Author Archive for
Kristen Boon

Haiti Cholera Update

by Kristen Boon

Today, on the opening of the GA, and in his final such speech as UN Secretary General Ban Ki-Moon indicated that a compensation package for victims of Cholera is forthcoming. Speaking in French (original here), he expressed regret over the recent peacekeeper sexual abuse scandals and the Cholera epidemic in Haiti, and promised a package of assistance and support for better sanitation and water systems to victims would be forthcoming.

His speech confirms a significant and welcome shift in the UN’s approach to the cholera epidemic in Haiti. Since the outbreak in 2010, the UN steadfastly denied the assertion that a causal connection existed between the cholera outbreak and a UN peacekeeper base wherein blackwater was funneled into one of the main tributaries in Haiti.  The UN also rejected claims for compensation by victims and their families stating, in a now infamous letter, that the claims were “not receivable” under the UN Convention on Privileges and Immunities. For my full assessment of the Cholera Claims and the UN’s response to this and other recent mass torts claims, see my recent article in the Chicago Journal of International Law here.

The first signs of a change in the UN’s approach came about in August, when Deputy Spokesperson Farhan Haq said in an email quoted in the New York Times that “over the past year, the U.N. has become convinced that it needs to do much more regarding its own involvement in the initial outbreak and the suffering of those affected by cholera.” The Times reported he also stated that a “new response will be presented publicly within the next two months, once it has been fully elaborated, agreed with the Haitian authorities and discussed with member states.”

Significantly, this communication was released days before a widely anticipated appeals decision  was  handed down by the Second Circuit.  In this decision, the judges rejected the claimants appeal for compensation from the UN, relying on principles of contract interpretation to uphold the key finding that the “UN’s fulfillment of its Section 29 obligation is not a condition precedent to its Section 2 immunity” under the Convention on Privileges and Immunities of the UN.

There are several factors that might explain the UN’s new response. One is a reputational concern.   The release of a very critical report by Phillip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights in August, concluded: “[that] a new approach is desperately needed.   The starting point is that there should be an apology and acceptance of responsibility in the name of the Secretary-General. Consideration should then be given to constructing a policy package to address the need for compensation to the victims.”  Alston’s report  provides an instructive and poignant account of how the UN has mishandled this claim, while also illustrating how complex mass claims are for the Organization, given shrinking budgets, the sui generis legal position of the UN, and the lack of internal precedents on providing transparent process and remedies.

Another reason for the UN’s reconsideration of its stance clearly involves the upcoming elections for a new UN Secretary General.  Later this fall, Ban Ki Moon will step down, and some believe that he wants to ensure his legacy is not tarred by the perception that the Haiti case was mishandled. Another theory is that it is better for the Organization to address this case within the current SG’s mandate, rather than saddling a new SG with such an albatross.

The key issue at present is what a compensation package for victims would look like.  Alston’s report urges the UN to make use of other precedents for lump sum settlements, such as the 9/11 trust fund, the USA-France agreement to compensate Holocaust victims, and the Canadian Reparations Programme for the Indian Residential School System. He further notes: “it is clear that the United Nations could make use of these various precedents in order to shape an approach to compensation as part of a broader package that would provide justice to the victims and be affordable.”

While full details of the package will be released in October, advocates are hard at work at the UN, attempting to ensure a victim centered approach prevails.  A letter sent to the UN Secretary General yesterday, for example, argues that there are four necessary components of an effective remedy:

“An effective remedy requires: (1) issuing a formal, public apology to the victims of cholera in Haiti, (2) ensuring full funding of the previously announced but largely unfunded cholera elimination plan, (3) committing to providing victims of the epidemic with material compensation in a timely fashion, and (4) implementing a transparent and participatory process.”

What seems clear at this stage is that the UN is not acknowledging any legal responsibility for the introduction of Cholera into Haiti for fear of setting precedent.   Nonetheless, there is an opportunity here for the UN to improve the process of claims settlement, to adhere to its obligation to provide a remedy for damages incurred, and to demonstrate its commitment to the rule of law. Let’s hope the UN does the right thing. If it doesn’t, advocates in the Haiti Cholera litigation noted in a blast email today that they still have three months to appeal to the Supreme Court.

