Interview with Philippa Webb (Part 1)

Philippa Webb Professor of Public International Law and Director of the Centre for International Governance and Dispute Resolution (CIGAD) at King’s College London. She joined The Dickson Poon School of Law in 2012 after a decade in international legal practice.

Professor Webb holds a doctorate (JSD) and an LLM from Yale Law School. She obtained the University Medal in her LLB and the University Medal and First Class Honours in her BA (Asian Studies), both of which were awarded by the University of New South Wales in Australia.

She has extensive experience in international courts and tribunals. She served as the Special Assistant and Legal Officer to Judge Rosalyn Higgins GBE QC during her Presidency of the International Court of Justice (2006-2009) and, prior to that, as the Judicial Clerk to Judges Higgins and Owada (2004-2005). She was the Associate Legal Adviser to the Chief Prosecutor at the International Criminal Court (2005-2006) and an Associate Officer at United Nations Headquarters (2001-2003).

Photo credits: Gary Schwartz

Question: How did you stumble upon Public International Law and what factors helped you decide that it would become your field of study and foundation of your profession? How much difference has international exposure made in terms of your work?

Answer: “Stumble” is indeed the correct verb to describe how I ventured into public international law. Like many Australians, I come from a multi-cultural background. My mother is from Philippines and my father is from New Zealand. They met in Australia during their university studies and I was born in Sydney. We used to travel a lot in my childhood so I grew up with a sense of the world and a keen interest in other countries and cultures. For some reason when I was looking at my law school and subjects, I thought that International Law would be a good fit. When I studied it during my undergraduate degree, I loved it. I found it fascinating. I love the interaction between international law and politics and it led me to undertake an internship with the United Nations Headquarters in New York which also confirmed my interest in international institutions, and led me to specialize in international law. I ended up undertaking an LLM and a JSD (Doctorate) in Public International Law at Yale Law School. So, it started off as a fairly random elective choice and became my field of study and the direction of my career. I left Australia around 22 years ago and I have lived in Tokyo, Kyoto, New York, The Hague, Paris, London, and Oxford: this was sometimes driven by personal factors but always for international law opportunities as well. Living in these different countries has helped in terms of building a network, learning languages, understanding different approaches to questions of international law, and for enhancing cross-cultural understanding. 

Question: Which public international law case that you have worked on in your career has been the most professionally stimulating one?

Answer: I have two cases that I would like to mention. The first one is quite a classic one; it was the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) at the ICJ where I worked as the Special Assistant and Legal Officer to President Rosalyn Higgins. It was a special case in many ways. It was Judge Higgins’ first case presiding as President of the Court. It was a very significant case concerning allegations of genocide by one state against another. There were six weeks of hearing, which is unusual for the ICJ. It was a very intensive  process of deliberation. I gained a number of insights. First of all, it showed me the evolution in the work of the ICJ. The traditional view is that the ICJ is there for territorial and maritime delimitation, but increasingly – as with with Ukraine v Russia, another case under the Genocide Convention –  the Court is being asked about alleged massive human rights violations. The Court is being looked to as a guiding light for how states should fulfil their responsibilities and be held accountable. I think the Bosnian Genocide judgment was a significant milestone in that evolution, but it also showed the limits of the Court’s jurisdiction because there was clearly evidence of crimes against humanity and other mass atrocities, but the Court was only able to decide the case in relation to the allegations of genocide. Sometimes the limitations on the Court are hard for the general public to understand: they see all this evidence of human rights violations, but then the Court decides that there was one instance of genocide and the requisite specific intent was lacking for other incidents. It was also a significant case for me because it was fact-heavy. There were live witnesses and reams of evidence. There was also an interesting interaction between the ICJ and the Yugoslav Tribunal. In sum, I think the case confirmed the challenges facing the ICJ, but also demonstrated its ability to be a real leader in this field.

As regards the second case:  international law crops up in domestic courts all the time, so when we think of “international law cases”, it does not necessarily mean only ICJ or ICC cases. I have been working on a case for four years concerning allegations of human trafficking, forced labour and domestic servitude of a migrant domestic servant in London. I have been representing the domestic worker in her case against the diplomat who employed her. On the one hand, it is a simple employment law claim. She is claiming that she was not paid properly, not treated properly and that her contract was breached. But on the other hand, it is a test case for the scope of diplomatic immunity in international law, specifically the question of whether human trafficking, forced labour and domestic servitude can fall within the exception in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations that pertains to a “commercial activity” outside of the diplomat’s functions. That case was heard in October 2021 by the UK Supreme Court and I hope that the eventual judgment will be one that advances justice.

