The Hague, The Netherlands

Report on “It’s about time: Revisiting the timing and duration of decision- making at the International Criminal Court”

The 18th Assembly of States Parties (ASP) to International Criminal Court (ICC), which took place from 2 to 7 December 2019 in The Hague marked the beginning of the ICC Review Process. This far-reaching process aims at identifying and implementing measures to strengthen and improve the performance of the ICC and the Rome Statute system.
Nuclear arms question

Canada’s Regulation of Weapons Exports: “Under-implementation” of the Arms Trade Treaty

On 17 September 2019, Canada acceded to the United Nations Arms Trade Treaty (ATT), an international convention that has two objectives: establishing the highest possible common international standards in the regulation of international trade in conventional arms, and the prevention and eradication of the illicit trade and diversion of conventional arms. At the time of writing, the ATT has 106 state parties and 130 signatories.
Justice mallet and blank document with Covid-19 red stamp

Can China be sued because of Covid-19?

On April 20, a group of Floridians – individuals and a business – launched a novel class action lawsuit against China, blaming it for the scale and spread of the Covid-19 pandemic. The pandemic is widely agreed to have begun in Wuhan City, in China’s Hubei province. The plaintiffs claim that the ensuing economic and human damage was exacerbated by delays and cover-ups by the Chinese government, its health commission, internal ministries, and local governments.
Loading of iron are on very big dump-body truck

Overseas mining firm insulates itself from tort liability by calling local police

The English and Wales Court of Appeal recently upheld the trial judge’s ruling in Kalma & Others v African Minerals Ltd & African Minerals (SL) Ltd & Tonkolili Iron Ore (SL) Ltd (collectively AML) holding that a UK mining firm operating in Sierra Leone was not responsible in tort for relying on the Sierra Leone Police (SLP) which had used excessive force in quelling two local disturbances that left one local killed and others injured. This article will look at the various theories of liability put forward by the claimants attempting to hold the AML liable in tort in the English courts and how all of them were defeated by the trial judge’s findings that AML had done nothing of a causative nature to bring about the harm.
Military silhouettes fighting scene

Extra-Territorial Jurisdiction Update - Jurisprudence

Extraterritorial jurisdiction was discussed recently in this journal in the following two articles: https://globaljustice.queenslaw.ca/news/extra-territorial-jurisdiction-… and https://globaljustice.queenslaw.ca/news/the-simple-way-out-why-internat…, the latter of which incorporates this detailed report: https://trialinternational.org/wp-content/uploads/2020/03/TRIAL-Interna…. These two articles discussed new developments in this area in a general sense, in which the first article concluded that there had been 10 convictions for both international crimes as well as terrorism since July 2018, the cut-off date of this book: https://www.toaep.org/ps-pdf/37-einarsen-rikhof (while there have been two other academic publications discussing extraterritorial jurisdiction, namely here and here).
Clean water is poured into a glass from the tap

The right to water and sanitation under the European Convention

The European Court of Human Rights recently released a decision about a state’s obligation to provide safe drinking water and sanitation in Hudorovič and Others v. Slovenia. Two Roma families brought proceedings against two municipalities in Slovenia alleging that their lack of access to safe water and sanitation infringed their right to respect for private and family life under article 8 of the European Convention on Human Rights and the prohibition of discrimination under article 14. This article will examine how the Court interpreted the right to private life as a positive obligation on the state.
Part of a pit with big mining truck workin

Nevsun and Civil Liability within the Arsenal of Human Rights Strategies

The recent Supreme Court of Canada decision in Nevsun Resources Ltd. v. Araya (see here) has opened a door to providing civil redress where Canadian companies are complicit in serious breaches of international human rights law abroad. The case was recently reviewed in this Journal (see here). This article offers some thoughts on a portion of the judgement that focuses on whether a claim for breach of customary international law (CIL) by a corporation can found a private common law action.
Trial international

The simple way out? Why international crimes must not be prosecuted as terrorism

The fight against terrorism has become a political priority for many governments in the past years. Unsurprisingly, the judiciary has followed this trend and prosecutions for terrorism are also on the rise. But what exactly do charges for “terrorism” encompass? More importantly, what do they leave out? And paradoxically, could the increased use of terror charges threaten the prosecution of the worst atrocities?
Tank Syrian national army

Extra-Territorial Jurisdiction Update

On March 1, 2019, this Journal published a question and answer session with Terje Einarsen and Joseph Rikhof about their book “A Theory of Punishable Participation in Universal Crimes”. This book discusses extra-territorial jurisdiction in its chapter 8 with an overview of domestic jurisprudence in the area of international crimes (war crimes, crimes against humanity, genocide and torture) in 15 countries on two continents, Europe and North America, until July of 2018.
Idlib, Syria

Working Methods of the United Nations Security Council Failures in Syria

After almost nine years, the Security Council remains deadlocked on the Syrian crisis, incapable of passing any meaningful resolution. Throughout the Syrian civil war, Russia has continued to undermine its duty as a permanent Security Council member through its use of the veto power. As a result of the Security Council impasse, the General Assembly intervened by creating the International, Impartial and Independent Mechanism (IIIM) to assist in the investigation and prosecution of persons responsible for the most serious crimes under International Law committed in the Syrian Arab Republic since March 2011.
Silhouette of military soldier or officer with weapons

Afghanistan Investigation Gets the Green Light from the Appeals Chamber of the International Criminal Court

On March 5, 2020, the Appeals Chamber of the International Criminal Court decided to authorize the Prosecutor to investigate the situation in the Islamic Republic of Afghanistan by amending the Pre-Trial Chambers’s controversial decision to refuse her request to do so. This Journal commented on the lower chamber’s decision no-investigation-in-afghanistan.
Bulldozer

Is there a right to sue a corporation for breach of customary international law in domestic courts in Canada?

