[Luis F. Yanes is a Project and Research Assistant of the Essex Business and Human Rights Project and a PhD candidate at the Human Rights Centre of the University of Essex. You can find him on Twitter @LuisFYanes.]

As we now know, on the 19^th of July 2018, the first draft for a Business and Human Rights Treaty was published (draft zero). In a post published here in Opinio Juris, Carlos López brilliantly summarized some of the key legal aspects that the draft zero proposes, with a critical view of what is missing in order to ensure a more effective treaty.

However, neither the draft, nor any posts regarding it, have addressed one of the mayor risks that all UN human rights instruments have historically presented, this is, the vulnerability to human rights counter-diplomatic tactics. The intention of this post is, therefore, to bring attention to the underlying risks that treaty-making has to the full effective enjoyment of human rights.

A treaty on Business and Human Rights (B&HR) has the potential of resolving many of the ambiguities when interpreting the impacts that the activities of multinational corporations have in the enjoyment of human rights. But we have learned with time that there are some risks in the way human rights treaties have been created. Are we ready to craft a draft that actually tackles these diplomatic risks?

Human Rights Diplomacy and Counter-Diplomacy

It is important to take into consideration that international human rights agreements are the result of a political process, and therefore, are created though a developing dialogue by states who wish to bind themselves to such principles. This process can be seen by certain states as their diplomatic means of advancing human rights issues (by negotiations and persuasion) in other nations. This is what some call human rights diplomacy. However, it is also possible to use the means of diplomacy to frustrate such efforts.

For some, the international politics of human rights is mainly centred on mobilizing shame and public exposure, therefore, the ability of a state to tackle or even diverge the attention of certain allegations are key mechanisms in what can be called human rights counter-diplomacy. This is, using diplomatic means to undermine the efforts of other countries that aim to improve the promotion and protection of human rights.

This human rights counter-diplomacy can also be seen in the process of negotiating and implementing human rights treaties, as a state might want to play-along with the international community, with no real intention of complying with such rules.

Ratifying but not complying

Experts in Diplomacy and International Relations would probably say that it is naïve to suppose that states with questionable human rights records have signed or ratified a human rights treaty because they believe in the principles that such instruments contain. Hence, some believe that a more realistic approach might be to consider that countries with questionable human rights records – such as Venezuela and Cuba, which supported the original initiative of drafting a treaty on B&HR – decide to enter into such international instruments as a response to external pressure, or internal propaganda, but never really expecting to comply with their obligations.

From a legal perspective, acknowledging that states enter into treaties with no expectations to comply with them might be seen as alarming. This of course given that it would undermine one of the most fundamental principles of international law, pacta sunt servanda. If states ratify treaties – in good faith – it is because they are willing to comply with the obligations such instruments enshrine. Foreign Affairs experts, however, calls us to take a step back and look at the political landscape the international community currently faces.

The draft zero, however, does not address this issues. It repeats the Treaty Monitoring Body formula, whereas a Committee of Independent experts is created to oversee compliance with the treaty. These Bodies have been repeatedly criticised for their inability to enforce their decisions and directly ensure the implementation of their treaties. In comparison with Regional Human Rights Institutions, such as the European and Inter-American Court of Human Rights, Treaty Monitoring Bodies have historically been created without tools to ensure non-complying states do not undermine the rights and obligations enshrined in such instrument.

Ratifying with reservations

States may appear to show commitment, by ratifying international human rights treaties, but with substantial reservations. Such reservations could often be incompatible with the treaty itself, undermining the rights that they have vowed to protect. Some states may directly object to reservations done by other states, but rarely do so.

A B&HR treaty could be seen as an accomplishment for the international community, but if substantial reservations were to be made to it, then the real nature and effectiveness of the instrument would disappear. The draft zero explicitly addresses the issues of reservations, by stating in its article 15 that ‘[r]eservations incompatible with the object and purpose of the present Convention shall not be permitted’. But this is no guarantee of success, as we have seen with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) with 57 reservations, particularly to core provisions to the Convention.

Most of CEDAW’s reservations limit the enjoyment of such rights to compliance with domestic law. Hence, if domestic law is more restrictive, the Convention is basically overridden. CEDAW’s treaty monitoring body has expressed that certain reservations are incompatible with the Convention, but this unfortunately has had no substantial effect in state practice.

Reservations to a B&HR treaty based on compliance with domestic law could potentially undermine the effectiveness of the treaty altogether. If the right of victims to seek direct redress against multinational corporations – as proposed in draft zero – is understood to be essential this international framework, and if such right could be limited or prohibited in a given country by its domestic law, then the essence of the treaty itself disappears.

No ratifications

Another risk that human rights counter-diplomacy might bring is that very few countries might ratify it. This presents a mayor risk. If one was to look as an example at the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, with only 51 ratifications to date, a B&HR treaty could end up with the same fate. One must, therefore, question if a treaty with very few ratifications would be a positive step or rather a step backwards, as one could argue that the lack of universal acceptance might restrain the ability of existing human rights bodies to further develop the area of B&HR.

On this point, for example, one could foresee an argument sustaining that – given the importance of state consent within public international law – the Committee on Economic, Social and Cultural Rights would not have the legitimacy to issue General Comments such as its No.24, as there would not be a real universal acceptance that States have specific obligations to regulate the conduct and activities of multinational corporations that negatively affect human rights.

Ensuring that sufficient states ratify a B&HR treaty is not an easy task. Overall consensus will be needed. Time will be essential. To push too soon for a treaty, where some states have not indicated a preference or even presented a slight indication on their position, could present a mayor risk for the future.

Disrupting mechanisms

A more complex, yet common counter-diplomatic tactic, is to disrupt the mechanisms that were created through human rights treaties. Treaty monitoring bodies (TMBs) – as the one draft zero is proposing – play an essential role by examining state reports, reviewing individual complaints and assessing a state’s obligation to a particular human rights treaty. However, the selection of its members and its funding are very much in the hands of states parties to the treaty, ergo, states have the ability to undermine any effectiveness of their work.

The selection process at the UN is highly political and has been criticised for taking limited account of the qualifications of the members that are being proposed to different TMBs. Such selections may be affected by vote trading, with some countries willing to negotiate the selection of certain members to undermine the independence of such bodies; seeking to select members that are less harsh with certain governments.

A clear consequence of ill selection of treaty bodies members is the tremendously vague concluding observations that they often produce, which arises from the political bias of its members, who are unwilling to provide more specific recommendations as to not publicly shame a particular country.

Draft zero, nevertheless, does not provide a clearer language that could potentially overcome some of the historical problems related to the members of the treaty monitoring bodies. The draft states that the members of its committee must have ‘recognized competence in the field of human rights, public international law or other relevant fields.’ B&HR is inherently a complex and multidisciplinary field; the treaty should reflect that the level of competency required for the members of the committee is real expertise and knowledge of this specific field. Moreover, special provisions, as to assess such qualifications should be in place, in order to ensure that real and independent experts are being selected.

On the other hand, the political reality of the UN, were member states have been unwilling to approve substantial budget increases for the human rights work of the UN, places the treaty bodies in a situation of vulnerability. States, on the basis of budgetary decisions, may seek to deteriorate the work of treaty bodies by ensuring they do not receive the necessary funding for their work. As an example, the Chairperson of the TMBs has noted in several occasions that financial and technical resources have been allocated to support the Universal Periodic Review of the Human Rights Council (a political process led by states for states), while TMBs have not seen an increase in their budget.

How will this new Committee be funded? The draft zero gives us no answer to that. And although some might think that it is somewhat precipitated to discuss this, the risk that counter-diplomatic tools could be used to underfund a B&HR Committee, or reduce the funding of other TMBs to provide for this new Committee, is something we need to address in the early stages of this draft.

Looking forward

A treaty that would link B&HR would provide a more coherent and less fragmented international law, stipulating that human rights would take part of the law that regulates businesses. A treaty could clarify the precise content of states’ duty to protect human rights by being explicit in the extraterritorial reach of this duty, in order to dissipate any confusion. It would define clear legal obligations of corporations with respect to human rights, and could address how multi-national corporations can be held accountable for their violations.

Many legal uncertainties might be resolved if there was a positive outcome, however, human rights counter-diplomacy presents a real and unavoidable threat to a successful B&HR rights treaty. Being aware of such risks is essential, and the draft zero does nothing to prevent these foreseeable risks.

The draft zero repeats many of the mistakes – or problematic issues – we have seen with the current human rights treaties. It repeats the language used by other treaties – such as CEDAW – in regards to reservations. Hence, it needs to develop a more sophisticated approach, whereas a clear mechanism to object incompatible reservations is in place, or, whereas the Committee is provided with the authority to determine incompatibilities.

The risk of non-compliance is ultimately unavoidable with the current draft zero. Thus, it is essential that the treaty contains clear provisions that require state parties to incorporate into domestic law the set of rights and obligations enshrined in the instrument. It is also essential that its Committee is given sufficient teeth to be able to ensure that non-complying states are held accountable.

Civil society, academia and those states that champion human rights must be ready to use their knowledge and skills to make sure that a treaty on B&HR rights is less vulnerable to counter-diplomatic tactics; in particular, if we want the treaty to have a real and meaningful impact in the way international law currently regulates the adverse effects that multinational corporations have in the enjoyment of human rights.

