Two weeks in Review, 2 January – 15 January

ICC

John Cubbon analyzes the recent decision of the International Criminal Court’s Appeals Chamber to uphold the conviction and sentence of Dominic Ongwen. Specifically, noting the court’s decision not to refer to Ongwen’s past as a child soldier as a mitigating factor in his sentence. Cubbon asserts that, under Article 78(1) of the ICC Statute, the Court is obliged to take into account the individual circumstances of the convicted person, not precluding broader considerations such as those of people forcibly recruited into military formations or even just of people who have had disadvantaged childhoods. He concludes: 

It would therefore have been preferable for the Trial Chamber to have given greater precision to the basis for its finding of mitigation. It could have done this by referring to the trends that its decision reflected, the respects in which it diverged from them and the reasons for divergence. There would then have been greater certainty as to its findings and a firmer basis for the future development of law and practice. The ICC, whatever criticisms might be made of it, is regarded as a beacon of global justice and its decisions are looked up to. In the final analysis there will be a better understanding, and even increased acceptance, of mitigation based on the brutality of armed conflict if it is transparent, foreseeable and explicitly rule-governed.

Read the full post here.

Mariam Bezhanishvili shares her insights on the ICC Investigation in Georgia. Bezhanishvili argues that the full potential of the investigation was not explored, given that, despite the effort and resources put into investigating the list of crimes presented in the Authorisation Decision, the OTP did not pursue full accountability for most of the crimes. This could have been influenced by Russia’s refusal to cooperate and the Court’s lack of access to the occupied South Ossetian territory amongst other factors. She concludes that the investigation could have led to more substantial coverage of the criminality that permeated the conflict. Nonetheless, the investigation could be understood as a product of successful cooperation among stakeholders, under the direction of the OTP. Further, Bezhanishvili notes that ‘For Georgia, the investigation had a remarkable positive effect of recognising the suffering endured by victims and of reminding the world of Russia’s past unaccounted crimes – a reminder that might not have been necessary if not for the ostensibly passive response of the international community to the abuses of the August war.’      

Read the full post here.

In their post, ‘Amending the Amendment: In Search of an Adequate Procedure for a Revision of the Jurisdictional Regime for the Crime of Aggression in the Rome Statute’, Fiona Abken and Paulina Rob discuss the legal basis to the amendment procedure chosen in Kampala and offer two alternative ones. The two favor the application of Art. 121 (5) to the Rome Statute, and conclude that:

The amendment procedure applied in Kampala for the introduction of the jurisdictional regime for the crime of aggression raises complex legal questions. The considerations outlined above are an attempt to elucidate the legal complexity surrounding the amendment procedure for the envisaged revision of this jurisdictional regime and to hereby contribute to a common understanding. Regardless of further developments concerning a potential Special Tribunal for the Crime of Aggression against Ukraine, it is desirable that States Parties embrace the goal of actually enlivening Art. 8 bis RS. It is a call to all States Parties to contribute their share, but under the two alternative amendment procedures put forward in this post, the ultimate decision will be in the hands of the Kampala States.

Read the full post here.

UN

In his post, ‘Finding UN responsibility for its stabilization activities’, Alexander Gilder explores the ancillary responsibility of the UN for wrongful conduct in the context of stabilization missions. Specifically, the ways in which international law accounts for wrongful acts made possible by an international organization’s support in the context of a UN peace operation. Gilder argues that: 

‘Clarity is needed on where the UN’s support for host states and other actors will cross into ancillary responsibility under Article 14. The UN must develop a definitive test for applying the HRDPP to situations of ongoing abuses committed by UN partners that mirrors its obligations under Article 14. Only then can the UN incorporate further safeguards into its activities to prevent unresolvable questions on UN responsibility where violations of human rights and humanitarian law by the host state and other international forces persist.’

Read the full post here.

