International law

COVID-19 hate crimes: Identifying the Real Virus that infects us [Part – II]

/ Tejaswini Kaushal / Leave a comment

Actions taken by the USA to control COVID-19 hate crimes

COVID-19 hate crimes act in the US

To address the nationwide spike in hate crimes against Asian Americans in 2022, US President Joe Biden signed the COVID-19 Hate Crimes Act in May 2022. Following expert testimony about the spike in crime and grassroots pressure to defend Asian-American neighborhoods, the bipartisan measure was signed. The new Bill aims to enhance law enforcement’s ability to deal with hate crimes through public education campaigns, hate crime hotlines, and training for recognizing hate crimes. The Justice Department will quicken investigations and improve data gathering. The legislation aims to increase public awareness and accessibility of hate crime reporting at local levels.

Overview of the Act

The Congressional Research Service’s description of the Act lists five important provisions:

  1. A designated DOJ officer must expedite the review of hate crimes and related reports.
  2. State, local, and tribal law enforcement must receive DOJ guidance on setting up reporting procedures for online hate crimes and gathering information on protected characteristics.
  3. The DOJ and HHS must release recommendations to increase awareness of hate crimes during the COVID-19 pandemic.
  4. The Act creates funds for state-run hotlines, crime reduction initiatives, law enforcement programs, and the National Incident-Based Reporting System.
  5. Judges may impose community service or educational requirements as a condition of supervised release for those found guilty of a hate crime charge on probation.

Criticism of the Act

Stop AAPI Hate criticized the new law for giving law enforcement more authority, saying that it will only address hate crimes rather than significant hate incidents since it focuses on criminal law enforcement authorities in its remedies. They urged the federal government to address systemic racism and oppression through funding community-based organizations, enhancing civil rights laws, investing in mental health and immigration services, and supporting all communities’ voices and historical events.

Activities undertaken post the Act’s enactment

On the first anniversary of the COVID-19 Hate Crimes Act, the Department of Justice launched initiatives to prevent and address hate crimes and bias-related occurrences. They released new guidelines in collaboration with the HHS to increase understanding of COVID-19-related hate crimes, distributed grant requests for state-run hotlines and neighborhood-based strategies, and hired their first Language Access Coordinator.

Law enforcement systems for reporting, tracking and tackling hate crimes

The COVID-19 Hate Crimes Act was passed to enhance hate crime reporting, response, and prevention at the federal level. However, there is a trust issue between Asian American communities and the police. Some states, such as New York City, have acted to improve this relationship by creating specialized teams to respond to pandemic-related violence and harassment and to educate people about their rights.

Furthermore, many Asian Americans lack confidence that local police will treat them with respect and courtesy, with only 24% feeling very confident. 73% support training law enforcement to recognize anti-Asian American and Pacific Islander bias should be given. Additionally, there is a need to increase the number of Asian American police officers in locations with large Asian American populations since they make up 6% of the US workforce but only 2% of police officers.

As a positive intervention, states like New York City have established special response teams to address pandemic-related hate crimes and improve trust with the Asian-American community by providing education, referrals, and investigations.

Provision of health care facilities, especially mental health services

Health systems need to be prepared to provide culturally and linguistically suitable services (CLAS) to Asian American patients who may have experienced trauma. Clinicians of Asian American origins may need to establish trust with patients who have experienced violence and discrimination. Online services like the Asian Mental Health Project and the National Asian American Pacific Islander Mental Health Association can link Asian Americans with culturally sensitive practitioners. Medical education should emphasize cultural sensitivity, and providers should inquire about prejudice, violence, and mental health issues with patients, as well as be aware of the social isolation and financial difficulties brought on by the pandemic. A responsive mental health workforce is critical, as many Americans of Asian origin may be hesitant to seek treatment.

Devoted research and funding

Only 0.17% of the National Institutes of Health’s research budget is allocated to studying the health requirements of AANHPI despite making up 7.0% of the US population. The Asian American Foundation has pledged significant multimillion-dollar community investments to address bullying in schools and engage interfaith leaders and journalists.

