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Weekly News Wrap: Monday, September 1, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Asia

Europe

Middle East and Northern Africa

Americas

Oceania

UN

Should the U.S. Government Change Its Approach to Zero-Day Exploits?

by Chris Borgen

Dan Geer, the chief of information security for In-Q-Tel (essentially, the venture capital fund that supports tech innovation for the CIA) gave a wide-ranging keynote speech at Black Hat, a convention of cybersecurity experts.  A video of the speech is available here.

I want to focus on one specific issue among the many he discussed: his call for the US government to publicly disclose the software loopholes and hacks that it purchases.

I have discussed in other posts (1, 2) the market for information regarding security loopholes known as “zero-day exploits.”  The U.S. is already a big player in this market,  purchasing exploits for use by its intelligence and law-enforcement agencies.

Rather than informing producers, purchasers, or users of the software of the flaws, the U.S. government (and other governments that participate in the exploits market) allegedly require non-disclosure agreements from the hackers who sell exploits so that the holes will stay open as long as possible. This has been called a strategy of offense: trying to maximize intelligence gathering capabilities. Geer  paraphrases a former senior NSA official:

If we were to score cybersecurity the way we score soccer, we would be twenty minutes into the game and the score would be 462 to 456. That is to say: all offense.

He further explains: “Offense is where is where the innovations that only states can afford is going on.”

Some have argued that the result is the widespread use of software riven with security flaws that could have been fixed.  Instead, the U.S. should use its market power to make software more secure by purchasing and then disclosing zero-day exploits.  As reported by Wired, Geer argues that by incentivizing disclosure:

the U.S. can drastically lower the impact of international cyberwarfare. [He explains:] “We don’t need intelligence on what weapons our adversaries have if we have something close to a complete inventory of the world’s vulns and have shared that with all the affected software suppliers.”

As far as I understand, proponents of a strategy of maximizing offensive capability assume that computer systems will always have many holes and the U.S. might as well use these flaws to get as much useful intelligence as possible rather than chasing what they view as the illusory promise of real defense.

I do not know enough about the ins-and-outs of computer security architecture to opine as to whether the U.S. should maintain an offensive strategy or move to securing vulnerable systems with a primarily defensive strategy of disclosure. However, I would suggest that a defensive strategy may be strengthened by international coordination.

In any case, if you are interested in issues of cyber-security then Geer’s speech is a must-listen.

[This post has been corrected to fix the misspelling of Dan Geer's name.]

 

Emerging Voices: Protecting the World’s Children: R2P and Measures Less-Than-Force

by Stacey Henderson

[Stacey Henderson is a PhD Candidate and Teaching Fellow at Adelaide Law School, The University of Adelaide, South Australia]

Children are among the most vulnerable during armed conflict.  The existence of special protections for children in the 1949 Geneva Conventions, and the existence of the Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, all attest to the special vulnerability of children.  The security of children during armed conflict has even been recognised by the Security Council as being a matter of international peace and security (see for example: SCR 1261, SCR 1314, SCR 1379).  Given the importance of protecting children and other vulnerable groups during armed conflict, does the concept of the Responsibility to Protect (‘R2P’) clarify the principles governing international responses to atrocity crimes?

At its heart, R2P is about duty – the primary duty of states to protect their populations from atrocity crimes and the secondary duty of the international community to ‘use appropriate diplomatic, humanitarian and other peaceful means’ to help protect against atrocity crimes and to take action through the Security Council when the state ‘manifestly fails’ to protect its population.  Even if it is R2P-lite (.pdf), this formulation of R2P and the duty of the international community which flows from it, in practice appears to allow considerable scope for the international community to take significant steps to intercede in armed conflicts where atrocity crimes are being committed, provided those measures do not cross the threshold of use of force in the absence of a Security Council resolution.  In order to distinguish these less-than-force measures from the baggage that comes with the term “intervention,” in my view they are better described as “intercession.”  Although in its early stages, my research indicates that these less-than-force measures (intercession) include unilateral sanctions, trade restrictions, diplomacy, withdrawal of aid funding and even non-lethal support to rebel groups (.pdf).  These are measures taken by states, without Security Council authorisation, which are less than the use of force, but which appear to be the site of the most significant opportunities for change that protects the most vulnerable, including children.

