Category: Public International Law

Weapon System with Autonomous Functions and the Martens Clause: Are the use of these weapons in line with the principles of humanity and the dictates of public conscience?

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By Clea Strydom

[Clea Strydom completed her B.A. Law and LL.B at Stellenbosch University, South Africa, before writing her LL.M dissertation on the International Humanitarian Law implications of weapon systems with autonomous functions through the University of Johannesburg, South Africa.]

Introduction

States are increasingly implementing artificial intelligence (AI) to pursue autonomy in weapon systems for armed conflict for various reasons, including, faster reaction time, faster data collection and processing, and being able to use robots instead of risking human combatants’ lives. There are, however, concerns that weapon systems with autonomous functions cannot be used in compliance with International Humanitarian Law (IHL), that it is unethical for machines to lethally target humans, and that their use could lead to an accountability gap.  Therefore, there has been an ongoing debate about whether to ban the development of these weapon systems. The mere fact that these systems have autonomy is not the issue the ongoing legal debate is focused on; rather it is the delegation of critical functions i.e., acquiring, tracking, selecting, and attacking targets, to weapon systems, that is of concern. The ICRC has correctly identified that “ethics, humanity and the dictates of the public conscience are at the heart of the debate about the acceptability of autonomous weapon systems.” 

Weapon Systems with Autonomous Functions

Autonomy in weapon systems should not be seen as a mere development of conventional weapons, instead, it is a paradigm shift in weapons technology that could change warfare drastically. Autonomy in weapon systems does not denote a specific new weapon but rather a shift in the level of human control over critical functions to weapon systems. This concerns a change in how warfare is conducted. While the most widely used terms are Lethal Autonomous Weapon Systems (LAWS) or Autonomous Weapon Systems (AWS), ascribing autonomy to the whole system is problematic.  It should be kept in mind that autonomy is not a type of technology, but rather a characteristic of technology, related to certain functions, instead of being attached to the object itself. Due to the problems with ascribing autonomy to the system, Andrew Williams suggests referring to “autonomous functioning in a system” in general, or “systems with autonomous functions” when referring to a specific platform or system. Therefore, the author has adopted the term weapon systems with autonomous functions (WSAF), as it indicates that the whole machine is not autonomous, but instead that it can perform certain functions with varying degrees of human interference, which will depend on various factors such as the system’s design or intelligence, the external environmental conditions in which the systems will be required to operate, the nature and complexity of the mission, as well as policy and legal regulations. It must be kept in mind that while autonomy in weapon systems is being pursued by several States, weapon systems that can perform critical functions autonomously are still a thing of the future. Therefore, the debate, including the advantages and disadvantages of autonomy in weapon systems, is at this stage still speculative.

The Martens Clause

The Martens Clause made its first appearance in the 1899 Hague Convention II and has since been included in Additional Protocol to the Geneva Conventions, Article 1(2): 

“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”.

The International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion confirmed the principle contained in the Marten Clause as customary IHL and held that it “proved to be an effective means of addressing rapid evolution of military technology”. Concerning WSAF, the crux is whether the delegation of life and death decisions to a robot would be in line with the dictates of public conscience and principles of humanity.

Professor Michel Veuthy highlighted the importance of public conscience in IHL and identified that it can trigger the codification of IHL principles, be an impetus for the implementation and enforcement of IHL, and provide a safeguard for all situations not provided for or considered in the law. On the other side of the argument, Michael Schmitt argues that the Martens Clause only applies in the absence of applicable law in the Geneva Convention and Additional Protocols or international agreements such as treaties; and that since 1899, when the Martens Clause first appeared, the law relating to weapons has developed to such an extent that it covers all existing and future weapons. As a result, the role of the Martens Clause has been diminished. He argues that it is unlikely that any weapons would be found to be in contravention of the Martens Clause if it has been found to comply with IHL and applicable treaties. However, Robin Geiss points out that the IHL principles applicable to weapons are framed in a human-centric manner and might not sufficiently be able to deal with autonomy in weapon systems; therefore the Martens Clause could be used to create new laws or act as a safety net, as Veuthy suggests.

Even if it is accepted that a weapon could be banned based on the Martens Clause, several questions with no clear answers arise: first, how does one determine what the public conscience is, and secondly, which public? It is unlikely that the global public will share a common ‘conscience’. The public conscience and principles of humanity are not timeless or universal.  Several individuals have conducted surveys to try and determine public opinion on the weapon systems in question. Political scientist and current Inspector General of the United States Department of Justice, Michael Horowitz found that public opinions depend on context. In the first round of questions, Horowitz’s survey found that 48% of participants were opposed to “autonomous weapons”. However, once he put the use of the weapons in context and highlighted their benefits, opposition to them dropped to 27%. In American roboticist and robo-ethicist, Ronald Arkin’s survey participants acknowledged that “autonomous weapon systems” do have a role to play, but the majority felt that they should not be allowed to use force. IPSOS, a global market research, and public opinion specialist company has done various surveys on the views of “killer robots” for Human Rights Watch and the Campaign to Stop Killer Robots (who have called for a ban of “weapon systems that can perform critical functions autonomously). Interestingly the latest survey, conducted between November 2020 and January 2021 across 28 countries, shows that there is a correlation between opposition and the age of the respondents; with a 54% opposition average for those under 35 years of age, and 69% among those ages 50-74. This can be indicative of several factors, including that the younger generation is more accepting of technology and that the older population is more likely to have had first-hand experiences of the horrors of war. 

HRW believes that States should be considering these views when reviewing “autonomous weapons”. The perspectives do not create binding rules but may influence treaties and decisions to deploy the weapons. It is important to keep in mind that opinions change over time. While 50 years ago we could not imagine the possibility of unmanned remote-controlled systems being an integral part of military arsenals as they are today, we have come to accept them to a large extent. Surveys need to be seen in the context of the time, the way the questions are framed, and in this case, advancement in technology. As autonomy in weapon systems develop and the technology becomes more advanced, views on them will change. Armin Krishnan notes, in his book titled Killer Robots: Legality and Ethicality of Autonomous Weapons, that with “social conditioning” views on WSAF will evolve. 

Regarding the principles of humanity, there is a concern about the importance of human agency in life and death decisions. A lot of anxiety exists about losing human control over weapon systems and war in general, which raises questions beyond compliance with laws and also considers whether the deployment of such weapon systems is in line with our values.  Delegating decisions about life and death may dehumanize armed conflict even further. The concern is that allowing weapon systems to lethally target humans means they are not treated as unique human beings which is an afront on human dignity; late Professor Heyns referred to this as “death by algorithm”. It has also been argued that the anthropocentric formulation of IHL principles implicitly requires human judgment over decisions regarding force.

Conclusion

To date, the Martens Clause has never been used to ban a weapon. It must be kept in mind that at this stage the debate is still very speculative. Weapon systems that can perform critical functions autonomously, however, offer numerous advantages and it is unlikely that States will refrain from developing and deploying weapons that would give them the upper hand based on personally held views. What the Martens Clause does do is to remind us that in deciding on whether and how to design, develop and use WSAF we must do so in a way that safeguards our values instead of rendering them unsustainable. 

Views expressed in this article are the author’s own and are not representative of the official views of Jus Cogens Blog or any other institute or organization that the author may be affiliated with.

The Jus ad Bellum Spatialis and the potential impact of Soft Law in regulating the Use of Force against Space Objects

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By Sören Sommer

[Sören Sommer (LL.M.) is a PhD law student at the University of Glasgow.]

The recent Russian anti-satellite missile test has abruptly brought the risk of potential future conflicts in outer space back on the international space and security agenda. As has been repeated time and time again, outer space is increasingly becoming more competitive, congested, contested, and even weaponised (Schrogl et al., 2015, pp. 521-716; Steer, 2017, p. 9). Due to the ever-increasing reliance of modern societies and modern militaries on space assets, sophisticated means and methods of space warfare to use force against space objects are being rapidly developed. Potential future conflicts over space resources and geopolitical conflicts on Earth which might spill-over to space contribute to the fragility of the continued peaceful and cooperative use of outer space and further increase the risk that space objects will be targeted in future outer space conflicts. This entails grave humanitarian consequences due to the potential outage of essential space-based services (Thomas, 2011; Sommer, 2019) and space environmental risks due to the creation of harmful space debris.

Fortunately, actual hostilities have not been conducted in outer space to date. This of course also means that there is no sufficient State practice on the matter so far, but rather much political and legal uncertainty instead, since unfortunately, the jus ad bellum spatialis (the international regime governing inter-State armed force in outer space) is far from being conclusively developed (with manual projects like MILAMOS and Woomera still ongoing) and remains insufficient to appropriately prevent and regulate conflicts in outer space and ensure its continuing sustainability, peacefulness, and security. Various hard law initiatives such as the longstanding disarmament efforts by the UN Conference on Disarmament (UNCD) to conclude a Treaty on the Prevention of an Arms Race in Outer Space (PAROS) and also the ultimately unsuccessful drafting and negotiation process of the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Space Objects (PPWT) aimed at prohibiting the use of force against (another State’s) space object have been (and will likely remain) unsuccessful due to lacking or diverging State interests when it comes to regulating and especially restricting military uses of the “ultimate high ground” (Sheehan, 2015, pp. 12-13; Mutschler, 2015, pp. 43-48).

While States have failed to formulate a clear prohibition on the use of force in outer space through hard law despite all the increasing risks, I would like to point out in this post how besides the UN Charter and general international space law already prohibiting the use of force against other States’ space objects, especially soft law might play a crucial role in ensuring the continued sustainability, peacefulness, and security of outer space by contributing to the remarkable formation of an international customary norm prohibiting such uses of force and thus fill a dangerous legal gap in the jus ad bellum spatialis. In my opinion, such a customary norm has already started to form through soft law, primarily expressed by a series of consistent and widely supported United Nations General Assembly (UNGA) resolutions on the matter, which can be seen as evidence for existing opinio juris. Furthermore, the absence of open uses of force against space objects in cases of inter-State conflicts can be viewed as concurring State practice on the matter (for now).

First, I would like to briefly revisit how existing hard law – the UN Charter and international space law in particular – already but insufficiently prohibits the use of force in outer space in my view.

The rules of the UN Charter are generally considered to apply in outer space, but are very general themselves, including their well-known sometimes more but often less force-restrictive interpretations. Art 2 (4) of the UN Charter is principally sufficiently broad to also cover (illegal) uses of force in outer space, despite the fact that there cannot be conventional cross-border use of force due to the lack of borders in the res communis environment of outer space where targeted objects are principally outside the territory of any State. This is because Art. 2 (4) of the UN Charter not only prohibits the use of force “against the territorial integrity” of another State, which is conventionally understood as prohibiting cross-border force (Hakimi & Cogan, 2016, p. 257), but also broadly prohibits the use of force “in any other manner inconsistent with the Purposes of the United Nations”. These “Purposes of the United Nations” are laid down in Art. 1 of the UN Charter and are above else “to maintain international peace and security” (Art. 1 (1) UN Charter), which is irreconcilable with using force in outer space. On that basis it has been convincingly argued that the UN Charter use of force prohibition thus also extends to uses of force in outer space (Goh, 2004, p. 263; Cheng, 1997, pp. 70-72; Sommer, 2019, pp. 22-35).