Education in schools

DOJ and the Department of Education offer resources to combat COVID-19-related harassment in schools, while school-based interventions can reduce racism and hate speech. 73% of Asian Americans support initiatives to educate the public on recognizing anti-AAPI bias to address their historical underrepresentation in society. AANHPI’s historical contributions to the US must be recognized, and more awareness is needed to combat entrenched prejudice and conflicts.

Removing public health reporting of bias

WHO and CDCP had cautioned that racially discriminatory rhetoric during COVID-19 can result in victimization, stigmatization, and division of people. President Biden signed an executive order directing agencies to prevent racism and xenophobia against AANHPIs. Furthermore, the new White House Initiative on Asian Americans, Native Hawaiians, and Pacific Islanders, co-chaired by Xavier Becerra and Katherine Tai, aims to resolve bullying and discrimination, improve quality and fragmentation, expand language translation, and better understand multigenerational household needs. Some local governments have approved resolutions condemning xenophobia.

INTERNATIONAL OBLIGATIONS

1.      International Convention on the Elimination of All Forms of Racial Discrimination

This convention requires nations to “condemn” and eradicate racial discrimination and improve tolerance among all races.

2.      Committee on the Elimination of Racial Discrimination

The Committee on the Elimination of Racial Discrimination (CERD) calls for governments to formally reject hate speech and launch awareness programs and educational policies to combat racism. Training for the police and legal systems is also important to ensure familiarity with international obligations protecting free speech and expression while safeguarding against hate speech. Human Rights Watch recommends that all governments establish action plans to address new forms of discrimination and xenophobia, with the UN High Commissioner for Human Rights providing guidelines for best practices.

Analysis and Conclusion

The incidents of brutality that are pursued in a developed, liberal and tolerant country like the United States put the whole world in a terrible shock. Though change has been brought across the nation to curb the discrimination and hatred towards the Asian-American community, future steps are required to address the growing public health concern of violence against Asian Americans, eradicate prejudice and hatred against Asian Americans, assess new tactics, and determine the future’s most effective methods of health and healing.

COVID-19 Hate Crimes: Identifying the Real Virus that infects us [Part – I]

/ Tejaswini Kaushal / Leave a comment

Asian Americans have reported a surge in hate crimes, including physical violence and harassment, since the outbreak of COVID-19. Health crises such as pandemics have historically been linked to stigmatization and discrimination against Asian people. From their arrival in America in the late 1700s, Asian Americans have faced verbal and physical abuse driven by personal racism and xenophobia. Discriminatory rhetoric and exclusionary policies have also been supported by the state, sustaining this violence at the institutional level. Insecurity and fear of foreigners have been exacerbated by COVID-19, leading to an increase in anti-Asian hate crimes, perpetuating inequality at individual and institutional levels.

What does one mean by a hate crime?

Hate crimes are a pernicious form of violence that target individuals or groups based on their membership or perceived membership in certain social or racial categories, such as ethnicity, religion, gender identity, sexual orientation, and disability, in the form of physical violence, property damage, harassment, and even murder. Hate crimes are distinct from hate speech, which refers to specific types of language that incite hatred or discrimination. Furthermore, while a hate crime is a criminal act, a ‘hate incident’ is noncriminal behavior driven by prejudice, which can potentially culminate into a hate crime.

The rippling consequences of hate crimes

The psychological effects of hate crimes can be profound and far-reaching, not just for the individuals who are directly affected but also for others. Victims of hate crimes that were motivated by hate and prejudice have been shown to have higher levels of psychological distress, including symptoms of despair and anxiety, than those of crimes not perpetuated due to xenophobia or racism. The following reasons for such an evaluation were addressed in a 1999 study:

  1. Hate crimes cause psychological and emotional harm as well as self-esteem issues to the individual victim.
  2. Hate crimes create a generalized fear among the targeted group.
  3. Hate crimes have a ripple effect on other vulnerable groups who associate with the targeted population.
  4. Hate crimes cause severe melancholy and stress in the entire community.

Hate crimes witnessed during the pandemic

The manifestation of the “Othering” theory

“Othering” is a process of marginalization and exclusion that occurs when a dominant group stigmatizes and excludes non-dominant groups who are racially different or lack a sense of “civic belonging”. This process is rooted in prejudice and fear and strengthens the dominant group’s perception of their own “normalcy” while categorizing those who are different as “abnormal.” This historical and ongoing process results in the disempowerment and social exclusion of marginalized groups.

