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    Archive for August, 2016

    UCL Journal of Law and Jurisprudence :CfP for Vol 6(1) (March 2017)

    By Ira Ryk-Lakhman, on 24 August 2016

    The Editorial Board is pleased to call for submissions for the first issue of 2017. The Board welcomes papers covering all areas of law and jurisprudence.

    UCLJLJ accepts articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 4th November 2016. Manuscripts must be uploaded via the submissions section on our website.

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    For further information and guidelines for authors please visit our website. For any queries, please e-mail theacademic editors

    Thoughts from Nuremberg

    By Gaiane Nuridzhanian, on 22 August 2016

    By Gaiane Nuridzhanian, PhD student at UCL

    This summer, between 1 and 12 August 2016, the International Nuremberg Principles Academy hosted the International Criminal Law Summer Academy for Junior Professionals. The Nuremberg Summer Academy brought together participants with diverse backgrounds from countries that face challenges in terms of accountability for international crimes. The Summer Academy was attended by prosecutors, investigators, judges, as well as aspiring academics, from Afghanistan, Bosnia and Herzegovina, Côte d’Ivoire, Central African Republic, Democratic Republic of the Congo, Georgia, Nigeria, Kenya, Kosovo, Kurdistan (Iraq), Syria, and Ukraine.

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    The course was designed so as to allow the participants to expand and deepen their theoretical knowledge of international criminal law. It also presented the participants with a unique opportunity to engage in debates concerning application of international criminal law in practice with state officials, prosecutors and defence lawyers practicing international criminal law at the domestic and international levels. The programme of the course also included visits to the historic sites that are closely connected to the events which gave rise to the first international criminal trials: Documentation Centre Nazi Party Rally Grounds, Dachau Concentration Camp Memorial Site, the Nuremberg Palace of Justice and Nuremberg Trials Memorial.

    The course opened with the historic overview of international criminal law from Nuremberg Trials to the adoption of the Rome Statute of the permanent International Criminal Court (ICC); with a discussion concerning the purpose of international criminal justice, relationship between domestic and international criminal courts and limitations and advantages inherent in the prosecution of international crimes before international, regional and domestic courts.

    Considerable attention was paid to the discussion of the core crimes that fall within the jurisdiction of the Rome Statute – genocide, crimes against humanity and war crimes. In his lecture, Professor Schabas of the Middlesex University School of Law, focused on the definition of the crime of genocide. He pointed out the questionable elements of the existing definition of crime of genocide. For instance, he observed that the criterion of existence of special intent to destroy the targeted group in whole or in part was not always helpful, in practice, for the purposes of establishing whether genocide indeed took place. Instead, according to Schabas, it is more useful to talk about the requirement of policy. This criterion is reflected in the Elements of Crimes of the ICC, under which the conduct that took place in the context of a manifest pattern of similar conduct is an element of crime of genocide.

    Certain other notions discussed in relation to the definition of genocide included the term ‘to destroy’, which, in fact, excluded ‘cultural genocide’ since it did not involve physical destruction. Similarly, the discussion addressed the term ‘in whole or in part’, which has been interpreted by international criminal tribunals as encompassing the destruction of a substantial part of the targeted group. Finally, the debate touched upon the existing limitation of the targeted groups to four categories – nationality, ethnicity, race, and religion. According to Professor Schabas, these four characteristics have a common denominator: they define the identity of an individual. In addition, the choice of these specific characteristics was explained by the historical events that gave rise to the notion of the crime of genocide.

    Professor deGuzman, of Temple University Beasley School of Law, discussed the definition of ‘crimes against humanity’ as well as the purpose and justification/reasoning of this category of international crimes. Distinction was drawn between the definition of the ‘crimes against humanity’ in the law and practice of various international criminal courts and tribunals. Such diverging and disputed elements included nexus to an armed conflict, the presence of discriminatory grounds, and the open-ended definition of ‘crimes against humanity’.  The Course participants also focused the debate on the contextual elements of ‘crimes against humanity’ such as the notions of ‘widespread or systematic attack’ and ‘attack directed against civilian population’. The constitutive contextual requirement of the conduct to be part of ‘a State or organisational policy’, its content and relevance were examined by the participants in the course of a brief moot court exercise. The Decision on confirmation of charges in a case arising from a situation of Kenya, served as an example.

