How Corporate Directors Could be Held Individually Liable in Sweden for Corporate Atrocity Crimes Abroad

Published on November 13, 2018        Author:  and
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On 18 October 2018, the Swedish Government authorized the Swedish Prosecution Authority to proceed to prosecution in a case regarding activities of two corporate directors within Swedish oil company Lundin Oil, and later within Lundin Petroleum, in Sudan (now South Sudan) between 1998 and 2003. The company’s chief executive and chairman could be charged with aiding and abetting gross crimes against international law in accordance with Chapter 22, Section 6 of the Swedish Penal Code. Charges of such kind carry a sentence of up to ten years or life imprisonment. The case has the potential of furthering accountability of corporate actors for their involvement in international crimes abroad.

Lundin’s alleged involvement in international crimes in South Sudan

Sudan was ravaged by a non-international armed conflict which lasted from 1983 until 2005, between the Government of Sudan and the Sudanese People’s Liberation Army (SPLA) – as well as a variety of other armed groups. Meanwhile, beginning with the signing of contracts in 1997, Lundin formed a consortium which carried out oil exploration and production in an oil concession area located south of Bentiu on the West Bank of the White Nile in Western Upper Nile/Unity State called Block 5A in the southern part of the country. According to a report by the European Commission on Oil in Sudan (ECOS), the oil exploration brought exacerbated conditions while setting off a battle for control of the disputed region, leading to thousands of deaths and the forced displacement of local populations – with the Nuer people being the most affected. Additionally, reported crimes against civilians by the Sudanese army as well as associated militias of both parties, include indiscriminate attacks, unlawful killing, rape, enslavement, torture, pillage and the recruitment of child soldiers. The consortium’s interaction with local counterparts has come under criminal investigation after the ECOS report was submitted to Swedish prosecutors in 2010. The long time span of the investigation is at least in part due to on-going conflict in the region in 2013, when the International Office of the Prosecutor had scheduled its visit to South Sudan. Furthermore, the case came with some political connotations since Carl Bildt, former Minister of Foreign Affairs of Sweden, had served as a member of the Board of Directors of Lundin from 2000 to 2006.

In the United States, a case comprised of a similar set of facts was brought by the Presbyterian Church of Sudan against the Republic of Sudan and Talisman Energy Inc., a Canadian oil company, which commenced its activities in the area one year after Lundin. The Court of Appeals for the Second Circuit held in a judgment of 2 October 2009 that the claimants had failed to establish that Talisman “acted with the purpose to support the Government’s offences”. Under the Alien Tort Claims Act (ATCA) the plaintiffs needed to show that “Talisman acted with the – purpose – (one could argue that such mens rea standard had been set unreasonably high) to advance the Government’s human rights abuses”. On 15 April 2010, the plaintiffs petitioned for a writ of certiorari to the Supreme Court, supported by an amicus curiae submitted by Earth Rights International on 20 May 2010, asking to revert the decision of the Second Circuit. On October 2010 the Supreme Court declined to grant certiorari and respectively to hear the appeal in this case. In contrast to the rather broad universal and extraterritorial jurisdiction provided for in the Swedish Penal Code, the Supreme Court decision in Kiobel v. Royal Dutch Petroleum, Co. remarkably restricted the application of the ACTA in cases involving allegations of abuse – outside – the United States by finding that presumptively it does not apply extraterritorially. Read the rest of this entry…

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Understanding the State Party Referral of the Situation in Venezuela

Published on November 1, 2018        Author: 
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Since 8 February 2018, the situation in Venezuela has been the subject of an ongoing preliminary examination by the Office of the Prosecutor of the International Criminal Court. On Wednesday 26 September 2018, however, a coalition of States Parties to the Rome Statute composed of Argentina, Canada, Chile, Colombia, Paraguay, and Peru jointly submitted a referral of the situation in Venezuela to the Prosecutor. In this referral, it was requested that the Prosecutor open an investigation into the commission of crimes against humanity allegedly committed in Venezuela under the government of President Nicolás Maduro, beginning on February 12, 2014. This referral, the ninth referral received by the Prosecutor, is not only the first referral to be submitted by a “coalition” of States Parties, but also one (directly) concerning a situation occurring on the territory of another State Party.

