Steel grid on the background of the flag

L’affaire Kljajic; les personnes ayant commis des violations de droit pénal international n’ont pas leur place au Canada

Le 30 avril 2020, la Cour fédérale du Canda a rendu son jugement dans l’affaire Kljajic. Les questions en litige étaient de déterminer si M. Kljajic a obtenu sa citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels, si en 1992, il détenait un poste de rang supérieur au sein du ministère de l’Intérieur de la Republika Srbpska (RS-MUP) et s’il était complice dans les crimes contre l’humanité commis par ce ministère contre les civils non serbes.
Stock market slump stock chart futuristic

World Trade Organization arbitrator finds that Covid-19 measures justify delay in compliance with WTO obligations

A World Trade Organization (WTO) arbitrator has ruled that Ukraine can have extra time to bring its illegal anti-dumping measures into compliance with WTO obligations because Ukraine’s measures addressing the COVID-19 pandemic may affect the conduct of its anti-dumping investigations (Award of the Arbitrator, Ukraine--Ammonium Nitrate).
The latch on the temporary detention cell in the police Department

Immunity and Impunity: Personal Immunities and the International Criminal Court

There are perhaps few greater challenges to the enduring legitimacy and efficacy of the International Criminal Court (ICC) than the issue of personal immunities. While it is relatively settled law that personal immunity of sitting Heads of State cannot serve as a bar to prosecution by international courts, the question of whether personal immunity can prevent national jurisdictions from enforcing arrest warrants issued by the ICC has divided the international community. The stakes in this dispute are not merely academic: since the ICC lacks an enforcement
protest against anti-abortion law forced by Polish government PIS

The Current Landscape and Future of Polish Reproductive Rights

In spite of increased domestic and international attention to the issue, Poland maintains its restrictive stance on abortion in contrast to its European counterparts which embrace more flexible regimes. Typically, countries with strong Catholic traditions willingly adopt restrictive positions on abortion with Poland being no exception (86 percent of the population identifies as Roman Catholic).
Monument The tragedy of the peoples

Combatting Impunity for Cultural Destruction

Genocide has been called the “crime of all crimes”. It stands at the apex of international criminal law. In its broadest sense, genocide is the attempt to destroy, in whole or in part, a national, ethnical, racial or religious group. While there are various elements to genocide, this article is concerned with destruction. Specifically, whether cultural destruction fits within the Genocide Convention (the “Convention”).
The International Criminal Court in Hague, Netherlands

A Framework for detention or conditions for release pending appeal of acquitted accuseds

On May 28, 2020, the Appeals Chamber of the International Criminal Court varied conditions that it had earlier placed on the release of Laurent Gbagbo and Charles Blé Goudé on appeal from a decision by the Trial Chamber that they were entitled to immediate release after their January 15, 2019 acquittal at trial on charges of crimes against humanity in the Ivory Coast. This article will consider the two decisions rendered by the Appeals Chamber creating a framework for dealing with the issue of continued detention or conditional release of an acquitted accused before appeal after briefly reviewing the Trial Chamber proceedings.
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.