Two Weeks in Overview, 12 – 25 August 2024 – EJIL: Discuss! – Cyber Tech

The Worldwide Courtroom of Justice

Juliette McIntyre, Kyra Wigard, and Ori Pomson talk about current developments within the Worldwide Courtroom of Justice (ICJ) case Ukraine v. Russia, specializing in the standing of state interventions. The ICJ’s press launch on 6 August 2024 revealed that out of 32 states that beforehand intervened, six maintained their unique declarations, eight adjusted theirs, and 9 submitted new ones. This clarification addresses earlier uncertainty concerning the standing of those interventions following the ICJ’s preliminary objections judgment in February 2024, which allowed Ukraine’s declare regarding genocide to proceed however partially upheld Russia’s objections. The authors spotlight the complexities launched by the ICJ’s acceptance of adjusted and new declarations, the potential implications for procedural effectivity, and the authorized arguments offered by intervening states, significantly relating to the Genocide Conference and the burden of proof. They conclude that:

“In conclusion, the proceedings in Ukraine v. Russia as soon as once more present that it’s essential to attract classes from previous interventions, particularly with this huge variety of intervenors, to enhance future processes. That is significantly so contemplating that South Africa v. Israel and The Gambia v. Myanmar are additionally on the Courtroom’s docket. One sensible suggestion could possibly be to streamline the intervention course of by requiring states to submit a single, complete doc that addresses all factors of interpretation they want to increase. This method is additional supported by the Courtroom’s stance in The Gambia v. Myanmar order, the place it was clarified that intervenors are restricted to interpretation, however not strictly to the factors of interpretation which are in dispute between the events. By consolidating all interpretative arguments into one submission, even at an early stage, the method would change into extra environment friendly, and would mirror the necessities imposed on candidates when submitting a memorial.”

Learn the total publish right here.

Jinan Bastaki explores the ICJ current Advisory Opinion on the ‘Authorized Penalties Arising from the Insurance policies and Practices of Israel within the Occupied Palestinian Territory, together with East Jerusalem’ (the OPT advisory opinion), specializing in the mens rea required to ascertain the crime of apartheid. The writer brings consideration to the differing between the ICJ judges on whether or not Israel’s actions met the mandatory intent to keep up a regime of racial domination over Palestinians. Whereas some judges, like President Nawaf Salam and Choose Tladi, argued that the proof clearly demonstrated Israel’s intent to keep up apartheid, others, like Choose Nolte, referred to as for the next commonplace of proof, much like that required for genocide, to make sure that apartheid is the one affordable inference from Israel’s actions. Bastaki critiques the applying of such a stringent commonplace, suggesting it might undermine accountability for apartheid by permitting different doable justifications, like safety considerations, to obscure the intent to dominate. Learn the total publish right here.

Aeyal Gross examines the ICJ’s current OPT Advisory Opinion, arguing that the ICJ’s reasoning creates a synthetic separation between norms exterior to the legislation of occupation and the intrinsic rules of the legislation itself. Theauthor considers the ICJ’s findings that Israel’s extended occupation is illegal, not solely as a result of it violates norms just like the prohibition on the usage of drive and the correct to self-determination, but additionally as a result of it breaches the core rules of occupation legislation—specifically, that occupation doesn’t confer sovereignty, should profit the native inhabitants, and have to be momentary. Gross argues that these rules, central to the legislation of occupation, are inherently linked to broader worldwide norms, and that the ICJ’s method underscores the illegality of Israel’s continued presence within the OPT. The writer additional asserts that labeling an occupation as “unlawful” is essential to forestall it from turning into a type of disguised conquest or colonialism, emphasizing that the occupation should finish because it basically violates each the legislation of occupation and normal worldwide legislation. Learn the total publish right here.

Worldwide prison legislation

Kai Ambos examines Germany’s amicus curiae submission to the ICC relating to the arrest warrant proceedings for Israeli Prime Minister Netanyahu and Defence Minister Gallant. The submission raises considerations about complementarity, arguing that the ICC ought to assess whether or not Israel’s home authorized system is actively investigating potential worldwide crimes and whether or not the state of affairs has considerably modified since October 7, 2023. Germany argues that Israel must be given extra time to handle accountability earlier than the ICC intervenes and {that a} state’s normal willingness to cooperate must be thought-about. Ambos critiques these arguments, suggesting they prioritize political issues over the ICC’s rules of complementarity and procedural requirements. Learn the total publish right here.

Andreas Zimmermann examines Ukraine’s potential ratification of the Rome Statute and its intention to make the most of Article 124, which permits states to exclude the ICC’s jurisdiction over conflict crimes dedicated by their nationals for seven years. The writer notes that not like earlier makes use of of the article by France and Colombia, Ukraine’s declaration would solely exclude its nationals from ICC jurisdiction, not international nationals committing crimes on its territory. Zimmermann concludes that Ukraine’s transfer to ratify the Rome Statute, even with an Article 124 declaration, is a big step in direction of worldwide justice. The continued relevance of Article 124 means that it nonetheless performs a vital position within the ICC’s authorized framework, significantly for states concerned in ongoing conflicts. Learn the total publish right here.