Historical experiences of “othering” by Asian Americans

The projected immigration population of Asians in the US has grown dramatically yet prejudice and hate against them have been ongoing and they are frequently blamed for spreading disease during pandemics, and Asian Americans have historically been “othered” as an edifice and falsely portrayed as a model minority. This has resulted in microaggressions, hate crimes, and other forms of discrimination, like being labeled ‘dirty’ or ‘sickly’ during the pandemic. Asian Americans have been targeted regardless of their multiethnic identity, especially during times of economic instability, adversity, insurgency, or epidemic.

Burgeoning Anti-Asian hate crimes during the COVID-19 pandemic

In addition to prosecuting racial assaults against Asians and individuals of Asian origin, governments should take immediate action to stop racist and xenophobic violence and prejudice associated with the COVID-19 outbreak, according to a statement released by Human Rights Watch. Antonio Guterres stated that a “tsunami of hate and xenophobia, scapegoating and scaremongering around the world” and he asked states to “act now to strengthen the immunity of our societies against the virus of hate“. Government officials and political parties in various countries have used the COVID-19 pandemic to spread anti-immigrant, xenophobic, and white supremacist beliefs. This has resulted in an increase in hate crimes against minorities, including Asians.

Recent COVID-19 hate crime incidents in the US

Over the past year, more than 6,600 hate crimes have been reported against Asian-Americans, according to the advocacy group Stop AAPI Hate. Over the two years that the COVID-19 virus was widespread, several cases of violence and hate crimes in public spaces came up in the US. Some of the most preposterous attacks include homicide of an 84-year-old Thai immigrant on his daily walk in San Francisco, a 91-year-old senior being pushed to the ground in Oakland, assault and setting on fire an 89-year-old Chinese woman in Brooklyn, six Asian-American women being were shot at work in Atlanta, stabbing of two Asian American ladies at a bus stand in San Francisco,  among countless others.

Asian-American community lacked timely and sufficient support during the rise of hate speech in the US, possibly influenced by Trump and Pompeo’s use of “Chinese virus” and “Wuhan virus” in 2020. While Trump later stopped doing so, he did not call for government action either. In contrast, President Biden did bring out reforms to protect the Asian-American community in 2021.

Related issues with COVID-19 hate crimes in the US

Hate crimes often go unreported due to obstacles that hinder victims from reporting to local police, resulting in underreporting and a partial picture of the prevalence of hate crimes. Language barriers can also prevent Asian immigrants from reporting victimization. Additionally, mistrust of law enforcement and concerns about immigration status may deter victims from reporting hate crimes.

International Law and International Human Rights Law Programming at the 2023 AALS

/ Milena Sterio / Leave a comment

For those attending the 2023 AALS Annual Meeting in San Diego, California, here is a list of all International Law and International Human Rights Law-related programming.

  1. Conflict in Ukraine: Can Prosecuting Atrocity Crimes Make a Difference? (organizer/moderator Leila Sadat)

Cosponsors: Section on Comparative Law, Section on International Human Rights, Section on Global Engagement

Friday, January 6, 2023, 10:00 – 11:40 AM 

This program will focus on the atrocities committed during the conflict in Ukraine, from 2013 to the present time, as well as state responses to those actions. We will explore the actions of the International Criminal Court (ICC) and other justice mechanisms, including national systems, and the steps needed to investigate and prosecute atrocity crimes, as well as the political and diplomatic challenges to those prosecutions. We will also explore the reluctance of the United States to embrace the ICC as a global institution and the implications of that hesitancy for the legal academy and the Court. Finally, the panel will ask whether and how prosecuting atrocity crimes can make a difference either in Ukraine or elsewhere.

  • Second Program: Global War and Conflict in Ukraine and Beyond:  An Effective and Balanced Response? (Organizers/Moderators Craig Martin & Sahar Aziz)

Cosponsored by the Section on Comparative Law, the Section on Global Engagement, the Section on Litigation, and the Section on International Human Rights

Saturday, January 7, 2023, 8:30 – 10:10 AM 

The conflict in Ukraine, almost more than any other, has brought a host of international institutions and mechanisms to the fore and sparked litigation all over the globe. The United Nations Security Council, General Assembly, International Court of Justice, Committee on the Elimination of Racial Discrimination, Human Rights Council, European Court of Human Rights, World Trade Organization, and International Criminal Court are among the institutions that have acted or been engaged in addition to national courts.  Have national and international institutions been effective?  And why has the response in Ukraine seemingly been so different than the response in Syria, Yemen, Sudan, Israel/Palestine and a host of other “hot spots” around the world? This panel will take a look back at the events of 2022 and take stock of how well our international institutions have handled (or weathered) the events that unfolded.

