Archive for
April, 2016

Anchugov and Gladkov is not Enforceable: the Russian Constitutional Court Opines in its First ECtHR Implementation Case

by Marina Aksenova

[Marina Aksenova is a Post-doc at the Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen. You can reach her at: Marina [dot] aksenova [at] jur [dot] ku [dot] dk.]

On 19 April 2016, the Constitutional Court of Russia (CC) issued its pilot decision testing newly acquired powers to refuse the implementation of the rulings of the European Court of Human Rights (ECtHR) contradicting Russia’s Constitution. The case under review of the CC was Anchugov and Gladkov v Russia. In this case, the ECtHR previously found that automatic and indiscriminate ban on Russian prisoners’ voting rights was disproportionate and thus in violation of Article 3 of Protocol No. 1 (right to free elections) of the European Convention on Human Rights (ECHR). Ever since it was issued in 2013, the Russian authorities viewed this ruling as problematic because it directly contradicts Article 32(3) of the Russian Constitution, which reads as follows:

Deprived of the right to elect and be elected shall be citizens recognized by court as legally unfit, as well as citizens kept in places of confinement by a court sentence.

The CC has been enjoying powers to refuse the implementation of contested decisions of the ECtHR for only nine month, and, more precisely, since 14 July 2015 when it issued ground breaking decision to reaffirm the primacy of the Russian Constitution over the conflicting rulings of the ECtHR and any other international bodies tasked with human rights protection (some aspects of this decision are discussed here and in the second half of this post). On 14 December 2015, the legislature, in line with the position of the CC, amended the law regulating the operation of the Russian Constitutional Court, granting the President and the Government the right to appeal to the Court in instances when they suspect that executing the ruling of the ECtHR may contradict the Constitution. Following the introduction of this new internal review mechanism, the Ministry of Justice swiftly filed an appeal to the CC asking it to rule on the possibility of implementing the ECtHR judgment in Anchugov and Gladkov.

The CC held on 19 April 2016 that the ECtHR judgment in Anchugov and Gladkov could not be executed. The CC adopted, however, a diplomatic approach by not ruling out the introduction of future penalties involving non-custodial sentences that limit the freedom but do not impede on the voting rights. The CC nonetheless insisted on its previous interpretation of Article 32(3) as sufficiently discriminate to satisfy the requirements Article 3 of Protocol No. 1. The Court further stressed European pluralism in what concerns organisation of the electoral processes in different members states as well as inconsistent position of the ECtHR itself in matters concerning voting rights (the CC contrasted Hirst v UK (2005) and Scoppola v Italy (2012) judgments, pointing to a certain change of heart by the Strasbourg court).

The CC distinguished general measures and measures that benefit the applicant in making three important pronouncements:

  • Anchugov and Gladkov cannot be implemented in what concerns general measures involving repealing or changing the imperative provision of Article 32(3) of the Constitution given its supremacy within Russian legal system. The CC found it particularly troubling that the provision in question can only be changed by virtue of adopting a new Constitution;
  • Anchugov and Gladkov can be implemented in what concerns general measures ensuring fairness, differentiation and proportionality of the restrictions on voting rights. Here the CC adopted a rather questionable approach arguing that only a custodial sentence leads to the disenfranchisement of the offender concerned, which ensures sufficient differentiation because most of the first-time offenders charged with minor crimes do not get imprisoned, ergo their voting rights are intact. The ECtHR has however already dismissed this argument in Anchugov and Gladkov (para. 106) pointing to the lack of evidence that courts take into account impending disenfranchisement when deciding on the type of sanction to be imposed on the convicted person. Possibly sensing some weakness in this position, the CC made an additional promise for the future – the legislator may optimise Russian penitentiary system so as to ensure the existence of punishments limiting freedom but not involving imprisonment, thus guaranteeing voting rights to the convicted persons;
  • Finally, Anchugov and Gladkov cannot be executed in what pertains measures benefitting individual applicants because the applicants were convicted for serious offences and sentenced to fifteen years of imprisonment, automatically leading to their disenfranchisement. Moreover, restitutio integrum is simply impossible in this case for the elections that the applicants wished to participate in took place between 2000 and 2008.

14 July 2015 CC Ruling

The CC Anchugov and Gladkov ruling was made technically possible due to the adoption of Continue Reading…

Weekly News Wrap: Monday, April 25, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • U.S. President Barack Obama said on Friday there were no plans to deploy ground troops in Libya, but that the United States would not wait to see if Islamic State starts to gain a foothold there.
  • For the first time since the US launched the so-called War on Terror, two former CIA contractors are in federal court; psychologists James Mitchell and Bruce Jessen, who designed the CIA’s torture programme, are trying to get a judge to throw out the lawsuit filed on behalf of some of the men who were tortured.

Oceania

UN/World

Events and Announcements: April 24, 2016

by Jessica Dorsey

Sponsored Announcements

  • Admissions to the third edition of the Master in Democratic Governance – Democracy and Human Rights in the MENA Region (DE.MA) are open: first round deadline – 30 May 2016; second round deadline – 30 June 2016. DE.MA was created thanks to the support of the European Union and of the Danish Institute for Human Rights. It is based on a partnership between EIUC and the following universities: International University of Rabat (Rabat, Morocco), Birzeit University (Birzeit, Palestine), St Joseph University (Beirut, Lebanon), Ca’ Foscari University (Venice, Italy) and a growing network of partner Universities in the Region. DE.MA is a multidisciplinary curriculum offering courses in law, political science, sociology and other fields relevant to the study of democratic governance and Human Rights. Open to professionals and graduates, it will combine a theoretical and practical approach and it will deliver a professional Master’s degree (60 ECTS) from Ca’ Foscari University, Venice. The main language will be English, knowledge of French and Arabic is recommended. The first semester from mid/late September 2016 until January 2017 is held at the EIUC premises in Venice and the second one from February to May 2017 takes place in one of the partner universities in the Master’s Consortium. Thesis defence and graduation ceremony are in July 2017. DE.MA aims at:
    • Creating high-profile experts in the fields of democratic governance and the protection of human rights, allowing them to act as promoters of a process leading to the affirmation of the democratic principles;
    • Fostering the creation of an élite group of people committed to the promotion of democratic institutions;
    • Building a network of experts to be active in political institutions, in national and international, governmental and non-governmental organisations in the Region.

    Tuition fees amount to 4.000,00 euro. EIUC offers financial support in the form of a partial contribution towards living expenses and/or a full or partial tuition waiver. This type of financial support is awarded to a limited number of students on the basis of academic achievement, need and geographical distribution. More information on the DE.MA, the professors and the programme can be found here.

Call for Papers

  • The Dennis J. Block Center for the Study of International Business Law will sponsor a Scholars’ Roundtable on October 14, 2016 at Brooklyn Law School. Scholars writing in a diverse range of fields related to international business, economic, and financial law are invited to submit proposals to present works in progress for an intense day of discussion with other scholars in the field. Participants will be expected to read all papers in advance of the Roundtable and offer commentary on each of the presentations. More information can be found here.