The increasing use of intercession by the international community in response to modern armed conflicts reveals an emerging norm in international law which recognises that there are international obligations to protect human rights, particularly the human rights of the most vulnerable such as children, and humanitarian ideals that are more important than, and overtake, sovereignty when atrocity crimes are being committed.  (more…)

Guest Post: Attacks on Schools–What about International Law?

by Kristin Hausler and Robert McCorquodale

[Kristin Hausler is an Associate Senior Research Fellow in Public International Law and Robert McCorquodale is the Director of the British Institute of International and Comparative Law. The views expressed here are those of the authors and not of BIICL.]

On 30 July, a school operated by a UN agency in the Jabalia refugee camp, north of Gaza City, was shelled by the Israeli army, killing at least 16 people and injuring more than 100.On 3 August, the Israeli army bombed another Gaza school run by the UN, this time in Rafah, where over 2,000 displaced Palestinians were sheltering. This attack reportedly killed at least 10 individuals. There have also been reports that Hamas has been storing weapons in schools. Can attacks on schools, teachers and students ever be legitimate under international law?

International humanitarian law applies, in its entirety, to international armed conflicts, while some of its key principles apply also to non-international (internal) armed conflicts. All the parties to the current armed conflict in Gaza and other armed conflicts, no matter if they qualify as state or non-state actors, are, at the very least, legally bound by the rules of customary international humanitarian law. The key rules are the distinction between civilians and those taking a direct part in hostilities, and between civilian and military objects. Deliberate attacks on civilians are prohibited. Therefore, students, teachers and all other civilians who may be located in a school are protected as long as they do not take an active part in the hostilities. In addition to deliberate attacks, indiscriminate attacks, which do not distinguish between civilian and military targets, such as those consisting of area bombardments over densely populated areas or those conducted with imprecise weapons that are not able to target military objectives with sufficient precision, are prohibited. Disproportionate attacks which cause excessive harm to civilians are also prohibited.

In the same way as individuals are protected if they do not take part in hostilities, schools are protected from attacks because they do not serve a military function. While some buildings, such as hospitals, benefit from special protection under international law, this is not the case for schools. The protection of schools from attacks ceases if they become military objectives, which occurs when they are used for military purposes and effectively support military action, such as to store weapons or to station troops. Such use should be discouraged.

Deliberately placing civilians in or around military objects amounts to using civilians as ‘human shields’, which is prohibited under customary international law. If schools are used solely as shelters for civilians, they remain civilian objects. In case of doubt about the military nature of an object, the building in question must be presumed to be civilian. At all times, any party to a conflict must minimize the risks of civilian casualties and injuries, as well as minimize the risks of damage or destruction of civilian objects by taking all possible precautionary measures in the conduct of military actions.

In addition, parties to a conflict also have a duty to respect human rights within their borders, as human rights continue to apply during armed conflicts. States exercising effective control over territories beyond their borders are also bound by their human rights obligations on those territories. Both Israel and Palestine are parties to human rights treaties that protect the right to education and protect children’s rights. Therefore, the use of schools for military purposes, which is likely to threaten the provision of education, may also amount to a human rights violation on the part of the state responsible to provide education.

Through the application of international criminal law and after appropriate investigation, the perpetrators of international crimes may be held individually responsible. In relation to both international and non-international armed conflicts, the Statute of the International Criminal Court (ICC) establishes that intentionally directing attacks against the civilian population, as well as intentionally directing attacks against buildings dedicated to education, are war crimes. However, the ICC can only prosecute crimes if the alleged perpetrator is a national of one of its State Parties, if the crime was committed on the territory of a State Party, or if the matter is referred by the UN Security Council. While Israel has signed the ICC Statute, it has never ratified it, and Palestine’s declaration accepting the ICC jurisdiction was not accepted when it was made.

It is also important that those, including the injured and the relatives of the victims, who have suffered harm as a result of those attacks are provided with adequate reparations. States responsible for violations of international humanitarian law and international human rights law are under an obligation to provide adequate reparation, even if their actions were committed extra-territorially. For example, the schools that have been destroyed must be repaired so that the right to education continues to be provided.

Elsewhere, schools, pupils and teachers have been the objects of acts of violence in recent times, including, for example, in Nigeria, where Boko Haram conducted targeted shootings at schools and abducted female students, and in Pakistan, where the Taliban attempted to kill student and activist Malala Yousafzai. All of these attacks highlight the need to uphold the international legal provisions protecting education, as has been shown by BIICL’s research on Protecting Education in Insecurity and Armed Conflict. If a state and a people are to have long-term sustainable peace and development after an armed conflict, then there is a great need for education now and in the immediate future. Furthermore, the right to education is an enabling right, empowering access to other human rights and to meaningful participation in society. It is a right deserving of all our protection, at all times.