Question: Covid- 19 has impacted international law litigation. What kind of incorporations/ reforms can be advantageous for International Courts so that a pandemic does not affect its working?

Answer: The impact of the pandemic has been interesting because in recent years there had been discussions about making courts more flexible, introducing technology to facilitate their work, perhaps allowing video conferencing when it was appropriate for either defendants or witnesses, but it had been a very slow progress. Then, suddenly we had a massive two-year experiment in virtual hearings forced upon us and courts had to adapt. I have to say the ICJ, the court I know best, is a very traditional court as the UN’s principal judicial organ, but it adapted surprisingly quickly. It quickly arranged to hold remote and hybrid hearings. Within three months of the pandemic, it had issued news rules that permitted not only the parties attending remotely but also the judges participating remotely. It also worked to maintain, the principle of open justice and to accommodate different time zones. The Court has continued to be able to deliver judgements and decisions that help resolve inter-state disputes, without building up a backlog. Of course, now we are thinking about which adaptations we keep as the pandemic wanes. Especially for the ICJ, there are advantages to in person hearings. These are cases of great significance to the parties. There are often diplomatic elements. It may be helpful to the parties to be meeting in person in the corridors of the Peace Palace, to be seeing each other to diffuse the tensions. This may militate in favour of maximising in person presence for ICJ cases. However, I think it may be helpful to retain some flexibility for when states or certain participants need to attend remotely. Another simple but practical change that I hope the court will consider is electronic filing of pleadings because typically it requires the delivery of 125 hard copies of the pleading to the Peace Palace. Many of these pleadings are hundreds of pages. It would facilitate matters on the parties’ sides, at least, if emailing the pleadings was an option.

to be continued…

Work On! Call for Applications: 2022 EULab Summer School

The EULab is now accepting applications for the Summer School on Labour Migration in the European Union.

The program is open to 30 postgraduate students in the fields of law, international relations, and social science who intend to develop a solid knowledge on labour migration in Europe from the specific lense of International and EU law. The program will take place from June 27 – July 7, online through Microsoft Teams. It will cover 4 modules, including The European Pillar of Social Rights, Migrant Workers’ Socio-Economic Rights, Agriculture, and Domestic Work. Instruction will be delivered by distinguished scholars, practitioners, policy makers, and other stakeholders. Participants will gain a comprehensive understanding of the multilevel legal framework governing labour migration in the EU. 

The deadline to apply is June 20, 2020. Applications, including a CV and a motivation letter, can be submitted to eulab2020@gmail.com. Click here for more information.

Women in International Law Interest Group Scholarship Prize – Submit your work!

Please consider submitting your work or nominating someone else’s work for the WILIG Scholarship Prize by June 15, 2022. The WILIG Scholarship Prize, awarded every other year, highlights and promotes excellence in international law scholarship involving women and girls, gender, and feminist approaches. It recognizes innovative contributions to international law scholarship that theorize or utilize a feminist lens or lenses, highlight and seek to address topics disproportionately affecting women and girls, or consider the impact of international law or policy on gender more broadly. The first WILIG Scholarship Prize was awarded in 2021 to Irini Papanicolopulu, for Gender and the Law of the Sea (Brill Nijhoff, 2019).

The WILIG Scholarship Prize Committee for 2022-2023, is composed of WILIG Co-Chair Yvonne Dutton (Indiana – McKinney School of Law), Laurence Boisson de Chazournes (University of Geneva), MJ Durkee (Georgia), Chiara Giorgetti (Richmond), Alexandra Huneeus (Wisconsin). The Committee may award up to two prizes: one for book length monographs or edited volumes, and the other for individual articles or book chapters. Nominators may only nominate one book or article per cycle, and it must have been published in the last three years. Self-nominations are welcome. Please note that only members of ASIL/WILIG are eligible to receive the prize.

To submit an article, chapter, or book published in the last three years for consideration, please send the relevant scholarly work, along with a cover letter describing why the work merits the award in light of the criteria above, to wilig@asil.org by June 15. The prize will be awarded at ASIL’s 2023 Annual Meeting.

