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Ruling of the Spanish Constitutional Court Legitimising Restrictions on Universal Criminal Jurisdiction

Published on February 6, 2019        Author: 
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A short history of universal jurisdiction in Spain

Last 20 December, the Spanish Constitutional Court (hereinafter, TC) issued a ruling rejecting an application made by more than fifty Socialist Members of Parliament to strike out a bill introduced by the Conservative Party in 2014. In practice, the aforementioned bill put an end to a law of 1985 which provided for one of the broadest universal jurisdiction regimes for criminal matters in the world. Spain had been at the centre of human rights litigation, with well-publicized cases against former presidents Pinochet and Jiang Zemin or top officials of the Israeli Government. Needless to say, such cases had caused a few diplomatic headaches to the Spanish Government, in the course of time. However, a former minister of justice had admitted that in twenty years there had actually been only one conviction in application of universal jurisdiction rules.

A first reform to restrict the extraterritorial jurisdiction of Spanish criminal courts came about in 2009 by an agreement between Socialists and Conservatives. Contrary to the original law of 1985, after 2009 the accused had to be found in Spain, the victim had to be Spanish or there had to be some other relevant connection with the forum. Subsequently, the abovementioned reform of 2014 granted jurisdiction for a larger number of crimes committed abroad but made it practically impossible to prosecute if the crime was completely unrelated to Spain. Read the rest of this entry…

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India’s Strange Position on the Additional Protocols of 1977

Published on February 5, 2019        Author: 
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After four decades of their adoption, India continues to have an ambivalent position on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. India has not yet become a party to the two Additional Protocols (APs). While it has not explained anywhere its position for not becoming a party, its recent clarification in the form of an answer in the Indian parliament does not provide any reasons for not becoming a party to the APs. This clarification came in the way of a response by the Minister of State for External Affairs to a question posed in the lower house of the Indian Parliament on 02 January 2019. The question posed by a Member of the Parliament sought clarification as to whether steps have been taken to ratify the APs and if not, what are the reasons for not becoming a party, if necessary, with reservations. The question posed by a Member of the Indian Parliament is as follows:

(a) whether steps have been taken to ratify the Additional Protocol I and II to the Geneva Conventions;

(b) if so, the details thereof and the steps taken to bring domestic laws in compliance with the Protocols; and  

(c) if not, the reasons for abstaining in spite of the availability of the option of ”ratification with reservations”?

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Joint Symposium: Chatham House Paper on Proportionality in the Conduct of Hostilities

Published on February 4, 2019        Author: 
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This is the final post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment.

The new research paper published by Chatham House on Proportionality in the Conduct of Hostilities is a rigorous and thoughtful exposition of the civilian side of the notion of proportionality under international humanitarian law (IHL). This brief post focuses on three points that are raised by the paper: first, the way in which certain difficult questions concerning the reach of proportionality considerations are addressed; second, the question of the status of the natural environment; and third, the potential impact of the paper.

The proportionality calculus calls for a comparison of the expected incidental harm to civilians caused by an attack and the concrete and direct military advantage anticipated. Amongst the many difficult questions that arise from this formulation is the reach of the test, e.g. what type of harm is included, psychological or only physical harm? When might harm be considered as having been ‘caused’ by an attack? Does it include so-called ‘reverberating’ harm, manifesting sometime after an attack (as in the case with unexploded cluster sub-munitions)?

The research paper addresses this question of the reach of the proportionality analysis through the dual test of admissibility and weight. This has the significant advantage of offering a more nuanced way of dealing with some of these complicated questions concerning the scope of the proportionality analysis. For example, on the question of reverberating harm, the paper takes the position that ‘the geographic or temporal proximity of the harm to the attack is not determinative’ and should not affect the admissibility of reverberating harm (para 63). Instead, ‘[f]actors such as the passage of time between the attack and the injury, or the number of causal steps between one and the other, may affect the likelihood of the harm occurring and thus the weight to be assigned to it’ (para 64). That reverberating harm, manifesting sometime after an attack rather than at the time of the attack, must be taken into account in assessing proportionality must be right – there is nothing in the Additional Protocol I (API) formulation of the proportionality test that suggests excluding such types of harm. The reference in API is simply to an ‘attack which may be expected to cause incidental’ civilian harm – as the paper states, harm is caused by an attack if, ‘but for’ the attack, the harm would not occur (para 45), regardless of any proximity considerations. Instead, the proximity of expected harm to the attack might be relevant to the weight to be given to that potential harm. Read the rest of this entry…