 

Emerging Voices: Freedom or Restraint? On the Comparison Between the European and Inter-American Human Rights Courts

by Lucas Barreiros

[Lucas E. Barreiros is a Professor of Public International Law and Coordinator of International Human Rights Law Masters Program at the University of Buenos Aires.]

While much attention has been paid to the differences and similarities between the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR) as well as to the dialogue between them [see here, here, here and here for examples], none of that attention has been devoted to comparing the one aspect of their work that best and most synthetically captures all that sets them apart – that is, the doctrines of “margin of appreciation” and “control of conventionality”. It is proposed here that more attention should be paid to the explanatory power of these two doctrines in understanding the different identities and diverging trajectories of the ECHR and the IACHR.

As known, the “margin of appreciation” doctrine was developed by the ECHR starting in its Handyside v. United Kingdom judgment. It has been understood to refer, as pointed out by Steven Greer, to “the room for manoeuvre that the Strasbourg institutions are prepared to accord to national authorities in fulfilling their obligations under the European Convention on Human Rights”. The rationale for allowing this margin of appreciation, as pointed out by the ECHR in Handyside when referring to the conditions set out in the Convention to lawfully restrict the freedom of expression, is that national authorities, “by reason of their direct and continuous contact with the vital forces of their countries (…) are in a better position than the international judge to give an opinion on the exact content of these requirements”.

For its part, the “control of conventionality” was first mentioned by the IACHR in its judgment in the Case of Almonacid Arellano et al v. Chile.The IACHR held that:

“(…) domestic judges and courts are bound to respect the rule of law, and therefore, they are bound to apply the provisions in force within the legal system. But when a State has ratified an international treaty such as the American Convention, its judges, as part of the State, are also bound by such Convention. This forces them to see that all the effects of the provisions embodied in the Convention are not adversely affected by the enforcement of laws which are contrary to its purpose and that have not had any legal effects since their inception. In other words, the Judiciary must exercise a sort of “conventionality control” between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also the interpretation thereof made by the Inter-American Court, which is the ultimate interpreter of the American Convention.” (emphasis added).

It should be noted that there are two components to the doctrine – one deals with the responsibility of national authorities to ensure that the application of national legislation does not adversely affect the rights under the American Convention of Human Rights; the other, however, is the direct opposite of the “margin of appreciation” as it leaves no room for national authorities to conduct their own assessment and requires them to apply the interpretation of the IACHR.

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MH17 Should Be Framed as Murder, Not as a War Crime

by Kevin Jon Heller

It has become quite common to describe the downing of MH17 as a war crime. In late July, for example, Navi Pillay, the UN High Commissioner for Human Rights, said that “[t]his violation of international law, given the prevailing circumstances, may amount to a war crime,” More recently, William Burke-White has said that, for framing purposes, “[t]he time has come for governments and international organizations to call the attack on MH17 a probable war crime.” 

[I]f whoever launched the missile did so with the intent of killing the civilian passengers aboard MH17, the act was unmistakably a war crime.

Even if the objective was to strike a Ukrainian transport aircraft, the act likely constitutes a war crime. Fundamental to the law of war, including the law applicable in non-international armed conflicts, is the principle of distinction – the requirement that fighting parties distinguish between civilian and military targets. In the words of the International Committee of the Red Cross, that duty of care includes doing “everything feasible to verify that targets are military objectives.”

In this case, many steps could easily have been taken to differentiate MH17 from a military-transport plane, including visual identification (perhaps with binoculars), radar-signature analysis, and a check of the civilian aircraft transponder-code broadcast. If, as seems likely, these basic steps were not taken, even an accidental strike on MH17 would constitute a war crime.

If the Ukrainian separatists did indeed intend to kill civilians, Bill and Navi Pillay are absolutely right to describe the attack as a war crime — in this case, murder and/or intentionally directing attacks at civilians or civilian objects (to use the Rome Statute’s terminology). But everything we know to date about the attack indicates that the separatists honestly believed MH17 was a Ukrainian military transport, not a civilian airplane. If so, that changes the legal assessment of the attack considerably. The attack would still qualify as murder under domestic law — but it would not qualify as a war crime, under either the Rome Statute or the jurisprudence of the ICTY. (The latter likely representing the customary definition of the war crimes of murder and attacking civilians or civilian objects, which most states would apply in a prosecution based on universal jurisdiction.)

