Prosecution of Environmental War Crimes at the ICC: Exalted Thresholds

This post traces the history of Article 8(2)(b)(iv) (“Article”) of the Rome Statute (“Statute”) – the codification of the first international environmental war crime. The author argues that the Article’s exacting standard renders it toothless.

Countries today are in agreement that the environment is a ‘global common’; a resource shared by one and all, not limited by sovereign boundaries. Time and again, the international community has entered into agreements to motivate member state(s) to protect and reinvigorate the environment. For instance the Paris Agreement, Kyoto Protocol and the UN Framework Convention on Climate Change are all aspirational frameworks pushing states to rethink their relationship with the environment. However, there are no real legal ramifications for the non-performance of these agreements, and their observance has largely been left open to the whims of politics and diplomacy. Moreover, these agreements are limited to state responsibility and do not percolate down to actions of individuals or other non-state actors.

International frameworks with legal consequences, such as the AP-1 to the Geneva Convention, (“AP-1”) are traditional in nature. These frameworks recognize international responsibility of states for ‘environmental destruction’ only in the backdrop of internationally recognized crimes perpetrated against ‘mankind’, such as genocide, crimes against humanity, or recently, crimes of aggression. International conventions such as the UN Convention on the Prohibition of Military or Any Other Hostile use of Environmental Modification Techniques, 1976 (“ENMOD”), removed the need to situate environmental destruction in the backdrop of a concomitant international crime. Notwithstanding, the thrust of ENMOD depends on “damage, destruction or injury” caused to the state. The terms “damage, destruction or injury” have canonically been interpreted in an anthropocentric form, meaning consequent damage to the civilian population.

Eclipsed by climate change and environmental destruction, with rising temperatures and sinking cities, mankind today has been brought face to face with a harsh reality. The environment, as a victim ofcorporate negligence, wanton human behaviour, and silent sufferers of armed conflict, has borne countless losses. The repercussions of such prolonged environmental neglect and degradation are both far ranging and immutable. Recognizing the need for inter-generational equity; the international community through its collective duty to preserve and secure the environment conferred it with independent legal protection. With the Statute in force, and the establishment of the ICC in 2002, the world saw the advent of the first ecocentric war crime.

Ingredients of Article 8(2)(b)(iv)

Successful prosecution under this Article requires that conjunctive benchmarks of “widespread, long term, and severe” damage to the environment be met in the context of an international armed conflict. The meanings of these terms are not defined within this Article, the Statute, or in secondary sources of interpretation as per the Vienna Convention on the Law of Treaties, 1969. The lack of a definition is exacerbated by Article 22 of the Statute which states that “ambiguity” should be interpreted favourably towards the accused.

The preparatory material of the Statute refers heavily to ENMOD and AP-1. Under these conventions the term “widespread” has a geographical bearing, and typically a damage of 100 square kilometres or upwards satisfies the element of “widespread” damage.

The term “long-term”, as the ordinary meaning suggests, has a temporal connotation. It refers to the continued effects of an attack. “Long-term” under AP-1 means negative environmental effects lasting a minimum of 10 years. Given the difficulty in evaluating lasting environmental damage at the time of the attack, it is likely that the drafters of the Statute viewed the quantum of 10 years as a range for understanding the term “long-term” and not a minimum threshold. Environmental impact assessments need to be carried out to gauge long-term effects of an attack. These involve significant costs and questionable efficacy.

Similarly one may look to AP-1 to understand the term “severe”, which refers to the potency of damage on the human and non-human environment. This interpretation takes us back to an anthropocentric approach; an otherwise progressive provision once again ties itself to civilian damage as a crucial factor in affixing international criminal responsibility.

Mens Rea and Military Objectives

The environment has often been the subject of wartime military attack, be it the scorched earth policy of the Napoleonic Wars to the use of  “Agent Orange” during the Vietnam War. The Article seeks to recognize the military’s strategic needs in conducting an offensive against the environment; it rationalizes that the damage being “widespread, long-term and severe” should also be “clearly excessive to the concrete and direct overall military advantage.” The Office of the Prosecutor, ICC opined that “clearly excessive” does not pertain to instances of collateral damage, which is purely a function of the proximity between civilians and military targets. Similarly in Prosecutor v Milan Martic, the ICTY held that any ensuing harm to civilian objects, such as the environment, cannot be justified in the “absence of closeness” between such objects and the legitimate military target.

Additionally, liability under this Article is confined to wrongdoings by military operatives in leadership positions. It provides a safe harbour to individuals without decision making powers in the military chain of command. “Leadership positions” are determined on the basis of an individuals’ say on the nature, timing, type, extent, and the general scope of the military attack. The military advantage is also qualified by the terms “concrete and direct”. The International Committee of the Red Cross has reflected that these terms do not justify “barely perceptible” military advantages. A military officer ordering an attack is required to demonstrate the potential military advantage and its nexus with the environmental attack.

Conclusion

Environmental crimes had been codified prior to 2002 under several international treaties in an anthropocentric fashion. This approach detracted from the damage caused to the environment, an object worthy of protection in and of itself. While the Article is certainly a harbinger in delinking environmental protection and damage from civilian harms, its exacting standard renders it toothless.      

Unsurprisingly, we are yet to see a single prosecution or investigation launched under this provision. Particularly in the context of gross environmental damage during recent day international armed conflicts, such as the Syrian War and the Ukraine War which are plagued by indiscriminate bombing, non-differentiation between military and civilian objects, and chemical warfare, which has the potential to pollute the lands and waterways of the country for generations to come. The ICC, as the only international court equipped to prosecute and convict individuals for crimes of international magnitude is wanting in realizing its potential.