The outer space use of force prohibition is in my view also implicitly reflected in international space law. The international framework regulating outer space activities consists of five multilateral space treaties at the core (most of which today enjoy wide ratification), which were concluded under the auspices of the UN, and nowadays also of various soft law agreements, such as UNGA resolutions, transparency and confidence-building measures, and policy guidelines (Freeland, 2015, p. 91). Many of the space treaties’ provisions have customary international law status today (Lee, 2003, p. 93; Schmitt, 2017, p. 270; in fact, all provisions referenced in this post enjoy such status) and generally, custom and soft law instruments are of particular importance for regulating outer space activities (Cheng, 1997, pp. 127-150; Tronchetti, 2011, pp. 619-633).

The rules of international space law focus almost exclusively on the peaceful uses of outer space and remain largely silent on the issue of the use of force. On the one hand, this entails lacking normative clarity regarding the use of force in outer space, but on the other, it is also indicative of how the international community imagines its shared use of outer space in my opinion and importantly, international space law is linked to the general jus ad bellum regime.

Particularly, the central and widely ratified international agreement on the use of outer space, the Outer Space Treaty (OST), states that outer space use shall be in accordance with international law and the UN Charter (Art. III OST). The jus cogens use of force prohibition as found in the UN Charter as well as in customary international law thus also applies to outer space use.

Furthermore, the so-called “launching States” (Arts. VII OST, I (a) Registration Convention (REG)) retain sovereignty over their space objects under international law by exercising “jurisdiction and control” according to Arts. VIII OST, II REG (Schmidt-Tedd & Mick, 2017, pp. 520-524). This is similar to maritime law and the concept of the “flag state”, which shall also “exercise jurisdiction and control […] over ships flying its flag” (Art. 94 United Nations Convention on the Law of the Sea). In the Nicaragua case, the ICJ held that the “principle of respect for State sovereignty […] is […] closely linked with the [principle] of the prohibition of the use of force”. (para. 212) Since space objects remain under the sovereign control of their respective launching States it is my opinion that the use of force against another State’s space object therefore qualifies as a prohibited use of force (Sommer, 2019, p. 34).

Apart from the general jus ad bellum rules, international space law is clear on the fact that outer space is first and foremost to be used for peaceful purposes (Finch, 1968, p. 365), despite its past and present military use (Goh, 2004, p. 269). Paras. 2 and 4 of the OST preamble first mention the principle of the peaceful purposes of outer space use, which is considered to be customary law (Blount, 2012, p. 2) and appears in almost all UN documents relating to outer space. While the peaceful purposes principle is often seen as indicative of how the international community imagines its shared use of outer space, the fact remains that the international space treaties are largely silent regarding unpeaceful uses of outer space. There is only Art. IV OST which prohibits the placement of WMDs in space.

The lack of sufficient normative clarity under the UN Charter regime and general international space law regarding the legality of using force in outer space contains the risk that States abuse the existing legal gaps or act in a way that others consider unlawful. This could also alter contemporary, force-restrictive interpretations of the jus ad bellum spatialis due to converse State practice. Since it is inconceivable at the moment that the major global space powers will be willing or able to agree on any new space treaty in the foreseeable future due to lacking or diverging State interests, especially with regard to restricting the use of force in outer space or prevent its weaponization (apparent when looking at the unsuccessful drafting and negotiation process of the aforementioned PPWT), looking for other means beside treaty law restricting the use of force in outer space seems appropriate because of the potentially highly adverse effects of space warfare.

A peculiarity of international space law is not only the particular significance of its customary law, which for the past decades has filled and continues to fill the gaps of lacking State support for new UN space treaties and compensates for their inadequacies (Tronchetti, 2011, pp. 619-633), but also that such customary space law is frequently formed through soft law like UNGA resolutions. In its 1996 Nuclear Weapons Advisory Opinion, the International Court of Justice (ICJ) generally stressed the potential relevance of soft law (UNGA resolutions in particular) for the development of customary law:

“The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions for its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.” (para. 70)

One year later, Cheng (Cheng, 1997, pp. 127-150) famously noted the possibility of “instant custom” in international space law with regard to UNGA resolutions and thus underlined the importance of soft law for the development of international space law, which continues to be relevant today.

Since 1959, the UNGA has adopted 64 resolutions on International Co-operation in the Peaceful Uses of Outer Space and 26 resolutions on the Prevention of an Arms Race in Outer Space, almost always with overwhelming support. These resolutions can be considered as authoritative interpretations of the UN Charter in the outer space-context and contribute to the formation of customary international law regarding the prohibition of using force in outer space (Goh, 2004, p. 260). Moreover, the 2017 UNGA Resolution on Further Practical Measures for the Prevention of an Arms Race in Outer Space explicitly encourages all States to actively contribute to the “prevention of […] the use of force against space objects.”

In my opinion, the series of consistent and widely supported UNGA resolutions on the matter can be seen as evidence of emerging opinio juris through soft law prohibiting the use of force in outer space in line with the ICJ’s criteria in its aforementioned Nuclear Weapons Advisory Opinion. Furthermore, the absence of open uses of force against space objects (although clearly feasible from a technical standpoint, as several successful anti-satellite weapons tests in the past have shown) in cases of inter-State conflicts can be regarded as concurring State practice on the matter.

As Cheng has shown, customary international law can rapidly develop from UNGA resolutions. Thus soft law will continue to play a crucial role in regulating space activities in the future and the emergence of an international custom prohibiting the use of force against space objects might provide an exit from the international community’s deadlock with regards to sufficiently regulating the use of force in outer space and could therefore be vital in ensuring the continuing sustainability, peacefulness, and security of outer space and its beneficial use for mankind.

Views expressed in this article are the author’s own and are not representative of the official views of Jus Cogens Blog or any other institute or organization that the author may be affiliated with.

The Israel-Palestine Investigation

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By Ali Imtinan

[Ali Imtinan completed his LL.B. from University of London (International Programme) and is currently practicing law in Lahore, Pakistan]

“To both Palestinian and Israeli victims and affected communities, we urge patience. The ICC is  not a panacea, but only seeks to discharge the responsibility that the international community has  entrusted to it, which is to promote accountability for Rome Statute crimes, regardless of the  perpetrator, in an effort to deter such crimes.” 

Fatou Bensouda  

Introduction 

On the 3rd of March this year, the International Criminal Court (‘ICC’) Prosecutor Fatou Bensouda announced the initiation of an investigation into alleged war crimes committed in the occupied Palestinian territory. The announcement came after the Pre-Trial Chamber’s (‘Chamber’) decision in February, ruling that the ICC’s jurisdiction extended to territories occupied by Israel during the 1967 Six-Day War — Gaza, the West Bank, and East Jerusalem. In January 2015, Palestine acceded to the Rome Statute, and along with it lodged a declaration under Article 12(3) of the Statute, thereby initiating the case. 

The Chamber gave the jurisdictional requirement of the Rome Statute a liberal construction, which could have far-reaching effects for the extension of the ICC’s protection to the people living under occupation. This writing will critically examine the Chamber’s ruling regarding the jurisdiction of the ICC, analyse the nature of crimes being investigated, with a specific focus on the Israeli settlements in the West Bank, and deliberate upon whether the investigation can — by promoting accountability — contribute to the resolution of one of the more long-standing conflicts in recent history. 

Jurisdiction of the ICC 

Under Article 12(2) of the Rome Statute, the Court can investigate crimes committed on the territory or by nationals of a State Party, or in a State that has accepted the jurisdiction of the ICC. Since Israel is not a party to the Rome Statute, the Chamber had to determine whether Palestine could be considered a State for the purpose of the Statute. Palestine’s case is unique insofar that its status as a sovereign state is a subject of dispute, as it ostensibly does not meet the criteria for statehood under international law, including effective control.

Although there is no established definition of a state under international law, the most accepted formulation of the basic criteria for statehood is provided by the 1933 Montevideo Convention (Crawford, 2006), which requires states to possess a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states. Sovereignty under international law, on the other hand, is best understood as the exclusive right to exercise supreme authority/control over a defined territory. 

The issue in Palestine’s case is that the Israeli occupation of East Jerusalem and more than half of the West Bank — either through military control or through the settlement activities — prevents the Palestinian government from exercising effective control over its territory and as a result, negates the satisfaction of the Montevideo criteria. A strict adherence to the Montevideo criteria, therefore, entails that occupied territories are incapable of claiming statehood as people living under occupation are, by definition, unable to exercise effective control over their territory. Furthermore, the non-member observer status granted to Palestine through the UN General Assembly Resolution 67/19 did not conclusively establish Palestinian statehood either. The said resolution was limited in its effect to the UN, as evident from the Report of the Secretary-General, which states that the change in Palestine’s status “does not apply to organizations and bodies outside of the United Nations” (para 1 of the report), an argument adopted by the Attorney General of Israel as well.

In deciding whether Palestine could then be considered a State for the purpose of the Statute, the Chamber distinguished between a ‘State’ under international law and a ‘State Party’ to the Rome Statute. The Chamber held that ‘State’ under Article 12(2)(a) of the Statute, is in fact a reference to a ‘State Party to statute’; whether such state party met the requirements of statehood under international law was immaterial (para 93 of the decision). Palestine’s accession to the Statute meant that it was now a State Party to the Rome Statute and consequently a ‘State’ for the purposes of Article 12(2)(a). Its status as that of a state under international law was irrelevant.

This distinction is of importance as by adopting such liberal approach, the Chamber remedied the inherent wrong with the restrictive interpretation of a ‘State’, which perpetuated “a colonial premise under which only those accorded the status of statehood can be actors who count in the international legal arena” (Gross, 2021, para 2).  

The problem with the restrictive interpretation — that ICC’s jurisdiction extends only to states that satisfy the normative criteria of statehood under international law — is that this recognises sovereignty as the sole determinant of statehood. This, in turn, only benefits the Occupying Power which can circumvent the investigation of its nationals by simply opting to not be a party to the Rome Statute. On the other hand, the people living under occupation are denied the protection of the ICC because of the very fact that they are occupied, i.e. they do not have effective control over their territory (Gross, 2021). Thus, such a view would only legitimise colonialism. 

A practical example of this can be seen in Israel voting against the adoption of the Rome Statute due to its apprehension of being prosecuted under Article 8(2)(b)(viii) for the settlement activities in the Palestinian territory. Article 8(2)(b)(viii) of the Statute criminalises the transfer of an Occupying Power’s civilian population into the occupied territory. In 2004, The International Court of Justice, while exercising its advisory jurisdiction, had also concluded that Israeli settlements were in breach of Article 49(6) of the Fourth Geneva Convention. Despite the settlement project being illegal under international law, the responsible Israeli authorities had thus far evaded accountability because of the ICC not having jurisdiction over Israel, on account of it not being a party to the Rome Statute. Neither did the ICC have jurisdiction over occupied Palestinian territory as it did not meet the criteria for a sovereign state capable of being a party to the Rome Statute. 

