Second Week of the Assembly of States Parties to the ICC

News: Second Week of the Assembly of States Parties to the ICC

As mentioned in a previous post, the Canadian Centre for International Justice (CCIJ) attended the Assembly of States Parties (ASP) to the International Criminal Court (ICC) Statute in New York City as a member of the Canadian Partnership for International Justice (“the Canadian Partnership”). The goal of the second week recap, as in the first, is to inform those who were not at the ASP about the topics and discussions that were on the agenda, with relevant links for those who would like to pursue these topics further.
Vancouver Law Courts

Case Comment: Potential Corporate Liability in Transnational Law Redux

The following case comment analyzes the British Columbia Court of Appeal decision in Araya v. Nevsun Resources Ltd, in which the plaintiffs allege Nevsun is liable for actions contrary to international law that occurred in Eritrea at a mining project in that country. The Court of Appeal unanimously dismissed Nevsun’s appeal from the decision of the Chambers judge on the issues of forum non conveniens, the act of state doctrine and potential liability for breaches of customary international law, allowing the action to proceed to trial. The analysis of the Court of Appeal of the issues is detailed and could be read with the decision of the same court in Garcia v. Tahoe Resources Inc. that allowed a similar action to proceed.
First Week of the Assembly of States Parties to the ICC

News: First Week of the Assembly of States Parties to the ICC

The Canadian Centre for International Justice is currently attending the Assembly of States Parties (ASP) to the International Criminal Court (ICC) Statute in New York City as a member of the Canadian Partnership for International Justice (“the Canadian Partnership”). The goal of the first week recap is to inform those who were not at the ASP about the topics and discussions that were on the agenda, with relevant links for those who would like to pursue these topics further.

Analysis: Thoughts on a Customary International Law Tort and the Canadian Legal System

In an earlier PKI Journal post, James Hendry summarizes the B.C. Supreme Court decision of Chambers Judge Abrioux in Araya v. Nevsun Resources Ltd. on whether there might be a private law claim for breach of customary international law (“CIL”). Following an appeal by Nevsun, that decision was upheld by the B.C. Court of Appeal on November 21, 2017. This article explores some of the legal and policy considerations raised by the breach of CIL claim.
U.S. Army soldiers and United Nations’ police move down a muddy alley way in Mitrovica, Kosovo, as they conduct a house-to-house search for weapons on Feb. 21, 2000.

Analysis: The Specialist Chambers and Specialist Prosecutor in Kosovo

On June 28, 2017, the Specialist Chambers of the Constitutional Court of Kosovo (SCCC), a court composed entirely of non-nationals of Kosovo, delivered a decision under the Constitution of Kosovo at The Hague. None of the judges of the Chamber were Kosovar; they were from Ireland, Italy and the Netherlands; and the decision was rendered at The Hague in the Netherlands. How and why was a Constitutional Court presided over by non-nationals, authorized to deliver a decision on the Constitution of Kosovo in another country?
The operations launched by the Armed Forces of the DRC, with the support of MONUSCO, against militiamen of the Force de résistance patriotique de l’Ituri, have enabled the gradual return of populations to Aveba and surrounding areas.

Case Comment: Reparations for Death and Destruction in the Congo

On March 7, 2014, Congolese warlord Germain Katanga was found guilty by the International Criminal Court (ICC) of being an accessory to crimes against humanity and war crimes as a result of an attack that took place in the Democratic Republic of Congo (DRC) in 2003. The charges relating to crimes against humanity were for murder, and the four war crimes were murder, attacking a civilian population, destruction of property and pillaging.
A school in Koindu damaged during the Sierra Leone Civil War by the Revolutionary United Front (RUF).