Is the UN/International Residual Mechanism for Criminal Tribunals (MICT) washing its hands (again) of accountability and justice for the International Criminal Tribunal for Rwanda (ICTR) acquitted and released persons?

Judicial Oxymoron

It has almost been a decade since Chief Charles A. Taku’s and my client, Major F.X. Nzuwonemeye, was acquitted on appeal at the International Criminal Tribunal for Rwanda (ICTR).   (See my previous posts here, here, here)

Yet, in 2022, he has now served two years more than the full twenty year sentence imposed by the Trial Chamber in 2011 – for crimes for which he was acquitted by the Appeals Chamber in 2014. 

Major Nzuwonemeye, along with other ICTR persons who were acquitted or completed their sentences, was living in a “safe-house” in Arusha, under the care and custody of the U.N. (see, “Treatment of the Acquitted….” ).  Then, everything changed.  He was transferred to a “safe house” in Niamey, Niger in early December 2021. 

But Major Nzuwonemeye is still not free. 

He, and seven other acquitted or released ICTR persons, are currently living under house arrest and without any papers in Niger.[1]  A 9th person, the acquitted Minister Jerome Bicamumpaka, refused to go to Niger, and sought medical care in Kenya; unfortunately, he has recently died. 

How does such a a travesty of justice continue, and become more egregious (if that is even possible!) as the time passes? 

The eight persons in Niger (four of whom were acquitted; four of whom were released having served their sentences) have been waiting between almost ten and eighteen or so years for a country to accept them.  Some persons who were acquitted or released succeeded in seeking asylum in other countries.  However, from the very beginning, the only country that expressed willingness at each UN Security Council meeting to accept these men was Rwanda.  Relocation to Rwanda was and continues to be a death sentence, since the ICTR men were part of the former government or its military, and President Kagame is still waging the war which resulted in the events of 1994.        

Timeline for Niger

On 15 November 2021, a Relocation or Resettlement Agreement was signed between the Government of Niger (GON, by the Minister of State and of Foreign Affairs and Cooperation) and the Mechanism for International Criminal Tribunals (MICT), by the Registrar, who is an Assistant Secretary-General of the UN) (see “Agreement” here).

On 5 December 2021, the 8 ICTR persons were deported to Niger, as per the Agreement.

Three weeks later, on 27 December 2021, the GON issued an Expulsion Order, to take effect in 7 days, which was 3 January 2022.  No reasons or specifics were given in the order.  It simply said:  pour les raisons diplomatiques. 

But, the men still sit – in a legal limbo – in Niamey, Niger.      They have no information about their fate.  Their papers have not been returned, they have no passports, and they are under Niger guards.  

Lawyers for the men, in Niamey and other countries, won a thirty day extension of the initial Expulsion Order.  However, efforts to remove the men to safety have been unsuccessful.  Tanzania refused to take the men back, and efforts to find a country where the men can live freely have produced no results. 

In addition, Defence attorneys (Major Nzuwonemeye is represented by Peter Robinson) have sought other post-acquittal or post-release remedies.  These include, for example, that Niger be reported to the Security Council for non-compliance with the Relocation Agreement; that an oral hearing be held at one of the seats of the MICT, either Arusha or the Hague on the non-compliance complaint;  and that Article 28 of the ICTR Statute on cooperation be invoked re relocation of acquitted persons and those who completed their sentence.

Save Our Parents, an organization of the men’s children and other family members and supporters, demonstrated in the Hague in March 2022, to end the Explusion Order and for reunification of the men with their families.

It is now the beginning of June and the situation remains unchanged, but the violations of human rights continue to worsen as the situation becomes more bleak.  The expulsion deadlines have been extended and not enforced, but the men live in Niamey without papers, without liberty and under house arrest.  And, the fundamental concern is that the men will be transferred to Rwanda.

Niger’s Non-compliance with the Agreement makes the deportation of the eight men to Rwanda a real possibility 

Niger never spelled out the “diplomatic reasons” for which it unilaterally broke the UN/MICT Relocation Agreement.  But, many of us suspect that it had to do with pressure from Rwanda.  Rwanda has a continuing interest in the fate of the eight men, who it considers as enemies of the state.  Rwanda has made repeated (and unsuccessful) efforts over the years to get the men into its custody. 

