Nobody’s Land: Where All step but No One Settles

The ILC adopts draft art. 7 on Immunity of State officials from foreign criminal jurisdiction.

by Giulia Bernabei*

Court HammerThe issue of immunity of State officials from foreign criminal jurisdiction has been under the lens of the International Law Commission for approximately the last decade. During this time, the Secretariat, the former and the incumbent Special Rapporteurs, Mr. Roman A. Kolodkin and Ms. Concepción Escobar Hernández, various Governments, the Drafting Committee and the ILC in plenary, together with the GA Sixth Committee, have been involved, to varying degrees, in studying the issue.

In this post, I will contend that draft art 7, both in the wording of the Special Rapporteur and in the version eventually adopted by the ILC, does not reflect customary international law nor does it enshrine its progressive development.

I will focus on Ms. Escobar Hernandez fifth’s report released on 14 June 2016. The ILC considered the report at its sixty-eighth and sixty-ninth sessions in 2016 and 2017 respectively. On 30 May 2017, draft art. 7 was referred by the ILC to the drafting Committee, which delivered a report, then introduced to the ILC on 20 July 2017. On that occasion, by 21 votes in favour, 8 votes against and 1 abstention, the ILC provisionally adopted draft art. 7. Continue reading

The Unintended Consequences of a Petrol and Diesel Free World

Child LaborBy Lauren Satill

This year, several countries, including the United KingdomFranceIndia, and Norway, all set targets to stop the sale of diesel and petrol cars within the next 8-23 years. These are bold steps towards significantly reducing carbon emissions and improving the prospects of a sustainable global environment. Consequentially, there has been exponential growth in demand for certain metals, namely cobalt, and therefore, growth in the extractive industry. This industry is historically fraught with human rights abuses and the promulgation of this ‘green movement’, towards all electric vehicles, may further aggravate human rights abuses.

Electric car batteries are lithium ion batteries, made from graphite, lithium salts, and a cathode (which consists of 80% Nickel, 15% cobalt, and 10% Aluminium). Whilst it makes up a seemingly insignificant part of these batteries, cobalt sources are depleting and human rights within the extraction business is being overlooked at the hands of the growing demand for electric cars.

In 2016, it was estimated that around 65% of the world’s supply of cobalt is sourced from the Democratic Republic of the Congo (DRC). In January 2016, Amnesty International released a report on the conditions of cobalt mines in the DRC. The report found children as young as 7 working in artisanal mines with little to no protective equipment. On average, children and adults working in these mines earn US$1-3 per day. This information could only be collected from ‘artisanal’ mines as multinationals refused to cooperate with Amnesty International. Nonetheless, their impact must not be understated as they represent up 20% of the world’s cobalt supply. Continue reading

Dealing With Secession: Lessons From Canada To Spain

CataloniaBy Marianne Dagenais-Lesperance*

The right to self-determination is an internationally recognised principle which has caused ferocious debates, especially recently. Contemporary controversies include the recent results of the Iraqi Kurds’ and Catalonians’ referendum, where the vote for independence from their respective State passed with a strong majority.

Spain and Iraq’s dismissal of the referendums as unlawful and threat or use of violence against the populations of Catalonia and Kurdistan have added fuel to the fire. But how shouldstates respond to such results? What are their obligations towards the expression of the will to secede from part of their territory?

The right to self-determination is the legal right of people to decide their own destiny in the international order. Articulated under Article 1 of the United Nations Charter, and later reaffirmed in United Nations resolutions (General Assembly 1755 (XVII)2138 (XXI)2151 (XXI)2379 (XXIII)2383 (XXIII); Security Council 183 (1963)301 (1971)377 (1975); and 384 (1975)) and international treaties (ICCPRICESCR), it does not clearly state who the beneficiaries of the right are and what it entails in practice.