 

High Commissioner for Human Rights Challenges Trump, Wilders

by Kristen Boon

In case you haven’t seen it, The High Commissioner for Human Rights’ recent speech addressed to “populists, demagogues and political fantasists” is well worth reading.   The speech can be viewed here, and a link to the video here.

As Prince Zeid says:  “The proposition of recovering a supposedly perfect past is fiction; its merchants are cheats.  Clever cheats.”

 

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.

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?

Transcript of Haiti Cholera Appeal Hearing

by Kristen Boon

A transcript is now available for the Haiti Cholera Appeal:    Georges, et al. v. UN Oral Argument_ActiveUS(153242982)_ActiveUS(1)-Final

In addition, the audio recording is available here.

Of particular note were questions from the judges that addressed (i) whether domestic courts should have the right to determine the adequacy of remedies in tort actions involving the UN, (ii) why states parties have not done more to insist the UN create the mechanism envisioned by Art. 29 of the CPIUN, (iii) how this would be dealt with in the US if it had been the US army that had introduced cholera; and (iv) whether an ICJ advisory opinion is possible.

For my take on this case and the scope of UN immunities in mass torts cases, see  The UN As Good Samaritan:  Immunity and Responsibility,  in the most recent volume of the Chicago Journal of International Law.

Surprise Hearing in Haiti Cholera Case Appeal

by Kristen Boon

In a surprise announcement late last week, the Second Circuit granted a hearing in the Haiti Cholera Case.  The hearing will take place tomorrow, and the lawyers will have had only 4 days to prepare.    While no reasons were given as to why the hearing was granted so suddenly, the speculation is that upon reading the papers, at least one or more judges decided a hearing was warranted.

If you are in New York on March 1, and want to attend the hearing here are the details:

What: Second Circuit appeals hearing in Georges v. United Nations.

When: Tuesday, March 1, 2016 at 2pm

Where: Thurgood Marshall U.S. Courthouse 17th Floor, Room 1703 40 Foley Square New York, New York 10007

Each side will be granted 10 minutes.

As soon as a transcript is available, I will post it on OJ.

New Edition International Law Frameworks

by Kristen Boon

Chimene Keitner has revised and updated David Bederman’s 2006 treatise on International Law Frameworks. This highly readable (and short) text addresses key cases, core disputes, and essential treaties in international law. Following Professor Bederman’s passing in 2011, Keitner was asked to step in and take over the production of a new edition.   In the preface to this 4th edition, Chimene describes how she has updated and adapted the book:

The approach of this edition is consistent with that of previous editions, but I have modified the structure in places and added substantial discussion of recent developments. The volume is still divided into four parts. The first part provides an overview of the international legal system and discusses the nature, history, and sources of international legal rules, including treaties and custom. It also introduces mechanisms for the peaceful resolution of international disputes, including the role of the World Court (previously saved for the end of the book).

The second part focuses on the subjects of international law, including but not limited to States. Although somewhat exaggerated, there is much truth to the view that the “old” law of nations considered only States to be worthy of legal attention. Today, individuals, juridical persons (including business associations), and organizations may also be considered “subjects” of international law that can bear both rights and responsibilities.

The third part canvasses substantive areas of international legal regulation, including human rights (with a new discussion of global migration), as well as “objects” of international control such as land and maritime boundaries, the international environment, and the global economy. It also considers the law of countermeasures and the laws governing the resort to, and use of, armed force. The chapters on the use of force and armed conflict include new reflections on the role of government lawyers and consider new developments in substantive law in an era of drones and “cyberwarfare.”

The fourth and final part considers the relationship between domestic law and international law. This is the portion of the book most closely geared to the demands of U.S. law practice. At the same time, it introduces readers to other countries’ views on issues such as jurisdiction, immunities, and related considerations in the conduct of foreign policy. A new concluding chapter reflects on key challenges and opportunities for today’s international lawyers, including managing global pandemics, regulating cyberspace, and addressing global inequality.

Many of us have used this book as a supplement, a primer, or even as a core textbook to be read in conjunction with primary source materials.  If you would like to pre-order or request a complementary copy of the book, here is the link.

