Recent Posts

Introducing the Second Multi-Blog Series on the Updated Geneva Conventions Commentaries

by Jessica Dorsey

Last March, the ICRC released an updated Commentary on the First Geneva Convention of 1949 (GCI), the first installment of six new Commentaries aimed at bringing the interpretation of the Geneva Conventions and their Additional Protocols of 1977 to the 21st century.

The updated Commentaries serve as an interpretive compass emerging from more than 60 years of application and interpretation of the Geneva Conventions. In order to bring to light the significance of the updated Commentary on the First Geneva Convention, several blogs are hosting a joint series focusing on particular GCI provisions. This blog series is co-hosted by Intercross, Humanitarian Law & Policy, and Opinio Juris.

The first episode was launched last summer and featured posts by Jean-Marie Henckaerts on Locating the Geneva Conventions Commentaries in the International Legal Landscape, Sean D. Murphy on The Role of the ICRC Commentaries in Understanding International Humanitarian Law and Kevin Jon Heller on First Thoughts from Academia on the Updated GCI Commentary

Recently, we launched the second episode, focusing on the arming of military medical personnel, units and transports. To what extent can military medical personnel, units and transports be armed? When permitted, can they be armed with weaponry heavier than the so-called “light” individual weapons? When would this constitute an “act harmful to the enemy”? Which implications does arming them have in terms of the entitlement to display the distinctive emblem of the Conventions?

To kick off the series, Heather Brandon, Advocacy Counsel of National Security for Human Rights First, posted first at Intercross discussing restricting medical personnel, units, and transports to ‘light individual weapons.’

Posts in this Series:

This page will be regularly updated with past and upcoming posts. 

Keeping up with the Iran Deal

by Deborah Pearlstein

For those interested in the policy merits of the Iran Deal, it’s important to note the letter sent today by 37 leading American scientists, including multiple Nobelists, nuclear arms designers, former White House science advisers and the chief executive of the world’s largest general society of scientists — detailing the effects of the deal to date and urging the incoming President not to “dismantle” it. Here’s the Times article with a link to the letter.

For reasons others have addressed in substantial part, it is not possible for any U.S. president to now “dismantle” the deal in its entirety, the most significant international sanctions having been lifted by a binding resolution of the UN Security Council, a resolution all other veto bearing members of the Council remain committed to supporting. The United States could of course re-impose some or all of the national sanctions it had suspended in support of the deal. But at this point it is hard to see how the sanctions of any individual state, however powerful, would succeed in persuading Iran to abandon its decades old political and military activities in the region or do more than it is already doing to roll back its enrichment efforts.

The UN’s Apology Won’t Heal Disease, But It’s A First Step to Justice

by Beatrice Lindstrom

[Beatrice Lindstrom is a Staff Attorney at the Institute for Justice & Democracy in Haiti and counsel for plaintiffs in the lawsuit Georges v. United Nations.]

When the outgoing Secretary-General issued his long-overdue apology for the UN’s role in Haiti’s cholera epidemic, he turned a corner on six years of silence and stonewalling. At the Bureau des Avocats Internationaux—the Haitian public interest law office that has led the charge against the UN for introducing the disease to Haiti—about 100 victims and activists were gathered to watch a live-stream of the statement in Port-au-Prince. They broke into spontaneous cheers and applause when the apology was delivered.

“This was a victory for us today. It wasn’t easy. We sent thousands of letters and took to the streets to get this victory, for them to say today that they were responsible. They said that, and we thank them…” said Desir Jean-Clair, a cholera survivor who has been organizing for justice, in a statement following the apology.

A public apology has been a central demand of the victims, along with cholera eradication and compensation for families who have suffered. While the disease has caused thousands of deaths and massive suffering since UN peacekeepers contaminated Haiti’s largest river with cholera-laden sewage in 2010, the UN’s failure to own up to its actions has itself been an affront to victims’ dignity. By continuously denying responsibility in the face of overwhelming scientific evidence to the contrary, and by hiding behind immunity to avoid an independent hearing on the merits of victims’ claims, the UN turned its back on Haitians and on its own human rights principles. Against this background, an apology from the Organization’s top leadership is a fundamental component of a just UN response.

As the Secretary-General acknowledged, however, “apologies don’t heal disease” – a play on a Haitian proverb that states that apologies do not heal scars. On December 1, he also launched a $400 million plan that will bring cholera control measures to Haiti and material assistance to victims. The material assistance is intended as a “concrete and sincere expression of the Organization’s regret,” and could take the form of community projects, death benefits to surviving families, or some combination thereof. [U.N. Doc. A/71/620]. Importantly, the plan promises to “place victims at the centre and be responsive to their needs and concerns” by engaging a nationwide consultation process on remedies.

These actions will be crucial steps to fulfilling the UN’s legal and moral obligations to the victims. Under Section 29 of the Convention on Privileges and Immunities of the United Nations and the Status of Forces Agreement signed with Haiti, the UN has a well-established obligation to address claims for compensation submitted by third parties “for personal injury, illness or death arising from or directly attributed to MINUSTAH.” An appropriate remedy, even if fashioned outside of this legal framework, is critical to staving off criticisms that the UN’s obligations have no meaning.

