Recent Posts

Dear World Media: The U.S. is NOT Challenging China’s Territorial Claims in the South China Sea (Yet)

by Julian Ku

I have been following closely the U.S. Navy’s plans to use military ships and aircraft to challenge China’s aggressive land reclamation activities in the South China Sea, and China’s not very positive reaction to these plans.  But although there is a real dispute brewing here that could escalate into a sovereignty fight, I think media reports are making this dispute more serious than it actually is.

Contrary to some media reports, the U.S. Navy plans do NOT intend to challenge China’s “sovereignty” claims in the South China Sea. Instead, the U.S. Navy is asserting its rights to freedom of navigation under international law. If we understand the U.S. Navy plans in this context, it may help us defuse (at least somewhat) the growing tensions between the U.S. and China in this region, if only the media would help us out with better reporting.

From CNN, here is an example of how media reporting is making this dispute seem worse than it is.

Above the South China Sea (CNN)The Chinese navy issued warnings eight times as a U.S. surveillance plane on Wednesday swooped over islands that Beijing is using to extend its zone of influence.

The series of man-made islands and the massive Chinese military build-up on them have alarmed the Pentagon, which is carrying out the surveillance flights in order to make clear the U.S. does not recognize China’s territorial claims.

(Emphasis added). This report feeds into the (accurate) narrative about growing tensions between the US and Chinese navies.  In this story, the US Navy is flying “over” the Chinese islands in order to challenge or reject China’s territorial claims.  But later in that same report, CNN says that U.S. Navy is considering “flying such surveillance missions even closer over the islands, as well as sailing U.S. warships within miles of them, as part of the new, more robust U.S. military posture in the area.” (emphasis added).

Here’s the problem.  If the U.S. Navy aircraft featured in the CNN video (a military surveillance plane and “sub hunter”) actually flew “over” the Chinese artificial islands, then why would they consider flying even closer “over” the islands and what would be the significance of sending naval ships?

In fact, the US Navy has tried to make it clear to reporters that they are merely conducting freedom of navigation operations and “that U.S. military aircraft do not fly directly over areas claimed by China in the Spratly Islands.” (in the washington post).  It’s my guess that the Navy hasn’t even flown within 12 nautical miles of the artificial islands.

Why? Because as far as I can tell, this is a standard US Navy “freedom of navigation” operation that it uses to assert international law rights of navigation against numerous countries around the world.  It is NOT, as the CNN and other reports suggest, a challenge to China’s territorial claims.

Freedom of Navigation” operations involve sending US Navy warships into both the 200 nautical mile Exclusive Economic Zone and the 12 nautical mile territorial seas recognized under the UN Convention on the Law of the Sea.  In the view of  the U.S., military warships and aircraft are free to conduct surveillance operations (e.g. spying) in any country’s 200 nm EEZ and surface warships (but not military aircraft or submarines) have the right to “innocent passage” through a country’s 12 nautical mile territorial waters.

The U.S. Navy has been conducting  “freedom of navigation” operations for decades to enforce these views of international law, and it even has a “Freedom of Navigation” website making public where it has been operating. The point of these operations it to publicly challenge a country which is making (in the U.S. view) unjustified legal rights under UNCLOS.  China has a longstanding disagreement with this U.S. interpretation of UNCLOS. So they always make protests, and China has sometimes sent its fighter jets out to harass or challenge US spy aircraft.

But the bottom line: pace CNN, freedom of navigation operations are not challenges to “territorial claims” or “sovereignty.” The US Navy operations assume that the other nation has “sovereignty” over the relevant coastline or island.  So the US Navy operations near China’s artificial islands can assume that China has sovereignty but still demand China allow US military aircraft and ships  transit rights etc. under UNCLOS.

It is worth noting that the U.S. could escalate the dispute with China.  The U.S. might take the view that China is building artificial islands on top  of reefs or submerged features which do not entitle China to any legal rights at all (See UNCLOS, Art.60(8): “Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.”).  If so, then the US would fly within 12 nm miles or even directly “over” the artificial islands. Such operations would effectively be a direct challenge  to a China’s territorial claims, because the U.S. would be taking the view that China has no territorial basis at all for claims in the South China Sea.

“Challenging legal rights under UNCLOS” doesn’t make for very sexy headlines or get many clicks as compared to “challenging China’s territorial claims”. But it is worth parsing media reports about US Navy activities in the South China Sea very carefully, and it would be nice of those well-sourced reporters would clarify just how close the US Navy is going to fly/sail to China’s reclaimed islands.

Maybe the U.S. government should directly challenge China’s territorial claims and sovereignty claims.  I am not sure in my own mind whether the U.S. should take that next step.   But for now, the U.S. hasn’t challenged China’s territorial claims yet, and I wish reporters would stop making it seem like it is doing so.

Guest Post: Five Questions on the Colombian Sentencing Practice and the Principle of Complementarity under the Rome Statue

by Marina Aksenova

[Marina Aksenova is a post-doc in the Centre for Excellence for International Courts, Faculty of Law, University of Copenhagen.]

The ICC prosecution team has been conducting preliminary examinations in Colombia for over ten years and has yet to decide whether to move to the stage of formal investigations. In doing so, it must assess, among other things, whether reduced or suspended sentences rendered to senior perpetrators by the local judiciary are adequate in light of the gravity of the crimes committed during the continuing civil war. The ICC prosecution noted in its 2012 report on Colombia that some paramilitaries may benefit from the sentences of 5 to 8 years imprisonment if convicted of genocide, crimes against humanity, war crimes provided they demobilize. The matter is further complicated by the ICC’s capacity to frustrate the ongoing peace negotiations between the government and the FARC guerrillas. These talks aim at ending a conflict disrupting the country for over fifty years.

The issue of sentencing in Colombia illustrates the difficulties the Court faces in applying the principle of complementarity in practice. What are the exact criteria of assessing the state’s willingness to undertake genuine prosecutions? The ICC will evaluate domestic penalties with the reference to two different legal regimes provided by the Rome Statute – admissibility and sentencing. Up until now, the Court has not treated these two issues in conjunction with each other. The post discusses five specific concerns that this exercise may produce. This working paper elaborates on the context surrounding the questions presented below.