Towards a Decoupled Peace

President Zelensky made an impassioned plea to the United States in his address to the US Congress on March 16th- “To be the leader of the world means to be the leader of peace”.[1]  The same day China’s Ambassador to the United States, Qin Gang, authored an Op Ed in the Washington Post titled “Where we stand in the Ukraine” in which he insisted that China did not have prior knowledge of the invasion of the Ukraine, that Taiwan is not the same as the Ukraine (which it views as a sovereign a state, while Taiwan is considered to be an inseparable part of China), that China remains interested in promoting a cease fire and providing protection to civilians, and that China is committed to an independent foreign policy of peace.[2]  He states that China supports regional and global stability. Qin Gang defines a type of regional peace that is based on security, and ironically correlates with the conception of peace as linked to security in the German Constitution, Article 24.2, which itself is increasing its defense budget significantly[3]: “The long-term peace and stability of Europe relies on the principle of indivisible security.” This signals a recognition of the relevance of regions or “neighborhoods” in which stability or peace is dependent on security.

In 2021, the US National Intelligence Council published a report on Global Trends 2040: A More Contested World that offered five scenarios for what they estimated the geopolitical context would look like by 2040.[4]  Scenario 4 is called Separate Silos, the summary explains:

“In 2040, the world is fragmented into several economic and security blocs of varying size and strength, centered on the United States, China, the European Union (EU), Russia, and a few regional powers, and focused on self-sufficiency, resiliency, and defense. Information flows within separate cyber-sovereign enclaves, supply chains are reoriented, and international trade is disrupted. Vulnerable developing countries are caught in the middle with some on the verge of becoming failed states. Global problems, notably climate change, are spottily addressed, if at all … By the early 2030s, cascading global challenges from decades of job losses in some countries in part because of globalization, heated trade disputes, and health and terrorist threats crossing borders prompted states to raise barriers and impose trade restrictions to conserve resources, protect citizens, and preserve domestic industries. Many economists thought that economic decoupling or separation could not really happen because of the extensive interdependence of supply chains, economies, and technology, but security concerns and governance disputes helped drive countries to do the unthinkable, despite the extraordinary costs.”[5]

This scenario is indicative of increased regionalism characterized by a decoupling of the networks that Mark Leonard described as essential elements of The Age of UnPeace information, trade, etc. that led to the persistent state of competition and conflict before the war in the Ukraine.  In short, this is a movement towards a “Decoupled Peace” in which the connections that increased conflict through competition are deliberately severed. Russia has been isolated by disinvestment and sanctions and it left the Council of Europe after being suspended. The European Union seeks to decouple its energy dependence on Russia by a contradictory bifurcated resort to alternative sources of oil and coal, even from governments subject to sanctions previously, and increase investment in renewable energy and nuclear energy.[6]  Nevertheless, the international community appears unable to prevent the global hunger crisis that will devastate the African continent due to the blocking of wheat, corn, barley, and fertilizer from Russia, Belarus, and the Ukraine.[7] The path from war to Decoupled Peace is undeniably tragic.


[1] Text of Ukrainian President Zelensky’s address to Congress – The Washington Post

[2] Opinion | Chinese ambassador Qin Gang: Where China stands on Ukraine – The Washington Post

[4] GlobalTrends_2040.pdf (dni.gov)

[5] P. 116

[6] Renewable energy targets (europa.eu) Europe wants more renewables to increase its energy security | EURACTIV PR European Commission declares nuclear and gas to be green | Europe | News and current affairs from around the continent | DW | 02.02.2022  Are Iran and Venezuela viable alternatives to Russian gas? — Quartz (qz.com)

[7]https://www.nytimes.com/2022/03/20/world/americas/ukraine-war-global-food-crisis.html  

ECtHR’s Lost Opportunities in its Transformative Rulings: Queer Interpretation of Right to Privacy and Protection from Discrimination

European Court of Human Rights © Christian Lemâle

Previous year the European Court of Human Rights [‘the Court’ or ‘ECtHR’] delivered some significant rulings strengthening ECtHR’s jurisprudence on Article 8 and Article 14 of the European Convention on Human Rights [‘Convention’] concerning Queer rights. The author in this article revisits three rulings of the ECtHR to argue that, nevertheless of being progressive rulings, the Court did fall short in addressing some major issues.

Firstly, in AM v. Russia, the Court ruled that Russian Court violated Trans individual’s rights under Article 8 read with Article 14 of the Convention by ending all contact between a trans woman and her children without a balanced and reasonable assertion of the legitimate interests [see here & here].

In the AM case, the Russian authorities and the applicant’s wife argued that the applicant is suffering from Transsexualism and further contended that the applicant’s intention to disclose her gender transition information to her children will impact their mental health and psychological development. This institutionalised prejudice of Russian authorities, nevertheless of ‘homosexuality propaganda law’ being held as unconstitutional in the state, exacerbates the ‘vicious wheel’ connected with prejudiced perceptions against trans individuals and a lack of education and awareness on Queer rights. The Court fails to address this elephant in the room, that how these prejudiced notions could impact the children’s education and perception about their parent’s gender identity.