Pursuant to article 13 and 14 of the Rome Statute, a referral by a State Party is one of the three triggering mechanisms under which the Court may exercise its jurisdiction. It represents a formal request by a State Party (or in this case States Parties) for the Prosecutor to initiate an investigation on crimes allegedly committed in a situation. Furthermore, it gives the referring State Party the opportunity to present supporting documentation regarding the situation in question. It does not, as explained by the Prosecutor in her response to the Venezuela referral, automatically lead to the opening of an investigation. Instead, as a triggering mechanism, it leads the Prosecutor to apply the statutory criteria to assess whether the referred situation warrants investigation. This process, otherwise referred to as a preliminary examination, entails an evaluation of the criteria set out in article 53(1) of the Statute. In the event that the Prosecutor decides to initiate an investigation on a situation referred to her by a State Party, she is not required to seek authorisation from the Pre-Trial Chamber to proceed.

The legal effect of a State Party referral is therefore limited to three key aspects: it can trigger a preliminary examination by the Prosecutor; it can act as a formal submission of new information vis-à-vis article 14(2); as well as allowing for the initiation of an investigation (if the Prosecutor decides so) without the need for judicial authorization by the Pre-Trial Chamber.

In applying these aspects to the Venezuela referral, it appears that its legal effect is rather limited. Read the rest of this entry…

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The ICJ’s Provisional Measures Order in Alleged Violations of the 1955 Treaty (Iran v United States)

Published on October 3, 2018        Author: 
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The ICJ this morning issued its Order regarding Iran’s request for the indication of provisional measures in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v United States). This post is intended as a brief summary of the reasoning of the Court. After a short introduction, I will outline the Court’s approach to the three core elements required for an indication of provisional measures: prima facie jurisdiction, plausibility of rights and nexus with provisional measures requested, and risk of irreparable prejudice and urgency.

The facts of the case, including the hearings on the request for provisional measures, are covered in an earlier post. In brief, Iran claims that the re-introduction by the United States of sanctions against it following the latter’s withdrawal from the Joint Comprehensive Plan of Action (JCPOA) in May 2018 violates the 1955 Treaty of Amity between the two States. In its request for the indication of provisional measures, Iran sought the Court’s order that the US shall, inter alia, suspend its reintroduction of the sanctions, as well as allow transactions already licensed to be implemented.

In its Order of this morning, Iran, in part, prevailed, with the Court indicating some of the provisional measures requested by Iran. Thus, the Court required that the US ‘remove, by means of its choosing, any impediments arising from the measures announced on 8 May 2018 to the free exportation to the territory of the Islamic Republic of Iran of (i) medicines and medical devices; (ii) foodstuffs and agricultural commodities; and (iii) spare parts, equipment and associated services (including warranty, maintenance, repair services and inspections) necessary for the safety of civil aviation’. The Court also ordered that the US must ‘ensure that licenses and necessary authorizations are granted and that payments and other transfers of funds are not subject to any restriction’ where they relate to the goods and services noted above, and that both parties ‘refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.’

It is interesting to note that the provisional measures in this case were adopted by the Court unanimously, and thus with the support of the US Judge ad hoc Charles Brower. This is, by no means, the first time a US judge has supported a Court ruling against the US, but it is nevertheless interesting (particularly from a judge ad hoc). Judge Thomas Buergenthal supported judgments of the Court against the US in a number of previous cases, including the Oil Platforms merits judgment (after Judge Schwebel had dissented from the Court’s 1996 finding of jurisdiction in that same case).

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The Iranian Suit against the US Sanctions and the 1955 Treaty of Amity: Brilliant Plan or Aberration?