[Maitreyi Gupta is an International Legal Adviser for the International Commission of Jurists, Based in India.]

The Supreme Court of India will soon deliver its judgment in a historic case — Navtej Singh Johar et al v. Union of India and others — on the criminalization of consensual same sex relations in the country.

Branded outlaws by the law, lesbian, gay, bisexual and transgender (LGBT) persons have been at the forefront of the struggle for full equality, demanding recognition of their human rights, in light of India’s Constitutional and international human rights law.

The Supreme Court’s decision will be a watershed in the jurisprudential recognition that LGBT persons’ rights are human rights.

During hearings that concluded on 17 July 2018, Senior Advocate Mukul Rohatgi underscored how Navtej Singh Johar and other LGBT petitioners in the case “are not only seeking protection as sexual minorities, but recognition of characteristics that inhere to all human beings”.

Advocate Menaka Guruswamy further argued that, “these people deserve to be protected by their court, their Constitution, and their country”, and said, Section 377 “is not about sex but about love and it must be constitutionally recognized.”

Together with 73 other countries India criminalizes consensual same-sex relations by making “carnal intercourse against the order of nature” illegal under Section 377 of the Indian Penal Code, a provision that is a relic of India’s British colonial past. In practice, it makes illegal all non-normative sexuality, branding LGBT people outlaws, and denying a fundamental characteristic of their identity.

While criminal convictions under Section 377 are rare, its existence facilitates extortion, harassment and blackmail of LGBT persons by the police, as well as by their families and communities.

Other vague and overly broad provisions criminalizing, among others, public nuisance, sex work and beggary are also similarly used to harass and persecute LGBT people in the country.

For instance, in 2016, F, a transgender man and activist, arrested while assisting transgender sex workers, told the ICJ,

“[The police] took me to the police station and beat me with a stick….I spent that night in the [police] station. The police took my phone. My lawyers couldn’t get through and the police did not allow me to inform my family about the arrest. I wasn’t given any food or water”.

F was charged in 2009 with committing a “public nuisance”; however, three years later, without any explanation, the case against him was dismissed.

The legal struggle to decriminalize same-sex relations in India started in 1991.

It has seen many setbacks, most notably the Indian Supreme Court’s 2013 decision dismissing the LGBT community a “minuscule fraction of the country’s population’, and upholding the validity of Section 377.

In response, several renowned Indian LGBT individuals came forward for the first time in 2016 to file petitions demanding both decriminalization and recognition of their non-negotiable and inalienable rights to dignity, equality, liberty, and non-discrimination.

The petitioners have urged the Supreme Court to repeal Section 377 insofar as it applies to consensual same sex relations, but more notably they have also pleaded for a recognition of their right to intimacy as integral to their right to life, as well as a recognition of their rights to express their sexual orientation; to form associations; and to non-discrimination in housing, education and employment, among others.

Parents of LGBT persons, mental health professionals and teachers, who also petitioned the Supreme Court, have further asserted that Section 377 violates the constitutional right to fraternity, that is, ‘respect for the dignity of another’.

They have invoked B. R. Ambedkar, the father of the Indian Constitution, to draw comparisons between the discrimination Ambedkar faced as a Dalit and the discriminations faced by LGBT persons in present day India.

With this case India’s Supreme Court may well make history: by decriminalizing consensual same-sex relations and recognizing the full range of LGBT persons’ human rights.

It bodes well, judging by some of the statements made by some of the judges on the nine-judge bench hearing the case: “Section 377 is not about a sexual act, but is about the lives of the LGBT persons”, and “the law should not enable social opprobrium”.

A watershed decision is required by and would be consistent with India’s international human rights law obligations.

For instance, India and other States criminalizing consensual same-sex relations have been urged by the United Nations Human Right Committee to “guarantee equal rights to all individuals… regardless of their sexual orientation”.

The Indian Supreme Court’s judgment is also crucial because the direction it takes has transnational importance as other countries, especially former British colonies, will be looking to it as they hear similar legal challenges.

By merely decriminalizing, India would follow in the recent footsteps of, among others, Trinidad and Tobago, Seychelles, Nauru and Mozambique.

But by coupling decriminalization with the recognition of the full range of LGBT persons’ human rights, India would set its own precedent, one for others to follow.

The International Justice and Human Rights Clinic at the Peter A. Allard School of Law, University of British Columbia (“Allard IJHR Clinic”) is seeking a full-time junior supervising attorney to work with the Clinic Director and law student clinicians from Sept 1, 2018 to July 31, 2019, with possible extension. 

The Allard IJHR Clinic works on pressing human rights and global justice concerns through hands-on work on international cases and projects. Students gain experience applying international human rights law, international criminal law and/or international humanitarian law working on specific cases with a range of international justice organizations, including international criminal courts and tribunals, United Nations human rights bodies, and non-governmental organizations.  The Clinic also produces its own human rights reports. 

Applications due August 31, 2018, preferably sooner. For more information, please see the full posting here.

[Briony Potts is a Legal Adviser at the International Commission of Jurists]

Sajid Javid, UK Home secretary, has undertaken an extraordinary move that suggests an unprecedented shift in the UK’s previously held position of an absolute stance against the death penalty.

Alexanda Kotey and El Shafee Elsheikh were the last two men of a group known as “the Beatles”, so nicknamed because of their British accents, who are accused of having tortured and murdered approximately two dozen hostages in Syria. Allegations include involvement in beheadings of American journalists James Foley and Steven Sotloff and British aid workers David Haines and Alan Henning, which were filmed and distributed as Isis propaganda.

The men, formerly British citizens, were apprehended in Syria earlier this year and in which jurisdiction they should face trial has been a matter of serious debate. The US have been pushing for home countries of foreign fighters to be returned to their States for trial but the UK has consistently refused to take responsibility for these two and in February stripped them of their UK citizenship, leaving Kotey stateless and Elsheikh with Sudanese nationality, effectively abdicating responsibility for the pair.

In a letter to US Attorney General Jeff Sessions, Javid wrote that he would not demand a “death penalty” assurance in the specific case of Kotey and Elsheikh, although added that the UK’s stance on the global abolition of the death penalty has not changed.

This stance was most recently set out in a 2011 strategy paper for the abolition of the death penalty that was recommitted to in 2015. The paper states “It is the longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle because we consider its use undermines human dignity, that there is no conclusive evidence of its deterrent value, and that any miscarriage of justice leading to its imposition is irreversible and irreparable.”

The UK abolished the death penalty for murder in 1965 via the Murder (Abolition of Death Penalty) Act 1965. Although four capital offences remained until the death penalty was completely abolished in the UK by the 1998 Human Rights and Crime and Disorder Acts, the last time anyone was sentenced to death in the UK was in 1964.

Article 6 of the International Covenant of Civil and Political Rights (ICCPR) protects the right to life. The UK is a party to the Covenant and its Second Optional Protocol, which requires States to take all necessary measures to abolish the death penalty in their jurisdiction. The UK is also party to the European Convention on Human Rights (ECHR) and its 13th Protocol, ratified by nearly all Council of Europe States, which requires States parties to abolish the death penalty in all circumstances without derogation or exception.

The application of the death penalty of course engages both the right to life and freedom from cruel, inhuman or degrading punishment. When it comes to extradition of persons from a State’s jurisdiction to another State where they may face the death penalty the legal responsibility of the UK is very clear, and has been so since at least the 1989 landmark judgment by the European Court of Human Rights in Soering v the United Kingdom. Soering set out the ‘death row phenomenon’, the extreme psychological stress and trauma from potentially years of waiting for execution, and the Court’s judgment determined that the extradition of nationals of States that were party to the ECHR to face the death penalty would constitute a violation of article 3 (prohibiting torture and inhuman or degrading treatment of punishment). Since that time, European States have generally only voluntarily transferred people to death penalty retentionist States upon assurance from those States that the death penalty will not be applied.

Article 2 of the ECHR also protects the rights to life and Article 1 of the 6^th Protocol led to the development of clear jurisprudence from the European Court of Human Rights that a State’s responsibility to protect life prohibits extradition to a State where an individual is at risk of the death penalty (Al Nashiri v Poland and F. G. v Sweden).

The Human Rights Committee has also been clear that in respect of Article 6 of the ICCPR, an abolitionist State cannot extradite a person to face criminal charges that carry the death penalty without credible and effective assurances that the death penalty will not be imposed. (Communication No. 829/1998 Judge v Canada, and Communication No. 1442/2005, Yin Fong v Australia). The Committee would go further in its working interpretation under ICCPR’s Article 6, as can be found in the Human Rights Committee’s Draft General Comment No.36 presently under discussion, according to which, in para. 38, irrespective of assurances, “States parties that abolished the death penalty cannot deport or extradite persons to a country in which they are facing criminal charges that carry the death penalty.”

However, Kotey and Elsheikh are not subject to this specific protection because as they were captured in Syria by US-backed forces they are not being extradited from the UK nor from the authority of the UK in Syria, which would come under the State’s (extra-territorial) jurisdiction and engage the UK’s obligations under the ECHR (Sanchez Ramirez v France, Al-Saadoon and Mufdhi v the United Kingdom, and Al-Skeini and Others v the United Kingdom).

