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The Katanga and Al Mahdi Appeals Judgments and the Right of Access to Justice for Victims: Missed Opportunity?

Published on April 9, 2018        Author: 
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On 9 March 2018, the International Criminal Court (ICC) Appeals Chamber rendered two judgments on reparations, namely the Al Mahdi and Katanga cases. The general principles and approaches of ICC reparations have been previously addressed in this blog (here and here). This time, the two appeals judgments were the first occasions for the Court to review the right of access to justice for victims during these reparations proceedings. InAl Mahdi, the Trial Chamber delegated the task of eligibility screening to the Trust Fund for Victims (TFV), thereby allegedly failing to accord victims a right to judicial assessment of their applications for reparations by a competent tribunal. In Katanga, it was argued that the right of victims to receive continuous legal representation was essential for a meaningful and practical right to claim reparations, given the complexity of the proceedings.    

At the outset, both rights to judicial assessment by a tribunal and to legal representation come within the purview of the right of access to justice, a right guaranteed in international human rights instruments (ICCPR article 14(1); ECHR article 6(1); ACHR article 8(1); ACHPR article 7(1)). The purpose of this post is not to say that the appeals judgments were incorrect in affirming the Trial Chamber’s decisions on these issues because the rights of victims had been violated. Rather, it takes a helicopter view on the way these issues have been dealt with. Whereas the Al Mahdi judgment recognises that the judicial assessment of reparations must ultimately be before trial chambers, the Katanga judgment dodged the relevance of continuous legal representation of victims to their right of access to justice during the reparations proceedings.

Bearing in mind that chambers are obliged to ensure the compliance of international human rights law (Rome Statute, article 21(3); ICC Rules of Procedure and Evidence, Rule 97(3)), both judgments may have indicated a judicial practice of non-interventionism within the Court by over-relying on procedural discretions.

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Revising the verdict in Ireland v UK: time for a reality check?

Published on April 6, 2018        Author: 
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There is a general misunderstanding about the revision judgment that was delivered by the European Court of Human Rights (ECtHR) on 20 March 2018.  The Court does not have the power under the Convention (ECHR) to revise a past final judgment because it considers it is wrong or was wrongly decided.  It only has an inherent power to revise a judgment where an error has been made concerning matters that were unknown to the Court and which, had they been known, might have had a decisive influence on the outcome of the case.  This power is exercised sparingly and reluctantly because there is almost a presumption that judgments have been correctly decided and should not be revised.  All revision requests will thus be subject to strict scrutiny in the interests of preserving legal certainty.

The newspaper headlines that the Court had found that the five techniques did not amount to torture is thus misleading.   The Court has decided not to alter the original judgment’s characterisation of the five techniques.  It has made no finding of its own about torture and it has made this clear.

Apart from the victims’ understandable sense of injustice and bewilderment there is an air of unreality surrounding these proceedings.

Firstly, it is beyond doubt that if the same issue was decided today the five techniques would be held to amount to torture.  The law on torture has evolved considerably since 1978 – the date of the Court’s original judgment – to take account of society’s sensitivity to and condemnation of the use of torture. The present Court has expressed the view that an increasingly high standard is required in the protection of human rights and that this “inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.” The decision of the Court in 1978 to characterise the five techniques as only amounting to inhuman and degrading treatment which was strongly criticised at the time by many commentators is arguably one of the reasons for this increasingly high standard. Another is the realisation that torture has not been eradicated and that it can involve many different and sophisticated forms of unlawful treatment, such as water-boarding, and other variants of sensory deprivation techniques. It is a sad consequence of the old Court’s characterisation that it was used by the US government to assert that ‘water-boarding’ did not amount to torture. This was entirely spurious and self-serving since US government lawyers chose to ignore the marked evolution of the concept of torture that had occurred since 1978.

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Why the ECHR Decided not to Revise its Judgment in the Ireland v. The United Kingdom Case

Published on April 5, 2018        Author: 
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The European Court of Human Rights (“ECtHR”) recently rejected a request by Ireland to revise its judgment in the 1978 Ireland v. The United Kingdom case, where the Court found that the use by the then U.K. government of five techniques of interrogation on fourteen individuals amounted to “inhuman and degrading treatment” in breach of Article 3 of the European Convention on Human Rights (“ECHR”), but did not rise to the level of torture. In the recent revision request Ireland asked the ECtHR to revise the original judgment, based on evidence that has recently become available, and to find that the five techniques did amount to torture.