  1. Proportionality of sentences

The idea that a penalty must be in proportion to the gravity of the crime is widely accepted in international criminal law. In the Lubanga sentencing decision (para. 36), the ICC held that the ‘gravity of the crime’ is one of the principal factors to be considered in the determination of sentence, which should be in proportion to the offence and reflect the culpability of the convicted person. How will this consideration play out in the complementarity analysis? Will a sentence of 5 to 8 years of imprisonment for crimes against humanity and war crimes be considered grossly disproportionate?

The principle of complementarity presupposes the primacy of states in handling cases domestically. Thus, according to Article 17 of the Rome Statute, a case comes within the purview of the Court only if the crimes are of sufficient gravity and the country in question is unable or unwilling to address them via its national criminal justice system. Article 17(2) specifies that the state is ‘unwilling’ if it initiates the proceedings with an unjustified delay or with the purpose of shielding the person concerned from criminal responsibility or fails to conduct the proceedings independently or impartially – all of which signals lack of intent to bring the person concerned to justice. It is important that the offences allegedly prosecuted and investigated on a national level cover substantially the same conduct as those charged by the ICC, while legal characterization of the underlying incidents matters less.

Consequently, even if domestic prosecutions cover the ‘same conduct’ but result in disproportionately light penalties, this may evidence the state’s intent to shield some persons from responsibility, and, thus, render the case admissible to the ICC. There are three caveats to this argument. First, the ICC’s own sentencing practice so far has been rather lenient: Thomas Lubanga received a sentence of 14 years of imprisonment and Germain Katanga received a sentence of 12 years. The Lubanga analysis of proportionality suggests that no rigid guidelines are available for measuring the correlation between the gravity of the offence and the sentence. The Chamber in its sentencing decision (paras. 92-93) rejected the strict numerical approach suggested by the OTP and upheld its own discretion to assess the totality of factors when deciding on the ultimate number of years of imprisonment. The deficiencies in Mr. Lunbanga’s mens rea and his cooperation with the Court played an important role in the determination of his sentence.

Secondly, in the Al Senussi admissibility decision (paras. 218-219), the ICC dealt with the reverse situation  – the Defence argued that the threat of a death penalty, which the accused faced in Libya, rendered the case admissible because of the adverse effect on the accused. The ICC rejected this plea and granted local authorities a wide margin of appreciation when it comes to punishment, claiming it is not a human rights court. One might expect similar flexibility in cases on the other side of the spectrum.

Finally, Article 53(1)(c) of the Rome Statute allows some room for a manoeuvre granting the prosecution the power not to commence an investigation even where the situation is formally admissible if it serves the ‘interests of justice’. The ‘interests of justice’ is a broad category open to various interpretations, but ultimately it leaves the door open for a political compromise. The fragility of the Colombian peace talks is likely to fall within this category because arguably it provides for a valid reason not to proceed to the official investigations by the ICC.

  1. Participation of the convicted persons in political life

Participation of convicted persons in political life is a burning issue in the peace talks in Colombia. Many senior perpetrators have links to the government or the FARC and hope to remain in power after a deal has been reached. Even if certain leaders from both sides receive formal punishment, the question still remains whether these people will be allowed to form part of a future government. Is it possible to conceive of suspended or lenient sentences as sufficiently reflecting public censure if the convicted person re-enters politics? Can such punishment deter future violations by senior perpetrators?

The Rome Statute does not give any guidance as to whether convicted persons may participate in political life; it restricts the types of punishment to a maximum sentence of 30 years of imprisonment, fine and forfeiture of assets. If one looks at the broader picture, Article 27 renders the official capacity as is generally irrelevant to the ICC prosecutions. This provision is not directly relevant to sentencing, but it reflects the spirit of the Rome Statute. One might argue that for this reason alone the ICC may criticize participation of the convicted person’s in political life.

In its complementarity analysis, the ICC may also refer to the general sentencing practice of the respective state. The Colombian Criminal Code appears rather flexible in this regard; it leaves it up to the judges to decide whether to ban the offender from political life. The law provides for the suspension of rights and public functions as well as the loss of public office as an additional punishment for various offences, such as, murder of certain persons. Loss of public office can last up to 5 years, while suspension of other rights can vary from 5 to 20 years. In certain circumstances, rights can be restored at an earlier date (Articles 43(1), 43(2), 92, 135 of the Colombian Criminal Code).

The ICC is unlikely to be guided solely by the provisions of Colombian law, however. Instead, it is may look at the standards applicable in other states in an attempt to discern generally recognized principles of law deriving from the multitude of domestic legal systems. This is one of the sources of international law along with treaty and custom. It seems that in some jurisdictions there is a blanket prohibition to occupy public posts for those convicted of serious offences. For example, Article 45 of the German Criminal Code reads as follows: ‘Whoever is sentenced for a serious criminal offense to imprisonment for at least one year shall lose for a period of five years the capacity to hold public office and attain public electoral rights.’ This provision reflects an understanding that the public censure element of punishment is severely compromised if someone convicted of a grave offence is allowed to re-enter public life.

  1. Relevance of domestic law for the ICC complementarity analysis

The Rome Statute does not suggest that the ICC should consider the scale of penalties of the relevant state. Its determination of sentences shall solely be guided by the gravity of the crime, individual circumstances of the accused, and mitigating and aggravating factors. It is in contrast to the statutes of the ad hoc tribunals, which allow recourse to domestic law; although, it has rarely been seen in practice.

The ICC will assess Colombian criminal law in its complementarity analysis in the light of the principles enshrined in the Rome Statute and international law. The general principle is that the person cannot invoke domestic law to avoid responsibility under international criminal law. When it comes to the admissibility test, it is essential that the penalty imposed at the national level is not intended to shield the person from criminal responsibility.

  1. Disparity of sentences

The sentencing practice of the Colombian courts shows some disparity in sentences meted out to various parties to the conflict. Colombia attempts to bring to justice different responsible actors, but their penalties are significantly different. How will this aspect play out in the complementarity analysis of the ICC? The question of disparate sentences is tightly linked with the idea of individualized punishments and judicial discretion widely accepted at the ICC. There are a number of factors that might support Colombia’s claim for lenient (and, to a lesser extent, suspended) and/or disparate sentences.