Yet the refusal to accept legal responsibility for the outbreak, and the decision to treat the new response as an expression of “solidarity” rather than as remedies for a legal wrong, complicates the UN’s ability to actualize the new plan. Whereas the General Assembly has an obligation to meet the Organization’s legal liabilities through assessed contributions [Memorandum to Controller, 2001 U.N. Jurid. Y.B. 381], the UN is currently relying on voluntary contributions from Member States, agencies, and even private individuals. Thus far, this has not generated adequate pledges to turn the plan into a reality.

On December 16, the General Assembly unanimously adopted a resolution calling on all Member States and other actors to provide their full support for the new approach.  This is an important signal that the Organization’s membership must step up and do its part. But to actually right the UN’s wrongs in Haiti, and avoid criticisms that the Organization operates above the law, governments must now follow through on this acknowledgement with actual funding

The UN must also ensure that it does not foreclose the option of providing cash payments to victims out of a misguided aversion to anything that could resemble compensation grounded in legal liability. In his report to the General Assembly, the Secretary-General outlined a series of challenges with direct payments, including identification of victims and meeting burdens of proof in a country with limited documentation. These challenges have been overcome in other similar contexts around the world, and merit full study and victim input to inform the way forward.

As the report notes, the new response “will inevitably be an imperfect exercise.” Full funding, and involvement of victims throughout the elaboration of the plan, will be critical to ensuring that the plan still translates into justice for cholera victims and lives up to its promise of healing the UN’s credibility in Haiti and the world.

Addendum to Goodman: Saudis Haven’t Promised to Stop Using Cluster Munitions

by Kevin Jon Heller

The inestimable Ryan Goodman has a new post at Just Security listing all the times the Saudis denied using cluster munitions in Yemen. As Ryan points out, we now know that those denials were what I like to call “shameless lies” (emphasis in original):

On Monday, British Defense Secretary Michael Fallon told the House of Commons that following the UK’s own analysis, the Saudi-led coalition has now admitted to using UK manufactured cluster munitions in Yemen. Mr. Fallon heralded the “transparent admission” by the coalition, and added, “we therefore welcome their announcement today that they will no longer use cluster munitions.” Many news outlets ran a headline focused on the Saudi-led coalition’s statement that it would stop using cluster munitions in Yemen (including Al Jazeera, Fox, ReutersUPI).

Lost in the news coverage is the Saudi-led coalition’s  consistent pattern of denial of using cluster munitions.

So, let’s take a walk down memory lane. At the end, I will discuss the significance of this pattern of denial for future policy options on the part of the United States and the United Kingdom.

At the heart of Monday’s revelations were allegations of the use of cluster munitions by Amnesty International, and here’s a key point: Riyadh previously assured the UK government that it had not used cluster munitions in response to Amnesty’s allegations.

Ryan’s post is very important, particularly its discussion of how Saudi Arabia’s admission could affect the US and UK. I simply want to point out something that also seems to have been lost in all the media coverage: Saudi Arabia did not promise to stop using cluster munitions in Yemen.

No, it promised to stop using British-made cluster munitions in Yemen. From Al Jazeera:

“The government of Saudi Arabia confirms that it has decided to stop the use of cluster munitions of the type BL-755 and informed the United Kingdom government of that,” said the Saudi statement, carried by state news agency SPA.

If Saudi Arabia only had BL-755 cluster munitions, its announcement today might be meaningful. But we know from investigations conducted by Human Rights Watch that Saudi Arabia has also used US-made cluster munitions in Yemen, particularly the CBU-105 Sensor Fuzed Weapon:

yemenclusters0516_map-01

Nothing in the Saudi statement rules out continuing to use American-made cluster munitions in Yemen. Only British ones are off the table. And if you believe that I am parsing the statement too carefully — well, I’d suggest reading Ryan’s post. Saudi Arabia cannot be trusted to tell the truth about the brutal UK- and US-backed counterinsurgency it is waging in Yemen. Full stop.

To Be Responsible for Ourselves: Dominic Ongwen and Defences Before the International Criminal Court

by Clare Frances Moran

[Clare Frances Moran is a Lecturer in Law at Edinburgh Napier University.]

The trial of Dominic Ongwen, in which he is pleading not guilty to the charges of war crimes and crimes against humanity, raises the question of how he may defend what he has done as commander in the Lord’s Resistance Army. The discussion of the use of duress for child soldiers has been undertaken elsewhere, but a more general examination of the defences is useful at this juncture. The prosecution of a former child soldier confronts a classic dilemma for the Court, the Prosecutor and, indeed, all with a vested interest in international criminal justice: When boy soldiers become adults and then, commanders, how do we deal with the aftermath of the crimes they commit? Should they be tried for all the crimes committed from childhood onwards, those committed in adulthood, or those that were committed while they were in command? Arguably this is where the issue of defences under the Rome Statute ought to play a role; could the defences be used to exonerate the individual or to mitigate their conduct?