When addressing the ‘best interests of the children’s, the Court had the chance to conceptualise the children’s right to non-discrimination on the grounds of their parents’ gender identity under Article 2 Convention on the Rights of the Child [‘CRC’], and the right to preserve personal relations and direct communication with both parents continuously under Article 9/3 CRC. Further, the UN Committee on the Rights of the Child General Comment no. 14 also stipulates their right to receive information on Queer Community challenges as well as gender identity and transition under Article 13 CRC and the right to education under Article 28 and, Article 29 of the CRC. Arguably, the ECtHR could have delved into significant length concerning the challenges with utilizing negative preconceptions about transgender individuals to rationalize restraining relationships and communication between transgender parents and their children.

In the second ruling, the Fedotova v. Russia, the Court ruled that Russia’s failure to provide same-sex couples with the opportunity to have their relationships formally acknowledged in form of a marriage, or in any other form is in violation of Article 8 & 10 [see here and here].

Nevertheless, the application was brought for recognition of same-sex marriage, the Court doesn’t feel adequate to discuss Article 12 [‘right to marry’] anywhere in the ruling. The Court concluded that the moral views of the majority cannot be used to deny sexual minorities access to forms of legal recognition. Taking reference from queer interpretations of the ECHR (here and here), which consider the inherent heteronormative (i.e. bi-genderism) notion of most of the Convention’s rights and how to transgress this dialectic. Regardless of the fact (which is still unclear), whether the applicant didn’t include Article 12 or not, the Court itself could have incorporated Article 12 of its own volition.

Not only Supreme Courts of other jurisdictions [the US and South Africa] but also the international institutions like Inter American Court of Human Rights [‘IACtHR’] have rejected the anti-majoritarian notion. It can be argued, that the Court’s rationale of Schalk and Kopf v. Austria, i.e. the appreciation of the majority opinion, remains viable. Furthermore, it can be argued that the ECtHR entirely embraces Article 12’s “heterosexual structure,” principally rendering the article inapplicable to same-sex relationships.

The second issue is the necessity of the non-discrimination principle under Article 14. The applicants did claim on Article 14, however, the Court concluded that it was not relevant because it heretofore ruled the violation of Article 8. Since Dudgeon v. UK, it has been a well-established tenet of the ECtHR that rules that discrimination does not need to be investigated if it is not “a crucial element of the case“. It is unrealistic to contend that the lack of legal recognition does not have a severe discriminatory intent in a nation where same-sex individuals are continuously stigmatised and marginalised, where even the Constitutional Court supported the law on prohibition on “homosexuality propaganda.”

Lastly, in the  X v. Poland case, the Court ruled that there had been a violation of Articles 8 and 14 of the Convention after the domestic courts had refused to grant custody of the child on the grounds of the mother’s sexual orientation [on mother’s relationship with another woman].

Nevertheless, the observations that the Court concluded in its rationale, which was first observed in the Hoffmann v. Austria and have been repetitively reaffirmed in many of its rulings about allegations of discriminatory treatment against divorced parents, the Court overlooked an outstanding opportunity to state unequivocally that a parent’s sexual orientation does not influence their parental capabilities. The Court could have gone a step forward like it did in Vojnity v. Hungary, where the Court made clear that parents’ religious beliefs per se cannot influence their capacity to raise their children.

In Atala Riffo v. Chile, the IACtHR concluded that the Chilean Courts’ judgement to take children from their homosexual mother’s custody based on her sexual orientation was discriminatory, emphasising that ‘an abstract reference to the child’s best interest… without specific proof of the risks or damage to children that could result from the mother’s sexual orientation’ is not acceptable’

What is more disappointing is that the third-party intervention also highlighted Poland inequalities and prejudices in legal and practical matters concerning rainbow families and the attitude towards the Queer community being negative and Queerphobic. Later, the same was also emphasized by Judge Wojtyczek in his dissenting opinion. However, the Court still neglected to address this concern.

Conclusion: The Test Continues

These judgements are undoubtedly significant and are progressive in protecting trans parents’ rights, same-sex marriage recognition and discrimination on gender identity & sexual orientation. The author doesn’t question their contribution, however, the abovementioned arguments do signify the ECtHR’s inherent narrow approach in Queer Interpretation of Article 8 and 14. The ECtHR’s upcoming opportunities here, here and here, will further demonstrate the extent to which the Court is inclined to tread unprecedented ground in terms of acknowledging rainbow family relationships.

Chronicles of an Unsung Village:  Analysing the legality of a Chinese Hamlet in Arunachal Pradesh through an International Law Perspective 

The term “territorial integrity” has a broad definition, embracing both territorial sovereignty and territorial preservation. The principle’s origins may be traced back to the Treaty of Westphalia, which established the territorial integrity and non-intervention principle as two key principles in international law in 1648. The idea of territorial integrity is incorporated into the UN Charter’s first chapter, as evidenced by the phrase “All members shall refrain from threatening or using force against the territorial integrity of any state…”

Many international treaties, such as the Organisation of Arab States (1948), the African Union (2000), and the Helsinki Final Act (1975), emphasise the need for territorial integrity protection. While highlighting the significance of a nation’s territorial integrity in his magnum opus, Just and Unjust Wars, Michael Walzer noted that it is founded on the assumption of non-interventionist approaches by states to safeguard a nation’s internal as well as external sovereignty. It ensures the integrity of a country’s border and denotes a country’s autonomy within its own borders. Unfortunately, nations are often victims of territorial integrity violations, and India is one of them this time. The recent building of a hamlet by China in Arunachal Pradesh, as verified by satellite imagery, poses a significant threat for India’s territorial integrity. “The Chinese foreign ministry has justified this construction on the grounds of construction on its own territory and has labelled it a subject of China’s sovereign rights,” according to media sources. Without a doubt, China has long asserted Arunachal Pradesh as part of its territory; however, India has always denied this claim by asserting sovereignty over the north-eastern state. The author in this article seeks to show that China’s actions amount to a violation of the established principle of non-intervention, a violation of UN Charter Article 2(4) against the background of this unlawful construction .

