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Emerging Voices: Incorporation of Plural Realisations of Justice within the ICC System

by Justin Yang

[Justin S. Yang, PhD Researcher at King’s College London; LL.M at Leiden University.]

The International Criminal Court (ICC) projects a legal framework that is unique from the prior expressions of international criminal justice. In the construction of its Statute, in particular through the system of complementarity, the Court embodies the potential to actualise a horizontal and communitarian system of justice; rather than mandating a singular perspective of law in a vertical hierarchy, the ICC framework is designed to accommodate the inherent plurality of its international membership.

Tracing the development of international criminal justice institutions in the 20th century has illustrated that this project has been in oscillation between peak periods of heightened inter-state cooperation and trough periods of resistance to encroachments on Westphalian sovereignty. The respective institutions that were established following World War I, World War II, and the Cold War have predominantly reflected the interests of only the particularly powerful states, albeit under international communitarian rhetoric.

Prior to the ICC, exercises in international criminal justice were exclusively facilitated first by the key multinational states of the post-war Allies, and later by the P5 of the UN Security Council. Rather than devising a new justice system that could be compatible with sovereign equality and the multiplicity of legitimate legal systems on the international plane, the post-war multinational bloc opted to adopt the vertical trial-based nature of Western domestic criminal systems. In other words, these judicial institutions, acting on behalf of the multinational leadership, presided at the apex of their respective scope of adjudication, in the same way a sovereign reigns supreme in its domestic system. Mirroring the capacities of the sovereign, these international judiciaries were unchallengeable, and arbitrarily made claims to various laws, as understood and accepted by them, onto diverse heterogeneous situations. In this penetrative hierarchy, sovereign boundaries and the indigenous legal systems of the subject state were explicitly disregarded and disapplied by the adjudicators. Therefore, diverse circumstances, local peculiarities, and contextual relevancies, all of which could materially affect the process of adjudication and determination of culpability, failed to be considered. The crimes were analysed solely through the perspectives of the multinational victors.

The ICC marks a departure from this tradition of vertical justice. The democratic legitimacy inherent in its treaty-based creation, and its central tenets of independence and impartiality has, in theory, separated criminal adjudication from overarching political agendas, including that of the UN Security Council. The symbiotic relationship between the Court and its member states, within the complementarity regime, has allowed for a horizontal, stateless, and impartial system of justice to exist over the global community. Being complementary to national systems means that the Court preliminarily defers to a state’s sovereign prerogatives to exercise criminal jurisdiction over international crimes. This prerogative is perceived as a duty of every state (Rome Statute, Preamble). Upon failing this duty at a standard deemed acceptable by the Court, the case may then be admitted into the ICC docket. State proceedings are therefore inherently underpinned by the implicit threat of the Court ‘seizing’ the case, if the framework of preventing impunity (Rome Statute, Article 17) is not satisfactorily upheld. (more…)

Emerging Voices: “Do No Harm” and The Development of General Corporate Human Rights Obligations

by Gabriel Armas-Cardona

[Gabriel Armas-Cardona received his J.D. from New York University and was a legal officer at Lawyers Collective in New Delhi, India where he managed the Global Health and Human Rights Database.]

Human rights activists have long complained of legal lacunae in domestic and international law over the regulation of corporations. This is why last year’s United Nations Human Rights Council resolution to elaborate binding obligations on corporations was cheered by activists (and derided by business). The UN’s previous attempt to develop a general framework of responsibilities in the 2011 Guiding Principles on Business and Human Rights did not impose binding obligations, likely one of the reasons it was generally praised by corporations.

Corporate behavior is primarily regulated through two domestic legal systems: tort and a corporate regulatory regime. The first is the traditional remedy system for individuals while the latter is the State impositions on business to promote a social good. In well-regulated States, these two distinct systems have grown to more effectively protect that society. But many developing countries don’t have legal systems in place that effectively protect their society and almost no State regulates corporate action abroad for the protection of other societies. The value of binding legal obligations is that they can remove the lacunae by having universal and consistent obligations for all corporations within States and in the interstitial space between jurisdictions.

These obligations would be distinct from and would not dilute State human rights obligations. Having multiple dutybearers, even qualitatively different ones, is not problematic. Corporate obligations would positively interplay with States’ duty to protect to further realize human rights. When a violation by a corporation occurs, it would be the State’s duty to provide a remedy system, stemming from a State’s duty to protect, and the corporation’s duty to cooperate with that system, stemming from the secondary duties mentioned in the duty to fulfill, or to directly provide reparations to the victim (in normal parlance: go to court or settle). If the corporation cannot provide reparations (e.g. due to bankruptcy), then the State would have to provide reparations directly. Either way, the victim is made whole.

Underlying the challenge is that there currently is no principled framework for universally applicable corporate obligations. One can’t simply copy State obligations and apply them to corporations; their obligations must reflect that they are private actors. The Guiding Principles state that corporations “should avoid infringing on the human rights of others” (Principle 11), or as the Special Representative of the Secretary-General that wrote the Guiding Principles said, the responsibility of a corporation is “put simply, to do no harm.” The principle of “do no harm” has been used as a touchstone in corporate human rights obligations since at least 2002 and is a surprisingly suitable standard for developing a structure for general obligations.

As dutybearers, the same tripartite typology of human rights can apply to corporations as States; i.e., a human right would impose duties on corporations to respect, protect and fulfill. The Shue/Eide typology recognizes that the realization of rights can require measures of varying degrees of activity by dutybearers. Corporations can violate rights as producers, industry players, or employers; thus, depending on the situation, corporations may be required to stop selling defective goods, protect victims from violations done by the corporation’s supply chain or provide reparations for a prior harm. The majority of obligations falls within the duty to respect, but the duties to protect and fulfill provide new and interesting duties that respond to the concerns of corporate violations.

To understand what substantive obligations arise from “do no harm,” it helps to use the example of a particular right, such as the right to health. As economic entities, corporations are able to directly infringe on the realization of economic, social, and cultural (ESC) rights. The right to health is one of the most developed and broadest ESC rights, making it useful to use here.

The content of corporate obligations vis-à-vis the right to health

(more…)

Emerging Voices: Is the International Community Ready for a “Duty to End Impunity”?

by Auriane Botte

[Auriane Botte is a Ph.D candidate in International Law at the University of Nottingham (UK).]

One can no longer count the number of times that the objective of ending impunity for core international crimes has been crushed by more pressing political and diplomatic interests. The most recent instance was on the 15th of June when South Africa allowed Omar al Bashir to return to Sudan despite an interim order issued by the High Court in Pretoria to prevent the Sudanese President from leaving South Africa, pending a decision on implementing an arrest warrant issued by the International Criminal Court (ICC) in 2010. This decision to favour impunity over justice is even more disgraceful since South Africa has been a State Party to the Rome Statute since 2000. As a quick reminder, Omar al Bashir is accused of indirectly participating in the commission of crimes against humanity, war crimes and genocide committed in Darfur. What happened in South Africa may, nevertheless, give a ray of hope as there was, for once, an attempt to hold Bashir accountable. Another positive aspect of this non-event is that it demonstrated the increasing power of civil society to put pressure on governments in relation to issues of impunity, with the support of the domestic courts.