In addition, Rwanda is now assuming France’s security tasks in Niger and the Sahel region.  France is using  Rwandan troops as its “proxy” in the region.  This suggests that the Expulsion Order came at Rwanda’s request (here, here).  The presence of the eight ICTR persons is another football in France-Niger-Rwanda relations.

As reported in Jeune Afrique, 30 December 2021 (here), Kigali claimed ignorance of the initial Agreement and negotiations between the UN and Niger.  Rwanda’s Ambassador to the UN, Valentine Rugwabiza, states that it was not notified by the MICT or Niger about the transfer of the men from Arusha to Niamey, Niger.  The article also reported that the UN gave assurances to Niger that Rwanda would not make the re-location of the men a problem.  A Nigerian official is quoted as saying that the UN misled Niger as to Rwanda, and now the UN has to find a place for these men to stay.  

The threat of deportation to Rwanda is alive and well

The signed Agreement included a provision that ICTR persons could remain in Niger for one year (Articles 4.4 & 4.6) and a non-deportation clause to Rwanda (Article 7).  Given Niger’s conduct, it has to be assumed that these clauses are now moot, and unenforceable.  Without the protections of the Agreement, there is no obstacle to stop Rwanda from simply removing the men to its territory, if it chooses to do so. 

The UN should take action to punish Niger for non-compliance with the Relocation Agreement

Niger’s action rendered the Agreement worthless, but its conduct also challenged the authority and legitimacy of the UN. The Agreement was between the Government of Niger, and the Registrar of the MICT, an Assistant Secretary-General of the UN.  To add insult to injury, Niger was the rotating Security Council Chairperson for the month of December 2021 when it unilaterally breached the Agreement with the UN, and issued its Expulsion Order.

Although the MICT rejected Defence counsels’ request to report Niger to the Security Council, the Security Council itself should be seized of this matter because its own place in the international justice order has been attacked and undermined.

The MICT should muster its judicial courage and find a way to resolve the continuing grave injustices – which are a result of the UN/ICTR’s own making

Let there be no confusion….the ICTR (predecessor to the MICT) never envisioned acquittals and had no plan to address this possibility.

In 2009, a spokesman for the ICTR, then ICTR Deputy Registrar Everard O’Donnell, explained to a Symposium in Geneva: 

The simple fact is—and there is some truth in this particular fact—that no proper provision was made for acquittal at the beginning of the setting up of the Tribunal. That much is a fact, and it’s one that we have been struggling with in the registry ever since. There was no budget for dealing with acquitted persons.[2]

Anyone familiar with the workings of the UN knows that no budget means that nothing happens.

The eight men are considered pariahs by much of the world, but what is worse is:  the very international institution (ICTR/MICT) which prosecuted them, and eventually acquitted or released them, has washed its hands of any responsibility for their welfare and safety and human rights.

Granted, some of the MICT’s judicial decisions and orders on the Niger crisis acknowledge the magnitude of the human rights violations, portend a worsening of the situation, and affirm the MICT’s duty to ensure the welfare of the eight men.[3]

However, the decisions and orders fall far short of practically implementing and protecting the human rights of the men in Niger.  In its recent 27 May 2022 decision, the Appeals Chamber affirmed the position that the Niger situation could not be resolved through judicial avenues, and places the onus on the Office of the Registrar to find relocation through political, diplomatic and administrative efforts.[4]  The MICT interprets its Statute as limiting its judicial authority and the demands it can make on Member States to co-operate in respect to re-location.  

This narrow and rigid analysis repeats the errors of the past:  if no acquittals were envisioned, this presumes that everyone prosecuted would be found guilty, and then there would not be any need for re-location of an acquitted person. Underlying the MICT’s approach is the presumption of guilt, which resulted in the initial failure of the UN/ICTR to envision and budget for acquittals

The struggle to find a safe State to accept these ICTR men is an uphill battle —  and international judges must find a way to resolve the severe violations of international human rights.  They must  summon the courage to fight for the  fundamental values embodied in human rights law. 

But, the MICT appears to have washed its hands of any duty to find a State (other than Rwanda) to accept these men.  Leaving the task to the Registrar simply “passes the legal buck.”