    In addition to the definitions of ‘genocide’ and ‘crimes against humanity’, the participants benefited from an opportunity to engage in a discussion on the problematic issues concerning the definition and prosecution of war crimes, crimes of piracy, and terrorism. In the course on the lecture on terrorism, Tim Moloney, QC, of Doughty Street Chambers, presented the participants with a detailed outline of the UK legislation, as well as with the domestic practice related to counter-terrorism measures and their consequences for the individual rights.

    A separate lecture was dedicated to the question of the proposed Criminal Chamber of the African Court of Justice and Human Rights (ACJHR). Professor Jalloh, of Florida International University College of Law, delved into the issues surrounding the adoption of the Malabo Protocol, which aims to extend the jurisdiction of the future African Court of Justice and Human Rights to crimes under international law and transnational crimes. It has been shown in the course of the lecture that the proposal for a regional court in Africa, which would try crimes under international law, was not novel; it has, in fact, been mooted and debated since 1980s, and again in great vehemence in 2014 with the adoption of the Malabo Protocol.

    The future Criminal Chamber within the ACJHR would ostensibly differ from the ICC in number of key respects. For instance, the definition of the crime of genocide differs between the courts. In addition to the underlying acts enumerated in Article 6 of the Rome Statute, the Malabo Protocol also envisages that the acts of rape and any other form of sexual violence committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group may also constitute the crime of genocide; a component absent from the ICC definition. In Professor Jalloh’s opinion, the definition of genocide found in the Malabo Protocol represents a progressive development of international criminal law. It in fact reflects the findings of the International Criminal Tribunal for Rwanda in the Akayesu case that acts of sexual violence can be qualified as acts of genocide. In addition to the crimes within the jurisdiction of the ICC, the future ACJHR Criminal Chamber will be competent to try quite an extensive number of other crimes. Namely, the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, and illicit exploitation of natural resources. Finally, unlike the Rome Statute, the Malabo Protocol provides for immunity of serving head of state or government and senior officials in relation to their functions and during their term of office.

    Professor Tladi, of University of Pretoria, focused on the relationship between Africa and the ICC. He examined in detail the role allocated to, and played by, the UNSC in the framework of the ICC prosecutions and trials. He also engaged in the discussion of the decisions of the ICC and South African courts. Professor Tladi’s discussion also touched upon the question of States’ obligation to co-operate with the ICC and on the question of immunities of state officials. Tladi opined that there was no conflict between Article 27 of the Rome Statute concerning irrelevance of official capacity for the purposes of trial before the ICC, on the one hand, and Article 98 of the Rome Statute concerning state obligation regarding state or diplomatic immunities, on the other. The former reflects the relationship between the ICC and the accused, while the latter concerns states’ obligations vis-à-vis each other. On the more practical side, the participants of the course also had an opportunity to learn more about the practicalities of State Co-operation and Mutual Legal Assistance from Jennifer Schense, an International Co-operation Adviser at the ICC’s Office of the Prosecutor (‘OTP’).

    A series of lectures were dedicated to the practical side of prosecuting international crimes at international and domestic levels. These covered such topics as domestic prosecution of international crimes, investigations and the gathering of evidence, prosecutorial strategy and construction of cases, drafting of indictment and charges, and the prosecution of sexual and gender-based violence.

    Brenda Hollis, a Prosecutor at the Residual Special Court for Sierra Leone, outlined for the participants a comprehensive strategy for the investigation of international crimes and human rights violations. In her lecture she focused particularly on the collecting of evidence, which took into account the specific nature of international crimes and various nuances related to the investigations of such crimes. Jonathan Rathel, the former Head of the Kosovo Special Prosecution Office (SPRK), bolstered the practical discussion and spoke about prosecuting organized crime. He focused in particular on drafting an indictment and bringing charges, using as an example the case of trafficking in human organs prosecuted by the EULEX in Kosovo.

    Several final lectures were dedicated to the questions that have been subject to extensive discussions among the international criminal law scholars, namely the rights of the accused in the trial before the international criminal courts and tribunals and the status and rights of victims in cases and situations subject to the ICC investigations.