The UK’s strategy for the abolition of the death penalty lists the US as among its top five priority countries on which to focus advocacy. However, the UK has also been very clear that it does not want foreign fighters for terrorist groups to be returned to the UK. One way the UK has been striving to achieve this is by the deliberate counter-terrorism policy of stripping citizenship from suspected terrorists.

Article 15 (1) of the Universal Declaration of Human Rights (UDHR) states that “(e)veryone has the right to a nationality.” However, as 15 (2) sets out the ability to deprive a person of their nationality is possible, provided this is not done arbitrarily. The UN General Assembly has affirmed that the prohibition of arbitrary deprivation of nationality is a “fundamental principle of international law.”

The UK is a State Party to the 1961 Convention on the Reduction of Statelessness. Article 8 prohibits the deprivation of nationality if it leaves an individual stateless but allows an exception under Article 8(3)(a)(ii) where an individual “has conducted himself in a manner seriously prejudicial to the vital interests of the state.”

The 1997 European Convention on Nationality Article 7(3) says that a State Party cannot deprive an individual of nationality where the result would be to leave that individual stateless, the only exception allowed to this is where nationality has been obtained fraudulently. However, the UK is not a Party to this Convention.

The right to a nationality is not included in the European Convention on Human Rights, but claims have been brought that the removal of citizenship amounts to a violation of Article 8 (right to respect for private and family life).

However, the recent case of K2 v. the United Kingdom concerning the deprivation of citizenship or a suspected terrorist, was ruled inadmissible by the European Court of Human Rights. Although the Court acknowledged that arbitrary removal of citizenship could impact on rights under Article 8, in this case removal of citizenship was deemed not to have been arbitrary.

The powers of the Home Office to remove citizenship are contained within s40 of the British Nationality Act 1981 but were not widely used by the Home Office until 2014, when the issue of foreign fighters returning from Syria became a more widespread problem. In 2014, the powers of the Home Secretary were extended to enable deprivation of naturalized citizenship even where that individual does not have dual nationality, provided the Secretary of State is satisfied that deprivation is conducive to the public good, thereby enabling the UK to render individuals stateless. The amendment was made after the European Court ruled the UK could not deprive an individual of citizenship if it left them stateless (Al-Jedda v the United Kingdom).

The judgement in K2 may have had the effect of encouraging the UK Home Office to more aggressively pursue its tactic of removing citizenship from suspected terrorists.

Although both Kotey and Elsheikh have a stronger claim to family life in the UK than K2, as both have family in the State, Elsheik’s circumstances are not so dissimilar from K2’s, as he already has Sudanese nationality. Kotey’s circumstances would make a challenge to the stripping of his UK nationality more interesting as this has left him stateless and the Court has yet to squarely address this.

The case of Kotey and Elsheikh is particularly sensitive, and there is no doubt that the men should face trial for their alleged crimes and, if found guilty, sentenced accordingly, but the suggestion in Home Secretary Javid’s letter that justice cannot be achieved without agreeing not to pursue assurances against the death penalty is not only erroneous but entirely disturbing.

The Home Office cannot contend it is committed to the abolition of the death penalty as a matter of principle but suggest that in particularly unappealing cases this principle can be set aside. The UDHR, ICCPR and ECHR, in addition to national legislation, have all put a high value on human life and provisions are in place to ensure life is protected and not something to be disposed of lightly. These human rights protections must apply to all humans, particularly to the most unsympathetic, for rule of law to be effective and for the protection of the human rights of everyone.

The UK’s strategy paper for the abolition of the death penalty notes that for priority country the USA: “We [the UK] are aiming for a reduction in numbers of executions of British nationals…” Removing nationality of those potentially facing death row is a way of manipulating statistics but is clearly against the UK’s alleged principle of opposing the death penalty.

Legally the implications of the UK’s assisting the US in prosecution of two former UK citizens suspected of terrorism, without seeking assurances against the death penalty, have yet to be determined.

However, the UK’s own strategy as set out in the 2011 paper could not be clearer: “In countries where the assistance we [the UK] offer could lead to the death penalty, the assistance we [the UK] may be able to offer will be limited.” This principle is not limited to British Nationals and cannot therefore be simply circumnavigated by removing citizenship without seriously undermining UK efforts to abolish the death penalty.

The UK claims it has acted in full accordance with the law but has agreed to temporarily halt cooperation with the US following the launch of a legal challenge for judicial review that has been submitted by Elsheikh’s mother. The call for judicial review is not about the evidence against Kotey and Elsheikh but whether the Home Secretary’s decision to share information that may lead to their convictions, without seeking assurances against the death penalty, is lawful. The Home Office has agreed it will not co-operate with the US in sharing information about Kotey and Elsheikh until a judge has had a chance to consider the application, the outcome of which may force a further suspension of UK cooperation with the US in this case.

[Greg Fox is Professor of Law and Director of the Program for International Legal Studies, Wayne State University Law School.  He thanks Ashley Deeks and Brad Roth for their comments.]

Among the many confusing reports coming out of the Helsinki Summit on July 16 is the news that Presidents Trump and Putin reached a series of “agreements.”   Whatever these agreements may be, if indeed they exist at all, their defining aspect so far seems to be been their complete and total secrecy.  The two leaders made no announcement of any agreements in their now-infamous joint news conference.  The President seems to have kept even his closest advisers in the dark.  The Director of National Intelligence appeared not to know whether or what agreements were reached.  The Washington Post reported that “officials at the most senior levels across the U.S. military, scrambling since Monday to determine what Trump may have agreed to on national security issues in Helsinki, had little to no information Wednesday.”  As the New Yorker reported on July 19, “days after the Helsinki summit, Trump’s advisers have offered no information—literally zero—about any such agreements.”

President Trump hinted at possible subjects covered by the reported agreements when he tweeted a list of issues discussed with Putin: “terrorism, security for Israel, nuclear proliferation, cyber attacks, trade, Ukraine, Middle East peace, North Korea and more.”  On July 19, Steven Pifer of Brookings summarized the public official statements about agreements to date, all of which have come from Russian sources:

On Tuesday, the spokesperson for the Russian Ministry of Defense said “The Russian Defense Ministry is ready for practical implementation of the agreements in the sphere of international security.” On Wednesday, Russian Ambassador to the United States Anatoly Antonov said Helsinki produced “important verbal agreements.”

Today, Putin told Russian diplomats that his meeting with Trump was “successful overall and led to useful agreements.”

While it is quite common for international agreements to be negotiated in private, keeping the agreements themselves from public view is decidedly uncommon.  Indeed, international law in the Twentieth Century worked diligently to discourage secret agreements among nations, following on President Woodrow Wilson’s admonition in his Fourteen Points speech that treaties should be “open covenants of peace, openly arrived at.”  The League of Nations Covenant took an extraordinarily aggressive approach, declaring in Article 18 that treaties between member states would not become binding until registered with the League Secretariat.  The UN Charter also required states to register treaties with the Secretary-General but rather than deeming them invalid until registered, provided in Article 102 that unregistered treaties could not be invoked before any organ of the United Nations.  The most important of these organs was obviously the International Court of Justice.  Article 81 of the Vienna Convention on the Law of Treaties instructs that “treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication.”

In the United States, “treaties” must be given advice and consent by 2/3 of the Senate and so must obviously be made public during their approval process.  Congressional-Executive Agreements also become public via their approval by both houses of Congress.  But sole executive agreements, which involve neither house of Congress, might in theory only be seen by the Executive Branch officials who conclude them.

American history is replete with secret Executive Agreements, two prominent examples being the Yalta Agreement in 1945 and the settlement of the Cuban Missile Crisis in 1962.  But in 1970, after a Congressional investigation uncovered a number of secret basing agreements undertaken during the Vietnam War, Senator Clifford Case introduced legislation to require the Executive Branch to transmit all executive agreements to the Congress.  This bill was eventually enacted in 1972 as the Case-Zablocki Act (codified at 1 USC §112b).  Its central provision requires transmission of executive agreements to the Congress within 60 days of their entry into force for the United States:

The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter.

There is one statutory exception.  For an agreement “the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States” transmittal occurs not to the full Congress but to the House and Senate Foreign Relations Committees only.

What constitutes an “international agreement” for purposes of the Case Act?  The statute itself is clear that both oral and written agreements are included.  The Code of Federal Regulations (22 CFR §181) lists a series of factors, each of which must be met in order for an agreement to qualify:

1. The parties must be states, the domestic agencies of a state, or an international organization and must intend to be legally bound by the agreement;

2. The agreement must be significant, a determination based, in part, on application of four additional elements, namely, that the agreement: have political significance, involve substantial grants of funds or credits, constitute a substantial commitment of funds extending beyond a fiscal year, and involve continuing and/or substantial cooperation in the conduct of a program or activity;

3. The agreement must be specific enough in the undertaking required of the parties as to be legally enforceable;

4. There must be at least two parties;

5. The agreement normally follows the customary form for international agreements.

[This summary of much lengthier language in the CFR is via the Congressional Research Service.]