Firstly, it seems that the ICC prosecution already pointed to broad discretion of the Colombian judiciary in its 2012 report (para. 206), when it confirmed that the ICC would examine local sentences individually on the basis of particular factors, such as, the intent to bring perpetrators to justice, the gravity of the crimes and the efforts to establish the truth. Secondly, the ICC practice itself shows relative leniency in its two available sentencing rulings. Thirdly, the reasoning in the Katanga sentencing decision (para. 38) exhibits a trend of integrating reconciliatory aims in sentencing considerations. Fourthly, the Rome Statute upholds the power of the prosecution to halt investigations if it is not in the ‘interests of justice’ in light of the gravity of the crimes and the interests of victims.

  1. Remedy to the victims

When combining two legal frameworks for the purposes of complementarity analysis, the ICC might have to decide where it stands on the issue of enforcement of human rights and victims’ rights. In the recent complementarity decision in the Al Senussi case (paras. 218-219), the ICC refused to act as a human rights court and rendered the case inadmissible, notwithstanding the death penalty threatening the accused. The Court’s view might be altered when victims’ rights are at stake, as is the case in Colombia. Both the Colombian national legislation and the Rome Statute contain provisions upholding victims’ rights in the process of criminal adjudication. Reduced sentences for war crimes and crimes against humanity may be at odds with the victims’ quest for justice. One way to resolve this contradiction is to ensure that victims receive adequate reparations for their suffering. It will not ‘offset’ the perceived impunity of senior perpetrators entirely, but it will help in mitigating the concern.

Weekly News Wrap: Monday, May 25, 2015

by Jessica Dorsey

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: May 24, 2015

by Jessica Dorsey

Events

  • The University of Essex is hosting the Spring Conference of the International Law Association (British Branch) on 29th – 30th May 2015, on the theme of ‘International Law as a Mechanism for Justice’. The keynote speakers will be Howard Morrison CBE QC, Judge of the International Criminal Tribunal for the former Yugoslavia and Professor Francesco Francioni, European University Institute. The programme and information on registration and accommodation are available here. Should you have any queries about the conference, please feel free to get in touch at the following address: ilaconference2015 [at] essex [dot] ac [dot] uk.
  • On 28 May 2015, the British Institute of International and Comparative Law (BIICL) will host a seminar entitled ‘Ethics in the “International Bar”: Rules, Gaps and Improvements in the Regulation of the Professional Ethics before International Courts and Tribunals’. This event is part of the Temple Garden Chambers Seminar Series in International Adjudication. While there is no universally accepted code on ethical requirements in proceedings before international courts and tribunals, ethical conduct in the “International Bar” is one of the most important issues in contemporary international adjudication. Many international courts (such as the ECHR, the ICC, the ICTY and ICTR) have adopted rules that regulate the behaviour of prosecutors, counsels and judges. Similarly, several professional associations (such as the IBA, the ILA and the Council of Bars and Law Societies of Europe) have adopted non-binding codes of conduct for litigants and judges. This seminar will focus on the need to uphold the highest ethical standards in international adjudication. In addition, it will identify gaps in the existing documents and mechanisms for the maintenance of professional integrity in the “International Bar” and suggest improvements. This event will be chaired by Karim Khan QC with keynote speaker, Judge Jean-Pierre Cot (ITLOS). Discussants include Dr Arman Sarvarian (University of Surrey) and José María Alonso (Baker & McKenzie – Madrid). Download the Event Flyer here.

Calls for Papers

  • Call for Papers – International Organisations and the Rule of Law: Perils and Promise, Victoria University of Wellington Faculty of Law, New Zealand, 7-8 December 2015. This workshop will take a fresh look at the resources that international law possesses to ensure that international organisations (IOs) are held accountable for their errors and excesses, while remaining relevant and effective in the face of ever growing global challenges. How can international law develop in a way that preserves and enhances the dynamic possibilities of IOs while making sure that they comply with the rule of law? Can international law offer solutions, or is it part of the problem? The workshop organisers welcome papers that present original legal or empirical research; theoretical reflections; case studies from practice; and critical and historical perspectives. For more details see the call for papers.
  • Call for Papers: Development and the Rule of Law: from Research to Practice. The Global Rule of Law Exchange, a new project at the Bingham Centre for the Rule of Law, seeks to address key challenges posed by global development and its relationship to the rule of law. It will consider the challenges in respect of developing the rule of law in emerging economies, with regard to issues such as access to justice, corruption, legal certainty, government decision-making and the measurement of success in rule of law interventions. Other issues include – but are not limited to – growth, investment and the effects on national economies and local communities; the relationship between formal and informal legal systems; and the extent to which access to justice is or could be an instrument of empowerment and of more equal distribution of resources. Among its work, the Exchange is keen to foster empirical and comparative knowledge on what works and what does not in rule of law interventions, encourage discussions on their impact, as well as to identify good practice, research gaps, and ways forward. To this end, the Exchange will compile a list of short papers (such as think pieces, practice notes, policy documents, etc.) of around 1,500 – 3,000 words presenting research, case-studies and evidence from the field. Multidisciplinary analyses are encouraged, as are quantitative and qualitative studies. Conferences will be organised in London and in the United States in late 2015 and early 2016 to discuss the papers (date TBA). Shortlisted papers will feature in an edited publication, but the Exchange is also exploring opportunities of publishing a collection of these articles in a peer-reviewed journal. A 150-300 word abstract of the paper should be submitted by 30 June 2015, with final papers by 30 September 2015. (more information here.)

Announcements

  • The American Society of International Law (ASIL) and its Women in International Law Interest Group (WILIG) are now launching the third year of the Women in International Law Mentoring Program. Since 2013, over 240 women have participated in ASIL’s mentoring program as both mentors and mentees in 17 cities from Tucson to Singapore. The feedback has been extremely positive, and with the enthusiasm of our current participants, we have built a strong, inter-connected, and global network. We hope to reach more women for the 2015-16 program! The Women in International Law Mentoring Program is the first of its kind in international law and is designed to foster the next generation of female international lawyers. The program connects experienced female international law professionals with female law students and new attorneys interested in professional development in the field of international law. Mentoring takes place locally, in a group setting, with a maximum of four mentees for every mentor. Mentors and mentees meet in person every other month during the course of an academic year to discuss topics and engage in activities designed to help junior women enter and be successful in the field of international law. Mentors will be provided with optional pre-planned meeting topics to structure meetings for their groups. Upon finishing the requirements of the one-year program, all participants receive a certificate of completion.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

When the Left Shoots Itself in the Foot (IHL Version)

by Kevin Jon Heller

Last week, I made the mistake of relying on an article in Electronic Intifada about a recent speech by Moshe Ya’alon, the Israeli Defense Minister. Here are the relevant paragraphs in the article:

Israeli defense minister Moshe Yaalon on Tuesday said Israel would attack entire civilian neighborhoods during any future assault on Gaza or Lebanon.