  • Pedagogy Program: How Can Students and Faculty Make a Difference via Teaching and Clinical Work in Times of Crisis? (Organizers/Moderators Cindy Buys, Charlotte Ku & Milena Sterio)

Cosponsored by the Section on Global Engagement, Section on International Human Rights, and Section on Comparative Law. (Also cosponsored by teaching international law committee of ABILA.)

Friday, January 6, 2023, 3:00 – 4:40 PM

In light of conflicts around the globe, refugee flows, and human rights crises, this discussion will explore creative ways for faculty and students to make a positive difference and contribute to the development of international law through clinics, pro bono work, internships, externships, and other activities.

  • Discussion Group: Russia v. Ukraine: Implications for a New Global Order (organizer/moderator: Milena Sterio)

Thursday, January 5, 8:00 – 9:40 AM

This program will be a discussion group composed of experts who have studied the role of international law and international institutions in world affairs. The overall goal of this program will be to assess whether the ongoing conflict in Ukraine has the potential to disrupt the existing global order and our understanding of the role which international institutions play in global affairs. In addition, the panelists will focus on what role law schools will be able to play in terms of shaping such a possible new world order.

  • New Voices in International Human Rights (organizer/moderator: Milena Sterio)

Saturday, January 7, 1:00- 2:40 PM

This program will feature presentations by emerging scholars in the field of International Human Rights.

  • (organizer Tom McDonnell) 

Co-sponsored by the International Law Section.  

Friday, January 6, 1-2:40 PM

This Program covers the following: (a) To recognize that sanctions may advance the right to life; condemn Russia’s aggression, war crimes, and gross human rights violations against Ukraine; and may deter other states from violating international humanitarian law and human rights, and (b) To examine the intended and unintended consequences of general rather than smart sanctions; to acknowledge that few civilians bear responsibility for Russia’s aggressive war, war crimes, or gross human rights violations; and to analyze whether general sanctions violate the economic, social and cultural rights of the most vulnerable of the Russian civilian population.

Launching a Global Campaign Against Gender Apartheid in Afghanistan

/ Stephanie Farrior / Leave a comment

Three items to share on this, the one-year anniversary of the Taliban takeover of Afghanistan:

Register and attend what promises to be a riveting discussion on Global Strategies for Countering Gender Apartheid in Afghanistan on Friday 19 August 2022, with courageous Afghan women human rights defenders like Shaharzad Akbar and Zarqa Yaftali and international partners like the University of Michigan’s Professor Karima Bennoune and Human Rights Watch’s Heather Barr. Register here.

View filmmaker Ramita Navai’s documentary Afghanistan Undercover, about which noted interviewer Terry Gross of the program Fresh Air remarked in her interview with Navai: “I feel like the world isn’t watching as carefully anymore. And your documentary was a wake-up call to me. . . . things have gotten so dire for women there.”

Read Professor Bennoune’s powerful analysis The Best Way to Mark the Anniversary of Taliban Takeover? Launch a Global Campaign Against Gender Apartheid in Afghanistan, which explains why “it is critical to commit to a more effective and principled global response, and to do so by recognizing this grave set of abuses for exactly what it is: gender apartheid.”