Thus, had the Chamber adopted the view that ‘State’ for the purpose of the Rome Statute, meant the same as a state defined under international law, a strict application of the Montevideo criteria would have led to the conclusion that Palestine did not meet the conditions for statehood and consequently the ICC did not have territorial jurisdiction; thereby further granting impunity to the concerned Israeli authorities.

By distinguishing between a state for the purpose of the Rome Statute and a state under international law, the Chamber’s decision affirmed the ICC’s jurisdiction over the occupied Palestinian territory without having to determine Palestine’s status as a sovereign state in accordance with the Montevideo criteria — a far more contentious and political consideration. In doing so, the decision sets a precedent for the extension of international legal protection to the people living under occupation, who are for the time being unable to claim statehood.

Crimes being investigated  

As discussed earlier, besides investigating the alleged war crimes committed by members of Israel Defense Forces, Hamas, and Palestinian armed groups, the ICC can now probe into the Israeli authorities’ promotion of settlements in the West Bank pursuant to Article 8(2)(b)(viii) of the Statute. 

In prosecuting the officials responsible, the ICC may treat the crime of transfer of civilians into occupied Palestinian territory as a continuing crime, i.e. a crime that continues even after an initial illegal act is consummated. Continuing crimes can be further understood by distinguishing them from instantaneous crimes. The former refers to a crime that has been committed and then maintained. Conversely, the latter relates to a crime that is completed through a single act. The instantaneous crime of murder, for instance, is concluded with the death of the victim. Whereas, the crime of enforced disappearance of persons is committed when the victim is abducted, but the crime continues for as long as the abductee remains unaccounted for (Nissel, 2004).

In Palestine’s context, the crime of transfer of civilians does not cease with the initial illegal act of dispossessing the Palestinian people of their land and settling therein; instead, it continues until the illegal settlements are maintained. The Court’s current jurisdiction in the Situation in Palestine is limited to crimes committed after June 2014. Adjudging the crime of transfer of civilians as a continuing crime would extend the ICC’s jurisdiction to those crimes of transfer as well which commenced prior to June 2014, provided that these were maintained until June 2014 (Kearney, 2017).

In Prosecutor v Thomas Lubanga Dyilo, the Chamber recognised the rationale of treating certain war crimes as continuing crimes by ruling that the crime of enlisting and conscripting of child soldiers was an offence of a continuing nature; the offence is committed when a child under the age of fifteen is enrolled into the armed forces and continues until the child reaches fifteen years of age. The ICC can then rely on its decision in Lubanga, and draw a parallel between the crimes of enlistment and conscription of children and the crime of transfer of civilians into occupied territory (Kearney, 2017).

In addition, it is of significance to state that Article 8(2)(b)(viii) of the Statute criminalises the conduct of the ‘Occupying Power’ which has transferred its population into the occupied territory (Poissonnier et al., 2019). Hence, it must be proven that the Israeli government sanctioned and supported the settlements in the West Bank. While there is evidence of this — as acknowledged by the ICC Prosecutor in para 68 of the Report on Preliminary Examination Activities (2015) — it is important to remember that the ICC can only prosecute individuals, not governments or States. Therefore, the ICC will aim for investigating government officials responsible for the implementation of the settlement project. 

Furthermore, whilst the Chamber’s decision did not explicitly reflect on the refusal of the Palestinians’ right of return, such refusal is a potential crime against humanity (‘CAH’). In its 2018 decision on the Situation in Bangladesh/Myanmar, the Pre-Trial Chamber held that preventing people from returning to their country causes them “great suffering, or serious injury […] to mental […] health’’ (para 77 of the decision), and thus constitutes a CAH under Article 7(1)(k) and 7(2)(g) of the Statute (Kearney, 2020). On that account, the ICC may consider prosecuting responsible members of Israeli authorities for denying Palestinians their right of return, as it certainly has reasonable grounds to do so. 

What to expect? 

In response to the ICC investigation in Afghanistan, the US imposed financial sanctions and a travel ban on the ICC Prosecutor. It would be reasonable to assume that Israel, having already refused to cooperate, will adopt similar tactics against the ICC officials. An illustration of this was seen when the erstwhile Israeli Prime Minister, Benjamin Netanyahu derided the Chamber’s decision affirming the ICC’s jurisdiction in occupied Palestinian territory as “pure anti-Semitism”. It is pertinent to note that the Court relies on the cooperation of the State Parties for enforcement of its decisions; the accused Israeli officials could therefore avoid trial simply by not leaving the country or restricting travel to countries that do not cooperate with the ICC.

Moreover, if one is to go by the outcome of the previous investigative commissions established to probe potential commission of crimes in the occupied Palestinian territory, there is little to hope for. Consider the example of the 2009 UN Goldstone Mission, which found that “some of the actions of the Government of Israel might justify a competent court finding that crimes against humanity have been committed” (para 75 of the report), yet its recommendations were never implemented (Allen, 2021). Notwithstanding the outcome of past commissions, the ICC investigation may prove to be an anomaly as the Court has certain enforcement mechanisms at its disposal and has also tried and convicted perpetrators of war crimes in the past. 

Despite the criticism that the ICC investigates ‘easy targets’, and regarding its controversial culture; there has apparently been a change of attitude. This is evidenced by the Chamber — in the past three years alone — authorising investigations into alleged crimes committed in Afghanistan, Bangladesh/Myanmar, and Palestine. The ICC now, besides being seemingly more willing to investigate contentious cases which involve powerful states, is also not deterred by the political nature of these issues, as long as there is ‘a reasonable basis’ to believe that crimes falling within its jurisdiction have been committed.  

However, taking into account the prolonged nature of the ICC investigations, the non-cooperation of Israel and its allies, the ICC’s limited resources, and the highly political nature of the situation, one can readily conclude that it may be a fair few years before we see any notable accountability. Nevertheless, the ICC investigation holds significance as it challenges the status quo and the impunity of perpetrators of crimes, even if only theoretically. 

The European Grand Chamber’s Normalizing of Bulk Surveillance in Big Brother v the United Kingdom

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By Sarthak Gupta

[Sarthak Gupta is an undergraduate law student on the B.A; L.L.B [Hons] at the Institute of Law, Nirma University, India. His scholastic interest follows Constitutional Law, Human Rights & Gender Studies, and International Law. He can be reached at guptasarthak7060@gmail.com]

The Grand Chamber [GC] of the European Court of Human Rights [ECtHR] in the case of Big Brother v. the United Kingdom delivered one of its significant judgement on the UK’s mass surveillance regime being in violation of the European Convention on Human Rights [Convention]. The GC delineates three systems: bulk interception of communication, acquiring communications data from service operators and foreign government intelligence apportions. In this article, the author attempts to analyze the GC judgement in the abovementioned systems. The author addresses the potential concerns which the GC failed to deliberate upon.

Background of the Case

The case concerned the applications which were filed by privacy rights advocacy group and a UK-based NGO, Big Brother Watch with various other non-profit organizations and academics. The applications were filed after former U.S. National Security Agency employee Edward Snowden [whistleblower] revealed the exploitation of surveillance systems by the intelligence services of the US and UK.  The primary contention of the application was that the bulk surveillance interception regime operated by the UK Government Communications Headquarters (GCHQ) including the TEMPORA system, and the intelligence-sharing regime violated the Convention.

In 2018, the ECtHR’s lower chamber, determined that the surveillance regime violated Articles 8 and 10 of the Convention by acquiring communications data from the communications service regime. However, the chamber, concluded that there is no violation of Article 8 of the Convention in respect of the intelligence-sharing regime. The applicant requested to refer the case to the GC in accordance with Article 43 of the Convention.

Grand Chamber’s Judgement

The GC observes that due to the extreme multitude of vulnerabilities that States witness in contemporary society, executing a mass interception regime did not in and of itself violate the Convention. Such interception, nevertheless, would be subjected to “end-to-end safeguards,” that would entail a necessity and proportionality determination, independent authorization, and constant supervision, among other things.

Subsequently, the GC identified three “fundamental deficiencies’ in the UK’s bulk surveillance interception regime’s end-to-end safeguards, “absence of independent authorization, failure to include categories of selectors, and the failure to subject selectors linked to an individual to prior internal authorization.” The GC observed that UK’s bulk interception did not meet the “quality of law” requirement, thus violating right to privacy enshrined in Article 8 of the Convention and was therefore incapable of keeping the “interference” to what was “necessary in a democratic society”

The GC observed that the bulk interception regime violated the right to privacy and family life [Article 8] and freedom of expression [Article 10] of the Convention. The regime for acquiring communications data from service suppliers were also observed to be irreconcilable with the Convention because it was not confined to countering “serious crime,” it was not subject to prior assessment by a national authority, and it ceased to comprehensively protect journalists’ privacy and confidentiality. Thus, accepting the chamber judgement that acquiring communications data from service suppliers is a violation of Article 8 and is not in “accordance with law”

However, on the issue of foreign government intelligence apportions, GC reiterated the UK’s intelligence-sharing regime’s conformity with the Convention and held that the intelligence-sharing regime used by UK authorities to access data from US intelligence agencies does not breach Articles 8 or 10 of the Convention. The GC concluded that intelligence sharing is acceptable if “adequate safeguards” against misuse are in existence and the regime is subjected to independent monitoring and ex post facto review.

Comment: A Triumph for Privacy?

Nevertheless, the ruling is presumably a triumph for privacy advocates, it constitutes a substantial pinnacle in accomplishing nearly completely the opposite. As it not only capitulates to European governments’ eagerness for greater surveillance but also identifies distinct standards of protection from unmerited state interception contingent on whether the intercepted membrane is domestic or foreign in nature, thereby establishing segregated standards for prioritized and bulk communications interception. In its earlier judgments, contemplating the legitimacy of domestic surveillance measures in Roman Zakharov v Russia and Szabó and Vissy v Hungary, the ECtHR not only questioned their compatibility with Convention rights but also formed a rigorous regime for the emergence of “reasonable suspicion” against a citizen before the surveillance could be authorized. In juxtaposition, the GC endorsed the functionality of bulk interception of foreign communications (or strategic surveillance) within the 2018 Centrum för rättvisa v Sweden and Big Brother Watch Chamber decisions, asserting that it is “a valuable means to achieve the legitimate aims pursued, particularly given the current threat level from both global terrorism and serious crime.”

Normalization of Bulk Surveillance Interception

The GC in Big Brother reiterated that operating a bulk surveillance interception regime may indeed not in itself contravene the Convention, strengthening its belief in the efficiency of bulk foreign communications acquisition. The GC confirmed the findings of the Chamber of provocations posed by international terrorism and cross-border crime in that case. To this end, the GC reaffirmed the Venice Commission’s acknowledgement that bulk surveillance interception is essential for states in recognizing threats to national security. The GC affirmed that national authorities have a “wide margin of appreciation” in determining how to accomplish the legitimate aim of national security protection. 