The defences under the Rome Statute most likely to be utilised by individuals in the position of Ongwen would be mental disease or defect, destroying their capacity to perceive the wrongfulness of their actions, or duress which compelled them to act. Under article 31(1)(a), the first defence is open to those who can demonstrate that they suffer from a mental disease or defect that destroys their ‘capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.’ One of the two tests should be satisfied: either the accused did not know what he or she was doing as a consequence of mental disease or a defect in perception, or they lacked the control to conform to the criminal law that can be expected of the average person, again as a consequence of the defect or disease. The wording of the defence presents a complex set of question which would require expert opinion: what kind of illnesses would permit the use of the defence? Regarding the idea of a ‘defect,’ would this need to be medically or psychologically evidenced? From a legal perspective, it may be possible to argue that the brutality to which Ongwen was subjected altered his frame of mind so substantially that it ought to constitute a mental defect. As a consequence, it may be impossible to expect him to conform to the normative strictures which apply to most individuals, based on the impact on him of the treatment he encountered from such a young age. The experiences of child soldiers are well-documented, and their suffering is acute; this is beyond doubt. Fatou Bensouda’s opening statement at Ongwen’s trial demonstrates amply their vulnerability: she gives the example of child soldiers too small to properly carry the weapons which drag along the ground after them. In our search for international criminal justice, it is difficult to acknowledge that the worst crimes may be carried out by those who were originally victims themselves, leading to significant moral problems in pursuing their prosecution. Returning to the Rome Statute, Ongwen may qualify for the defence of mental defect, rather than mental disease, given that there is, at least, an arguable case that he cannot possibly be expected to control his behaviour following a lifetime of appalling treatment which may have resulted in psychological damage constituting a mental defect.

The defences of intoxication and mistake are likely to be outwith the scope of his pleading: the drafting of the Statute views intoxication as a short-term phenomenon, while his crimes were committed over a period of years. It is without doubt that the charges have been confirmed in a way which puts beyond doubt the mistaken commission of any of them, thus mistake would be unavailable.

This leaves duress as a defence, which highlights a key problem of the defence itself in what may transpire to be its first use before the ICC. The drafting of duress in the Statute indicates that it is available because he may meet the first test. Many child soldiers are threatened with death and brutalised, to anaesthetise them to the violence they are expected to display at a later point. This sort of treatment would undoubtedly constitute the serious threat anticipated by the defence in article 31(1)(d). However, the qualifications of a necessary and reasonable reaction, as well as the proportionality requirement of not causing ‘a greater harm than the one sought to be avoided’ would make it difficult for Ongwen and, indeed, anyone to plead the defence successfully. Duress appears stronger in the Statute than it actually is; it would be nearly impossible for it to be pleaded successfully in any circumstance. Duress in the Rome Statute is something of a façade. It constitutes a nod to Cassese’s dissent in Erdemovic, heeding the warning to avoid setting intractable standards of behaviour. However, it has been so tightly drafted that it is virtually inconceivable that it could ever apply to any cases involving serious physical harm of another person. It is questionable that Erdemovic himself would even have been able to use the defence, would he appear tomorrow before the ICC.

The issue of defences appears natural to a domestic criminal lawyer, but the issue is amplified at the international level because of the crimes that concern the ICC. The desire to include defences in the Rome Statute is a laudable aim, and one which honours Cassese’s legacy. However, the way in which the defences does not suggest that each has been considered as they might have. The distinction between mental defect and disease in article 31(1)(a) demonstrates thoughtful consideration of the problems regarding evidence of psychological, as well as psychiatric, problems. However, the defence of duress does not demonstrate consideration of how difficult it would be to meet the tests specified. The variable geometry of deliberation prior to the drafting of the defences is evident.

Defences in international criminal law are possible, but ought to be fairly and thoughtfully considered, paying heed to a key message in Cassese’s dissent: that there are broad and creative ways in which individuals may mistreat one another, and that international criminal justice must be prepared for these eventualities. The issue of defences connects to a key aspect of international criminal justice which must be considered when the defences are reformed: when is it just not to find war criminals guilty?

Events and Announcements: December 18, 2016

by Jessica Dorsey

Here’s an extra-long edition of our Events and Announcements for the holidays. Thanks to all our readership for following us on OJ!

