Event Re-Cap: Reflections on the International Criminal Justice System: In Conversation with David Re – Crystal Ji

The NSW Society of Labor Lawyers and the Muslim Legal Network NSW recently hosted an in-conversation event with David Re, who was the Presiding Judge of the Trial Chamber of the Special Tribunal for Lebanon (STL) from 2013 to 2021. In this role, Mr Re presided over the first international terrorism trial, which arose from the 2005 terrorist attack targeting former Lebanese Prime Minister Rafik Hariri. Three accused were acquitted, with one accused, Salim Ayyash, being convicted for his role in the attack. The judgment of the Chamber is available in full online and has previously been analysed on the ILA Reporter. Prior to being a judge of the STL (2010-2021), Mr Re was a judge of the Court of Bosnia and Herzegovina in Sarajevo (2008-2010) and a prosecutor at the International Criminal Tribunal for the Former Yugoslavia (2002-2008).

Mr Re traversed a number of topics during the course of the discussion, ranging from discussing the hybrid nature of the STL, to reflecting on the future of international criminal courts and international criminal law. Points of interest are highlighted below.

The hybrid model of the STL

The hybrid model of the STL was discussed. The STL was set up pursuant to a 2006 agreement between Lebanon and the UN and Security Council Resolution 1757, with Lebanon to pay 49% of the budget. The decisions of the STL are binding on all UN member states, given the STL’s establishment pursuant to a UN Security Council Resolution. It is a unique standalone institution with headquarters in the Hague, established there pursuant to an agreement with the Dutch government, and also an office in Lebanon, pursuant to an agreement with the Lebanese government. The STL features both Lebanese judges and international judges of different nationalities, and applies the substantive law of Lebanon while also applying international criminal procedure laws. The latter is itself a hybrid of the procedures used in civil and common law systems.

There are distinct advantages to the hybrid model of the STL, which allows international personnel to work with national personnel. These include the fact that international personnel bring money and resources, expertise, standards, witness protection, forensic and investigatory techniques to transitional justice countries that are often small, impoverished and affected by corruption. In the case of the STL, the Lebanese judges who were appointed could see what the procedures and standards are in the international legal system, and the international judges could safeguard the maintenance of independence and impartiality of the STL’s judicial decision-making.

However, the limitations of the model were also discussed. Although the judges are able to maintain independence and impartiality, there are forces that may have shaped the prosecutorial effort at the investigative stages of a trial. Choices as to which aspects and persons to investigate over others are entirely outside the judges’ purview, as are decisions as to who to name in the indictment. Questions about why the indictment for the trial Mr Re presided over did not extend wider or higher up the chain of command of Hezbollah remain unanswered. 

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Event: ‘Armed Conflict, Technology and Human Rights’, 26 August 2021

The International Law Association (Australian Branch) is pleased to announce its second in a series of online lunch-time panels showcasing the work of early career international lawyers.

This event follows the first panel on “Intersections of International Environmental Law with National Jurisdictions” featuring speakers Carina Bury of Universität Hamburg and Millicent McCreath of UNSW Law & Justice, chair Justice Nicola Pain of the Land and Environment Court of New South Wales, and commentator Dr Emma Carmody of the Environmental Defenders Office and Legal Advisor to the Secretariat of the Ramsar Convention on Wetlands on 22 July 2021. A recording will be made available of this session.

This second panel is focused on “Armed Conflict, Technology and Human Rights” and features speakers Aneta Paretko of the University of Melbourne speaking on ‘A Human Rights Framework for Dealing with the Female Foreign Fighters of Islamic State’ and Helen Stamp of the University of Western Australia presenting on ‘Meaningful Assessments of Liability for Incidents involving Autonomous Weapons Systems: Informing Traditional Legal Forums through the Use of Algorithmic Accountability’. The event will be chaired by Molly Thomas of the International Criminal Court and the ILA Reporter and will feature commentator Dr Simon McKenzie of the University of Queensland. The panel will be held online on Thursday 26 August 2021 from 1:00 pm to 2:00 pm AEST. Registration is free and through Eventbrite.

Future panels (with further details to be circulated) include ‘International Criminal Law: Practitioner Perspectives’ (September 16) and ‘International Investment Law’ (October). A flyer is included below.

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Punching Up or Down: International Law’s Fraught Relationship to History As Illustrated Through Cultural Heritage – Lucas Lixinski

The “turn to history” in international law makes us more aware of our role in creating the history with which we grapple. Cultural heritage law in particular plays a direct role in making and querying the historical record, and recent controversies in Australia surrounding the destruction of Indigenous heritage and the obstinate protection of colonial heritage showcase our responsibility in ‘selecting’ the past for the benefit of present and future generations. Australian can and should do better, and international law offers tools to help us make better choices about the history we protect.