However, the significant factor in judgement is GC’s setting out of new fundamental standards to prevent the impact of bulk interception prerogatives being exploited, which is resorted to as “the cornerstone of Article 8 compliant bulk interception regime.” Through this the GC reinforced the differentiation between targeted and bulk interception, demonstrating that the latter is commonly directed at international communications with the goal of collecting foreign intelligence, initial detention and interrogation of cyberattacks, cyber warfare, and counter-terrorism. Furthermore, the GC, articulated the framework that must be drawn in bulk interception cases, beginning with the six minimum safeguards highlighted in Weber & Saravia v. Germany, and tailoring these standards to bulk intelligence collection methodologies. However, GC observed that the first two components (that domestic law must specifically define the essence of the crimes that may result in an interception order, as well as the categories of people who may have their communications intercepted) are not “particularly conducive to a bulk interception regime.

Subsequently, the GC again turned down the requisite of “reasonable suspicion” as inappropriate in the framework of bulk interception since it is in “principle preventative”, rather than for the investigative process of a particular target and/or a “recognizable criminal offence”. Having said that, the GC observed that domestic law must still constitute comprehensive regulations such as the grounds for bulk interception and the predicaments under which a person’s communications may be apprehended. The GC appears to have confirmed the formation of two separate frames of procedural standards premised on whether the surveillance is domestic or foreign in essence by incorporating this new approach, but it also initially appeared to have initiated the demarcation of new key criteria that must be specifically laid out in domestic law, affirming the normalization of bulk surveillance.

The Necessity of Judicial Authorization?

On the contention of judicial authorization and ex post control processes, the GC declined to necessitate judicial authorization claiming that bulk interception must be authorized by an “independent body”, that is, an institution separate from the executive branch. The GC’s observation is unsatisfactory to preclude arbitrary violations of the right to privacy. One of the legal framework’s prerequisites eschews a significant assurance of human rights protection, notably “judicial oversight”. Nevertheless, stipulating that security services be spearheaded by an “independent body”, the GC should have taken a step further and mandated that the process be monitored by the judiciary. The institution would certainly be not “independent”, because anyone with the relevant information to represent on it would almost certainly be a former member of the security services. The European Court of Justice took a strengthened stance on this subject, necessitating the intervention of judicial authority in Schrems II judgement (Para 186-194).

Pragmatic Yet Procedural Approach

To determine whether bulk interception regimes fall within states’ margin of appreciation, the GC reinforces the proceduralist approach and establishes “wider range of criteria than the six Weber standards” to assess compliance with the Convention by domestic legal frameworks. The GC observes that the very same safeguards should extend to the collection and processing of communications data/metadata, not just the content of communications. All of these privacy-protecting safeguards, however, are instantaneously competent in their application. The GC’s general approach toward the governments is very obsequious, particularly when it comes to the initial implementation of the surveillance programs. The GC perhaps asserts that the mere collection of data “does not constitute a particularly significant interference” with privacy, while distinguishing between the different phases of such interventions. Nevertheless, metadata collection being cumbersome, and the safeguards should be the equivalent, but metadata does not have to be considered the same as “content”. The eight-part test is a component of a “global assessment” of the system’s proportionality so that a state that neglects one of the criteria can compensate by achieving excellence in other aspects. These are effective determinants but there are a few particular minimum standards that ought to be fulfilled.

Commercialisation and Normalization of surveillance via Pegasus Spyware

The Pegasus Project’s findings by Amnesty International’s Security Lab and Forbidden Stories, have revealed that the Israel’s NSO Group’s cyber surveillance company developed spyware, Pegasus, commercialised the world-wide mass surveillance, which has led to hacking and manipulating more than 50,000 phone numbers of potential surveillance targets. Pegasus is a formidable spyware application that can be installed remotely on smartphones without the person ‘s knowledge. Clients could take complete access to the device after installing it, including reading messages from protected messaging applications like WhatsApp and Signal, as well as switching on the camera and microphone. 

The Commericialisation of the Pegasus was initiated ostensibly for purpose in law enforcement investigations and to counter-terrorism, but it has apparently been employed in a significantly broader variety of settings in a way that may have been unethical & unconstitutional. Azerbaijan, Bahrain, Hungary, India, Kazakhstan, Mexico, Morocco, Rwanda, Saudi Arabia, Togo, and the United Arab Emirates are among a several of the countries where NSO clients have been identified in the Project Pegasus. Human rights advocates, academics, lawyers, union leaders, diplomats, politicians, and many heads of state are all prospective targets of the Pegasus.

The potential to remotely access the phone was long thought which to be limited to a few countries even after Edwarn Snowden’s reveals on US & UK’s mass surveillance operations. However, now with commercialization of mass-surveillance spyware, many governments, as well as individuals and small organizations, can access to high-end espionage and monitoring capabilities, whih illustrates the future-potential of mass-surveillance all over the world and gross violations of human rights.  

Subsequently, the GC’s ruling will act as a skeleton in the normalization and commercialisation of the mass-surveillance in the European jurisdiction. The mass-surveillance via spyware unquestionably violates the Convention including the fundamental right of privacy of the targeted individuals and necessitates the moratorium on the commercialisation, transmission, and use of surveillance technologies unless human rights-compliant regulatory institutions are in operation as recommended by United Nations Special Rapporteur on freedom of opinion and expression expert David Kaye in its report on surveillance. 

Conclusion

Although, the GC observed unanimously that the UK’s Bulk interception approaches and acquiring of metadata under Chapter II of the RIPA violated Article 8 of the Convention, the decision is still not a victory of privacy. The primary and perhaps most evocative criticism of the decision was made by Judge Pinto De Albuquerque in his partially dissenting opinion, who noted that it “fundamentally alters the existing balance in Europe between the right to respect for private life and public security interests, in that it admits non-targeted surveillance.” [Para 59] For future decades, the GC’s ruling symbolizes a conclusive normalization of mass surveillance which has become vital in the outlook of the prevailing pandemic and continuous reforms in intelligence sharing and privacy law, such as the EU’s e-Privacy Regulation, and the Additional Protocol to the Council of Europe’s Convention on Cybercrime.

Brazil’s Climate Actions Can Become a Tipping Point for the Enforcement of International Environmental Law

Posted in International Environmental Law, Public International Law, South AmericaLeave a comment

By Guilherme Pratti

[Guilherme Pratti is a PhD student in Law at Sant’Anna School of Advanced Studies, Italy, and a member of its Center for Inter-legality Research. His research project deals with the legal rationality of climate change. Twitter: @iugittarp]

Introduction

The current Brazilian Federal Government has been dismantling the structure for the protection of the environment that has been put together in the past twenty years, by freezing national funds, firing the personnel responsible for the surveillance of protected forest areas and by speaking in favor of (and therefore incentivizing) the reduction of indigenous land and protected areas. In this context, different lawsuits have been filed before the Federal Supreme Court, aiming at i) impeding further dismantling of national structures; ii) restoring federal efforts to preserve the environment and iii) recognizing the conditioning of Brazil’s environmental public policies to its commitments on the matter at the global level.

I have so far identified eight major lawsuits (by the end of the post I offer a charter with all cases), all filed by a group of center-left and left wing political parties before the Federal Supreme Court, having as its object the actions and omissions of the Federal Government regarding its duty to protect the environment, mitigate climate change and preserve national structures responsive for environmental protection in general. 

Two of these lawsuits are, for theoretical reasons, the ones that interest us the most from the perspective of international law. They are the ADPF nº 708, filed on June 30th 2020 and the ADPF nº 760, filed on November 12th 2020. On a side note, it is important to mention that two other noteworthy cases have been filed before the federal courts of the States of Amazonas and Paraná (North and South regions respectively), which means that, symbolically speaking, there are climate related lawsuits pending in three out of five national regions so far.

The intertwining of spheres

Back to the Federal Supreme Court cases: ADPF translates, literally, to “arguing for the transgression of a fundamental precept and it is the procedural instrument to be invoked, when in absence of a specific type of action, to avoid and/or repair the violation of fundamental rights provisions of the Brazilian Constitution (art. 102, §1º; Law nº 9.882/99). Both ADPFs seek to repair the damages already done and to avoid further damages by the Federal Government, whom did not abide by the existing normative framework on matters of environmental protection from deforestation and mitigation of the effects of climate change.

The ADPF nº 708, seeks to declare as unconstitutional the Government’s omission to release the national “Climate Fund”, which has so far strangled activities aimed at mitigating the harms of climate change. The Federal Government is withholding said funds and therefore all activities dependent on its budget have been either stopped or diminished to a minimum due to lack of money. This ADPF is a joint action of the Brazilian Socialist Party (PSB), Socialism and Liberty Party (PSOL), Worker’s Party (PT) and Sustainable Network Party (REDE).

The ADPF nº 760, in turn, seeks a writ to command the Government to fulfill its duty to apply the “Action Plan for Prevention and Controlling of Amazon Deforestation” (PPCDAm), for it has not been employed in the past two years, thereby blocking all national measures aimed at preventing deforestation of the Amazon forest and thus contributing to the considerable rise of the forest’s destruction. The filing of said ADPF was signed by the four signatories of APDF 708 plus the Green Party (PV) and the Communist Party of Brazil (PCdoB).

Both lawsuits go beyond the invoking of the relevant national normative framework and argue, in a nutshell, that when it comes to deforestation prevention and climate change mitigation, Brazil has a commitment not only to itself, under Article 225 of the Constitution, but also with (and to) the international sphere. In order to do so, said ADPFs invoke i) the Paris Agreement; ii) the United Nations’ Sustainable Development Goals; iii) the “Rio Declaration on Environment and Development” of 1992; iv) the UN’s Framework Convention on Climate Change and the UN’s Intergovernmental Panel on Climate Change and; v) the UN’s Convention on the Rights of the Child. 

These instruments base the political parties’ arguments that the current Federal Government’s actions and omissions are not only blatantly harmful to the environment immediately situated on the Brazilian territory but also deleterious beyond national borders for they accelerate climate change. As a consequence, it is argued, the mentioned actions and omissions are not only precluded by domestic law but also by the commitments Brazil agreed upon in the international sphere. That is, the Federal Government’s (in)actions violate both national and international normative frameworks. This brings up the composite character of the normativity of the cases at hand, shedding light at the intertwinement between legal spheres.

The conditioning of domestic legality

Said “composite character” (Klabbers & Palombella, 2019, p. 2) images the entanglement of the national and international legal spheres, which, in the present cases, is being argued by the plaintiffs through, on the one hand, the weaving of the preservation of the forest and the mitigating of climate change as sine qua non conditions to guarantee the fundamental rights (for example, of the next generation of children, indigenous people and the ecologically balanced environment) under the Brazilian Constitution, and on the other, the fulfilment of the country’s international commitments and the conditioning that these – i.e. the commitments – play within the domestic sphere. 

