International Law Update – The Conflict in Yemen, the International Criminal Court, and the Srebrenica Massacre

Yemen

Human Rights Watch called for the release of Yemeni activist Hisham al-Omeisy, whom Human Rights Watch claims has been detained by Houthi authorities. Human Rights Watch states that al-Omeisy was arrested by 15 officers on 14 August 2017 in Sanaa. They claim he has not been charged, brought before a judge or given access to a lawyer or his family, and that he is in an undisclosed location. Amnesty International has made a similar statement.

This follows 66 cases of arbitrary detention and enforced disappearances perpetrated by the Houthi forces, and many by the Yemeni government, as documented by Human Rights Watch. Arbitrary detention and enforced disappearances are both breaches of international human rights law.

There has been conflict between Houthi separatists, loyal to the former President, Saleh, and the Yemeni government led by Saleh’s former Deputy, Hadi, since 2015. A coalition of Sunni states, led by Saudi Arabia and backed by the USA and the UK, have joined with Yemeni government forces to lead airstrikes against the Houthis, who hold much of the south of Yemen and the nation’s capital, Sanaa. Saudi Arabia has alleged that the Houthi forces, who are Shiite, are backed by Shiite Iran, a claim which Iran has denied.

The conflict has resulted in an already poor nation plunging into a deep humanitarian crisis, with both famine and cholera ravaging civilians. Houthi forces have closed Sanaa airport, making it difficult for aid to reach Yemenis, and Saudi-led airstrikes on ports have restricted the supply of food.

Hisham al-Omeisy used social media to expose the conflict and humanitarian crisis in Yemen, having risen to prominence during the Arab Spring that ousted Saleh. He was highly critical of the Saudi-led coalition, making his arrest and detention by the Houthi forces somewhat surprising.

ICC

Earlier in July, Georgia signed a cooperation agreement with the ICC. This agreement builds upon Georgia’s ratification of the Rome Statute in 2003, providing clear channels of communication between the government and the ICC. The aim is to allow the ICC to expeditiously fulfil its mandate to investigate crimes within its jurisdiction that allegedly occurred between 1 July and 10 October 2008 in South Ossetia.

On 6 July 2017, Pre-Trial Chamber II of the ICC decided that South Africa failed its obligations under the Rome Statute by not arresting and surrendering Omar Al-Bashir, the President of Sudan, when he visited the country in June 2015. The ICC has issued arrest warrants for Al-Bashir for five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. However, the Court chose not to refer South Africa to the UN Security Council. The ICC’s arrest warrant for Al-Bashir has been widely criticised in Africa and the Middle East.

Srebrenica Massacre

On Tuesday, 26 June 2017, The Hague Appeals Court held the Netherlands liable for 30% of the losses suffered by the families of the victims of the Srebrenica Massacre, and thus liable to pay compensation to the victims’ families. This decision upholds a 2014 decision that the Netherlands was partially responsible for the Massacre, However, this new decision quantifies the responsibility. A compensation amount has not yet been determined.

The Srebrenica Massacre was the genocide of 8,000 Bosnian Muslim men and boys that took place during the war surrounding the breakdown of the former Yugoslavia. The decision by the Court held the Netherlands partially responsible for the deaths of the 350 Bosnian men who were killed after being expelled from a Dutch-controlled UN base after it was overrun by Bosnian Serb troops. The Court held that the Dutch peacekeepers ought to have known that the men seeking refuge who were expelled from the compound were “in real danger of being subjected to torture or execution”, making them responsible for that set of deaths. The Dutch defence ministry has maintained that the Bosnian Serb troops are entirely responsible for the Massacre. This case is highly unusual because the performance of peacekeepers rarely results in the responsible state facing legal action.

The group Mothers of Srebrenica criticised the decision, arguing that the Netherlands should be held entirely responsible. The ruling can be appealed to the Supreme Court.

Same-Sex Couples in Australia: A Right to Divorce But What of Marriage?

On 3 August 2017, the Human Rights Committee (HRC) of the United Nations handed down a landmark ruling that Australia had breached its international human rights obligations because it did not allow same-sex couples in Australia to divorce, when they had legally married overseas. This decision comes at a time when the political temperature on the same-sex marriage debate in Australia is heating up.

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Call for applications for the 2018 Nygh Internship

Applications for the 2018 Nygh Internship are now open. This award supports a postgraduate student or graduate of an Australian law school to undertake an internship with The Hague Conference on Private International Law in the Netherlands by providing funds to cover the cost of travel and a contribution towards living expenses. Applications close 30 September 2017.

Information on how to apply, selection criteria and further information is available at http://www.internationalaffairs.org.au/youth-and-community/nygh-internship/.

The press release can be found here.