Event

  • Uppsala University is hosting a Symposium June 3rd titled “International Investment Law as a Field for Scholarly Research,” features several young scholars and will explore several aspects of international investment law research. It is hosted by Uppsala University, together with the Nordic Network on Investment Law and the Swedish Institute of International Law. More information can be found here.

Announcements

  • In commemoration of the 70th Anniversary of the International Court of Justice, the Codification Division of the UN Office of Legal Affairs has recently added the following interview recordings in French to the UN Audiovisual Library of International Law website: President Abraham – “La Cour internationale de Justice à l’aube de son soixante-dixième anniversaire” and the Registrar, Mr. Couvreur, – “Le déroulement du procès devant la Cour internationale de Justice”.
  • Maastricht University has announced an essay competition on the question of sovereignty over the Falklands (Malvinas). 16 December 2015 marked the 50th anniversary of the adoption of UNGA Resolution 2065, which was the first General Assembly’s resolution to address specifically the question of the Falklands (Malvinas). By Resolution 2065 the Assembly noted the existence of a sovereignty dispute over those territories between the UK and Argentina and recommended both States to negotiate the settlement of the dispute. The resolution is still awaiting implementation, as the dispute remains unsettled and there are no negotiations going on. The essay topic is: How can the sovereignty dispute over the Falklands (Malvinas) be settled? The essay requirements are found in the link below. The deadline is 30th of June, 2016. The competition is open to bachelor’s and master’s students from universities based in the European Union. More information can be found 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.

Jus ad Bellum Implications of Japan’s New National Security Laws

by Craig Martin

[Craig Martin is an Associate Professor at the Washburn University School of Law. He specializes in international law and the use of armed force, and comparative constitutional law He can be reached at: craigxmartin [at] gmail [dot] com.]

Far-reaching revisions to Japan’s national security laws became effective at the end of March. Part of the government’s efforts to “reinterpret” Japan’s war-renouncing Constitution, the revised laws authorize military action that would previously have been unconstitutional. The move has been severely criticized within Japan as being a circumvention and violation of the Constitution, but there has been far less scrutiny of the international law implications of the changes.

The war-renouncing provision of the Constitution ensured compliance with the jus ad bellum regime, and indeed Japan has not engaged in a use of force since World War II. But with the purported “reinterpretation” and revised laws – which the Prime Minister has said would permit Japan to engage in minesweeping in the Straits of Hormuz or use force to defend disputed islands from foreign “infringements” – Japan has an unstable and ambiguous new domestic law regime that could potentially authorize action that would violate international law.

By way of background, Article 9 of Japan’s Constitution provides, in part, that the Japanese people “forever renounce war as a sovereign right of the nation and the threat or use of force in the settlement of international disputes.” It was initially drafted by a small group of Americans during the occupation, and they incorporated language and concepts from the Kellogg-Briand Pact of 1928, and Article 2(4) of the U.N. Charter that had been concluded just months earlier. Thus, Article 9 incorporated concepts and language from the jus ad bellum regime for the purpose of imposing constitutional constraints that were greater than those imposed by international law, and waiving certain rights enjoyed by states under international law. While drafted by Americans, it was embraced by the government and then the public, such that it became a powerful constitutive norm, helping to shape Japan’s post-war national identity. (For the full history, see Robinson and Moore’s book Partners for Democracy; for a shorter account and analysis, see the law review article “Binding the Dogs of War: Japan and the Constitutionalizing of Jus ad Bellum”).

Soon after the return of full sovereignty to Japan in 1952, the government interpreted this first clause of Article 9 as meaning that Japan was entitled to use the minimum force necessary for individual self-defense in response to an armed attack on Japan itself. It also interpreted it as meaning that Japan was denied the right to use force in the exercise of any right of collective self-defense, or to engage in collective security operations authorized by the U.N. Security Council. These were understood to be the “sovereign rights of the nation” under international law that were waived by Japan as a matter of constitutional law.

All branches of government have consistently adhered to this interpretation every since. In 2014, however, frustrated in its efforts to formally amend Article 9, Continue Reading…

Does the “Justice Against Sponsors of Terrorism Act” Violate International Law?

by Julian Ku

President Obama has threatened to veto a bill pending in the U.S. Congress that would allow private plaintiffs to sue foreign sovereigns for committing (or abetting) terrorist attacks inside the territory of the United States.  The Justice Against Sponsors of Terrorism Act has broad bipartisan support in Congress and from all of the presidential candidates (including Hillary Clinton). It would add an exception to the general rule of  immunity for foreign sovereigns in U.S. courts in cases

in which money damages are sought against a foreign state arising out of physical injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of the office or employment of the official or employee (regardless of where the underlying tortious act or omission occurs), including any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act, or any claim for contribution or indemnity relating to a claim arising out of such an act...

(emphasis added).

The bill drew more attention this week when the NY Times reported that Saudi Arabia is threatening to dump $750 billion in U.S. assets in retaliation for allowing the bill to become law.  Lawsuits from September 11 victims against the Saudi government would benefit tremendously from this law.

Anything with this much bipartisan support must be wrong in some important way. I suppose one reason to be skeptical is that it would mix delicate political and diplomatic relations into judicial proceedings where private lawyers can demand discovery into a foreign government’s internal deliberations and activities.

 Another reason is that there seems little basis in international law for creating an exception to sovereign immunity for terrorist attacks, or supporting terrorist attacks.  The traditional view of sovereign immunity is that it is absolute, and that remedies against a sovereign must be sought in diplomatic or international fora.  Allowing a domestic judicial proceeding to judge the actions of a foreign sovereign would seem to undermine this basic idea.

But there are exceptions to sovereign immunity, such as for commercial activities, that much of the world accepts. It is just not clear whether a new exception can and should be created here. I am doubtful, but I am willing to be convinced.

The $50 BILLION Treaty Interpretation Question: Dutch Court Sets Aside Yukos Award Against Russia

by Julian Ku

Russia scored a huge victory today when the Hague District Court in the Netherlands court set aside a $50 billion arbitral award in favor of former shareholders of Yukos.  The $50 billion Yukos award (that’s BILLION, with a “B”),  is the largest arbitration award ever issued, was issued under the authority of the Energy Charter Treaty.  The arbitral tribunal (hosted at the Permanent Court of Arbitration) had found that the Russian government was liable for expropriating the former shareholders of Yukos through use of tax laws, harassment, criminal punishments, and other government measure without providing adequate compensation.

The Hague District Court set aside the award on jurisdictional grounds.  According to this English-language summary, the Dutch court held that Russia was not bound to arbitration under the Energy Charter Treaty because it never ratified the ECT.  The arbitral tribunal held in its interim award that Russia was bound under Article 45, which calls for provisional application of the treaty pending ratification.  But the Hague District Court disagreed.

Here is Article 45(1) and (2)(a):

(1) Each signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations.

(2) (a) Notwithstanding paragraph (1) any signatory may, when signing, deliver to the Depository a declaration that it is not able to accept provisional application. The obligation contained in paragraph (1) shall not apply to a signatory making such a declaration. Any such signatory may at any time withdraw that declaration by written notification to the Depository.