The Court rejected Ireland’s request, a decision that was met with disappointment by human rights advocates. Grainne Teggart, Amnesty International’s Northern Ireland campaigns manager remarked that this was “a very disappointing outcome, for the men and their families” and argued that the Court “missed a vital opportunity to put right a historic wrong.” Without taking away from the anguish of the fourteen individuals who suffered and continue to suffer as a result of being subjected to the harsh interrogations, it is necessary to understand the reasoning behind the Court’s decision and challenge the notion that it was a denial of justice.

A revision request is not an opportunity to fix the Court’s past mistakes or re-evaluate a case in light of more recent case-law. Rather, it is a technical process that allows the Court to revise a judgment only when new facts emerge which should have been made available to the Court at the time of the original judgment and which would have had a decisive influence on the Court. Should the Court agree to revise a case where any new fact or later case law would point to a different outcome, or where it finds the Court simply made a mistake, it would lead to complete chaos and uncertainty. In this case, the decision to deny the revision request was justified on the basis of maintaining legal certainty, a fundamental aspect of justice. Read the rest of this entry…

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Reply to Dunoff and Pollack: ‘Experimenting with International Law’

Published on April 4, 2018        Author:  and
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In the last issue of the European Journal of International Law we published an experimental study on the ability of international law students and experts to ignore information in the context of treaty interpretation. The same issue included a follow-up article by Jeffrey Dunoff and Mark Pollack. We find Dunoff and Pollack’s practical exercise of critically reading experimental studies important and helpful in moving the broader methodological and theoretical concerns into a concrete discussion of actual studies. In the following sections, we will try to contribute to this effort by reflecting on their assessment of our study.

The Study

Before delving into Dunoff and Pollack’s discussion of our paper, we would like to briefly summarize our study, which one of us also summarized in this EJIL:Live! interview. Our study was designed to empirically test a notion that has been mentioned in the treaty interpretation literature, which suggests that it is practically impossible to ignore the content of preparatory work after exposure, even when a rule prohibits the use of such material. This notion is supported by studies on the difficulty of ignoring information in other legal contexts, such as exposure to inadmissible evidence. To test this notion’s validity, we conducted three experiments that examined the ability of international law students and experts to ignore information about preparatory work while interpreting treaties. Our findings indicate that experts are better able than students to ignore preparatory work when they believe that the Vienna Convention on the Law of Treaties (VCLT) rules on treaty interpretation do not allow the use of such information. This suggests that there is something unique about international law expertise (or legal expertise in general) that enables the experts to resist the effect of exposure to such information. Read the rest of this entry…

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Right of Access to a Court in Civil Claims for Torture Committed Abroad: The European Court Grand Chamber Decision in Naït-Liman

Published on April 3, 2018        Author: 
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The Grand Chamber of the European Court of Human Rights has announced its judgment in the case of Naït-Liman v Switzerland, confirming that the refusal of the Swiss courts to examine a refugee’s civil claim for torture in Tunisia was not a violation of Article 6 § 1 of the European Convention on Human Rights. The decision addresses the concepts of forum of necessity and universal civil jurisdiction, and has important implications for civil claims arising out of wrongful acts that have taken place abroad.

Initial Proceedings

In April 1992, Tunisian national and political activist Abdennacer Naït-Liman was arrested in Italy and flown to Tunis, where he was handed over to members of the Tunisian authorities. Naït-Liman subsequently alleged that on the orders of the then Minister of the Interior, Abdallah Kallel, he was detained for 40 days and brutally tortured with bats, electric shocks, and suspension. He escaped Tunisia in 1993 and travelled to Switzerland with his wife and children, where he was granted refugee status in 1995 and Swiss nationality in 2007.

Naït-Liman learned on 14 February 2001 that Abdallah Kallel was in Switzerland receiving treatment at a hospital, and filed a criminal complaint against him. Kallel was, however, able to leave Switzerland before he was apprehended by the Swiss authorities. Read the rest of this entry…

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Protean ‘National Security’ in Global Trade Wars, Investment Walls, and Regulatory Controls: Can ‘National Security’ Ever Be Unreviewable in International Economic Law?