Calls for Papers

  • The blog IntLawGrrls: voices on international law, policy, practice, will celebrate its first decade with “IntLawGrrls! 10th Birthday Conference” on Friday, March 3, 2017. The daylong event will be held at the Dean Rusk International Law Center of the University of Georgia School of Law, which is hosting as part of its Georgia Women in Law Lead initiative. Organizers Diane Marie Amann, Beth Van Schaack, Jaya Ramji-Nogales, and Kathleen A. Doty welcome paper proposals from academics, students, policymakers, and advocates, in English, French, or Spanish, on all topics in international, comparative, foreign, and transnational law and policy. In addition to paper workshops, there will be at least one plenary panel, on “strategies to promote women’s participation in shaping international law and policy amid the global emergence of antiglobalism.” The deadline for submissions will be January 1, 2017, though papers will be accepted on a rolling basis. Thanks to the generosity of the Planethood Foundation, a fund will help defray travel expenses for a number of students or very-early-career persons whose papers are accepted. For more information, see the call for papers/conference webpage and organizers’ posts, or e-mail doty [at] uga [dot] edu.
  • Young scholars and PhD candidates interested in empirical methods in international law are invited to submit expressions of interest for this workshop on the use of “authorities” in international dispute settlement. The workshop will not involve the publication of papers, although works-in-progress will be discussed by the participants. By bringing together young and established scholars using empirical methods, this workshop aspires to provide inspiration and practical guidance. The workshop, funded by the British Academy, is organised by Dr Michael Waibel and will take place on 20 March 2017, at the Lauterpacht Centre for International Law at the University of Cambridge. Expressions of interest shall be sent to Damien Charlotin (dc655 [at] cam [dot] ac [dot] uk) by 10 January 2017 with a description of your research interests and how they relate to the theme of the workshop, plus a CV with a list of publications. The organizer will let applicants know by 20 January 2017 about the outcome of their application.
  • The Minerva Center for the Study of the Rule of Law under Extreme Conditions at the University of Haifa (Faculty of Law and the Department of Geography and Environmental Studies), invites proposals for research activities, aimed at analyzing the various aspects of pre, during and post-emergency resilience. For more details, see the website here.
  • The Board of Editors of Trade, Law and Development [TL&D] is pleased to invite original, unpublished manuscripts for publication in the Summer ‘17 Special Issue of the Journal on Recent Regionalism (Vol. 9, No. 1). The manuscripts may be in the form of Articles, Notes, Comments, and Book Reviews. TL&D aims to generate and sustain a democratic debate on emerging issues in international economic law, with a special focus on the developing world. Towards these ends, we have published works by noted scholars such as Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Gabrielle Marceau, Simon Lester, Prof. Bryan Mercurio, Prof. E.U. Petersmann and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law and the 10th best trade journal worldwide by Washington and Lee University, School of Law for five consecutive years (2011-15) [The Washington & Lee Rankings are considered to be the most comprehensive in this regard]. For more information, please go through the submission guidelines available here or write to us at editors@tradelawdevelopment.com.
  • We invite submissions to a one-day conference on ‘Non-universal franchise? Eligibility and access to voting rights in transnational contexts’ to be held at the European University Institute (Florence) on 3rd April 2017. Convenors: Rainer Bauböck (EUI), Derek Hutcheson (University of Malmö) and Ruvi Ziegler (University of Reading). Papers should connect to the central topic of the conference, with a focus on eligibility to electoral rights, access to the ballot, or both. We invite comparative and theoretical papers from political science, normative political theory, and comparative legal perspectives. Deadline for submission of abstracts Tuesday, 31 January 2017 (by email to derek [dot] hutcheson [at] mah [dot] se). For further details, please see the call for papers.
  • Senior and junior academics and practitioners (including PhD candidates and post-doctoral researchers) are invited to participate in the call for papers of the Colloquium on International Investment Law & the Law of Armed Conflict’. Authors are invited to submit by March 15, 2017,an abstract (of an original paper) which is neither published nor accepted for publication when the Colloquium takes place. Papers will be selected on the basis of submitted abstracts, subject to double-blind peer review. Only one abstract per author will be considered. Abstracts must not exceed 800 words, must be anonymous and not identify the name or affiliation of the author(s) in the abstract, the title, or the name of the document, and must be submitted to the following email addresses: agourg [at] law [dot] uoa [dot] grcathy_titi [at] hotmail [dot] com; and katiafachgomez [at] gmail [dot] com. In addition to the abstract, each submission should contain, as a separate file, a short (one page) author’s CV, including the author’s name and affiliation and contact details and a list of relevant publications. Authors of selected abstracts for the Colloquium will be notified by April 15, 2017. Following this, they must submit a draft paper (6,000-8,000 words) by August 15, 2017. The draft papers will be distributed to the other participants in advance to facilitate an in-depth discussion during the Colloquium  a ‘no paper – no podium’ policy applies. After the Colloquium, submission of final papers by authors is due by November 30, 2017. Selected final papers will be published by Springer, subject to peer review, in the Special Issue of the European Yearbook of International Economic Law (EYIEL) on ‘International Investment Law & the Law of Armed Conflict’.

  • The international criminal justice stream at the SLSA Annual Conference contains four panel sessions and invites submissions on all areas of substantive international criminal justice, whether on theory, policy or practice. Empirical work would be particularly welcomed and papers based on “works in progress” will be considered so long as the work is sufficiently developed. Both individual papers and panel submissions (of three related papers) can be submitted for consideration. Postgraduate students are also encouraged to submit abstracts. Selected papers from the conference will be published in a forthcoming edition of The Hague Justice Journal. For an informal discussion please email the convenor, Anna Marie Brennan at Anna [dot] Marie [dot] Brennan [at] liverpool [dot] ac [dot] uk. Abstracts must be no longer than 300 words and must include your title, name and institutional affiliation and your email address for correspondence.
  • Polish Yearbook of International Law (PYIL) is currently seeking articles for its next volume (XXXVI), which will be published in June 2017. Authors are invited to submit complete unpublished papers in areas connected with public and private international law, including European law. Although it is not a formal condition for acceptance, we are specifically interested in articles that address issues in international and European law relating to Central and Eastern Europe. Authors from the region are also strongly encouraged to submit their works.Submissions should not exceed 12,000 words (including footnotes) but in exceptional cases we may also accept longer works. We assess manuscripts on a rolling basis and will consider requests for expedited review in case of a pending acceptance for publication from another journal. All details about submission procedure and required formatting are available at the PYIL’s webpage. Please send manuscripts to pyil(at)inp.pan.pl. The deadline for submissions is 31 January 2017.
  • Transnational organized crime is a major threat to international security. This has been recognized by the United Nations Report of the High-level Panel on Threats, Challenges and Change. One country’s success in limiting illicit production and flows often results in the displacement of the problem to another state, thereby signalling the need for a coordinated response. The past few decades have seen a growing number of multilateral conventions addressing questions of transnational crime. In response, the emerging field of transnational criminal law is developing with the growing recognition of the need for further research and informed dialogue about important legal questions arising in this context. On May 4-5, 2017, the Transnational Law and Justice Network at the University of Windsor, Faculty of Law, invites academics, policy makers, NGOs, and individuals working on the ground to participate in a multidisciplinary regional dialogue about the most pressing transnational criminal law issues facing the Americas today. Topics may include: the suppression treaty regime generally; legal responses to specific transnational crimes such as drug trafficking, human trafficking, migrant smuggling, money laundering, corruption, firearms trafficking, environmental crimes, and other transnational organized crime; institutions and accountability for transnational crime; and mutual legal assistance, cooperation and capacity building. More information can be found here.
  • The 13th Annual Conference of the European Society of International Law will take place in Naples, Italy, on 7-9 September 2017. The conference will be hosted by the University of Naples Federico II, the oldest public university in the world. The theme of the conference is ”Global Public Goods, Global Commons and Fundamental Values: The Responses of International Law”. The Call for Papers is now open. Deadline for submission of abstracts: 31 January 2017Further information is available on ESIL website.

