In association with the International Commission of Jurists

Featured

14 Oct

[Dr. Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Tom Buitelaar is a Researcher with the Global Governance Program at the Institute. With many thanks to Thomas Koerner, Rod Rastan, Dan Saxon and Eamon Aloyo for their helpful feedback on earlier drafts of this commentary. The views expressed here do not represent the views of the Hague Institute for Global Justice. ] Ukraine is engulfed in a complex and bloody conflict that has cost nearly 8,000 lives and generated over 1.4 million internally displaced persons. The conflict has erupted in different areas of the country and in different forms, from civil unrest and revolution to alleged Russian aggression and illegal annexation of Crimea. The MH17 incident is of particular importance now due to the recent release of the Dutch Safety Board Report on the causes of the crash, which concluded that the plane was hit by a BUK-missile, ruling out other options. Moreover, the UNSC resolution 2166 stipulates that those directly or indirectly responsible for the downing of MH17 must be held accountable and brought to justice. But how can the International Community respond to these challenges and bring those responsible of international crimes and serious human rights violations to justice? In this regard, on September 8, Ukrainian Foreign Minister Klimkin lodged a second ad hoc Declaration (.pdf) under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) for crimes committed on Ukraine’s territory since 20 February 2014. This provision can be used by non-state parties to the Rome Statute – Ukraine signed the Statute, but has not ratified it. This declaration was preceded by the declaration lodged (.pdf) on 17 April 2014, which triggered the Court’s jurisdiction over crimes committed during the events on Maidan square between November 2013 and February 2014, and prompted Prosecutor Ms. Fatou Bensouda to open a preliminary investigation. With the second declaration, the Ukrainian government postpones the ratification of the Rome Statute, choosing to involve the ICC in a more ad-hoc manner. This approach can be explained by looking both at the legal and political obstacles to ratification. The main legal obstacle for ratification arises from certain incompatibilities (.pdf) between the Rome Statute and the Ukrainian Constitution. In July 2001, the Ukrainian Constitutional Court (Case N.1-35/2001 [.pdf]) ruled that “some of the Rome Statute provisions were in conflict with the Constitution of Ukraine”. Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the national courts and that judicial functions cannot be delegated to other bodies or officials. Therefore, Ukraine would have to amend its constitution in order to ratify the Rome Statute – as required by Article 9 of the Ukrainian Constitution (.pdf). While for example some countries like Brazil ratified the Rome Statute first on 2002 and amended their constitution later in 2004 – as provided by Article 5(3) of the Brazilian Constitution (.pdf) – this option is not viable for Ukraine. An interesting question is whether the declarations would also be incompatible with the Ukrainian Constitution. On the one hand, this issue would not affect the legal obligation of a state to a Treaty, pursuant to article 27 of the Vienna Convention on the Law of Treaties (.pdf) (which states that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”), or the ICC’s competence per se. On the other hand, this might have legal or practical unintended consequences in the domestic legal order if the Court’s potential decisions, warrants of arrest or requests for judicial cooperation cannot be given effect, or if their lawfulness is challenged at the domestic level. Besides the legal obstacles there are also several political challenges to ratification. First of all, rule of law reforms—such as those required by ratification of the Statute and the implementation of its cooperation requirements—have shown to be a serious challenge in post-Soviet states. Because of these difficulties, ratification of the Rome Statute was not necessarily seen as a political priority. Secondly, until 2014, there had been no imminent threat of serious civil or international military conflict. Most importantly, armed conflict with potential Russian 'involvement' was unthinkable due to the historical, cultural and economic ties between the two countries. Moreover, Ukraine’s government is being increasingly overwhelmed with numerous urgent challenges, particularly since the conflict erupted. These include securing financial resources to avoid economic collapse and fighting corruption as a prerequisite for obtaining international financial aid. Currently, the main reform priorities have been tax reform, anti-corruption, and decentralization (the latter as part of the Minsk Agreements package). Therefore, amendments to Article 124 of the Constitution are only foreseen for the second phase of reforms planned for next year. In addition to these legal and political challenges
|
08 Oct

[Kai Ambos is Professor for Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg August Universität Göttingen, Judge at the District Court in Göttingen,  Director of the Centro de Estudios de Derecho Penal y Procesal Latinoamericano (CEDPAL) of Göttingen University and has worked in Colombia in various capacities over the last 25 years.]  On 23 September, the Colombian President Juan...

|
06 Oct

[Dr. Başak Çalı is Director for the Center of Global Public Law and Associate Professor of International Law at Koç University, Turkey. She the secretary general of the European Society of International Law. The following is written in her personal capacity. This is a follow-up post to the open letter we published 24 September.] The open letter from international lawyers to the...