Published on April 2, 2018        Author: 
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National security seems to be the protean norm du jour in international economic law these days.  On 23 March 2018, the United States’ Trump Administration imposed a 25% tariff against around US$60 billion of imports from China, 15 days after the United States imposed tariffs on imports of steel and aluminum (25% on steel imports, and 10% on aluminum imports) from around the world.  US President Trump accused China of “economic aggression”, and is leaving the door open for negotiations with all States to force them to take measures to eliminate the United States’ “$800 billion trade deficit with the world”.  Chinese President (for life) Xi Jinping’s administration subsequently announced preliminary retaliatory tariffs against over $3 Billion in American products such as apples, steel, and pork, even as US Treasury Secretary Steve Mnuchin stated that the tariff wars are part of the United States’ negotiation strategy with China. (Both sides are reported to be quietly negotiating, even amid the climate of mutually announced tariffs. China has started making concessions, such as relaxing its foreign investment rules and expanding imports of US semiconductors.)  Even as World Trade Organization (WTO) Director General Roberto Azevedo cautioned against the impact of such a trade war on the global economy, the WTO did not deny that under GATT Article XXI(b)(iii) (Security Exceptions), the United States could take “any action which it considers necessary for the protection of its essential security interests…taken in time of war or other emergency in international relations.”  President Trump’s two presidential proclamations declaring tariffs against aluminum imports and steel imports heavily refer to the impairment of the United States’ national security interests as the basis for imposing tariffs.  The United States provisionally exempted NAFTA partners Canada and Mexico from the steel and aluminum tariffs, using the bludgeoning effect of threatened tariffs in the pending NAFTA renegotiations.  Last weekend, South Korea acceded to the United States’ demands to revise their KORUS Free Trade Agreement, which US President Trump is now tying to the outcome of its forthcoming summit with Kim Jong Un of North Korea. Trade is now more deliberately leveraged as a national security issue.

Significantly, no State in the international community seriously challenges that the security exception in GATT Article XXI is a self-judged matter that takes a governmental measure out of the ambit of WTO law. (Qatar’s pending complaint against the United Arab Emirates (UAE) at the World Trade Organization – previously featured here – seeks review of any Member’s assertion of national security under GATT Article XXI, but it appears other Members such as the United States have taken the opposing view that “national security issues are political and not appropriate for the WTO dispute system.”)  Even the European Union, which threatened tariffs against the United States if it was not exempted from the US tariffs on steel and aluminum (it eventually got the exemption for all EU Members), did not challenge the factual basis behind the United States’ use of the national security justification in its presidential proclamations on tariffs against steel and aluminum imports.  The United States had invoked, as its factual basis for invoking national security, the supposed “weakening of (its) internal economy, leaving the United States almost totally reliant on foreign producers…that is essential for key military and commercial systems”.  Considering that President Trump had just boasted about the tremendous strength and independence of the United States economy at the World Economic Forum in January 2018, it was baffling that the United States made this seeming volte face to invoke GATT Article XXI.  The Trump administration has also invoked the President’s self-judged discretion to decide when national security is impaired in the case of foreign investment into the United States, most recently to block Singaporean company Broadcom’s US$117 billion takeover of Qualcomm, thereby increasing the number of blocked proposed acquisitions of United States businesses (by countries such as Germany, China, and Singapore) on national security grounds. 

And yet, it is not only the United States that has resorted to national security reasons in the past year for retaliatory trade measures, investment restrictions, and other international economic measures.  The European Commission anchors its new proposal to tax digital business activities; the forthcoming implementation of the General Data Protection Regulation (GDPR) (ensuring data privacy and protection rules applicable to all companies processing data of EU nationals, whether located in the EU or elsewhere); as well as the recently opened investigation of the massive data leak from Facebook and Cambridge Analytica, ultimately on the Commission’s many concerns about EU Members’ regional, national, and economic security.  China has set up its own national security review of foreign investments into China, mirrored by Australia’s recently strengthened national security review of foreign investments (China-sourced or otherwise) into critical infrastructure.  India and Sri Lanka have also raised national security concerns over China’s One Belt, One Road (OBOR) program.  Nigeria demurred from joining the recently-launched 44-member African Continental Free Trade Area, citing economic and security implications of the agreement.

Such muscular and frequent assertions of ‘national security’ as justifications for international economic measures does bring to the forefront the timeless debate on whether international courts and tribunals can review a State’s assertion of ‘national security’.  In this post, I maintain my key argument in 2012 that modern international law still does not subscribe to the classical view of ‘national security’ as a Schmittian exception – e.g. one that takes a measure justified by national security outside of the purview of any law – but instead continues to regulate the safety-valve functions of national security or national emergency clauses as exceptions, to the point that the mere assertion of national security cannot completely take out an economic measure from the purview of international economic regulations either.  Whether a State invokes ‘national security’ to impose or threaten measures for bargaining leverage in negotiations or to force reductions of trade deficits; or to impose new economic regulations, review, or restrictions against foreign businesses – the current framework of international law and international economic law has at least developed to the point that there will be some review of a State’s asserted national security justification, even if it is only for international tribunals to preliminarily decide whether they have jurisdiction over the disputes before them.  I refer to dispute settlement under the WTO, foreign investment arbitral tribunals, international investment court proposals such as China’s investment court for OBOR projects and the EU’s multilateral investment court, as well as traditional court adjudication under the International Court of Justice.