Let’s go in order. The problem with describing the attack on MH17 as a war crime under the Rome Statute is Article 32(1), which provides that “[a] mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.” The actus rei of the war crime of murder and the war crime of intentionally directing attacks at civilians or civilian objects each include a circumstance element: the individuals attacked must qualify as civilians (or as otherwise protected persons). The relevant mens rea for circumstance elements is knowledge, pursuant to Art. 30(3) of the Rome Statute: “For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists.” Black-letter criminal law provides that an honest mistake of fact negatives any mens rea that requires subjective awareness. So if the separatists honestly believed they were attacking a Ukrainian military transport, they were not aware that they were attacking civilians. In which case they could not be convicted of either the war crime of murder or the war crime of intentionally directing attacks at civilians or civilian objects.

The result is no different under the ICTY’s jurisprudence, even though the ICTY applies a lower mens rea to the war crimes of murder and attacking civilians. A complete discussion of the issue is beyond the scope of this post; suffice it to say here that an accused will be responsible for either war crime only if he was reckless toward the possibility that the objects of his attack qualified as civilian. (Dolus eventualis in civil-law terminology.) Recklessness is a subjective mental state in the ICTY’s jurisprudence; as the Trial Chamber noted in Brdjanin, specifically in the context of murder, “the threshold of dolus eventualis entails the concept of recklessness, but not that of negligence or gross negligence.”” Like the ICC, the ICTY recognizes mistakes of fact. As a result, the separatists could not be convicted of either the war crime or murder or the war crime of attacking civilians under ICTY jurisprudence if they honestly believed they were attacking a Ukrainian military transport: although that belief might have been negligent, even grossly negligent, its honesty meant that they were not subjectively aware they were attacking civilians.

The bottom line is that the accidental downing of civilian airplane based on an honest belief that the airplane was a military objective is not a war crime. Failing to take adequate precautions may violate IHL, but it is not criminal. The downing of MH17, therefore, should be framed not as a war crime but as murder.

Weekly News Wrap: Monday, August 11, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Asia

Europe

Middle East and Northern Africa

Americas

Oceania

More on the Troubling, But Emerging Article II Humanitarian Intervention Power

by Julian Ku

Now that President Obama and his advisors have offered some more detail on the domestic legal basis for U.S. military’s action in Iraq, I think it is even more clear now than when I first posted on this subject that the administration is relying on some sort of Article II Commander-In-Chief power to “prevent an act of genocide” against a Iraqi minority group.  In reading the administration briefing, it is clear that the need to protect U.S. persons and property is a separate justification for a separate set of air strikes.  I don’t think the Administration is arguing that protecting U.S. life and property requires striking at the ISIS forces threatening the trapped Iraqi civilians.

Both Marty Lederman and Jack Goldsmith have also picked up on this point, with Goldsmith suggesting this would be a troubling extension of the President’s already expansive Article II Commander-in-Chief power. Ilya Somin dismisses this whole approach as going against the text of the Constitution.   I agree with Ilya that this approach is hard to square with either the text or even the history of Article II’s drafting and subsequent interpretations. And I also agree with Goldsmith that this expansion is troubling. But I also think that the President’s invocation of the need to “prevent an act of genocide” as the legal basis for air strikes, along with apparent acquiescence by Congress (so far), sets an important legal precedent for future U.S. presidents.

Events and Announcements: August 10, 2014

by An Hertogen

Events

  • The International Criminal Tribunal for Rwanda (“ICTR”) is organising an International Symposium on the Legacy of the ICTR to be held in Arusha, Tanzania on November 6-7, 2014. With the ICTR’s closure scheduled for 2015, the Symposium aims to provide an opportunity for experts in the field of international justice to reflect on the ICTR’s contributions to the development of international humanitarian law, administration of justice, and promotion of the rule of law, particularly in the Great Lakes Region. We invite experts in the field to submit proposals for papers to be presented during the Symposium. Papers should focus on the topics indicated in the draft programme, which can be found here. The full text of the call for papers can be found here.