Claus Kreß discusses Germany’s evolving stance on useful immunity within the context of worldwide prison legislation. He highlights the Federal Courtroom of Justice’s February 2024 order, which clarifies that useful immunity doesn’t apply to crimes beneath worldwide legislation, whatever the perpetrator’s rank. This resolution aligns with earlier rulings and contradicts Germany’s earlier ambiguity on the matter. The German Parliament strengthened this place by enacting a statutory provision that explicitly denies useful immunity for crimes beneath worldwide legislation. The article additionally notes the significance of Germany’s evolving apply in shaping worldwide norms, significantly within the context of the Worldwide Legislation Fee’s work on state official immunity. Kreß means that Germany ought to replace its stance to completely align with its judicial apply, thereby enhancing its credibility in worldwide authorized discourse. Learn the total publish right here.

Human rights legislation

Arifur Rahman’s article explores the complexities of the “business-exit method” the place firms might withdraw from nations with harsh anti-LGBTI legal guidelines, comparable to Uganda, to uphold LGBTI rights. Whereas this method aligns with queer human rights due diligence (QHRDD) beneath the UN Guiding Ideas on Enterprise and Human Rights (UNGPs), Rahman argues that it may have unintended damaging penalties. These embody reinforcing the notion of homosexuality as a Western imposition, endangering native LGBTI workers, and doubtlessly scary stricter anti-LGBTI laws. Rahman means that whereas company exits might appear to be a robust stance for LGBTI rights, firms should rigorously weigh the broader implications of such actions earlier than deciding to depart. Learn the total publish right here.

Brianna Hernandez, Christine Bianco, and Zenel Garcia argue that the worldwide authorized system’s failure to acknowledge “local weather refugees” exacerbates the vulnerabilities of these displaced by local weather change, particularly marginalized communities going through ecological and gender inequalities. They critique present frameworks, such because the Refugee Conference and the ICCPR, for inadequately defending local weather migrants resulting from restrictive definitions and interpretations. The publish highlights how these inadequacies disproportionately have an effect on ladies within the Asia-Pacific area, who face elevated dangers and violence resulting from climate-induced challenges. The authors name for pressing authorized reforms to handle climate-induced displacement and incorporate issues of ecological and gender-specific impacts to forestall additional entrenching present inequalities. Learn the total publish right here.

Attribution and Useful Immunity 

Marko Milanovic analyzes two high-profile circumstances specializing in problems with attribution and useful immunity in worldwide legislation. The primary, a prisoner alternate between Russia and Western states, the place Russia launched political prisoners and the West freed Russian secret brokers. Milanovic discusses the implications of this alternate, noting that Russia has admitted a few of these people had been appearing on its behalf, elevating questions on how such admissions match inside the Worldwide Legislation Fee’s (ILC) framework on state accountability. The second case considerations the 2022 sabotage of the Nord Stream pipelines, allegedly carried out by a Ukrainian workforce with orders from Normal Zaluzhnyi, regardless of a countermanding order from President Zelenskyy. Milanovic examines how this operation works inside the ILC’s framework on state accountability, significantly Articles 4 and eight. He contends that whereas Normal Zaluzhnyi’s actions might have been extremely vires, the conduct of the saboteurs, who had been beneath his orders, is attributable to Ukraine. Milanovic additionally discusses useful immunity, questioning why states typically prosecute people concerned in clandestine operations for strange crimes, regardless of the immunity usually afforded to state officers appearing on behalf of their state. This inconsistency prompts a name for clearer explanations from states relating to their stance on useful immunity in such circumstances. Learn the total publish right here.

Protected Standing beneath GC IV

Maksym Vishchyk and Jeremy Pizzi discover the interpretation of protected standing beneath the Fourth Geneva Conference (GC IV), which historically grants safety primarily based on nationality. The authors look at the ‘allegiance’ check launched by the Worldwide Legal Tribunal for the Former Yugoslavia (ICTY), which extends this safety to people primarily based on elements past nationality, comparable to ethnic ties and political affiliations. Whereas this interpretation, later adopted by the Worldwide Legal Courtroom (ICC), aimed to reinforce protections, the authors argue that it creates authorized inconsistencies and challenges, significantly when utilized to conditions just like the Russia-Ukraine battle. They name for a extra restrained method, suggesting that nationality ought to stay the first criterion for figuring out protected standing, with the allegiance check reserved for particular circumstances the place nationality alone is inadequate. Learn the total textual content right here.

New Concern of EJIL (Vol. 35 (2024) No. 2) is now out!

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