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Announcements: International Cultural Heritage Law Summer School; Legal Resilience in an Era of Hybrid Threats Conference; Call for Rapporteurs OUP; Chatham House Conference – Security and Prosperity in the Asia-Pacific; CfP Protecting Community Interests under International Law; Summer School on Human Rights in Theory and Practice

Published on February 3, 2019        Author: 
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1. International Cultural Heritage Law Summer School 2019. The summer school, from 17 – 28 June 2019, is organized by the Art-Law Centre and the UNESCO Chair in the International Law of the Protection of Cultural Heritage of the University of Geneva, in collaboration with the University of Miami School of Law. The summer school aims to develop the students’ awareness and general understanding of the main substantive themes of international cultural heritage law, namely: the trade in cultural objects; the restitution of stolen or looted artworks; the protection of cultural property in the event of armed conflict; the protection of the built heritage from natural and human-induced disasters; the safeguarding of the intangible cultural heritage and of the diversity of cultural expressions. See here for further information. 

2. Legal Resilience in an Era of Hybrid Threats Conference. The Exeter Centre for International Law invites you to a conference on “Legal Resilience in an Era of Hybrid Threats” on 8 – 10 April 2019 at the University of Exeter. The aim of the event is to explore the legal challenges presented by lawfare, hybrid threats and gray zone conflict and to develop the notion of legal resilience as a framework for countering these challenges more effectively. Confirmed speakers include Professor Jutta Brunnée (Toronto), Brigadier General (ret) Richard Gross, Professor Melissa de Zwart (Adelaide), Marlene Mazel (Israel, Ministry of Justice), Professor Geoffrey Corn (South Texas), Professor Charlie Dunlap (Duke). The event is held in collaboration with the European Centre of Excellence for Countering Hybrid Threats, the Geneva Centre for Security Policy and the Lieber Institute of the United States Military Academy. Further details, including the draft conference programme and online registration, are available here. A reduced rate is available to students enrolled full-time on higher education programmes.

3. Call for Rapporteurs: Oxford University Press. Oxford University Press welcomes applications from those who would be interested in acting as rapporteurs for Oxford International Organizations (OXIO). OXIO is a database of annotated documents pertaining to the law of international organizations and includes resolutions of international organizations, reports of legal advisers, judicial decisions, international agreements, or any act of legal relevance. Rapporteurs have the task of identifying relevant materials and providing a short legal commentary on these documents. Find out more online about the Call for Rapporteurs and OXIO.

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Joint Symposium on Chatham House’s Report on Proportionality: Calibrating the Compass of Proportionality

Published on February 1, 2019        Author: 
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This is the third post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment, Calibrating the Compass of Proportionality, by Geoff Corn. The full post is available now over on Just Security.

Here’s a taster from Geoff’s post:

Every war results in civilian harm; though always tragic, it is a largely unavoidable result of armed conflict. For those who have not taken up arms or ordered others to do so, the fact that civilians seem to bear the brunt of war surely seems to reveal mankind at its worst. As James R. McDonough wrote in his influential “Platoon Leader: A Memoir of Command in Combat,” “[w]ar gives the appearance of condoning almost everything.” The reality is that rules governing armed conflict have never been more important. As McDonough also wrote,

[M]en must live with their actions for a long time afterward. A leader has to help them understand that there are lines they must not cross. He is their link to normalcy, to order, to humanity. If the leader loses his own sense of propriety or shrinks from his duty, anything will be allowed.

As McDonough so eloquently reminds us, military leaders need rules to manage the violence of war and in so doing protect those caught up in war from the moral abyss of lawless combat. IHL rules that regulate the conduct of hostilities provide these rules – the proverbial compass that enables the warriors to navigate the complex terrain of mortal combat. Like any compass, the more precise the calibration, the more accurate the navigation

Read the rest of Geoff’s post over on Just Security. Read the rest of this entry…

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WTO Dispute on the US Human Rights Sanctions is Looming on the Horizon

Published on January 31, 2019        Author: 
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At the turn of the year, Venezuela initiated a WTO dispute with the United States. In a nutshell, Venezuela questions WTO-consistency of a number of coercive trade-restrictive measures (economic sanctions) imposed by the United States. Some of those restrictions were allegedly imposed on the human rights grounds.