Analysis: The Notion of Civilians in International Criminal Law

The traditional and long held view has been that there a number of fundamental differences between war crimes and crimes against humanity. They are, in general, six essential elements. Of these six elements of war crimes and crimes against humanity, the element defining the category of crime by category of victim, has undergone a drastic change in 2017 in both the area of war crimes and crimes against humanity. This has been the result of judicial decisions at both the International Criminal Court (ICC) and the Extraordinary Chamber in the Courts of Cambodia (ECCC). The ICC addressed the issues of whether war crimes can be committed against soldiers belonging to the same party to the conflict while the ECCC examined whether soldiers can also be victims of crimes against humanity.
Sergei Magnitsky

Commentary: The Magnitsky Act – A Bold Step Forward, but Changes Needed

The Canadian Centre for International Justice (CCIJ) applauds the Government of Canada and the Canadian Parliament for granting unanimous consent to the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) on October 4. The Act enables the government to take measures against foreign nationals who are responsible for or complicit in corruption and gross violations of internationally-recognized human rights and freedoms. This long-awaited legislation fills a vacuum in Canadian law, creating sanctions and remedies. It serves as a much-needed tool against impunity for human rights violations and corruption, and for the rule of law and accountability in free and democratic societies.
Candles burning in Patiala, southeastern Punjab.

Case Comment: The Value of Assurances in Extradition Proceedings

India recently requested the extradition of Surjit Singh Badesha and Makit Kaur Sidhu who are Canadian citizens suspected of having conspired to murder Jaswinder Kaur Sidhu, the niece of Badesha and daughter of Sidhu, in an “honour killing”. The case reached the Supreme Court of Canada which released its decision on September 8, 2017. The central issue for the Court was whether the quality and role of assurances given by the Indian government justified the Minister of Justice’s finding that neither accused faced a substantial risk of torture or other mistreatment while in custody when surrendered to India for trial. That kind of risk would have been contrary to s. 7 of the Charter and s. 44(1(a) of the Extradition Act, which precludes extradition where the surrender would be “otherwise unjust or oppressive” in the circumstances.
Residents of Timbuktu pass by Djingareyber Mosque. The Mosque is one of the historical architectural structures which together earned Timbuktu the designation of World Heritage Site by UNESCO.

Case Comment: Reparations for the Destruction of the Precious Past

This article will explore the procedures and principles applied by the International Criminal Court (ICC) in ordering reparations for damage done to World Heritage sites. The case is remarkable because it was the first international trial concerning the destruction of historical and religious monuments alone and reparations for a war crime that was aimed at damage to such buildings and economic loss flowing from it, and not to victims of personal violence. It was also the first ICC case where the defendant admitted guilt.
Defendants at the International Military Tribunal for the Far East, 1946.

Analysis: Judges as Perpetrators of War Crimes and Crimes Against Humanity

While it is uncommon, judges have been subject to disciplinary proceedings or even criminal trials. Often these criminal charges dealt with corruption but at times they have also involved more serious offences, such as murder. However, it almost unheard of to have the criminal process used to convict judges of international crimes, such as war crimes or crimes against humanity.
 Explosive remnants of war in post revolution Libya.

Case Comment: New Arrest Warrant at the International Criminal Court

On August 14, 2017, the Pre-Trial Chamber (PTC) of the ICC issued a warrant for the arrest of Mahmoud Mustafa Busayf Al-Werfalli in the situation, pertaining to Libya after the fall of the Gaddafi regime, referred to the Prosecutor by the Security Council. This is the 33rd person against whom proceedings have started by the Prosecutor of the ICC since the inception of the court in 2002, either by way of arrest warrant or as a result of a summons to appear. He is also the fifth person against whom a warrant for arrest was issued in the Libyan situation, although the first one who was not connected the Gaddafi government for the commission of international crimes in 2011. The allegations against Al-Werfalli are related to incidents which occurred between June and July of this year.
Sudanese president Omar Al-Bashir arrives in the southern capital of Juba.

Case Comment: The Reach of an ICC Arrest Warrant

An earlier article in this Journal considered the attempt by the executive of the Government of South Africa to cut its ties with the ICC out of concern about the warrants issued by the Court for the arrest and surrender of Omar Hassan Ahmad Al-Bashir and the ruling of the High Court that the attempt was unconstitutional. The High Court and the Supreme Court of Appeals had earlier held that the Government’s refusal to act on the warrants was a breach of domestic law. South Africa continuously maintained that its duty to arrest a visiting Head of State interfered with its ability to engage in diplomacy in Africa.
Court of Appeal and Supreme Court of British Columbia