Published on September 7, 2018        Author: 
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The Iranian economy is already feeling the effects of the United States economic sanctions that are successively being reinstated following the US withdrawal from the Joint Comprehensive Plan of Action (JCPOA) on 8 May 2018. In an attempt to save what can be saved, Iran seized the International Court of Justice in July requesting the latter to order and declare that the 8 May and subsequent sanctions are unlawful; that the United States shall stop its threats with respect to the further announced sanctions and that it shall compensate Iran. The claim is accompanied by a request for provisional measures by which Iran seeks to obtain, in particular, the immediate suspension of the sanctions and the non-implementation of the sanctions announced. Last week, both parties met in court for the hearings on the provisional measures request.

Iran has not claimed a violation of the JCPOA but alleges breaches of the Treaty of Amity, Economic Relations, and Consular Rights signed by Iran and the United States in 1955. The reason is simple: neither Iran nor the United States accepts the compulsory jurisdiction of the ICJ, both states having withdrawn their optional clause declarations. A compromis not being in sight, Iran can only ground the ICJ’s jurisdiction on a compromissory clause. While the JCPOA does not contain such a clause, the Treaty of Amity stipulates in its Article XXI (2) that “[a]ny dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.”

The case, and the provisional measures request, raises many interesting questions, including  for example, whether the mainly economic damages alleged by Iran are irreparable as is required for the indication of such measures, and whether the request could possibly pre-empt the decision on the merits. However, this post is uniquely concerned with whether the idea to rely on the Treaty of Amity helps overcome the hurdle of jurisdiction. While the existence of jurisdiction need only be proved prima facie in the provisional measures phase, the Court will at a later stage have to take a definite decision (assuming the case is not dismissed for manifest lack of jurisdiction at the provisional measures stage). One of the most problematic issues is whether the dispute is about the interpretation or application of the Treaty of Amity despite the existence of the JCPOA. If this is the case, invoking the Treaty of Amity was a smart move by Iran.

The Iranian idea can potentially be attacked in two places: the actual scope of the application and the request, as well as the potential inapplicability of the Treaty of Amity. Read the rest of this entry…

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Not Appropriate:  PTC I, Palestine and the Development of a Discriminatory ICC Jurisprudence

Published on July 26, 2018        Author:  and
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On 13 July, Pre-Trial Chamber I (PTC I) issued an unprecedented decision in which it ordered the Registry to establish unique public information and outreach activities for the “benefit of the victims in the situation in Palestine”, as well as to report on its situation activities on an ongoing basis.  No Pre-Trial Chamber has made the same orders with respect to victim outreach in a situation under preliminary examination before, and the legality, timing, and singular nature of the decision all give rise to concern. 

The decision singles out victims of one situation whilst ignoring others, reflecting a double standard which forms the basis of Israel’s complaints that its rights to equal treatment are systematically violated before 21st century international organisations and tribunals. In this sense, the decision is illuminating as it demonstrates to international criminal law practitioners how PTC I has substantiated Israel’s complaint of double standards in the Chambers’ first substantive engagement with the Situation in Palestine. Given the unique way that the Situation in Palestine has been singled out, PTC I’s decision will be viewed by many as a political one.  This is an accusation which, especially after the collapse of the Kenya cases, the ICC should be more wary of making itself susceptible to.

The Legality of the PTC Decision Read the rest of this entry…

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The Applicability of the ECHR in Contested Territories; Two Other ECHR Cases Against Russia

Published on July 19, 2018        Author: 
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Earlier this week the European Court of Human Rights decided Sandu and Others v. the Republic of Moldova and Russia, nos. 21034/05 etc, the latest in its Ilascu line of cases (see here and here for more background). As in its previous case law, the Court in Sandu found that both Moldova and Russia exercised jurisdiction in the sense of Article 1 ECHR over the contested separatist territory of Transdniestria, the former on the basis of sovereign title, and the latter on the basis of its control over the area. In this case, which concerned property rights, the Court found Moldova to have discharged its positive obligations towards the applicants, and Russia not to have done so, thus incurring responsibility for violating the Convention. Like in its previous case law, it remains unclear whether the Court is attributing to Russia the conduct of Transdniestrian separatist authorities, or whether Russia is responsible for its own conduct of failing to exercise influence over these authorities so as to protect the applicants’ rights.