International Law Movies

by Kristen Boon

After attending a great panel at ESIL in 2014 on International Law and Film, I’ve been thinking about how to integrate film into my public international law class. I’ve compiled a list of international law films (with help from colleagues and fellow bloggers) that make for excellent viewing.  In a subsequent post, I’ll offer some thoughts about teaching international law through film.

Dramatizations

Zero Dark Thirty (Bin Laden)

Team America (Terrorism, North Korea and WMDs) (not on the serious side of international law movies!)

The Interpreter (filmed in the UN)

Argo (Iran Hostage Crisis)

The Reader (War Crimes Trial in Germany)

Battle of Algiers (Algerian War of Independence)

Hotel Rwanda (Genocide in Rwanda)

Woman in Gold (Nazi Art Theft, FSIA)

The Whistleblower (Post-War Bosnia)

Captain Phillips (Piracy)

Blood Diamond (Conflict Diamonds)

Lord of War (Arms Dealing)

War Witch (Child Soldiers)

Star Wars (Trade Dispute prompts Armed Conflict in Outer Space) J

Bridge of Spies (Cold War)

The Constant Gardener (Diplomacy, Pharmaceuticals, British High Commission in Kenya)

Judgment at Nuremberg (Nuremberg Trials)

Documentaries

The Reckoning (The ICC)

Last Station before Hell (UN peacekeeping)

Sons of the Clouds:  The Lost Colony (Western Sahara)

The Gatekeepers (Shin Bet)

Taxi to the Darkside (Torture, Afghanistan)

All Rise (Jessup Competition)

 

An alternate list of international law films compiled by Lyonette Louis-Jacques at the University of Chicago Law Library with more foreign / older content available is here.

Do you have additional movie ideas?  Please add other titles using the comments box below.

The ICC and Mainstream TV: A Recent Episode of The Blacklist

by Kristen Boon

I was watching a recent episode of the TV show The Blacklist the other day, when much to my surprise there was a segment on the International Criminal Court.

As the summary recounts:  “The Director wakes up on the Venezuelan president’s jet, where Foreign Minister Diaz arrests him. Red calls Hitchin to say they’re on their way to the Hague, where The Director will be tried for crimes against humanity…”

On the one hand, there is an accurate back and forth about whether the ICC has jurisdiction over The Director, because the US is not a party to the ICC. (Venezeula, of course, is).

On the other hand, the writers glossed over the fact that “delivering” a high level US government official to the ICC’s front door does not equal a referral – the ICC has the power to determine whether its jurisdictional requirements are met under Arts. 12 & 13 of the Rome Statute.

The other creative fiction of the show is that the ICC has an ongoing investigation into US activities (drones, torture, and rendition).    In reality, the ICC has opened an investigation into the situation in Afghanistan, which implicates the US.   It was first reported in the press two years ago.   The 2015 Report on OTP activities (at p. 31) indicates this investigation is still ongoing.  (Hat tip to Kevin Heller for confirming the current status of this probe).  Nonetheless, any ongoing ICC investigations are far narrower  than what the TV show suggests.

I confess to great satisfaction in watching the ICC enter popular culture, even if some creative liberties are being taken as to its jurisdiction and potential reach over American officials.

Spoiler alert: here is the relevant part of the script!

Red: Oh, your God can’t help you now, Peter. You’re traveling over the Atlantic, on the Venezuelan President’s Airbus, – on your way to The Hague.
The Director: You’re insane.
Red: I wouldn’t know. But you’re going to have the distinguished honor of becoming the first American official ever to be charged with even a single war crime, let alone the slew of them you will undoubtedly be accused of – before the week is out.
The Director: This won’t happen. United States isn’t party to the Rome Treaty. We don’t recognize its authority.
Diaz: But Venezuela does. And cases can be referred to the court by any country that is a signatory. You know as well as I do, even better given your position, the international court has been investigating the US government and the CIA for any number of alleged crimes. The drone program, the rendition of foreign citizens, torture as a means of interrogation.
Mr Diaz: The Chief Prosecutor has made it clear. He does not need American permission to move forward.
Red: He needs an American in the flesh. The court will not try anyone in absentia. So far, no country has had the courage to deliver one of your countrymen to the court until now. You’re a trendsetter, Peter. Who knew?
Director: I am the CIA Director of Clandestine Services. Do you have any idea what’s gonna happen to you? This is an act of war. My government will never let it stand.
Red: Precisely what I’m counting on.  …..