Assuming Trump and Putin reached some sort of agreements in Helsinki, would they qualify for transmission under the Case Act?  That they were almost certainly oral would not be a disqualification.  Two of the CFR criteria would likely be met: the parties would be states (#1) and there would be at least two parties (#4).  Requirement #2 that the agreements be “significant” could possibly be met.  The regulations disqualify only “minor or trivial” agreements [22 CFR 181.2(a)(2)]. President Trump’s tweets and reporting surrounding the summit do not suggest that minor issues were discussed.  But it remains unclear whether there were any commitments or grants of funds, an important criterion for “significance” under 22 CFR 181.2(a)(2).

Whether the other criteria are met is unclear.  We have no information about elements 3 and 5 concerning the agreements’ specificity and form.  Perhaps most importantly, we don’t know whether Trump and Putin intended “to be legally bound” by the agreements (#1).  The Executive Branch concludes many purely political undertakings, the much-controverted Iran JCPOA being a recent example.  These political commitments are explicitly exempted from the Case Act (see 22 CFR §181.2(a) (“documents intended to have political or moral weight, but not intended to be legally binding, are not international agreements”).  The distinction between political and legally-binding agreements turns primarily on the parties’ intent.  President Putin, quoted above, said the two presidents had reached “agreements”, but it is unclear whether he was using the term colloquially or in a legal sense.

So we appear to be in a Catch-22.  In the interest of avoiding Executive Agreements about which Congress is unaware, the Case-Zablocki Act requires the transmission of all non-treaty “international agreements.”  But President Trump has been so secretive about the nature of his discussions in Helsinki that we – and presumably the Congress as well – lack enough information to know whether the two sides concluded any “international agreements” at the summit that might trigger those reporting requirements. Executive Branch secrecy, in other words, has thwarted use of a statute designed to thwart Executive Branch secrecy.

One might respond that Congress always finds itself in this position when the Executive Branch fails to act in good faith and transmit agreements meeting Case Act criteria.  Congress simply doesn’t know what it doesn’t know.  What is different in this case is that the normal Executive Branch mechanisms designed to ensure compliance in good faith have been stymied by the President’s evident refusal to share details of the Helsinki summit with even his closest advisers.  For example, the Case Act regulations provide that “[w]hether any undertaking, document, or set of documents constitutes or would constitute an international agreement within the meaning of the Act . . .  shall be determined by the Legal Adviser of the Department of State, a Deputy Legal Adviser, or in most cases the Assistant Legal Adviser for Treaty Affairs.” [22 CFR §181.3(a)].   But if the Secretary of State himself has not been briefed on the Helsinki discussions, this ordinary legal review cannot take place.  Of course, such self-policing by the Executive may fail for a whole variety of reasons in normal situations, including a willful refusal to comply.  But this case is so glaringly abnormal that the Case Act mechanisms cannot hope to function as intended.

A separate and somewhat technical question is when the Administration would be required to transmit any agreements.  The 60 day transmission window under the Case Act is triggered by an agreement’s entry into force for the United States. Assuming any Helsinki agreements were oral and did not speak to entry into force, one could look to the default rule in Article 24(2) of the Vienna Convention on the Law of Treaties, which provides that agreements lacking entry into force provisions will do so “as soon as consent to be bound by the treaty has been established for all the negotiating States.”  For any Helsinki agreements this could well mean immediately, though we obviously lack any information.  And the Vienna Convention rule would not be binding as such, since the Convention applies only to written agreements (Article 2(1)(a)).

In my view, despite this legal limbo, it is still quite important that Congress demand transmission of any and all agreements reached in Helsinki.  First, such a request should be much less controversial and risky than the current suggestion of compelling President Trump’s Russian interpreter to testify before Congress.  Second, and more importantly, Congress simply cannot engage in any meaningful oversight of US-Russian relations in general and the areas covered by the agreements in particular unless it knows what those agreements are. As the Congressional Research Service notes, “The primary tools available to Congress for its oversight of international agreements, especially international agreements other than treaties, start with the Case-Zablocki Act” [p. 209].  The Senate Report accompanying the Case Act declared, “if Congress is to meet its responsibilities in the formulation of foreign policy, no information is more crucial than the fact and content of agreements with foreign nations.” [S. Rept. No. 92-591, Transmittal of Executive Agreements to Congress, 92d Cong., 2d Sess. (Jan. 19, 1972)]. As with all areas of legislative oversight, the idea underlying the Case Act is that the quality of US international agreements will be improved through an open and fully-informed public discussion. As Senator Case put it in hearings on his bill:

The most important purpose of this legislation is to make the American people aware of what our international relationships are on a continuing basis, for two reasons. First, so that the public, where those arrangements are sound and the direction of policy is wise, can support it . . . . Second, so that the administration from time to time is checked in its efforts to do things that are unwise by the force of public opinion on a continuing basis [quoted in Ashley S. Deeks, A (Qualified) Defense of Secret Agreements, 49 Ariz. State L. J. 713, 775 n.273 (2017)]

Third, any answer the Congress receives to its request will be helpful in fulfilling that oversight function.  If the Administration answers that no agreements of any kind were reached or that the agreements it reached were only political commitments, Congress will know that US legal obligations toward Russia have not been altered.  If the Administration answers that the agreements were insignificant – perhaps only agreements to agree or to initiate discussions – then Congress can plan for ways to participate in or influence those future initiatives.  And if the Administration answers that publication of the agreements would harm the national security and transmission can only be made to the two Foreign Relations Committees, it will empower those committees to demand the text of the agreements and to hold hearings.

As Senator Case stated:

“even in the case of agreements which were classified, it would be possible for the appropriate committees to consider whether the President’s decision was sound.” [Deeks, supra, at n. 273]

There is no provision in the Case-Zablocki Act for Congress to compel transmission of agreements when the Executive Branch refuses to do so.   But Congress cannot begin to think creatively about enforcing its entitlement to see agreements unless it asks for them in the first place.

[Carlos Lopez is a Senior Legal Advisor at the International Commission of Jurists.]

(This is Part II of the blog on the recently released zero draft of a legally binding instrument on Transnational Corporations and human rights. The first part can be found here.)

Prevention

The draft treaty takes a somewhat sweeping approach to the issue of preventative measures to be required by States from business enterprises (article 9). What States are asked to require from businesses is framed as a sort of (human rights) due diligence that significantly departs from what is generally known as such. As it is, those requirements maybe better seen as “responsible business” measures than only human rights due diligence.

As formulated in the United Nations Guiding Principles on Business and Human Rights, human rights due diligence is a four-step process whereby business enterprises should identify, prevent, mitigate and account for how they address their adverse human rights impacts. The draft treaty splits some of those steps into two steps and adds “meaningful consultation” with affected groups, the requirement of financial security to cover potential compensation claims, and the incorporation of some measures into businesses’ transnational contracts. Failure to comply with such due diligence measures would entail legal liability under domestic law for the concerned company. The draft makes a positive point by providing for “effective national procedures” to “enforce compliance” – something that is always week everywhere- although both businesses and governments will find hard to comply or monitor compliance respectively with such far reaching and imperfectly defined obligations of due diligence.

Given that preventative measures are usually regarded by States as important and preferable to the need to provide remedies after the fact, and that substantial sectors of organized civil society are advocating for mandatory business human rights due diligence, it is foreseeable that this section of the draft treaty will attract special attention and support. For those reasons, this section is likely to remain in a final draft, though likely in a revised form.

Legal liability and access to remedy

The core of the draft treaty is perhaps its provisions on legal liability for transnational corporations and the rights of victims to remedy and reparation. Although it is not strictly needed, draft Article 8 starts with a restatement of the rights of victims to access to justice and remedies. However, how the various forms of reparation (restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition) -originally from the law of State responsibility- relate to companies, to States or to both may need to be explained somehow and somewhere. In addition, references to “environmental remediation” and “ecological restoration” are also in need of clarification if they are different from other generally accepted forms of reparation.

Among some of the rights of victims spelled out in the draft convention, the sweeping provision that “in no case shall victims be required to reimburse any legal expenses of the other party to the claim” stands out as potentially controversial since it may be seen as an incentive to frivolous litigation. The draft treaty also makes provision for the establishment of a Fund for Victims but leaves its details for a later definition.

Rights of victims to justice and reparation are assorted with provisions for the legal liability of business enterprises and that is what Article 10 of the draft treaty does, focussing on civil and criminal liability. The provision requires the enactment of civil, criminal or administrative legal liability for abuses committed in the context of transnational business activity, and that liability applies to both legal and natural persons.

A key issue in the discussion of civil liability is the parent-subsidiary company relationship and the corresponding legal responsibilities in the event that harm is caused or contributed to in the context of business operations. Draft Article 10.6 makes an attempt to tackle this complex and contested issue by mandating certain parameters whereby a “person with business activities of transnational character” (presumably a business corporation) will be liable for harm caused in the context of those operations, “including” when it controls “the” operations or it has “close relation” with its subsidiary or entity in its supply chain and its own conduct is closely connected to the wrong produced, or the risk have been foreseen or should have been foreseen. The various grounds under which the liability of parent companies may be established in relation to wrongs by their subsidiaries are remarkable for their flexible definition and their alternative application, which suggests an effort to cover all possible ways in which a company may be involved in the harm caused by others. But there is a need for careful analysis to ascertain to what extent these clauses will be effective in clarifying the link between parent and subsidiary or, on the contrary, will provide an incentive for parent companies’ hands-off strategies to avoid “strong” or clear connections with other companies.