Abdul Ghafur Hamid explores Security Council Resolution 2669 (2022) on the Situation in Myanmar. This Resolution is the first-ever Security Council resolution on Myanmar, nearly two years after the military coup d’etat on February 1, 2021. Following his analysis of the resolution itself, Hamid examines what can be done in case the resolution is met with non-compliance by the military junta. Since the resolution was not adopted as an enforcement action under Chapter VII of the Charter, there can be no enforcement action against non-compliance. Nevertheless, Hamid notes, the military junta can possibly be pressured by the strong and coordinated action of like-minded UN Member States and ASEAN. If the junta still does not comply, the Security Council could adopt a stronger resolution, if China and the Russian Federation do not oppose it. Hamid concludes, that all things considered, the UNSC resolution on Myanmar is a small but important step forward, that will hopefully be followed by further and stronger resolutions in the future.

Read his full analysis here.

More posts

In their post, ‘With No Judge or Jury, Who Will Decide the Fate of 4.1 million Aid-Dependent Syrians? A Comment on the Legality of UN-Coordinated Cross-Border Aid Operations in Syria’, Jack Sproson and Ibrahim Olabi explore the context and legal basis of cross-border humanitarian aid in Syria. Following their analysis of the unique situation in Syria, the two conclude that:

With no judge nor jury in this situation, the time is therefore apt to reframe cyclical renewal dialogues to acknowledge that the UNSC’s role as an emergency interlocutor is no longer necessary, and accept that the matter can revert to its default setting in the comparatively de-politicised UN Secretariat, as it was pre-resolution, using the same ‘problem-solving’ approach that led those seeking solutions in 2014 to take the unprecedented step of involving the UNSC in the first instance. The stakes associated with doing so have never been higher – 4.1M lives, and IHL as we know it, depend on it.

Read their full post here. 

In their post, ‘One Year On – Remembering the Al-Khatib Syrian Torture Case and Reflecting on the Documentation of International Crimes Cases in German Courts’, Patrick Kroker and Felix Lüth reflect on some of the problems with and reasons for documenting international crimes cases in national German courts. Following their findings on the significant shortcomings in regard to the documentation and the outreach efforts around these trials, the two note some positive developments such as the Federal Ministry of Justice’s draft law on documenting criminal trials an others.

Read the full analysis here.

Catherine Gregoire explores the use of plea negotiations as a procedural tool in international criminal law, specifically, in the context of reparations at the Kosovo Specialist Chambers. Gregoire focuses on the following legal issues and possibilities: enforcement of reparations against the accused; the impact of reparations in plea agreements; Kosovo’s stance on plea negotiations; and the involvement of victims in plea negotiations on reparations. The author finds that, although plea negotiations on reparations have the potential of undermining victims’ rights, these negotiations could provide a unique legal framework for the KSC to develop its jurisprudence on these subjects.

Read the full analysis here.

In their post, ‘Tilting the Playing Field’, Victor Crochet and Elyse Kneller review various instruments used by the EU to ensure that foreign entities, goods, and services are subject to similar regulatory burdens as their EU counterparts when engaging in the EU single market. The two argue that while many of these instruments do so adequately, several recent measures do not. In fact, these measures tilt the playing field in favor of EU entities, goods, and services. They find that:

with the current international situation and the (re)emergence of protectionist industrial policies, tilting the playing field through economic measures might become increasingly pronounced and persist. Indeed, EU industries may find themselves at a disadvantage when faced with the sheer amounts of green and industrial incentives being provided by third countries, such as the United States of America and China, to their own domestic industries. In this context, using its regulatory clout to tilt the playing field in favour of EU industries might be a clever way for the EU to help its industries remain competitive.

See the full post here.

Finally, see our annual ‘Happy New Year for 2023 and our Most Read Posts of 2022‘ by Dapo Akande here. 

All recent Events and Announcements can be found here.

The European Journal of International Law has new advanced articles and advanced reviews available to read online.