The situation in Darfur, Sudan has repeatedly been under the spotlight this year, as it sadly illustrated the weakening of the fight against impunity for core international crimes. Last December, the ICC Prosecutor announced in her report to the Security Council on the situation in Darfur that she decided to “hibernate” the investigation on this situation. This decision was taken following a blatant lack of cooperation from Sudan and a lack of support from the Security Council for the work of the ICC, despite the fact that the situation was initially referred to the Court by the Security Council. The ICC Prosecutor as well as the ICC Pre-Trial Chamber II recently pointed out the lack of willingness from the Security Council to play its part by imposing measures on UN Member States for their failure to comply with Resolution 1593 (2005) requesting cooperation with the ICC. This lack of cooperation with the ICC from UN Member States as well as from the Security Council demonstrates the limits of the commitment of the international community to achieve the objective of ending impunity.

These two serious impediments to the objective of ending impunity in Darfur highlight a major flaw in the response to core international crimes by the international community: the absence of significant consequences for the failure to cooperate with the ICC. In other words, if a State decides not to cooperate with the ICC, it is unlikely that the State will have to face any serious consequences. The scarce provisions of the Rome Statute related to non-cooperation and the soft approach taken by the Security Council or the Assembly of States Parties on instances of non-cooperation illustrate further this flaw. In the specific situation in Sudan, an argument has been put forward, notably by the African Union, that the States Parties may justify their refusal to execute a request from the ICC to surrender Omar al Bashir by their obligation under International Law to respect the diplomatic immunity of the Head of States. This goes back to the ongoing debate of the opposing Articles 27 and 98 of the Rome Statute, raising the question whether the irrelevance of official capacity under the Rome Statute should prevail over obligations to ensure diplomatic immunity under International Law. The main issue here is that the Security Council did not explicitly waive the diplomatic immunity of the alleged perpetrators in Sudan. Nevertheless, the ICC Pre-Trial Chamber II reaffirmed that Resolution 1593 (2005) did de facto waive the immunity of Omar al Bashir.

The problem of the lack of commitment to end impunity for mass crimes goes beyond the issues of non-cooperation with the ICC. It may be timely to rethink the responsibility for core international crimes by looking at the broad picture. A possible way to revive the objective of ending impunity for core international crimes may be to consider it outside the focus of individual criminal responsibility and to integrate it within a larger framework of accountability mechanisms. This may allow for developing a wider approach drawing simultaneously from International Criminal Law and State responsibility norms to cover an extensive range of accountability mechanisms at the international and domestic level. International Criminal Justice may potentially benefit from the conceptualisation of a duty to end impunity lying with the States and associated with appropriate consequences for the failure to fulfil this duty. It is important to note that this obligation may not only fall upon the States. The Security Council may also have an impact on ending impunity through targeted sanctions and other accountability measures. Due to the limited length of this post, this issue will not be discussed further.

A structured framework to strengthen the duty to end impunity may be inspired by (more…)

Emerging Voices: Strength and Legitimacy of Control Mechanisms in International Human Rights Treaties: The Moderation Effect

by Katarína Sipulova, Hubert Smekal and Jozef Janovsky

[Katarína Šipulová is a student in an MSt in Socio-Legal Research, University of Oxford and a PhD candidate at the Faculty of Social Studies, Masaryk University. Hubert Smekal is an Assistant Professor at Faculty of Social Studies, Masaryk University; and Jozef Janovský holds an MSc in Applied Statistics, University of Oxford, having previously studied politics and applied mathematics at Masaryk University. This contribution comes from research under a project entitled “International Human Rights Obligations of the Czech Republic: Trends, Practice, Causes and Consequences,” GA13-27956S, supported by the Czech Science Foundation GAČR.]

The study finds that the strength of a human-rights treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties. Empirical test of the “moderation effect hypothesis” showed that the overall speed of the commitment process of communist Czechoslovakia and newer democratic regimes (CR and SR) was quite similar. However, while communist Czechoslovakia preferred commitments to treaties with weak control mechanisms, the transitioning CSFR and its democratic successors were more prone to ratify treaties with a strong control mechanism.

What motivates states to ratify international human rights treaties remains an unanswered question in political science. Many tentative explanations for the observed commitment patterns have been proposed, relating e.g. to the character of the political regime of the state (Moravcsik 2000, Hafner-Burton – Tsutsui – Meyer 2008), the characteristics of a treaty and how they diverge from a country’s practice (Hathaway 2007; Cole 2005), and foreign policy goals (Goodman 2000, Heyns and Viljoen 2001), especially accession to the EU (Guzman 2008; Landman 2005).

A thorough examination of practices in two post-communist countries, the Czech Republic and Slovakia, contributes to this long-standing debate on different commitments patterns (i.e. signatures and ratifications). Our in-depth comparative study is based on a set of more than 190 human rights treaties; by a “human-rights treaty” we understand any multilateral treaty which includes human-rights provisions (i.e. both predominantly human-rights treaties and treaties dealing with human rights only in parts of their provisions). These are typically treaties which originated in the Council of Europe, the United Nations and the International Labour Organization.

The study covers two countries with similar foreign policy incentives as well as a common historical, political, and legal heritage. Interestingly, the political experience of the both countries has included non-democratic, semi-democratic, democratic and transitional periods. After the fall of a four-decade-long communist regime in 1989, both countries experienced a short intermezzo as a federal democratic republic (“CSFR”), which dissolved on 1 January 1993 following strong calls for national self-determination. Approximately seven decades of common history meant that the two new states shared a common starting point with regards to their international commitments and domestic legal systems. The Czech Republic set off decisively for political and economic liberal reforms in order to quickly integrate into Western international structures and it very soon acquired a reputation of the front-runner among post-communist countries. On the other hand, between 1993 and 1998, Slovakia, under the government of Prime Minister Vladimír Mečiar, slowly moved towards a semi-authoritarian system, characterised by restrictions of political rights, censorship in the media, and economic scandals. At the end of 1998, Mečiar’s government fell due to worsening economic problems and foreign-policy failures (pre-accession talks with the EU and NATO were particularly unsuccessful). After 1998, Slovakia caught up with the other CEE candidate countries and fully reoriented its efforts towards integration into Western structures. In December 2002, both states successfully concluded their pre-accession negotiations with the EU and subsequently acceded on 1 May 2004.

In this study, we do not break out the period of Mečiar’s government for methodological reasons: its character and position on the democratic – non-democratic axis remains disputable (see Janos 2000, Kitschelt 1999, or Linz and Stepan 1996). However, the political developments are taken into account when interpreting the data. Experience with different political regimes adds data variability and enables us to focus on the relationship between the character of the regime and state’s commitment activity wherever possible. Academic literature includes regime type among the most important variables influencing the decision to commit. Several authors have pointed out that non-democratic countries with poor human rights records tend to ratify treaties at a higher rate and speed (Hathaway 2002), in order to demonstrate a low-cost legitimizing symbolic commitment without any actual willingness to comply (Hafner-Burton – Tsutsui – Meyer 2008). Moreover, this commitment might be further distorted either by the use of reservations (Neumayer 2007) or a control mechanism too weak to be seen as a credible threat (Dutton 2013).