The provision is likely to be the subject of heated debates during negotiations. Many corporations remain keenly attached to the doctrine of separation of legal entities (the corporate veil) as laid down in Salomon v Salomon and Co., by the United Kingdom House of Lords in 1897 and many States and legal practitioners are reluctant to accept loosely defined theories that would do away with they perceive as a sacrosanct doctrine of separation of legal entities. It is to be hoped that the emergence of doctrines of enterprise risk liability and enterprise liability in certain developed countries would be the basis to overcome the likely stalemate on this point. In any case, this is going to be one of the treaty sections that will attract heightened attention from legal experts but also by groups and communities from around the world who often complaint that subsidiaries of large companies in the extractive sector cause damage to their livelihoods, environments and health, among others.

The provisions on criminal legal liability are similarly formulated in loose fashion. It should be said for starters that a special provision on corporate criminal liability is a step forward and should be maintained until the end, but the language needs serious work to address difficulties in precision and feasibility of objectives. The draft treaty not only calls for criminal liability for all human rights violations amounting to criminal offences under international law and “domestic law” (leaving open a large window for divergent and potentially arbitrary approaches) but also continues to limit the definition and sanction of those offences only when committed by “persons with business activities of a transnational character”. I addressed this major flaw in the first part of this blog, it suffices here to reaffirm the need to correct the definition of the scope of the treaty to avoid major disruptions to fundamental rule of law principles.

International institutional arrangements

It may be the subject of a separate blog, but here it may also be helpful to briefly address the institutional arrangements proposed in the draft treaty. The draft treaty would create a committee of experts to monitor and promote the implementation of the treaty and a conference of State Parties, but regrettably confines their functions to the traditional functions performed by existing similar bodies. The limitations in terms of effectiveness of the current international system of monitoring and supervision based on expert committees are well known. This system is already insufficient in examining State compliance with classic human rights treaties and may be even less effective in relation to business enterprises practices and policies. There is still a chance that the new treaty on business and human rights will innovate the practices, strengthen functions and enhance the effectiveness of the international system of treaty monitoring and supervision.

All things considered, it may be said that the draft treaty is a step forward. Many doubted the process would advance to the stage of having a full draft for negotiations that can only be improved. The process is in its fourth year and moving forward despite the many challenges. But treaty drafting needs considerable work to measure up to the high expectations and needs expressed by the international community and especially those people in need of justice and reparation.

[Carlos Lopez is a Senior Legal Advisor at the International Commission of Jurists.]

The first draft of one of the most important international human rights treaties of recent years, and instrument addressing on business and human rights has just been released in Geneva by Ecuador’s Ambassador acting as Chair of the process. The “zero draft” strongly focuses on the key issue of access to justice and remedy for those who allege harm by a business enterprise and it is likely to please many and displease others, but it will surely contribute to a change of tone and character of deliberations so far focussed primarily on political and procedural considerations. In this blog (in two parts) we carry out a preliminary broad analysis of the salient elements of the draft treaty.

The draft is published in the context of the establishment by the United Nations Human Rights Council in Geneva through resolution 26/9, in 2014 of an Intergovernmental Working Group created to elaborate a “legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” (a draft treaty on business and human rights). The Working Group has held three sessions, with its next session scheduled for October 2018.

At first glance the draft treaty adopts reasonable choices in some of its overarching aspects and its overall structure. The chosen model is a treaty focussed on access to remedy and justice by victims of corporate abuse and legal accountability of transnational corporations. Other options that had been proposed included a framework treaty that would basically provide for general principles, procedures and perhaps some institutional arrangements, or a treaty that would focus on creating or recognizing under international law direct human rights obligations for businesses. At the moment –in this project elaborated by the Ecuadorian Ambassador- business human rights obligations are only recognized as such in the preamble:

Underlining that all business enterprises, regardless of their size, sector, operational context, ownership and structure shall respect all human rights, including by avoiding causing or contributing to adverse human rights impacts through their own activities and addressing such impacts when they occur.

The Role of the State

Although the proposed treaty would create obligations only for States to take legislative and other measures to make business legally accountable and for victims to have access to remedy, the State role and the need of legal accountability and remedies also in the context of State commercial activity is generally overlooked. Very often, States enter into joint ventures with private investors (such as in Nigeria with Shell), or otherwise facilitate and support business operations in mining, oil and gas sectors, or provide security to the operational sites, and many of the abuses that are usually reported involve private business and State complicity. Regrettably the draft treaty pays scant attention to the role of the State and the need for accountability and remedy in that context. Further, some provisions seem to go in the opposite direction. For instance, Article 13 on consistency with international law presents astonishing wide-ranging and somewhat imprecise clauses that leave untouched existing obligations for States.

The focus on remedies and accountability for business enterprises’ abuses is commendable and reflects the desire of many of those advocating for a treaty to tackle what they consider the most pressing issues in the field of business and human rights: those that relate to the ability of society at large, and most concretely individuals and groups that are impacted by business operations, to hold businesses legally accountable for abuses that may be committed in their operations, and to provide effective access to justice and reparation to those who allege a harm. The structure, including the headings tackles head on some of those issues, among others: legal liability of corporations, victims’ rights, jurisdiction, and mutual legal assistance. However, the way the draft treaty deals with those issues is uneven, imprecise and at times obscure. In any case, having a full draft in front of our eyes undoubtedly helps in the debates and the eventual improvement of the draft.

Scope

In respect of the ratione materiae, the draft fails to provide clarity on what rights are to be covered under the treaty. The formulation in draft article 3.2 that the Convention is to apply to “all international human rights and those rights recognized under domestic law”, flies in the face of the principle of legality. “All international human rights” might have been delimited by reference to treaties or custom, or by reference on whether they are binding on the State Parties It is extremely difficult to see how a State could even go about implementing a treaty with as open ended an prescription as article 3.2.

Regarding scope of personal jurisdiction, pursuant to 3.1. the zero draft addresses only the conduct of transnational corporations and other business enterprises that have “transnational activities”. Actions or omissions by businesses acting only within domestic jurisdictions are omitted. The zero draft treaty defines “business activities of transnational character”, those for- profit activities that “take place or involve actions, persons or impact in two or more national jurisdictions”. In such way it implements a footnote that was inserted into resolution 26/9 of 2014 which limited the scope to transnational business operations to the detriment of a broader scope including all business enterprises advocated by some States and NGOs and reflected in the UN Guiding Principles on Business and Human Rights.

The limited scope adopted in the process and in the published draft has been a matter of contention since the start of the process. The scope obviously impacts on the reach and consistency of several sections and articles of a draft treaty whose focus is on the definition of grounds of legal liability for businesses (mainly civil and criminal) and access to remedy and reparation by the alleged victims of company abuse. Its disruptive effects can be seen for instance in the definition of corporate criminal offences that States Party are required to enact domestically. Under the current scope and definitions only criminal conduct (no matter its seriousness) that occurs in more than jurisdiction may be punishable, which may lead to the absurd outcome that egregious criminal conduct (for instance crimes against humanity) may not be punishable if committed by businesses acting only within one jurisdiction.

The draft could, for example, have inserted some mitigating clauses such as the one included in the UN Convention on Transnational Organized Crime (Article 34.2) with the intention to mitigate similar problems in the context of that treaty. An adapted provision would read:

The offences established in accordance with article 10.8 of this Convention shall be established in the domestic law of each State Party independently of the transnational nature of the business activity, except to the extent that the nature of the crime would require the transnational element.

The clause above may also be broadened to refer not only to corporate criminal liability but to other measures that are required from companies such as human rights due diligence (Article 9)

One thing is clear, the draft treaty, while clearly deficient here, will reassure those concerned that the operations of transnational corporations may not be properly addressed if they were to be embedded within broad and vague norms that would address “all business enterprises” without distinctively addressing the specific problems that arise in the context of transnational operations.

To be continued…

[Jennifer Trahan is a Clinical Professor at the NYU Center for Global Affairs.]

July 17, International Justice Day, not only marked the 20^th anniversary of the Rome Statute of the International Criminal Court (“ICC”), but also activation of the ICC’s fourth crime, the crime of aggression. These milestones were celebrated by an event at the UN entitled “20^th anniversary of the Rome Statute: the need for universality and the International Criminal Court’s jurisdiction over the crime of aggression,” as well as events in The Hague and Rome.

At the UN event, many States Parties expressed support for the activation of the crime of aggression, with reservations expressed by the UK and France. Non-States Parties—who might also have expressed reservations—did not appear to attend the event. (There were also many calls for working towards universal ratification of the Rome Statute, and other support for the work of the Court, as well as calls for assessment of “lessons learned.”)