The Supreme Court of Canada took one step closer to testing the issue of whether individuals alleging a breach of customary international law can sue a Canadian corporation with overseas operations for a remedy at common law in Canada. In Nevsun Resources Ltd. v. Araya, the Court dismissed the appeal of Nevsun which had unsuccessfully sought to strike the claim of three Eritrean refugees who had sued it in its province of incorporation for damages based on domestic torts and for breaches of customary international law alleged to have been suffered in the operations of Nevsun at a mine in Eritrea.
The Hague Holland

Determining whether a case has sufficient gravity to be admissible at the International Criminal Court (ICC)

On February 19, 2020, the Appeals Chamber of the ICC released its decision Al Hassan Admissibility Appeal dismissing the appeal of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan) from the Al Hassan Pre-Trial Chamber Admissibility decision which had held that his case, charging him with thirteen charges of war crimes and crimes against humanity, met the requirement under article 17(1(d) that it was sufficiently grave to be admissible before the Court.
Business woman writing information about stock market in notepad

Kevin Kolben and The Consumer Imaginary: Labor Rights, Human Rights, and Citizen-Consumers in the Global Supply Chain: Commentary and Analysis

Globalization has always been a vexing topic, especially where labour and human rights law intersect with international trade. The global supply chain economy offers opportunities to businesses and consumers to access lower prices, innovative products, and essential raw materials. Increasingly, firms are outsourcing their manufacturing and production, especially to East Asia, BRICs and developing countries, prompted by lower trade tariffs and more powerful information technology and communications. Lead firms like Apple and Nike may not make much of anything themselves anymore, but they do rely on massive, disaggregated production chains and “fissured” workplaces in other countries where labour and health standards may be considerably lower and where employees have little or no relationship with lead firms.
Phnom Penh Cambodia

National and International Judicial Interpretations of ‘Most Responsible” at the Extraordinary Chambers in the Courts of Cambodia

Last December, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) released Considerations in three appeals from an unprecedented issuance of two conflicting Closing Orders issues by the Investigating Judges after examining the case of AO An over a period of a decade. The National Investigating Judge dismissed the case. The International Investigating Judge indicted AO An for the crimes of genocide, the crimes against humanity of murder, enslavement and other inhumane acts, extermination, persecution on political and religious grounds, torture, imprisonment and for breaches of provisions of the Cambodian Penal Code of 1956 committed during the Khmer Rouge regime in his Closing Order.
Kutupalong

The World is Watching: The International Court of Justice Orders Provisional Measures to Protect the Rohingya from Genocide

On January 23, 2020, in the case of The Gambia v. Myanmar, the International Court of Justice (ICJ or Court) unanimously ordered provisional measures on the basis of the Genocide Convention to protect the Rohingya from acts of genocide and safeguard the evidence. This order arrives in the midst of a heated sociopolitical context in Myanmar: whereas the Rohingya have been victims of appalling human rights violations for decades and have been repeatedly described as the “most persecuted minority in the world,” the Myanmar government has consistently denied the allegations (here, here and here). A few days before the ICJ order, Myanmar released the report of its Independent Commission of Inquiry, which found “no genocidal intent.” Its official reaction to the ICJ order came as no surprise, further denying the existence of a genocide.
International Criminal Court

Approaching a Convention on International Cooperation in the Investigation and Prosecution of the Crimes of Genocide, Crimes against Humanity and War Crimes

“The perpetrators of the most serious international crimes are not stopped by international borders. The example of Eichmann … is just one example, but there are many more. What to think of that other famous Nazi Joseph Mengele, who, unlike Eichmann, was never brought to justice for the crimes he committed? The current legal framework still leaves loopholes for a modern day Mengele. I’m sure that [many States have] examples of cases where effective prosecution was impeded by our inadequate system for international cooperation on these matters.”
International Criminal Court

A Prescription for Optimism – Judge Kim Prost on the Future of the International Criminal Court

Judge Kim Prost was elected as Judge of the International Criminal Court (ICC) in 2018, for a term of nine years. Due to her international expertise, Judge Prost contributed to the United Nations Convention Against Transnational Organized Crime, and the United Nations Convention Against Corruption. Judge Prost also served as a member of the Canadian delegation for the negotiation of the Rome Statute – the legislation that governs the International Criminal Court.
No violence no hate speech

Some Observations on Hate Speech in Armed Conflicts

In proceedings instituted before the International Court of Justice, The Gambia alleged that Myanmar’s treatment of the Rohingya people breached the Genocide Convention, relying in part on the expressions of hate by Myanmar as evidence of the special intent required. Professor Rikhof recently wrote an article about hate speech in international criminal law in this Journal The-ICC-and-Hate-Speech. In this article I will offer some thoughts on the hate speech in The Gambia’s pleadings, the arguments before the International Court of Justice (ICJ) and the only conviction this year at the International Criminal Court (ICC) in the Ntaganda case from a Canadian legal perspective.