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    The Nuremberg Summer Academy for Junior Professionals stands out amongst a number of superficially similar events. What separates it from others is its ability to offer the participants a course that combines academic and theoretical debate alongside a more practical understanding and application of the law. Thus, theoretical discussions of some of the most debated issues in international criminal law were combined and interwoven with the expertise of practitioners in the application of international criminal law, at both the international and the domestic level. Further, the Summer Academy was mindful to bring together participants from the very countries that are in need of expertise in international criminal law. All the participants were eager to share their experience and to contribute actively to the debate on international criminal law and its future development.

    More information on the International Nuremberg Principles Academy and the events organised by it can be found at the Academy’s website.

    Georges v. United Nations: a challenge to the UN immunity

    By Gaiane Nuridzhanian, on 2 August 2016

    By Kateryna Moroz (LLM, University of Miami School of Law; Fulbright scholar, US) 

    The worst cholera epidemic in recent history erupted in Haiti six years ago. Thus far, it resulted in the death of 8,500 people and sickened more than 706,000. Public health scientists who investigated the epidemic concluded that most probably UN peacekeepers from Nepal introduced the strain into Haiti.

    As of today, opinions of international law experts around the world remain split over the question whether the Convention on the Privileges and Immunities of the United Nations (CPIUN) grants the UN an absolute immunity. In 2013, law professors and students of the Yale Law School asserted that it does not. So did the Institute for Justice and Democracy in Haiti (IJDH), which on behalf of the cholera epidemic victims, sued the United Nations (UN), Secretary-General Ban Ki-Moon, and former Under Secretary-General for MINUSTAH Edmond Mulet, for negligence, gross negligence, recklessness, and deliberate indifference for the lives of Haitian people. The question whether the American judicial system will take the side of the ordinary people, who fell victim to the UN’s negligence, is an interesting question that may well be answered in the very near future. As, usually, the Court issues its decisions within 130 days of the oral arguments (in the matter of Georges, the oral arguments were concluded on 1 March 2016).

    Background: In October 2010 the UN Stabilization Mission in Haiti (MINUSTAH) deployed 1,075 troops to Haiti. These troops were deployed from Nepal, where cholera is one of the major public health concerns. The UN stationed the troops, who were not treated for cholera, in the military bases located adjacently to the main potable water source of national importance. As a result of defective sanitation of the infrastructure, cholera-contaminated human waste flowed into the Haitian waterways. As of November 2010, public health experts recorded 7,000 cases of infection.

    American and Haitian human rights lawyers, including IJDH, filed administrative complaints with the UN on behalf of cholera victims. However, the UN dismissed these claims, relying on its immunity under CPIUN.

    In October 2013 IJDH brought a class action before the United States District Court of the Southern District of New York, on behalf of five named victims of the cholera epidemic. The claim was filed pursuant to the Federal Rule of Civil Procedure 23. The families of 8,300 individuals who died of cholera and 679,000 survivors of the disease would have benefited if the plaintiffs in Georges v. United Nations had prevailed. But the road is long and in March 2014 the US Government moved to dismiss on the grounds of immunity under CPIUN. Plaintiffs opposed arguing that the UN’s rejection of the victims’ administrative claims breached its obligation under CPIUN and thus precluded the application of immunity.

    In January 2015 the Court dismissed the case on grounds of immunity. The plaintiffs appealed, and the case is currently pending before the United States Court of Appeals for Second Circuit.

    Issues raised by the Georges case: Georges v. United Nations sought to ensure that the UN immunity did not waive the right of the victims of the cholera epidemic to a remedy. ‘The claims are that the U.N. engaged in reckless and gross negligence and misconduct bringing cholera to Haiti’, said Ira Kurzban, a partner in the Kurzban Kurzban Weinger Tetzeli & Pratt, P.A., law firm, and a board member with IJDH.

    In fact, according to Rosa Freedman and Nicolas Lemay-Hebert, Georges is a direct result of the UN’s refusal to establish any alternative mechanisms for resolving disputes of the cholera victims. This case revolves around two provisions of the CPIUN: Section 2, granting the UN immunity, and Section 29, requiring the UN to provide alternative modes of settlement for private law claims.