International law has long had a difficult relationship with the past. While many international lawyers fancy themselves historians, with a much-discussed “turn to history” in international legal scholarship, there is not enough recognition that international law freezes history in time, erases difficult pasts, and allows us to perpetuate injustice at home and globally. Cultural heritage law illustrates this relationship in vivid detail, while also making it clear that the law still has a role it can play in constructing a better present and future on the basis of that past. As Anne Orford argues, we have a role in using history to make, rather than simply understand, international law.

In Australia, two examples underscore the inconsistencies of international law’s relationship to history: first, the destruction of Juukan Gorge, which, decried as it was, was not illegal at the time it happened; and second, the calls for the tearing down of Captain Cook monuments, which are in fact illegal.

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Space Debris: A Major Challenge for the Future of Humanity – Steven Freeland

This piece describes the challenges posed by the increasing proliferation of orbital space debris, as well as debris falling back to Earth. It describes how a ‘business as usual’ case going forward threatens to result in outer space becoming less accessible and navigable, thus compromising future space activities. It describes the existing legal and governance frameworks that has been developed at the international level to address issues around space debris, concluding that more needs to be done if we are to maintain space as a sustainable area for the benefit not only of current, but also future generations.

Space is Ubiquitous and Critical

Over the past six decades, space-related technology has revolutionised the world we live in. Beginning in the 1950s/1960s with an initial focus on Government-led military and scientific activities, space has also become a very significant commercial sector, estimated in 2020 to be valued at $US385 billion, and growing at a significant rate (even during the COVID-19 period), far exceeding the growth of the broader global economy. In Australia, the Australian Space Agency is working towards a goal of facilitating the growth of the Australian space economy to reach $A12 billion by 2030.

Our use of outer space has developed to the point where it now plays an essential role in everyday human activities across the globe. You and I ‘use’ space many times a day in many different ways without even thinking about it. Space is ubiquitous and virtually every country on the planet requires access to some form of space technology, and the data it produces, as essential elements of its critical infrastructure. Seen in this light, a (theoretical) ‘Day Without Space’ would have significant negative consequences for every country, every community, every human on Earth. Indeed, the functioning of society as we know it would, in many respects, cease.

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Call for Applications: Assistant Editors and Co-Editor-in-Chief, ILA Reporter

The ILA Reporter is calling for applications for Assistant Editors and a Co-Editor-in-Chief. These Assistant Editors will work in collaboration with the current Assistant Editors and Editor-in-Chief of the ILA Reporter. Applications are due on 2 August 2021. 

What is the ILA Reporter?

The ILA Reporter is the official blog of the Australian Branch of the International Law Association (ILA). The ILA was founded in Brussels in 1873. It has consultative status, as an international non-governmental organisation, with a number of the United Nations specialised agencies. The ILA Reporter provides analysis, commentary and discussion on issues in public and private international law which have bearing on Australia and the wider region, as well as publicising relevant events and opportunities for education to its audience.

What are the roles?

The role of the Assistant Editors is to support the Editors-in-Chief by commissioning, editing and publishing articles for the Blog. Assistant Editors are engaged on a voluntary basis and are required to source and edit at least one article per month. There are also opportunities for Assistant Editors to have their own articles published on the blog. The ILA Reporter is looking to recruit two Assistant Editors in this round of applications.

The Editors-in-Chief are responsible for reviewing submissions received from the readership and sourced by the Assistant Editors; finalising and publishing all pieces for the ILA Reporter; preparing bimonthly digests of articles, events and opportunities for the readership; managing the workload and activities of the Assistant Editors; and assisting the ILA (AB) with its activities. This open role is in addition to the existing Editor-in-Chief of the ILA Reporter.

These roles are a great opportunity for those looking to gain experience in the field of international law with a well-respected non-government organisation.

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Call for Papers: Volume 40 (2022) of the AYBIL

Volume 40 of the Australian Year Book of International Law will be dedicated to the memory of the late H.E. Judge James Crawford AC SC FBA. In addition to a long and distinguished career as an academic, practitioner, arbitrator, and judge, James was a friend and mentor to many. We hope that papers in this volume will reflect on some of his numerous contributions to the field of public international law, and particularly international law in Australia, by engaging with one or more of his varied roles.

The AYBIL welcomes paper proposals reflecting on James’ contributions to the field in such roles as:

  • Scholar;
  • Educator;
  • Role in institutional law reform and codification efforts (eg. Australian Law Reform Commission and the International Law Commission);
  • Legal Advisor;
  • Counsel (especially reflections on his oral or written advocacy);
  • Arbitrator; and,
  • Judge.