Feminist methods in international law 

/ Cochav Elkayam-Levy / Leave a comment

Feminist methods in international law understood– A path to transformation: Asking “The Woman Question” in International Law / Cochav Elkayam-Levy


Methods matter and the discussion over feminist methods in international law is an important one. As Kathrine Bartlett famously noted, “thinking about method is empowering.” It makes us more aware of the nature of what we do and what we aim to improve in the law. Consequently, we can act more effectively when we examine legal structures and do it with a stronger sense of commitment to our feminist work. Methods are also the fundamental means by which we produce “valid knowing.” The discussion of feminist methods in international law is one that engages with the combination of rules and assumptions that shape and delimit our views about the exclusion of women’s experiences from this doctrine. Despite their significance, feminist methods in international law have been deserted. They seem neglected in ways that have weakened the sense of discipline that nurtures our feminist knowing. The prospect of clarifying some of the vagueness is the primary motivation for this new article. The article is dedicated to identifying, explaining and differentiating feminist methods in international law.
It then introduces the potential contribution of the method of asking the woman question – or what can be also termed as the gender question for broader inquiries about people of all genders – as a transformative question – for the work of many international lawyers on their path to developing feminist consciousness. It encourages a bold ambition to tackle structural barriers, embracing a commitment to transformative equality.
While this question seeks to highlight and address the continuing injustice that
women experience, it also allows scholars to see beyond the gender binary in ways that take into consideration a spectrum of genders and the impact of the law on people of all genders. It proposes clarity and promises a feminist sensitivity to any analysis of international law. Based on this method, the article develops a unique analytical model that tackles the distinctive structural ways in which the international legal system perpetuates women’s inequality.

The model is predicated on the evolving global idea of transformative equality – which I further develop in my research – asking us to reimagine the rules by which our society operates. It urges scholars to undertake a transformative reconstruction endeavor asking –

How would the law look like in a gender-just society? What rules would we have had women had a part in the design of the law? How would the law look like if women had equal social power? (pages 473-5).

It is intended to encourage transformative processes that confront entrenched social and legal gendered structures within the international legal system. It requires a complicated intellectual effort to reimagine the future as means to move toward a gender-just global system. Hopefully, reimagining the future will be the most empowering, fulfilling, and transformative result of this work.

Recommended Citation
Cochav Elkayam-Levy, A Path to Transformation: Asking “The Woman Question” in International Law, 42
MICH. J. INT’L L. 429 (2021).
Available at: https://repository.law.umich.edu/mjil/vol42/iss3/2
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3543189

Prosecution of Environmental War Crimes at the ICC: Exalted Thresholds

/ Ananya Mukherjee / Leave a comment

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.

April 18 – Ukraine Panel

/ Milena Sterio / Leave a comment

Please join us for this upcoming panel on the conflict in Ukraine – organized by the American Society of International Law, Transitional Justice and the Rule of Law Interest Group, and co-sponsored by the AALS International Law and International Human Rights Law Sections.

April 18, 2022

12:00 p.m. – 1:00 p.m. EST

The Ukraine Conflict: Expert Roundtable on Transitional Justice and International Criminal Law Issues

Organized by the Transitional Justice and Rule of Law Interest Group, American Society of International Law; co-sponsored by the AALS International Law and International Human Rights Law Sections

Panelists:

Milena Sterio, The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law, Cleveland-Marshall College of Law (moderator)

Vladyslav Lanovoy, Professor, Law Faculty, Universite Laval (Canada)

Pavlo Pushkar, Head of Division, Department for the Execution of Judgments, European Court of Human Rights

Margaret deGuzman, James E. Beasley Professor of Law, Temple University Beasley School of Law and Judge of the Residual Mechanism for International Criminal Tribunals

Rebecca Hamilton, Associate Professor, Washington College of Law, American University

Leila Sadat, James Carr Professor of International Criminal Law, Washington University School of Law and  Special Advisor on Crimes Against Humanity to the ICC Prosecutor

Milena Sterio is inviting you to a scheduled Zoom meeting.

Zoom Information:

Join Zoom Meeting

https://csuohio.zoom.us/j/84851000100

Meeting ID: 848 5100 0100

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Towards a Decoupled Peace

/ Cecilia Marcela Bailliet / Leave a comment

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  

Russia v. Ukraine: The Limits of International Law

/ Milena Sterio / Leave a comment

Several of my esteemed colleagues and experts have analyzed various international law issues related to the escalating Russia-Ukraine conflict (for example, see here and here and here).  The purpose of this post is not to reiterate some of such excellent analyses already published but rather to focus on the limitations of international law in this type of a conflict situation, implicating a Great Power such as Russia.

