Monthly Archives: July 2012

Review of International Tribunal Decisions for the week of July 23, 2012

This week has decisions from the Extraordinary Chambers in the Courts of Cambodia (ECCC), International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). The subjects range from disclosure issues and protective measures for witnesses to issues of free speech.

International Criminal Law

ECCC

Case 002[1]

Memo: Response to NUON Chea’s request for disclosure of Forwarding Order in Case 003(E204)

In this Memo the President of the Trial Chamber informs that the defense that the Chamber is not seized of Case 003 and so is not in a position to issue an order regarding disclosure of matter from that case. In any event, the President noted that the Prosecution’s access to documents from Case 003 did not effect the fairness of the trial in general as this is a situation that is common in many jurisdictions. The President further characterized this as part of a defense strategy to “raise issues of no relevant to Case 002/01”. The President also noted that the defense would not be allowed to call the 500 witnesses it would like, but instead that the Chamber had already selected the witnesses it would like to hear from.

ICC

Prosecutor v. Gaddafi & Al-Senussi[2]

Decision on the “Libyan Government Application for leave to reply to any Response/s to article 19 admissibility challenge”

Background

On 1 May 2012, the Libyan government filed a challenge to the admissibility of the case against Mr. Gaddafi before the ICC and the Chamber subsequently requested the several participants in the proceedings to file responses.[3] Libya subsequently filed a request for authorization to reply to those responses.[4] The Chamber granted the request.

Reasoning

The Chamber, considering the content of the responses, held,

the triggering force and main actor in admissibility proceedings is the entity challenging the admissibility of the case, in the present case Libya, the Chamber deems it appropriate to authorize (sic) Libya to file a reply to the Responses. The Chamber emphasises (sic) that this reply is limited to the arguments raised in the Responses.[5]

Prosecutor v. Gbagbo[6]

Decision on the “Requête de la Défense aux fins d’expurgation de deux attestations” and the “Demande aux fins de mesures de protection”

Background

The defense filed two motions requesting that the identity and location of two individuals contacted by the defense not be disclosed to the Prosecution and that they be assigned pseudonyms.[7] The defense also asked for access to the threat assessment conducted for individuals associated with the accused.[8] The Chamber rejected the request for non-disclosure/redactions but granted the request for the pseudonyms.

Reasoning

The Single Judge noted that a request for redactions must be based on an “objective risk” to the safety of the witness if their identity were to be disclosed to the Prosecution and that even with a risk that redaction must be necessary to protect their safety.[9] The Judge concluded on the evidence that public disclosure would create such a risk, however, the alleged potential harm was not from the Prosecution, but based on a potential leak of their identities by the Prosecution in the filed.[10] The Single Judge therefore held that given the Prosecution’s obligation not to endanger witnesses and to not use their names during investigations thereby revealing their involvement with the Court, that there was no basis for redactions vis-à-vis the Prosecution.[11]

Regarding the threat assessment, the Judge held that since it does not relate to defense witnesses there is no need for the accused to have access to it.[12] However, the Registry should assist the defense in determining risks that may exist in respect to persons associated or perceived as being associated with the accused.[13]

International Human Rights Law

ECtHR

Fáber v. Hungary[14]

Chamber Judgment

Background

The case concerned Mr Fáber’s complaint that he was fined for displaying the striped Árpád flag, which has controversial historical connotations, less than 100 metres away from a demonstration against racism and hatred. The Court found a violation of the applicant’s right to freedom of expression.

Reasoning

Even demonstrations which might annoy or offend people were protected under Article 11 (freedom of assembly). However shocking of disturbing certain views or words used during demonstrations might appear to the authorities, democracy might be endangered if they restricted people’s freedom to assemble or to express their ideas, other than in cases of incitement to violence or rejection of democratic principles.

The flag which Mr Fáber had displayed had been perceived as provocative by the authorities. While it might have made the demonstrators feel ill-at-ease, the flag had not really disturbed the event. The Court accepted that the display of a symbol, which was ubiquitous during the reign of a totalitarian regime in Hungary, might create uneasiness amongst past victims and their relatives who could rightly find such displays disrespectful. It nevertheless found that such sentiments, however understandable, could not alone set the limits of freedom of expression.

Đorđević v. Croatia[15]

Chamber Judgment

Background

The case concerned the complaint by a mother and her mentally and physically disabled son that they had been harassed, both physically and verbally, for over four years by children living in their neighbourhood, and that the authorities had failed to protect them. The Court found multiple violations.

Reasoning

The Court observed that Dalibor had been continuously harassed and, as a result, had felt helpless and afraid for prolonged periods of time. He had also been physically hurt on one occasion. That ill-treatment had been sufficiently serious to attract the protection of Article 3 in his regard.

While the police had interviewed some children about the incidents, they had made no serious attempts to assess what had really been going on. The police had reported that the children had been pestering Dalibor but this had not been followed by any concrete action. No policy decisions had been adopted and no monitoring mechanisms had been put in place in order to recognise and prevent further harassment. The Court was struck by the lack of any true involvement of the social services and the absence of counselling given to Dalibor. It concluded that, apart from responses to specific incidents, no relevant action of a general nature had been undertaken by the relevant authorities, despite their knowledge that Dalibor had been systematically targeted and that future abuse had been quite likely.

The Court reiterated that, under Article 8, States were not only obliged not to harm individuals, but they also had a duty to act in order to protect people’s moral integrity from acts of others. Given that Dalibor and his mother had been subjected to repeated harassment, the mother’s private and family life had been negatively affected too. In the same way as the authorities had not put in place any relevant measures to prevent further harassment of her son, they had failed to protect her. There had therefore been a violation of Article 8 as well.


[1] File 20 July 2012 and posted 24 July 2012 on the internet.

[2] ICC-‘1/11-01/11, 26 July 2012.

[3] Ibid at ¶¶ 1-2.

[4] Ibid. at ¶ 3.

[5] Ibid. at ¶ 8. Internal citations ommitted.

[6] ICC-02/11-01/11, 26 July 2012.

[7] Ibid. at ¶¶ 5-7.

[8] Ibid. at ¶ 7.

[9] Ibid. at ¶ 10.

[10] Ibid. at ¶¶ 11-12.