Abstracts of up to 500 words on any of these topics accompanied by a short 1-page CV should be sent to the Editors at aybil@anu.edu.au by 15 August 2021. Applicants will be notified of outcomes no later than 10 September 2021, and a virtual workshop to develop papers based on the accepted abstracts may be held in December 2021. The AYBIL anticipate final papers would need to be submitted no later than 15 February 2022 to meet a publishing deadline of June 2022.

You are also welcome to contact the Editors at any time on aybil@anu.edu.au to discuss your proposal or seek clarification regarding the Call for Papers.

Event: ‘Intersections of International Environmental Law with National Jurisdictions’, 22 July 2021

The International Law Association (Australian Branch) is pleased to announce its first in a series of online lunch-time panels showcasing the work of early career international lawyers.

The first panel will be on “Intersections of International Environmental Law with National Jurisdictions”. Speakers including Carina Bury of Universität Hamburg and Millicent McCreath of UNSW Law & Justice. Justice Nicola Pain at the Land and Environment Court of New South Wales will chair the panel, and Dr Emma Carmody at the Environmental Defenders Office and Legal Advisor to the Secretariat of the Ramsar Convention on Wetlands will serve as Commentator. The panel will be held online on 22 July 2021 at 1:00 pm to 2:00 pm AEST. Registration is through Eventbrite.

Future panels (with further details to be circulated) include ‘Emerging Topics in the Law of Armed Conflict’ (August 26), ‘International Criminal Law: Practitioner Perspectives’ (September 16) and ‘International Investment Law’ (October). A flyer is included below.

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Enhancing State Capacity: An Analysis of the Draft Articles on Prevention and Punishment of Crimes Against Humanity 2019 and the Attendant Consequence For State Parties – Adeyinka Adegbite

To highlight the opportunity which the Draft Articles on Prevention and Punishment of Crimes Against Humanity present for progressive development of international criminal law, Adeyinka Adegbite outlines how the Draft Articles contribute to enhanced inter-State cooperation and capacity of national legal to prevent, prosecute and punish crimes against humanity.

Background to the Draft Articles

The motivation for developing the Draft Articles on Prevention and Punishment of Crimes against Humanity (‘Draft Articles on Crimes against Humanity’) by the International Law Commission (ILC), the expert body of the United Nations (UN) with responsibility for developing and codifying international law, was an awareness of the imperative to create a single international legal instrument which provided for the incorporation of the definition of crimes against humanity in national laws; imposed obligations on States to prevent the commission of crimes against humanity; and, conferred national jurisdiction to prosecute perpetrators of crimes against humanity. The first report of the ILC Special Rapporteur for the crimes against humanity stream of work in 2015 initiated what would later become the Draft Articles on Crimes against Humanity.

The comments of the government of States, including Australia, and other UN special agencies and international non-governmental organisations enriched the body of texts aimed at developing the law on this particular category of international crimes. It is important to note that the Charters, Statutes and instruments setting up International Criminal Tribunals, namely the International Military Tribunals for Nuremberg and Tokyo and the International Criminal Tribunal for Former Yugoslavia, among others, included a description of the crimes regarded as crimes against humanity. These provisions were further developed following the entry into force in 2002 of the Rome Statute of the International Criminal Court (‘Rome Statute’).

Article 7(1), (2) and (3) of the Rome Statute set out crimes against humanity as one of the categories of international crimes within the jurisdiction of the International Criminal Court (ICC). The Rome Statute appears to be richer in the provision concerning the category of crimes against humanity when compared with the earlier instruments of International Military Tribunals (IMT), as the definition of these crimes under the Rome Statute are broader in scope. 

Further, the principle of positive complementarity, a novel provision of the Rome Statute in Article 17, lends a two-pronged approach to the prosecution and punishment of crimes against humanity. The principle was a departure from the approach the IMT instruments, which gave priority to the jurisdiction of the IMTs over national jurisdiction. In further emphasising the importance of national jurisdiction, especially where the legal and judicial structures are available and the State is willing and able to undertake such prosecution, the ICC may offer assistance to the prosecuting State to the extent that the perpetrators of these crimes are prosecuted. Whilst a State shall cooperate with the ICC under Article 93(1), Article 93(10) imposes a discretionary duty on the ICC to cooperate with a prosecuting State, stating that the ICC may, upon request, cooperate and provide assistance to a State Party. Nonetheless, the recognition given to national jurisdiction is indeed very admirable. 