Coincidentally, Tatjana Papic and I have recently posted on SSRN the draft of an article on the applicability of the ECHR in contested territories, forthcoming in the ICLQ , in which we provide a critique of the Court’s Ilascu jurisprudence. The abstract is below, and any comments are welcome:

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Also this week the Court rendered two unrelated but very important judgments against Russia. First, regarding the 2006 killing of journalist Anna Politkovskaya, the Court found Russia responsible under Article 2 ECHR for failing to conduct a fully effective investigation into the killing, specifically because Russian authorities did not explore all feasible lines of investigation into the person or persons who contracted Politkovskaya’s assassination (Mazepa and Others v. Russia, no. 15086/07).

Second, the Court found Russia responsible for the violation of several human rights of three members of the Pussy Riot band, who were arrested, convicted and sentenced to two years of imprisonment for (very briefly) performing their song Punk Prayer – Virgin Mary, Drive Putin Away in the Christ the Saviour Cathedral in Moscow (Mariya Alekhina and Others v. Russia, no. 38004/12). Pussy Riot were of course very much in the news last weekend, after their pitch invasion at the World Cup final in Moscow.

(Image: Sportimage/PA Images)

The most interesting part of the Pussy Riot judgment is the Article 10 analysis; the Court is not content with saying simply and easily that the sentence of imprisonment imposed on the applicants was disproportionate, but engages in line-drawing between hate speech and offensive speech, which is particularly relevant because the domestic crime that the applicants were convicted of incorporated a hatred element. The judgment also has a rather glorious appendix with several Pussy Riot songs (oh so very du jour, and reproduced below for entertainment value, together with the song at issue in the case itself).

 

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A Prudential, Policy-Based Approach to the Investigation of Nationals of Non-States Parties

Published on May 30, 2018        Author:  and
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On 22 May, Palestinian Foreign Minister Riyad al-Maliki submitted a referral to the International Criminal Court (ICC) regarding the situation in Palestine since 13 June 2014, with no end date.  This follows the Prosecutor’s statements on 8 April and 14 May responding to the situation on the Gaza border (which were themselves unusual, if not unique, examples of OTP practice).  As with the proposed investigation of US nationals in the Situation in Afghanistan, the Myanmar and Bangladesh issue that is under consideration and the investigation of Russian conduct in Georgia and Ukraine, the question of whether, and if so how, the ICC may exercise jurisdiction over nationals of non-state parties absent a Security Council referral is pressing once again.

By proceeding with investigation of Russian conduct in Georgia and Ukraine, Israeli conduct in Gaza and the West Bank, and American conduct in Afghanistan, legal issues which arise upon exercise of the Court’s enforcement jurisdiction will foreseeably give rise to challenges both before the ICC, as well as in national jurisdictions during surrender proceedings. This contribution suggests that a prudential, even cautious, policy-based approach to the investigation of nationals of non-states parties may help the OTP avoid pitfalls resulting from proceeding without sufficient regard to non-states parties’ jurisdictional objections. Read the rest of this entry…

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High Risk, High Reward: Taking the Question of Italy’s Involvement in Libyan ‘Pullback’ Policies to the European Court of Human Rights

Published on May 14, 2018        Author: 
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The mere filing of a case is rarely a reason for legal commentary but in this particular case, it may well be. A few days ago, a broad-based coalition consisting of NGOs and scholars, led by the Global Legal Action Network (GLAN) filed an application against Italy before the ECtHR with potentially far-reaching implications for European migration policy and especially maritime border control. The issues at hand are so-called ‘pullback’ practices in which the Libyan coastguard – funded, trained, and equipped by the Italian authorities under an agreement signed in February 2017 – prevents migrant boats from heading to Europe’s safe shores.