Eight acquitted and released men, most of whom are elderly, continue to be stateless, without papers, separated from their families and communities and with no prospect of any State in the world willing to accept them, except Rwanda.

The ICTR/MICT as an international justice institution should be more than ashamed or embarrassed by this situation. It should be held accountable and take whatever measures are required to re-locate the ICTR men in Niger to a safe country and to safeguard their human rights.

If international judges in a UN judicial entity cannot ensure that the liberty and other human rights of the eight men are restored, then we have to ask:  where is international justice today, and does it have a future?     


[1] See, Philpot, Robin, “International criminal justice bares its colonial fangs:  Why are the acquitted and freed Rwandans sitting in modern-day penal colonies, in Canadian Dimension, 21 February 2022, here

[2] International Symposium, Geneva, ‘International Criminal Tribunal for Rwanda: Model or Counter Model for International Criminal Justice? The Perspectives of the Stakeholders’, Session 4, Geneva, 10July 2009, p 12. Available at www.ictr.org.

[3] For example, the recent 27 May 2022 Appeals Chamber decision affirms the MICT’s duty of care to the relocated persons where the Relocation Agreement is not carried out (para 24), and indicates that the Duty Judge informed the UNSC in a January 2022 letter that the persons were under house arrest and had their identity documents confiscated (para 25), but it also held that Article 28 of the ICTR Statute was not a mandate for Tanzania as the Host State to cooperate re re-location.

[4]See 27 May 2022 Appeals Chamber decision, para 37 (noting the “potentially severe impact of Niger’s actions on fundamental human rights of the Relocated Persons, as well  as on the rule of law more generally”).

Go On! Cross-Border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions Zoom Webinar

Go On! makes note of interesting conferences, lectures, and similar events.

►  Singapore-based Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) announced open registration for a webinar: Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions.

The event will be held on Wednesday, July 27, 2022, from 3pm to 6pm (Singapore time). With two sessions, each devoted to one of the conventions, attendees have the option to choose which session(s) to attend to listen directly from judges, practitioners and senior HCCH legal officers on the operations of the Choice of Court and Judgments Conventions.

For more information or to register, click here.

Register by June 26, 2022, to enjoy an early bird discount of 15% off.

A Judge for Humankind Antônio Augusto Cançado Trindade

The recognition of a global shift in international affairs is marked by the passing of Judge Antônio Augusto Cançado Trindade. His quest to pursue of the emancipation of those most vulnerable from oppression, including refugees, minorities, indigenous people, the environment, was articulated as the manifestation of a universal juridical conscience. He explained how human rights violations had a transcendental scope of traumatic impact upon individuals beyond the time of detention, the suffering of the families of victims subject to forced disappearance or torture, and the anguish of societies denied reconciliation after internal conflict via structures of impunity seeking to bury historical recognition of atrocity crimes. His analysis grounded the evolution of human rights law through articulation of the right to truth, the right to a life’s project, and characterization of non-discrimination as a jus cogens norm, as well as recognition of the rights to peace and development. He supported the aim of achieving a world committed to disarmament and protection of the common heritage of mankind. He warned that the focus on individual criminal accountability should not distract from the equally important recognition of state accountability of atrocity crimes. Fundamentally, he viewed the role of the international judge as carrying a responsibility to create spaces of freedom for individuals and marginalized groups in the face of repression thereby humanizing international law. I had the privilege of interviewing him in 2011 and his illuminating perspectives are available here.

Go On! “Challenges for Women in the International Justice System”

The SNF-funded project Diversity on the International Bench: Building Legitimacy for International Courts and Tribunals”, led by Professors Neus Torbisco-Casals and Andrew Clapham (Graduate Institute, Geneva), continues to host its monthly public lecture series on “Women’s Voices in the International Judiciary”. The series aims to reflect on the lack of diversity in the international judiciary —especially gender diversity—, which raises concerns not just in terms of descriptive representation and symbolic self-identification, but also regarding unconscious bias and systemic privileging of specific ideologies or positions in the process of adjudication.

The eighth lecture will welcome Hilary Charlesworth, Judge of the International Court of Justice, the first Australian woman elected to the court and the fifth woman ever elected. The lecture will take place on May 30th, 2020 on Zoom at 6:30PM (CEST). To register for this event, click here.

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.