First, this conflict clearly implicates use of force issues in international law.  It is abundantly clear that Russia has violated Article 2(4) of the United Nations’ Charter when it used military force against the territorial integrity and political independence of Ukraine.  The international law prohibition on the use of force is also part of customary law and a jus cogens norm; international law is more than unequivocal that this type of behavior by Russia is a flagrant violation of one of international law’s fundamental norms.  Yet, despite this, international law remains limited in its ability to respond to Russian actions because of the fact that collective decision-making regarding authorizations to use force against a sovereign nation is tied to the Security Council, where Great Powers, such as Russia, have veto power.  Thus, although international law provides a clear answer about Russia’s violations of international legal norms, international law lacks appropriate legal mechanisms through which such violations can be adequately addressed.  Scholars have already written about possible limitations to the use of the veto power within the Security Council; such changes and perhaps broader reforms of the Council are desperately needed in situations as this one, where a veto-wielding member is in clear violation of the Charter’s fundamental norms.  For now, the international law system remains blocked when attempting to address violations by a Great Power, which happens to have veto powers within the Security Council. 

It is important to acknowledge that international law does leave open the possibility of a defensive use of force by Ukraine, through self-defense, and of collective self-defense, where Ukraine could request the assistance of another state in order to fend off Russian troops.  It is also important to note that NATO countries could decide to use force against Russia in order to defend Ukraine.  Precedent already exists for this type of use of force by NATO countries, to intervene militarily on the territory of a non-member state.  In fact, in 1999, NATO countries launched a series of air strikes against the Federal Republic of Yugoslavia, in order to force then-President Slobodan Milosevic to halt committing abuses against Kosovar Albanians.  Yet, these potential uses of force remain unlikely and would not be equivalent to a United Nations Security Council-approved collective use of force against Russia.  Most states are unlikely to agree to use their military troops in Ukraine, under the paradigm of collective self-defense, as this would most certainly provoke an attack by Russia against those states and expose those states to serious military and political risks.  Moreover, a NATO-led use of force to defend a non-member state remains illegal under international law, so long as such use of force remains unauthorized by the Security Council.  Although many have defended the 1999 NATO air strikes against the FRY as legitimate or morally authorized, or on humanitarian grounds, these air strikes were illegal under international law.  It is unlikely, as of now, that NATO countries would be willing to launch a military operation, illegal under international law, against a Great Power like Russia.  Thus, the only plausible use of military force against Russia would be through a Security Council-authorized, collective military coalition, both legal under international law and more likely to succeed militarily against a mighty opponent as Russia.  Yet, as explained above, this is not going to happen because Russia has veto power within the Security Council. 

Second, this conflict also underscores the limitations of international law in terms of accountability.  In theory, political and military leaders who order the commission of atrocity crimes ought to be held accountable.  Article 8bis of the ICC Rome Statute defines an act of  aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”  In this instance, it is clear that Russia’s President Putin has committed an act of aggression vis-à-vis Ukraine.  Yet, although the ICC can exercise jurisdiction over genocide, crimes against humanity, and war crimes in situations involving non-state parties (if the crimes are committed by a national of a state party on the territory of a non-state party), the jurisdictional regime over the crime of aggression is significantly more limited.  In fact, the ICC can only exercise jurisdiction over the crime of aggression in situations where both the victim and the aggressor state are members of the ICC; in this instance, because Russia is not a member, the court cannot exercise jurisdiction over the crime of aggression.  Thus, although it is certain that Putin has committed the act of aggression in Ukraine, it is almost equally certain that he will not face accountability at the ICC.  It is relevant to note here that the ICC can potentially exercise jurisdiction over the three other ICC crimes in Ukraine.  In fact, Ukraine accepted ICC jurisdiction over crimes allegedly committed there by Russian forces starting in 2013.  The ICC Office of the Prosecutor launched a preliminary investigation into Ukraine and concluded that reasonable basis existed to conclude that crimes against humanity and war crimes were indeed committed in Ukraine.  Thus, the ICC could continue to investigate and possibly prosecute those responsible for crimes against humanity and war crimes in Ukraine. However, as the current ICC Prosecutor, Karim Khan has confirmed, the ICC remains unable to investigate and prosecute the most important crime committed by Putin against Ukraine, aggression.