Announcements

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.

Brexit Symposium: UK Trade Negotiations Outside the EU

by Roger Alford

As discussed in my previous post, last month I was privileged to organize a conference at Notre Dame’s London Global Gateway on the topic of UK trade and Brexit. I discussed the first session in my previous post, which addressed UK trade negotiations with the EU.

In our second session, we discussed the topic of UK trade negotiations outside the EU. The second session featured Jennifer Hillman from Georgetown, Rob Howse from NYU, Simon Lester from CATO, and myself. Jennifer Hillman (beginning at 01:23) focused on possible arguments that, following Brexit, the UK will still remain a member of the existing EU FTAs. Rob Howse (beginning at 25:40) focused on the timing of possible negotiations with non-EU trading partners in the context of the prevailing anti-trade and anti-globalization climate around the world. Simon Lester (beginning at 41:50) focused on the timing and terms of possible negotiations with non-EU trading partners, suggesting that the UK should focus on quickly negotiating simple FTA agreements with key trading partners, and defer to future negotiations deep FTAs. I focused (beginning at 1:00:00) on the EU as the most important FTA partner in the world, and discussed how, after the UK leaves the EU, it will take decades for the UK to simply return to its current status as a major FTA partner. I also discuss the possibility that following Brexit, foreign investors may sue the UK for violating bilateral investment treaties by fundamentally altering its regulatory framework.

The President’s Report on the Legal and Policy Frameworks

by Deborah Pearlstein

While hardly light reading, the Obama Administration’s new (released last week) Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (the “Frameworks Report”) is, as several of our blogospheric colleagues have already noted (e.g., here) an invaluable document. The Frameworks Report breaks little or no new legal ground in illuminating the United States’ current understandings of the intersecting bodies of international humanitarian law, international human rights law, and domestic U.S. law governing U.S. military operations. But it does serve (at a minimum) three important functions as we head into new presidential administration I would be remiss in not highlighting. (more…)

UN Apologies for Cholera Outbreak: “Moral Responsibility” and Legal Escapism”

by Pierre Bodeau-Livinec

[Pierre Bodeau-Livinec is Professor of Public Law at University Paris-Nanterre and the Managing Editor of The Law and Practice of International Courts and Tribunals.]

As Kristen Boon very aptly points out, apologies given on December 1 by Secretary-General Ban Ki-moon for the role of the United Nations with regard to the cholera outbreak in Haiti can only be welcomed as a highly significant “change of direction” in the conduct adopted by the UN since 2010. At the same time, the Secretary-General’s statement and the report introducing “A new approach to cholera in Haiti” raise a number of questions – and doubts – from the standpoint of international law, especially as far as issues of responsibility are concerned. This post purports to offer modestly some preliminary elements of reflection and background on some of these issues.

The first one relates to the (non-)admission of any legal wrongdoing or, to put in the terms of the 2011 ILC’s Articles on the Responsibility of International Organizations, of any “internationally wrongful act” actually committed by the UN in relation to the cholera outbreak. Obviously, the language used by the Secretary-General to offer the apologies of the Organization has been carefully crafted to avoid giving any sense of a legal acknowledgement in that respect: albeit speaking “very clearly” and in three successive languages (Creole, French, and English), Ban Ki-moon rather obscurely offers apologies, “on behalf of the Organization”, “for our role.”