Violation of the Non-Intervention Principle

China’s building of a hamlet in Arunachal Pradesh, a state under India’s territorial sovereignty, is a breach of the non-intervention principle. The principle basically asserts that no country can influence or engage in the internal affairs of another nation, either directly or indirectly. It is based on the principle of preserving international peace and order while respecting each nation’s geographical boundaries. “The concept of non-intervention is a consequence of the principle of sovereign equality of States since it bans States or groups of States from intervening directly or indirectly in the internal or external affairs of other States,” the ICJ said in Nicaragua v. United States. In the Lotus Case (France v. Turkey), the PCIJ said that “the first and main restraint placed by international law upon a state is that a state may not use its authority in any form in the territory of another state.” As a result, every State must be able to conduct its activities without intervention from the outside world. The concept is fundamental in international law and it has been designated as a ‘jus cogens restriction,’ as also shown by the UN Charter and the judgements in the Nicaragua and Lotus cases, in other words, the concept has been elevated to the level of customary international law, and non-compliance is disallowed, subject to specific limitations. Scholars have often used terms like “sovereignty,” “state dignity,” “inviolability of state territory,” and “jus cogens” to emphasise the principle’s critical role in preserving a nation’s territorial integrity. The ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty 1965, G.A. Res. 2131 (XX)’ also recognises it and by the International Court of Justice in the issue of Armed Activities on Congo’s Territories (DRC v. Uganda). China’s non-interventionist policy is constantly criticised, notwithstanding its importance.

China, without a doubt, has strongly proclaimed the non-interventionist stance at the Bandung Conference and on countless other occasions, but its interventionist acts have exibited that there is a contradiction between China’s words and deeds. China, as the world’s economic and military superpower, has often crossed international borders to further its own objectives. Similarly, China has engaged in “quiet intervention” by erecting Hamlets on Indian soil, thus intervening in India’s internal issues. China participates in certain interventions quietly, but refuses to use the word “intervention” to excuse its intrusive behaviour. China is promoting itself as a “New Assertive China” in the guise of constructive involvement. As a result, it would not be inaccurate to remark that China’s uncertain foreign policy is a double-edged sword. On the one hand, it has the potential to provide the best possible results, on the other side, it is frowned upon.

The violation of UN Charter’s Article 2(4)

Two cornerstone concepts of international law are reflected in Article 2(4) of the UN Charter: first, the principle of non-intervention, and second, the sovereign equality of all countries. The usage of the phrase “refrain from using force against territorial integrity” in Article 2(4) of the UN Charter encompasses unlawful expansion into the borders of other states as well as cross-border occurrences that infringe on the nation’s territorial sovereignty. Applying this Article to China, as a UN Charter member, the building of a village in Indian territory of Arunachal Pradesh is comparable to cross-border unlawful conduct, thus breaching India’s territorial sovereignty and the UN Charter’s aims, as defined under Article 2(4) of the UN Charter. Furthermore, China cannot use Article 51 of the UN Charter’s right of self-defence mechanism since the condition of a “armed attack by another nation” is obviously lacking in the present situation, as India has not initiated any kind of military attack against China’s village development.

Conclusion

In conclusion, China has placed a question mark on the implementation of the above cited principles by establishing an apparent Hamlet inside India’s geographical boundaries, based on a study of a globally recognised legal framework to safeguard a country’s territorial integrity. The alleged Sino operation has not only violated India’s sovereignty in the area, but also the recognised principle of non-intervention, as well as the UN Charter’s Article 2(4). The well-established concept of Non-Intervention, as its name indicates, demands a state to refrain from interfering in the internal affairs of another state, either directly or indirectly. As a signatory to the United States Charter, China is obligated by its regulations, which stipulate in Article 2 that the principles of non-intervention and sovereign equality of all nations are the cornerstones of international law. China, on the other hand, has failed to comply with both. China has even gone so far as to breach other Treaty duties, including the requirement in the Declaration on Friendly Relations, the Declaration on the Right to Development, and the Manila Declaration that nations maintain each other’s territorial integrity. Though the Indo-China Border Dispute extends back centuries, the Sino side’s continued violations of international law reveal that diplomatic discussions have been ineffective, and there is a foreshadowing of a catastrophic confrontation to come.

Migrant Worker Women Advancing Gender Equity through the USMCA

Men only, 1835 years old. 

In 2021, seeing a job posting with those words is startling. Shocking even. But more than a year into a world-changing pandemic that has pushed millions of women out of paid work, U.S. employers continue to discriminate against women, posting ads like that one. To evade legal consequences, U.S. businesses discriminate in Mexico, hiring men to work in the United States with temporary H-2 guestworker visas while turning women away. Other U.S. businesses discriminate by hiring women but channeling them into lower-paying jobs with poorer conditions than those they hire men for. Although the U.S. government knows that H-2 employers discriminate against women, it has done little to stop them. 