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Interview with Anil Yilmaz: The Nationality of Corporate Investors under International Investment Law – Part II: A case for the real seat standard – Stephanie Triefus

In Part I of this series, Dr Anil Yilmaz and Assistant Editor Stephanie Triefus discussed how international investment treaties are being used in a way that unduly expands the reach of this controversial legal regime. This part elaborates on why existing safeguards are not sufficient, and how states should proceed with investment treaty reform to combat this issue.

ST: An ISDS case brought against Australia by Phillip Morris was unsuccessful because the tribunal found that Philip Morrisclaim was an abuse of rights – Phillip Morris Asia acquired an Australian subsidiary for the purpose of initiating arbitration under the Australia-Hong Kong BIT. Is this an example of the current system working to prevent claims that states have not consented to? What are the problems with abuse of rights arguments and other challenges to corporate identity that states have used in arbitration to combat this issue?

I’ll start by saying a few things about the Australia case. It was a very well-known case because of the tobacco measures and public health questions around it, and it was going somewhat in parallel with the Philip Morris v Uruguay case. Unlike the Uruguay case, the Australia case didn’t proceed to the merits, because Australia was successful in its objection that Philip Morris was abusing its right to invoke that investment treaty. And that was because in anticipation of the dispute, Philip Morris restructured its investment in Australia to move its holdings to Hong Kong, and that was found to be an abuse of rights in this particular case, and therefore the claim was dismissed. The tribunal didn’t consider Philip Morris genuinely to be a Hong Kong investor to be able to benefit from that investment treaty and that’s a successful outcome in this context. But it was a difficult and hard-fought decision, probably by skilled Australian counsel, and there were very particular circumstances. 

It’s very difficult to make a successful abuse of rights argument. First, you have to demonstrate that there was a lack of good faith in the acquisition of the investment, which requires you to go into the intentions of the investor at the time they acquired that corporate entity. The other question is about the timing of when the investor restructured their investment and that seems to be a condition on its own, but it also helps to demonstrate whether the investor was lacking good faith. Timing is important to demonstrate whether a dispute was already reasonably foreseeable at the time of restructuring. In this particular case, the timing of the restructuring was off: the plain packaging policy plans were already announced, and the dispute was foreseeable by Phillip Morris because Australia had already expressed its intention to regulate the tobacco industry through plain packaging. The Tribunal also looked at whether access to the investment treaty was the only or the dominant purpose of the restructuring or whether there were other legitimate reasons. In this particular instance, it was held that Philip Morris’ dominant reason for restructuring was benefitting from that investment treaty. As the timing of the restructuring was off and Philip Morris seemed to lack good faith in that restructuring, the tribunal found there was an abuse of rights. But there have been quite a few other cases where states haven’t been able to make this argument successfully because it’s quite difficult to show that an investor has restructured their investment in a certain way, only or primarily for the purpose of benefiting from investment treaty protection. And indeed, there might be other reasons for it as well, such as tax reasons. 

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Interview with Anil Yilmaz: The Nationality of Corporate Investors under International Investment Law – Part I: The trouble with treaty shopping – Stephanie Triefus

International investment law is ostensibly designed to protect investors from unfair treatment when they invest outside their home jurisdiction. The rationale behind such special protections is to encourage foreign direct investment, which is meant to have a positive impact on host state development and economic growth. However, it is common for corporations to engage in ‘nationality shopping’ to gain access to investor-state dispute settlement in their own jurisdiction, or in circumstances where states have not necessarily consented, under bilateral investment treaties. It is often legal for a company to channel investments through overseas shell corporations, with investment tribunals considering such arrangements to be a legitimate means for accessing protection under investment treaties. In her monograph The Nationality of Corporate Investors under International Investment Law, published in 2020 by Hart Publishing, Dr Anil Yilmaz argues that such expansive interpretations of corporate nationality are not warranted by international law and are in fact unduly expanding the reach of international investment law in ways that seriously impact its operation and the local communities affected by investment projects. 

Dr Yilmaz is a Senior Lecturer in the School of Law at the University of Essex and a co-director of the Essex Business and Human Rights Project. Her research bridges the gap between corporate law, international investment law, human rights law, and tort law, examining how these areas can and should interact so as to operationalise human rights standards in the modern business context. She is interested in reimagining business regulation to prevent adverse impacts suffered by communities and workers due to the privileges of capital embedded in the law. She has published works in leading international law journals and in edited collections on parent-subsidiary relationships in the business and human rights context, non-financial reporting, duty of care in supply chain relationships, human rights in investment contracts and the embedded inequalities in the investment treaty regime.

Dr Yilmaz joined Assistant Editor Stephanie Triefus for a conversation about her monograph and why controversial treaty protections should not be extended beyond reciprocity.

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