US sanctions against Venezuela

The United States has been consistently imposing trade-restrictive measures against Venezuela, yet none of them has ever been challenged at the WTO. Most likely, the last wave of such restrictions is a spark that lit the fuse. In recent years, the Trump Administration introduced additional restrictions on Venezuela’s financial sector, leaving the country’s finances in shambles, as well as sanctions directed against the country’s gold sector. According to the media reports published in January 2019, the United States considers even tougher sanctions, particularly the ones that can impede Venezuela’s oil industry.

Human rights sanctions against Venezuela

The United States is notorious for its practice of economic coercion, which has been debated at length within the international community. Economic measures imposed to promote human rights entered the US foreign policy agenda under President Carter. In the following decades, the US has made ample use of them. 

In December 2014, the US Congress enacted the Venezuela Defense of Human Rights and Civil Society Act of 2014. The enactment of the act was triggered by a number of events, particularly by the deteriorated living standards and the violent crackdown on the anti-government protesters. The act authorizes the President to impose various targeted sanctions, – sanctions against current or former government officials responsible for acts of violence or serious human rights abuses against protesters. The ambit of such sanctions includes blocking of assets of the designated individuals as well as travel restrictions. In pursuit of its authority, President Obama declared the national emergency in respect of the situation in Venezuela and issued an Executive Order 13692 of March 8, 2015, which implements the aforesaid human rights sanctions.

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Joint Blog Series on International Law and Armed Conflict: Are Sieges Prohibited under Contemporary IHL?

Published on January 30, 2019        Author: 
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Editor’s Note: This post the final post in the joint series hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict held at the European University Institute in Florence in July.

Contemporary armed conflicts in Syria, Yemen or Iraq have seen a resurgence of sieges of cities and other densely populated areas. This ancient—some would say archaic or medieval—method of warfare is expected to be increasingly used in future urban conflicts. The catastrophic humanitarian consequences of recent prolonged sieges—such as in Ghouta (Syria), where civilians are starving because of lack of access to objects indispensable to their survival—have led to widespread condemnations by the international community (see e.g., UN Security Council Resolution 2139 (2014)). The question discussed here is what does international humanitarian law (IHL) say about siege warfare? Is it explicitly ruled out? How might IHL rules and principles constrain siege warfare?

No explicit IHL rules against siege warfare

Sieges are not per se an explicitly prohibited method of warfare under IHL. On the contrary, one could say that IHL implicitly allow sieges by merely mentioning steps to be taken to mitigate their negative effects on civilians and civilian objects (Art 27 1907 Hague Regulations; Art 15 GCI; Art 18 GCII; Art 17 GCIV).

Sieges have been used throughout history and military doctrine usually regards sieges as essential to the effective conduct of hostilities in order to control a defended locality and obtain surrender or otherwise defeat the enemy through isolation. Since sieges are a harsh method of warfare and are based on almost complete isolation of the besieged locality, their use will almost inevitably involve frictions with numerous rules and principles of IHL—at least when the besieged area involves civilian presence.

Numerous constraints on siege warfare

There are a number of IHL prohibitions that may constrain siege warfare. These include the prohibition against terrorizing the civilian population (Art 51(2) API; Art 13(2) APII; CIHL Study, Rule 2), the prohibition of collective punishment (Art 75 API; Art 4 APII; CIHL Study, Rule 103) or the prohibition of human shields (Art. 51(5) API; CIHL Study, Rule 97). The most obvious prohibition that impacts siege warfare, however, is the prohibition of starvation of civilians (Art 54(1) API; Art 14 APII).There is also a question as to whether conduct of hostilities rules, and the principle of proportionality in particular, may serve as an additional constrain on siege warfare Article 51(5)(b) of API CIHL Study, Rule 14). The present blog post will focus on the latter two—the prohibition against starving civilians, purposefully or incidentally, and the principle of proportionality.   Read the rest of this entry…

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Joint Symposium on Chatham House’s Report on Proportionality: “Proportionality and Doubt”

Published on January 29, 2019        Author: 
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This is the second post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment, Proportionality and Doubt, by Adil Haque. The full post is available now over on Just Security.