Red: Laurel, Raymond here. Here’s where we stand. In a handful of hours, this jet will land in Rotterdam, it will be met by the Dutch federal police, who will escort the Director to ‘S-Gravenhage, where the global spectacle of a high-ranking American official charged with war crimes will begin.

Selecting the New UN Secretary General

by Kristen Boon

With the end of Ban Ki-Moon’s term on the horizon, discussions about the next UN Secretary General, and more importantly how that person should be chosen, have moved front and center. A joint letter by the Presidents of the GA and Security Council was released on December 15, which sets forth a slightly new process.  It states:  “[The Presidents] will offer candidates opportunities for informal dialogues or meetings with the members of their respective bodies, while noting that any such interaction will be without prejudice to those who do not participate.”   These dialogues would take place before July 2016.

As the New York Times reported yesterday the letter remains vague on 2 points. First, on the question of whether a woman should lead the organization for the first time in 70 years it encourages nations to nominate “women as well as men” … second, on the tradition whereby each region gets a shot at the top job (with Eastern Europe being next in line) the language gave a nod to Russia’s concerns that “we note the regional diversity in the selection of previous secretaries general.”  Note the reference to past practices:  previous secretaries general.

Differences of opinion between the UK and Russia on the process held up the finalization of this letter for some time. The backstory can be found here.

This letter was issued pursuant to GA resolution 69/321 of 11 September 2015 provided a mandate for the GA on the issue, and “Requested the Presidents of the General Assembly and of the Security Council to start the process of soliciting candidates for the position of Secretary-General through a joint letter; to jointly circulate on an ongoing basis the names of individuals that have been submitted for consideration as candidates; and decided to conduct informal dialogues or meetings with candidates, without prejudice to any candidate who does not participate.”

To date, the campaign 1 for 7 billion reports 27 confirmed or prospective candidates including Angela Merkel, Helen Clark, and Danilo Turk. (Click on the candidates tab for more information).  General background on the efforts to change the appointments process is available here and here.

Transitional Justice and Judicial Activism Symposium

by Kristen Boon

The focus of Ruti’s article is the developing primary norm of the “right to accountability”, which derives from international jurisprudence associated with disappearances. Ruti describes the core content of this right as one that “implies a set of obligations on the state, largely read into prevailing treaty rights protections involving personal security, such as the right to life, whether under the International Covenant on Civil and Political Rights or the European or Inter-American conventions on human rights.” Like arguments for a right to democracy, it has its aspirational dimensions. Yet, Ruti taps into some very interesting undercurrents that implicate state responsibility, and it is this angle that I wish to comment on today.

As conceptualized in her article, the right to accountability is a primary rule of international law that is based in treaty law, and particularly the right to life. It is also connected to other sources such as the International Convention for the Protection of All Persons from Enforced Disappearances, and Article 7 of the Statute of the ICC. There is, of course, no “right to accountability” as such.   The primary norm is based on patterns of jurisprudence developed through judicial tools which courts have adopted to overcome obstacles associated with cases involving disappearances, whether jurisdictional (such as time bars), or stemming from a state’s refusal to recognize the disappearance.

A central claim of the article is that this primary norm has developed as a remedy to the limitations of secondary rules, such as rules on attribution under the Articles on State Responsibility. In this, as Ruti notes, there are parallels with terrorism and cases of rendition, that have led to the elaboration of new duties, such as a duty to prevent, and creative thinking about omissions and due diligence standards. I have discussed these trends in a recent article in the Melbourne Journal of International Law available here.