[11] Ibid. at ¶¶ 13-17.

[12] Ibid. at ¶ 19.

[13] Ibid. at ¶ 20.

[14] Application no. 40721/08, 24 July 2012. All text is taken from the press release.

[15] Application no.41526/10, 24 July 2012. All text is taken from the press release.

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Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) A Brief Commentary

The International Court of Justice (ICJ) recently issued a long awaited judgment in a case brought by Belgium against Senegal regarding the latter’s failure to prosecute former Chadian dictator Hissène Habré.[1] Belgium based its claim on Senegal’s treaty obligation to prosecute or extradite Mr. Habré on allegations of torture and on an alleged customary duty to do the same for crimes against humanity.[2] As has been previously noted on this blog, the Court found that Senegal is in violation of its obligations vis-à-vis Belgium. This decision is interesting not just for what the ICJ said, but for what it did not say. In this brief commentary I would like to discuss the Court’s treatment of duties erga omnes and the prohibition against ex post facto criminal laws. While the Court’s decision answered the question of whether Senegal had violated its obligations, it did not provide clear answers for future application.

Duties Erga Omens

The concept of a duty erga omnes inter partes, or a duty owed to all parties to a treaty, was first announced by the ICJ in 1970 as part of some obiter dicta about the nature of international obligations.[3] This is the idea that all States have a “legal interest” in compliance with norm in question. The exact nature of that legal interest remained undefined as the case did not involve an application of the rule. It remained an open question whether or not a State needed to be somehow specifically interested in the alleged breach of the international norm to have standing to bring an action before the ICJ.

This case put the question to rest by finding that an obligation erga omnes grants standing to any State that is a party to the instrument in question. The Court held,

The common interest in compliance with the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party. If a special interest were required for that purpose, in many cases no State would be in the position to make such a claim. It follows that any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, such as those under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, and to bring that failure to an end.

[…]

As a consequence, there is no need for the Court to pronounce on whether Belgium also has a special interest with respect to Senegal’s compliance with the relevant provisions of the Convention in the case of Mr. Habré.[4]

While this may seem like a fairly simple statement it has the possibility to significantly enlarge the number and types of cases that can be brought before the ICJ.

One example could be cases brought for violations of other multilateral treaties such as the United Nations Convention Against Genocide, the International Covenant for the Protection of All Persons from Enforced Disappearance or importantly the International Covenant on Civil and Political Rights.[5] While these kinds of cases would only be brought be one State against another, it would mean that the ICJ would be responsible for interpreting the meaning of internationally protected human rights converting its work, if only partially, into that of a human rights oversight body. Such a development could bring both positive and negative developments to the field of human rights.

In one respect the ICJ could bring some for of uniformity to human rights law by filling the role of a “universal” court. In this sense the ICJ, while not reviewing the specific judgments or treaties of regional human rights systems, would be in the position to authoritatively and publically interpret quasi-universal human rights treaties. This could create a universal minimum floor for the similar rights enshrined in the universal and regional instruments. Such a development would not be undesirable form the point of view of establishing a truly universal system of human rights.

The flip side is that a court that is not human rights orientated would be in a position to authoritatively interpret the meaning of human rights obligations. The ICJ, unlike the regional human rights courts, is not made up of human rights jurists.[6] This could lead to decisions and interpretations of those fundamental rights that are less advantageous or not as broad as they would have been before a more individual rights orientated institution. Other international bodies could then adopt such approaches and interpretations because they refer to more universally applicable documents. This could have an overall negative effect on the state of human rights protections.

The Prohibition on Ex Post Facto Laws

One issue that floats in the background of the decision is the general prohibition against ex post facto laws, known as the nessun poena sine lege principle.[7] This is because one of the reasons put forward by Senegal for not prosecuting Mr. Habré was that their domestic law did not allow for such a prosecution at the time he entered the country or when the crimes were committed.[8] The ICJ ruled that Senegal must prosecute or extradite Mr. Habré, but it did not address if that prosecution would be legal in consideration of the general ex post facto prohibition. There are potentially two reasons for this.

The first reason is that under international human rights law it is permissible for a State to prosecute an individual for an international crime even if national law at the time did not criminalize that act.[9] The problem here is that we have a regional court, the ECOWAS Court of Justice, has already ruled that prosecution in Senegal before a normal court would violate the ex post facto prohibition.[10] That court in fact recommended that some form of internationalized tribunal be instituted to try the case in order to avoid such a problem.[11] The ICJ ruled simply,

The Court considers that Senegal’s duty to comply with its obligations under the Convention cannot be affected by the decision of the ECOWAS Court of Justice.[12]

A remarkably short treatment of what could be a serious issue of regarding a breach of the norm against the non-retroactivity of criminal laws. However, if one keeps in mind the discussion the Court held on the ius cogens nature on the prohibition on torture, this brevity might somehow be excusable. The problem is that by not clearly providing the basis for disregarding completely the ruling of the ECOWAS court, the exact interplay between the torture convention, customary law, the prohibition on ex post facto laws and due process is obscured. The actual legal mechanism by which Senegal would be permitted to prosecute Mr. Habré for torture (absent a valid national law at the time of the crimes) is unclear and left to be clarified by the assumptions of the reader.

The second rational to avoid the ex post facto bar is to read the decision much more narrowly. The ICJ’s judgment states that Senegal has been in violation of its duties under the torture convention, not customary international law, since Belgium’s first request for prosecution/extradition in 2000.[13] The convention’s obligation is framed in the alternative. One could therefore read the ICJ’s judgment not to mean that Senegal may prosecute Mr. Habré, only that the convention was violated because neither of the two obligations was acted upon. True, the Court specifically said,

“Senegal must […] take without further delay the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it does not extradite Mr. Habré.”[14]

However, the Court never affirmatively states that Senegal may prosecute him, only that taking one or the other action is the only way to end the continuing violation of the convention. A narrow reading such as this would also save the ECOWAS decision from complete irrelevance by giving it concrete application in this situation by baring a Senegalese prosecution.