International scholars such as Alina Kaczorowska and Malcolm N. Shaw refer to the Canadian Supreme Court judgment Reference re: Secession of Quebec when discussing the right to unilaterally secede. In the aftermath of the second referendum on Quebec’s independence, the Governor in Council (‘GC’) referred this case to the court. Three questions were submitted concerning the legal situation in the event of a secession attempt by Quebec. The analysis of this judgment from academics is often limited to the conclusion that there is no such right. This conclusion offers only a limited appreciation of the Supreme Court’s judgment as it also gives guidance on the rights and responsibilities held by States and separatist movements in the event of a positive response to a referendum asking for independence. Its legacy goes beyond the limited question of the right to unilaterally secede. Continue reading

International Humanitarian Law and Cyber Warfare: Old Laws Vs. New Phenomena

By Jordan Hawthorne

Cyber WarfareWar. A term which traditionally conjures images of uniformed armies, guns, bombs, and other forms of conventional military warfare. Yet the 21st century has seen the rise of a new form of war, one divorced from these traditional methods and means: ‘cyber warfare’.

‘Cyber warfare’ refers to war that is waged not through military hostilities on the ground, but through virtual means and methods, within the domain of ‘cyberspace.’  Despite its unconventional nature, the international legal community agrees that international humanitarian law (‘IHL’) can apply to cyber warfare, provided that attacks are committed within the context of an armed conflict, (see the Tallinn Manual). However, the question of how to transpose and apply IHL rules to this modern phenomenon remains problematic.

One of the greatest challenges arising in the context of a cyber attack is the application of the principle of distinction. The principle of distinction is a cornerstone of IHL, one which requires that parties to a conflict differentiate between civilians/civilian objects, and combatants/military objectives at all times (the latter being legitimate targets in an armed attack, while the former cannot be attacked under any circumstances). Making such a distinction in cyberspace is however wrought with difficulty, due to characteristics of the forum, such as its interconnectivity. Cyberspace is a complex network of countless, interconnected computer systems, spanning across the globe. Civilian and military computer systems therefore may be, and often are, intertwined (with the latter sometimes even relying on the former). As a result, it is incredibly difficult to identify ‘legitimate’ targets, and to limit the effects of an attack to a pure military objective. Continue reading

Will Seven Million Starving Yemenis Ever Find Justice?

The control of food importation into Yemen is being used as a weapon of war, seemingly by all sides.

By Catriona Murdoch* and Wayne Jordash**

A photograph from September 2016 shows a malnourished boy laying on a bed outside his family's hut in Hodaida, Yemen [Abduljabbar Zeyad/Reuters]

A photograph from September 2016 shows a malnourished boy laying on a bed outside his family’s hut in Hodaida, Yemen [Abduljabbar Zeyad/Reuters]

The last two decades have seen a significant expansion of international, regional and domestic accountability mechanisms for an array of international crimes and a variety of forgotten victims. Much of this activity has been focused on the conduct of senior military and political leaders who control or significantly contribute to excesses on the battlefield. However, as is becoming clear, this focus does not adequately confront the scale or scope of victims living in the path of armed conflict or under the yoke of brutalising regimes.

This year has seen the resurgence of famineSouth Sudan is enduring the first famine to be declared globally for six years. NigeriaSomalia and Yemen are all on the brink of famine. In each, deliberate political and military action has contributed to the resulting death and injury of thousands of innocent civilians, demanding that serious consideration be given to prosecuting those responsible. Yemen is emblematic of the problem and a may provide a backdrop for the development of the potential remedy proffered by a more imaginative approach to the prosecution of those who engineer, or fail to act to prevent, mass starvation.

Yemen has been described as the “war the world forgot” eclipsed by Syria and complicated by a Saudi-led coalition supported by the United States, the United Kingdomand France. The resulting humanitarian disaster features a famine of cataclysmic proportions. The word “famine” evokes images of dusty pot-bellied children and the wrath of nature. However, the reality is that this is less nature’s cruelty and more mans: “starvation” often more accurately reflects these wholly human-made and preventable catastrophes, where failed diplomacy and ostensible military objectives collide. Continue reading

Where Do We Find a Solution to the ‘Abuse’ of Diplomatic Immunity?