The report fails to provide further clarification in that respect. While one will easily accept that the package of material assistance genuinely “represents a concrete and sincere expression of the Organization’s regret for the fact that the people of Haiti suffered yet another blow” (Report, para. 6), the primary concerns of the UN largely seem to ignore legal considerations. Justified by a sense of “moral responsibility to the victims of the cholera epidemic”, the new approach intends to provide material support to the Haitian people and “to protect the integrity of its peace operations in the future” (Report, para. 4). By contrast, the report fails to provide, even summarily, any legal assessment of the involvement of the Organization in the cholera outbreak. As to the crucial question of the source of the epidemic, it merely quotes the conclusion made by the independent panel of scientific experts that “personnel associated with the Mirebalais MINUSTAH facility were the most likely source” of the outbreak (Report, para. 22). The Organization makes no further comment and forgets that the experts, in the same article, expressly stated that “The response of the UN to date has been not to focus on the legal issues of the introduction of cholera”. In a rather paradoxical twist, it could even be argued that the “New Approach” report marks a legal step backwards if compared with the famous letter sent by the former UN Legal Counsel on 21 February 2013: as is well-known by those who have followed the cholera affair, the letter refers to undetailed “political and policy” considerations in order to deny the claims made by lawyers of Haitian victims of cholera as not receivable under Section 29 of the 1946 Convention on the Privileges and Immunities of the UN; it did not induce that the claims were legally unfounded.

One may however argue that responsibility does not need to be expressly acknowledged to exist as a matter of international law. Providing reparation may also serve as substantiating a form of responsibility which would not say its name: as explained by the ILC in providing examples of satisfaction as a mode of reparation, “Although [those] examples […] do not expressly refer to the existence of a breach of an obligation under international law, they at least imply that an apology or an expression of regret by an international organization would be one of the appropriate legal consequences for such a breach” (Commentary to Art. 37 of the ARIO, para. 1, available here). The commentary then refers to expressions of regret offered by the Secretary-General with regard to the fall of Srebrenica and the 1994 genocide in Rwanda. Arguably, the apologies given by the Secretary-General on 1 December could fall in a similar category and be considered as an implicit form of reparation for the harm suffered by the Haitian community. It remains however that the United Nations has not endorsed such a view: in its own comments on the Draft Articles on the Responsibility of International Organizations, the United Nations came back to the Srebrenica and Rwanda precedents mentioned by the ILC in the context of satisfaction but refrained from “attempting to qualify the nature of those expressions of regret in relation to events still loaded with heavy moral and political implications”.

The “New approach” of the United Nations to the cholera outbreak in Haiti obviously calls for a more detailed legal analysis. It leaves completely aside, for example, important issues as to the respective obligations of the Organization and its Member States in “ensuring the fulfilment of the obligation to make reparation” (Article 40 ARIO). As it stands, it regrettably tends to show that the Organization consistently avoids facing the legal consequences of its conduct in Haiti, as if “responsibility” in the legal sense would still be too bad a word in the UN corridors.

 

Gandhi Wants You to Support Militarism!

by Kevin Jon Heller

Oh for the love of God:

czzkxc8w8aauphu

Yes, I’m sure Gandhi would have wanted kids to enlist in a youth organization sponsored by the military of the country that colonized India, murdered tens of thousands of Indians, and adopted policies that starved millions of Indians to death.

Marrakech Express–Going Slow But Still on Track

by Daniel Bodansky

[Daniel Bodansky is Foundation Professor of Law at the Center for Law and Global Affairs’ Faculty Co-Director at the Sandra Day O’Connor College of Law; an Affiliate Faculty Member, Center for Law, Science & Innovation; an Affiliate Faculty Member, Global Institute of Sustainability,School of Sustainability, Arizona State University.]

In general, climate change conferences of the parties (COPs) can be divided into big-COPs and mini-COPs. Of course, all COPs nowadays are big in terms of the number of participants and the general air of frenzy. But some have major issues to be resolved and others are comparatively inconsequential. After a string of big-COPs, dating back to the 2009 Copenhagen conference and culminating in last year’s Paris conference, last month’s Marrakesh conference was definitely a mini-COP. Very little had be – or was – decided. The main outcome was the adoption of a work plan to elaborate the Paris Agreement’s rulebook, consisting of technical workshops, facilitated roundtables and other meetings, scheduled to wrap up in 2018.

Until the US presidential election, Marrakech had been expected to be a celebration of the Paris Agreement’s exceptionally rapid entry into force, which made the Marrakesh conference not only the 22nd meeting of the parties to the UN Framework Convention on Climate Change (COP-22), but also the 1st meeting of the parties to the Paris Agreement (CMA-1). The prospect of a Trump presidency cast a pall over the proceedings, but did not significantly affect the actual negotiations, which, for better or worse, have an internal dynamic largely impervious to external events.

Was the conference a success? As usual, the glass was both half full and half empty.

On the positive side, the conference did what it had to do, namely, to begin the process of elaborating the Paris Agreement’s rules. In contrast to the Kyoto Protocol, whose rules significantly shaped party’s obligations and implementation options and had to be finalized before countries could ratify, the Paris Agreement will be able to operate even if no additional rules are ever agreed. Nevertheless, the development of more detailed rules on transparency, accounting, and periodic global stocktakes of progress will play a crucial role in making the agreement effective. And rules are needed to operationalize the agreement’s new market mechanism to reduce emissions and promote sustainable development as well as its new implementation and compliance mechanism. In Marrakech, there was only limited substantive discussion of possible rules. Instead, the focus was procedural, resulting in the adoption of a work plan and timetable to reach final decisions in 2018.