Control mechanisms adopted in human-rights treaties (i.e. their strength) differ profoundly: from no control, through an obligation to submit internal reports, to subordination to the jurisdiction of a judicial body. In this short contribution, we focus on the influence of the control mechanism on commitment patterns. Our distinct argument, that the strength of a treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties, is then tested on the Czech and Slovak experience.

Empirical Study

Figure 1 mirrors our expectations regarding the frequency and the speed of human rights commitments of the Czech Republic and Slovakia under different political regimes. Based on the above-mentioned theories, we would expect non-democratic communist Czechoslovakia to commit to few human rights treaties, and primarily to those with a weak control mechanism (i.e. with no actual control or limited to domestic reports). However, the process of these commitments should be rather fast, because of the limited need for deliberation. On the other hand, we expect the post-1989 Federal Republic to be strongly human-rights oriented, committing frequently and fast in order to boost its international credentials and spur the proverbial return to (Western) Europe. After the consolidation of new democracies, we expect the speed of ratifications to slow down.

Figure 1: Theoretical expectations (Source: authors)

  Regime Commitment pattern(expected frequency and speed of commitments)
Communist Czechoslovakia (1948-1989) Non-Dem Low commitment activity; medium-fast processHigher for treaties with a weak control mechanism compared to democracies
 Federal Republic (1990-1992) Dem High + fast for all treaties
Czech Republic (1993 →) Dem Medium + slow for all treaties
Slovak Republic (1993 →) Dem* Medium + slow for all treaties

The overall human rights commitment activity of Czechoslovakia and its successors is presented in Figure 2. The graph shows the cumulative number (more…)

Emerging Voices: Victim Participation in ICC and ECCC’s Proceedings

by Melanie Vianney-Liaud

[Mélanie Vianney-Liaud is a PhD Candidate at the Aix-Marseille University, III, France.]

At the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), victims are granted procedural rights to participate in their personal capacity. However, in both courts, victim participation is challenging since mass crimes make thousands of victims. The crimes perpetrated during the Khmer Rouge regime in Cambodia, for example, caused the death of nearly 1.7 million people. Legally speaking, the victims are those who have suffered harm as a result of a crime, namely the act(s) or omission(s) reproached to the accused in a criminal trial. Consequently, given the widespread scale of atrocities committed by the Khmer Rouge, almost the whole Cambodian population could claim victim status at the ECCC. This raises the question of how to ensure victims effective procedural rights in criminal proceedings whereas they are so many.

Several options have been contemplated. Victim participation status at the ICC and ECCC are different. The purpose of this post is to show that despite such differences, the exercise of victims’ rights is extremely restricted in both courts to the point that, today, there is no effective and useful victim participation in international criminal proceedings.

At the ICC

At the ICC, victims’ participation stems from the will of the States which negotiated the Rome Statute. Article 68.3 provides that :

Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered (…). Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate (…).

However, neither the Rome Statute nor the ICC Rules of procedure and Evidence determine the modalities of victim participation. It is left to the judges to set such rules (ICC Rules of Procedure and Evidence, Rule 89.1). Thus, at the ICC, victim participation depends on each Chamber and varies in each case. For example, in the Katanga and Ngudjolo Chui case, the Trial Chamber II decided that the victims’ legal representatives « must be able to consult all of the public and confidential decisions and documents in the record of the case » (Decision on the Modalities of Victim Participation at Trial, § 121) whereas in the Bemba Gombo case, the Trial Chamber III limited legal representatives’ access to confidential material « relevant to their views and concerns » (Decision on the Participation of Victims in Trial, § 47).

With the exception of the Pre-Trial Chamber I in the Katanga and Ngudjolo Chui case, all ICC Chambers adopted a casuistic approach. Thus, for example, in the Lubanga case, the Trial Chamber I held that « in order to participate at a specific stage in the proceedings, e.g. during the examination of a particular witness or the discussion of a particular legal issue or type of evidence, a victim is required to show, in a discrete written application, the reasons why her interests are affected by the evidence or issue then arising in the case » (Decision on Victims’ Participation, § 96). Consequently, in the trial of Bemba Gombo, to have access to confidential documents, the legal representatives need file a request in which they shall show how the interests of their clients are affected by such documents without knowing their content. This puts the legal representatives in a tricky situation since they have to speculate on how that content might concern their clients in order to motive their participation.

The Pre-Trial Chamber I in Katanga and Ngudjolo Chui considered that the casuistic approach – where « victims are required to ask for the leave of the competent Chamber to perform the most simple procedural activity » – makes the rights attributed to those granted the status of victim « purely symbolic » (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, § 51).

At the ECCC

At the ECCC, victim participation was not provided by the Chambers’ creators (i.e. the United Nations and the Cambodian Governement). It stems from the judges who set the modalities of victim participation, as at the ICC. However, contrary to the ICC, such rules are not determined in a decision of the competent Chamber in each case. They were established in the ECCC Internal Rules. The judges based on the victim status in Cambodian law. Thus, according to Rule 23.1, victims participate as « civil parties » in the ECCC proceedings. They enjoy important procedural rights that they exercise throughout the whole criminal proceedings, either directly or through their lawyers, without having to ask the Chamber for permission. For instance, at the investigation stage, civil parties may request investigation action (Rule 55.10). At trial, they may question witnesses (Rule 91.2), and even the accused (Rule 90.2). Civil parties may also appeal the verdict of the Trial Chamber, when Prosecutors have appealed (Rule 105.1). In order to effectively exercise such rights, civil parties and their lawyers have access to the whole case file (i.e. the record of the case) at each stage of the proceedings (see Rules 55.11 and 86).

The fact that victims’ rights are included in the Internal Rules may imply that ECCC victims enjoy a higher legal security than at the ICC, since their legal status should less depend on judges’ discretion in each case. However, ECCC Internal Rules were amended several times, and the modalities of civil party participation have not been spared by such revisions. Particularly, during the sixth Internal Rules’ revision session in 2010, the relevant provisions were modified for ensuring effective proceedings in Case 002, ECCC’s most important case in which the last surviving Khmer Rouge leaders are indicted. The new provisions introduced two original creations. Firstly, according to new Rule 23.3, the whole civil parties of Case 002 (about 4,000 victims) have been gathered in a single, consolidated group at trial who, secondly, is represented by two lead co-lawyers designated by the Court.

