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A Disappointing End of the Road for the Mothers of Srebrenica Litigation in the Netherlands

Published on July 23, 2019        Author: 

On Friday, the Dutch Supreme Court issued its final decision in the Mothers of Srebrenica litigation regarding the acts and omissions of the Dutch battalion (Dutchbat) of U.N. peacekeepers at Srebrenica in July 1995 (English translation). I’ve written previously on these pages about a pair of earlier, narrower cases (Nuhanović and Mustafić-Mujić) related to the Netherlands’ responsibility for Dutchbat’s failures during the genocide  (see here, here,  and here). Friday’s ruling marks the end of an extraordinarily lengthy process regarding the more comprehensive litigation effort led by the Mothers of Srebrenica organization. The litigation went up to the European Court of Human Rights on the issue of U.N. immunity (which was upheld), before turning to the responsibility of the Netherlands.

In this post, I discuss four issues arising in the Supreme Court’s decision

  • the Court’s apportionment of responsibility to the Netherlands for Bosnian Serb forces’ killings of the 350 Bosnian Muslim men who had been in Dutchbat’s compound;
  • the theory of attribution adopted by the Court, and how it compares to the approach adopted in earlier Srebrenica cases;
  • the Court’s approach to Dutch responsibility for those outside the compound;
  • and the justiciability of the duty to prevent genocide.

The Percentage of Dutch Responsibility

The headlines have focused on the Netherlands’ share of liability. The Court of Appeal held the state liable for 30% of the damages associated with the killings of the 350 men whom Dutchbat had evicted from its Potočari compound and into the hands of the Bosnian Serb forces (VRS) (paras. 68-69.1). The Supreme Court reduced this share to 10% (para 4.7.9). Both courts appear to have applied a form of proportionate responsibility to Dutchbat with respect to the VRS killings, while applying joint and several responsibility to the Netherlands with respect to the actions of Dutchbat. In other words, the Netherlands is to be held fully responsible for the 10% apportioned to Dutchbat, even though Dutchbat’s conduct is potentially also attributable to the U.N. Read the rest of this entry…

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New Issue of EJIL (Vol. 30 (2019) No. 2) – Now Published

Published on July 22, 2019        Author: 

The latest issue of the European Journal of International Law (Vol. 30 (2019) No. 2) is now out. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access articles in this issue are Isabel Feichtner and Surabhi Ranganathan’s International Law and Economic Exploitation in the Global Commons: Introduction and Surabhi Ranganathan’s Ocean Floor Grab: International Law and the Making of an Extractive Imaginary. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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Best Practice – Writing a Peer-Review Report

Published on July 22, 2019        Author: 

The importance of peer review has, if anything, increased in recent times. The enthrallment of current academia with ‘objective’ quantitative measures in the processes of selection, promotion and evaluation of academic performance has put a premium on publication in ‘peer-reviewed’ journals. Instead of a faculty reading carefully the work and making up its own mind as to its quality, they will outsource such to two anonymous peer reviewers. Also, in the face of the avalanche of self-publication in outlets such as SSRN (valuable in and of itself) and the like, peer review may help the discerning reader navigate these channels, thereby providing some guarantee of excellence.

Yet this importance is often not matched by the practice of peer review. The rate of refusal to peer review is as high as 50 per cent – oftentimes by authors who themselves have published in, and benefited from, peer-reviewed journals. Authors who publish in EJIL and I.CON undertake to peer review for our journals, an undertaking not always honoured. Of course, there is only so much peer reviewing that one can do and we understand when we receive a request to beg off with a promise to do it on some other occasion.

Then there is the problem of tardiness. Four to six weeks is a reasonable time to expect a peer-review report to come in. Frequently, to our and our authors’ frustration it can be as long as 24 weeks, after a slew of ‘gentle’ and somewhat less gentle reminders. Read the rest of this entry…

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Announcements: Military Assistance on Request in the International Legal Order Conference; BISA Working Group on Peacekeeping and Peacebuilding

Published on July 21, 2019        Author: 