That is, the conditioning of the domestic legality (the normative production and interpretation and the public policies pursued) by the extra-State legality, for the latter serves in various ways as a parameter for the establishing (and concretization) of the former. A way to understand the relationship between the legal orders at stake, all the while fully considering the above mentioned composite character of the law (without disregard for one of the levels of legality at stake), can be pursued through the “inter-legality perspective”, which considers “the overlapping among regimes and orders as a consequence of interconnectedness” (Palombella, 2019, p. 368). 

Said perspective is the effort to understand the evermore complex character of the law in the twenty-first century, characterized by “the unavoidable interconnectedness of legalities” (Palombella, 2019, p. 366). And since the interconnectedness at stake is not only normative but also factual, for international environmental laws and agreements state not only legal rules but also scientific facts on the current health state of the Earth, the inter-legality approach can play a decisive role in the ADPFs at issue. 

Taking the perspective of the ADPFs at hand, one can note that they seek the preservation and implementation of the already existing domestic framework regarding the protection of the amazon forest and of the Climate Fund. And to do so, as above mentioned, they base their arguments not only on the coherence of said framework with the Constitution but also on its consistency to the legality stemming from the international sphere (for instance, the Paris Agreement and the UN’s Framework Convention on Climate Change). This integration of the normativity of one sphere onto another (Taekema, 2019, pp. 74-75), through inter-legality’s lenses, is useful to the adjudication of the cases at stake for it purports for a much needed synergy between differently-sourced norms – what has been defined by Hogic and Ibrahim as “positive inter-legality” (2021, p. 17 passim).

This being so because through said lenses, the solution for ADPFs 708 and 760 can “account for the plurality of legal normativities actually interwoven in the case at hand” (Klabbers & Palombella, 2019, p. 16), thus putting forward a robust reasoning capable of cherishing domestic law while making treasure of its relation to the international commitments Brazil agreed upon. And vice-versa. In a nutshell: the inter-legality perspective allows one to “shift toward the construction of law from the angle of the case” (Klabbers & Palombella, 2019, p. 2), all the while fully considering the entanglement of norms. 

Since both the national and international frameworks at stake clearly point at the same direction (that is, the preserving of the amazon forest and the evermore present need to mitigate climate change’s effects) and already purport for synergy between legal spheres, the inter-legality approach can be fruitful to put forward a strong precedent that states not only the intertwinement of said spheres but their accordance when it comes to environmental protection. (Recently on this blog Anmol Gulecha argued somewhat on the same direction I am now, though from a different theoretical standpoint)

A tipping point in the making?

Back to the ADPFs. So far, there has not been any definitive ruling in any of the Federal Supreme Court cases. Only minor procedural decisions, preliminary injunctions and the conduction of public hearings (on ADPFs nº 708) were released. On the latter, when determining the realization of the public hearing, Justice Barroso highlighted the importance of the case at hand by mentioning two rulings of the Inter-American Court of Human Rights (Advisory Opinion OC-23/17 and Indigenous Communities of the Lhaka Honhat Association v. Argentina) and by somewhat reckoning the need to take into account international environmental law, which may indicate an openness of the Brazilian Supreme Court to further recognize the overlapping spheres in play.  

It is important to take into account that the cases brought before the Federal Supreme Court will be the ones to set the tone for the future environmental and climate change lawsuits in the decade that has just begun. Depending on their outcomes and on the legal reasoning they put forward, the two mentioned cases may become a tipping point for the interpreting of domestic environmental provisions, for the enforcement of international environmental law in Brazil and for shedding light on their relation to the fundamental rights of the Constitution. In any case the much awaited rulings will represent a firm stand on the country’s (in)actions regarding the protection of the amazon forest and climate-change-related efforts. If the ADPFs’ ruling do not rise to the occasion, the tipping point we might be seeing in the near future will be the amazon forest’s point of no return.

Overview of Lawsuits

LAWSUITDATEAT ISSUE

ADPF 592
14/06/2019		The annulment of the procedures that have practically extinguished civil penalties and administrative fines for the deforestation of protected areas, created through presidential decree (nº 9.760/19).


ADO 54

23/08/2019		The declaration of an unconstitutional omission (for inactivity) on the part of the President and the Minister of the Environment regarding the amazon forest’s protection, with the consequent injunction to obligate them to act within the existing legal framework.

ADPF 623
16/09/2019		Restoring the public and civil society’s participation on the National Environmental Council (CONAMA), through the declaration of unconstitutionality of the presidential decree (nº 9.806/19) that excluded them from it.


ADO 59

05/06/2020		The declaration of an unconstitutional omission by the Federal Government for not releasing the “Amazon Fund” budget, since 2019 (therefore impeding activities in benefit of the forest and the environment), with the consequent release of said funds.



ADPF 708


30/06/2020		The declaration of an unconstitutional omission by the Federal Government for not releasing the “Climate Fund” budget, since 2019 (therefore impeding all activities to mitigate the effects of climate change), with the consequent release of said funds, so the country can meet its commitments on the legalized global space regarding climate change.

ADPF 747
30/09/2020		The declaration of unconstitutionality of the resolution nº 500/20 of the National Environmental Council (CONAMA), which has greatly dropped environmental protection standards on “permanently protected areas” throughout the country. 

ADPF 755
22/10/2020		The restoring of the environmental organs’ sanctioning powers, on matters of environmental crimes and administrative rules’ violations, which have been paralyzed by presidential decree (nº 9.760/19).

ADPF 760
12/11/2020		The application of the PPCDAm, in order to achieve the national goals of deforestation prevention planned for 2021 and the fulfilment of the climate goals assumed in the international sphere.

Painting Red Streets With Orange: Non-Lethal Assistance and its Theoretical Implications in International Customary Law

Posted in Editorial, Public International LawLeave a comment

By Emma Schulte

Emma Schulte is a research assistant at the University of Groningen. She’s the founding editor of the Groningen Journal of European Law and a blog editor at Jus Cogens: The International Law Blog. Twitter: https://twitter.com/EmmaSchulteEU LinkedIn: www.linkedin.com/in/emmajschulte

Introduction

On the 18th of September the Dutch Minister of Foreign Affairs, Stef Blok, announced that the Netherlands is invoking Syria’s responsibility for violating the Convention Against Torture (CAT). This development has already been extensively discussed in the blogosphere (see the Opinio Juris blog, specifically Priya Pillai’s post and the post by Yasmine Nahlawi and Sanna Sekkarie). As mentioned by Nahlawi and Sekkarie, the Syrian Ministry of Foreign Affairs fired back with a heavy accusation that the Dutch have supported terrorist organisations in Syria. While no proof has been given in support of this imputation, it makes it worth revisiting the circumstances under which the accusation came to exist: namely, the Dutch Non Lethal Assistance (NLA) programme and its supposed infringement of the principle of non-intervention.

Between 2015 and 2018, the Dutch government assisted armed opposition groups in Syria by means of an NLA programme, which entailed the provision of vehicles, electronics, and prefab containers. The Syrian government did not consent to this assistance, making the fact that it was an illegal intervention even more apparent. The Dutch response only added salt to the wound when the report commissioned by the Tweede Kamer (published in June of this year by the Dutch CAVV) refused to address the legality of NLA citing it was not “equipped” to do so (page 14).  

But: is the concept of NLA actually an infringement of non-intervention?

Under the well-known gospel of Nicaragua, it would not take a lawyer to see that NLA is not compatible with the principle of non-intervention. However, I argue that there is an inherent conflict between the ICJ’s understanding of international customary law and the reality of international customary law, and that this incorrect translation, which I will specify below, impacts the ability to provide an authoritative answer on the legality of NLA. 

Bridging the Gap Between Normative Constellations

The existence of indirect non-forcible means of intervention was confirmed in Nicaragua, where the ICJ also recognised non-intervention as a customary norm, defining it as ‘the right of every sovereign State to conduct its affairs without outside interference’. Subsequently it laid out the following rules, which will be helpful to us to examine the particular situation of the Netherlands in the following section:

  • the Court introduced the criterion of coercion as a condition for an unlawful intervention;
  • the Court further touched upon the type of assistance which would constitute an unlawful intervention. Although there is no mention of NLA, the Court does analyse assistance in the form of arming, training and funding, concluding that all types are unlawful interventions; and,
  • lastly, the Court accepts a derogation in the form of humanitarian assistance, strictly defining its scope as non-discriminatory, with a purpose of protecting human lives and ‘alleviating suffering’. The Court also notes that the content of such assistance ‘does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death’.

While the Court correctly identifies the existence of non-intervention as a customary norm, it does not particularly clarify its meaning and its content, which remains unsettled. Historically, intervention and the use of force were interchangeable concepts, indicating that the underlying element of intervention encompassed only coercion by forcible means. This is a much narrower definition than proposed in Nicaragua, and indicates a disconnect. I am of course not the only one who sees that disconnect. For example, ad hoc judges have criticised the Court for not providing enough evidence for state practise in its judgement. (See Meron at pg. 820). While it is true that there is strong evidence of opinio juris suggesting that even indirect non-forcible means of intervention is unlawful, state practice has not been sufficiently consistent in order to determine the precise content of the norm.  

Analysing the Legality of NLA

As mentioned above, the Dutch government provided a myriad of aid to Syrian opposition groups. In total, a very comfortable 25 million euros was spent on the provision of armoured vehicles and other non-lethal, but nevertheless militaristic equipment. This equipment was solely granted to opposition groups. It therefore quickly becomes apparent that the actions by the Dutch government under the Nicaragua-framework were contrary to international law. However, this is not the end of the story. The underlying theme in my analysis is the presence of contested customary norms, including intervention based on humanitarian grounds and self-determination. I build my argument upon a peculiar notion introduced by Akehurst, that conflicting customary norms can exist simultaneously. The legal value of such a grey area would entail that the situation in question is one that is lawful. To demonstrate this, let’s first consider the applicability of these norms, before considering their status in customary law. 

The evidence of the widespread brutality of al-Assad’s regime, while arguably not as severe as the genocidal policy that triggered NATO’s interference in Kosovo, provides strong grounds to justify NLA on the basis of humanitarian intervention, a contested customary norm. This is especially so since, contrary to Syria’s allegations, the assistance has only been proven to have been provided to moderate groups rather than belligerents. Furthermore, the violent suppression of opposition to al-Assad’s regime and the acknowledgement of the opposition’s legitimacy by multiple states prompt justifications based on self-determination and recognition of the opposition. These are also contested customary norms and entail a supposed legality for intervention when it is based on protecting the right for self-determination for opposition when it is recognised as the de facto government of a state.