In 2011, the Trial Chamber separated Case 002 trial proceedings in relation to the charges of the indictment in order to conduct several manageable « mini-trials ». Thus, the scope of Case 002/01, the first small trial, included only crimes against humanity committed during the course of two phases of movement of population, and executions of Khmer Republic officials at the execution site of Tuol Po Chrey. According to Case 002 Indictment, 1018 civil parties were declared admissible in the context of the movements of population (§§ 261, 354) and 20 with regards to Tuol Po Chrey (§ 714). However, in the 2011 decision, the Trial Chamber determined that because civil parties « no longer participate individually …, but instead as a consolidated group [with] collective interests …, limiting the scope of the facts to be tried during the first trial … has no impact on the nature of civil party participation at trial » (Severance Order Pursuant to Internal Rule 89ter, § 8). Consequently, the Trial Chamber did not sever the consolidated group of civil parties in order to keep only the victims concerned by the crimes tried in Case 002/01. Therefore, a litte less than 3,000 civil parties participated in Case 002/01 whereas their prejudice had no causal link with the crimes reproached to the accused within that trial. Such a participation means that victims at the ECCC are not considered as real legal actors but rather as mere ornaments.

Conclusion

Despite promising starts, in both ICC and ECCC, victim participation has rapidly been restricted to move towards a symbolic involvment. Such a practice calls into question the pertinence and interest of victim participation in international criminal proceedings.

Admittedly, granting hundreds or even thousands victims the opportunity to participate in person is clearly materially impossible. From a legal point of view, the balancing of the accused’s rights with victims’ rights raises considerable conceptual difficulties. The fears and suspicion caused by victim participation are, therefore, understandable.

However, victims, even if they are many, are not symbols. They deserve the opportunity to really participate in the criminal proceedings which affect them, as soon as this right is granted to them. Some ICC and ECCC’s judges have recognised the various interests of victims participating in the proceedings of both courts (see e.g., ICC, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, §§ 31-43 and ECCC, Decision on Civil Party Participation in Provisional Detention Appeals, § 40). However, it shall also be recognized that international criminal proceedings take advantage of victim participation.

Emerging Voices: The Weakness of the “Super-Constitutional” Euro

by Francesco Montanaro

[Francesco Montanaro is a dual PhD candidate at Bocconi University (Milan) and Pantéon-Assas University (Paris).]

Saving the Euro at any cost. This imperative drove the EU and EU Member States’ response to the sovereign debt crisis. Following an incremental pattern, they adopted a number of measures that culminated in the conclusion of the European Stability Mechanism (ESM) Treaty and in the adoption of the Outright Monetary Transactions (OMT) program. The ESM Treaty established a permanent crisis resolution mechanism – endowed with full legal personality – that provides financial assistance to Euro area Member States with particularly troubled public finances. However, Eurozone Member States that benefit from this financial assistance are subject to strict conditionality. The OMT program is a measure enacted by the European Central Bank (ECB) to restore an appropriate monetary transmission system. The program consists in the purchase of Eurozone Member State government bonds on the secondary market. Again, the implementation of such a program is conditional upon the fulfilment of the ESM adjustment plans.

These measures were challenged before the Court of Justice of the European Union (CJEU). In both cases, the Court assessed, among other issues, whether these measures violated the division of competences between the Union and the Member States set out in the EU Treaties. In this respect, it is worth remembering that Article 3 of the Treaty on the Functioning of the European Union (TFEU) stipulates that the Union has exclusive competence over monetary policy, while Member States retain the power – which is nonetheless subject to the duty of coordination under Article 121 of the TFEU – to design their economic policies. According to Article 127 of the TFEU, the European System of Central Banks –i.e. the European Central Bank and the national central banks- conducts the monetary policy of the Union with the aim of maintaining price stability. This assessment, however, is everything but straightforward, as both measures have a “hybrid” nature. On the one hand, although the ESM officially aims to provide financial assistance to Eurozone Member States, it also produces effects similar to a monetary policy measure by affecting the amount of Euros in circulation. On the other hand, the OMT program, while ensuring the correct functioning of the monetary policy transmission system, it also impacts on Member States economic policies through the imposition of macroeconomic conditionality. Faced with these issues, the Court scrutinised such measures by looking at their “declared” objectives. In Thomas Pringle v. Government of Ireland, it observed that, although the ESM may produce some indirect effect on price stability, its main purpose remains the stability of the Eurozone. Consequently, it should be considered as an economic policy measure falling within the sphere of competence of EU Member States (para 56). By the same token, in Peter Gauweiler and Others v Deutscher Bundestag, the Court found that the OMT program primarily aims at ensuring the stability of prices by pursuing the ‘singleness’ of the monetary policy and safeguarding an appropriate transmission system (paras 50-51). Therefore, this measure does not exceed ECB’s competence, even though it also foists austerity measures on Eurozone members and seeks to ensure Eurozone stability.

That being said, the Court’s formalistic approach ultimately allowed the Court to circumvent the somewhat artificial division of competences laid down in the EU Treaties. Given the “hybrid” nature of the measures at issue, spillovers are inevitable: the ESM and the OMT program ultimately pursue monetary policy as well as economic policy objectives. However necessary and unavoidable this approach may seem, it leads to a de facto modification of the EU economic and monetary governance. Notably, it might be argued that the Court conferred a sort of “super-constitutional” ranking on the Euro that in effect override division of competences set out in the Treaties.

However, contrary to what one might expect, such a de facto “super-constitutional” ranking could in the long run undermine the Euro and the EU. As noted above, these emergency measures are combined with adjustment plans that may remove important economic policy choices from Member States’ competence. Although officially involved in their negotiation, Member States to which these plans will apply generally have a weak bargaining position. Thus, they are likely to accept the requests of their counterparties, namely the ECB, the Commission, and the International Monetary Fund. Yet, this might elicit their resistance in the long run. For one thing, Member States’ governments might decide to delay or even discontinue the implementation of the tough adjustment plans attached to the ESM and the OMT program thereby putting at risk their Eurozone and EU membership. The recent Greek referendum on the “bail-out agreement” with creditors represented an unprecedented “act of resistance”, even though Greek government accepted very tough bailout conditions somehow betraying polls verdict a week after the referendum. This referendum constitutes nonetheless an important precedent that might lead other EU Member States to resort to popular vote when facing hard loan conditions. And it cannot be excluded that more powerful and sizeable Member States would manage to withstand EU institutions and creditors’ pressure.

Furthermore, this rather extensive interpretation of the EU Treaties might give rise to the opposition of national judges. In this regard, it is worth mentioning that, in Gauweiler and Others v Deutscher Bundestag, the German federal constitutional in its request for a preliminary ruling made clear that it would have applied the CJEU’s decision only if the latter had met a number of conditions. As is evident, this approach might result in the refusal to apply the preliminary ruling of the Luxemburg Court.

Altogether, these forms of Member States’ resistance not only could bring about a conflict between the EU legal system and the national ones, but also jeopardise the existence of the single currency and, ultimately, that of the European construction. In other words, the de facto “super-constitutional” ranking of the Euro may turn to be its main weakness. Consequently, far from representing a long-term solution, it should prompt Member States to amend the EU Treaties.

Two equally difficult options lie ahead: either a deep overhaul of the EU economic and monetary governance or an orderly “dismantlement” of the single currency. It is time for Europe to take a clear-cut decision in order to solve the still on-going sovereign debt crisis whilst preserving the balance of powers in the Union and ensuring the democratic legitimacy of its decision-making process.  

Emerging Voices: The International Olympic Committee’s Accountability for Human Rights – Learning From the World Bank

by Ryan Gauthier

[Ryan Gauthier is a PhD Candidate at the Erasmus University Rotterdam.]