Russia did not make such an Article 45(2) declaration, but the Dutch Court held that Article 45(1) still acted as a jurisdictional bar on the arbitral tribunal’s jurisdiction because it requires the arbitral tribunal to go back and assess whether the dispute resolution provision (Article 26) of the Energy Charter treaty is “inconsistent” with Russia’s “constitution, laws or regulations.”  the Dutch court concluded that Russia’s constitution does not permit it to be bound to an arbitration assessing the legality of its tax laws without the consent of its legislature.

I don’t have a strong view on who is right here. I will note that Russia is represented by the well-known New York law firm Cleary Gottlieb (where I once toiled as a young summer associate) and that Russia mustered an impressively long list of international law experts on its behalf such as Martti Koskenniemi, Alain Pellet, and Gerhard Hafner (to list just a few).  The claimants had their own impressive list including James Crawford and my former Yale professor Michael Reisman.  This is a truly difficult treaty interpretation question, which just happens to have $50 billion riding on it.  So we can be sure there will be an appeal of the Hague District Court’s ruling.

It is worth noting that also that Russia has a lot riding on this case, but it also decided to litigate this matter fully even though it believes the tribunal has no jurisdiction.  This turns out to be a smart move, since they seem to have won (for now) and because not litigating would have still subjected them to lots of enforcement actions against them around the world. So litigation seems to have worked out for Russia this time. I wonder if that will encourage Russia  to try its hand at litigation in future cases as well?

 

Rest in Peace, John Jones QC

by Kevin Jon Heller

It is with great sadness — and ongoing shock — that I report the unexpected passing of John Jones QC, one of the great international lawyers. Accomplishments are not important at a time like this, but here is a snippet from his Doughty Street International profile to give readers  a sense of what a spectacular barrister John was:

John has acted as Counsel in 5 cases before the International Criminal Tribunal for the former Yugoslavia (“ICTY”) – in two cases (Naser Oric and Ante Gotovina/ Mladen Markac), his clients were acquitted of all charges on appeal. Two of his other ICTY cases were not completed due to the death of the acused (Mehmed Alagic and Rasim Delic). In the fifth case, he appeared as Counsel as part of the amicus curiae team (Krajisnik). John was also the first head of the Defence Office of the Special Court for Sierra Leone (SCSL) and legal officer at the International Criminal Tribunal for Rwanda (ICTR), contributing to  the first Judgment on genocide. He was one of only 8 counsel assigned as defence counsel at the Special Tribunal for Lebanon (STL), established to try those allegedly responsible for the killing of former Lebanese Prime Minister Rafik Hariri in an explosion on 14 February 2005.

I had the great honour of considering a John a good friend. I first got to know him during the Gaddafi case, when he and I regularly exchanged emails about Libya’s complementarity challenge. And then he encouraged me to join the Doughty Street team as an academic member. John was, quite simply, a wonderful person — warm, funny, supportive. I never met anyone who didn’t like him, even people who had to face him the courtroom. I know I liked him. Very much.

I will miss John dearly, and my heart goes out to his beloved wife and two remarkable children. We all deserved to have John longer, but we’re lucky to have had him at all.

Requiescat in pace, John.

Call for Interns: International Crimes Division of the High Court of Uganda

by Kevin Jon Heller

The following opportunity may be of interest to OJ readers who are law students:

The Registrar of the International Crimes Division (“ICD”) of the High Court of Uganda has issued a call for interns to assist the court in its first war crimes case against former Lord’s Resistance Army member Thomas Kwoyelo. Opportunities are available in the ICD’s Office of the Prosecutor, Registry and Chambers in Kampala, Uganda. Further information, application and contact details can be found here.

Applications are being accepted until May 2016, so act quickly!

Happy Birthday to the International Court of Justice!

by Julian Ku

We would be remiss here at Opinio Juris if we did not mark today’s 70th anniversary of the opening of the International Court of Justice on 18 April 1946 at the Peace Palace in The Hague.  I have been fairly critical of the ICJ over the years. Way back in 2005, I complained about the ICJm22133338_241x164-international-court-of-justice‘s molasses-like deliberations.  (I also inadvertently declared an ICJ member dead when he was (and still is) very much alive.)  But I do think the ICJ is an important and interesting participant in the development of international law, even if it is not as important as it would like to be.

Having said all that, the ICJ is an ongoing experiment in the use of permanent international judicial institutions to resolve state-to-state disputes, and it has had its fair share of successes over the years.  So let’s take today and celebrate its 70th birthday by viewing films from its opening day and interviews with its current registrar.  We can save our grousing for tomorrow and other days.

Stay in Your Lane! When Political Scientists Become Bad International Lawyers

by Julian Ku

Next month’s issue of Foreign Affairs, a leading journal of highbrow foreign policy in the U.S., features an important article on the United States as “The Once and Future Superpower” (subscription).  Based on their forthcoming book, professors Steven Brooks and William Wohlforth of Dartmouth College argue that China is not going to displace the United States as the world’s leading superpower in the near or even mid-range future.

As an article analyzing global power politics, it seems fairly (although not completely) persuasive.  But I was struck by how the otherwise carefully argued piece descends into complete gibberish when it tries to explain how “international law” can be a tool for the United States to constrain and manage China’s activities in the South China Sea.

And if Beijing tried to extract economic gains from contested regions [in the South China Sea], Washington could facilitate a process along the lines of the proportional punishment strategy it helped make part of the World Trade Organization: let the Permanent Court of Arbitration, in The Hague, determine the gains of China’s illegal actions, place a temporary tariff on Chinese exports to collect exactly that much revenue while the sovereignty claims are being adjudicated, and then distribute them once the matter is settled before the International Court of Justice.

Whaaaahhht?

In this one sentence, the authors propose that an arbitral tribunal convened under UNCLOS issue an award granting money damages to the Philippines. This is somewhat unlikely, but it is theoretically possible.  But who exactly is going to place a “temporary tariff on Chinese exports”?  The United States? A country that is not party to the dispute between China and the Philippines? And why exactly wouldn’t this cause a trade war with China and why wouldn’t it violate the WTO Agreement? And when exactly did the International Court of Justice get involved given that China has not consented to that court’s compulsory jurisdiction?  

Not only is this not a plausible mechanism for sanctions against China (the world’s second largest economy), but it is not a plausible mechanism for sanctions against almost any country in the world.  It has never been done before outside of the trade context, where every country specifically agreed to the trade sanction system in advance! 

The authors’ casual, offhand explanation of how “international law” is an asset that can be used for pursuing policy goals irrespective of existing legal institutional frameworks and legal principles is something I’ve noticed before in political science literature.  The “law” argument is not a bad one in principle, but it requires a deeper understanding of law as an independent analytical field than political scientists are willing to give it credit for.

As it stands now, this otherwise interesting article loses credibility with policymakers because the authors didn’t bother to try to understand how law and legal institutions are organized.  Maybe they should just skip over the legal stuff, and stay in their own lanes.  Or maybe they could find a reader up there in New Hampshire with a J.D. (I’m always available!).