Despite the appropriateness of these arguments, the Dutch government will not be able to validly rely on the above derogations without providing sufficient evidence for their normative status in customary law. Opponents to these derogations base their argument on one of two factors. The first is the fact that these derogations, specifically humanitarian intervention, are interpreted as constituting an intervention by direct forcible means, as in the past we’ve mostly seen this argument used in situations where troops have been deployed (see Henderson and Rodley); the second is the argument that there is a lack of opinio juris for the legality of these derogations, especially intervention that is meant to support a people’s self-determination. These are valid arguments that suggest these derogations are not customary norms. However, it is equally valid to argue the opposite, that they are customary norms:

  1. The hesitance in permitting intervention is based on the belief that it cannot be reconciled with the prohibition on the use of force. The fact that NLA is not forcible means that there is no hurdle to accepting the above derogations as customary norms. While NLA is a fairly new concept, one for which it can at most be argued to be an emerging norm, the increase in this type of assistance illustrates state practice is aligning itself with this norm (see Nowak’s comment that ‘[t]he corresponding absence of unequivocal approval or plain protest by the international community and the absence of any doctrinal elaboration gives rise to the question of whether this behaviour is indicative of a new rule or creates nothing but the illusion of legality). While it is true that there is an absence of expressed approval and protest by states, it would also be wrong not to note a very important indicator of emerging opinio juris, which is the acceptance of NLA by supranational organisations such as the European Union and the Arab League.
  2. This supposed lack of opinio juris is a difficult hurdle to overcome in arguing for the existence of customary norms such as humanitarian intervention. However, the two-element theory adopted by the ICJ (the need for opinio juris and state practice) is not the only approach to identifying rules of a customary nature. Theoretical alternatives have also been explored in the Feminist school of thought. For example, the approach adopted by Nowak and other Feminist scholars views customary law as a ‘systemisation of practice’. Nowak uses this notion as a means to explain the situation of the seeming legality NLA. She bases the idea, in part, on the work of Orford, who uses the idea of ‘systemisation of practice’ to explain the acceptance of the executive rule of the UN, she states that the ‘[e]xecutive rule thus developed through the systematisation of practice rather than through the development of detailed doctrines or norms’ (See: Orford at pg. 6). The remarks by these scholars indicate that it is not unusual for norms, whether as an abstract concept or in relation to the formation of customary law, to always need the support of opinio juris to become an accepted norm. Deviating from the two-element theory that the ICJ adopts, may therefore not entirely be considered sacrilege.
  3. Lastly, Nicaragua contains a modification clause, which states that derogations may be acceptable if substantiated by sufficient consensus amongst states and justified by a legal norm. This is evidence that derogations may be permissible under the UN framework – and therefore also becomes a very important clause. It indicates the ICJ’s willingness to adapt its translation of customary law if needed, and because of that acts as a mechanism which will ensure compatibility between both the UN framework and international customary law.

While both those arguments in favour and those against derogations for the principle of non-interference are convincing. It is not pragmatic to view these arguments as opposing, because it disconnects reality from the legal framework. Instead of searching for the dividing line, it is more efficient to accept that opposing customary norms are existing simultaneously. This way, legal discussion can become more grounded in reality, which will allow for  the legal grey area to be more effectively resolved. 

Conclusion

It is evident that by applying strictly the norms circumscribed by Nicaragua, the actions of the Dutch government would constitute an unlawful intervention. However, this approach does not effectively translate the reality of international law and the complexity of prescribing legal value to contested norms. It is in this notion that I conclude that the actions of the Dutch government were inherently not unlawful. The lack of consensus on the various existing justifications and their corresponding customary norms indicates the presence of the phenomenon where two customary norms exist simultaneously. While this is conceptually paradoxical, it is the theoretical basis for what constitutes a legal grey area. With that being said, due to the constant evolution of customary norms it is highly likely that the continuation of state practice and expressions of opinio juris with respect to NLA will eventually cause the coin to drop on its side. Now that the Netherlands has officially invoked Syria’s responsibility for its widespread human rights violations, the legal basis for why the NLA programme was carried out was only strengthened.

The Attacks against the Brazilian Amazon and its Native Populations: Are We Witnessing Crimes that Fall under the Jurisdiction of the ICC?

Posted in International Criminal Law, Public International LawTagged , , , , , , , 2 Comments

By Melina Lima, Gabriela Silva, and Maria Clara Pontes.

[Melina Lima is an International Law Professor at IBMEC in Brazil. She leads a research group on International Law and the Amazon. Gabriela Silva and Maria Clara Pontes are undergraduate law students and researchers at International Law and the Amazon research group.]

The Amazon and its native populations have been under attack since the beginning of the European colonization, which means that they have endured invasions, diseases, and deforestation, among many other threats for centuries. Nowadays, however, their situation is deteriorating rapidly, as the current Brazilian administration shows literally no concern for the environment or for the indigenous populations. This article intends to analyze this situation through the lens of international law, but before doing it we shall present some of the facts and numbers concerning the Brazilian Amazon and its autochthonous populations.  

Addressing the deforestation topic, the Brazilian Amazon has lost 34% more of its forest in 2019 than in the year before, according to INPE (country’s space agency). From 2005 on, deforestation had decreased significantly, but since 2015 it has been on the rise again. Soybean production for world markets and industrial-scale cattle ranching are two of the main reasons for the deforestation of the Amazon. The deforestation in indigenous lands has increased 64% during the first months of 2020, which is the biggest rate in the last 4 years according to INPE. Federal policies that weakened monitoring institutions and stimulate the invasion of lands that are still in process of demarcation contributed to this exponential growth. 

When it comes to demarcation of indigenous land, which is a constitutional provision in Brazil, the current demarcation figures show a significant setback. Although this constitutional norm has never been a guarantee that the demarcation would happen as it should, the situation has become even more alarming in the last two years. The former and the current administrations have not demarcated any new indigenous land. The Brazilian President, Jair Bolsonaro, stated right before being elected ‘I will not demarcate one square centimeter of indigenous land. Period’. He not only has been fulfilling his campaign promise; he is also paralyzing demarcation processes that were in the final stage. 

Other facts and figures also show that the Brazilian native peoples’ safety is in serious jeopardy. According to CIMI, out of 19 categories of systemic violence, there has been an increase in 16 of them. The cases of invasions and illegal exploitation rose from 109 to 256 in 2019. With respect to the COVID pandemic, the numbers are also disproportionate when compared with the non-native population. For instance, the mortality rate is 150% higher among indigenous. 

The facts and statistics presented above are only a portion of what is happening daily in the Brazilian Amazon and they engender many issues that relate directly to the international law field. In this text we will analyze the repercussions on the realm of International Criminal Law by examining the claim that the Amazon destruction constitutes ecocide and the possibility of describing the recent attacks against the Brazilian indigenous peoples as genocide. The analysis will reveal that the attacks against the native population is more likely to fall under the International Criminal Court’s (ICC) jurisdiction than the ecocide situation.     

The destruction of the Amazon and Ecocide

According to Polly Higgins, the crime of ecocide was supposed to be the fifth crime foreseen in the Rome Statute, along with war crimes, genocide, crimes against humanity (CAH) and crime of aggression. Although 50 out of 54 countries negotiating the treaty supported its inclusion, the crime of ecocide was removed in 1996 without much explanation. From then on until she died, Higgins dedicated her life to the endeavor of including this crime in the Rome Statute. To this end, the environmental lawyer and advocate proposed an amendment to the Rome Statute in 2010, which was submitted to the UN’s International Law Commission (ILC), but the same has not been added to the Rome Statute up until now. 

Without an express provision of the crime of ecocide in the Rome Statute and taking into consideration the principle of strict legality—which is one of the foundations of criminal law—it becomes controversial to affirm that ICC could have jurisdiction over a case whose foundation rests on actions and facts that have not been typified. The only explicit reference to environmental crimes in the Rome Statute is in the war crimes section, in Article 8(2)(b)(iv), which reads ‘[…] long-term and severe damage to the natural environment […]’. Given that the situation related to the Amazon is not connected with an armed conflict, this provision cannot be applied.   

Therefore, the best scenario in the context of the Amazon deforestation would be for the Rome Statute to adopt a text that expressly addresses environmental issues in peacetime. The concept of ecocide that Higgins suggested to the ILC—‘The extensive damage to, destruction of or loss of ecosystems of a given territory, whether by human agency or by any other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished’— would describe well what is happening now in the Brazilian Amazon and could be pertinent to other situations in the world where entire ecosystems may also be deliberately destroyed. 

In practice, it takes only one signatory country to propose such an amendment to the Secretary-General of the UN and, if the proposal is accepted, two thirds of the State parties have to vote in favor in order for the text to be added to the Rome Statute. Vanuatu has already expressed the intent to present the ecocide amendment and it is possible that it will become the fifth crime in the short to medium term. While it does not happen, the deforestation alone will probably not be the basis for a complaint before the ICC, but it can certainly make the genocide case undermentioned stronger.   

The attacks against the Amazonian indigenous peoples and the crime of genocide

The situation is different regarding the attacks against the Brazilian indigenous peoples and the crime of genocide, for it is clearly typified in Article 6 of the Rome Statute as an act ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. As the data presented in the first section of this text shows, the attacks against the Brazilian indigenous populations have increased significantly in the last two years. The word attack, in this context, may include many acts, such as the murder of indigenous leaders, government’s encouragement of mining in indigenous lands, encouragement of religious missions targeting even isolated indigenous populations and the deliberate neglect of this population during the COVID crisis. It is worth mentioning that the destruction of the rainforest analyzed before also counts as an attack against indigenous peoples because it affects them disproportionally, as it represents not only the dismantling of their home and way of life, but it also seriously endanger the preservation of their own identity as an ethnic group.

These facts among many others are the foundation of an Informative Note to the Prosecutor against the Brazilian President Bolsonaro before the ICC. The document addresses a supposed ‘incitement to genocide and widespread systematic attacks against indigenous peoples’, laying its basis both in articles 6 (genocide) and 7 (CAH) of the Rome Statute. Regarding the COVID-19 pandemic and the indigenous people, even a Judge from the Brazilian Supreme Court—Gilmar Mendes—mentioned the word genocide to describe what was happening with this population. 

It normally takes long for the Prosecutor of the ICC to decide whether or not an informative note or a complaint will actually become a case and go into trial. Regardless the time it may take for it to reach the ICC’s Chambers, many relevant elements for admissibility are apparently present in the situation of the indigenous. Firstly, Brazil is a State party of the ICC and the facts that support the informative note have been happening mainly in the last two years in the Brazilian territory. This means that the Court would have temporal, territorial and personal jurisdiction to analyze the case. Secondly, although one could argue that the ICC should be guided by the complementary principle and that states parties should have priority in judging cases under their national jurisdiction, there is no current investigation taking place in Brazil or any other state party regarding the indigenous situation in the Amazon. Finally, as for the merits, it would require a careful investigation, but the murders, the increased systemic violence, the land invasions and forced evangelization at unprecedented levels indicate that there might be grounds for a CAH and/or genocide trial before the ICC. 

Conclusion

On the one hand, the international environmental regime becomes stronger with every passing year, with institutions and rules biding an increasing number of countries; on the other hand, it is difficult to hold accountable a violator, as these same rules often do not come with enforcement mechanisms. In this context, international criminal law and its main institution (ICC) appear as a potential path, despite indirect, to accountability, since the Amazon deforestation will be a powerful reinforcement for the genocide case if charges are confirmed before trial. Ecological conscience is constantly growing and there might come a time when the destruction of an ecosystem will be considered as horrifying as genocide. But right now the fact is that it is not typified in the Rome Statute and the ICC would have to be quite audacious to try a case on this basis. As far as for the indigenous situation, the most uncertain issue is to determine if the acts against the indigenous and the forest fit in the criminal description of genocide and/or CAH as foreseen in the Rome Statute. Only a detailed investigation can tell if the facts brought into light in this text, among others not mentioned, meet the requirements in the Rome Statute. If the answer is yes, it would set a historical precedent, as the ICC has never tried a case involving autochthonous populations and environmental issues.    