For more than fifteen years, since I founded Centro de los Derechos del Migrante, Inc. (CDM)—the first transnational workers’ rights organization based in Mexico and the United States—I have heard from women in Mexico about patterns of abuse in the U.S. H-2 programs. Migrant women have courageously spoken out about blatant discrimination in H-2 recruitment and hiring, sexual harassment and other violence against women at work, unfair pay, and unlawful working conditions. Women report discrimination in industries ranging from Maryland’s blue crab processors to fruit and vegetable sorting. Sex discrimination persists in H-2 labor supply chains even though U.S. law prohibits employers and labor recruiters from discriminating against women. Laws prohibiting discrimination protect all women who work in the United States, even if businesses hire them outside of the country.

Today, migrant women continue the fight for gender justice. In March, in honor of Women’s History Month, CDM and workers’ rights organizations across North America joined migrant women in filing the first viable state-to-state complaint under the new United States-Mexico-Canada trade agreement (USMCA). The USMCA’s labor chapter, Article 23, requires the United States to enforce its anti-discrimination laws, including Title VII of the Civil Rights Act of 1964. In failing to root out discrimination in H-2 recruiting, hiring, and employment and neglecting to ensure gender equity in the program, the United States is violating Article 23. 

In the complaint, we collectively make three demands:

  1. The U.S. government must end sex discrimination in the H-2 guestworker programs once and for all.
  2. The government must ensure that all workers have access to Legal Services Corporation-funded civil legal services. (Without lawyers working in solidarity with them, it is nearly impossible for migrant women to access justice through U.S. courts.)
  3. The government must investigate discrimination complaints from women in the H-2 program under Title VII of the Civil Rights Act, rather than ignoring or summarily dismissing them.

And to increase pressure on the Administration, we are filing a supplemental complaint with Professor Sarah Paoletti, a Practice Professor of Law and the Director of the Transnational Legal Clinic at the University of Pennsylvania School of Law. The supplement will address the U.S. government’s obligations under the ILO and international human rights law to end discrimination in the H-2 program.

We have reasons to be hopeful that the USMCA can serve as a tool to improve access to transnational justice for migrant workers. Unlike NAFTA—the old trade agreement with its toothless labor side accord—the USMCA has a mechanism for migrant workers and their advocates to push governments to comply with labor and employment laws—or face sanctions. Concretely, this means that the U.S. government may face sanctions if it maintains the status quo and ignores the grave abuses that the petitioners report in the H-2 program. It means that the U.S. Equal Employment Opportunity Commission must end its practice of failing to investigate and meaningfully respond to migrant women’s discrimination complaints. And it means that the U.S. Departments of Labor and Homeland Security must stop allowing H-2 employers to discriminate without consequences. In receiving and reviewing our petition, the governments are legally responsible for showing us that they meant what they said about protecting migrant workers’ and women’s rights when they signed the agreement. 

The historic process for the migrant women petitioners began in Mexico, where we filed the USMCA complaint with the Mexican government. Mexico formally accepted the complaint and is now investigating discrimination and other abuses in the agricultural and protein processing industries, the industries in which the petitioners work. Earlier this month, Mexico asked the United States to honor its obligations under the USMCA and invited cooperation in doing so. And now the Biden-Harris Administration has the opportunity to make good on the promise of the USMCA and proactively address the urgent issues we raise in the complaint.

For too long, U.S. businesses have used the H-2 programs to bypass our civil rights and labor laws. Left without government oversight, H-2 employers have enacted their sexist, racist, and ageist ideas about the kinds of workers who maximize profitability. Sex discrimination in the H-2 program harms not only migrant women from Mexico but also U.S.-based workers. 

Over the next year, as we rebuild the U.S. economy for a sustainable and equitable recovery, justice for migrant women must be at the fore of the government’s labor and employment policies and practices. And next Women’s History Month, we look forward to celebrating meaningful, sustainable reforms in the H-2 program that will end discrimination against migrant women and promote access to justice. 

We would be grateful for your support in standing with migrant worker women to fight against discrimination. Please email me (rachel@cdmigrante.org) to join the supplemental complaint on the U.S. government’s obligations under the ILO or to submit an amicus in support of migrant worker women. 

The next step for the International Criminal Court: Mandatory trainings on sexual and gender-based crimes for all judges

In a report published on September 30, 2020, the Independent Expert Review (IER) raised their concern “about the possible lack of experience, knowledge and interest in international criminal law of some judges”. The same day, the Advisory Committee on the Nomination of Judges (ACN) also released its report, evaluating the suitability of the nominees for the position. A few days later, candidates’ answers to a questionnaire prepared by States Parties were shared. In analysing those different documents, we noticed that several judicial nominees generally lacked experience and/or understanding of what sexual and gender-based crime (SGBC) entailed.

We therefore welcome the IER’s recommendation R174 that the “Presidency should design and organise a compulsory, intensive and comprehensive Induction Programme of sufficient duration for new Judges” that would be tailored to each judge and cover SGBC. The same holds true for the Continuing Professional Development Programme, also proposed in the report. It is now for the Assembly of States Parties (ASP) to make these written recommendations a concrete reality that will be beneficial not only for the Court, but also first and foremost for SGBC victims and affected communities.

This post explains the reasons why we need to have a Bench that has experience in and knowledge of SGBC. It supports the call for mandatory training of judges on this subject.