States Parties generally hailed activation of the ICC crime of aggression’s jurisdiction as significant for: (1) completing the crimes originally envisioned under the Rome Statute; (2) furthering the legacy of the International Military Tribunal at Nuremberg which prosecuted “crimes against peace” and deemed the crime of aggression as “the Supreme crime”; (3) essentially reinforcing the core norm against aggressive use of force found in article 2(4) of the UN Charter; and (4) supporting international peace and security.

Benjamin Ferencz, who prosecuted the Einsatzgruppen case at Nuremberg, was in attendance at the July 17 UN event and for the screening of a film on July 16 about his life and legacy, entitled “Prosecuting Evil.” Ferencz closed the July 17 UN event by noting what had been accomplished but berating states that they are doing far too little to combat aggressive war, which poses a global threat to mankind.

Some States Parties welcomed that the Security Council will now be able to refer four crimes to the ICC, including the crime of aggression, while others noted that the permanent members of the Security Council far too often utilize their veto power even in the face of atrocity crimes and that “veto restraint” should also be exercised when the issue of referral to the ICC arises.

How much deterrence will there be?

Given the celebratory mood of the UN event, States Parties did not mentioned the significant limitations on the ICC’s crime of aggression jurisdiction that exist, at least under the text of the activating resolution from last December’s Assembly of States Parties meeting. These limitations pertain to situations initiated by State Party referral or the Prosecutor’s own initiation (under Rome Statute article 15bis). Because of these restrictions, if they are effective (see my article questioning their effectiveness), there is far less jurisdiction that the ICC has over the crime of aggression than it has over the crimes of genocide, crimes against humanity, and war crimes. This then would seem to diminish any potential for deterrence as well, at least under article 15bis. (These jurisdictional limitations did not all occur at the last ASP; for example, non-States Parties were completely excluded from ICC crime of aggression jurisdiction already at the 2010 Kampala Review Conference under article 15bis, para. 5.)

As to the deterrence potential created by the ability of the Security Council to make referrals including the crime of aggression, this could be potentially significant. No state will know for certain that it won’t be referred, except of course the permanent members of the Security Council and their close allies, who can be “protected” from referral by the veto power of the Permanent Members. (I put “protected” in quotes, because it is also possible that the people of the state at issue might in fact want their leader tried, for instance, for launching an irresponsible and/or illegal war; thus, it is only “protection” from a certain vantage point.) The fact that referral (and deferral) will not function apolitically before the Council was an important reason why many States Parties pressed hard over the years for another way for crime of aggression cases to be able to start, other than through Security Council referral under article 15ter. This now exists, under article 15bis, but with seemingly significant jurisdictional limitations.

Thus, activation is a step forward for the rule of law, but an imperfect step forward, due to all the jurisdictional carve-outs. One way to minimize the impact of such carve-outs is for more States Parties to ratify the crime of aggression amendment, thereby expanding jurisdiction under article 15bis; another way is for non-States Parties to newly ratify the Rome Statute as amended; yet another way is for States Parties (or even non-States Parties) to implement crime of aggression legislation into their domestic criminal codes, where it need not have any jurisdictional carve-outs and could potentially create additional deterrence.

While it is notoriously difficult to prove that deterrence works, an additionally factor regarding crime of aggression is that it is a “leadership crime.” That is, the crime only encompasses “a person in a position effectively to exercise control over or to direct the political or military action of a State” per article 8bis, para 1. Thus, should such leaders take note of the ICC’s crime of aggression jurisdiction activating? Indeed, they should.

Future challenges for the ICC to prepare to address this crime

Activation of the crime also poses challenges for the ICC to prove itself a responsible institution, capable of addressing the crime of aggression in an impartial, fair, and responsible manner.

To begin with, the ASP should start to consider knowledge of jus ad bellum law when evaluating candidates to serve as ICC judges, as jus ad bellum law is a different area of law than the law related to genocide, crimes against humanity, and war crimes.

The OTP will also have to consider what new policy guidelines need to be developed regarding the 4^th crime. For instance, “gravity” as to the crime of aggression is not necessarily the same as “gravity” vis-à-vis the other crimes, and may well require a new policy paper. (For example, de minimis instances of aggression are intended to be excluded from the crime, namely, under article 8bis para. 1, acts of aggression that are not “manifest” UN Charter violations by their “character, gravity, and scale”—but gravity here refers to gravity of the act of aggression (e.g., that an aberrant missile strike caused by a map error should be excluded). This is a new type of gravity evaluation.) Now that the Security Council can make referrals encompassing the crime of aggression, it is time for the ICC to grapple with its 4^th crime.

A significant new tool for Security Council in advancing international peace and security

Under the UN Charter, the first purpose and principle of the UN listed is to “maintain international peace and security” (article 1.1), and the Security Council has “primary responsibility” for that task (article 24.1). Despite widespread disenchantment with the Security Council’s performance in this respect, activation of the ICC’s crime of aggression jurisdiction provides it a significant new tool. It could use this in at least two ways: (1) by utilizing its referral powers (and minimizing its deferral powers) with the goal of both increasing deterrence and ensuring appropriate situations may be prosecuted; and (2) in an early warning capacity, to try to stave off potential acts of aggression before they launch, by indicating it is watching a state’s actions.

             The Security Council’s role in referrals and deferrals

Will the Security Council make referrals covering the crime of aggression? It no doubt depends on what acts of aggression are committed in the future and by whom. It will also depend whether the members of the Council (particularly the permanent members who wield veto power) support making such referrals, which is unknown. If permanent members categorically state opposition to such referrals (which could be the case, or could be the case for at least some permanent members) that would unfortunately start to unwind the significantly large deterrence potential they might otherwise be able to exercise. Conversely, a heavy-hand at deferring situations involving the crime of aggression (as the Council will also be able to exercise Rome Statute article 16 deferral powers) could also start to unwind any such deterrence potential.

           The Security Council’s potential role as to early warning

The Security Council could also play something of an early warning function regarding the crime of aggression. As to the other crimes, the Prosecutor has sometimes indicated she is watching a situation, in an effort to try to deter crimes (e.g., letting it be known that she is watching elections, in an effort to deter post-election violence). As to the crime of aggression, however, there will be fewer situations over which the ICC Prosecutor will have jurisdiction, and she will be less able to play this role. It is here that the Security Council could play such a deterrent function. Imagine a troop buildup is detected on the border of one country, suggesting forces could be poised to enter, or launch force into, a neighboring state; the Security Council could indicate that it is closely watching such a situation, sending a reminder to the state in question of the Council’s referral powers. This would seem to provide significant potential for deterrence. (The more States Parties ratify the crime of aggression amendment, there more jurisdiction will exist under article 15bis, which would increase the numbers of situations where the Prosecutor could play such a role.

Conclusion

Activation of the ICC’s 4^th crime is very significant. Activation is no doubt an advance for international criminal law, but the challenge will be to ensure that it is also an advance for international peace and security. Tasks ahead include: (1) for the ICC to demonstrate itself capable of impartially, fairly. and responsibly adjudicating this crime; (2) for the Security Council to refer situations involving aggression to the ICC (and not exercise its deferral powers), so that the Security Council’s ability to refer may create deterrence, potentially worldwide, and to ensure that appropriate situations are referred; and (3) for States Parties that have not yet ratified the crime of aggression amendment to do so, and thereby increase ICC jurisdiction under article 15bis, which, in turn, could also increase deterrence. The author stresses the importance of deterrence because activation of the 4^th crime is not designed to generate ICC cases; in a perfect world, there will be no ICC crime of aggression cases to prosecute because deterrence has worked.

Thus, while the decades of drafting work and negotiations are now finished, there is much remaining work to be accomplished regarding the ICC’s 4^th crime. The path forward—resuming the long-dormant legacy of the Nuremberg Tribunal—is just beginning.

[Ricardo Arredondo is Professor of Public International Law at the University of Buenos Aires.]

[Ed. note: the final paragraph of the post has been revised from the original version.]

At a time when the repercussions of the expulsions of diplomats generated by the poisoning of a former Russian spy Sergei Skripal and her daughter Yulia have not yet been hushed, the Greek government has decided to expel two Russian diplomats and prevent the return of two others, whom they accuse of interfering in its internal affairs and committing illegal acts against Greek national security.

The government of Alexis Tsipras, who differed from other members of the European Union and NATO by refusing to expel Russian diplomats as a result of the Skripal case, made it clear that these expulsions are not related to bilateral relations between the two countries but rather to specific actions: attempts by Russian officials to expand Russian influence in Greece, mainly within the Greek Orthodox Church, in addition to the attempt to obtain and circulate information and to bribe Greek officials, all of which have failed. It has also been pointed out that Russia would have been involved in protests against the agreement reached between Greece and Macedonia regarding the name of the former Yugoslav Republic.

This conduct is expressly prohibited generally by international law (e.g. UNGA Res. 36/103. Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States) and specifically by the Vienna Conventions on Diplomatic Relations (VCDR, article 41.1) and on Consular Relations (VCCR, article 55.1). These rules are derived from the principle of sovereignty. Encouraging the instability of a government, interfering in its internal politics, criticizing the government, contributing to the deterioration of the relations between the receiving State and third States, inter alia, are activities that imply interference in the internal affairs of the receiving State, a conduct from which a foreign diplomat should abstain. This not only generates tensions between the sending and receiving States but also may lead to the person involved in such acts being declared non grata and expelled from the country. This is precisely what happened in this case.