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.] 

Putting Indigenous Peoples’ Participation in International Law-Making into Context: A Self-Determination Argument

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By Medes Malaihollo

Medes is a currently completing a Legal Research Master and LLM in Public International at the University of Groningen.

In international law, the doctrine of international legal personality determines which actors bear rights and obligations. Although states have often been considered as its  primary subjects, contemporary international law contains numerous rights and  obligations related to non-state actors. In light of this, arguments have been presented  that new international legal persons have come into existence such as international  organisations, individuals and collective groups. While these non-state actors are  recognised as participants in international law, it remains unclear as to what extent  they can participate in the creation of international legal norms. In that sense, not  much has changed: “it is primarily states that are capable of creating international legal  norms”. 

With that being said, it seems that indigenous peoples, as non-state actors, would have  to constitute a state to fully participate in the international law-making process.  However, few indigenous peoples have ambitions of statehood, and without this legal status, they are very much excluded from participating on the international plane.  Accordingly, one may duly wonder whether international law does in fact provide  possibilities for an indigenous people to participate at the international level. This post  argues that it does, namely through a vital international norm of these communities:  the right to self-determination. 

Indigenous peoples and self-determination 

According to contemporary international law, indigenous peoples are considered to be  one of the subjects of the right to self-determination. Although many working  definitions of an indigenous people have been proposed over time, an accurate  understanding has been provided by the ILA Committee on the Rights of Indigenous  Peoples. According to the Committee, two criteria are crucial to determine a  community as an indigenous people: a special relationship with the ancestral lands,  and self-identification as both ‘indigenous’ and as a ‘people’. These two criteria  perfectly reflect what is known as the collective individuality of a community; a  concept commonly used to determine a subgroup within a state attaining the status of  ‘peoplehood’. According to Van den Driest, the collective individuality of a community  includes two elements: an objective element and a subjective element. The objective  element refers to objectively identifiable common features of the group which  distinguish them from other groups. Examples are the common history, common  ethnic identity or origin, common language, common culture and common religion or  ideology. The subjective element pertains to a belief of being a distinct group from  other groups inhabiting the globe, and the wish to be recognised as such. In other  words, a subgroup in a state can only be considered as a ‘people’ if it is able to clearly  show a collective identity of its own, and expressly wishes to maintain, strengthen and  develop this. For example, the Sámi and the Endorois fulfill both criteria of the concept  of collective individuality and, hence, can be qualified as indigenous peoples. That way, 

they concern the ‘self’ to which the right to self-determination attaches, whereas this is  not the case for an ethnic or national minority within a state.  

As indigenous peoples unambiguously have the right to self-determination, the  question remains as to how this right applies to them. Broadly speaking, the right to  self-determination can be exercised in two ways: either internally within an existing  state (internal self-determination) or externally towards the international community  as a whole (external self-determination). Internal self-determination deals with the  right of a people to freely determine its political status and economic, social and  cultural developments within the political and legal framework of a state. Accordingly,  this dimension of the right is commonly associated with the concepts of autonomy and self-government. External self-determination, in contrast, is mostly associated with secession, the establishment of a state and its legal independence. 

For indigenous peoples, the exercise of the right to self-determination is limited to its  internal dimension. They do not have a right to external self-determination. Such  understanding can be read in Articles 3, 4 and 46(1) of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which reflect existing customary  international law. Recent studies by the UN Permanent Forum on Indigenous Issues and the UN Special Rapporteur on the Rights of Indigenous Peoples illustrate  numerous examples of indigenous peoples shaping their own destinies and governing  themselves. For instance, territorial autonomy is exercised by indigenous peoples in  Nunavut (Canada), Guna Yala (Panama) and the Navaho Reservation (United States).  Furthermore, Sámi Parliaments have been established in Norway, Sweden and Finland  that function as representative bodies and facilitate consultation with the Sámi people  on matters affecting them. Various indigenous peoples, thus, have been exercising  their right to internal self-determination. However, this does not entail a right to  unilateral secession. Indigenous peoples, consequently, cannot participate in  international law-making based on the right to external self-determination. Nonetheless, the right to internal self-determination still has a part to play in the  international law-making process. 

Participation as an appropriate expression of self-determination As the right to internal self-determination forms the anchor of the viability of an  indigenous people, the exercise of this right needs to be guaranteed at all times. That  way, the right to internal self-determination does not simply concern an end-result. It needs to be understood in terms of process and legitimacy, due to its two core aspects:  the collective identity and the freely expressed will of a people. Accordingly, the right  to self-determination as exercised by indigenous peoples concerns a procedural norm that continuously operates on a normative spectrum. This means that a state is  required to provide a system in which an indigenous people can make meaningful  choices in matters that have a serious impact on them. Indigenous participation in a  law-making process is an appropriate expression of this. The law-making process and  its results, after all, become more legitimate if an indigenous people is included in the  creation of the law. Nevertheless, the question remains: what is the scope of  participation then? 

According to Charters, the extent of the participation of an indigenous people in a law making process depends on the impact that such process and its results have on the  exercise of the right to self-determination. As this depends on the given circumstances  of each case, Charters defines this as a contextual-participation approach. This approach puts the degree of participation of an indigenous people in a law-making  process on a scale ranging from a high-end of full participation, to a lower end of no  participation at all. If a law-making process and its results heavily affect the core  aspects of the right to self-determination, an indigenous people would have a strong  claim to participate in the law-making process. For example, a domestic law that  provides private actors to exploit natural resources on indigenous lands, but does not  respect indigenous governance structures, would seriously affect the freely expressed  will of a people to determine its own future on its traditional lands. In such case, a high  degree of indigenous participation would legitimise the law-making process and its results, which provides an indigenous people a stronger claim to participate. However,  if a law-making process has little to no impact on the right to self-determination, an indigenous people would have a weaker claim to participate.  

Be that as it may, indigenous peoples are not affected by domestic laws only.  International law can also affect their way of life and the way how they can make  meaningful choices in determining their own future. As such, Charters explains that  the contextual-participation approach can be applied to an international law-making  process as well. Again, the greater the impact that a legal instrument has on the right  to self-determination of an indigenous people, the stronger its claim to participation in  the creation of the instrument. On the international level, this could lead to a degree of  participation by indigenous peoples that is similar to the degree that states participate  in an international law-making process. A good example of this is the extent to which  indigenous peoples had been involved in the negotiations of the UNDRIP. As the  negotiations of the Declaration had such an impact on their rights, and especially on  their right to self-determination, indigenous peoples’ participation clearly was to be  put at the high-end of the participation spectrum. Without this, the Declaration  otherwise would be meaningless. 

A valid objection, however, is that an increased participation by indigenous peoples at  the international level provides them with a second bite of the apple. They, after all,  have two chances to be involved in the international law-making process: first,  domestically through the state, which functions as their representative in international  relations, and, secondly, through direct participation at the international level.  Nonetheless, this critique loses its meaning when it is to be put into context, especially  when it comes to the matter of consent given by indigenous peoples. If a state  represents an indigenous people, but does so without its consent on matters that  seriously affect them, their right to self-determination would be frustrated. In such a  situation, the state cannot legitimately represent an indigenous people. Accordingly,  indigenous participation at the international level is justified.  

Conclusion 

Indigenous peoples clearly have the right to self-determination. However, this does not  entail a right to unilateral secession from the parent state. Indigenous peoples,  consequently, are restricted from participation in international law-making in the way that states do. Be that as it may, the right to self-determination is a procedural right  that is continuously exercised, in which a contextual-participation approach can be  read. That is to say, participation of an indigenous people is legitimised to a particular  degree depending on the way an international law-making process affects their rights,  especially their right to self-determination. Such an approach takes into consideration  political realities and, at the same time, balances this with indigenous peoples’  entitlement to determine their own future. By contextualising participation of indigenous peoples in international law-making, one can truly expect it to have a  meaning in furthering community values and humanising international law. Moreover,  due to its flexibility there are good prospects for adopting such an approach in  international law, especially during the global health crisis the international  community is currently facing.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.] 

The compelling need to revisit the Monetary Gold principle.

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By Nipun Kalra

Nipun Kalra is a student in law at The National Law University in Delhi, India.

Introduction

The International Court of Justice (ICJ) in the Monetary Gold case laid down the ‘indispensable third party’ (ITP) principle as a preliminary objection (hereafter mentioned as the Monetary Gold principle). It held that the Court cannot exercise its jurisdiction to adjudicate any case in which a legal interest of a third party forms the very subject matter of the Court’s decision, and that, as a consequence, the Court irreversibly adjudicates upon the rights and obligations of a third party. The Monetary Gold  principle also implies that the Court is not barred from ruling the decision for the sole reason that the legal interest of the third State might be affected by the decision. 

It has to be noted that the original judgment of the ICJ in the Monetary Gold case was narrow and case specific because it was undisputed that the gold, the subject matter of the claims, belonged to Albania. The Monetary Gold principle, however,  should not be used as a restriction on the Court’s power, in cases which involve highly sensitive issues concerning the international community at large, especially in those where the Court’s jurisdiction is already established.

The ICC and the situation in Palestine

On 22 January 2020, after concluding that there was a reasonable basis to believe that war crimes were (or are being) committed on Palestinian territory, the Prosecutor of the International Criminal Court (‘ICC’) sought a declaration from the ICC Pre-Trial Chamber that the territory over which ICC may exercise jurisdiction under Article 12(2)(a) comprised the occupied territory of Palestine (West Bank and the Gaza Strip). This territory has been claimed by Israel and hence, any ruling with respect to it, would be against the consent of Israel. 

Further, on 30 April 2020, the Prosecutor filed a response to the submissions of the amicus curiae, the victims and the involved states. As far as the territorial jurisdiction was concerned, the Prosecutor submitted that the Monetary Gold principle was inapplicable in the present case, and accordingly Israel’s consent for jurisdiction was not required.  

It was submitted by Prosecutor that ruling on the war crimes committed in Palestinian territory would be “no more than an intermediary determination for the ultimate purpose of the Court’s future adjudication” (para 38). Assuming that the Monetary Gold principle is applicable in the case, the bar on jurisdiction comes into effect only when the merits stage of the proceedings is reached. Determining the territorial jurisdiction of the Court does not entail ruling on territorial disputes between Israel and Palestine. Hence, it is possible for ICC to rule on the breaches of obligations arising from the occupied Palestinian territory without actually determining territorial disputes with a “third party”.  