Speaking at a conference in Jerusalem, Yaalon threatened that “we are going to hurt Lebanese civilians to include kids of the family. We went through a very long deep discussion … we did it then, we did it in [the] Gaza Strip, we are going to do it in any round of hostilities in the future.”

I probably should have known better than to rely on an article entitled, in relevant part, “Israeli defense minister promises to kill more civilians.” Prompted by a skeptical commenter, I watched the video of Ya’alon’s speech. And the video makes clear that the author of the article, Asa Winstanley, selectively quoted what Ya’alon said in order to make it seem like Ya’alon was advocating deliberately attacking civilians. In fact, Ya’alon was discussing a possible attack on a rocket launcher located in a civilian house and acknowledging that, if the IDF launched the attack, it was clear they were “going to hurt Lebanese civilians to include kids of the family.” The IDF launched the attack anyway, believing that the military advantage outweighed the certain civilian damage.

Bothered by being suckered into making such a significant mistake, I tweeted Winstanley about his selective quotation. Perhaps he had not actually seen the video? His response was disappointing, to put it mildly. Instead of acknowledging his mistake, he repeated the selective quote. I replied that the video made clear Ya’alon was talking about Israel’s proportionality calculation, not deliberate attacks on civilians, and pointed out that civilian damage is permissible under IHL unless the anticipated civilian damage caused by an attack is excessive in relation to the expected military advantage. I also noted that I thought the attack Ya’alon was discussing was still illegal, because in my view killing a number of civilians in order to take out one rocket launcher was disproportionate.

At that point, it’s safe to say, Winstanley simply lost it. Here are some of his tweets, with my thoughts in the parentheticals…

Guest Post: The Death Penalty for Drug Offences: ‘Asian Values’ or Drug Treaty Influence?

by Rick Lines, Damon Barrett and Patrick Gallahue

[Dr Rick Lines is Executive Director of Harm Reduction International, and a Visiting Fellow at the Human Rights Centre, University of Essex. Damon Barrett is the Director of the International Centre on Human Rights and Drug Policy at the Human Rights Centre, University of Essex and a doctoral candidate in the Department of Law, Stockholm University. Patrick Gallahue is the Communications Director at the ACLU-Connecticut, and former Coordinator of the Death Penalty Project at Harm Reduction International. He is a doctoral candidate in the Human Rights Centre, University of Essex.]

Recent mass executions by the Government of Indonesia have thrown the international spotlight on the death penalty for drug offences, and ignited debates between abolitionist and retentionist States on the legality and efficacy of this sanction. This international attention is to be welcomed.

When we established the death penalty for drugs project in 2007 at the NGO Harm Reduction International, it was the first and only project specifically dedicated to research, analysis and advocacy on what at the time was a little understood issue. Our reports tracked State practice, estimating that up to 1,000 people a year were executed for drug offences worldwide, promoted the case that the death penalty for drugs constitutes a violation of international human rights law and documented direct links between UN Office on Drugs and Crime (UNODC) country assistance programmes and executions for drug offences.

But despite the clear evidence of the illegal nature of the sanction, and the growing chorus of voices calling for its abolition, a small and increasingly isolated group of countries continues to kill people for drug offences. In executing fourteen people in a matter of months, the Government of Indonesia has aligned itself with the extreme fringe of even this isolated group, joining just four other States (China, Iran, Saudi Arabia, Vietnam) that execute people for drug offences with regularity and/or in great numbers.

Political leaders and commentators often try to excuse or explain the death penalty for drug offences in Asian or Middle Eastern countries on the basis that the practice reflects unique values and traditions of the regions, or that the application of international human rights law represents a foreign intervention into domestic matters. However, like so many defenses of this indefensible practice, this one crumbles under scrutiny.

For the majority of States actively executing drug offenders, the practice is about as ‘traditional’ in legal or historical legal terms as the microwave oven is in cooking terms, and in most cases even less so. Most of the dozen States that actively execute drug offenders adopted these laws from the 1980s onwards, suggesting that rather than reflecting traditional ‘values’ of the region these policies are instead a response to the anti-drugs climate of the period, and the drafting and adoption of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the third UN drug treaty that established State obligations in international law to enact harsh penal provisions for drug offences at domestic level.

Consider some of those States actively executing drug offenders, and compare the dates of enacting these laws against their signing or ratification of the 1988 drug treaty.

State Treaty Signed Treaty Ratified Capital Drug Law
Indonesia 1989 1999 1995
Viet Nam 1997 1999
Saudi Arabia 1992 1987
Kuwait 1989 2000 1995
Thailand 2002 1979
Pakistan 1989 1991 1997
Egypt 1988 1991 1989
Yemen 1988 1996 1993
Singapore 1997 1975
Malaysia 1988 1993 1975

With the exception of China and Iran, which have had capital punishment for drug offences since the 1940s and 1950s respectively, only Singapore, Malaysia and Thailand have capital drug laws that predate the drafting process of the 1988 drug treaty. Even then, those 1970s laws fall squarely with the era of the modern international drug control treaty regime, in which penal approaches to drug suppression were increasingly prioritised. More specifically, they fall within the period of the global ‘war on drugs’, launched by the U.S. in the early 1970s, which formed the international political backdrop for the drafting of the 1988 treaty.

Indonesia is actually a case that neatly proves the fallacy of this argument. Far from being a longstanding ‘traditional’ part of the domestic criminal justice system, the first person executed for drug offences in Indonesia was in 1995, six years after the State signed the 1988 convention. Indonesia executed five people in total for all offences between 2009 and 2014, all in the year 2013. In the other five years, the Government executed no one at all. Yet now in the first few months of 2015, the Government has executed fourteen people, all for drug offences. How to we explain this pattern? Did Indonesian ‘traditions’ or ‘values’ change between 1995 and 2009, then change again in 2009, and again in 2015? Or did the Government, and Government policy, change in response to domestic political considerations and the perceived political weakness of its leader?