Another positive feature of the Marrakech meeting was the reaction by states and business to the prospect that the incoming Trump Administration might walk away from the Paris Agreement. Although some feared that this might lead others to withdraw as well, leading to an unraveling of the UN climate regime, there was a general reaffirmation of the Paris Agreement by parties, cities, regional governments, business, and NGOs. In a Marrakech Action Proclamation, states declared that the “extraordinary momentum on climate change worldwide … is irreversible.” Of course, these are only words and if the Trump Administration does, in the end, withdraw from the Paris Agreement, other states may use this as a reason to do so as well. But the signals from Marrakech suggest that the Paris Agreement will move forward, regardless of what the United States decides to do.

But there were also glass-half-empty elements to the Marrakech conference. After a surge of momentum over the past year, beginning with the adoption of the Paris Agreement and continuing this fall with the Montreal Protocol amendment to phasedown HFCs, the decision by ICAO to create a market mechanism to limit emissions from civil aviation, and the early entry into force of the Paris Agreement, the Marrakech meeting represented a reversion to business as usual – that is, to the slow pace characteristic of the international climate regime.

A key question coming out of Paris was whether the Paris Agreement had finally moved the climate regime into a “normal” phase of routine, technical work, by resolving, at least for the time being, the key political issues that had bedeviled the climate regime since its inception – in particular, how to differentiate the commitments of developed and developing countries? Would the move in the Paris Agreement away from categorical, annex-based differentiation stick, or would parties seek to reintroduce annex-based differentiation in elaborating the Paris Agreement’s rules? To few observers’ surprise, the Marrakech meeting emphatically demonstrated that the Paris Agreement had not put the issue of differentiation to bed, and that it will continue to be a major source of debate in elaborating the Paris Agreement’s rules.

Two issues that preoccupied the discussions in Marrakech were whether the Paris Agreement would continue the Adaptation Fund established by the Kyoto Protocol, and whether and how to address various “orphan” elements of the Paris Agreement that had not been addressed by the work program coming out of Paris – for example, whether to establish common time frames for nationally-determined contributions and beginning a process to develop a 2025 finance goal. Neither of these issues is particularly pressing or momentous compared to the issues negotiated in the Paris Agreement. Nevertheless, the Marrakech negotiations were as contentious as ever, running into the early hours of Saturday morning – confirming the climate regime’s version of Parkinson’s law, namely, that climate negotiations expand to exceed available time.

Despite their kabuki-like character, do the annual climate COPs serve a useful function? Or they should be held less frequently – say, every two years – as some have suggested? Certainly, the actual issues decided in Marrakech do not justify the vast spectacle that COPs have become. Nevertheless, the annual COPs do provide an important focal point for climate action. They bring together a wide array of actors and focus political and public attention on the climate change problem. In Marrakesh, the conference also served as a platform for states, cities, regional governments, businesses, and NGOs to reaffirm their commitment to address climate change, despite the US presidential election. At least in the short term, that may be the most important contribution of the Marrakech conference.
For more on the Marrakech conference, see the summary by the Center for Climate and Energy Solutions, available here.

African Withdrawals Mask the Real Issue at the Assembly of States Parties 15

by Matt Brown

[Matt Brown holds an LL.M in Public International Law from Leiden University and is currently a Defence Intern for Jovica Stanišić before the MICT and worked as an intern for the Coalition for the International Criminal Court during the Assembly of States Parties. The views expressed here do not necessarily reflect those of the CICC, and he held no involvement in the budget negotiating process.]

The backdrop to the 15th Assembly of States Parties (ASP) has been dominated by the announced intent to withdraw from the International Criminal Court (ICC) by South Africa, Burundi and The Gambia. Prior to the ASP, there was almost exclusive attention on the withdrawal issue and whether discussion during the ASP would pave the way towards a reversal of these decisions to leave the Court. The importance of these withdrawals, and the need to evaluate the legitimacy of the arguments put forward by these States, cannot be underestimated, but almost under the radar, an issue of arguably equal importance has failed to garner the same detail of scrutiny and reaction. The financial strangulation of the Court by States Parties is if anything a far greater threat to the Court’s ability to fulfill its mandate than the withdrawals of three states.

To provide some context, the proposed budget put forward by the Court for 2016 was €153,328,200, (p187) which ultimately became an approved budget of €139,960,600* (p14). This demonstrates the gulf in stance, between the organs of the ICC and States, who although vocal in their support for the Court at the ASP podium, become remarkably restrained in contributing financially to the success of the institution. An initiative by eleven States, including Canada, Colombia France, Germany, Italy, Japan, and the United Kingdom to limit the Court’s budget, reflects how the Court’s biggest financial contributors are seeking to restrict the ability of the Court to expand its operations – cynically one might say into more politically sensitive situations, including Afghanistan.

This ‘dragging of the heels’ is likewise seen in comments by the Committee on Budget and Finance on 28 October who ‘noted with concern the large amount of outstanding contributions’ – €17.88 million (12.73 per cent) of the 2016 approved budget. In addition to that, outstanding contributions from previous years stood at €15.95 million, meaning ‘total outstanding contributions, including the regular budget, the Contingency Fund and interest on the host State loan, stood at €34.16 million as of 15 September 2016.’