By choosing not to explicitly outline the nature of the different obligations, the ICJ showed how its focus on inter-State relations could have obfuscating effects when deciding human rights related cases. While it now appears clear that torture is prohibited by a norm of ius cogens, the Court did not explain the relationship between this fact and the possibility of prosecution in Senegal. The Court also did not explain how (or if) the torture convention itself was enough to criminalize torture at the international level so as to avoid the prohibition on ex post facto criminal laws. In the background there is also the issue of conflicting obligations due to the ECOWAS court’s ruling. While the Court’s decision answered the question of whether Senegal had violated its obligations, it did not provide clear answers for future application.


[1] Judgment of 20 July 2012 at ¶ 1 (hereinafter Judgment).

[2] Ibid. at ¶¶ 13-14. 53-54.

[3] Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970 at ¶ 33.

[4] Judgment at ¶¶ 69-70.

[5] Article 44 of the ICCPR specifically allows for the use of other forms of dispute resolution other than the Human Rights Committee.

[6] There is the very notable exception of Justice Cacado-Trindade.

[7] Oddly enough, both the American and international terminologies are Latin, just different Latin phrases.

[8] Judgment at ¶ 76.

[9] See, ICCPR at Art. 15(1).

[10] Judgment at ¶ 110.

[11] Ibid. at ¶ 108.

[12] Ibid. at ¶ 111.

[13] Ibid.a t ¶¶ 88, 117.

[14] Ibid. at ¶ 121.

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Review of International Tribunal Decisions for the week of June 16, 2012

This week has decisions and judgments from the International Court of Justice (ICJ), International Criminal Tribunal for the Former Yugoslavia (ICTY), Extraordinary Chambers in the Courts of Cambodia (ECCC), International Criminal Court (ICC) and The European Court of Human Rights (ECtHR). The subjects range from the principle of extradite or prosecute, to protective measures, appointment of independent counsel, replacing of judges, disclosure and child care.

Public International Law

ICJ

Questions Relating to the Obligation to Prosecute or Extradite

(Belgium v. Senegal)

Background

Former President of Chad Hissène Habré, who has been in exile in Senegal after leaving power, is accused of torture and crimes against humanity by former victims of his 8-year rule.[1] Belgium complained that Senegal was in violation of its legal duties under customary law and the UN torture convention for failing either to extradite or prosecute Mr. Habré, especially after their request that they do so.[2] The Court partially agreed.

Reasoning

The Court, among the many issues it addressed, noted that Belgium alleged violations both of the UN torture convention and customary international law, the first regarding only allegations of torture and the other allegations of crimes against humanity as well as other crimes.[3] These issues being distinct, their propriety before the Court had to be determined individually. The Court found that Belgium’s claim of violations of customary international law would have been premature at the time the application was filed and so were excluded from the present proceedings and so only the issue of the UN torture convention would be addressed.[4]

The Court found that while the obligation to extradite or prosecute in the UN torture convention does not contain a timeframe for implementation, that obligation must be complied with in a reasonable time.[5] The Court found Senegal in violation of its obligation to do so since after Belgium asked for his extradition, neither a prosecution nor extradition took place.[6]

International Criminal Law

ICTY

Prosecutor v. Dragomir Milošević[7]

Decision on Motion Seeking Variation of Protective Measures Pursuant to Rule 75(G)

Background

The Applicant is an attorney assigned to Mr. Milošević for the purposes of investigating the possibility of filing an applicant for review of his client’s conviction based on the potential existence of a “new fact”.[8] The Registry informed the Chamber that while it did not appose the motion, that there should be no misunderstanding of the limited scope of counsel’s appointment and that he should not have access to the information as of right.[9] The Prosecution did not oppose the motion.[10] The Chamber granted the motion.

Reasoning

The Chamber considered that the Applicant had standing to file the motion as his activity and capacity are akin to that of counsel appointed to an accused.[11] The Chamber held that the Applicant demonstrated a legitimate forensic purpose for his request and so should be granted access to confidential inter partes filings and evidence.[12]

Prosecutor v. Popović et. al.[13]

Decision on Prosecution Motion for the Appointment of Independent Counsel to Review Material Potentially Subject to Lawyer-Client Privilege

The Prosecution received material form the Serbian government, some of which appeared to have originated with the defense teams of the Popović et. al. case.[14] The Prosecution filed a request to have an independent counsel appointed to review the material so as to protect any potential lawyer client privilege and to allow the Prosecution to respect its disclosure obligations.[15] The Chamber granted the motion to the extent that it sent a request to the Presidency of the Tribunal to have a Judge appointed to review the material in camera and take appropriate actions in this matter.[16]

Prosecutor v. Stanišić & Simatović[17]

Decision Concerning the Testimony of Witness CW-1

The Chamber reconsidered its decision to call witness CW-1 due to his anticipated intention to invoke his right against self-incrimination and the significant difficulties in arranging for his testimony. As his testimony was not indispensible for the trial, the Chamber decided that calling him would result in unnecessary delay and therefore not be in the interests of justice.

Prosecutor v. Karadžić[18]

Decision on Accused’s Application for Certification to Appeal Denial of Motion for Judgement of Acquittal Under Rule 98 Bis (Count 11)

The Accused file a motion to appeal the denial of his motion for a judgment of acquittal for taking UN peacekeepers hostage on raising the legal issue of whether their participation in the conflict would deprive them of the status of protected persons for the purposes of international humanitarian law. The Chamber agreed that the issue would affect the expeditiousness of the trial and the Appeals Chamber’s resolution would be in the interests of judicial economy.

Prosecutor v. Hadžić[19]

Preliminary Order on Prosecution Motion for Judicial Notice of Adjudicated Facts and Documents

The Pre-Trial Judge ordered the Prosecution to re-file its motion for judicial notice because it did not comply with a previous guidance on the required format for such a motion.

ECCC

Case No. 002[20]

President’s Order on Replacement of Judge

The President of the Supreme Court Chamber appointed the Reserve Judge Florence N. Mumba to sit in the place of Judge Motoo Noguchi, who resigned, pending the appointment of a permanent judge to the Supreme Court Chamber bench in order to assure that cases are heard in a timely manner.