A 2001 UN report recorded a more than 50% increase in the number of countries prescribing the death penalty for drugs into domestic law between 1985 and 2000. Surely this dramatic shift in State practice in a relatively short span of fifteen years did not reflect changes in national traditions or cultures.   Rather, the use of the death penalty for drug offences reflected developments in international drug control law, and the increasingly punitive nature of the regime throughout the 1970s, as codified in the 1988 drug convention. As we have pointed out elsewhere, this dramatic increase in States prescribing the death penalty for drug offences runs exactly opposite to the overall international trend towards the abolition of capital punishment documented during that same period. The irony here is obvious, as many death penalty States are all-too-happy to amend domestic laws based on UN drug control treaties, while at the same time claiming that UN human rights treaties represent an inappropriate infringement on domestic affairs.

Perhaps the most obvious fact exposing these arguments as baseless is that the vast majority of countries in the region do not execute people for drug crimes. There are 49 countries in the huge region of Asia and the Middle East. Of these, only a dozen actively execute people of drug offences, and only four or five execute people with any regularity or in any great number. Rather than capital punishment being a ‘shared’ regional approach to drugs, the countries executing drug offenders are a minority, and those executing with regularity represent a tiny minority of only one in ten.

If we take State practice as a guide, the true regional approach to drug enforcement is the non-use of capital punishment. Placed in this broader context, the tiny group of high-executing States can be seen as the extreme fringe their policies actually represent.

Regulation 55 and the Irrelevance of the Confirmation Hearing

by Kevin Jon Heller

It’s becoming an old story: the Pre-Trial Chamber (PTC) rejects a charged mode of liability after a confirmation hearing, so the OTP simply asks the Trial Chamber (TC) to give the defendant notice that it will consider convicting him on the basis of the rejected mode anyway. This time, the defendant is Laurent Gbagbo. The OTP initially alleged that Gbagbo is responsible for various crimes against humanity on the basis of Art. 25 in the Rome Statute — indirect co-perpetration; ordering, soliciting or inducing; and otherwise contributing to the commission of crimes — as well as command responsibility and superior responsibility. Following the confirmation hearing, the PTC confirmed all of the modes of liability in Art. 25, but declined to confirm command and superior responsibility, because those modes “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and Laurent Gbagbo’s involvement therein.” Undeterred, the OTP then asked the TC to invoke Regulation 55:

The Office of the Prosecutor (“Prosecution”) requests that Trial Chamber I (“Chamber”) give notice to the Parties and participants pursuant to regulation 55(2) of the Regulations of the Court (“RoC”) that the legal characterisation of the facts confirmed by Pre-Trial Chamber I (“Pre-Trial Chamber”) may be subject to change to accord with a further alternative form of participation of the Accused Laurent Gbagbo (“Gbagbo”): superior responsibility under article 28(a) and (b) of the Rome Statute (“Statute”) for all crimes (“Request”).

I have explained at length in this article why the Rome Statute — Art. 61 in particular — does not permit the Trial Chamber to convict a defendant on the basis of an unconfirmed mode of liability, so there is no need to repeat the argument here. Suffice it to say that the OTP’s request, which will almost certainly be granted by the TC (if past practice is any guide), continues the confirmation hearing’s long, slow slide into irrelevance. Given how the TC and Appeals Chamber have (wrongly) interpreted Regulation 55, the confirmation hearing actually “confirms” nothing; it just provides suggestions to the TC concerning how it might choose to convict the defendant. If the TC wants to go a different direction and convict the defendant on the basis of an unconfirmed mode of participation, no problem. It can simply “recharacterize” the facts and circumstances proven at trial.

Discerning readers might wonder how a defendant is supposed to prepare his defence in such a situation. Isn’t the entire point of the confirmation hearing to inform the defendant of the crimes and modes of liability he will have to rebut during trial? Yes — which is the fundamental problem with Regulation 55 as the judges have interpreted it. Because of their interpretation, defendants now have only two potential strategies at trial: (1) prepare a defence to every possible legal characterization of the facts and circumstances in the charge sheet — all possible crimes and all possible modes of liability; or (2) ignore the law entirely and focus solely on rebutting the facts and circumstances themselves. The first strategy is effectively impossible — and it’s very unlikely the TC would even let a defendant do it. (“Sorry, you have to pick one or two theories of the case — even though we can pick any theory we want down the track.”) And the second strategy is inconsistent with the nature of the adversarial trial contemplated by the Rome Statute. Defendants are (supposed to be) charged with specific crimes on the basis of specific modes of liability; they are not charged with bare facts and circumstances.

It’s a shame that the ICC’s judges have allowed Regulation 55 to metastasise into the ultimate judicial hammer — a one-size-fits-all tool for saving the OTP from its own poor charging decisions and ineffective trial advocacy. (See, e.g., Katanga.) But, of course, it’s not a surprise. After all, the judges wrote the Regulation themselves.

Two Interesting New Reports on ILC Website

by Kristen Boon

There are two important new reports up on the International Law Commission’s website.

First, Sean Murphy’s First Report on Crimes Against Humanity is now available.  The UN Doc symbol is A/CN.4/680; link to the report here.

The report is a terrific overview of the current gaps in the international legal architecture, and maps out steps towards a future convention.   The report also proposes two draft articles: one on prevention and punishment of crimes against humanity and the other on the definition of such crimes.   For background, see Leila Sadat’s Crimes Against Humanity Initiative here.

Hat tip to James Stewart for flagging this report.

Second, Sir Michael Wood’s Third Report on the Identification of Customary International Law is available now as well. The UN Doc symbol is A/CN.4/682, and the link is available here.    Readers may recall that last summer I asked whether Security Council acts are relevant to Customary International Law, and noted that the ILC’s treatment of the topic to date had not included a discussion of IOs.   This report remedies this lacuna in part in that it specifically addresses the acts of IOs.  However, its conclusion is that acts of IOs are generally irrelevant to the formation of custom.  Instead, the Report’s guiding assumption is that the practice of IOs is to be attributed to the states themselves, not to the IOs. As the report notes:

if one were not to equate the practice of such international organizations with that of States, this would mean not only that the organization’s practice would not be taken into account, but also that its Member States would themselves be deprived of or reduced in their ability to contribute to State practice.

