Post-mortem on the ICC’s Prosecutorial Election: Lessons Learned and Questions for the Future – Natalie Hodgson

19/03/202119/03/2021 Editors Analysis, Articles

On 12 February 2021, Karim Khan QC was elected as the third Prosecutor of the ICC. This piece revisits the long process to that election, focusing on two key issues: the role of the Committee for the Election of the Prosecutor and the need for consensus. The election brought to the fore multiple important issues for states, civil society, academics, lawyers and the Court to consider. Now that the election is over, it is important to take this opportunity to reflect on some of the lessons learned for the future.

On 12 February 2021, Karim Khan QC, a barrister from the United Kingdom, was elected as the third Prosecutor of the ICC. The election process was long and fraught. This election was the first time that states parties did not elect the Prosecutor by consensus; four men were nominated to contest the final ballot. Only one of those nominees, Fergal Gaynor, was among the shortlisted candidates identified by the Committee for the Election of the Prosecutor (CEP). The other three nominees were drawn from the CEP’s longlist – Carlos Castresana Fernández, Francesco Lo Voi and Khan.

The way the election ultimately unfolded was far from what was envisaged when the process to elect a new Prosecutor commenced in 2019. This piece focuses on two key issues that emerged during the election – the role of the CEP and the need for consensus. (Other issues that arose, such as the need for improved vetting of candidates and female underrepresentation among candidates, have been discussed elsewhere.) In reflecting on these issues, this piece hopes to identify some lessons and questions for future prosecutorial elections.

A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part II: Corporate Complicity in International Crimes – Jessie Chella

12/03/202119/03/2021 Editors Analysis, Articles

This is the second article in a two-part series examining the Malabo Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR). When it comes into effect, the Malabo Protocol will empower the ACJHR to exercise jurisdiction over international crimes as well as introduce a regulatory scheme for corporate criminal liability. The first part of this series outlined the scope of the Court’s new jurisdiction with respect to international and transboundary offences. This second part explores the new corporate criminal liability provisions in more detail.

Traditionally, only natural persons could be prosecuted for the commission of international crimes in either domestic or international jurisdictions. Corporate criminal liability has been recognised in most domestic jurisdictions, but not under international criminal law. The ACJHR is set to change this with the introduction of Malabo Protocol provisions regarding the international criminal jurisdiction of the court (Article 28A), and a regulatory scheme for corporate criminal liability (Article 46C).

Emerging human rights norms on climate change displacement – Annika Reynolds

11/03/202119/03/2021 Editors Analysis, Articles

This article analyses emerging international human rights law jurisprudence on climate change displacement and the right to life, notably Ioane Teitiota v New Zealand. This case is the first time the Human Rights Committee has recognised climate change is a threat to the right to life, and thus that states may have non-refoulement obligations to ensure ‘climate change refugees’ are not returned to dangerous environmental conditions. This article will first critically analyse Ioane Teitiota v New Zealand, before discussing how these emerging human rights norms on climate change displacement are expanding state obligations to address climate change.

The South Pacific is at the forefront of climate change, often portrayed as a region drowning in rising seas. The IPCC reports that the mean sea level of the tropical South Pacific is rising faster than the global average, increasing the frequency of extreme weather events, salination of fresh water sources, and predictions of territory loss in the coming decades. These changes heighten food and water insecurity, contribute to higher disaster-related fatalities and damage, and increase migration and the risk of inter-communal violence.This emerging reality has been labelled by the Human Rights Council as a ‘pressing’ human rights threat, notably to the right to life with dignity. Indeed, in Ioane Teitiota v New Zealand, the Human Rights Committee accepted that climate change was a threat to life that would make countries like Kiribati ‘uninhabitable’ in the coming decades. But human rights – deemed inalienable and fundamental – exist in tension with another pillar of international law – state sovereignty.

Climate change and international investment law – a dangerous mix? – Stephanie Triefus

06/03/202119/03/2021 Editors Analysis, Articles

International investment agreements are coming under increasing fire for the threat that they pose to the global phasing out of fossil fuel energy sources. Foreign investors can challenge state measures addressing climate change via investor-state dispute settlement, which can lead to huge compensation awards that may deter states from taking such action. This piece discusses how investment law can be problematic in regard to climate change measures and calls for states to acknowledge this threat as they move forward with reforms to the international investment law regime.