ICC

Prosecutor v. Gaddafi & Al-Senussi[21]

Decision on the OPCD “Request Pursuant to Regulation 23bis of the Regulations”

Background

The OPCD, which is currently representing Mr. Gaddafi, filed its response to Libya’s admissibility challenge wherein it included information that it requested be subject to delayed disclosure and some information that it requested never be disclosed to the public or the other parties to the challenge.[22] The Chamber partially granted the request.

Reasoning

The Chamber found that “the extent of permanent redactions sought by the OPCD defeats the purpose of a response to an admissibility challenge. Indeed, it is the understanding of the Chamber that it may base its decision on the admissibility of the case exclusively on information which is accessible to the other parties to the admissibility proceedings. Accordingly, the OPCD may not rely on submissions and material which are not duly communicated to the other parties.”[23] Accordingly the Chamber ordered the OPCD to re-file its response to the admissibility challenge in a form that can be disclosed to the other parties to the challenge and noted, “for the purposes of its decision on the admissibility of the case it will disregard the Response as filed, and will only take into account the response as re-submitted by the OPCD pursuant to the present decision.”[24]

International Human Rights Law

ECtHR

M.D. and Others v. Malta[25]

Chamber Judgment

Background

The case concerned the inability of a mother and her children to challenge a care order and the subsequent automatic and permanent removal of the mother’s parental rights following her criminal conviction for neglect of her children, and the impossibility for her to challenge that measure before a tribunal. The Court found a violation of Article 6 § 1 (right to a fair trial – access to a court) and Article 8 (protection of family life) of the European Convention on Human Rights.

Reasoning

The Court found that the Article 6 rights of the mother and children were breached because they could not challenge the care order, even if the circumstances changed, and that the mother’s Article 8 rights were breached because she had been automatically and permanently deprived of parental rights after her conviction. It also held under Article 46 (binding force and implementation of judgments), without prejudice to any general measures required to prevent any similar violations in future, that the Maltese authorities had to provide for a procedure allowing the mother the possibility to request an independent and impartial tribunal to assess whether the removal of her parental rights had been justified. It further recommended that Malta take general measures to ensure an effective access to court for persons who have been affected by a care order.


[1]Judgment of 20 July 2012 at ¶¶ 1, 13-14, 16-17.

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶¶ 13-14, 53-54.

[4] Ibid. at ¶ 55.

[5] Ibid. at ¶ 114.

[6] Ibid. at ¶ 117.

[7] IT-98-29/1-A, 16 July 2012.

[8] Ibid. at ¶¶ 2-3.

[9] Ibid. at ¶¶ 5-7.

[10] Ibid. at ¶ 8.

[11] Ibid. at ¶¶ 11-13.

[12] Ibid. at ¶¶ 14-15.

[13] IT-05-88-A, 16 July 2012.

[14] Ibid. at ¶ 2.

[15] Ibid. at ¶ 4.

[16] Ibid. at ¶ 10.

[17] IT-03-69-T, 18 July 2012.

[18] IT-95-5/18-T, 18 July 2012.

[19] IT-04-75-PT, 19 July 2012.

[20] Case File 002/19-09-2007-ECCC-TC/SC(15), 2 July 2012 (posted 17 July 2012)

[21] ICC-01/11-01/11, 18 July 2012.

[22] Ibid. at ¶¶ 1-2, 4-5, 7-9.

[23] Ibid. at ¶ 10.

[24] Ibid. at ¶ 12.

[25] Application no.64791/10, 17 July 2012. All text is taken from the press release.

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The Geneva Conventions are Again Universal

Juba/Geneva (ICRC) – The Republic of South Sudan has acceded to the 1949 Geneva Conventions and their Additional Protocols, after a bill was passed by the National Legislative Assembly on Monday 16 July.

All the countries in the world have now signed the 1949 Geneva Conventions, making the treaties truly universal.

The Geneva Conventions and their Additional Protocols are the core of international humanitarian law, setting out rules which seek, for humanitarian reasons, to limit the effects of armed conflict. These rules protect persons not, or no longer, participating in hostilities, such as civilians, health workers and aid workers, wounded or sick soldiers, prisoners of war and other persons deprived of their liberty, and impose restrictions on the means and methods of warfare to which parties to conflict can resort.

“We are very pleased to learn that South Sudan has acceded to the Geneva Conventions. These rules which seek to protect human life and prevent needless suffering are now universal. The fact that all States have signed them puts that beyond doubt,” said Melker Mabeck, head of the ICRC’s delegation in Juba. “The Geneva Conventions must continue to be incorporated into the training and doctrine of South Sudan’s army so they are known and complied with.”

“This is an historic moment for South Sudan,” said Dengtiel Ayuen Kuur, chairman of the Committee of Legislation and Justice of the National Legislative Assembly. “These laws restricting the means and methods of warfare must be adhered to if we are to forge a path towards peace and prosperity. Today we as a nation underline our commitment to the principles of humanity even in times of war.”

The ICRC’s permanent international mandate to protect and assist victims of armed conflict derives from the Geneva Conventions. The organization provided technical support and advice to the South Sudanese government during the accession process. The ICRC also conducts training and information sessions on international humanitarian law for South Sudan’s army and armed groups present in South Sudan.

The ICRC’s operations in southern Sudan began in 1986. The organization set up a delegation in South Sudan’s capital, Juba, when the country became independent on 9 July 2011. The ICRC also has two sub-delegations in the new country, in Malakal and Wau. In South Sudan, the ICRC works to prevent violations of international humanitarian law and supports hospital and physical-rehabilitation services. It also helps conflict-affected communities to survive and become self-sufficient.

For further information, please contact:
Ewan Watson, ICRC Juba, tel: +211 912 178 946
Vassily Fadeev, ICRC Geneva, tel: +41 22 730 34 53 or +41 79 536 92 48″

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2011 US State Department Digest

The 2011 Digest of United States Practice in International Law is now available online. It can be found here. It is a record of contemporary views of the United States Government on issues of public and private international law. This volume includes such historic events as the Arab Spring.

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Review of International Tribunal Decisions for the week of July 9, 2012

This week has decision from the International Criminal Tribunal for the Former Yugoslavia (ICTY), Special Tribunal for Lebanon (STL), International Criminal Court (ICC), The European Court of Human Rights (ECtHR). They range from decisions on extension of time, issuance of arrest warrants, adjudicated facts and aliens (yes, that says aliens).