By Rishikeesh Wijaya*

Court HammerUproar about purported ‘abuses’ of diplomatic immunity has not been uncommon, most recently involving the wife of the sitting Head of State of Zimbabwe, Dr. Grace Mugabe. Media reports assert that Dr. Mugabe attacked a South African model with a piece of electrical cord in a Johannesburg hotel suite. South Africa retrospectively granted her diplomatic immunity, following an assertion by the Embassy of Zimbabwe, and she eventually left the country to return to Zimbabwe with no charges pressed against her.

This was a “U-turn” from the initial decision preventing her from leaving pending the outcome of investigations. Deputy President of South Africa, Mr. Cyril Ramaphosa in response to questioning by South African Members of Parliament, said that immunity was granted in line with “internationally-recognised immunity regulations” but also admitted that it was “the first time [they] have utilized this type of convention”. It is unclear what convention he was referring to.

A separate incident occurred during Turkish President Erdogan’s trip to the United States America in May 2017. Members of his security detail and security guards from the Turkish embassy clashed with peaceful protestors outside the home of the Turkish ambassador in Washington DC.

Diplomatic immunity was initially claimed by Turkish authorities but it has now been reported that 19 people, including 15 identified as Turkish security officials were indicted by a grand jury in Washington DC. Several of these security officials returned to Turkey and it is unclear if there will be any legal repercussions in the United States. It is also unclear if any of those indicted remain in the US as diplomatic staff for Turkey. Continue reading

The World Most Unwanted People: Crime Against Humanity in Arakan

by Abdurrahman Erol and Selman Aksünger*

While a lot of attention has been devoted to North Korea and referendum in Northern Iraq, comments must be made on one of the most tyrannous mass human rights violations of the last couple years. Recently, news on Myanmar and Rohingyas started to hit the headlines again. Graphic pictures and videos from the decades-long conflict zone Arakan, a.k.a Rakhine state, have started to spread in some news and social media sites. Although the State Peace and Development Council of Myanmar does not recognize the Rohingyas as one of the 135 ethnic minority groups, they are indeed such a minority group, which is estimated to constitute 25% of the population of Arakan. It is believed that around 800.000 Muslim Rohingyas live in Arakan and are mainly concentrated in the northern part of the Arakan state. The Buddhist Rakhine constitutes the majority ethnic group in Arakan.

There are different claims about the origins of the Rohingyas. Former and current governments in Myanmar argue that they are illegal immigrants from adjacent Muslim regions who came after the Anglo-Myanmar War in 1824. However, on the other hand, the Rohingyas and some renowned scholars state that they are descendants of the first Muslim residents of Arakan who came there in or around the 9th century by way of the new emerging trade routes through the Bay of Bengal and the Andaman Sea. This debate forms the basis of today’s problems in Arakan and the mistreatment of Rohingyas, resulting in gross human rights violations by the government and majority groups in Arakan. Continue reading

To Prevent Enforced Disappearances, Rethink the Justice and Security Equation

By David Tolbert*

A 2013 art project for Bassel Khartabil, one of Syria’s leading pro-free speech and democracy activists, who was recently confirmed as having been secretly executed while in detention in a regime prison in 2015. ©Pete Ippel

A 2013 art project for Bassel Khartabil, one of Syria’s leading pro-free speech and democracy activists, who was recently confirmed as having been secretly executed while in detention in a regime prison in 2015. ©Pete Ippel

Nearly every city and village in Syria has a story to tell about enforced disappearances: civilians being snatched off the streets or from their homes by the police, Syrian military or an armed group, never to be heard from again. The victims are usually tortured, killed or enslaved. Their families are left haunted, not knowing if their loved ones are alive or dead.

Today, we are seeing an alarming rise in the incidence of enforced disappearances around the world, particularly in a number of the “Arab Spring” states, such as Syria, Egypt and Yemen, where reaction has triumphed over hope for a rights-based future.