Mo’ Sporting Events, Mo’ Problems

In June, the 2015 European Olympic Games took place in Baku, Azerbaijan. Did you watch? You might not have even been aware of them! This first edition of the European Olympic Games is a symbol of the growing number of sports mega-events, joining the Olympic Games, the Fédération Intenationale de Football Association (‘FIFA’) World Cup, and others, on an ever-crowded sporting calendar. However, all is not positive. Just before the 2015 Games began, the Netherlands declined to host the 2019 edition of the European Olympic Games, citing the almost €60 million price tag as too much.

Sports mega-events have expanded not only in number, but also in geographic scope. Baku 2015 is an example of sports mega-events being held in developing countries. The BRICS (Brazil, Russia, India, China, and South Africa), and countries such as Argentina and Qatar have hosted the world’s premier sports mega-events (Olympic Games, FIFA World Cup, Commonwealth Games) since 2008.

Unfortunately for the citizens of these countries, these events have also been prime examples of the worst problems caused by sports mega-events. Families have been evicted from their homes (sometimes forcibly), ecologically sensitive areas have lost their protected status so that infrastructure such as ski runs or golf courses can be constructed, labour rights abuses have run rampant on infrastructure projects, and civil dissent has been quashed. To add insult to injury, the same old negative legacies of ‘white elephants’, such as unused or half-empty stadiums, deserted parks, unused hotel rooms, and public debt have reared their head.

 

My PhD research focuses on the accountability of international sporting organisations for the worst outcomes of their events. What I hope to do with this blog post is outline one aspect of accountability, the use of a monitoring mechanism. I will outline the problem of an absent state and a weak mandate. I will then discuss a comparison with the World Bank, and lessons that might be learned by international sporting organisations.

Where Does the Buck Stop?

Many organisations are involved in putting on a sports mega-event. As a start, international sporting organisations such as the IOC and FIFA hold the intellectual property rights to the event. However, these organisations do not directly engage in preparations for the event, but instead provide varying levels of financial and logistical support. The actual preparation is carried out by a local organising committee (which may be public or private), who hires contractors for construction, and so forth. The state government also supports the preparations.

When things go wrong, no party is held to account. This is due in part to the multiplicity of organisations involved, creating a ‘problem of many hands’. This situation is exacerbated because the state, the one organisation which is expected to provide a backstop to guarantee that its citizens are not harmed, is often unwilling or unable to hold anyone else to account. In some cases, particularly in regards to the eviction of individuals, and allowing construction in environmentally-sensitive areas, the government is actually complicit in the harm. Thus, with an absent state, my research examines how the international sporting organisations should be accountable, and should hold others to account, for the harms caused by hosting their sports mega-events.

Baby Steps

As part of its response to this situation, (more…)

Emerging Voices: The Role of Attribution Rules Under the Law of State Responsibility in Classifying Situations of Armed Conflict

by Remy Jorritsma

[Remy Jorritsma (LL.M.) is a lecturer in public international law at the Department of International and European Law of Maastricht University. In September 2015 he will join the Max Planck Institute Luxembourg as a Research Fellow/PhD candidate. Contact at r [dot] jorritsma [at] maastrichtuniversity [dot] nl.]

Armed conflicts involving e.g. Ukraine/Russia, Israel/Palestine, and the self-proclaimed Islamic State demonstrate legal ambiguities with regard to State responsibility as a result of the State exercising control over organized armed groups. Under customary international law an act by a non-State actor is attributable to a State if, inter alia, the latter exercises a certain level of control over the former.

However, it is unclear how much control is required for attribution. Equally unclear is the exact function of attribution in relation to the application of international humanitarian law (IHL). At stake is the issue whether the secondary rules of attribution may assist in classifying the armed conflict, thereby determining the framework of primary rules in which hostilities take place: the rules of international armed conflicts (IACs) or non-international armed conflicts (NIACs). The line of case law responsible for this debate is often characterized as a conspicuous example of “fragmentation” of international law (see here, here; but see with more nuance here).

In the Nicaragua case the ICJ assessed whether the acts of the contras could be attributed to the US for the purpose of State responsibility. The Court set the required level of control as follows:

‘[Even decisive participation] in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of whole of its operation, is still insufficient [. I]t would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.’ (§115, emphasis added.)

The Nicaragua test did not convince the ICTY Appeals Chamber when it had to ascertain the nature of the armed conflict between Bosnia and Herzegovina and the Federal Republic of Yugoslavia, acting after 19 May 1992 through the Bosnian Serb Army. The Appeals Chamber considered when an organized armed group fighting in a prima facie NIAC acts on behalf of another State – or ‘belong[s] to a Party’ in the sense of Article 4(a)(2) of Geneva Convention III – with the result that the conflict is internationalized and thus subject to IAC law. It held this to be the case if that State exercises…

‘overall control, going beyond the mere financing and equipping of [organized armed] forces and involving also participation in the planning and supervision of military operations. [It is not required] that such control extend to the issuance of specific orders or instructions relating to single military actions.’ (§145)

The next round of this ‘dialogue des sourds’ (Simma 2009, p.280) came when the ILC cited with approval the Nicaragua test in its Commentary (§5) to Article 8 of the Articles on State Responsibility, apparently discarding the overall control test. Later in the Lubanga Confirmation of Charges Decision the ICC approved (§211, later endorsed in the Lubanga Judgment at §541) the overall control test for the purpose of determining the nature of the conflict. Finally, the stamp of approval for the effective control test comes when the ICJ in Bosnian Genocide explicitly rejects (§403) the Tadić test of overall control for the purpose of State responsibility. Oddly, and perhaps even merely as a ‘gracious concession to the ICTY’ (Cassese 2007, p.651), the Court in Bosnian Genocide somehow purports (§405) to conceal this conflict by suggesting that the level of control required for the internationalization of a NIAC can ‘without logical inconsistency’ differ from the degree of control required for attribution in terms of State responsibility. The Court thus leaves open the possibility that the less-demanding test of overall control may be used to bring about an international(ized) armed conflict.

This line of case law reveals a fundamental difference of opinion as to if, and how, questions on State responsibility and conflict classification can be answered through a process of attribution of conduct. Two specific points of conflict can be observed: (1) disagreement as to the level of control required for State responsibility, and (2) disagreement as to whether conflicts can be classified by “borrowing” from the law on State responsibility. Bosnian Genocide creatively seeks to avoid the appearance of an all-out confrontation with the ICTY by acknowledging its subject-matter expertise and by approving of its approach in matters of conflict situation. However, what was meant to avoid or minimize the appearance of fragmentation actually ended up exacerbating it. There are three possible ways of looking at the overall/effective control debate (cf. Report of the Study Group on Fragmentation, §43-50):

  • As involving a conflict between two different interpretations of international law: effective control versus overall control for State responsibility;
  • As involving a conflict between the general law and a particular rule that claims to be the lex specialis exception to it: effective control for State responsibility but overall control for State responsibility in situations of armed conflict;
  • As involving no conflict at all, because the cases can be distinguished on basis of facts: Nicaragua/Bosnian Genocide concerned State responsibility, whereas Tadić concerned classification of armed conflict.