International Criminal Law

ICTY

Prosecutor v. Hadžić[1]

Decision on Prosecution Motion for Extension of Time for Disclosure of Expert Report of Reynaud Theunens

Background

The Prosecution was due to disclose an expert report by 19 July 2012 in accordance with Rule 94 bis.[2] The Prosecution filed a motion requesting an extension because the expert has been unable to finish the report due to professional conflicts.[3] The motion was denied.

Reasoning

The Pre-Trial Judge denied the motion noting that the Prosecution has been aware of its disclosure obligation since 16 December 2011 and so has had more than enough time to make sure that the report is prepared and timely disclosed.[4]

Prosecutor v. Stanišić & Simatović[5]

Decision on Second Stanišić Defence Motion for Judicial Notice of Adjudicated Facts

Background

The Accused requested that the Chamber take notice of four previously adjudicated facts and the Prosecution objected generally due to the advanced stages of the present proceedings.[6] The Chamber granted the motion in part and denied it in part.

Reasoning

The Chamber recalled that a fact must be distinct, concrete and identifiable in order for the Chamber to take judicial notice of it.[7] Several parts of the various proposed facts failed to meet this criteria.[8] The Prosecution did not object to any of the facts on the grounds that they were not relevant, that they were legal findings, that they were based on an agreement of the parties, that they were contested on appeal, that they relate to the mental state of the accused or their conduct.[9] The Prosecution did however object that some of the facts were misleading, and the Chamber partially agreed declining to admit all the remaining facts.[10] In the end, the Chamber took notice of two facts over the Prosecutions general objections.[11]

Prosecutor v. Karadžić[12]

Interim Decision on Prosecution’s Motion for Partial Reconsideration or Clarification of the Chamber’s Decision on the Accused’s Motion to Unseal ICMP Exhibits

Background

The Chamber had previously issued a decision reclassifying certain exhibits dealing with mass graves as public.[13] The Prosecution subsequently filed a motion requesting a temporary stay of the decision because those documents were received pursuant to Rule 70 and the Prosecution needed time to consult with ICMP to determine if they wanted to request the Chamber reconsider its decision.[14] The Prosecution eventually filed a reconsideration motion vis-à-vis some of the reclassified exhibits claiming that its failure to inform the Chamber of the exhibits Rule 70 status which is argued to bind the Chamber.[15] The Accused opposed the motion arguing that the claim of privilege had been waived and disputing the existence of a Rule 70 agreement in the first place.[16] The Chamber did not decide the issue an instead requested that the Prosecution supply more information.[17]

Reasoning

The Chamber considered that the failure of the Prosecution to raise the Rule 70 issue during the previous extensive litigation to cast doubt on the applicability of that Rule.[18] This is so especially considering that the claims of Rule 70 status were based on emails sent after the decision in question was issued.[19] “Accordingly, before deciding on the Motion, and in particular the issue of whether Rule 70 conditions were in place when the Chamber issued its Decision, the Chamber requires more detailed submissions from the Prosecution addressing all of the above questions, as well as further communication it had with the ICMP during the time when the exhibits at issue here were first handed over to the Prosecution, together with any subsequent communication where Rule 70 may have been mentioned. However, instead of holding an evidentiary hearing, as requested by the Accused, the Chamber considers it preferable to receive these submissions and any accompanying communication in writing. The Chamber does not consider it necessary to involve the ICMP at this stage.”[20]

Prosecutor v. Karadžić[21]

Decision on Prosecution Request for Certification to Appeal Judgement of Acquittal Under Rule 98 Bis

Background

On 28 June 2012, the Trial Chamber partially granted the Accused’s request for a Rule 98 bis judgment of acquittal finding that there was insufficient evidence to sustain a conviction on count one of the indictment, genocide.[22] The Prosecution maintains that this is a “judgment” within the meaning of Rule 108 and so will file an appeal without requesting leave to do so.[23] The Prosecution filed its leave to appeal only to preserve its right to appeal the issue later on should that be necessary.[24] The Chamber denied the motion.

Reasoning

The Trial Chamber agreed that the Rule 98 bis decision granting an acquittal can be appealed without leave from the Chamber as it is a judgment of acquittal, not a decision.[25] The Chamber, however, found that the criteria for certification had been met in case the Appeals Chamber should deem it necessary for such a finding to be made before reviewing the decision on appeal.[26]

STL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[27]

Decision on Reconsideration of the Trial In Absentia Decision

Background

The Trial Chamber issued a decision to hold a trial in absentia and defense counsel, assigned to the accused, have file a motion for the Chamber to reconsider that decision.[28] The Chamber denied the motion.

Reasoning

The Chamber held as a preliminary point that defense counsel can request a reconsideration even though they have not spoken with their clients because “[c]ounsel and client speak with one voice”.[29] Rule 140 allows the reconsideration of any decision to avoid injustice, therefore the issue can be raised.[30] The Chamber dismissed the motion because the defense failed to raise any new issue, other than general disagreement with the decision, as to why it needed to be reconsidered to avoid an injustice.[31]

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[32]

Order in Respect of 10 July 2012 Motion by the Defence of Mr. Badreddine

The Defense filed a motion requesting the Pre-Trial Judge to find that the mandate of the previous prosecution ended before he filed submissions on the confirmation of the indictment and so to declare those filing null and void.[33] The Prosecution filed a response and the Defense filed a request for authorization to file a reply.[34] The Pre-Trial Judge granted to request and set a short deadline for the reply.[35]

ICC

Prosecutor v. Gbagbo[36]

Decision on the “Prosecution’s request to redact the name of an investigator from the metadata of documents to be added to its amended List of Evidence”, the “Prosecution’s request pursuant to Regulation 35 for extension of time for disclosure and for variation of time limit to submit a request for redactions” and related issues

Background

The Prosecution seeks permission to redact the name of the investigator who discovered documents relating to the former regime of the Accused in Ivory Coast in the presidential palace and an extension of time to disclose said and other documents.[37] The Single Judge granted the motion.