This conclusion will be controversial:  even the report’s footnotes cite numerous scholars and states that express opposing views.

Both of these reports are likely to spur important scholarly debates.

Events and Announcements: May 17, 2015

by Jessica Dorsey

Events

  • Today and tomorrow, at the Cardozo School of Law, New York, New York, the conference, Constitutional Conflicts and the Judicial Role in Comparative Perspective will be held. This conference, which marks the launch of the Israeli Supreme Court Project at Cardozo Law, will explore the Court’s jurisprudence on complex and challenging questions facing open and multi-cultural societies everywhere. Because these issues are salient in, but by no means peculiar to, Israel, a comparative perspective will enrich our understanding of how such issues are, and might be, dealt with in other democratic societies. Panels will address the general question of the value and challenges of comparative legal study, differing conceptions of the role of the judiciary and doctrines of justiciability, and substantive areas of current controversy, including the role of the courts in overseeing national security and intelligence gathering; immigration, asylum, and treatment and status of refugees; and religion in the modern nation-state. The conference is free and open to the public, but registration is required. Please email ISCP [at] yu [dot] edu with your name, affiliation, and contact information. For more information, see here.
  • Delegates are now able to reserve places for The Chagos Litigation: A Socio-Legal conference, which takes place on 29th June 2015 at the University of Greenwich. The keynote speaker is Professor Philippe Sands QC (University College London), who recently represented Mauritius in its proceedings against the United Kingdom at the Permanent Court of Arbitration. The conference is free to attend and is open to academics, legal practitioners and postgraduate students. Delegates can reserve their place by emailing: lawevents [at] gre [dot] ac [dot] uk. Further information can be found here.

Calls for Papers

  • The TAU Buchmann Faculty of Law is pleased to invite submissions to its third annual  workshop for junior scholars in law, which will take place in October 26-27, 2015. Through law, theory comes into our daily lives in many ways. The workshop will explore the connection between theory and life: how different theories are applied through legal doctrines, how theory comes to life through its application and how theory influences society and our lives. Relevant papers could, for example, discuss more specific questions like: How does theory come into life in different fields of law, such as criminal law, public law, corporate law, civil law, international law, cyber law, environmental law and others? What is the connection between human rights theories and their acceptance or rejection by different actors? How does legal theory deal with rapid changes in science and technology? What are the potential theoretical justifications to recognize obligations of states towards foreign individuals or communities? How can different actors, such as governments, philanthropists, public litigators and human rights organizations use theory to further their cause? How do lessons learned from historical events affect the formation of theory and practice? For details regarding submission and funding possibilities please see the call for papers

Announcements

  • The South China Sea Institute of Xiamen University, and Center for Polar and Deep Ocean Development of Shanghai Jiao Tong University, announce their annual summer program – Marco Polo- ZHENG He Academy of International Oceans Law and Policy, to be held from July 5 – July 31, 2015. These centers are leading interdisciplinary research institutes in China in the area of Oceans Law and Policy. This is the 10th anniversary of the summer academy which has been attended in past by the scholars, practitioners, diplomats and students from -: Australia, Bangladesh, Belgium, China, Colombia, Hong Kong, India, Indonesia, Iran, DPR Korea, Rep. of Korea, Malaysia, Poland, Russia, Singapore, Switzerland, U.S., and others. The four week intensive summer program is divided into two sessions to be held in Chinese cities of Xiamen and Shanghai. The participants have an option to attend either or both the sessions. The program offers a unique chance to learn about the Chinese perspectives on Law of the Sea and its policies. The structure of the program is such that the class lectures are held in morning sessions and in the afternoon sessions trips to Chinese courts, law firms, and governmental agencies related to oceanic administration, museums, etc., are planned. Participants also have the option of taking tests and getting credits transferred to their own schools. Limited number of scholarships is offered to outstanding candidates upon application and subsequent review. Please find more information about Xiamen Session here and Shanghai Session here.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Weekend Roundup: May 10-16, 2015

by Jessica Dorsey

This week on Opinio Juris, Duncan posted his thoughts on the fog of technology and international law with respect to drone strikes and Kevin defended (!) Jeb Bush for his somewhat botched answer to Fox News’ Megyn Kelly about the Iraq war.

We had three great guest posts. The first, garnering a large amount of discussion, was from Eugene Kontorovich on Iran’s relief ship and the blockade of Yemen. Our second came from Emma Irving, highlighting the news this week that Mathieu Ngudjolo Chiu, acquitted by the ICC, was sent packing from the Netherlands back to the DRC without asylum, despite the risk he claims he faces in the DRC. Finally, Rishi Gulati weighed in on the recent case of Anders Kompass, the senior UN official who leaked an internal UN report on sexual abuse by UN staff in the Central African Republic to the French authorities, and gave some insights into the UN’s internal justice system.

We’ve announced our third annual Emerging Voices symposium–abstracts are due by 31 May 2015 and I rounded up the news here and the events of the week here.

Thanks for following us and have a great weekend!

Guest Post: The Anders Kompass Case–A Moment of Opportunity for the UN Internal Justice System

by Rishi Gulati

[Rishi Gulati practices as a barrister in Melbourne. The author has not had any involvement with the Kompass case; and this post should not be construed as legal advice in any form whatsoever.]
Highlighting Mr Anders Kompass’s suspension from duties as a senior official at the UN, the Guardian recently reported that Mr Anders Kompass, a senior UN staff member:

“leaked an internal UN report on the alleged sexual abuse of children by French troops in Central African Republic to French prosecutors last summer. The French immediately mounted an investigation and revealed…they were investigating up to 14 soldiers for alleged abuse. The French authorities wrote to thank Kompass for passing on the internal report detailing the abuse”.

Notably, the UN suspended Mr Kompass from his job at the UN, arguing that Mr Kompass engaged in misconduct warranting his suspension from duties. It is apparent that the “misconduct” in question concerns allegations that Mr Kompass breached confidentiality by sharing with French authorities “confidential un-redacted preliminary investigative notes” about allegations of sexual abuse of children in the Central African Republic.