1. The Imperative: Rights of the victims and Quality of the decisions

The Rome Statute is a progressive instrument offering the necessary tools to put an end to the impunity of SGBC. What we now need are judges who know how to use this tool effectively.

However, this year’s list of candidates speaks for itself: out of the twenty candidates, twelve claimed to have experience handling SGBC cases. From those twelve, five seemed to understand SGBC from the limited prism of domestic violence against women and/or children, or that sexual violence occurs against women; their answers utterly failed to explicitly acknowledge that men and boys could also be victims of SGBC. Only four candidates demonstrated experience in dealing with gender-based violence.   

This is problematic. Judges should hold a basic knowledge of SGBC for, at least, two reasons: to uphold victims’ rights and maintain the quality of the decisions.

The Rome Statute is unequivocal: victims should be put at the centre of ICC proceedings. However, when victims of SGBC face a Bench that has no prior experience or knowledge of SGBC, their right to participate is affected. First, judges play an essential role in ensuring that victims do not suffer from secondary victimisation during the proceedings. Second, as shown in the ICC’s first reparation case (Lubanga), a Bench that lacks a gender perspective and understanding of SGBC is more at risk of making reparation orders that will fail to be effective for and inclusive of SGBC victims.

The lack of knowledge regarding SGBC may also undermine the legitimacy of the Court and the quality of its rulings. The ICC has already been criticised for its decisions that lacked a sensitisation to SGBC (see here and here). While the onus for including SGBC in criminal charges  is on the Office of the Prosecutor (OTP), a Bench that does not have a knowledge of SGBC or is tainted by stereotypes will certainly not contribute to the successful prosecution of these crimes. This affects the entire proceedings, from the confirmation of the charges (see Bemba, Katanga and Ngudjolo cases where charges of SGBC were not confirmed due to the judges’ misunderstanding) to the sentencing  (see Judge Odio Benito dissenting opinion  on her colleagues’ failure to consider sexual violence).

2. The solution: Providing mandatory training for judges on SGBC

The candidates’ lack of knowledge and expertise related to SGBC is deeply problematic considering that, if elected, they are likely to rule over cases of SGBC during their nine-year mandate. In its 2019 report on preliminary examination activities, out of the nine situations that were under examination by the OTP, eight were situations where the OTP had a reasonable basis to believe SGBC had been committed.

We support the call for mandatory judicial training on SGBC at the ICC. Its importance cannot be overstated. The International Organisation for Judicial Training emphasised that judicial training is “essential to ensure high standards of competence and performance”. Even the ICC Code of Judicial Ethics calls on judges to take “reasonable steps to maintain and enhance the knowledge, skills and personal qualities necessary for judicial office”. And, although mandatory training was not a topic addressed by the ACN, it still formed part of the many issues addressed by the IER report (see para.417 of the report).

As explained by the Justice Initiative in June 2020, “the ICC presents a new, unfamiliar legal framework for most incoming judges”. The IER also reported that the ICC “has many distinctive features not repeated elsewhere”. Newly elected judges may not be familiar with the Rome Statute system, as it is one of a kindthe possibility to adjudicate gender-based crimes being an example of its peculiarity.

The Paris Declaration of 2017 advocates for the training of international judges. In several countries (e.g., Canada, the US, Malawi and the UK), judicial trainings are attended by judges. Belgium’s awareness of the lack of its judiciary’s knowledge on sexual violence even led to the adoption of a law making it mandatory for judges to partake in training on sexual violence.  The ICC must follow this practice and organise mandatory trainings on SGBC for its judiciary.

***

We understand that some judges may be resistant to the idea of receiving judicial training. Some of them might “find continuing professional development an anathema to the standing of a judge of an international criminal court” as noted by the IER. However, in an era where SGBC is a clear component of armed conflicts, the poor record of successful prosecution of SGBC before the ICC is no longer acceptable—especially when part of the solution could come simply from a better understanding from the Bench. This is a fair and necessary requirement for those who want to serve on the criminal court that the whole world has its eye on (for better or worse).

On Hiroshima and Nagasaki and the World at 75 years by Nobel Peace Prize Laureate Adolfo Pérez Esquivel (in Spanish)

Hiroshima y Nagasaki

Y el mundo a 75 años

El avión sobrevoló la ciudad de Hiroshima, los pilotos a cumplir su rutina  de  guerra, arrojar las bombas sobre territorio enemigo y regresar a la base. Ese día las instrucciones de sus jefes fue que llevaban un arma especial,   arrojar la bomba en el objetivo asignado y alejarse lo más rápido posible del blanco. El día 6 de agosto el cielo  estaba sin nubosidad y el comandante feliz  porque habían puesto el nombre de su madre Enola Gay al avión.

 Cuando arrojaron la bomba atómica sobre la ciudad de Hiroshima algo se quebró en su interior y el piloto gritó -¡Dios mío,… Dios mío… que hemos hecho!…..en ese minuto el mundo cambió. El presidente Truman de los EEUU dio la orden de arrojar la bomba sobre Hiroshima, una ciudad civil sin bases militares,  la bomba atómica  desato  el horror, la destrucción y muerte se sobre  la  humanidad.

Los pilotos regresaron con la muerte en el alma, ya nada sería igual. El gobierno de Truman buscó todo tipo de justificación para justificar lo injustificable,  Japón ya estaba vencido antes de las bombas. La crueldad humana no tiene límites, como no la tuvo el nazismo en los campos de concentración  contra los judíos.