Particularly the ICJ’s disconnection between State responsibility and classification of conflict by differentiating between various functions of attribution is problematic for a number of reasons.

First, the ICJ’s suggestion that State responsibility is conceptually distinct from conflict classification appears to depart from its earlier practice in Nicaragua. Here the Court held that the actions of the contras in relation to Nicaragua, not imputable to the US, were subject to the law of NIACs, whereas the actions of the US itself (e.g. issuing a guerrilla warfare manual to the contras) were subject to the law of IACs. Without explicitly saying so, Nicaragua suggested a close link to exist between attribution of conduct and classification of armed conflict, making it unlikely to maintain that these questions are very different in nature. The lack of attribution through effective control meant that the conduct of the contras was de facto and de jure their own. Conversely, should the Court have found that the contras’ acts were legally attributable to the US, it is expected that their actions be assessed in light of the rules of IACs (cf. § 215 and 254).

Second, the primary rules of IHL also demonstrate a clear connection between attribution, State responsibility, and classification of conflict. An IAC subject to the rules of IHL exists whenever there is an armed conflict between States, whereas NIACs are armed conflicts in which at least one of the belligerent parties is not a State. In the Bemba Confirmation of Charges Decision the International Criminal Court held (§223) that an IAC exists ‘in case of armed hostilities between States through their organs or other actors acting on behalf of the State.’ Having in mind that conflicts are distinguished by the parties involved (Zegveld 2002, p.136), it becomes clear that ‘a determination of attribution will affect the classification of conflict’ (Somer 2006). The legal process of attribution in armed conflict situations defines who the belligerent parties are, and this in turn determines the applicable law in light of which the lawfulness of the belligerent parties’ behaviour must be assessed. This interpretation of IHL by reference to general rules of international law (Art. 31(3)(c) VCLT) arrives at a solution that is the most coherent when looking at IHL as such, and at IHL within the wider system of public international law.

Third, more generally, attribution rules are relevant to ‘define the conditions upon which the primary rules applies’ (Gaja 2014, p. 989). They are ‘transsubstantive’ rules (Caron 1998, p.128) which permeate the content and scope of primary rules. Primary rules may be addressed to specific legal subjects only and secondary rules of attribution rules then serve to determine whether the conduct complained of can be imputed to the addressee of the norm. This, of course, only unless a special law determines otherwise (cf. Art. 55 ARSIWA). If a State exercises control over a non-State actor this triggers the application of fields of law made to regulate State behaviour.

The ICJ’s separation of control for conflict classification from control for State responsibility rigidly adheres to a strict separation between primary and secondary rules. By suggesting to agree on a minor point with the ICTY the ICJ actually obscured the bigger picture and created more legal uncertainty. Also, a less-demanding test for conflict classification being distinct from State responsibility opens the door for States to fight a proxy IAC without being responsible towards the victims for possible violations committed in the course of that conflict. This is unacceptable in light of IHL’s emphasis on responsible command and at odds with the general structure of the law on State responsibility which logically places attribution before establishment of a breach or legal consequences.

At the end of the day, the ICJ and ICTY/ICC’s diverging approach towards the function of State control over a non-State actor may just as well be regarded as a case of concealed confrontation, or at the very least a judicial dialogue that feigns some agreement in order to downplay the actual extent and form of fragmentation.

Emerging Voices: The Law of the Sea as a Tool for Stability and Progress in the Eastern Mediterranean Sea

by Nikolaos Ioannidis

[Nikolaos A. Ioannidis is a PhD candidate in Public International Law (University of Bristol).]

On the verge of the 21st century, the discovery of “Noa”, a gas field offshore Israel, reinvigorated the Eastern Mediterranean (East Med) states’ interest in the sea. Additional hydrocarbon deposits were found in the sea waters adjacent to Israel, Gaza, Cyprus and Egypt, while the United States Geological Survey estimated that the Levant Basin alone contains 1.7 million barrels of oil and 122 trillion cubic feet of natural gas. These developments made the regional states realize that, in order to avail themselves of the immense underwater wealth, they should first demarcate their maritime space in conformity with the law of the sea rules. This post analyses the maritime boundary delimitation agreements concluded so far in the East Med. It should be pointed out that these are the first EEZ delimitation agreements to have been signed in the Mediterranean Sea. Perhaps the most noteworthy features of these arrangements is the use of the median line and the adherence of Israel to the 1982 Law of the Sea Convention (LOSC or the Convention) rules on the EEZ and maritime delimitation, despite the fact that it is not a state-party to the Convention.

In particular, four East Med states proceeded with the conclusion of bilateral maritime boundary delimitation agreements; the first delimitation agreement between Egypt and Cyprus in 2003 was followed by another two between Lebanon-Cyprus in 2007 (pending ratification by Lebanon); and Israel-Cyprus in 2010. All three agreements are concise and comprise five virtually identical articles each. Undoubtedly, maritime boundary delimitation is a pivotal function within the realm of the law of the sea. As the Arbitral Tribunal in the Bangladesh/India Award stressed:

“The importance of stable and definitive maritime boundaries is all the more essential when the exploration and exploitation of the resources of the continental shelf are at stake… the sovereign rights of coastal States, and therefore the maritime boundaries between them, must be determined with precision to allow for development and investment (emphasis added).”

Even though the East Med states maintain variant positions on maritime affairs, they have perceived the utility of the law of the sea apparatus in facilitating hydrocarbon exploration and exploitation, hence they decided to act within its ambit and collaborate with a view to gaining multiple profits from the energy windfall.

Legal analysis of the agreements

In the Preambles of these instruments, the contracting parties set forth the desire for cooperation, note the importance of EEZ delimitation “for the purpose of development” and recall the relevant LOSC provisions. The invocation of the LOSC in the Israeli-Cypriot agreement is of utmost significance as it not only illustrates the universal application of the Convention, but, most importantly, highlights the willingness of Israel to act in conformity with the LOSC, despite not being a party to the Convention, at least in terms of the provisions relevant to the EEZ. In any event, the EEZ concept forms part and parcel of customary international law, thus, even non-member states to the Convention are entitled to use and are obliged to observe the relevant rules [Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep. 18, para. 100; Delimitation of the Maritime Boundary in the Gulf of Maine Area [1984] ICJ Rep. 246, para. 94; Continental Shelf (Libyan Arab Jamahiriyia/Malta) (Judgment) [1985] ICJ Rep. 13, para. 34].

Perforce Article 1(a) of each agreement, the maritime limit between the contracting states is the median line, namely a line “every point of which is equidistant from the nearest points on the baselines of the two Parties” (Article 15 LOSC). The mutual acceptance and use of the median line evinces the establishment of a regional practice in the East Med favouring this method, contrary to the efforts of Turkey, which has diachronically been rejecting the median line/equidistance principle; instead, Turkey has been advocating the vague equitable principles/relevant circumstances method, which provides that all relevant factors should be considered so as to reach an equitable result. Paragraphs b-d of Article 1 address the definition of the coordinates of the maritime boundaries.