Case Comment: Potential Corporate Liability in Transnational Law

An earlier article in this Journal discussed a preliminary application made by Nevsun Resources Ltd., a British Columbia mining company, to defeat an action brought against it by Eritrean nationals alleging breaches of their rights in the operation of the Bisha mine in Eritrea from proceeding in BC. Nevsun pleaded that the mine is owned and operated by Bisha Mining Share Company (“BMSC”). For the purposes of the application, the Chambers judge, Abrioux J., found that BMSC was effectively controlled by Nevsun which had pleaded that it was an “indirect shareholder” in BMSC. The central issue in the action is the liability of Nevsun for alleged torts and human rights breaches based on injuries occurring in Eritrea. The earlier article in this Journal analyzed the issue raised in this application, about whether British Columbia was forum non conveniens. The Chambers judge held that it was not.
Artwork entitled “Rwanda Genocide Court Jails Former Ministers / Body Boxes”

La justice pénale internationale : des petits pas géants

Il arrive que nous naviguions dans le monde juridique en tant qu’acteur sans réellement comprendre l’impact que nous pouvons avoir. Il arrive que nous poursuivions des études juridiques, voire une carrière juridique, sans réellement créer de lien entre le domaine légal et notre vécu. Il arrive qu’un domaine du droit nous semble si complet et complexe que nous ne cherchons pas à en explorer l’entièreté. Quelquefois, il en va autrement. Il arrive que nous trouvions un domaine du droit qui donne une signification à tout notre vécu. Il arrive que nous découvrions une sphère du droit dont les facettes, tant positives que négatives, deviennent une réelle inspiration. Il arrive que nous découvrions un monde qui, loin d’être parfait, nous donne envie de contribuer non seulement à sa préservation mais aussi à son développement. Pour moi, le deuxième scénario a commencé dans une expérience de bénévolat.
Road sign to Bisha offices

Case Comment: Forum non Conveniens and Liability for Alleged Human Rights Violations – The Nevsun Resources Ltd. Case

In October 2016, the Supreme Court of British Columbia decided to exercise its jurisdiction to hear claims resulting from alleged human rights violations and civil torts in the case of Araya v. Nevsun Resources Ltd. The Nevsun proceeding had commenced in 2014 on the issue of whether foreign plaintiffs can sue in a Canadian court for violations they allegedly suffered in Eritrea. The case is significant in part because the civil lawsuit is among the first human rights cases in Canada to assert claims based directly on international law prohibitions against forced labour, slavery, torture and crimes against humanity and because of the implications for Canadian companies doing business in developing countries where the rule of law is fragile or nonexistent.
Anti mining sticker in town hall– Guatemala

Case Comment: Transnational Law and Canadian Courts – The Issue of Forum non Conveniens

Canadian extractive corporations do business around the world. Sometimes protest and conflict surround their activities or labour might be procured in less than humane ways and locals become victims. Can relief be sought where the parent corporation resides in Canada for what might amount to breaches of human rights norms?
President Jacob Zuma addresses at Ellis Park Stadium in Johannesburg

Analysis: South African Executive Cannot Unilaterally Withdraw from the ICC

The High Court of South Africa recently made a declaration that a notice of withdrawal from the Rome Statute of the International Criminal Court filed by the executive of the South African government without prior Parliamentary approval was unconstitutional and ordered it withdrawn. The central question for the Court was one of domestic separation of powers under the Constitution of South Africa. Did the executive’s power to negotiate and sign treaties under s. 231 of the Constitution impliedly give it the power to unilaterally withdraw after Parliament (the legislative authority under s. 42 of the Constitution) had ratified and implemented the treaty?
Kids' graffiti on the concrete walls of the UNKIK HQ in Pristina

Analysis: Flexibility in Transitional Justice

From the declaration of independence of Kosovo in 2008, Kosovars have treated the “four pillars of transitional justice” – truth, prosecutions/criminal justice, reparations and institutional reforms – as though they were the four simple goals for achieving transitional justice through societal changes and development. However, as so often happens, context requires flexibility. David Tolbert noted the pillars can be applied too formulaically. Consequently, “…in the hands of some the four pillars approach has become a kind of “check the box” approach that is formulaic or ‘paint by numbers’ in nature”, whereas transitional justice is anything but formulaic — it needs to be responsive to the local conditions and situations.” Transitions from war to peace are driven by what Tolbert referred to as ‘active social forces’, which include not only civil society as usually conceived as including victims’ groups and human rights activists, but also unions, religious groups, and other interested social groups.