The application concerns events that unfolded the morning of 6 November 2017. A migrant dinghy in distress before the Libyan coast was simultaneously intercepted by the Libyan coastguard and a rescue ship of the German NGO ‘Seawatch’. A messy and partly confrontational rescue process ensued. Of the (approx.) 120 migrants onboard the dinghy, more than 20 persons drowned before and during the operation. 47 others were ‘pulled back’ by the Libyan coastguard, allegedly experiencing human rights violations including torture and inhumane and degrading treatment upon their return in Libya. 59, more lucky individuals, were rescued by the Seawatch and brought to Italy. By merely looking at the facts, the advantages of having a broad-based coalition become clear. University of London Goldsmiths’ Forensic Architecture agency made available an impressive digital reconstruction of the events that unfolded that morning. These details could be a crucial ingredient for a successful case.

Still, the present case comes at a difficult time for migrant rights advocates in Europe. Read the rest of this entry…

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Crimea Investment Disputes: are jurisdictional hurdles being overcome too easily?

Published on May 9, 2018        Author: 
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In February-March 2014, Crimea experienced what is here neutrally referred to as a ‘change of effective sovereign’ (as conceded by Ukraine itself). Subsequent events have given rise to at least nine investment claims by Ukrainian nationals against Russia in connection with their investments in Crimea made prior to the ‘change of effective sovereign’. Substantively, all cases pivot on alleged violations of the expropriation and FET (fair & equitable treatment) clauses of the 1998 Russia-Ukraine BIT. Before getting there, however, a series of jurisdictional hurdles need to be overcome. Firstly, whether the scope of the BIT covers also de facto (as opposed to de jure) territory. Thus, whether under the BIT, Crimea may be understood as Russian territory. Secondly, the BIT’s temporal and personal ambit of application. That is to say, whether Ukrainian nationals and their businesses existing in Crimea prior to the ‘change of effective sovereign’ may qualify, respectively, as foreign Ukrainian investors and investments in Russia. It is doubtful that these questions which, are inevitably intertwined with the public international issue of the legality of the ‘change of sovereign’, can be satisfactorily answered through ‘effective interpretations’ and/or drawing analogies from human rights law. The scope and rationale of investment law differs from that of the latter; the promotion and protection of bilateral business is pursued for the benefit of economic growth, while the protection of fundamental rights and freedoms of persons is undertaken for the good of human kind.  In fact, it is reflected in the standard dispute settlement mechanism envisaged i.e. private ad hoc arbitration v standing international court.

Jurisdictional decisions in five proceedings have recently been rendered. To date, none of these have been made public. Nevertheless, important passages of their reasoning have been uncovered by trusted sources. These allow for a preliminary review of the tribunals’ assessment of the key legal issues involved. Read the rest of this entry…

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What lies beneath? The turn to values in international criminal legal discourse

Published on April 23, 2018        Author: 
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On the 9th of April, the Office of the Prosecutor (OTP) of the International Criminal Court submitted a request for a ruling by the Pre-Trial Chamber on whether the Court has territorial jurisdiction over the deportation of Rohingya people from Myanmar to Bangladesh. This development may impact how the ICC approaches its territorial jurisdiction in future, and raises interesting questions over the legal nature of the crime of deportation. However, the submission also gives rise to questions of a more theoretical nature that relate to the normative basis of international crimes, or more specifically, the acts that constitute them. The Prosecutor’s submission on jurisdiction over deportation into Bangladesh highlights an emerging trend in international criminal law towards identifying and surfacing the individual values or rights underlying international crimes. This coincides with a broader debate on the legal goods protected by these crimes, and invites us to consider the implications of this trend for the communicative function of the law.

Part of the Prosecutor’s submission on jurisdiction in Bangladesh addresses the distinction between the crimes of deportation and forcible transfer. Read the rest of this entry…

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