Weekly News Wrap: Monday, April 18, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Interview with David Remnick About Syria

by Kevin Jon Heller

I had the pleasure about a week ago to discuss Syria with David Remnick for the New Yorker Radio Hour. Most of the questions, not surprisingly, focused on whether I thought there was any realistic prospect that Assad would face justice. (My answer: probably not.) The show went live a couple of days ago — I was traveling and didn’t have access to internet — but you can find the podcast here. My interview lasted about 25 minutes, and I highly recommend the segment on Syria that precedes it.

Thoughts most welcome!

New Decision Finds UN Responsible in Kosovo Lead Poisoning Case

by Kristen Boon

The Human Rights Advisory Panel has found UNMIK, the UN Mission in Kosovo, responsible for breach of a number of human rights provisions connected with lead poisoning of the Roma population following the 1999 conflict.   Under Section 2 of UNMIK Regulation No. 2006/12, t the Panel has jurisdiction over complaints relating to alleged violations of human rights   “that   had   occurred   not   earlier   than   23   April   2005   or   arising   from   facts   which   occurred prior to this date where these facts give rise to a continuing violation of human   rights”.

The facts of the case first launched in 2008 are summarized as follows:

the complainants are 138 members of the Roma, Ashkali and Egyptian (RAE)2 communities in Kosovo who used to reside in the camps for internally displaced persons (IDPs) set up in northern Mitrovicë/Mitrovica since 1999. All complainants claim to have suffered lead poisoning and other health problems on account of the soil contamination in the camp sites due to the proximity of the camps to the Trepca smelter and mining complex and/or on account of the generally poor hygiene and living conditions in the camps. The Trepca smelter extracted metals, including lead, from the products of nearby mines from the 1930s until 1999.

In the recently released decision 26-08 NM etal Opinion FINAL 26feb16 the panel noted at para. 207 that:

 the heavy exposure to contamination, coupled with poor living conditions in the camps, a situation which lasted for more than 10 years, three of them within  the  Panel’s  jurisdiction,  was such as to pose a real and  immediate  threat  to  the  complainants’  life  and  physical  integrity. The Panel also considers established the bad health conditions incurred by the complainants, and especially by children and pregnant women, as a result of their prolonged exposure to lead.

Ultimately, the panel found that UNMIK breached articles 2,3 and 8 of the ECHR (including the right to life, the right to be free from degrading and inhumane treatment, and the right to family life), Arts 2, 11, 12 and 23 of the ICESR (including the right to health and adequate standard of living), Arts. 2 and 26 of the ICCPR, and various provisions of CEDAW and the CRC due to the increased risk that pregnant women and children face from lead exposure.

With regards to remedies, the Panel recommended that UNMIK:

PUBLICLY ACKNOWLEDGES, INCLUDING THROUGH THE MEDIA, UNMIK’S   FAILURE   TO   COMPLY   WITH APPLICABLE HUMAN RIGHTS STANDARDS IN RESPONSE TO THE ADVERSE HEALTH CONDITION  CAUSED BY       LEAD CONTAMINATION IN THE IDP CAMPS AND THE CONSEQUENT HARMS SUFFERED BY THE COMPLAINANTS, AND MAKES A PUBLIC APOLOGY TO THEM AND THEIR FAMILIES;

TAKES APPROPRIATE STEPS TOWARDS PAYMENT OF ADEQUATE COMPENSATION TO THE COMPLAINANTS FOR MATERIAL DAMAGE IN RELATION TO THE FINDING OF VIOLATIONS OF THE HUMAN RIGHTS PROVISIONS LISTED ABOVE;

TAKES APPROPRIATE STEPS TOWARDS PAYMENT OF ADEQUATE COMPENSATION TO THE COMPLAINANTS FOR MORAL DAMAGE IN RELATION TO THE FINDING OF VIOLATIONS OF THE HUMAN RIGHTS PROVISIONS LISTED ABOVE;

It is hard to tell at this stage what influence this decision will have.   A Chatham House report from 2012 reported that at that date,  the UN had not acted on similar recommendations to pay compensation.

“although the Panel has recommended that UNMIK award ‘adequate compensation for non-pecuniary damage’ to date no compensation has been paid out on the basis of the Panel’s recommendations.”

Nonetheless, the decision creates important precedents in other ways.  It is to be contrasted, in particular, with the fate of a decision rendered in 2011 under a different process established by the General Assembly, in which the UN’s immunities blocked the claims.   I discuss this decision in a recent article on mass torts against the UN, and copy the relevant paragraph below:

This claim was brought by private claimants to the U.N. under a procedure established by General Assembly Resolution 52/24768 within six months from the time of the injury, asking for compensation and remedies for economic losses. The U.N. rejected the claim on July 25, 2011, stating by letter that the claims “do not constitute claims of a private law character and, in essence, amount to a review of the performance of UNMIK’s mandate . . . therefore, the claims are not receivable.” The U.N.’s response gave no explanation for why these were deemed to be public law claims, other than to note that the claims “alleged widespread health and environmental risks arising in the context of the precarious security situation in Kosovo.” In a more recent communication addressing the U.N.’s position on private torts claims generally, the U.N. added the following justification for its rejection of the Kosovo claim: The claims were considered by the Organization not to be of a private law character since they amounted to a review of the performance of UNMIK’s mandate as an interim administration, as UNMIK retained the discretion to determine the modalities for the implementation of its interim administration mandate, including the establishment of IDP camps.

 

The merits decision was issued after the case was refiled in October 2011 pursuant to the decision noted above.  Significantly, the reasoning was similar to that used to reject the claim against the UN for bringing cholera to Haiti.

Complementarity Compromised? The ICC Gives Congo the Green Light to Re-Try Katanga

by Patryk Labuda

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.]

On 7 April 2016, the ICC made an important but troubling decision in the case of Germain Katanga. After reviewing a request from the authorities of the Democratic Republic of Congo (DRC), the ICC Presidency determined that, in spite of the Rome Statute’s prohibition of double jeopardy, a Congolese military tribunal may effectively re-try Katanga on charges of war crimes and crimes against humanity. In addition to fair trial concerns, this decision raises a number of questions about the ICC’s raison d’etre, in particular the relationship of international criminal justice to human rights law and the future of complementarity.

Readers of this blog will know that Katanga’s trial has generated significant controversy over the years, especially as regards the ICC judges’ use of Regulation 55 (covered by Kevin Jon Heller here and here). A Congolese rebel re-integrated into the national armed forces, Katanga was convicted of war crimes and crimes against humanity in March 2014. Later that year, the ICC sentenced him to twelve years imprisonment, of which he had already spent seven years in detention at the ICC. In November 2015, just 18 months into his sentence, the ICC decided that he was eligible for early release, meaning Katanga would be a free man in January 2016.

Everything seemed to be going well for Katanga, when in December 2015 he made the fateful and still inexplicable decision to return to the DRC to finish serving his sentence. Shortly after he was transferred to a prison in Kinshasa (together with his compatriot and fellow ICC inmate Thomas Lubanga), rumors surfaced that the Congolese authorities would want to prosecute Katanga domestically. Sure enough, a few weeks before his scheduled release, the Congolese authorities announced Katanga would be tried in the DRC for war crimes and crimes against humanity.