Nonetheless, given the connection between state action and disappearances, the secondary rules of state responsibility remain important. Ruti describes some of these connections: in Heliodoro Portugal, for example, she writes that “the court drew on the principle of the continuing breach of state responsibility rather than fully conceiving the failure to provide accountability as an autonomous internationally wrongful act— which, of course, obviously continued up to the time the petition was brought, and persisted until and unless there was state explanation.”   Ruti also discusses the attribution of acts to a state, and notes the IACHR’s profound contributions to its development and application, beginning with the Velasquez Rodriguez case. Importantly, she highlights that courts are not adhering to the traditional two-step process of identifying attribution and wrongfulness, instead determining there is “a right to accountability” regardless of whether it can be established that the original human rights abuses were themselves internationally wrongful. Finally, in Goiburu, she discusses connections between forced disappearance and violations erga omnes, which trigger the responsibility of other states and the international community as a whole.

One interesting dimension of this article is that it points towards a unified theory of responsibility that combines international criminal law, human rights law, and global / criminal justice. Another is that it highlights the problem of slippage in international law: states are increasingly outsourcing key activities, including activities that have been linked with disappearances, raising the question of whether one high level of control is the appropriate default standard in international law.   Finally, this study supports the proposition that in certain areas of law- which may now include disappearances – the relevance of secondary rules is waning.  As such, the piece provides interesting insights into the status of secondary rules of state responsibility in a variety of regional courts.   There are a series of open questions that follow: Might this jurisprudence constitute a lex specialis for attribution doctrines in the field of human rights? More generally, what would a unified theory of responsibility that encompasses states, international organizations, individuals, and non-state actors look like? What would its core components be? Finally, are attribution doctrines under the ASR fit for the purpose today, given the changing nature of the modern state, including prevalent out-sourcing and multilevel governance situations?  I would be very interested in Ruti’s take on how to remedy the gaps in the ASR given the role of non-state actors in the cases she examines.

Final Compendium of High-Level Review of UN Sanctions Proposes Reforms to System

by Kristen Boon

The Compendium of the 2014 UN High Level Review of Sanctions, including its 150 recommendations, is now available here on the UN Website.  The Document number is A/69/941 – S/2015/432.  The review, sponsored by Australia, Finland, Germany, Greece and Sweden, took place from May –  November 2014, and involved a series of meetings between Member States, the Secretariat as well as other UN bodies.

The starting point of the review was to look at the 16 regimes in place, and discuss how to improve the existing sanctions system from there.  The compendium has many useful recommendations and observations.  Here are a few:

  • It emphasizes the move towards using sanctions to address trafficking in wildlife products and natural resources;
  • It highlights the importance of using sanctions to address transnational threats and new technologies; (Recommendation 146)
  • It recommends using sanctions to better address existing and emerging threats on, for example, incitement to genocide, sexual violence in conflict, and gross violations of women’s rights; (Recommendation 132)
  • It advocates the establishment of a Trust Fund for sanctions implementation assistance, a proposal originating from Jordan. (Recommendation 126).  While not going so far as to reference Article 50 of the UN Charter (special economic problems), together with recommendations 123 – 125 on assessments for assistance, it charts a future path towards better coordination and provision of assistance.
  • The Compendium also proposes better coordination between the ICC and the UN, highlighting the absence of clear processes in the past, and the possibility of future synergies.  For example, the compendium makes the very sensible recommendation of automatically listing individuals (where a relevant sanctions regime applies) after an arrest warrant has been issues by the Pre-Trial Chamber.  (Recommendation 100).

The compendium is a useful and current document, that gives a current state-of-play of UN sanctions while adding onto the Interlaken, Bonn and Stockholm and Greek initiatives of prior years.  Nonetheless, it must be noted that an attempt to pass a Security Council resolution last November on some of these same issues failed.   See the Security Council report assessment here of a draft resolution that was debated but never brought to a vote.   Attempts to strengthen capacity building, assistance and implementation for UN sanctions remain controversial – whether because of ongoing hesitation about the robustness of the tool, or because of opposition to strengthening the Secretariat’s policy making capacities.

What impact this document will have remains to be seen, but as the race heats up for the next Secretary General, one hopes that the recommendations will form part of the campaign, and further that future Secretary Generals will play a greater role in sanctions implementation, by for example, including substantive reports on sanctions in their briefings to the Security Council.  (See recommendation 50).