The ICJ has consistently clarified that in order for a third state to be an ‘indisputable third party’, the Court’s decision must irreversibly impact the legal interest of the absent state. Since the court’s decisions are res judicata between the parties to the dispute, such impact should effectively become irreversible (Bosnia and Herzegovina v. Serbia and Montenegro, para. 120). In the Monetary Gold case, the prayer before the Court was to direct the transfer of gold from Italy to the United Kingdom. However, the Permanent Court of Arbitration had held that the title of the gold was with Albania. Therefore, had the Court decided on the transfer or possession of gold, it would have adjudicated upon the proprietary interest of Albania. Thus, the enforceability of the Court’s judgement required as a matter of prerequisite the transfer of the title to the gold from Albania.

Strict adherence to Monetary Gold Principle acts as unwarranted restriction on Court’s functioning

In Continental Shelf case, the ICJ denied the request of Italy to intervene and continued to hold the proceedings in Italy’s absence. The Court ruled that the Monetary Gold principle would only apply when the legal interest of a third State forms the very subject matter of the decision. Thus, though Italy’s legal interest might be affected, it would not form the very subject matter of the decision.

In the Nauru case, the ICJ again ruled that in no way the Court is precluded from adjudicating claims if the legal interest of an absent third State might possibly be affected but does not form the subject matter of the decision. Essentially, the Court found that it was not a prerequisite to determine the responsibility of either New Zealand or the United Kingdom in order to determine Australia’s responsibility, since no finding on the two other states could have affected Nauru’s claims against Australia. Moreover, such judicial determination would only have “influential, not controlling, precedential value” (Page 297-298, Judge Shahabudden’s Separate Opinion). 

The Monetary Gold principle is established on the basis of realities in the modern international relations where legal disputes between States are rarely bilateral. If the Court is precluded from adjudicating the disputes between the States without the presence of all the States whose legal interest might get affected, it would then lead to unwarranted restrictions on the Court’s ability to carry out its function. 

Article 59 of the Statute of ICJ should be interpreted independently   

Article 59 of the ICJ Statute provides that “the decision of the Court has no binding force except between the parties and in respect of that particular case“. This article mainly protects states that do not intervene in the proceedings. This allows the court to maintain the purely bilateral nature of disputes. However, the Court’s reliance on this article prevents it from adjudicating on disputes which are multifaceted in nature. For example, the ICJ in the East Timor case, held that the judgment of the Court would amount to a determination of Indonesia’s rights and obligations and thus in the absence of Indonesia, deciding the case would run counter to the principle of ‘State Consent’. However, the judgment did not address the right of the East Timorese to self-determination. 

Some commentators have argued that the Court cannot always satisfactorily resolve whether the third party is ‘necessary’ at a preliminary stage. The Court can leave the determination of this question until the merits stage when the Court has a clearer view of the subject matter of the decision. For example, in the Nicaragua case, the United States claimed that El Salvador was an indispensable third party to the case. The Court rejected this argument. However, it found at the merits stage that its decision in that case would affect El Salvador; yet it continued to make the determination in the absence of that state. 

Moreover, in Corfu Channel case, it was argued that Yugoslavia in its absence, could not be held liable for any wrong-doing, for that would be contrary to the principles of consent. Still, the ICJ was able to side-step these third-party issues by founding Albania’s liability on its independent acts. The court in fact, reformulated the policies into a truly bilateral dispute and then gave decisions on the dispute.  

Conclusion

Coming back to the Monetary Gold case, Albania would not have been protected by the application of Article 59 of the ICJ Statute. However, it was impossible for the court to delve into the dispute before ascertaining Albania’s rights on which Italy’s claims were based. In short, in order for the elements of the Monetary Gold principle’s applicability to be met, the protection provided by Article 59 of the ICJ Statute must be frustrated. Monetary Gold principle should be inapplicable where a judgment affects third States by implication, since that would unduly narrow the Court’s function. A non-material inference on third States’ legal position is not enough for Monetary Gold to be applicable. Such protection is already rendered by Article 59 of the ICJ Statute with the judgment’s res judicata and binding effect limited to parties.

Therefore, it is not easy for the ICC to ignore the disputes that are multifaceted in nature, like the one which has arisen in the disputed occupied territory of Palestine. Rather, the onus is put on the ICJ to revisit the Monetary Principle in order to expand its application in the modern international relations, where disputes are multi-faceted in nature. Such restriction on the Court’s power to adjudicate would act as a barrier to justice to the interested parties.  

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.] 

The Inapplicability of the Geneva Conventions to Self Determination Movements

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By Shayan Ahmed Khan

(This is a modified version of a post/article that was first published on the Cambridge International Law Journal (CILJ) Blog. It is reproduced here with the permission of the CILJ Editors)

The International Court of Justice (ICJ) has recognised the right to self-determination as an obligation erga omnes and an essential principle of contemporary international law. The sanctity of this right is also preserved and explicitly recognised under Art. 1(4) of the Additional Protocol I (API) wherein the struggles of people ‘fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination…’ are recognised as international armed conflicts. This is supplemented by Art. 96(3) of API whereby an authority representing a people may unilaterally declare their intention to be bound by the Geneva Conventions of 1949 (GCs) and API. Consequently, the rights and obligations thereto apply equally between the authority and the High Contracting Party.

The Need for the Applicability of the GCs to Self-Determination Movements after the API

With the API nearing universal ratifications (174 States) the right to self-determination seems firmly grounded under the IHL regime. However, this is not entirely the case as there is potential of such conflicts occurring between Non-State Actors (NSAs) and Non-State Parties of API as well as State Parties of API which have construed the aforementioned provisions narrowly. (See for example the Declaration of France and the Understanding of the Philippines vis-à-vis the instrument of ratification). Naturally, States resisting such an armed struggle may be reluctant to accord the extended protection of IHL to what they may deem ‘rebels’ or ‘terrorists’. At the same time, such an extended protection would also entail the legitimization of the struggle – something which the State in question may want to avoid.

As universally ratified instruments, this is where the GCs come into play. Although there is no explicit provision within the GCs, arguments have been advanced to extend it in a similar manner to the API by distinguished authors such as Schindler, Abi-Saab and Kussbach. These arguments hinge on either the provisions relating to accession codified in Arts. 60 GCI, 59 GCII, 139 GCIII and 155 GCIV or the application of the GCs on an ad-hoc basis as enshrined in Common Article 2(3) of the GCs.

Limits on the Construction of GC Accession Provisions and Common Article 2 

Their arguments rest on the use of the word ‘power’ instead of ‘State’ or ‘High Contracting Parties’, which in their opinion is a more expansive term. This argument is furthered owing to the exclusive usage of the term ‘power’ in the paragraph (3) when the rest of the Common Article 2 uses the term ‘High Contracting Parties’. Thus they argue that such a use was deliberate on the part of the drafters and was either intended, explicitly, to cater to self-determination movements, or can now be interpreted in such a manner. The latter is argued on the basis of subsequent developments in international law, which have been discussed at length below. However, even at the outset, this seems to be inconsistent with the intent of the drafters. For instance, in relation to Art. 2(3), when the ‘Special Committee of the Joint Committee’ adopted the text, the Rapporteur explained it to be applicable ‘to the non-Contracting adverse State’(emphasis added). Similarly, the Commentary to the accession provision is also among the same lines. It states that the ‘invitation is addressed to all States…’ (emphasis added). This is also consistent with the intent of the drafters at the time which deemed wars of liberation as non-international armed conflicts.

That being said, international law does not remain stagnant to the developments which take place after a convention has entered into force and thus the developments that have taken place after the GCs must also be taken into account. Here, UNGA Res. 3103 (XXVIII) (1973), among many others, is very important. The resolution was approved by 83 States with 13 against and 19 abstentions. It specifically extends the protection afforded by the Third and Fourth GCs to ‘fighters’ engaged in a struggle for ‘self-determination’. Although not binding, the language adopted by the resolution seems to, prima facie, go beyond a mere urge to the parties. Paragraph 6 of the resolution deems it a violation of international law if ‘combatant status’ is not afforded to such fighters. Yet, by only emphasising the applicability of the Third and Fourth Convention as opposed to the GCs as a whole, gives rise to the inference that the resolution did not envisage an application of the GCs in their entirety. Consequently, without prejudice to the linguistics that may have been adopted, in totality, it would appear that the resolution may be construed as nothing more than a mere urge to the parties to apply the GCs. In any event, as noted by the ICJ in Nicaragua, UNGA resolutions only serve as ‘evidence’ of the existence of customary law, the corollary being that, in and of themselves, these resolutions would not be sufficient to alter the provisions in question. Indeed, as Sassoli puts it ‘there are some 500 articles in those treaties!’. Thus in the absence of an explicit provision, it would be very difficult to reconcile these resolutions with either the accession provisions or through the application of GCs on ad-hoc basis.

The Role of Treaty Interpretation in Light of Subsequent Practice

Even for the purposes of treaty interpretation, the thinking of the drafters is not a decisive factor. As the ICJ noted in the Namibian Advisory Opinion, treaty interpretation cannot remain unaffected by subsequent developments in law (See also Art. 31(3)(b) of the Vienna Convention on the Law of Treaties, 1969). Moreover, the Court also noted that there is a duty to harmonise international law with that which is prevailing at present. However, all such ‘subsequent practice’ in the application of the GCs must be ‘concordant and consistent’, such that it is capable of altering the interpretation of the aforementioned provisions.

In 1960, the Gouvernement Provisoire de la République Algérienne (Provisional Government of the Republic of Algeria), deposited an Instrument of Accession. The Swiss Government (depository of the GCs and a party) and the French government entered a reservation to their accession prior to Algeria becoming an Independent State. Similarly, on 21st June 1989, the depository received a letter from the Permanent Observer of Palestine to the United Nations to accede to the GCs and its Additional Protocols. Almost three months later, this was rejected owing to the uncertainty within the international community as to the exact status of Palestine as a State. Thus, it appears that the very few developments that do exist, seem to favour an interpretation which accords with the ‘object and purpose’ of the convention i.e.  exclusively applicable between States except Common Article 3 of GCs.

Conclusion 

These elements, coupled with the need for an explicit provision to be inserted within API, illustrate that the provisions relating to accession and Common Article 2(3) of the GCs were not tailored to fit self-determination conflicts. Additionally, there is almost a complete absence of either ‘subsequent practice’ of the GCs being applied in such a way. In such circumstances, recourse may be sought through declarations under Art. 7(4)(b) of the Convention on Certain Conventional Weapons (CCW) which allows for the applicability of the GCs alongside the CCW and its Protocols even if the authority is not a party to API. This route should also be considered by NSAs, particularly when the State in question is not a party to API but is a party to the CCW.That said, the parties are also free to deposit deeds of commitment to abide by the GCs such as the South West Africa People’s Organisation (1981) or Palestine Liberation Organisation’s undertaking in 1982. Alternatively, through the initiative of an NGO named the Geneva Call, NSAs have agreed to implement IHL with regard to the use of landmines. This is also not an uncommon occurrence, with 50 armed groups already having deposited such deeds. Even though these deeds of commitment can only serve as an urge to the State Party to apply the GCs and API inter se but they may change the perception of the international community towards NSAs, changing the language ‘rebels’ or ‘terrorists’ to an authority pursuing a legitimate right.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.]