As is reported in the article in the Guardian cited above:

The confidential internal report leaked by Kompass contained interviews by a UN official and a member of Unicef with a number of children, aged between eight and 15, who say they were sexually abused at a camp for internally displaced people in Bangui, the capital of CAR, by French troops last year. The interim report identified about 10 children effected but the UN said it was possible many more children had been abused.

A procedural background to Mr Kompass’s suspension

The key facts are contained at paragraphs 1-12 of the judgment of the United Nations Dispute Tribunal (UNDT) in Kompass v Secretary General of the United Nations, Order on an Application for Suspension of Action, 5 May 2015. In summary (footnotes omitted):

  • Mr Kompass is employed at the Director level at the Office of the High Commissioner for Human Rights (OHCHR), Geneva,
  • In July 2014, another senior OHCHR official provided Mr Kompass a copy of a report containing serious allegations of paedophilia allegedly committed in the Central African Republic by French military. Mr Kompas says that “he brought the content of the report to the attention of the Deputy Ambassador of France”. Mr Kompass states that “he informed the Deputy High Commissioner (his supervisor at the OHCHR) that he had seen the report and had discussed the allegations with the Deputy Ambassador of France.
  • Mr Kompass said that in response to a request from the French Permanent Mission to the UN in Geneva, he shared the report with the Permanent Mission. Mr Kompass said that he shared this information with his supervisor at the OHCHR, the Deputy High Commissioner (a disputed fact).
  • On 6 March 2015, the High Commissioner for Human Rights (High Commissioner) became aware that Mr Kompass allegedly leaked confidential investigative notes concerning allegations of sexual abuse.
  • It is uncontested that on 12 March 2015 Mr Kompass was asked to resign by the Deputy High Commissioner who was ultimately relaying the request of the Under-Secretary-General for the Department of Peacekeeping Operations. Mr Kompass refused to resign.
  • Upon a request by the High Commissioner, the body at the UN that conducts investigations of internal staff misconduct, the Office of Internal Oversight Services (OIOS) was then asked to conduct an investigation into Mr Kompass’s actions.
  • Whilst the OIOS investigation was on foot, on 17 April 2015, Mr Kompass, under the internal rules of the UN, was placed on administrative leave with pay (ALWP).

ALWP, as the name suggest disallows the affected staff member from continuing in his or her duties. Being placed on ALWP obviously can cause professional and reputational damage, leaving aside the emotional distress it may cause to a staff member.

On 29 April 2015, Mr Kompass accessed the UNDT requesting relief that the ALWP be suspended, meaning that if Mr Kompass succeeded in his application, then he could return to his duties. To obtain relief, Mr Komposs amongst other things, needed to show that the decision to place him on ALWP was prima facie unlawful, and the decision would cause Mr Kompass irreparable damage.

Why did Mr Kompass have to access the UNDT as opposed to a domestic employment tribunal?

As the UN enjoys immunities before domestic courts, an aggrieved UN staff member cannot approach a domestic court. Employment disputes between the UN and its staff are heard by a tribunal set up by the UN, the United Nations Dispute Tribunal (UNDT), and an appeals tribunal, known as the United Nations Appeals Tribunal (UNAT). These tribunals apply a specialised body of law known as international administrative law (IAL). IAL governs the employment relationship between the UN and its staff. IAL is a specialised body of law that includes aspects of administrative, contract and international law. It is based on both, the common and civil law traditions. While links are discernible, strictly speaking, IAL should be distinguished from the broader notion of Global Administrative Law (GAL), which is an emerging body of law focusing on the “increasing use of administrative law-type mechanisms, in particular those related to transparency, participation, accountability and review, within the regulatory institutions of global governance.” See here for information on the GAL movement.

It is worth noting that in the past, serious criticisms have been levelled at the UN concerning the deficiencies in its internal justice system where cases often took years to resolve. In 2009, after decades of effort, the UN comprehensively redesigned its internal justice system, creating the UNDT and the UNAT. For a discussion, see an earlier article by the author here.

So, is the redesigned system working? The Kompass case is a prime example that while much more needs to be done, progress has been made.

What did the UNDT decide in the Kompass case?

Bearing in mind that the merits of the case have not yet been determined, on the issue of prima facie unlawfulness, the UNDT concluded at para 34 that the UN official who placed Mr Kompass on ALWP did not have the authority to do so; and critically, the decision did not comply with the internal rules of the UN:

39. The Tribunal finds that neither the interest of the Organization, nor the avoidance of any interference with the investigation are reasons in the exhaustive list …of the respective administrative instruction. Therefore, as such, they cannot be accepted as valid reasons for placing the Applicant on administrative leave.

On the issue of irreparable damage, the UNDT said:

49. Therefore, and since the Applicant is currently being prevented from carrying out his functions as a result of being on administrative leave, which is of public knowledge, the Tribunal finds that if the suspension is not granted, the harm done to the Applicant’s reputation will be irreparable and could not be adequately compensated at a later stage.

Mr Kompass has now been reinstated to his position. This decision of the UNDT is undoubtedly a decision consistent with the maintenance of UN accountability to its very own staff members: ensuring that UN management acts within the purview of its internal rules and procedures. This is especially critical as UN staff cannot approach domestic courts for remedies for breach of their terms of employment. Most critically, the fact that Ms Kompass could seek justice within a few days of being placed on ALWP is a testament to the initial success of the new internal justice system. Undoubtedly significant issues with whistle-blower protection exist at the UN, but the Kompass case provides an example that there is reason for cautious optimism regarding access to justice for aggrieved UN staff members.

It bears noting that as per the information in the UNDT’s judgment, Mr Kompass’s appointment at the UN expires on 8 July 2015. It can only be hoped that any renewal of Mr Kompass’s employment does not attract retaliatory action. This case could yet be subject to several more twists, and it is crucial to maintain a close watch.

Guest Post: The End of the Road for Ngudjolo and the Stacked Odds Against ICC Acquitted

by Emma Irving

[Emma Irving is a PhD Researcher at the University of Amsterdam School of Law, and a visiting researcher at Cornell University.]

Earlier this week was the final instalment of the story of the International Criminal Court’s (ICC) first acquittal, with the removal of Mathieu Ngjudjolo Chui from the Netherlands back to the Democratic Republic of Congo (DRC).