It should be noted at the outset that Katanga’s trial in the DRC is not prohibited as such by the Rome Statute. That multiple courts may assert jurisdiction over a single suspect flows from the ICC’s principle of complementarity. However, national prosecutions cannot violate Article 20 (2), which guarantees that “[n]o person shall be tried by another court for a crime… for which that person has already been convicted or acquitted by the [ICC].“

A reaffirmation of the cardinal human rights principle ne bis in idem (known as double jeopardy in the common law, though there are some differences), this provision basically ensures that ICC defendants will not be tried for the same crimes twice.

Simple enough in theory, Article 20 is not as clear as it should be. International crimes are by their very nature composites of multiple crimes, which means that unless a person is tried and convicted for everything they did in their first trial, there will almost always be additional charges that a thorough or overzealous national prosecutor can bring in domestic proceedings.

Thus, the key question is who gets to decide whether a national court may prosecute an ICC defendant for ‘a crime for which that person has already been convicted or acquitted.’ It would be extremely problematic if national courts were free to decide this vexing issue, especially in cases such as Katanga’s, where the defendant is a former rebel who fought to overthrow the government currently in power. Thankfully, the Rome Statute recognizes this risk and gives the ICC the final word:

A sentenced person in the custody of the State of enforcement shall not be subject to prosecution… unless such prosecution… has been approved by the Court at the request of the State of enforcement.

It is Article 108 (1) that lies at the heart of the ICC’s decision to allow Continue Reading…

Weekly News Wrap: Monday, April 11, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • John Kerry on Monday became the first U.S. secretary of state to pay his respects at Hiroshima’s memorial to victims of the 1945 U.S. nuclear attack, raising speculation that U.S. President Barack Obama might visit in May.
  • A Canadian aboriginal community of 2,000 people declared a state of emergency on Saturday after 11 of its members tried taking their own lives this month and 28 tried to do so in March, according to a document provided by a local politician.

Oceania

UN/World

Events and Announcements: April 10, 2016

by Jessica Dorsey

Sponsored Announcements

  • Admissions to the Seminar “Public Health and Human Rights – Current Challenges and Possible Solutions” (19 May 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 25 April 2016. The issue of global health governance deals with the question how to regulate efficiently a panoply of actors in global health, such as international organisations, States, NGOs (including philanthropic foundations), private-public partnerships, pharmaceutical companies, individuals and others. Recently, a concept of global health law has been developed for the improvement of health worldwide (L. Gostin), which comprises legal instruments developed by the WHO and other organisations, human rights documents that protect the right to health and standards that deal with social justice and the prohibition of discrimination.Key-Note Lecturer is Stefano Semplici is Professor of Social Ethics at «Tor Vergata» University. He is the former Chairperson of the International Bioethics Committee of Unesco (since 2008) and Chairperson of the Bioethical Committee of the Italian Society for Pediatrics. He is the Scientific Director of the University College “Lamaro-Pozzani”. Other lecturers: Prof. Brigit Toebes (Groningen), Prof. Vesna Švab (Ljubljana), Dr. Gorik Ooms (Protection International), Dr. Sondus Hassounah (Imperial College), Dr. Chamundeeswari Kuppuswamy (Hertfordshire), Prof. Stefania Negri (Salerno), Prof. Stéphanie Dagron (Geneva), Rossella Miccio (EMERGENCY), Prof. Sarah Hawkes (University College London). Interested candidates should register by compiling the online application form. For any query about the seminar please contact us at training [dot] publichealth [at] eiuc [dot] org.

Calls for Papers

  • The Tel Aviv University Buchmann Faculty of Law is pleased to invite submissions to its fourth annual workshop for junior scholars in law. The workshop provides junior scholars with the opportunity to present and discuss their work, receive meaningful feedback from faculty members and peers and aims to invigorate the scholars’ active participation in the community of international junior scholars in law. Call for papers for the 4th Annual TAU Workshop for Junior Scholars that will take place on November 21-23, at Tel-Aviv University Faculty of Law. Abstracts of up to 700 words of the proposed presentation (with a short bio and your current institutional affiliation(s)) should be submitted by email to TAU [dot] junior [dot] scholars [at] gmail [dot] com by May 16, 2016. Applicants requesting travel grants and/or accommodation should indicate so in their submission, along with the city they expect to depart from and an estimate of the funds requested. A link to the call for papers and more information can be found at the faculty’s website.
  • The Faculty of Law at The University of Western Australia is convening the Fourth Annual International Criminal Law Workshop on 15-16 September 2016. The keynote speaker for this event is the Honourable Justice Kevin Parker, former Judge of the International Criminal Tribunal for the former Yugoslavia.  The Workshop organizers – Professors Holly Cullen, Philipp Kastner and Sean Richmond – request paper proposals of up to 400 words that examine the theme “The Politics of International Criminal Law”, or ICL more generally. The deadline for abstract submission is Monday 9 May 2016.  Following the Workshop, selected papers will be published in a special issue of the peer-reviewed International Criminal Law Review and, possibly, an expanded edited book with Brill Publishing.  To support and incentivize leading PhD students and Early Career Researchers throughout Australia and abroad to present at the Workshop, we are pleased to provide up to five travel awards of up to $1,000. For more information, please consult the Call for Papers.
  • The Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa invite submissions for participation in a young researchers workshop on “Terrorism and Belligerency”. See also this link for more information.

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.

The Ruto Trial Chamber Invents the Mistrial Without Prejudice

by Kevin Jon Heller

As readers no doubt know, on Tuesday the ICC’s Trial Chamber declared a “mistrial” in the case against William Ruto and Joshua Arap Sang. The decision likely puts an end to the fiasco of the Ocampo Six — now the “Ocampo Zero,” to borrow Mark Kersten’s nicely-turned expression — although the Trial Chamber dismissed the charges “without prejudice,” leaving the door open for the OTP to prosecute Ruto and Sang again if its evidence ever becomes stronger.

The decision is obviously terrible for the OTP. And it is difficult not to feel sympathy for its plight: although I fully agree with the majority that no reasonable finder of fact could convict Ruto and Sang on the evidence presented during the OTP’s case-in-chief, Kenya has consistently refused to cooperate with the Court (despite its treaty obligations under the Rome Statute) and the allegations that pro-Ruto and Sang forces intimidated (and perhaps even killed) witnesses seem well-founded. In the absence of those serious limitations on its ability to investigate, it is certainly possible the OTP might have been able to establish a case to answer.

In this (extremely long) post, however, I want to address a different issue: the majority’s decision to declare a mistrial and dismiss the charges against Ruto and Sang without prejudice, instead of entering a judgment of acquittal. That is very much a distinction with a difference: had the majority acquitted Ruto and Sang, the OTP could not prosecute them again for the same conduct, because Art. 20 of the Rome Statute — the ne bis in idem provision — specifically provides that “no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.”