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Announcements: CfP Workshop on the Sociological Perspectives on International Tribunals; Additions to the UN Audiovisual Library of International Law; CfS International Legality of Economic Activities in Occupied Territories Workshop

Published on April 1, 2018        Author: 
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1. Call for Papers: Workshop on the Sociological Perspectives on International Tribunals (Max Planck Institute Luxembourg). A growing community of scholars has recently been bringing international law into conversation with sociological research and theory. The fourth workshop on the sociology of international law will be held on 8 – 9 November 2018 at the Max Planck Institute Luxembourg for Procedural Law, and it aims to focus on various sociological perspectives on international tribunals. Scholars and graduate students are invited to submit abstracts by 18 May 2018.  Abstracts of no more than 300 words should be sent to Nathalie Perrin nathalie.perrin {at} mpi(.)lu by 18 May 2018, and should include the author’s name, affiliation, and full contact information. Decisions regarding inclusion in the workshop program will be sent by 17 July 2018.

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Professor Marcelo Kohen on “The Institute of International Law” in English and French, Professor Jean-Marc Thouvenin on “La nationalité des navires”, and Professor Joseph Weiler on “A Geology of International Law”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

3. Call for Submissions: International Legality of Economic Activities in Occupied Territories Workshop. The T.M.C. Asser Institute, the Centre for the Law of EU External Relations (CLEER) and The Hague University of Applied Sciences, under the aegis of The Hague Academic Coalition (HAC), invite submissions of abstracts for a workshop on the ‘International Legality of Economic Activities in Occupied Territories’. The workshop will take place at the Asser Institute in The Hague, on 17 October 2018. For further information, see here

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Two Times Too Many: Botswana and the Death Penalty

Published on March 30, 2018        Author: 
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Without wanting to trivialise the hard work needed to litigate human rights cases, it is often implementation that is considered the pinnacle of achievement. Put simply, it is one thing to convince a commission or court that a countries’ policies or actions contravene a human rights instrument, it is quite another for that country to implement the decision. A blog post therefore about another failure by another country to implement another human rights decision may not immediately pique the interest of EJIL:Talk! Readers. But I hope this case might just do so.

In November 2015, the African Commission on Human and Peoples’ Rights rendered a decision following a case brought by NGOs Interights and Ditshwanelo acting on behalf of detainee Mr Oteng Modisane Ping, challenging Botswana’s use of the death penalty. The complainants alleged, inter alia, that the death penalty is by its very nature a violation of Article 4 (right to life) of the African Charter on Human and Peoples’ Rights. In addition, they argued that Botswana’s specific death penalty procedures also violated of Articles 1, 4 and 5 of the African Charter. In particular, they contended that hanging violated the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter.

Whilst the African Commission did not go so far as to declare the death penalty itself in contravention of the African Charter, it did pronounce that the use of hanging as a method of execution violated Article 5 of the African Charter (the decision can be accessed here, see in particular paragraph 87). This pronouncement was lauded by many as a significant step towards the eradication of the death penalty in Africa, since hanging is a form of execution favoured by several African countries. (Although it should be noted that the African Commission does not render binding decisions like its judicial cousin the African Court on Human and Peoples’ Rights, but rather recommendations.) Read the rest of this entry…

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Time to Investigate European Agents for Crimes against Migrants in Libya

Published on March 29, 2018        Author: , and
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In March 2011, the ICC Office of the Prosecutor of the international criminal court opened its investigation into the situation in Libya, following a referral by the UN Security Council. The investigation concerns crimes against humanity in Libya starting 15 February 2011, including the crimes against humanity of murder and persecution, allegedly committed by Libyan agents. As the ICC Prosecutor explained to the UN Security Council in her statement of 8 May 2017, the investigation also concerns “serious and widespread crimes against migrants attempting to transit through Libya.” Fatou Bensouda labels Libya as a “marketplace for the trafficking of human beings.” As she says, “thousands of vulnerable migrants, including women and children, are being held in detention centres across Libya in often inhumane condition.” The findings are corroborated by the UN Support Mission in Libya (UNMSIL) and the Panel of Experts established pursuant to Resolution 1973 (2011). Both report on the atrocities to which migrants are subjected, not only by armed militias, smugglers and traffickers, but also by the new Libyan Coast Guard and the Department for Combatting Illegal Migration of the UN-backed Al Sarraj’s Government of National Accord – established with EU and Italian support.