El presidente Truman  impartió la orden de  arrojar la segunda bomba atómica el día 9 de agosto de 1945 sobre la ciudad de Nagasaki.  El “éxito de las masacres” fue total, necesitaba  mostrar el poderío de los EEUU al mundo y en especial a la Unión Soviética, su aliado circunstancial en la guerra.

Una madre víctima de la bomba en Nagasaki deja una carta a su hija de dos años que sobrevive, es de una ternura infinita  donde le dice como cambió la vida, que su amor permanece más allá de la muerte y  que la recuerde.

En mis viajes a Japón en varias oportunidades estuve en  Hiroshima, me reuní con  mujeres – Ibakushas,-  sobrevivientes de la bomba;  son  testigos del horror y nos  acompañaron  recorriendo los túmulos y lugares dónde estallo la bomba y donde se encuentran  las víctimas; decían que  tienen la responsabilidad de trasmitir la memoria  de lo vivido cuando eran niñas a tres kilómetros de la ciudad en la escuela y ese día perdieron su familia, después de los bombardeos hasta el presente sufren las radiaciones, el cáncer y la contaminación que mató a miles de japoneses/as  no combatientes.

La humanidad frente al dolor y tragedia  de dos guerras en el siglo XX  buscó encontrar caminos de entendimiento y respeto entre los pueblos y dio nacimiento a  las Naciones Unidas y la Declaración Universal de los Derechos Humanos, un paso fundamental en para lograr superar el horror  y sanar las heridas y tratar de encontrar nuevos horizontes de vida  para que nunca más vuelva a desatarse  la tragedia de todas las guerras. Si bien los organismos internacionales cumplen una función necesaria  en el mundo, la carrera armamentista, las guerras, los conflictos bélicos, de alta y baja intensidad, y la explotación de los bienes y recursos de la Madre Tierra  no terminaron. Continúa la ambición del poder dominación acumulando arsenales nucleares entre las grandes potencias y generando más pobreza, marginalidad y hambre en el mundo

 Hoy nuestra Casa Común sufre la Pandemia del Coronavirus,  tragedia que  afecta a toda la humanidad con miles de muertos y millones de infestados y sin encontrar hasta el momento vacunas o antídotos para superar la tragedia global.

El Covid 19 es consecuencia del maltrato del ser humano contra la Madre Tierra, la destrucción de la floresta, los agro-tóxicos, las quemas intencionales que provocan la perdida de la biodiversidad,  la muerte de los animales y la violencia contra las comunidades indígenas;  devastación y crueldad que ha roto el equilibrio entre el ser humano y la Madre Tierra, es urgente llamar a la conciencia de los gobiernos que privilegian el capital financiero sobre la vida de los pueblos.

Llamar a la conciencia de  empresas que en su afán de lucro no respetan los derechos de la Naturaleza, es urgente convocar a un “Nuevo contrato Social”  para encontrar nuevos caminos de convivencia, caso contrario las pandemias se agudizarán cobrando más vidas y la destrucción de  bienes y recursos naturales.

Los centros de investigación científica están cerca de alcanzar una vacuna para el Covid 19, es necesario que la misma sea gratuita para toda la humanidad, sin exclusiones de los países más pobres.

Es necesario hacer memoria, no para quedarse en el pasado, la memoria nos ilumina el presente y nos llama a reflexionar, a 75 años de Hiroshima tenemos que ver el caminar de la humanidad,  sus avances y retrocesos, no se trata de recordar únicamente la tragedia y a las víctimas, debemos honrar la memoria de las víctimas de las guerras y mirar el camino a recorrer de la humanidad.

No olvidar  el momento que el mundo cambia cuando el avión por orden del presidente de los EEUU Truman lanza su carga mortífera sobre poblaciones civiles.

El pueblo japonés sobreponiéndose al dolor y destrucción ha logrado grandes avances en la reconstrucción de ciudades devastadas como Hiroshima y Nagasaki, pero preserva la memoria de los días  6 y 9 de agosto de 1945 en que el mundo cambio.

 La humanidad necesita desarmar la “razón armada”, hacer  realidad lo que en el Foro Social Mundial – FSM- proclamamos que “Otro mundo es posible”, transformar las armas en arados  como  dice el profeta Isaias,  a fin de alcanzar la Paz y unidad en la diversidad entre las personas y los pueblos del mundo.

Adolfo Pérez Esquivel

Buenos Aires, 1 de agosto del 2020

 

Paralysis at the WTO: Is the MPIA the Answer?

Paralysis at the WTO

The Multi-Party Interim Appeal Arbitration Arrangement (MPIA) notified to the World Trade Organization (WTO) on April 30th, 2020, was developed by twenty (20) WTO members to overcome the current paralysis of the WTO’s dispute settlement process. Resolving trade disputes that arise between its members is a core WTO function and considered a central component of the multilateral trading system. Its dispute settlement process is the mechanism by which WTO members seek peaceful enforcement of the rules to which they have agreed and the concessions they have negotiated with each other. As provided for in the WTO Dispute Settlement Understanding (DSU), disputants are required to first undergo consultations and attempt to resolve the issues(s) at this phase. About one-third of the cases move on to the adjudicative phase where an ad hoc Panel of experts (usually three) hears and makes a determination on the case. The losing party has the right of appeal to the WTO Appellate Body, constituted as a permanent body of seven members whose role is to review the legal aspects of the Panel Report under appeal. Panel and Appellate Body Reports are adopted by the entire WTO membership and are binding on the parties to the dispute. Since 2017, the United States has blocked the appointment of new members to the Appellate Body to replace those whose terms have expired. Consequently, the Appellate Body no longer has the required minimum of three members needed to hear appeals, resulting in the current state of paralysis.