My question is this: where did the majority get the idea it could declare a mistrial instead of granting the defence’s no-case-to-answer motion? Unfortunately, Neither Judge Fremr nor Judge Eboe-Osuji provide a convincing answer to that question. On the contrary, they have simply invented the possibility of a mistrial in order to leave open the possibility of Ruto and Sang being re-prosecuted…

Friends Don’t Let Friends Torture: Comment on Youssef v. Secretary of State for Foreign and Commonwealth Affairs

by Matthew Sands

[Matthew Sands is a Legal Advisor with the Geneva based NGO, Association for the Prevention of Torture (APT) the full judgment on this case is available here.]

In late January, the UK Supreme Court published its judgment in the case of Youssef. In 2005, Mr. Youssef had been suspected of involvement in terrorist-related activity, and Egypt had requested the UN sanctions committee mandated under UN Security Council resolution 1267 to impose targeted sanctions on Youssef including an assets freeze and a travel ban. The UK Secretary of State for Foreign and Commonwealth Affairs agreed with the designation, and this blog asks whether alternative actions by the UK would have been more consistent with international law.

One issue decided by the case was whether the UK Secretary of State should step in and intervene when other States might be relying on evidence tainted by torture, in deciding whether to add Youssef’s name to the UN Sanctions list. Though the Secretary of State had not relied on tainted evidence himself, Youssef argued the decision to support the sanctions committee’s designation effectively sanctioned or consented to the use of torture-tainted information which had likely been used by other States to influence their own decisions.

In its ruling, the UK Supreme Court restated an earlier ruling that international law empowered, but did not oblige, the Secretary of State to so intervene. Ultimately, the Court ruled that the Secretary of State may simply turn a blind eye to the possible jus cogens violations of partner States in the UN.

We should emphasise that this was a possible jus cogens violation. It was not shown that the evidence on which other States relied was definitely the result of torture. The UK Supreme Court seems willing to distinguish between this and a definitive finding of illegality, which could engage a duty to intervene. In its reasoning, the Court examined the ICJ Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory that placed other States under an obligation “not to recognise the illegal situation resulting from construction of the wall” and “not to render aid or assistance in maintaining the situation created by such construction” (ICJ, para.159). The Supreme Court reasoned that such rules “do not suggest or imply any duty on States to inquire into the possible reliance on such evidence by other States […] The obligations held to arise out of the International Court’s decision on the Palestinian wall are nothing in point. They followed a definitive finding of illegality.” [emphasis added] (at 29).

In accepting that duties likely flow from definitive knowledge of unlawful acts, but not from mere suspicion, the UK Supreme Court leaves open a gap that State actors will surely exploit. This is because it is understandably extremely difficult for anyone, whether a complainant or a State, to establish that information obtained overseas, often from victims who remain detained and who continue to be at risk of further torture, were tortured in order to get it.

Absent a definitive finding of illegality (and in these circumstances, it seems unlikely that such a finding would be made) the Youssef ruling implies no duty on the State to act in any way which stymies the possible jus cogens violations of others.

This conclusion seems at odds with the ICTY’s Furundžija judgment which was one of the authorities considered by the Court that recognised positive obligations of States “not only to prohibit and punish torture, but also to forestall its occurrence” (Furundžija, para.148). The ruling would also seem to be plainly inconsistent with settled jurisprudence of various international and regional bodies which require States to take effective measures to prevent torture and to ensure that evidence which cannot be shown to be untainted from the stain of torture is excluded in any proceeding.

The ruling in Youssef is therefore likely to frustrate the work of actors who assert that States can and should do more than passively respect the absolute prohibition if they are to actually stop torture in practice.

By failing to object to the designation placing his name on the sanctions list, Youssef argued that the Secretary of State did not fulfil an obligation to insist on respect for the prohibition against torture, which includes a duty not to rely on the fruits of torture. The UK Supreme Court recalled further passages from Furundžija that the prohibition of torture imposes on States “obligations owed to all the other members of the international community, each of which then has a correlative right. […] [A]nd every member […] then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued” (Furundžija, para.151).

In recognising that the UK has the right, rather than the obligation, to insist that other States reject evidence obtained by torture, the Court retained its customary deferential position to the State in the exercise of prerogative powers. A better reading might have been to accept that the positive duty to forestall a breach of the prohibition against torture required the Secretary of State to withdraw from any decision where tainted evidence was likely being considered.

Putting law to one side for a moment, as a recognised purpose of the UN, States should cooperate towards universal respect and observance of human rights through the exercise of friendly relations. It then begs the question, what would a friend do if confronted with the possibility that others relied on evidence tainted by torture?

The responsible thing to do would be to refuse to offer support for the designation of the UN sanctions committee, avoiding injury to individuals wrongly listed and to States themselves, until the committee was in a better state to make a fair decision based on untainted evidence. This would be more consistent with the role of the Secretary of State as a person constrained by a professional and a legal duty to uphold the obligations of international law, such as those described in the Convention against Torture.

In finding that the Secretary of State did not have an obligation to intervene, the UK Supreme Court gave the UK and others just enough wiggle room to permit torture and its fruits to continue to be collected and used. There is a risk that the judgment will be relied on elsewhere to show that wilful blindness to torture committed overseas is an excuse to do nothing. It is not.

The Next UN Secretary General – Public Meetings Starting Soon

by Kristen Boon

Importantly, and for the first time, meetings will soon be held with all candidates for the post of UN Secretary General, enabling them to present their candidatures.  Member States will also have the opportunity to ask questions.   Mogen Lykketoft, president of the GA, has publicized his plans for these meetings in letters here and here.

A current list of candidates (and their accompanying documents) for the position is available here, and includes the recently announced Helen Clark of New Zealand, Antonio Guterres of Portugal, Danilo Turk of Slovenia, and Vesna Pusic of Croatia.  The informal dialogues noted below are scheduled for April 12-14, and will be webcast on UN TV:   http://webtv.un.org.

Tuesday, 12 April 2016 [Trusteeship Council]

Wednesday, 13 April 2016 [Trusteeship Council]

Thursday, 14 April 2016 [Trusteeship Council]

9 AM – 11 AM

Dr. Igor Lukšić Dr. Danilo Türk

11 AM – 1 PM

Ms. Irina Bokova Dr. Vesna Pusić  Helen Clark

3 PM – 5 PM

Mr. António Guterres Ms. Natalia Gherman Dr. Srgjan Kerim

Other organizations are also holding meetings with the candidates, such as the International Peace Institute (IPI) whose conversation with Dr. Pusic was broadcast yesterday and can be viewed here.

Despite this new process, a recent New York Times article suggests this move towards more dialogue will have little substantive effect:

In the end, the selection will be made by the five permanent members of the Security Council, who will send that person’s name to the 193-member General Assembly for approval. As in the past, the deliberations are likely to be shaped more by diplomatic jockeying between Moscow and Washington than what the candidates say or do in public hearings that start next week. The Russian ambassador, Vitaly I. Churkin, made this clear to diplomats who asked him about the new pressure for transparency.

Given recent negative press about the relevance of the Organization, this possibility makes it all the more important for Member States and civil society to strategically engage the candidates, and raise agenda setting items early.   For background on the push for a new and more transparent selection process, see my post here.

Some of the issues that are being raised with the candidates include qualities of a new SG (with gender being a frequently discussed topic in the current campaign);  how the UN should respond to new threats to peace and security including asymmetrical warfare, whether we need more peacekeepers, and how their quality (training) can be maintained and improved.