Call for Papers and Panels – 2018 ILA Conference in Sydney

The ILA (Australian Branch) is proud to be hosting the next biennial International Law Association Conference in Sydney from 19-24 August 2018. The organising committee is currently developing a program for the conference, and to that end we are calling for papers and panel presentations around the core theme of the conference: Developing International Law in Challenging Times. Details of the call, including information on how to make a submission, are set out in the flyer here

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2016 – Year in Review

The past year has been incredibly tumultuous, having reset the international stage and delivering incredibly unexpected political outcomes. From an international legal perspective, while events such as Brexit, Donald Trump’s election, and the crisis in Syria have undoubtedly raised important legal questions and will likely change international law in the future, there have been numerous other significant developments.

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Nuclear Disarmament Reappears at the International Court of Justice

The politics of nuclear disarmament have, in recent times, simmered as a threat to the international order, enlivened every so often by a new round of talks or a major push for reform. On rare occasions, the issue has spilled into the international legal sphere.

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Lord Goldsmith talks to ACICA audience about Brexit and arbitration – Marina Kofman

On 24 October 2016, Lord Goldsmith addressed an ACICA audience in Sydney about Brexit and arbitration. He set the Brexit scene: Theresa May is still tight-lipped about the nature of Brexit, following a Brexit campaign characterised by a lack of clarity on what Brexit would actually mean. Uncertainty abounds, except for in one aspect: indications are that negotiations will not be easy. The EU has made it clear to the UK that there will be ‘no negotiation without notification.’

First things first – the constitutional challenge: May plans to trigger Article 50 of the Lisbon Treaty next year but does she have the authority to do that under the royal prerogative? This issue is being hotly debated and is currently being tried in the London Courts. On 3 November 2016, the High Court delivered judgment finding that Article 50 could not be invoked without an Act of Parliament. Arrangements are in place for an expedited appeal straight to the UK Supreme Court and that case will be heard by December. Consequences for the UK and EU will be massive. Much of that is only dimly seen right now.

Impact on London arbitration

The thesis of Lord Goldsmith’s talk was that Brexit will not lead to a diminution of the merits or popularity of London as a seat of arbitration, nor damage the popularity of English law as the commercial law of choice for many international transactions. Why is this the case?

At the centenary conference of the Chartered Institute of Arbitrators (CIArb) in London last year, the CIArb published a list of ten features necessary to make for a safe, effective and successful seat of arbitration. These features are: (1) a clear arbitration law; (2) an independent judiciary; (3) legal expertise; (4) education; (5) the right of choice in representation; (6) accessibility and safety of the seat; (7) facilities; (8) professional ethics that embrace diversity of traditions; (9) enforceability; and (10) arbitrator immunity. London meets all of these requirements, none of which depend on UK membership of the EU. There is, therefore, no reason to believe that London will diminish in popularity as a seat of arbitration. Lord Goldsmith opined that despite the growth of arbitration and arbitral institutions in Asia, Brexit will not spark a ‘land grab’ for traditionally London-based work by other arbitration centres.

Potential opportunities

In addition to the challenges presented by Brexit, there are certain opportunities. First, there may be a substantive disentanglement of English law and EU law. European law has coloured English law, so if EU regulations no longer apply then English common law may see a resurgence. Secondly, the determination of jurisdictional issues in court cases may end up vastly different should the UK go down the path of abandoning the Brussels Regulation regime and return to common law forum non conveniens principles. The current regime means a UK commercial court can be seized of a matter in circumstances where it is not necessarily the most appropriate forum, but then have limited ways to decline jurisdiction. Right now though, it is uncertain what will happen in terms of UK court judgments until we know more about how the UK will proceed in relation to its private international law framework with respect to the EU. This might push some users towards arbitration, which has a reliable enforcement regime under the New York Convention. Another advantage of Brexit might be that UK courts will again be able to issue anti-suit injunctions directed at European courts. UK courts once commonly issued anti-suit injunctions to prevent proceedings brought in breach of arbitration agreements. This was, however, put to an end in 2004 when the European Court of Justice held that the practice was incompatible with the Brussels Convention.

Thirdly, Brexit might influence the debate about investor-State dispute settlement (ISDS). The EU has proposed an ‘Investment Court System’, a permanent investment court with an appeals process for the Transatlantic Trade and Investment Partnership (TTIP). The competence for negotiating EU treaties currently rests with the EU, and the EU has been firm that the UK is not free to negotiate its own treaties whilst it remains in the EU. The question is, would being freed from the EU give the UK a negotiating advantage? Only time will tell.

In the meantime, it is plausible even if the USA agrees to the an investment court system that it will still opt for conventional ISDS mechanisms in its other trade deals, in which case we might not see the inexorable rise of the Investment Court System. The UK’s decision to opt for one model or the other will influence the course of the debate particularly as the UK will become one of the more active trade negotiating countries over the coming years.

In his concluding remarks, Lord Goldsmith stated that it may now be time for Australia and the UK to grow a new and invigorated cooperation in the field of common law. This is also the time for lawyers to examine closely the opportunities for collaboration in training, development of the law and finding better ways to serve clients.

Marina Kofman is Assistant Editor of the ILA Reporter. A version of this article was originally written for and published by ACICA. It is partially reproduced here with permission.