Announcements

  • American University Washington College of Law’s Academy on Human Rights and Humanitarian Law is pleased to announce that the American Bar Association, at its Accreditation Committee’s June 26-28, 2014 meeting, approved the LL.M. in International Human Rights and Humanitarian Law. This new offering by the Academy recognizes the vast interest in the legal community in studying human rights law at American University Washington College of Law (AUWCL). This program is the only LL.M. program in International Human Rights and Humanitarian Law in the United States to offer a hybrid curriculum of its kind in a U.S. law school. With online and residential course components, this program is designed for practitioners and other human rights professionals who wish to pursue advanced studies in international human rights law and humanitarian law alongside their existing work responsibilities. AUWCL has built a significant reputation in this field and it is highly recognized around the world.  Moreover, its unique location in Washington D.C. offers unparalleled opportunities to legal professionals from the U.S. and around the world. Access more information HERE.
  • The School of Law at the University of Reading in the UK has just launched Global Law at Reading (GLAR), a major new teaching and research hub for law staff and students working in public international law, EU law and human rights. The GLAR website has recently been developed and is now live here. This provides up-to-date information on GLAR, including news and events, relevant staff profiles, publications and research, and much more. As such, it is an invaluable resource especially for those interested in studying public international law, EU law or human rights at Reading, whether for one of our dedicated GLAR LLM programmes or the PhD. The GLAR website will be continually updated with news and events concerning the work done in global law areas at the University of Reading, and it will soon feature a regular free podcast featuring debates and papers on GLAR topics.

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

Final Thoughts on the Bar Human Rights Committee’s Letter

by Kevin Jon Heller

Kirsty Brimelow QC, the chair of the Bar Human Rights Committee (BHRC) — and a colleague of mine at Doughty Street Chambers — has responded to my position on the 2009 Declaration, as recounted by Joshua Rozenberg in this Guardian article. Here is the relevant paragraph:

Neither Rozenberg’s opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support of their positions. This is hardly surprising given that the decision does not in fact “formally reject” the 2009 declaration.

Although I stand behind my claim that the OTP “formally rejected” the 2009 Declaration in its 2012 decision, Kirsty correctly points out that I did not cite the text of the decision. So I think it’s useful to summarise the text and quote it where appropriate:

[1] The 2009 Declaration purported to accept the Court’s jurisdiction over the situation in Palestine on an ad hoc basis, retroactive to 1 July 2002 (para. 1).

[2] Per Art. 15 of the Rome Statute, the OTP initiated a preliminary examination “in order to determine whether there was a reasonable basis to proceed with an investigation” (para. 2).

[3] The OTP stated that the first step in that inquiry was to determine whether it had jurisdiction over the events in Palestine. In that regard, it noted that “only when such criteria are established will the Office proceed to analyse information on alleged crimes as well as other conditions for the exercise of jurisdiction” (para. 3)

[4] The OTP pointed out that only a “State” can accept the Court’s jurisdiction on an ad hoc basis under Art. 12(1) of the Rome Statute (para. 4), which meant that the key issue with regard to the Declaration was whether Palestine qualified as a State (para. 5).

[5] The OTP concluded that it did not have the authority to decide whether, as a matter of law, Palestine was a State; that responsibility was “for the relevant bodies at the United Nations or the Assembly of States Parties” (para. 6).

[6] The OTP acknowledged that numerous states had acknowledged Palestine’s statehood and that Palestine had applied for membership as a State in the UN, but insisted that although the UN application was relevant, “this process has no direct link with the declaration lodged by Palestine” (para. 7).

[7] The OTP said it “could in the future consider allegations of crimes committed in Palestine” if the statehood issue was “eventually” resolved by the UN or ASP (para. 8).

Although the decision is not the picture of clarity, I still think it qualifies as a “formal rejection” of the 2009 Declaration. The Declaration formally requested the OTP accept jurisdiction and investigate the situation in Palestine. The OTP opened a preliminary examination, as required by the Rome Statute, but then ended that examination at the first step, concluding that it did not have jurisdiction over the events in question because Palestine could not establish that it was a State. That’s a rejection, even if the OTP — to use a common-law phrase — dismissed the Declaration without prejudice.

My guess is that paragraph 8 is the crux of the disagreement between the BHRC experts and me. They are reading it as a statement that the OTP would essentially hold onto the Declaration until the UN or ASP clarified Palestine’s status as a state, at which point it could then advance the preliminary examination. It’s possible — but I think the OTP would have said as much if that’s what paragraph 8 meant. I read the paragraph as making clear the OTP was rejecting the Declaration without prejudice to a later ad hoc declaration — a reading, not incidentally, that seems to square with Fatou Bensouda’s recent statement that the OTP won’t act without a new Declaration or Palestine’s ratification of the Rome Statute.