Another frequent question is how the UN should respond to claims against the Organization, including the Haiti Cholera case and recent allegations of sexual abuse by UN peacekeepers.   To date, Danilo Turk has been most concise and convincing on this point, stating in the Times article noted above that he hoped the organization would “provide the victims with a fair process and an effective remedy.”   Dr. Pusic’s response in the IPI interview yesterday was disappointing:  she suggested more study was needed, and quickly moved on.

What questions would you like to pose to Secretary General Candidates?

The U.S. Embargo on Cuba Should Be Lifted, But It is Not a Blockade, and Perfectly Legal

by Julian Ku

Last week, I accompanied a group of Hofstra Law students on a one-week study abroad “field study” in Havana, Cuba. We visited just a week after President Obama’s historic visit and a day after an almost equally historic Rolling Stones concert.  The trip gave my students and I an opportunity see how some of the effects of President Obama’s effort to normalize relations with Cuba, and also how the U.S. embargo on Cuba is viewed bimage1y Cubans.

It also gave me a chance to think again about my earlier analysis of Cuba’s argument that the U.S. embargo violates international law.  I still think Cuba’s description of the U.S. embargo as a “blockade” is ludicrous. But I am more sympathetic to legal criticisms of the
extraterritorial effects of the U.S. embargo.

First, as the photo suggests, Cuba calls the U.S. embargo a “blockade”.  Indeed, the billboard (which faces visitors as soon as they drive in from the airport), refers to the “bloqueo” as the “longest genocide in history.”  This might be put down simply to rhetorical excess, but the Cuban government has repeatedly used the term “blockade” in public statements at the United Nations. It has demanded upwards of $80 billion in compensation for damages caused by the “blockade.”

Whatever the U.S. embargo on Cuba is, it is NOT a blockade as that term is defined under international law.  According to a U.S. definition, a blockade is a “belligerent operation to prevent vessels and/or aircraft of all nations, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of an enemy nation.” Oppenheim had an even narrower definition, limited to naval blockades “of the approach to the enemy coast or a part of it….to intercept all intercourse and especially commercial intercourse by sea….”

It goes without saying that the U.S. is not imposing a blockade under this definition.  The U.S. embargo is not a belligerent operation using its military forces to prevent commercial intercourse with Cuba.  No military force prevents Cuba from trading with nations other than the U.S.  Calling a refusal by one country to trade with another a “blockade” is an insult to any reasonable definition of the term (or actual blockades).

The Cuban government knows that U.S. is not imposing a blockade, but it is useful for it to keep using the term at the U.N. and even win support from other nations for its characterization of the embargo.  The U.S. doesn’t even bother protesting Cuba’s use of the term anymore, which is a mistake because it grossly mischaracterizes what the U.S. embargo actually is.  Moreover, if the U.S. doesn’t fight back against the “blockade” smear, it subtles undermines the legitimacy of U.S. embargos on other (much more dangerous) countries like North Korea and Iran.

Accepting the term “blockade” uncritically also allows the Cuban government to blame the U.S. for Cuba’s various economic problems.  But while the U.S. embargo definitely is having an impact on Cuba, it is not the nearly as important as the Cuban government’s own economic policies.  It is worth noting that the international Cuban campaign against the embargo really started in the early 1990s after Cuba lost support from the Soviet Union.  Cuba did not “need” the embargo to be lifted until it lost Soviet support.  Relatedly, Cuba’s main high-value exports today are services (e.g. medical doctors and other specialists) that the U.S. probably won’t actually purchase.  There is only so much in cigars and rum that the U.S. market can absorb.  Cuba’s burgeoning tourist industry is growing, but it is hard to imagine Cuba could handle many more tourists than it is already receiving (or until at least they build a new airport).

To be sure, there is one aspect of the U.S. embargo that probably does violate international law. Under the 1996 “Helms Burton” law, the U.S. created a private cause of action against anyone trading in assets expropriated by the Cuban government, even if that person was located in a foreign country.  This, along with a measure requiring denial of visas to anyone who has traded in such expropriated assets, caused consternation in the EU and Canada.   Their pressure (and a threatened WTO case) has led to the U.S. suspending Helms Burton so that it has never actually gone into effect.

U.S. law also extends the embargo to foreign subsidiaries that are “owned or controlled” by U.S. persons.  This is also controversial because it applies U.S. law extraterritorially in violation of other countries’ sovereignty.  I think this is problematic, but this is not as settled as it might seem since the U.S. is arguably simply asserting an aggressive form of nationality jurisdiction.  But this aspect of the embargo is definitely legally questionable.

In the end of the day, I think the U.S. embargo is perfectly legitimate as a matter of international law.  But just because something is legal doesn’t mean it is a good or necessary policy.  Based in part on my trip to Cuba, I am inclined to agree with President Obama that the U.S. embargo is no longer useful, and counterproductive in many ways. Congress should probably (and will eventually) lift the embargo.  But the U.S. should not back down from defending the legality of its use of economic sanctions as a tool of statecraft.

Daesh and the Duty to Prevent Genocide

by John Heieck

[John Heieck is the Lecturer of Public International Law at the University of Kent, Brussels School of International Studies.]

On 17 March 2016, US Secretary of State John Kerry announced that ‘Daesh is responsible for genocide against groups in areas under its control, including Yazidis, Christians, and Shia Muslims. Daesh is genocidal by self-proclamation, by ideology, and by actions, in what it says, what it believes, and what it does.’

The US’ pronouncement is the latest in a series of such statements over the past year. On 19 March 2015, the Office of the High Commissioner for Human Rights produced a report stating that Daesh, also known as ISIS or ISIL, may have committed genocide against Yazidis, Christians, and Shia Muslims in Iraq. In addition, on 3 February 2016, the Parliament of the European Union adopted a resolution proclaiming that ‘the so-called “ISIS/Daesh” is committing genocide against Christians and Yazidis, and other religious and ethnic minorities, who do not agree with the so-called “ISIS/Daesh” interpretation of Islam, and that this therefore entails action under the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide.’

While there seems to be a growing consensus that Daesh has committed, and is committing, genocide against these ethnic and religious groups in Iraq and Syria, there appears to be disagreement over what, exactly, this designation entails under the Genocide Convention. For example, according to US State Department Deputy Spokesman Mark Toner, ‘acknowledging that genocide or crimes against humanity have taken place in another country would not necessarily result in any particular legal obligation for the United States’. Mr. Toner’s position appears to be based on the belief that the Genocide Convention ‘creates obligations on states to prevent genocide within their territory and to punish genocide’. As evidenced by the ICJ’s holding in the Bosnian Genocide case, however, this is simply not the standard for the duty to prevent genocide under Article I of the Genocide Convention.

Article I of the Genocide Convention provides that ‘[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish’. As the International Court of Justice (ICJ or the Court) noted in the Bosnian Genocide case, the scope of the duty to prevent genocide is determined by the ‘due diligence standard’. The due diligence standard provides that, if a State has the capacity to effectively influence the genocidal actors and the knowledge that genocide is imminent or ongoing, the State has a legal duty to use its best efforts within the means available to it to prevent the genocide from occurring or continuing.