A similar pattern has emerged this year, the Court for the 2017 budget proposed a figure of €150,238,000, (p7) but ultimately the approved budget came to only €144,587,300 (p1). Although this budget represents a rise of €4,626,700, (3.30 per cent) this overlooks the natural growth of the Court’s operations, and its increased operations as we move into 2017. Compared to 2016, the number of preliminary examinations rises to ten, with Honduras and Georgia being closed or moving to investigation, and new examinations opening in Burundi, the self-referral of the Gabonese Republic, and the reconsideration of The Comoros situation. The self-referral by the Gabon, falling after release of the proposed budget, highlights the strain that unexpected referrals can place upon the Court’s budget.

With respect to situations, in the proposed budget for 2016, the OTP outlined its expectation to be dealing with ‘twenty-two cases in eight situations’. For 2017, there is an increase to ten situations, (p10) which results in the continued increase in courtroom activity from 200 court hearings in 2015, to a projected 500 hearings for 2017 (p48). As the Court grows, the associated cost of its prior and current docket also creates a ‘snowball effect’. Time will be needed in 2017 for the progression of reparation proceedings in Lubanga and Katanga, alongside hearing the appeal in the Bemba trial, meaning that it is not just future investigations to consider in light of tightening resources, but also the progression of its existing caseload.

To provide some context on these figures and to illustrate the concern, the bi-annual budget for the ICTY in 2010-2011 was approximately €214,000,000 and the ICTR operated with a healthy bi-annual budget of €176,074,077 for the same period. Per year, these two institutions focusing on one ‘situation’ each worked with roughly two-thirds the budget of the ICC, an institution that from next year will be preoccupied with ten situations. International justice, however expensive it might be, was clearly not unaffordable to the major powers, who generously increased the ICTY budget from its humble beginnings of approximately €200,000.

A balanced assessment of the issue, of course reveals that for the 1,479,301,700 spent by the ICC since 2002, there have ‘only’ been four convictions (eight if we include the additional Article 70 convictions). Weighing in at €369,825,425 per core crimes conviction, if we were to transpose that figure to the ICTY, then the 83 convictions would have cost the ICTY €30.61 billion, a figure which is approximately €28 billion above the actual cost (p13). A few rebuttals can be advanced however, to illustrate that this ‘price per conviction’ comparison masks some of the institutional differences between the ICC, ad-hoc tribunals and domestic proceedings.

First, tribunals including the ICTY, ICTR, SCSL and ECCC have the upfront and immediate outlay of establishing investigations for their respective situations, once established and having prosecuted those responsible for the alleged crimes, the costs of the institution can plateau and then recede, rather than increase, as seen in both the ICTY and ICTR and now their move to the MICT. In contrast, as the ICC has 124 States Parties, and is involved in ten different situations, the ‘start-up costs’ that these other Courts faced are borne by the ICC each time it begins work in a new situation, including field costs, interpretation and translation costs.

Second, neither the ICTY nor the ICTR provided any opportunity for victims to present their testimony before the Tribunal outside of serving as a witness. The much broader role for victims at the ICC, through the Legal Representative for Victims and the establishment of the Trust Fund for Victims which has itself seen a 15.3 per cent increase this year, illustrates that the ICC (for better or for worse) encompasses more than a narrow conception of the trial of the accused and their subsequent detention / acquittal.

Third, the ICC and the ICTY / ICTR emerged from two very different contexts, the 1990’s Tribunals were born with immediate jurisdiction granted by virtue of the Court’s establishment. The ICC, on the other hand, experiences a far more conservative approach to case selection, the processes of preliminary examination and complementarity means that the Court is not designed to have its success measured purely by the number of cases it completes, but also whether its presence can encourage effective domestic prosecutions, and some may argue serve as a deterrent. A simple data comparison of successful prosecutions to illustrate effectiveness therefore ignores that the ‘objective’ by which effectiveness is measured against, differs between the three organisations.

The budget issue is in essence not new, but it is vital to remind ourselves that the ‘colonial critique’ or so-called ‘African bias’ that received so much attention at the ASP is a multi-faceted issue. For the OTP to be able to expand the number and geographic spread of its investigations, there has to be the adequate funding to support it – thus it raises deep questions about the reluctance of certain States to increase the Court’s budget, at a time when the OTP appears to be preparing the ground for an investigation in Afghanistan. There is an available contingency fund, which allowed the OTP to open their 2016 investigation into Georgia (p10), a cost now incorporated into the 2017 budget; but at €7,000,000 (p169), the contingency fund is not designed to cover the costs of entire unplanned investigations.

In closing, and to use the United Kingdom as but just one example, the opening and closing lines of their general debate address highlights the point that States more than ever are unwilling to back up their rhetoric with adequate financial support.continued support for, and commitment to the International Criminal Court’, only to qualify this by expressing their commitment to ‘working with others to ensure the budget is as streamlined as possible.’

The withdrawals from the ICC were a set back for the Court’s desire to be universal, but for all the hyperbole of dialogue in the fight against impunity that dominated the ASP, the internal contradictions of States Parties own positions lays bare the fact, that whilst others might not be withdrawing, support for the Court is found not just at the ASP podium, but also in its financing. The wriggling away by States Parties from funding the Court raises even more interesting questions as to their justification – especially at a time when the Court appears destined to broaden its horizons.

*For clarity – all budget references include interest and the principal repayment (installments) for the host State loan for the permanent premises. – Other budget references may vary.