It was not altogether surprising when the Appeals Chamber of the ICC upheld the Ngjudjolo’s acquittal on the 27th February this year. What was surprising was the events that followed. Immediately following the judgment, Ngudjolo was escorted by Dutch police to Schiphol International Airport to be deported back to the Democratic Republic of Congo. The plane made it all the way to the runway before being dramatically called back: Ngudjolo was to have his asylum application heard a second time.

Ngudjolo first applied for asylum in the Netherlands in 2012 after he was acquitted by the ICC Trial Chamber. In this case too he made it all the way to Schiphol Airport, but not quite onto a plane, before the Dutch authorities halted the deportation. Ngudjolo contended, and still does, that he would be at risk if returned to the DRC. The Dutch authorities responded to these claims by stating that Ngudjolo had not provided enough evidence of the risks he faced, and that in any event he was excluded from refugee protection as a suspected war criminal. The issue was appealed all the way to the Council of State, the highest administrative body in the Netherlands, which ultimately sided with the Dutch government. It held that Article 1F of the 1951 Refugee Convention, which disqualifies an individual from refugee status if they are suspected of having committed war crimes or crimes against humanity, could be applied despite an acquittal by the ICC. The Council deemed that the evidentiary standard for exclusion was lower than in criminal cases, and that Ngudjolo’s acquittal did not remove suspicion of his involvement in other crimes. The asylum application was denied.

Such is how matters stood up until the appeal judgment. Ngudjolo’s legal team secured a second asylum hearing after he was acquitted on appeal, stopping his immediate deportation. However, on the 23rd of April 2015, this application was also refused. While Ngudjolo can appeal this decision, an appeal will not have suspensive effect, and his deportation was scheduled for the 1st May. For a more detailed procedural history see here and here.

After an application for residence in Switzerland on humanitarian grounds was turned down, Ngudjolo reached the end of the road in terms of preventing his return to the DRC. And that road seemed to be a dead-end all along. The odds were stacked against Ngudjolo from the beginning: 1) he was in a catch-22 position as regards acting as a witness in his own defence, 2) the ICC did not act to assist him, and 3) he could not cast his asylum seeking net beyond the Netherlands.

To begin with Ngudjolo’s role as a witness, he was caught in a no-win situation. Although important in securing his acquittal, the content of Ngudjolo’s testimony prejudiced his position on release. It both prevented him from returning home, and prevented him from remaining in the Netherlands. As regards returning home, Ngudjolo made statements against the DRC government, and in particular, provided a letter that incriminated the DRC government in the attack on the village of Bogoro, for which he himself was standing trial. Speaking out against the powers-that-be in the DRC, Ngudjolo claims, has placed him at great risk. As to remaining in the Netherlands as a refugee, Ngudjolo’s testimony handed the Dutch authorities the evidence they needed to exclude him from refugee protection. In order to prove that he was not involved in the Bogoro attack, Ngudjolo provided details as to his position in the militia hierarchy. The Dutch authorities then used this information, combined with other reports about the conflict, to invoke Article 1F. For reasons that the ICC has kept confidential, Ngudjolo was also excluded from ICC witness protection. He was therefore stuck in a lose-lose situation: give evidence in his own defence but have nowhere to go if acquitted, or do not give evidence and increase the chance of conviction.

Then there was the inaction on the part of the ICC. The dilemma of acquitted persons who cannot return to their home countries is by no means new. The International Criminal Tribunal for Rwanda (ICTR) has been dealing with this thorny issue for years, and still has no firm resolution – while the Tribunal may have wrapped up at the end of last year, there are still acquitted persons living in a safehouse in Arusha. It is perhaps this legacy that has prompted the ICC to act the way it has: to simply open its doors and allow acquitted persons to walk out (and be arrested). Granted, when a person is cleared of all charges, the right to liberty requires their release, as does the Rome Statute (Article 81(3)(c)). However, as Ngudjolo’s case demonstrates, this is not always ideal. When it comes to acquitted persons, the Rules of Procedure and Evidence also have something to say. Rule 185 obliges the Court to make such arrangements as it considers appropriate for the transfer of an acquitted person, taking into account the person’s views, to a State. This can be a State that is obliged to receive the acquitted person, a State that has agreed to receive the person, or a State that has sought the acquitted person’s extradition.

From a reading of the text of Rule 185 alone, it would seem that the ICC can order a transfer to any State willing or obliged to receive the individual. But then there is Article 21(3) Rome Statute. This Article requires that all law applicable to the ICC be interpreted and applied in accordance with internationally recognised human rights norms, of which non-refoulement is one. It is argued that when Rule 185 is read with Article 21(3), it must mean that the ICC cannot order a transfer to a State where the individual would be at risk. This application of Rule 185 would require the creation of a procedure to decide where the acquitted person is to go before they are released. A comparable process is undertaken when an accused is considered eligible for interim release; a hearing must be held in which a State willing to host the accused is identified. Neither this approach to Rule 185, nor apparently any other, was taken in Ngudjolo’s case. His release and hand over to the Dutch police seems to have been done with no formal decision on where he would be taken, at least none that is transparent and publicly available.

The final obstacle facing Ngudjolo was the fact that the Netherlands was his only option for seeking asylum. The construction of the Refugee Convention is such that no other State is obliged to hear an asylum application from him, as he is neither on their territory nor at their border. For this reason he is only able to make applications for humanitarian residence, or variations of, which are entirely discretionary (this limitation is what led to the chronic problem of acquitted persons at the ICTR). The consequence is the overburdening of The Netherlands with asylum claims from not only acquitted, but also witnesses. It is perhaps not surprising that the Netherlands has fought hard against such applications, for fear of establishing a precedent.

In the end it was May 11th, rather than May 1st, that saw Ngudjolo deported from the Netherlands. Interestingly, the website for the 1533 Sanctions Committee still lists Ngudjolo as being subject to a UN travel ban, although this does not seemed to have proven a hindrance. The Ngudjolo case is another instalment in the story of the ICC’s growing pains, and in The Netherlands’ fight to minimise the impact of it hosting the Court. This story will go on as the ICC continues its operations and more judgments are rendered, and it is hoped that in future the odds become a bit more evenly distributed.