The ICJ described in detail the ‘capacity to effectively influence’ requirement in paragraph 430 of the Bosnian Genocide case. There are three aspects of this requirement that are worth highlighting. First, the requirement is not territorially limited. Instead, ‘[t]his capacity … depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events’. These links include political, military, and financial links between the State in question and the genocidal actors. Second, the requirement incorporates the principle of ‘common but differentiated responsibilities’. As the Court noted in the case, the capacity to effectively influence ‘varies greatly from one State to another’. This means that the more a State can do to prevent genocide, the more a State must do. This, in turn, varies according to the State’s ‘legal position’ vis-à-vis the genocidal actors; meaning, if the State is in a position of influence, such as membership on the UN Security Council, the State has greater capacity to influence the actors in question than non-members because it can pass resolutions binding on all UN member States to prevent the genocide. Third, the requirement imposes a duty to cooperate on all States to bring the genocide to an end. The ICJ emphasized that ‘it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide’. According to the Court, ‘[a]s well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result — averting the commission of genocide — which the efforts of only one State were insufficient to produce’. This form of cooperation is best suited to the UN Security Council, which, as noted above, has the power to bind all UN member States.

As for the ‘knowledge’ requirement, the ICJ noted that ‘a State’s obligation to prevent, and corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.’ (Bosnian Genocide case, at para. 431). The Court explained that this awareness, which triggers a State’s positive duty to act, might result from actual (subjective) or constructive (objective) knowledge of the relevant events, which should be interpreted in light of any history of hatred, especially of genocide, between the relevant groups. (See Bosnian Genocide case, at paras. 283, 285, 410, and 436). The Court then observed that, if a State has or should have had this knowledge, and ‘has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means’ to prevent the genocide. (Bosnian Genocide case, at para. 431).

Provided these two requirements of the due diligence standard are met, the State in question has a legal duty to use its ‘best efforts’ – within the means available to it – to prevent the genocide in question. According to the ICJ, ‘it is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible’. (Bosnian Genocide case, at para. 430). Moreover, ‘[a] State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide’. (Bosnian Genocide case, at para. 430).

In applying this due diligence standard to the facts of the case, it is clear that the US and others have a legal duty to prevent further genocide by Daesh against the Yazidis, Christians, and Shia Muslims in Iraq and Syria. The question is whether the efforts made thus far have satisfied the due diligence standard. US- and Russian-led coalitions have been pounding Daesh with airstrikes since mid-2014; however, Daesh’s genocidal campaign continues. In addition, according to reports, other States within the region, such as Saudi Arabia, Qatar, and Turkey, have continued aiding and assisting radical groups in Iraq and Syria with arms and munitions despite the genocide against the Yazidis, Christians, and Shia Muslims. Under the due diligence standard, this military aid and assistance must stop. But what more can – and must – the US and others do?

The US, Russia, China, France, and the UK are the five permanent members of the Security Council (P5). In light of their veto rights under Article 27(3) of the UN Charter, these five States have the power to discharge, or disable, the Security Council’s considerable capacity to effectively influence genocidal actors wherever they may be found. In light of the due diligence standard, the P5 must use their best efforts within the means available to them – including their means within the Security Council – to prevent further genocide in Iraq and Syria. This means that the P5, along with the ten non-permanent members of the Security Council, should pass binding resolutions under Chapter VII, which, inter alia, refer the situations in Iraq and Syria to the International Criminal Court, impose arms embargos on Daesh and related groups, and authorize the deployment of a UN peace-enforcing force to the areas in which Daesh is operating. By engaging in such actions, the US and the other members of the P5 will truly be doing everything within their power to prevent genocide in accordance with the due diligence standard.

Weekly News Wrap: Monday, April 4, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • The former British colony of Australia wants Britain to stay in the European Union, Foreign Minister Julie Bishop said, weeks before Britain holds a referendum on EU membership.

UN/World

  • The United Nations’ internal investigations office has uncovered serious lapses and due-diligence failures in the world body’s interaction with organizations tied to an alleged bribery scheme involving a former U.N. General Assembly president.
  • A huge leak of 11.5 million documents from a Panama law firm reveals how the world’s rich hide their money, Germany’s Sueddeutsche Zeitung newspaper said.

Events and Announcements: April 3, 2016

by Jessica Dorsey

Calls for Papers

  • Revisiting the role of international law in national security: call for papers. Many conversations in the U.S. about situations of armed conflict – within civil society, academia, and the U.S. government – center on “national security law,” often drawing primarily from domestic law and military perspectives. International law is sometimes set aside in these discussions. This workshop aims to draw the international legal aspects of armed conflicts to the forefront once again. This workshop, co-organized by the International Committee of the Red Cross’s Delegation in Washington, and faculty at Loyola Law School Los Angeles, Stanford Law School, and Cardozo School of Law aims to drive discussions of public international law, including international humanitarian law, international human rights law and international criminal law, into conversations, in the U.S. in particular, on national security issues and situations of armed conflict. The workshop will provide time to discuss scholarly articles that are in process, as well as other major issues of international legal concern regarding situations of armed conflict. Following discussions, the group of participants may choose to collaborate on an outcome document. We invite you to submit an abstract or draft of an article for discussion. A small number of papers will be selected for discussion at the workshop. The article does not need to be finished – an abstract or draft may be submitted. When: May 19th, 2016 (full day) Where: Cardozo Law School, New York City Submissions: Please send your name, current affiliation, and paper proposal to Tracey Begley, trbegley [at] icrc [dot] org. Deadline for submissions: April 8, 2016 A limited amount of travel funds may be available.
  • Dr Kubo Macak (University of Exeter) and Dr Lawrence Hill-Cawthorne (University of Reading) are holding an expert roundtable on 22-23 September 2016 on the topic of ‘The Impact of the Law of Armed Conflict on General International Law’. They are issuing a call for abstracts of no more than 500 words on this topic to be submitted by email to loacimpact [at] gmail [dot] com no later than 20 May 2016. Those chosen to attend will have their domestic travel expenses and accommodation covered. The full details and call for papers can be found here.

Announcements

  • The ICRC has just published its quarterly bibliography. You can find it here,
  • Transnational Dispute Managment has published a CETA special. Editors Andrea Bjorklund, John Gaffney, Fabien Gélinas and Herfried Wöss prepared this TDM CETA special. It undertakes a broad-ranging study of CETA, viewing it as an indicator of the evolution of EU trade and investment policy, and of the kinds of tensions and innovations that can be expected to arise as a new generation of twenty-first century trade and investment agreements emerges. The special starts off with an introduction by three leading experts Professor Pieter Jan Kuijper; The Honourable L. Yves Fortier and Judge Stephen Schwebel (free to read). It is the first detailed collection of reviews of CETA after its latest revisions, including the reworked Investment Chapter with an investment court replacing international arbitration.
  • The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Malgosia Fitzmaurice on “Whaling: the Gordian Knot of International Law” and by Professor Antonios Tzanakopoulos on “Domestic Courts in International Law”.

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