I also want to make clear that I disagree with Rozenberg’s statement that the BHRC “is at best naive, and at worst misleading, for suggesting [the] legal situation is beyond doubt.” I don’t think there is anything naive or misleading about the letter, even though I disagree with it. These are very difficult issues, over which reasonable people can disagree. And there is, of course, nothing wrong with advocates advocating.

Finally, I want to sincerely apologise to the BHRC for revealing that I had been asked to sign the letter. Although I waited for the letter to appear publicly before commenting on it, I should not have mentioned that I had been approached.

Weekend Roundup: August 2-8, 2014

by An Hertogen

This week on Opinio Juris, the main point of discussion was the ICC’s jurisdiction over the situation in Gaza. Eugene Kontorovich put the spotlight on a recent development at the ICC in relation to Egypt that reduces the chances of the Palestinians’ ICC accession bid being accepted, to which Kevin responded here and Eugene followed up here. In related posts, Kevin pointed out the Bar Human Rights Committee in the UK request to the OTP for an investigation of the situation in Gaza, the OTP’s statement that the ICC lacks jurisdiction, and his podcast on the issue.

Clare Frances Moran contributed an Emerging Voices post on the contribution of international criminal tribunals and courts to the development and promotion of international human rights law. Other posts in this symposium discussed race-based statelessness in the Dominican Republic and a discussion of the impact of extraordinary reparations on the legitimacy of the Inter-American Court of Human Rights.

In other posts, Julian shared his thoughts on Taiwan’s East China Sea Peace Initiative, and criticized Argentina for launching ICJ proceedings against the US, which the latter is unlikely to consent to. He also discussed the Article II “Humanitarian Intervention” powers in light of President Obama’s authorization of airstrikes against ISIS.

Jessica wrapped up the weekly news and listed events and announcements. A very special event is Philippe Sands’ upcoming London premiere of his “A Song of Good and Evil“.

Many thanks to our guest contributors and have a nice weekend!

Emerging Voices: Extraordinary Reparations, Legitimacy, and the Inter-American Court

by David Attanasio

[David L. Attanasio is a professor of law at the Jorge Tadeo Lozano University in Bogotá, Colombia, and Doctoral candidate in philosophy at U.C.L.A.]

The Inter-American Court of Human Rights—the highest authority dedicated to enforcing international human rights law in the Inter-American system—has received deep praise for its influential and innovative reparations decisions (.pdf). Nonetheless, its more innovative reparations measures suffer from a serious problem of legitimacy, in that they do not seem to respond to the human rights violations that the Court identifies. Specifically, in the vast majority of its reparations decisions since 2001, the Court has ordered what I call extraordinary reparations, measures such as human rights training, changes to law and policy, improvements in the justice system, and provision of education, water, food, or public services (preceding links to .pdfs). These typically are in addition to compensation payments and other measures explicitly designed to eliminate the violation’s consequences. Although the Court has not adequately defended its practice of ordering extraordinary reparations, several potential bases of legitimacy may justify its principal decisions. Some extraordinary reparations are disguised orders to cease violations, others seek to repair damage to communities, and some aim to repair victim trust in the state.

Despite the importance of its innovations, the Inter-American Court has not explained why it may order extraordinary reparations, particularly when it has already ordered measures supposedly sufficient to eliminate the effects of past human rights violations. For example, following a forced disappearance (.pdf), the Court ordered monetary compensation for the victim’s family supposedly equivalent to the harm suffered, but went on to order, among other measures, a literacy program for the victim’s mother. The American Convention on Human Rights empowers the Court to order reparations only for identified human rights violations, not to order any measure it thinks might make for a better state or for a more human rights-friendly social environment. It is not an international legislature. However, extraordinary reparations, which often appear aimed at changing the victim’s circumstances, apparently lack any “causal nexus” (.pdf) with a past human rights violation. As states have complained (.pdf), they do not seem to address the violation’s effects, as other reparative measures such as restitution or compensation are supposedly sufficient for that objective. The Court lacks explicit principles in its jurisprudence sufficient to clarify when and why extraordinary reparations might be legitimate.

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