Furthermore, (more…)

Emerging Voices: Excuse in International Law

by Arthur Kutoroff

[Arthur Kutoroff is a graduate of Cornell Law School. He can be reached at Kutoroff [at] gmail [dot] com.]

There is a fundamental asymmetry between the treatment of individuals and the treatment of states within international law: individuals may claim excuses for their violations of legal obligations, but states may not.

Philosophers and lawyers distinguish between justifications and excuses: an action is justified if it is morally good or right (or at least not bad or wrongful); an action is excused if it is wrongful but the actor is not culpable for the wrongful action. This distinction affects the rights of third parties as well: third parties may lawfully assist a justified action, but may not assist an excused action because excuses are personal to the excused.

This distinction has been widely influential in domestic criminal law, as many jurisdictions clearly distinguish between justifications such as self-defense and excuses such as insanity. International criminal law seems to recognize excuses as well. The Rome Statute provides defenses such as duress, insanity, and intoxication for defendants before the ICC, although the Rome Statute is not entirely clear about which defenses are justifications and which are excuses. Moreover, in the Erdemovic case the ICTY recognized duress as a defense, albeit in limited circumstances.

International law does recognize defenses for states that breach their international obligations, but it does not clarify which defenses are justifications and which are excuses. For example, in the 1838 Caroline affair, British forces entered United States territory to destroy an American ship that was supplying Canadian rebels during the Upper Canada Rebellion. In response, United States Secretary of State Daniel Webster argued in a letter to the British government that the British failed to meet the standard of self-defense, which requires “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.” This definition combines elements of excuse and justification. The requirement that an exercise of self-defense is necessary suggests that self-defense is a justification, since jurisdictions generally recognize that a necessary action is justified. Yet, as George Fletcher and Jens Ohlin explain, the requirement that one could not do otherwise invokes the idea of self-preservation, which is more an excuse than a justification. Moreover, that requirement that one has no moment of deliberation invokes the idea of provocation, which is arguably a partial justification and a partial excuse.

Yet more recently international law has abandoned the language of excuse. The United Nations Charter authorizes the use of force if Security Council approves the use of force, and also maintains “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” In both of these circumstances, the use of force is justified, not merely excused: a state using force with UN Security Council approval or in self-defense has not committed a wrongful action.

Since World War II, international law has continued to recognize defenses to breaches of international obligations, but it has not clearly distinguished between justifications and excuses. Yet defenses in international law seem more like justifications than like excuses. As an illustration, consider the Draft Articles on State Responsibility, which provides a set of defenses to breaches of international law. Consider the defense of necessity, which was described in the Draft Articles and recognized by the ICJ in the Gabčíkovo-Nagymaros Project case. The Draft Articles describe necessity as “a ground for precluding the wrongfulness of an act not in conformity with an international obligation,” which invokes the language of justification rather than excuse. Recently the UN General Assembly has commended the Draft Articles (now just “the Articles”), further solidifying their place in international law yet further entrenching the ambiguity between justifications and excuses.

International law should consider recognizing excuses for states, as the theories that warrant the provision of excuses for individuals may apply to states as well. As an illustration, consider H.L.A. Hart’s theory of excuses: agents should be punished for their actions only if they have “the normal capacity, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities.” Hart considers various excuses, such as duress, mistake, and insanity, and notes that in these circumstances the defendant “could not have done otherwise.” There are other theories besides Hart’s: scholars have advocated alternative theories of excuse grounded in causation, choice, character, utilitarianism, and other considerations as well. But given H.L.A. Hart’s influence, his theory is a useful starting point.

Hart’s capacity and opportunity theory of excuse seems to apply to states as well as to individuals. Consider the prospects of a duress defense for states. States may be subject to coercive pressure from other states, and such coercive pressure may undermine the normal capacity of a government to act in conformity with international law. Moreover, coercive pressure from other states may deny a state a fair opportunity to conform their conduct to the requirements of international law.

To an extent, international law already recognizes duress, as the Draft Articles recognize coercion as a defense. Yet international law should clearly recognize duress or coercion as an excuse, not a justification. The moral significance of coercion is not that coercion justifies an otherwise wrongful action, but rather that it transfers culpability to the coercive third party. Were international law to recognize duress as an excuse, it would open the conceptual space to condemn wrongful conduct without condemning those who lacked the opportunity and capacity to follow their obligations.

As illustration of the effect of duress on state conduct, (more…)

Emerging Voices: What’s in a Mandate? Protecting Civilians in South Sudan

by Bart Smit Duijzentkunst

[Bart L. Smit Duijzentkunst recently received his PhD in international law from the University of Cambridge. He will be teaching international law at the Fletcher School of Law and Diplomacy, Tufts University, in the 2015 fall semester.]

When, in December 2013, the United Nations Mission in South Sudan (UNMISS) opened its gates to thousands of civilians fleeing violence in the wake of an alleged coup, it also opened a new chapter on the UN’s commitment to the protection of civilians. Two decades earlier UN troops had received vague orders to protect “safe areas” in Bosnia and Rwanda—with disastrous consequences. Today UNMISS is explicitly authorised to use “all necessary means” to protect civilians. Yet while the language of UN mandates has evolved, so have developments on the ground. UN policy-makers originally envisioned protection of civilians measures as short-term, localised interventions to ensure the physical safety of persons in acute emergency situations. In South Sudan, however, 18 months after the outbreak of hostilities almost 140,000 people continue to reside in so-called “protection of civilians sites” across the country. As a result, UNMISS peacekeepers are not simply called upon to protect against external threats, but also to maintain public safety and security within protection of civilians sites. But does their mandate cover these activities? This post briefly discusses the evolution of peacekeeping mandates before offering some reflections on UNMISS’ authority.

Protection of civilians mandates emerged in UN Security Council practice on the eve of the new millennium. In “traditional” mandates, the protection of civilians had been an afterthought, the fortuitous consequence of other peacekeeping objectives. For example, the mandate of UNPROFOR, operating in the Balkans in the mid 1990s, merely called upon the mission to deter attacks on so-called “safe areas”, to monitor cease-fires and to promote the withdrawal of military and paramilitary units from these areas. UNPROFOR could only take “all necessary measures”, including the use of force, in self-defence. Similarly, when UNAMIR in Rwanda was authorised to establish “secure humanitarian areas” in 1994, the UN Security Council recognised that the mission might be required to take action in self-defence to protect the areas, but did not explicitly authorise it to use force to do so.

Propelled by the failures in Bosnia and Rwanda, and encouraged by the emerging idea that the international community held a “responsibility to protect” vulnerable populations, in 1999 the UN Security Council started to explore the protection of civilians as an objective of peacekeeping. It began passing dedicated resolutions and included protection of civilians clauses in operational mandates. These “robust” mandates reflect a recognition by the Security Council that impartiality of UN peacekeeping operations “is not the same as neutrality or equal treatment of all parties in all cases for all time” and that in certain circumstances “peacekeepers may not only be operationally justified in using force but morally compelled to do so.”

