Two Weeks in Review, 10 – 24 March 2024

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Privacy and surveillance

Marko Milanovic examines The European Court of Human Rights (ECtHR) Chamber’s ruling in Wieder and Guarnieri v. the United Kingdom that the interception and processing of data by a state’s intelligence agencies on its own territory falls within the jurisdictional scope of the European Convention on Human Rights, even if the individuals affected by the surveillance are located outside the state’s territory. Milanovic finds that this decision broadens the application of human rights law to cover activities of European intelligence agencies involving the acquisition or processing of data affecting individuals’ privacy rights, regardless of their physical location, and establishes a precedent for the extraterritorial application of privacy rights in the context of electronic surveillance. See the full analysis here.

Rudraksh Lakra examines the ECtHR recent verdict in the case of Podchasov v. Russia, concerning a statute that established a data retention scheme and permitted law enforcement to order the decryption of data protected by end-to-end encryption. The Court ruled that mandating the decryption of end-to-end encryption data violated Article 8 of the European Convention on Human Rights, safeguarding the right to privacy. The author conteds that this decision underscores the importance of encryption in protecting fundamental rights in the digital age and sets a significant precedent for future cases involving the balance between privacy and law enforcement interests. Read the full post here.

International Court of Justice (ICJ)

Matei Alexianu explores the possibility of enforcing ICJ provisional measures through third-party countermeasures, particularly in cases of non-compliance. The author finds that third-party countermeasures could be a viable option, that challenges the prevailing view that only parties to an ICJ case can deploy countermeasures. Alexianu examines the legal justifications for third-party enforcement, considering both erga omnes standing and the right to aid in enforcing judicial decisions, and outlines the scope and requirements of such provisional countermeasures under customary international law. See the full post here.

Dai Tamada discusses the ICJ’s approach to provisional measures and preliminary objections in lght of the decisions in the Ukraine v. Russia dispute regarding allegations of genocide. The author analyzes the discrepancy between the ICJ’s Provisional Measures Order and Preliminary Objections Judgment, and examines whether the Provisional Measures Order remains in force despite the Preliminary Objections Judgment denying jurisdiction on certain aspects of the dispute. Tamada contends that provisional measures can have independent obligations from substantive law, allowing them to remain in force even if the Court denies jurisdiction or finds no violation of substantive law. The author concludes that the obligations placed by the provisional measures are independent of the substantive obligations imposed on Russia by the Genocide Convention and, therefore, remain legally binding. Read the full post here.

John B. Quigley explores the legal standards relating to genocidal intent. Discussing the issue of intent in South Africa’s case against Israel with regards to the situation in Gaza. The author examines the concept of “double intent” required for genocide, where not only the prohibited acts but also the intent to destroy a group, in whole or in part, must be established. It contrasts the situations in Gaza and Bosnia, highlighting the unique circumstances in Gaza. Overall, the author presents South Africa’s claims against Israel as a unique “conditions of life” situation that the ICJ has not previously encountered. Read the full post here.

Diane Desierto delves into the ICJ’s judgments in the cases involving Ukraine v. Russian Federation in 2024, the first on violations of international conventions regarding terrorism financing and racial discrimination, and the other on preliminary objections regarding allegations of genocide. The author highlights the court’s fact-finding methodologies, its restraint in providing remedies for breaches of international human rights law, and its handling of Ukraine’s arguments. The text raises concerns about the effectiveness of the ICJ in delivering human rights outcomes and expresses skepticism about the court’s ability to provide adequate remedies for human rights violations in inter-State disputes. Read the full post here.

Juliette McIntyre undertakes an examination of the International Court of Justice’s recent changes to its Rules of Court. McIntyre offers a summary of the changes and reflects on their potential results. The author concludes that:

Procedural changes, while on the surface technical or simply practical, can embed particular value choices or have flow-on effects that are not always clear. Even the seemingly mundane amendment of a handful of Rules should be seen as an opportunity for ongoing discourse about the functions and limits of the Court.

Read the full post here.

Marco Longobardo explores the nature of the ‘duty to ensure respect’ for international humanitarian law (IHL) embodied in Common Article 1 of the Four Geneva Conventions and in other IHL provisions. Longobardo focuses on negative obligations under this duty, which was recently invoked by Nicaragua in its application against Germany before the ICJ. The author argues that the ascertainment of the responsibility of the Respondent State before a competent court is not precluded under the Monetary Gold Principle by the lack of consent of the Third State. Read the full post here.

International Criminal Law

Claus Kreß provides an analysis of Germany’s evolving stance on functional immunity within the realm of international criminal law, highlighting both its historical context and recent developments. The author traces Germany’s historical trajectory from initial reluctance to embracing the Nuremberg legacy to becoming a staunch supporter of international criminal law, exemplified by the adoption of the German Code of Crimes Against International Law in 2002. However, Kreß considers that recent judicial and governmental actions reveal a more nuanced approach, with Germany’s Federal Court of Justice asserting the inapplicability of functional immunity in certain cases, while the government’s position appears more cautious, perhaps influenced by political considerations. See the full post here.

Anni Pues discusses the recent conviction of Salih Mustafa by the Appeals Panel at the Kosovo Specialist Chambers (KSC). Salih Mustafa, a special unit (BIA) commander in the Kosovo Liberation Army during the Kosovo war had been convicted for the war crimes of murder, torture and arbitrary detention. The author highlights three significant aspects of this case: the case’s contribution to developing war crimes jurisprudence, the limits on judicial discretion in sentencing, and the unprecedented high individual reparations awards and the establishment of a ‘post-trial judge’ to ensure enforcement of these reparations’ awards. Read the full post here.

More posts

M. E. Salamanca-Aguado discusses the legal implications surrounding the expiration of the two-year period for elaborating regulations on the exploitation of mineral resources in the Area governed by the International Seabed Authority (ISA). The author highlights the interpretation of subparagraph (c) in conjunction with Part XI of the Agreement, the legal status of the Area and its resources, and the challenges in adopting rules, regulations, and procedures for exploitation. Additionally, he touches upon the provisional approval of pending exploitation plans and the potential jurisdiction of the Seabed Disputes Chamber over disputes arising from such approvals. Read the full post here.

Leonie Brassat explores the lawfulness of military strikes against the Houthis in Yemen and the Red Sea in response to Houthi attacks on commercial and merchant vessels in the Red Sea. Brassat examines the legality of these strikes under international law and argues that UNSC Resolution 2722(2024) cannot justify the military strikes, and that it remains doubtful whether the right to self-defence is applicable in the present case. The author’s analysis highlights uncertainties regarding the threshold for self-defense, the attribution of attacks to non-state actors, the distinction between attacks on military and commercial vessels, and the absence of explicit consent from Yemen, putting into question the legal justification provided by the US and UK. Read the full post here.

Dejen Messele explores Ethiopia’s potential recognition of Somaliland, examining how changes in legal identities guide the decision-making process of States in international law.  Messele discusses the recent Memorandum of Understanding between Ethiopia and Somaliland which Somalia’s strongly opposs and its legal implications. Furthermore, the author notes Ethiopia’s historical evolution from prioritizing territorial integrity to emphasizing ethnic self-determination, suggesting that this shift may explain its support for Somaliland’s recognition despite Somalia’s objections. Read the full post here.

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