Greece made use of the rule established in Article 9 VCDR affirming, through the government spokesman, Dimitris Tzanakopoulos, that the Greek Government cannot tolerate conduct that violates international law and that does not show respect to the Greek State. They consider that there has been such a conduct and for that precise reason all the necessary measures will be taken.

The declaration of persona non grata has been used countless times in response to personal conduct of diplomats, ranging from merchandise smuggling, drug trafficking, sexual abuse to traffic violations. Therefore, Greece has warned that any response in retaliation by Moscow will only contribute to deteriorate their bilateral relations, since no Greek diplomat or consul in Russia has acted outside the strict parameters of its mission.

Despite this, the Russian Ministry of Foreign Affairs has already announced that it will respond symmetrically to the decision of the Greek authorities, which is a common practice in similar cases. Russia affirms that the US is behind the incident and has summoned the Greek representative to Moscow to protest Athens’ expulsions.

The declaration of persona non grata is generally related to the personal conduct of diplomats, although this is not always the case. Given the lack of a system of secondary norms in the Vienna Conventions, host States sometimes use symbolic gestures to express their disapproval of sending States behavior such as recalling their representatives, issuing a protest, or summoning the head of mission, inter alia. However, as Alison Macdonald QC observed when the Skripal case came out, targeting foreign representatives who are not accused of being involved in an incident, taken as a reprisal between States, is “little more than a symbolic gesture” and simply contributes to worsening diplomatic and consular relations between those States.

On Monday, the OTP filed a motion in the Bemba Witness Tampering Case entitled “Detailed Notice of Additional Sentencing Submissions.” The OTP argues that, in determining the appropriate sentence for Bemba, Kilolo, and Mangenda, Trial Chamber VII should take into account the fact that the witness tampering by Bemba and his co-defendants led the Appeals Chamber to wrongly acquit Bemba in the Main Case. Here are the paragraphs that summarise the OTP’s argument:

3. To obtain Mr Bemba’s acquittal, the convicted persons intentionally and irreversibly poisoned the evidentiary record of the Main Case with the testimony of false, scripted and tainted witnesses—whose evidence was never expunged and remains in the trial record to this day. The offences of which they were convicted were extremely grave and seriously damaged the integrity of the proceedings before the Court, undermining public trust and confidence in its processes, regardless of, and independently from, their impact on the outcome of the Bemba Main Case.

4. However, that an impact on the outcome of a case is not required as a matter of law to harm the administration of justice does not mean there was no impact in this instance. There was. As elaborated below, Mr Bemba’s acquittal was, at least to a discernible extent, resulting from, and predicated on, evidence affected by a pervasive campaign of witness tampering, which eventually but not unforeseeably, infiltrated the Bemba AJ. Here, the toxic effects of the corrupt and tainted evidence adduced by Messrs Bemba, Kilolo and Mangenda at trial affected not only the immediate proceedings in which it was tendered, but inevitably, subsequent proceedings. In short, the convicted persons’ concerted and unlawful efforts may have ultimately succeeded, not at trial as originally intended, but at the appellate stage.

5. Although the convicted persons could not have known that the Appeals Chamber would depart from the Court’s established appellate standard of review for factual errors or that the Appeals Chamber’s understanding of the scope of the charges would play a substantial role on quashing Mr Bemba’s conviction, this is of no moment. They intended and foresaw Mr Bemba’s acquittal by means of their illicit actions. Thus, in so far as the Bemba AJ disturbed the Bemba TJ to any extent on the basis of evidence adduced through, or the acts and conduct of, corrupted or tainted Defence witnesses, Mr Bemba’s acquittal comprises “the damage caused” or an “aggravating circumstance[ ]” within the contemplation of rule 145.

This is a fascinating argument. And in theory it might have merit: if the Appeals Chamber did indeed acquit Bemba because of false testimony procured by the defendants’ witness tampering, I don’t see anything in Rule 144 of the Rules of Procedure and Evidence that would prohibit the Trial Chamber from considering the wrongful acquittal when determining Bemba’s sentence. As the OTP points out (para. 5), Rule 145(1)(c) permits the Trial Chamber to take into account “the extent of the damage caused, in particular the harm caused to the victims and their families,” while Rule 145(2)(b)(ii) provides that “abuse of power or official capacity” is an aggravating factor and specifies that the list of aggravating factors is non-exclusive. A wrongful acquittal procured through witness tampering is incredibly damaging to victims, and witness tampering by a defendant would seem to be either an abuse of power or similar enough to such abuse that sentence enhancement would be warranted.

The key qualifier, however, is “in theory.” The problem with the OTP’s argument — and the reason I fully expect Trial Chamber VII to dismiss it, no matter what it thinks of Bemba’s acquittal in the Main Case — is that there is simply no evidence in the Appeals Judgment that “Mr Bemba’s acquittal was, at least to a discernible extent, resulting from, and predicated on, evidence affected by a pervasive campaign of witness tampering.”

Before turning to that specific issue, it’s worth responding to the OTP’s claim that it is “of no moment” the Appeals Chamber supposedly applied the wrong standard of review to the Trial Chamber’s factual findings. I disagree. The OTP’s position — clearly expressed in Fatou Bensouda’s controversial June 13 statement — is that the Appeals Chamber would have upheld Bemba’s conviction if it had applied its traditional deference to the Trial Chamber’s findings of fact. That position implies, as a matter of simple logic, that the cause of the Bemba’s acquittal was the standard of review, not the witness tampering. The OTP is essentially arguing, then, that Bemba should receive a longer sentence because the Appeals Chamber decided to unjustifiably (according to the OTP) modify the applicable standard of review. That strikes me as neither fair nor consistent with Rule 145.

That said, it is possible to construct a coherent version of the OTP’s argument concerning the standard of review. The argument would be this:

[1] Although the Trial Chamber heard the corrupted witness testimony, its decision to convict Bemba means that it properly disregarded it.

[2] Had the Appeals Chamber deferred to the Trial Chamber’s findings of fact, it would not have been influenced by the corrupted witness testimony and would have upheld Bemba’s conviction.

[3] Because the Appeals Chamber reviewed the evidence presented to the Trial Chamber de novo instead of deferring to the Trial Chamber’s factual findings, the Appeals Chamber was influenced by the corrupted witness testimony and acquitted Bemba because of it.

The problem with the OTP’s argument is the one noted above: namely, that the motion completely fails to substantiate its central claim that the Appeals Chamber wrongfully acquitted Bemba because it relied on the corrupted witness testimony. The OTP insists (para. 7) that “Mr Bemba’s acquittal rests, in part, on the Majority’s limited evaluation of an evidentiary record deliberately and criminally tainted and scripted by the convicted persons.” There is little question that the evidentiary record was tainted. But the motion is exceptionally thin — to put it generously — in terms of explaining exactly how that record led, even in part, to Bemba’s acquittal.

Let’s walk through the OTP’s argument. The OTP begins by claiming (para. 7) that, with regard to the seven errors the Appeals Chamber identified in the Trial Chamber’s reasoning, “[a]t least three of these errors follow the narrative and are related to the scripted evidence of Corrupted Witnesses and to unreliable evidence of other tainted witnesses, or their acts and conduct.” In particular, the OTP identifies the following errors as tainted: (1) the failure “to pay sufficient attention to the fact that the MLC troops were operating in a foreign country with the attendant difficulties on Mr Bemba’s ability, as a remote commander, to take necessary and reasonable measures”; (2) the failure “to address Mr Bemba’s statement that he wrote to the CAR Prime Minister requesting an international commission of inquiry to be set up, or the testimony of D-48 which attested to the existence and content of the letter”; and (3) erring “in attributing any limitations it found in the mandate, execution and/or results of the measures to Mr Bemba.”

The OTP then devotes the bulk of its motion to explaining how the testimony of six witnesses supposedly influenced the Appeals Chamber’s deliberations:

D-54, a Corrupted Witness, who testified concerning the commission of inquiry Bemba supposedly established to investigate allegations of MLC crimes in CAR.

D-15, a Corrupted Witness, who testified about the effects of Bemba’s remote location on his effective control over MLC forces.

D-13, a Corrupted Witness, who also testified about Bemba’s lack of effective control.

D-25, a Corrupted Witness, who testified that Bemba lacked operational control over MLC forces.

D-19, not a Corrupted Witness, who testified about Bemba’s inability to discipline MLC soldiers;

D-48, not a Corrupted Witness, who testified about the Zongo Commission and a variety of aspects of Bemba’s effective control.

The OTP concludes (para. 44) by summarising why it believes the Appeals Chamber acquitted Bemba because of the corrupted witness testimony:

As demonstrated above, the factual narrative testified to by several Main Case tainted and Corrupted Witnesses permeated the Majority’s analysis:

• consistent with D-54’s, D-15’s, D-13’s and D-25’s illicitly coached testimony, the Majority found that Mr Bemba, as a remote commander, had limited effective control;
• relying on D-48’s tainted testimony and consistent with D-19’s unreliable and D-54’s coached narratives, the Majority found that the Trial Chamber had not properly assessed the measures that Mr Bemba took, or said he took, to address the crimes.