Third, the conflict also highlights the limited efficacy of the International Court of Justice (ICJ).  The ICJ is the primary judicial organ of the United Nations and a forum where states can in theory settle their disputes. Because the court’s jurisdiction is voluntary, states must either agree to litigate in the ICJ on an ad hoc basis or through a treaty’s dispute resolution clause.  In this case, Ukraine has sued Russia in the ICJ, basing jurisdiction on the Genocide Convention, to which both states are parties.  However, although the ICJ has jurisdiction over this dispute, the court’s reach is limited to genocidal offenses only (because jurisdiction is based on the Genocide Convention), and, most importantly, the court has no enforcement mechanisms.  Thus, although the ICJ could order Russia to cease using military force in Ukraine, the court has no direct ways to enforce its own judgment.  It is very likely that a Great Power such as Russia would simply ignore the ICJ’s judgment.  Thus, the power of the ICJ to contribute to the actual resolution of this conflict remains limited.

In sum, international law contains clear legal norms which condemn Russia’s invasion of Ukraine and which, on a theoretical level, impute state responsibility onto Russia and individual criminal responsibility on its leader, Vladimir Putin.  However, as this post discusses, international law remains limited in its ability to address the conflict.  Authorization for the use of force against Russia remains deadlocked in the veto-blocked Security Council; the crime of aggression’s restricted jurisdictional regime effectively shields Russian leaders from accountability at the ICC; the ICJ has no prospects of enforcing a judgment which would condemn Russia.  It may be argued that this relative inefficacy of international law is linked to the super-sovereign status of Great Powers, like Russia, which benefit from international law’s institutional design.  To illustrate this point, imagine a scenario where a non-super power, a state with an average size military and without a permanent seat on the Security Council, invaded a neighboring country.  In such a situation, the Security Council could act (assuming that this country was not directly allied with one of the Council’s five permanent members) and order collective force to be used against the aggressor state.  The country’s leaders could possibly face accountability in the ICC (there is a higher likelihood that a smaller, non-super power country would be a member of the ICC).  And a smaller, weaker state would be more likely to abide by an ICJ ruling.  International law, because of its general lack of enforcement mechanisms and because of its institutional design such as the veto power in the Security Council, contributes to an unequal order of states, where those with super-sovereign powers seem able to get away with breaches of fundamental norms with virtually no consequences. Russia, because of its status as a Great Power, has violated fundamental international law norms but may remain insulated from international law’s reach. 

International Solidarity

/ Cecilia Marcela Bailliet / Leave a comment

Professor Cecilia M. Bailliet has been chosen to Chair the Expert Advisory Group to the UN Independent Expert on Human Rights and International Solidarity Obiora Okafor. Together with other members of the group, Bailliet will prepare a report and suggest revisions to the current draft declaration on the right to international solidarity.

In addition to Bailliet, the group consists of Professor Obijiofor Aginam of the UN University, Professor Mihir Kanade of the University of Peace in Costa Rica, Professor. Vesselin Popovski of the Jindal Global Law School, and Professor Jaya Ramji-Nogales of Temple University.

The group will present its report and recommendations for a revised draft in April 2022 to the Independent Expert who then will share with key states within the UN Human Rights Council in order to make a presentation to the Council for adoption.

The group benefits from the findings provided by the research assistance of UiO law students Solveig Hodnemyr and Julie Skomakerstuen Larsen and Johns Hopkins University student Jeff Baek. The right to solidarity is described as being part of “the second wave of third generation rights” including the right to peace (adopted as a Declaration by the UN General Assembly); the right to development (currently being drafted as a convention); and the right to a healthy environment (recognized by the UN Human Rights Council).

This work complements Professor Bailliet’s current project editing the Research Handbook on International Solidarity to be published by Edward Elgar 2022-23; it includes chapters by other women scholars (including Jaya Ramji-Nogales): Beate Sjåfjell, Alla Pozdnakova, Vasuki Nesiah, Sylvia Bawa, Usha Natarajan, Elizabeth Salmon, Karin Frode and Shyami Puvimanasinghe.

For those of you attending the 2022 ASIL Conference virtually, there will be a session on solidarity in Track 6 on Competing Values of International Law. This roundtable will include Noura Erakat, Maha Hillal, Azadeh Shashahani, Nia Houston, and Cecilia Bailliet.