What is the MPIA?

The signatories to the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) have committed to use the arbitration procedures provided for under Article 25 of the DSU as an interim appeal procedure while the Appellate Body is unable to fulfill its functions because of the current crisis. MPIA signatories envisage that: (i) their appeals will be heard by three (3) arbitrators chosen from a pool of ten (10) standing arbitrators selected by the participating Members; and (ii) the appeal arbitration procedures will be based on the substantive and procedural aspects of Appellate Review laid out in Article 17 of the DSU. These procedures are also laid out in Annex 1 to the MPIA. Furthermore, Article 25 of the DSU on the use of arbitration requires that the parties to the proceeding also abide by specified requirements for all cases, notably: (i) compliance with timeframes; (ii) notification of the decision to the WTO where any Member may raise any relevant point it wishes; (iii) acceptance of and prompt compliance with the arbitral award; and (iv) the use of the remedies of compensation and suspension of concessions. This last requirement underscores the importance of the WTO dispute settlement process in limiting retaliation against a non-compliant member to peaceful methods. Unlike Panel and Appellate Body Reports, however, the arbitral awards will not be adopted by WTO Members. Finally, the MPIA provides that any WTO Member may join or withdraw from the MPIA, with proper notification.

To date, only two additional countries have joined the MPIA since its introduction. At the same time, no other solutions to the paralysis have been adopted by WTO Members. The proposals outlined in October, 2019, by New Zealand’s Ambassador to the WTO, David Walker (dubbed “The Walker Process”) have won broad support. However, the WTO consensus approach to decision-making means that a decision is taken only if no Member formally objects. The United States has voiced its opposition to the proposals, stating that they do not go far enough in addressing its concerns. Instead, the United States has opted to appeal a Panel Report in a dispute with India. With no Appellate Body to review the decision, the Panel Report has not been adopted by the WTO. The case remains in a void and does not have to be implemented. The MPIA provides a workable alternative to avoid this abuse of the system.

Can the MPIA “Save” the WTO?

The MPIA cannot “save” the WTO. Nor is it intended to do so. The MPIA was designed with a very limited goal in mind – to permit its signatories to continue to properly appeal Panel Reports in cases amongst themselves so long as the crisis continues. It presents a pragmatic and interim solution to a problem they hope will be short-lived. It also still has limited reach given that only 22 of the WTO’s 164 members have so far joined. Other countries are being lobbied to join and perhaps may eventually do so as concerns about its operations get addressed.

More fundamentally, the paralysis at the WTO results from core divisions and disagreement among the Members on a range of issues. The United States has consistently expressed concern about the work of the Appellate Body, which it has accused of judicial overreach – of inserting into WTO Agreements provisions that were never envisaged by the negotiators. The current US position appears to be that the Appellate Body is not essential to the work of the WTO. Meanwhile, developing country Members were sold on the WTO precisely because of the power given to the Appellate Body to review the decisions from the Panel phase where power disparities can more readily play out.

This issue is only one of several that have created a deep divide between developing country and developed country members of the WTO. The Doha Development Round, intended to address the development concerns of developing countries in such areas as agriculture, and intellectual property, has essentially been abandoned. Developed countries claim their obligations were met with negotiation of the Trade Facilitation Agreement of 2013 and that it is time to focus energies on negotiating new agreements on the digital economy and services. Under the weight of these divisions, the consensus approach to decision-making has broken down and the WTO has been able to conclude Plurilateral Agreements that apply only to the subset of WTO Members, primarily developed countries, who can agree on a given way forward on an issue.

The MPIA represents yet another Plurilateral Agreement that highlights the broader challenges within the organization. Consequently, it provides a temporary solution for some Members, but not an answer to the paralysis at the WTO.

Book Launch: Legal Limits to Security Council Veto Power (Jennifer Trahan)

Please join us for this exciting book launch next week!
BOOK LAUNCH EVENT:  Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (Cambridge University Press 2020), co-sponsored by the American Society of International Law International Criminal Law Interest Group and the American Branch of the International Law Association United Nations Committee
Join leading experts in the field discuss Professor Jennifer Trahan’s new book which examines the legality of the use by a permanent member of the UN Security Council of its veto while there is ongoing genocide, crimes against humanity, or war crimes.
Thursday, July 23, 12:00 p.m. – 1:30 p.m. EST (zoom link below)
Panelists:
Jennifer Trahan, Clinical Professor and Director of the Concentration in International Law and Human Rights, NYU, Center for Global Affairs
Richard Goldstone, founding Prosecutor, International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda
Beth Van Schaack, Leah Kaplan Visiting Professor of Human Rights, Stanford Law School
Michael Scharf, Co-Dean and Joseph C. Hostetler – BakerHostetler Professor Of Law, Case Western Reserve School of Law
Moderator:  Milena Sterio, Charles R. Emrick Jr.-Cafee Halter & Griswold Professor of Law; Director, Domestic and International LL.M. Program, Cleveland-Marshall College of Law
Topic: Professor Jennifer Trahan Book Launch
Time: Jul 23, 2020 12:00 PM Eastern Time (US and Canada)
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Meeting ID: 979 1692 3543
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