Introducing Ananya Mukherjee

It is our pleasure to introduce our new contributor Ananya Mukherjee. Ananya is an India qualified lawyer and a graduate from the West Bengal National University of Juridical Sciences. She has 4 years of professional work experience working on corporate laws, M&A, PE & VC deals in India, and currently works at the Indian Institute for Human Settlements on higher education policy in India. She is actively interested in fields of international criminal law, international environmental law, human rights and policy. She is also a trained negotiator and mediator from ADR Group UK and an incoming MPA student at Columbia University, New York. Previously she was a Public Policy Scholar with the Global Governance Initiative and enjoys spending her weekends working with leading Indian NGO’s such as Udayan Care towards helping young women achieve their professional potential. Outside of the work space, she enjoys painting, is a trained Scuba Diver and mentors young lawyers in India in navigating the domestic and international legal and policy space.

Heartfelt welcome!

The Disappeared: Ensuring Future Investigations Recognise Enforced Disappearances in Ukraine (Part II)

While the full scale of the enforced disappearances in Ukraine are currently unknown, available information indicates that Russian forces have systematically abducted active and outspoken community leaders, journalists, and activists. While the first part of this post provided an overview of the legal framework of enforced disappearances both internationally and domestically, this part argues that there is at least a reasonable basis to believe that each of the elements of the crime against humanity (Article 7(1)(i) of the Rome Statute) are engaged. 

First, the enforced disappearances have clearly been committed as part of a widespread or systematic attack directed against the civilian population. The details of Russia’s invasion of Ukraine and the subsequent attacks against civilians, encompassing numerous crimes against humanity, have been well documented elsewhere.    

Second, there is evidence that numerous Ukrainian journalists (e.g., herehere, and here), activists (e.g., here and here) and local leaders, usually mayors (e.g., herehere, and here) have been arrested, detained or abducted (element 1.a/2.b – which includes “any form of deprivation of liberty of a person against his or her will” (see e.g., Burundi Decision, para. 118)) and that this has been followed by a refusal to give information on their fate or whereabouts (element 1.b/2.a). Such refusal will include situations in which there is an outright denial of, or misleading information given about, the deprivation of liberty (see e.g., Burundi Decision, para. 118). 

In the Zaporizhzhia region, multiple leaders have been abducted and their fate and whereabouts remain unknown. For instance, on 13 March 2022, the house of Serhii Pryima (head of the Melitopol district council of the Zaporizhzhia region) was searched by Russian law enforcement agents who arrested him. On the same day, Yevhenii Matveev (mayor of Dniprorudne) was abducted by Russian forces. There is no information about the fate or whereabouts of either of these men. 

In the Kharkiv region, several members of the local council have disappeared. On 1 March 2022, during a pro-Ukrainian rally, Russian servicemen summoned Kupyansk city council member, Mykola Maslii, for a conversation during which they used smoke bombs in order to prevent witnesses seeing as they abducted him. His whereabouts are unknown to date. On 21 March, Russian forces abducted Mykola Sikalenko (head of the Tsyrkunivska community) from his home and took him in an unknown direction. Although Ukrainian law enforcement are trying to locate Sikalenko, Russian forces have provided no information about his fate or whereabouts. 

In the Kherson region, at least 17 journalists, activists and Ukrainian veterans have disappeared. For instance, local activist Serhii Tsyhipa from Nova Kakhovka has been missing since 12 March 2022. According to his wife, eyewitnesses reported that Tsyhipa was arrested at the Russian checkpoint, possibly to prevent him from spreading pro-Ukrainian information. Another activist and Ukrainian veteran, Maksym Nehrov, disappeared at a Russian checkpoint under similar circumstances on 15 March. 

Third, the systematic nature of the enforced disappearances in Ukraine – in particular areas and targeting a specific profile of the victims (i.e., leaders, journalists and activists) – allows for an inference that the perpetrators would have been aware either that the deprivation of liberty would be followed by a refusal to provide information in the ordinary course of events, or that the refusal was preceded or accompanied by the deprivation of liberty (element 3).

Fourth, both the deprivations of liberty and the refusals to provide information have been carried out by, or with the authorisation, support, or acquiescence of the Russian state (elements 4 and 5). These acts take place in territories controlled by Russian forces after the Ukrainian troops have withdrawn. In most cases described above, the initial abductions are conducted by Russian military or law enforcement agencies. At least two abductions in the Kherson region occurred at a Russian checkpoint. Some of the victims have been released by the Russian forces in exchange for the captured Russian soldiers or after they film a statement in support of Russia.