1. Conference: ‘What Room for Military Assistance on Request in the International Legal Order?’ On Thursday 5 and Friday 6 December 2019, the Journal on the Use of Force and International Law (JUFIL, Routledge) and the Ghent Rolin-Jaequemyns International Law Institute (GRILI) will host an international conference focusing on ‘military assistance on request’. Having regard to recent third-State interventions in Yemen, Syria and elsewhere, the conference seeks to explore the legal framework governing such interventions, including relevant uncertainties and shortcomings as well as proposals de lege ferenda. Separate expert panels will be devoted to the ‘authority’ to invite outside intervention on the one hand, and the permissibility of third-State intervention in situations of civil war on the other hand. Confirmed panelists include inter alia Prof. Anne Orford (University of Melbourne), Prof. Eliav Lieblich (University of Tel Aviv), Prof. Gregory Fox (Wayne State University), Prof. Raphaël Van Steenberghe (Université catholique de Louvain-la-neuve), Prof. Karine Bannelier-Christakis (Université Grenoble-Alpes), Prof. Erika De Wet (University of Pretoria and University of Bonn), Prof. Alonso Gurmendi-Dunkelberg (Universidad del Pacifico), and Prof. Christian Henderson (University of Sussex). The conference programme and registration link are available here.

2. BISA Working Group on Peacekeeping and Peacebuilding. The BISA Working Group on Peacekeeping and Peacebuilding, with funding from the BISA Postgraduate Network, is organising an interdisciplinary PGR workshop entitled ‘Militarisation and the Local in Peacekeeping: Ambition, Pragmatism and Adaptability’ to be held at City, University of London on 20 September 2019. The workshop is the first of a four part series incorporating practitioners as well as academics and will explore challenges to peacekeeping through the lens of the local. Approaches to peacekeeping operations are increasingly in tension between pragmatic approaches which seek realistically achievable outcomes and ambitious approaches rooted in humanitarian commitments and human rights. We have seen increasingly complex mandates, robust and militarised missions which may negatively affect the local. Topics of interest include how best to pursue human rights and to incorporate local needs, the effect of militarisation and counter-terrorism in peacekeeping mandates, and how these challenges impact human security and building peace. Please send abstracts (of no more than 250 words) to Alexander.Gilder {at} city.ac(.)uk and ss17sw {at} leeds.ac(.)uk no later than 31 July 2019. Further information, including travel bursaries and attendance, can be found here.

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EJIL Vol. 30 (2019) No. 2: In this Issue

Published on July 20, 2019        Author: 

This issue opens with three articles that address underexplored corners of international law. The first article focuses on the topic of customs unions. Adopting a historical perspective, Michal Ovádek and Ines Willemyns identify gaps and ambiguities in the contemporary legal definition of custom unions. They then conduct a comparative analysis to examine how different custom union agreements address these ambiguities. They observe that the design and performance of these agreements is affected by concerns over state sovereignty. Finally, they draw lessons for a possible post-Brexit EU-UK agreement regarding customs.

The second article, by Miles Jackson, discusses instigation to commit wrongful acts. He argues that contrary to the common perception, international law does include a general prohibition on instigation. In accordance with this prohibition, a state that induces or incites another state to breach its international obligations may be held responsible for an internationally wrongful act. According to Jackson, the prohibition on instigation is founded on a general principle of law accepted in many domestic jurisdictions, which should be transposed to international law.

Paolo Amorosa then explores a forgotten episode in the well-studied history of the international legal struggle for women’s equality. Whereas the common narrative dates the beginning of this struggle to the aftermath of World War II, Amorosa traces its roots to the signing of the Equal Nationality Treaty and the Equal Rights Treaty at the 1933 Montevideo Conference. In so doing, he takes a step towards the re-inclusion of early feminist activists in the dominant history of international law. Read the rest of this entry…

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New Issue of EJIL (Vol. 30 (2019) No. 2) Out Next Week

Published on July 19, 2019        Author: 

The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of editorial posts by Joseph Weiler, Editor-in-Chief of EJIL. These posts will appear in the Editorial of the new issue. 