|
05 Oct

The U.S. and eleven other Pacific Rim countries announced they have reached agreement on the Trans Pacific Partnership trade agreement, which will more tightly integrate 40% of the world's economy into a single regional bloc. There will be a huge fight in Congress over the TPP by progressive Democrats in the U.S. Even presidential candidate Hillary Clinton has already announced...

|
02 Oct

It's been widely reported over the past few days that Russia has been bombing the Free Syrian Army under the pretext of joining the fight against ISIS. That development spurred an interesting post at Lawfare by Bobby Chesney about whether Art. II of the Constitution -- the Commander-in-Chief Clause -- would permit the US to defend the FSA, which it has been...

|
01 Oct

The UN General Assembly is set to vote once again (for the 24th consecutive year) on a Cuba-sponsored resolution condemning the United States' economic, commercial, and financial embargo against Cuba.  This resolution will probably get near majority support, and perhaps even unanimous support.  Indeed, there are rumors that the U.S. government itself may abstain from voting against the resolution, which is...

|
22 Sep

[Kevin Govern is Associate Professor of Law at Ave Maria School of Law.] The science fiction author William Gibson coined the term cyberspace in his short story, Burning Chrome (1982), before most of the public had a concept of, let alone experience with, using networked computer systems. Science fiction has given way to cyber reality, with 42.3% of the world’s population using the Internet on a regular basis, some 741% growth between 2000-2014 alone. At the same time, cyber weapons and cyber warfare are among the most dangerous innovations in recent years. Cyber weapons can imperil economic, political, and military systems by a single act, or by multifaceted orders of effect, with wide ranging potential consequences. A non-exclusive list of some notable past cyber incidents includes but is not limited to: The US director of national intelligence, James Clapper, recently told the House intelligence committee the next phase of escalating online data theft most likely will involve manipulation of digital information, with a lower likelihood of a “cyber Armageddon” of digitally triggered damage to catastrophically damage physical infrastructure. Contemporaneous with this writing, a Chinese delegation met with representatives from the FBI, the intelligence community and the state, treasury and justice departments for a “frank and open exchange about cyber issues” amounting to “urgent negotiations…on a cybersecurity deal and may announce an agreement when President Chinese President Xi Jinping arrives in Washington on a state visit on Thursday [24 September].” In this era of great cyber peril and opportunity, my colleagues and co-editors Jens Ohlin from Cornell Law School and Claire Finkelstein from the University of Pennsylvania Law School and I had the privilege of contributing to and editing a book that assembles the timely and insightful writings of renowned technical experts, industrial leaders, philosophers, legal scholars, and military officers as presented at a Center for Ethics and the Rule of Law roundtable conference entitled Cyberwar and the Rule of Law. The collected work, Cyber War – Law and Ethics for Virtual Conflicts, explores cyber warfare’s moral and legal issues in three categories. First, it addresses foundational questions regarding cyber attacks. What are they and what does it mean to talk about a cyber war? State sponsored cyber warriors as well as hackers employ ever more sophisticated and persistent means to penetrate government computer systems; in response, governments and industry develop more elaborate and innovative defensive systems. The book presents alternative views concerning whether the laws of war should apply, whether transnational criminal law or some other peacetime framework is more appropriate, or if there is a tipping point that enables the laws of war to be used. Secondly, this work examines the key principles of the law of war, or jus in bello, to determine how they might be applied to cyber-conflicts, in particular those of proportionality and necessity. It also investigates the distinction between civilian and combatant in this context, and studies the level of causation necessary to elicit a response, looking at the notion of a “proximate cause.” Finally, it analyzes the specific operational realities implicated by cyber warfare technology employed and deployed under existing and potential future regulatory regimes. Here is the full Table of Contents:
|
21 Sep

U.S. and Chinese negotiators are apparently very close to working out an agreement to limit the use of cyberweapons against each other.  There is talk that this agreement will be concluded before Chinese President Xi Jinping's state visit to the U.S. next week.  The agreement will be pretty narrow in scope and apparently would not address the acts of cyber-theft and espionage...

|
17 Sep

[David H. Moore is a Professor at the J. Reuben Clark Law School, Brigham Young University.] Professors Ackerman and Golove, on one hand, and Professor Ku, on the other, disagree over whether the Iran Nuclear Agreement Review Act provides statutory authorization for the recent Iran Deal. The resolution of this question bears on whether a future President may unilaterally withdraw from the Deal. Both...

|
16 Sep

I thank Professors Ackerman and Golove for taking the time to respond to my earlier post on whether a future President could unilaterally withdraw from the Iran Nuclear Deal.  But I remain unconvinced by the claims they made in their original Atlantic essay that a future President's unilateral withdrawal from the Iran Deal would be "lawless". Here's why I still think they...

|