Fifth and finally, the ICC Elements require that the perpetrator intended to remove such person or person from the protection of the law for a prolonged period of time (element 6). This element substantially differs from the definition of enforced disappearance in human rights law and imposes an additional burden which may be difficult to prove in practice (see ICJ, pp. 17-18). The Working Group on Enforced Disappearances has recommended (at paragraph 15) that “the definition of enforced disappearance provided for by the Rome Statute be interpreted by the national authorities in line with the more adequate definition provided for in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance.” Therefore, the inclusion of these elements is not required in any future domestic prosecution of enforced disappearance in Ukraine, whether under current Article 1461 of the CCU, or Article 4421(1)(6) of the CCU (if, and when, Draft Bill 2689 or 7290 enter into force).

To begin with, while human right law includes the material element of the victim being placed outside the protection of the law (by virtue of the deprivation of liberty and refusal to provide information) (ICPPED, Article 2), the ICC Elements include the requirement that the perpetrator intended this consequence. This includes situations in which a victim is prevented from accessing judicial assistance or legal procedures (Burundi Decision, para.120). Certain circumstances surrounding the deprivation of liberty may reveal this intent such as abduction in unmarked cars with tinted windows, detention in desolate areas or unofficial prisons, failing to register detainees’ names, failure to allow prompt access to lawyers, and the absence of arrest warrants or any criminal charges. 

In Ukraine, there is evidence – at least – that the victims were placed outside the protection of the law.  It is likely an intent on the part of the perpetrator could be inferred from these circumstances. In general, as described above, the victims have been abducted and taken to unknown locations, without warrants of arrest or any criminal charges, usually in retaliation for their pro-Ukrainian position and/or as a mean of silencing the dissent. They have often been subjected to torture or inhumane treatment while detained. The surrounding circumstances of their abduction also indicates a clear intention to remove them from the protection of the law. For example: according to the Mayor’s Office (and corroborated by CCTV footage), members of the Russian military placed a bag over Ivan Fedorov’s (the mayor of Melitpol) head, forced him out the office into a car and drove him away in an unknown direction. Whilst detained Fedorov was torturedinto declaring his loyalty to the Russian forces. Similarly, as described above, Russian forces used smoke bombs to conceal the abduction on Mykola Maslii. 

In addition, unlike human rights law which imposes no temporal element (see e.g., A/HRC/39/46, para. 143; Yrusta v. Argentinawhich found enforced disappearance occurred where the victim’s whereabouts was unknown for seven days), the Rome Statute requires the victims removal from the protection of the law be for a “prolonged period of time”. Although the precise period that will satisfy this requirement has not been authoritatively clarified by the ICC, it has held that several months or years would fulfil this element (Burundi Decision, para.120). A broad interpretation of this element by the ICC would ensure victims who have been disappeared for even a short period of time can benefit from the protection of the law. 

In Ukraine, there have been some short-term disappearances ranging from several hours in the case of three female journalists arrested in Melitopol, Zaporizhzhia region to eight days in case of Oleh Baturyn, a journalist from Kakhovka, Kherson region. Although it is currently unclear whether these would be included within the protection of Article 7(1)(i) of the Rome Statute, they will certainly fall within the jurisdiction of Ukrainian courts interpreting the crime in line within human rights jurisprudence. In addition, the whereabouts of many unknown and their removal from the protection of the law continues. It is not known how long their disappearances will last. 

Conclusion

In sum, there is clear evidence that Russia has systematically used enforced disappearances against prominent Ukrainians – particularly, journalists, activists and local leaders – as a method of crushing opposition to its invasion in the areas under its control. While the ICC Elements of Crimes outline a complex set of elements for the crime against humanity of enforced disappearance, practitioners should not be discouraged from fully investigating and prosecuting this crime to adequately reflect the harm encountered by the victims and their families. Domestic prosecutions – whether as ordinary crimes under current Article 146 of the CCU or in the future as crimes against humanity under Draft Bill 2689 Article 4421(1)(6) – may utilise the human rights definition of enforced disappearances enabling a broader scope of conduct to fall within their protection.