Here is the Table of Contents for this new issue:

Editorial

Editorial: Editor-in-Chief Sarah M. H. Nouwen; Best Practice – Writing a Peer-Review Report; In this Issue

Articles

Michal Ovádek and Ines Willemyns, International Law of Customs Unions: Conceptual Variety, Legal Ambiguity and Diverse Practice

Miles Jackson, State Instigation in International Law: A General Principle Transposed

Paolo Amorosa, Pioneering International Women’s Rights? The US National Woman’s Party and the 1933 Montevideo Equal Rights Treaties Read the rest of this entry…

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EJIL: Editor-in-Chief Sarah M. H. Nouwen

Published on July 19, 2019        Author: 

We are very pleased to announce that, as of this issue, the EJIL family (EJIL, EJIL: Talk! and EJIL: Live!) will be led by two Editors-in-Chief. By unanimous decision of EJIL‘s Board of Management, Sarah Nouwen will join J.H.H. Weiler at the helm of EJIL. Dr Nouwen serves as Senior Lecturer at the University of Cambridge and was recently appointed as Professor of International Law at the European University Institute. She has been a member of EJIL‘s Editorial Board for several years.

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The International Court of Justice renders its judgment in the Jadhav case (India v. Pakistan)

Published on July 18, 2019        Author: 

On 8 May 2017, India instituted proceedings before the International Court of Justice (ICJ) against Pakistan, accusing the latter of ‘egregious violations of the Vienna Convention on Consular Relations’ (VCCR) (p. 4). The dispute concerns the treatment of an Indian national, Mr. Kulbhushan Sudhir Jadhav, who was detained, tried and sentenced to death by a military court in Pakistan.

In this post, I will give a brief overview of the background of the case and the claims submitted by India, followed by the provisional measures decision and the judgment on jurisdiction, admissibility and merits, pronounced in open court on 17 July 2019.

Application instituting proceedings

In its Application, India claimed that, on 3 March 2016, Mr. Jadhav was ‘kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan’ (para. 13) on suspicion of espionage and sabotage activities.  India stated that it was not informed of Mr. Jadhav’s detention until 22 days after his arrest and Pakistan failed to inform Mr. Jadhav of his rights under the VCCR. Allegedly, the Pakistani authorities refused to give India consular access to Mr. Jadhav, despite repeated requests. Read the rest of this entry…

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Silence and the Use of Force in International Law

Published on July 18, 2019        Author: , and

States frequently take actions and make statements that implicate international law. But because they do not — and, indeed, could not — express a view on each such act or statement by all other states at all times, silence seems to be the norm, rather than the exception, in international relations.

When states and other international actors do not express their views on a particular incident, issue or statement that implicates international law, what is the legal significance, if any, of their silence? Does it denote acquiescence or quiet protest? Might it not have legal significance at all? Who makes this determination? Who benefits, and who loses, from a finding that a particular silence does or does not yield legal consequences?

Over the years, several scholars — despite some calls for caution — have invoked the silence of states and other international actors as proof of support for particular legal views. This practice has been noticeable and increasingly frequent in jus ad bellum — the field of international law governing the threat or use of force in international relations. For example, writings on the following military actions (among others) invoke silence as having some type of legal significance: Read the rest of this entry…

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A Reply to Professor Kraska on the Iranian Shootdown of the US Global Hawk Drone

Published on July 17, 2019        Author: 

Prof. Kraska has argued in his latest EJIL: Talk! article that the incident regarding the downing of a US drone by Iran happened due to the scarce knowledge of international law by an Iranian Revolutionary Guard Corps (IRGC) commander. While I do appreciate Prof. Kraska’s discretion in referring to US intelligence sources, on the other hand the US President himself openly provided to the media the same assessment.

I will now concentrate on some points raised by Prof. Kraska:

  1. The US counterattack was cancelled.

This observation implies by default and without any specifics that the action conducted by Iran was in fact an attack confirming the US policy on the equivalence of  use of force with armed attack. One might disagree and follow the difference between the two as expressed by the ICJ in the Nicaragua case (para. 191). It is also difficult to understand this point of view, as the author did not state from the beginning that he was taking the US declarations on the position of the drone as a given fact. Even so, Iran’s declarations to the UN Security Council (UNSC) would have been worth mentioning to the reader for awareness purposes. In his letter, the Iranian Ambassador defines the US violation of his Country’s airspace as a “hostile act” to which Iran responded in self-defense. This is a shift on the interpretation of self-defense by Iran that actually aligns with the US view (use of force = self-defense). For more insights on the topic see here. Read the rest of this entry…

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