Reasoning

The Single Judge granted the extension of time for disclosure in part because the confirmation of the charges hearing had been postponed thereby giving the Accused adequate time to process the information even if received after the previously set disclosure deadline.[38] The Single Judge also felt that the redactions to the metadata containing the name of the investigation are justified and so granted that part of the motion.[39]

Prosecutor v. Gbagbo[40]

Decision on the “Requête de la Défense du Président Gbagbo relative à la prorogation du délai accordé par la Chambre pour demander des mesures de protection”

The Accused submitted a request for a prolongation of the time to file for protective measures for certain witnesses (other than redactions).[41] The Single Judge considered that considering the ongoing investigations there was good reason for such a time extension, but considering the upcoming confirmation of charges hearing, only granted part of the requested extension.[42]

Prosecutor v. Mudacumura[43]

Decision on the Prosecutor’s Application under Article 58

Pre-Trial Chamber II issued an arrest warrant for Sylvestre Mudacumura for war crimes.[44] The Chamber declined to issue the arrest warrant for crimes against humanity as it was not sufficiently convinced that the alleged attacks were according to a plan directed at a civilian population as such.[45] This was the second time that the Prosecutor asked for an arrest warrant against Mr. Mudacumura.[46]

International Human Rights Law

ECtHR

Heather Moor & Edgecomb Ltd v. the United Kingdom (No. 2)[47]

Chamber Judgment

Background

The case concerned the system in the United Kingdom for dealing with complaints against companies providing financial advice and, in particular, the applicant company’s complaint about the Financial Ombudsman’s failure to publish its decision upholding a complaint made by a former client about inappropriate pension advice. The case was declared inadmissible.

Reasoning

The applicant company’s complaint that the Financial Ombudsman’s decision had not been made public was dismissed under Article 35 § 3 (b) of the European Convention on Human Rights, the Court finding that there had been no significant disadvantage. This new admissibility criterion, introduced by Protocol No. 14 in June 2010 in view of the Court’s constantly increasing workload, is intended to enable the Court to focus on cases that justify an examination on the merits.

Mouvement raëlien suisse v. Switzerland[48]

Grand Chamber Judgment

Background

The applicant association, established in 1977, is a non-profit association registered in Rennaz (Canton of Vaud, Switzerland) whose aim is to make contact with extraterrestrials. In 2001, the association requested permission from the Neuchâtel police to put up posters featuring the faces of extraterrestrials and a flying saucer, together with its website address and telephone number. The authorities (police, municipal council and the Neuchâtel Land Management Directorate) denied permission to put up the posters on the ground that the organisation engaged in activities that were immoral and contrary to public order. The Movement promoted “geniocracy”, a political model based on intellect and human cloning. In addition, a court of the Canton of Fribourg had found that it “theoretically” advocated paedophilia and incest. It had also been the subject of criminal complaints about sexual practices involving children.

Reasoning

It was not disputed that the refusal issued to the applicant association had a legal basis (Article 19 of the Neuchâtel Administrative Regulations) and that it pursued the legitimate aims of the prevention of crime and the protection of health, morals and the rights of others. Unlike the situation in other cases3 that the Court had examined, the applicant association had not faced a general ban on the disclosure of certain ideas but a ban on the use of regulated and supervised public space. As the Chamber had noted, individuals did not have an unconditional or unlimited right to the extended use of public facilities, especially in the case of advertising or information campaigns.

The Court then observed that, unlike other cases, there was no issue here concerning the efficiency of the judicial review by the Swiss courts. Five different authorities had examined the case, looking not only at the poster but also at the content of the website, and had given detailed reasons for the refusal to allow the poster, namely, the applicant association’s promotion of human cloning and “geniocracy”, together with the possibility that its ideas had led to sexual abuse of minors by some of its members. Whilst some of those reasons taken separately might not be capable of justifying the ban on the poster campaign, the Court took the view that in view of the situation as a whole, the refusal had been indispensible for the protection of health, morals and the rights of others, and for the prevention of crime.

The applicant association had claimed that the ban excessively complicated the dissemination of its ideas. The Court took the view that the limiting of the ban to posters in public space minimised any interference with its rights. As the Raelian Movement had been able to continue to disseminate its ideas, in particular through its website or leaflets, the ban on the poster campaign had not been disproportionate.

The Court therefore found, by nine votes to eight, that there had been no violation of Article 10, finding that the Swiss authorities had not overstepped the broad margin of appreciation given to them in this case, and that the grounds for their decisions had been “relevant and sufficient” and had corresponded to a “pressing social need”.


[1] IT-04-75-PT, 10 July 2012.

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶ 2.

[4] Ibid. at ¶ 5.

[5] IT-03-69-T, 10 July 20120.

[6] Ibid. at ¶¶ 1-2.

[7] Ibid. at ¶ 6.

[8] Ibid.

[9] Ibid. at ¶¶ 8-12.

[10] Ibid. at ¶¶ 13-14.

[11] Ibid. at ¶ 15.

[12] IT-95-5/18-T, 11 July 2012.

[13] Ibid. at ¶¶ 1-2.

[14] Ibid. at ¶ 4.

[15] Ibid. at ¶ 5.

[16] Ibid. at ¶ 10.

[17] Ibid. at ¶ 23.

[18] Ibid. at ¶ 16.

[19] Ibid. at ¶ 18.

[20] Ibid. at 21.

[21] IT-95-5/18-T, 13 July 2012.

[22] Ibid. at ¶ 1.

[23] Ibid. at ¶ 2.

[24] Ibid. at ¶ 3.

[25] Ibid. at ¶ 10.

[26] Ibid. at ¶¶ 11-12.

[27] STL-11-01/PT/TC, 11 July 2012.

[28] Ibid. at ¶ 1.

[29] Ibid. at ¶ 5.

[30] Ibid. at ¶¶ 6-7.

[31] Ibid. at ¶¶ 22, 27, 43, 44, 45.

[32] STL-11-01/PT/TC, 12 July 2012.

[33] Ibid. at ¶ 1.

[34] Ibid. at ¶ 2.

[35] Ibid at ¶¶ 3-4.

[36] ICC-02/11-01/11, 10 July 2012.

[37] Ibid. at ¶¶ 5-6.

[38] Ibid. at ¶¶ 8-9.

[39] Ibid. at ¶ 11.