In the same year, the UN Security Council vested certain missions with far-reaching administrative powers. UNMIK in Kosovo and UNTAET in East Timor were tasked to provide administrative functions while developing domestic institutions. In line with their “executive” mandates, these missions were empowered to draft local laws, implement domestic policies and administer justice, including arresting and sentencing alleged criminals, until these powers were transferred to local governments (in 2008 and 2002 respectively).

With these differences between traditional, robust and executive mandates in mind, let’s return to the situation of UNMISS. Following South Sudan’s independence on 9 July 2011, UNMISS’ initial mandate focussed on state-building and conflict resolution efforts; the protection of civilians was buried deep in its sub-clauses. These political ambitions went up in flames with the outbreak of violence on 15 December 2013, when an alleged coup triggered a civil war between Government forces, led by President Salva Kiir, and the Sudan People’s Liberation Movement/Army – In Opposition (SPLM/A-IO), headed by former vice-President Riek Machar.

In light of the persistent fighting and the massive influx of internally displaced persons and refugees onto UNMISS premises, the UN Security Council revised UNMISS’ mandate in November 2014 to make the protection of civilians its top priority. The new, robust mandate removes references to “imminent” threats, simply authorising UNMISS to “use all necessary means” to “protect civilians under threat of physical violence, irrespective of the source of such violence”. While housing, food and sanitation are principally provided by humanitarian organisations, UNMISS is in charge of “maintain[ing] public safety and security within and of UNMISS protection of civilians sites”.

This is not the first time that the UN has provided shelter to civilians on its premises: from East Timor to Palestine, over the last decades civilians have flocked to UN bases in the face of violence. The UN has developed various policies to deal with these situations, which range from setting out general principles to providing specific guidelines on civilians seeking protection at UNMISS sites (the latter drafted prior to December 2013). All these documents stress the exceptional and temporary nature of these measures: they speak of protection in terms of hours or days, not weeks or months. Yet as the conflict in South Sudan persists and peace remains elusive, what might have seemed a temporary measure at first has turned into a prolonged situation with few prospects of resolution.

(more…)

Emerging Voices: Powers of the Security Council to Make Determinations Under Article 39 of the Charter in Case of Cyber Operations

by Janos Ferencz

[Janos Ferencz, LL.M., is a Visiting Research Fellow at The Minerva Center for the Rule of Law under Extreme Conditions at the Faculty of Law and Department of Geography and Environmental Studies, University of Haifa and a Legal consultant at Panteia, the Netherlands.]

The rapid proliferation of malicious cyber operations in recent years has underlined a growing concern about the risks presented by cyber space to international peace and security. The UN General Assembly noted in Resolution 69/28 (2014) the increasing concerns about the use of information technologies “for purposes that are inconsistent with the objectives of maintaining international stability and security” (UN Doc. A/Res/69/28, 2 December 2014, preambular para. 9). The importance of understanding when cyber operations represent a threat to international peace and security lies in the Security Council’s Chapter VII powers. Under Article 39 of the Charter, its powers to adopt non-forceful and forceful measures can only be activated once there is a determination that a cyber operation is a “threat to the peace, breach of the peace, or act of aggression.” The academia has paid only limited attention so far to analysing the conditions under which cyber operations can reach this level. This post aims to fill this gap by assessing whether, and if so, under what conditions can cyber operations trigger the applicability of Article 39 of the Charter.

Cyber operations and the threshold of Article 39

A cyber operation must be understood as a broad concept, incorporating “the employment of cyber capabilities with the primary purpose of achieving objectives in or by the use of cyberspace” (Tallinn Manual, para. 2, p. 15). The Tallinn Manual experts unanimously agreed that the Security Council possesses the authority to determine that a cyber operation constitutes a threat to the peace, breach of the peace, or act of aggression (Tallinn Manual, Rule 18). The question remains, however, what are the prerequisite circumstances for such an operation to attain the level of gravity required by Article 39?

A breach of the peace is generally characterized by armed hostilities between States, while an act of aggression manifests through the direct or indirect use of force. The concept of “threat to the peace” is the broadest and most frequently used one by the Security Council. From a cyber perspective, the two former scenarios, although theoretically possible, remain less likely to occur in practice since the Security Council has yet to make a determination that an event amounted to an act of aggression, and only a handful of situations were found to have breached the peace (e.g. the invasion of South Korea or Kuwait). For this reason (and taking into account also spatial limitations) this post focuses on the circumstances qualifying cyber operations as a threat to international peace and security.

The Security Council has broad discretion under Article 39 to conclude that any kind of conduct or situation amounts to a threat to international peace. Finding the lowest common denominator across the Council’s past practice falls beyond the scope of this post but suffice it to say that a “threat to the peace” is deemed a political concept (Tadić Decision on Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 29) that builds on the Council’s interpretation of the concept of “peace”. Although the early practice of the Council has shown a narrow interpretation of this concept, viewing “peace” as the absence of use of force between States (J. Frowein, ‘Article 39’ in B. Simma (ed.) The Charter of the United Nations: A Commentary (2nd edn., OUP, 2002), at p. 720), the recent practice of the Council indicates its willingness to broaden that interpretation. This is best evidenced by the Council’s acknowledgement that the HIV/AIDS pandemic can pose a security threat (SC Res. 1308, 17 July 2000) as well as the determination on the existence of a threat to international peace and security in West-Africa due to the outbreak of Ebola (SC Res. 2177, 18 September 2014). Nonetheless, the Council has always been careful to consider the impact of an internal situation upon regional or international stability. This criterion is common across all Article 39 determinations, and entails that any event or phenomena that undermines regional or international stability by creating a risk for unrest or hostilities in the short or medium term could fall within the purview of Article 39.

Thus, a cyber operation will amount to a threat to peace within the meaning of Article 39 when it creates the threat of jeopardizing regional or international stability. Cyber operations targeting the critical infrastructure of a State will likely fulfill this threshold. Similarly, the US DoD concluded that “computer network attacks that caused widespread damage, economic disruption, and loss of life could well precipitate action by the Security Council” under Article 39 (US DoD, An Assessment of International Legal Issues in Information Operations, May 1999, p. 15).

The cyber operation itself need not be a violation of international law per se for it to fall within the ambit of Article 39. This raises interesting questions about the exploitation of cyberspace for the purposes of espionage, which is, in principle, not prohibited by international law. This question is particularly relevant in the aftermath of Edward Snowden’s revelations regarding the NSA’s surveillance programme in 2013.

In my view, there are two main approaches to assessing cyber espionage under Article 39. Firstly, relying on the threshold set out above, cyber espionage could represent a threat to international peace and security when it creates destabilizing effects on regional or international stability to the extent that a potential risk of unrest and hostilities between States will arise. One example would be recourse to dual-use malwares that not only steal information but also produce widespread destructive or disruptive effects. However, it is unlikely that data breaches on their own would fall within the scope of Article 39 unless there is a prospect for hostilities as a result of the breaches. Furthermore, due to the threat of veto by any permanent member of the Security Council, it remains unlikely that in the near future cyber espionage incidents will be formally declared a threat to international security.

The alternative approach is to (more…)