    In Georges, the plaintiffs argue that compliance with Section 29 of the CPIUN is a prerequisite for the establishment of immunity under Section 2. Thus, failure to comply with Section 29 constitutes a material breach of the treaty, and thus strips the UN and MINUSTAH from the protections accorded under the treaty. The trial Court indeed asserted that Section 29 was breached. Nevertheless, the Court interpreted this violation as one that does not entail repercussions for the UN. In its decision, the Court relied on Brzak v United Nations. There, however, the breach of Section 29 of the CPIUN was not one of the contentious issues before the Court, as Brzak addressed a question of a narrower scope. The case, in fact, was only concerned with the question whether the alleged inadequacies in the UN’s internal claims process for employees constituted an express waiver of immunity under CPIUN Section 2. George markedly deals with a different question. Here, the question is whether a breach of the obligations stipulated in Section 29 prevents the UN from benefiting from immunity under Section 2.

    Under Section 20 of the CPIUN, the Secretary General has the right to waive the immunity of any UN official. Wilfred Jenks concludes that the failure to exercise this option can constitute abuse of immunity (C.WILFRED JENKS, INTERNATIONAL IMMUNITIES, 41-45 (1961)), whereas some experts interpret this provision as discretionary. In any case, establishment of mechanisms to settle private claims in Haiti was not a matter of discretion, as provided by the Status of Forces Agreement (SOFA) between Haiti and MINUSTAH in 2004.

    The European courts concluded that there is a distinction between an International Organization’s activities that are core to its functions and conduct that are no different from the private entity’s conduct (discussed in Memorandum of Law of Amici Curiae European Law Scholars and Practitioners in Support of Plaintiffs’ Opposition to the Governments’ Statement of Interest). Unlike in Mothers of Srebrenica, in Georges, the MINUSTAH’s activities that resulted in a cholera epidemic, were ‘…at a mere mission support level, a part of the UN’s routine…’ (see the Memorandum, page 8). The authors of the Memorandum also raised the issue of the balance between the UN’s immunity and the individual right to remedy. They asserted that in the case of Georges there was no reason to conclude that the establishment of a standing UN claims commission to hear torts claims would affect the balance between the UN interests on the one hand, and the interests of the plaintiffs in the Georges case, on the other (see the Memorandum, page 9).

    So, if the existing mechanisms for settlement for private claims were not effective, what are then the appropriate alternatives for substantial torts claims, such as the one brought in George?

    There are good examples that may serve as inspiration. Most recently, the 9/11 Victims Compensation Fund in the U.S., or the UN’s own Iran Claims Tribunal. In fact, even prior to 9/11, funds were established for victims of the Columbine High School Shooting and the Oklahoma City Bombing (United Nations as Good Samaritan: Immunity and Responsibility, Kristen E., 16 Chi. J. Int’l L. 341 (2015-2016)). Indeed, John Culhane, argued that the U.S. government is no different from a private tortfeasor in its obligation to compensate for negligent acts (John Culhane, Tort, Compensation, and Two Kinds of Justice, 55 RUTGERS L. Riv. 1027, 1054 (2002)).

    It should be noted, that there are instances in which the UN has already been found liable for tortuous acts. Thus, in 1966 the Secretary General made a lump-sum payment to the Belgian government for the settlement of all disputes of its nationals relating to the UN Organization in the Congo (ONUC) in response to Manderlier v. Organisation des Nations Unies case. As Rosa Freedman notes, claims were settled through global settlement agreements to avoid public scrutiny.

    Proposed Remedies: The Peacekeeping without Accountability Report, for one, suggested that the Secretary General (or the government of Haiti, having regard to the UN’s views) would appoint an initial commissioner so as to establish a commission that would receive the victims’ claims. The Report also suggested that in parallel, all the relevant public health issues would be addressed.

    Conclusion: If successful, Georges may become a policy changing decision, as it will create a precedent for a legal interrelationship and codependency between Sections 2 and 29 of the CPIUN. It is also significant in ascertaining that the UN does not benefit from immunity under Section 2 of the CPIUN where it breaches its obligations under CPIUN or SOFAs. Finally, the decision may bring a sense of justice to more than 706,000 victims and to the families of over 8,500 deceased who remain uncompensated due the UN’s failure to comply with the human rights principles it promotes.