[40] ICC-02/11-01/11, 12 July 2012.

[41] Ibid. at ¶ 3.

[42] Ibid. at ¶¶ 3-5.

[43] ICC-01/04-01/12, 13 July 2012.

[44] Ibid. at ¶¶ 57-58, 64-69.

[45] Ibid. at ¶ 29.

[46] The first decision was discussed here.

[47] Application no. 30802/11. 11 July 2012. All text is taken from the press release.

[48] Application no. 16354/06, 13 July 2012. All text is taken from the press release.

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Everything to Everyone: the ICC and Our Hopes for a Better World

Modern International Law is in many ways characterized by the proliferation of specialized international judicial institutions with the competence to hear cases involving allegations of violations of human rights, international crimes and issues of general public international law. All the courts have exercised a limited jurisdiction. The courts either have heard cases from or involving States that had accepted the competence of the court or the compulsory nature of the court’s authority was limited to a specific State or incident.[1] Using another rubric, the courts have been limited to deciding single types of cases, interstate disputes (general public international law),[2] human rights violations[3] or criminal cases.[4] Whether intentionally or not, the international community partially departed from this format when it created the International Criminal Court (ICC or Court). This departure has led to calls for the ICC to exert its influence and enter debates that fall outside its central mandate, the prosecution of international crimes. Specifically, there have been calls for the ICC to enter the debate about Palestinian Statehood and for the Court to act as a form of human rights review of criminal proceedings in Libya. By making these requests of the Court, international actors are asking the Court to fill perceived gaps in the international system.

The Issue of Palestinian Statehood

The ICC was created in order to “end impunity” for “the most serious crimes of concern to the international community as a whole.”[5] However, this jurisdiction was not based on concepts of universal jurisdiction,[6] the idea that international crimes can be prosecuted by any criminal court in the world regardless of who committed them, the identity of the victim or the location of the crime.[7] Jurisdiction before the Court is limited to those cases where the crime took place on the territory of a State party or the accused is a national of a State party.[8] A non-State party may also accept the jurisdiction of the Court.[9] The Rome Statute, setting up the Court, does not define the term “State” nor does it provide guidance on who determines what entities are States for the purposes of granting jurisdiction to the Court. This is a problem that the other international criminal courts never faced.[10]

The issue of Palestinian Statehood arose at the ICC due to a filing made by the Palestinian Authority in 2009 purportedly accepting the jurisdiction of the Court pursuant to Article 13 of the Rome Statute.[11] The Prosecutor of the ICC eventually decided that it did not rest with his office to decide what entities are States and which are not for the purposes of accepting the jurisdiction of the Court.[12] This decision led to some rather harsh responses challenging this interpretation and supporting the idea that the ICC is a proper forum to settle the issue.[13] The argument goes, essentially, that whether an entity is a State or not is a fact that can be judicially reviewed by the professional judges at the Court therefore there is no reason to defer the issue outside the Court.

Needless to say, if the Court were to decide that Palestine is a State there would be significant repercussions both legally and diplomatically around the world. The most obvious, from the perspective of the Court, would be that Palestine could create/delegate jurisdiction to the Court for prosecuting Israeli soldiers accused of committing crimes on Palestinian territory. There would also be political ramifications at the United Nations vis-à-vis Palestinian membership in that organization. Palestine has already been granted full-membership at UNESCO by the plenary body of that organization.[14] The membership of UNESCO and the UN are essentially the same.[15] It stands to reason then that a vote at the UN General Assembly on Palestinian membership would be a positive one. The reason this has not occurred is that UN membership is premised on a UNSC recommendation, which has not occurred.[16]

One way to look at the Palestinian request is as part of a larger quest to obtain recognition of its Statehood in face of the failure of the UN to take up the issue. There have been attempts to bring the issue to a vote at the UN, there was the UNESCO bid and then the ICC application. Of the three, the only judicial determination would be the ICC as the ICJ is not available to Palestine.[17] This is a better way to understand the Palestinian application. Considering the problems that would likely arise for the still new ICC regarding enforcement of any arrest warrants against Israeli officials, [18] the only real purpose of the application was the attempt to obtain recognition.[19]

Human Rights Review

Another distinction with other international criminal courts is that the ICC is “complimentary” to States and cannot pursue a case if it is under investigation, has been investigated and/or prosecuted at the domestic level.[20] The exception to this rule, making the case inadmissible, is when the State’s prosecution or investigation was undertaken where the State was unwilling or unable to prosecute the case.[21] These terms are defined in the Rome Statute as meaning those cases where the prosecution was undertaken to shield the accused, are subject to undue delay or the proceedings were “inconsistent with an intent to bring the person concerned to justice” and those cases where the judicial system is unable to act, respectively.[22] The long and the short of this principle is the ICC has the authority to take over a prosecution, notwithstanding a State’s ongoing investigation/prosecution where the Court determines the proceedings are inconsistent with bringing the accused to justice.[23] This provision was designed to prevent States from shielding accused from the jurisdiction of the Court, it was not envisaged as a review mechanism to ensure that States provide accused with a fair trial as such.[24] Likely in part for this reason, the Rome Statute does not supply standards or instructions for evaluating whether a State proceeding is fair, only references to situations where proceedings are designed to shield the accused.

Mr. Gaddafi after being taken into custody in Libya

Whether or not the ICC should have a human rights supervisory function has become a live issue in the admissibility challenge by Libya in the case against Saif Al-Islam Gaddafi. Members of Mr. Gaddafi’s appointed defense team in the Office of Public Counsel for the Defence have publically stated that he will not receive a fair trial in Libya.[25] Amicus in the case have filed a brief that dedicates pages, not to whether or not a trial will shield Mr. Gaddafi from the ICC, but to whether or not the judiciary is fair and free from executive interference and the balance of prosecutions of pro and anti-Gaddafi forces.[26] The arguments goes that if Libya will not afford Mr. Gaddafi a fair trial then it falls to the Court to assume jurisdiction and try him for his alleged crimes.