Here’s a snippet from Adil’s post:

The Report underscores the duty of commanders to do everything feasible to verify that proposed attacks will not violate the proportionality rule (see here, here, and here). This duty seems to imply that a commander who tries but fails to verify conformity with the proportionality rule must refrain from attack. Among other things, it would seem to weaken a commander’s incentives to do ‘everything feasible’ if her failure to verify were instead to be rewarded with freedom to attack.

This view also leads to results that are logical rather than unreasonable or absurd. Assume the following scenario:

Attackers verify that a building is a military objective. Attacking the building will almost certainly kill a number of people nearby.

Now consider two variations:

I) Attackers suspect that the people nearby are combatants, but remain in serious doubt. If the people nearby are civilians, then their expected deaths would be excessive in relation the military advantage anticipated.

II) Attackers verify that the persons nearby are civilian. However, their expected deaths would be neither clearly excessive nor clearly non-excessive in relation to the military advantage anticipated.

In variation I, attackers must presume that the people nearby are civilian (under API 50(1)) and therefore refrain from attack. To ignore their serious doubts and attack would seriously risk violating the proportionality rule. What about variation II? On the view we are exploring, attackers must again refrain from attack, for the same reason: to avoid serious risk of violating the proportionality rule

Read the rest of Adil’s post over on Just Security. Read the rest of this entry…

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A Frontstop Approach to the Backstop Conundrum

Published on January 29, 2019        Author: 
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The EU, understandably, wants to preserve the integrity of its customs and regulatory territory. The UK and Ireland wish to preserve, post Brexit, the integrity of the Good Friday agreement which implies an open border between the Union and a non-Member State. Herein is born the famous “Backstop” conundrum – the solution ‘de jour’ being the UK remaining in a Customs Union with the EU. 

Like many Europeans I find the thought of the Union without the UK distressing and a no-deal exit even more so. But one should not therefore obfuscate the terms of the ongoing debate. 

A Customs Union, we all know, comes with a price – notably the inability of the UK to conclude independent trade agreements – a price not all Brexiteers are willing to accept, at least not as a permanent arrangement or at least not as something forced upon them deus ex machina. It is also unlikely that the Union would allow the UK to have more than a consultative voice in future EU trade agreements which, of course, would bind such a Customs Union. Another unpalatable dish.  

But all this, we are told, will disappear when Final Status negotiations between the EU and the UK will conclude.  

The notion that final status talks will bring an end to a Customs Union Backstop  obscures one very uncomfortable catch 22 truth. The need for the Backstop will disappear if, and only if, the final status talks result in the UK remaining, one way or another, de jure or de facto,  in an EU Customs Union applying the Common External Tariff!

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Joint Symposium: Chatham House Report on Proportionality in the Conduct of Hostilities – Some Key Elements

Published on January 28, 2019        Author: 
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This is the first post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment. This piece is cross-posted on Just Security.

At the end of 2018 the International Law Programme at Chatham House published a report analysing the key steps in making assessments about proportionality under international humanitarian law, with a particular focus on incidental harm.  The rule of proportionality as formulated in Article 51 of Additional Protocol I of 1977 (AP I) requires belligerents to refrain from attacks ‘which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.

The report addresses three sets of questions: first, the criteria of causation and foreseeability, the weight to be assigned to particular kinds of harm, and how to assess whether the expected incidental harm is excessive in relation to the anticipated military advantage; second, the types of incidental harm to be considered in proportionality assessments; and, third, a number of legal questions raised by the implementation of the rule in practice.

After putting the rule of proportionality into context, this blog post presents four of the points that the report seeks to clarify.  These are: the causation of the incidental harm and whether it is foreseeable; ‘knock-on’ or ‘reverberating’ harm; the types of injury to civilians to be considered; and the notion of ‘excessive’ incidental harm. Read the rest of this entry…

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