In Syria, we are witnessing a catastrophe the consequences of which will be felt for generations to come. This includes not only millions fleeing their homes, the shredding of the Geneva Conventions and massive criminality by the Assad regime and others, but also the enforced disappearance of over 65,000 people, including entire families and thousands of children.

In Egypt since early 2015, hundreds of Egyptians have vanished at the hands of the state. Secret prisons in southern Yemen, where officials have forcibly disappeared people and ordered continued arbitrary detention, are called “no-return prisons.” And these are just a few of the many places where enforced disappearances are occurring with terrible human consequences.

Enforced disappearance was a phenomenon many thought was a product of the brutal internal conflicts of the 1980s and early 1990s. Tremendous efforts were taken by countries and the international community to address the crime, on a number of fronts. Continue reading

Time-Limitation Clause Against Private Litigants of the East African Court of Justice: A Call For A Purposive Interpretation of Article 30(2) of the East African Community Treaty

by Dr. Ally Possi*

Introduction

East African Court of JusticeThis post exposes a major obstacle facing one of the African regional economic community judiciaries: the East African Court of Justice (EACJ, or the Court). The EACJ is the judicial organ embedded to settle disputes in connection with the East African Community (EAC) integration activities. Comparatively, the EACJ is a replica of other regional economic community courts, currently in existence, such as the Court of Justice of the European Union.

Private litigants play a key role in modelling states’ behaviour to realise their integration ambitions. One of the operational principles of the EAC is the ‘people-centered’ co-operation form of integration (art 7(1)(a) of the EAC Treaty). Therefore, it was not an oversight to permit individuals to account Member States before the EACJ, whenever there is an infringement of the EAC Treaty. However, article 30(2) of the Treaty restricts private litigants to lodge their complaints: within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be.

Following a significant level of silence on the stringent rule, this post is vitally important considering the nature of the subject it tackles. Judges have been narrowly and strictly interpreting article 30(2) of the EAC Treaty, preventing private litigants to lodge their complaints to the EACJ with ease. Eventually, individuals are being denied access to justice. This post, therefore, argues that EACJ judges need to broadly and purposely interpret article 30(2) of the EAC Treaty. The grounds used to deny to extend the two months’ time window are contrary to the spirit of the EAC Treaty. Thus, this post provides some legal evidence for EACJ judges to stretch the rigorous time limitation clause. Continue reading

The International Criminal Court at 15: Battling the Acceptance Challenges

By Francis Dusabe*

International Criminal Court New PremisesIn its 15 years of existence, the International Criminal Court is undergoing an acceptance crisis especially on the African Continent. Political narratives have significantly shaken the Court’s legitimacy and has led to the questioning of its relevance in today’s world.

This paper examines Acceptance challenges faced by the court as of 2017 and explores prospects for change to enhance its social impact.

Introduction

On 17th July 2017, the international Criminal Court will clock 15 years of existence with only 26 cases across 10 situations. To reach where it is, it underwent a series of political condemnations, many of which were based on its operational and political flaws that pushed various State parties to consider quitting.

Whereas its existence symbolizes the global consensus that crimes of concerns to humanity as whole should not go unpunished, the court suffers from strategic flaws which, once unaddressed, will eventually become a turndown to the morale behind the whole project of International Criminal Justice.

This paper looks into the challenges faced by the court as of 2017 and explores prospects for change to ensure that the ICC, once a beacon of hope for Victims of international crimes, remain in existence with tangible social impact. More specifically, it explores the drives behind state acceptance of international criminal justice and the impact of Narratives on the Court’s perception. This paper ends with proposals on how to improve its image as a Court not only for Rome statute State Parties, but as an important arm for maintenance of world peace and security.

State Acceptance of international justice

State’s acceptance of International justice may be looked at on various aspects and may be investigated through various dimensions and factors namely the people concerned, how justice is defined in local context and the Victims’ expectation of what International Criminal Justice can bring. Continue reading