Any review of the human rights sufficiency of the Libyan courts at the moment would likely result in a fantastic description of dysfunction. And as has already been noted, there is no reason to believe that Mr. Gaddafi will receive a fair trial in Libya. The attractiveness of a human rights review function for the ICC is that it provides a mechanism to prevent human rights abuses. It is all the more appealing in the case of Libya because there is no other judicial institution (internal or international) that could hear such a claim.[27] However, any decision upholding the admissibility of the case would create practical problems especially in obtaining custody of the accused so that he may stand trial in The Hague.[28]

Everything to Everyone

The ICC’s deciding human rights issues is similar to the calls for the Court to decide the issue of Palestinian Statehood. Both instances involve situations where there is no other international body/court that is exercising independent review over the political decisions of the State or organization in question. Add to this the frustrated and failed attempts to reform the United Nations[29] and to force States to submit to outside human rights review.[30] The result is a sort of perfect storm encouraging those dissatisfied with the current state of the international order to view the ICC as a new opportunity to change the way the world works. Because the ICC is a new actor, and its role has not yet been defined, there is an opportunity to introduce a different way of doing things thereby modifying the status quo. Such efforts are consistent with the view, held in some parts, that the ICC was created in part to fill these gaps in enforcement due to failed attempts UN reform.[31]

Because of the current state of international relations the ICC finds itself at the intersection of many different and competing interests. Actors lacking another outlet to raise their issues turn to the ICC because it is available. However, convenient this may be, it does not address the underlying dilemma: should an international criminal court (and one that does not represent the entire international community at that) hear and resolve issues of general international law and conduct human rights reviews?

Judges at the ICC

As a matter of competence, there is no reason why the judges at the ICC could not hear cases involving and decide on issues of public international law or human rights. The bench is comprised of experts in international law and criminal law. The problem is rather another, that in deciding on such issues the Court could potentially exert its jurisdiction over cases involving non-States party thereby significantly expanding the Court’s mandate. Such an extension would be a robust assertion of authority in the face of resistance from the States involved who are against such decisions. It would also be a grand reframing of the purpose of the ICC. The Court was created to prevent impunity, not to oversee the admission of new States to the international community or to supervise State criminal justice systems to make sure they are in conformity with human rights law. These last two competencies more or less fall to the United Nations and human rights courts respectively.

None of this is to say that the Court should not weigh in on these issues. The issue of the validity of an acceptance of the ICC’s jurisdiction under Article 13 is something that it would seem natural for the Court to decide. While it is not directly asserted in the Rome Statute that a State must comply with an accused’s procedural rights, it is not 100% excluded either. The point is that should the Court decide to weigh in on these issues, which to date it has not, it should do so knowing that at this early stage of the Court’s development, going against the interests of States whose assistance is needed may not be the best move. This is doubly true considering that the text of the Rome Statute does not directly support such a supervisory role.


[1] One need think only in the first instance of the International Court of Justice (ICJ) which can only hear cases where all the parties effected have agreed to the court’s jurisdiction and are parties to the case. See on the second point, Monetary Gold Removed from Rome in 1943 Case (Italy v. France, United Kingdom and United States), judgment of 15 June 1953, available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=cd&case=19&code=gold&p3=4. When it comes to courts with limited compulsory jurisdiction one need only think of the International Criminal Tribunal for the Former Yugoslavia (ICTY).

[2] This would be the ICJ again, it is not a human rights court although it does from time to time take IHRL into account in the inter-State context.

[3] One example of this is the Inter-American Court of Human Rights.

[4] Again, one can think of the ICTY here.

[5] Preamble, Rome Statute of the International Criminal Court, 2187 UNTS 38544 (1998) (Rome Statute).

[6] See, Article 12, Rome Statute.

[7] Malcolm N. Shaw, International Law, 687 (6th ed. 2008).

[8] See, Article 12, Rome Statute. There is also the possibility of a United Nations Security Council (UNSC) referral, however, this is not a relevant factor for our purposes here.

[9] Ibid.

[10] The ICTY, International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) were all created with the involvement of the UNSC. Also, both the SCSL and the Extraordinary Chambers in the Courts of Cambodia (ECCC) were created with the permission and involvement of the relevant States.

[13] One such response can be found on Prof. Schabas’ blog here, http://humanrightsdoctorate.blogspot.it/2012/04/prosecutor-and-palestine-deference-to.html.

[16] The UNSC created a committee to study the idea of Palestinian Statehood in a political move that shelved the issue for the moment.

[17] Conceivably, the General Assembly could request an advisory opinion.

[18] I discussed this previously on this blog, here, https://thenewinternationallaw.wordpress.com/2012/04/05/the-prosecutor-and-palestine/. It is also worth noting the difficulties related to enforcing arrest warrants against Sudanese officials and those related to the situation in Libya.

[19] Those who disagreed with the Prosecutor’s decision also seemed to feel that Palestine satisfies the criteria of Statehood. See, Schabas’s blog, supra.

[20] Article 17(1), Rome Statute.

[21] Ibid.

[22] Article 17(2), (3), Rome Statute.

[23] I fold all the subsection of Article 17(2) into this formulation for reasons that will become clear later on.

[24] Prosecutor v. Gaddafi & Al-Senussi, ICC-01/11-01/11, Prosecution responpose to Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute, ¶¶ 27 – 32, 42 (5 June 2012).

[26] Prosecutor v. Gaddaffi & Al-Senusi, ICC-01/11-01/11, Lawyers for Justice in Libya and Redress Trust’s Observations Pursuant to Rule 103 of the Rules and Procedure and Evidence, ¶¶ 11 – 21 (8 June 2012).

[27] Libya is a member of the African Union and the African Charter on Human and People’s Rights, but has not accepted the jurisdiction of that Court to hear individual petitions.

[28] It is well known that the Libyan Authorities do not want to hand Mr. Gaddafi over to the Court.

[29] Attempts and proposals have been around for years to reform the United Nations, especially the Security Council to make it more representative amongst other things.

[30] One can think specifically of ACtHPR, Femi Falana v. The African Union, Application No. 01/2011. It has been discussed on this blog here, https://thenewinternationallaw.wordpress.com/2012/06/30/review-of-international-tribunal-decisions-for-the-week-of-june-24-2012/.

[31] Matthias Neuner, The Security Council and the ICC: Assessing the First Ten Years of Coexistence, 18 New England Journal of International and Comparative Law 283 (2012).

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