There are a number of serious problems with the OTP’s argument. To begin with, as the summary above reflects, the OTP acknowledges that the Appeals Chamber explicitly relied on only one of the six witnesses: D-48. But here’s the thing: as the OTP itself admits (para. 38), Trial Chamber VII did not find D-48 to be a Corrupted Witness. Nor did Trial Chamber III find in the Main Case that D-48’s testimony was corrupt: as the OTP also admits (para. 40), it found only that the relevant part of his testimony was unreliable. The OTP is simply assuming that D-48’s testimony was corrupted because he gave testimony similar to testimony given by witnesses whom Trial Chamber VII did deem to be corrupt.

The difference is critical. If the Appeals Chamber had explicitly relied on the testimony of a witness whom Trial Chamber VII had deemed a Corrupted Witness, it might — might! — be possible to say that Bemba’s witness tampering led to the Appeals Chamber’s decision to acquit him. But it would be fundamentally unfair to increase Bemba’s sentence because the Appeals Chamber explicitly relied on the testimony of a witness whom Trial Chamber did not deem corrupt. And that is true even if the OTP is really, really, really convinced that D-48 should be considered a Corrupt Witness. If that is its position, the OTP should have included D-48 in the Witness Tampering case and proved that he was corrupt. It didn’t — which mean that the Appeals Chamber’s decision to rely on D-48’s testimony, even if unwise in light of the questions about his reliability, can hardly be held against Bemba himself.

Similar thoughts apply to whatever impact D-19’s testimony had on the Appeals Chamber’s decision to acquit Bemba, given that Trial Chamber VII did not find him to be a Corrupted Witness. So that leaves the testimony of D-54, D-15, D-13, and D-25. All four are Corrupted Witnesses, but none of them — again, by the OTP’s own admission — are actually cited by the Appeals Chamber in its judgment. The OTP is simply inferring that the Appeals Chamber relied on the Corrupted Witnesses from the fact that their testimony addressed some of the factors the Appeals Chamber cited in defence of the acquittal.

That is problematic, because there are other possible explanations for the Appeals Chamber’s decision. I have not read the entire Trial Judgment, but it is difficult to believe that the defence did not call other non-corrupted witnesses who provided testimony similar to the Corrupted Witnesses — concerning Bemba’s efforts to hold the MLC accountable, his lack of effective control over MLC forces, etc. Indeed, the most powerful evidence against the idea that the Appeals Chamber based its judgment on the Corrupted Witnesses is provided by the OTP itself: namely, the testimony of D-48 and D-19. The OTP goes to great lengths to show how their testimony as non-corrupted witnesses helped establish the same exculpatory narrative promoted by the Corrupted Witnesses. With regard to D-48, for example, the OTP notes (para. 33) that “his evidence in the Main Case largely followed the same narrative as that of the Corrupted Witnesses.” In fact, the OTP specifically argues that the Appeals Chamber relied heavily on D-48’s testimony (para. 43):

In turn, D-48’s uncorroborated and unreliable evidence played an important role in the Majority’s decision to overturn part of Mr Bemba’s convictions: the Majority concluded that Trial Chamber III had erred on the basis of its lack of reference to portions of D-48’s testimony pertaining to the purported letter in the Judgment.

For whatever reason, the OTP does not seem to recognise that this comment fatally undermines its own argument. It is impossible to argue that Bemba’s witness tampering led the Appeals Chamber to acquit him if, by the OTP’s own admission, non-corrupted witnesses provided the same testimony as Corrupted Witnesses and their testimony “played an important role” in the acquittal. Again: it is irrelevant that the OTP believes non-corrupted witnesses such as D-48 were actually corrupted. There is no judicial finding to that effect, so the OTP’s belief is nothing more than supposition and cannot be taken into account at sentencing.

Finally, I would be remiss not to mention how much contempt the OTP’s motion shows for the three judges who voted to acquit Bemba. The Appeals Chamber released the judgment of acquittal in the Main Case on 8 June 2018. Trial Chamber VII convicted Bemba et al. of witness tampering on 19 October 2016 and the Appeals Chamber unanimously upheld the witness-tampering charges on 8 March 2018. By the time the Appeals Chamber acquitted Bemba in the Main Case, therefore, the judges in the Majority must have been aware that both the Trial Chamber and the (differently-constituted) Appeals Chamber had found that 14 defence witnesses were corrupted, including the four the OTP now cites in its motion. Indeed, one of the judges who voted to acquit Bemba — Judge Morrison — was actually part of the Appeals Chamber that upheld the witness-tampering convictions. The OTP is thus implicitly arguing either (1) that the Appeals Chamber in the Main Case consciously relied on D-54, D-15, D-13, and D-25 despite knowing their testimony was corrupted — and despite Judge Morrison having actually found that their testimony was corrupted; or (2) were unconsciously affected by D-54, D-15, D-13, and D-25 despite knowing that their testimony was corrupted. The first possibility is tantamount to accusing the Majority of being deliberately unethical, and the second possibility essentially accuses the Majority of being so incompetent or biased that they were unable to disregard testimony they knew (and one had even found) to be corrupt.

I am confident that Trial Chamber VII, despite having convicted Bemba et al. of witness tampering, will see through the OTP’s meritless argument that Bemba’s sentence should be enhanced because his witness tampering led the Appeals Chamber to acquit. Given that there is no evidence in the Appeals Judgment to that effect, a sentencing enhancement would be fundamentally unfair to Bemba.

A few readers have contacted me privately to note that my previous post significantly underestimated the number of ILO judgments against the ICC. I said at least three. In fact, the number is much, much higher — the result of a series of recent judgments issued by the Administrative Tribunal since the beginning of 2017. Each of the judgments involves the now-former Registrar’s misbegotten attempt to restructure the Registry, the ReVision Project, which led to numerous Court employees being terminated.

Here is how the Tribunal describes what occurred in Case No. 3907, F v. ICC, which led to the most significant damage award — €268,000:

In 2013 the Assembly of States Parties to the Rome Statute of the International Criminal Court authorized the Registrar of the Court to reorganise the Registry. This reorganisation became known as the ReVision Project. In August 2014 the Registrar issued Information Circular ICC/INF/2014/011 entitled “Principles and Procedures Applicable to Decisions Arising from the ReVision Project” (Principles and Procedures). On 13 June 2015 Information Circular ICC/INF/2014/011 Rev.1 was issued, which revised the Principles and Procedures; the revised version was in force at the material time.

By a letter dated 17 June 2015 the complainant was notified by the Registrar that her post was being abolished and that her appointment would terminate as of 15 October 2015. It was explained that it had been decided to change the structure of the Human Resources Section (HRS) and as a result her position was no longer required; what was needed instead was the position of HR Officer – Entitlements and Payroll. She was informed inter alia of the options that were open to her, including the acceptance of an enhanced agreed separation package or the opportunity to apply as an internal candidate (for newly created positions arising as a direct result of the ReVision Project) with the priority consideration provided for in the Principles and Procedures. In the event that she sat for an interview for any position as a priority candidate, she would lose the option to accept the enhanced agreed separation package…

On 5 October the complainant submitted a statement of appeal in which she challenged the decisions to abolish her position and terminate her appointment. By a letter of 13 October 2015 the Registrar informed the complainant that she had not been successful in securing a position as a result of the recruitment exercises she had participated in. She was further notified that her appointment would terminate on 22 October

Ms. F went to the ICC’s internal Appeal Board, which upheld her appeal. The Registrar, however, disagreed with the Board and terminated Ms. F anyway. Ms. F then filed a complaint with the ILO.

I don’t want to get into all the details of the ICC’s employment practices. Suffice it to say that, given the amount of material and moral damages she was awarded, the Tribunal was not impressed by how the Registrar treated Ms. F. The same is true in all the other cases, which involve quite similar facts. Indeed, some of the language the Tribunal used to describe the Registrar’s actions is striking. In Case No. 3903, for example, the Tribunal said the following:

The way in which the decision to terminate the complainant’s appointment was, in the letter, merged with the decision to abolish his position, the misleading content of the letter coupled with the vague and confusing language of the notification of the termination of the appointment was a breach of the ICC’s duty to act in good faith.

Since the beginning of 2017, the Tribunal has upheld eight complaints against the ICC regarding the ReVision Project. Here are the damages it has awarded:

1. 3903: €61,000
2. 3904: €61,000
3. 3905: €24,000
4. 3906: €24,000
5. 3907: €268,000
6. 3908: €222,000
7. 4004: €184,000
8. 4007: €11,000

To date, the former Registrar’s actions have cost the ICC at least €855,000. And an informed source says there are approximately 15 more ReVision complaints pending, which the Court can obviously expect to lose. So the Registrar’s actions — almost always in defiance of the ICC’s own Appeals Board — could end up costing the Court more than €2,000,000. At a time when the ICC is already facing a significant budget crunch, that’s horrific.

The ICC elected a new Registrar on 28 March 2018. We can only hope his personnel policies are an improvement on his predecessor’s.