These acts are not usually regarded as the bread and butter of international criminal law. Yet, for influential observers, they have seemed to reinstitute a modern form of slavery and to conjure images of mass arbitrary killings reminiscent of atrocity. For example, in a statement from November 22, 2017, French President Emmanuel Macron invoked slavery, explaining that trafficking in Libya has become a crime against humanity. For its part, the International Organisation for Migration, via its Missing Migrant project, has documented 46,000 cases of dead or missing worldwide since 2000.

During the whole time, however, various observers have pointed to the complicity of European countries with the relevant acts. Since 2011, Forensic Oceanography has been doing important investigative work in which the ethically fraught European involvement in preventing migration from Libya has been unfolded. Amnesty International has exposed a dark web of collusion, whereby EU states and Italy in particular have used Libyan militia to ensure migrants do not make it across the Mediterranean. Last December, John Dalhuisen, Amnesty International’s Europe Director, denounced European governments for:

“not just be[ing] fully aware of these abuses; by actively supporting the Libyan authorities in stopping sea crossings and containing people in Libya, they are complicit in these abuses.”

In perhaps the most recent evidence of such complicity, Italian authorities have seized the Spanish NGO rescue boat Open Arms and initiated a criminal investigation against members of its crew. The Open Arms, in response to a call from MRCC Rome of March 15, 2018, had rescued 218 people on the high seas and subsequently refused to deliver them to the (so-called) Libyan Coast Guard. After a row lasting several hours and including death threats, the vessel headed north for a medical evacuation in Malta, before requesting permission to disembark in Sicily. Despite Italy’s authorization, the captain and mission coordinator have been charged on counts of “criminal association” and “facilitation of irregular migration”. Italy claims they were obliged to hand over the survivors to Libya under its NGO Code of Conduct, disregarding that that would have amounted to refoulement. Italy thus flouted the requirement of delivery to a “place of safety” under the maritime conventions. It has become overwhelmingly clear that Libyan rescue operations in the Mediterranean are tantamount, as Charles Heller put it, to a plan of “rescue at gunpoint.”

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A New Extraterritorial Jurisdictional Link Recognised by the IACtHR

Published on March 28, 2018        Author: 
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In its recently published Advisory Opinion on “The Environment and Human Rights of 15 November 2017 (in EJIL: Talk! summarized here; on its potential diagonal effect see here), the Inter-American Court is the first human rights court to recognise a new extraterritorial jurisdictional link based on control over domestic activities with extraterritorial effect. This post explains how the conclusions of the Advisory Opinion specifically on the first question recognise a new extraterritorial jurisdictional nexus (1) and argues that despite certain welcome developments (2), the Inter-American Court failed to give a comprehensive guideline as to the limits of the jurisdictional link (3).

1.    Summary of the new jurisdictional test

In its advisory opinion, the Inter-American Court had to answer the question whether a State Party has jurisdiction under Article 1(1) of the Pact of San José over a person situated outside the territory of that State Party if his or her human rights have been violated as a result of damage to the environment or of the risk of environmental damage that can be attributed to that State party.

This is the first occasion the Inter-American Court faces the question of the extraterritorial applicability of the American Convention on Human Rights. Therefore, the Court examined the case law of the Inter-American Commission on Human Rights, the European Court of Human Rights and other treaty regimes and confirmed the Convention’s extraterritorial applicability, recognising two alternative bases of extraterritorial jurisdiction: effective control over territory or persons. However, the Inter-American Court did not stop here and accepted a third jurisdictional link “when the State of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights” (para. 104(h)). The Inter-American Court widens extraterritoriality by establishing a new jurisdictional link that departs from the criteria for extraterritorial jurisdiction of effective control over territory/persons: it is based on the factual – or, as the Court formulates, “causal” – nexus between conducts performed in the territory of the State and a human rights violation occurring abroad (paras. 95, 101-102). While the European Court of Human Rights (ECtHR) vaguely recognised that “acts of the Contracting States […] producing effects […] outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1” (e.g. Al-Skeini), it has never applied it as a standalone basis to establish the State’s extraterritorial jurisdiction. Read the rest of this entry…

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