Recently, it was announced that German energy company RWE is suing the Netherlands for €1.4 billion in response to the country’s decision to phase out coal energy. The case was brought via the investor-state dispute settlement (ISDS) provisions of the Energy Charter Treaty (ECT), a 1994 multilateral treaty for energy industry cooperation across borders. ISDS is a dispute settlement mechanism through which foreign investors can bring claims directly against host states if investors consider that they have been treated unfairly. The ECT has come under fire in recent years for being a threat to state efforts to switch to renewable energies, because it enables fossil fuel companies to sue states that make regulatory changes aimed at reducing carbon emissions. It has been reported that suits under the ECT could cost taxpayers up to €1.3 trillion by 2050 and protect up to 216 Gt of carbon, which exceeds one-third of the global carbon budget that can be emitted if we are to keep global warming below 1.5 degrees by 2100.

Myanmar’s Military Coup: A Consequence of an International Failure of Cooperation – Rebecca Barber

03/03/202119/03/2021 Editors Analysis, Articles

According to the International Law Commission, all states have an obligation to cooperate to bring to an end serious breaches of peremptory norms of international law, including genocide and crimes against humanity. The recent actions of the emboldened military in Myanmar highlight what can happen when the obligation is not adhered to.

Recent events in Myanmar – the military coup d’état at the start of last month, the firing of Myanmar’s ambassador to the United Nations (UN) last week, and the increasingly brutal crackdown on peaceful protests – show what happens when senior officials get away with genocide.

In 2018, a UN fact-finding mission found that there were reasonable grounds to believe that the Myanmar military – the Tatmadaw – had perpetrated genocide as well as war crimes and crimes against humanity against the Rohingya people (pp 353-383, 421). Shortly thereafter, the UN General Assembly passed a resolution expressing ‘concern’ at the findings that there was sufficient information to warrant investigation and prosecution for genocide. In 2020, the International Court of Justice (ICJ) found that there was a ‘real and imminent risk’ of genocide.

A long road to justice for victims of sexual and gender-based violence: the case of Dominic Ongwen – Lucy Geddes

20/02/202119/03/2021 Editors Analysis, Articles

Trial Chamber IX of the International Criminal Court recently handed down judgment in the case of Dominic Ongwen. Ongwen was convicted of 61 counts of war crimes and crimes against humanity and the Court paved new ground in its jurisprudence of sexual and gender-based violence (SGBV) crimes. This is an area where the Court has historically had a very poor record. This piece discusses these significant jurisprudential developments and then considers what is next in store for SGBV victims in this case.

On 4 February 2020, Trial Chamber IX of the International Criminal Court (ICC) handed down judgment in the case of former child soldier turned Lord’s Resistance Army (LRA) commander, Dominic Ongwen. While the Court’s sentence is still to come, Ongwen was convicted of 61 individual charges of war crimes and crimes against humanity for atrocities perpetrated in Uganda between 2002 and 2005 – the highest number of convictions for any accused before the Court to date. Already heralded as a landmark judgment, the ICC paved new ground in its jurisprudence on sexual and gender-based (SGBV) crimes. Notably, there were multiple sexual and gender-based violence (SGBV) convictions, including: sexual slavery as crime against humanity and war crime, rape as crime against humanity and war crime, forced pregnancy as crime against humanity and war crime, and forced marriage as crime against humanity.

It is the first time the Court has held that forced marriage constitutes a crime against humanity, as a distinct crime, under the umbrella of ‘other inhumane acts’. This development is important, as there has been conjecture in recent years as to whether forced marriage should be subsumed within sexual slavery or whether it should be considered a crime against humanity in its own right. In a crucial step forward in SGBV international criminal justice jurisprudence, the Ongwen judgment rebuffed the Defence’s assertion that “forced marriage is not a crime under the Rome Statute”. Instead, the Court emphasised the unique harm of forced marriage, asserting that it thus constitutes a separate crime, holding that: “the conduct underlying forced marriage – as well as the impact it has on victims – are not fully captured by other crimes against humanity”. In particular, the Court distinguished the harm of forced marriage from the crimes of rape and sexual slavery. The Court held that these crimes all exist independently of each other, noting that “forced marriage implies the imposition of this conjugal association and does not necessarily require the exercise of ownership over a person” (essential for a crime of enslavement) and the crime of rape “does not penalise the imposition of the ‘marital status’ on the victim”.

How should Australia respond to asylum seekers arriving by sea during the COVID-19 pandemic? – Madeline Gleeson

03/02/202119/03/2021 Editors Analysis, Articles

Since the introduction of Operation Sovereign Borders in 2013, Australia has pursued a determined policy of intercepting and turning back asylum seekers trying to reach Australia by sea. Whether people are turned back at sea to their country of departure, or taken into Australian custody and then handed back directly to the authorities of that country, these practices have given rise to serious concerns about their compliance with international law. In the context of the global COVID-19 pandemic, it is worth re-examining these concerns and considering the international human rights obligations that should inform Australia’s response to an asylum seeker vessel arriving during the current crisis.

Australia’s response to asylum seekers arriving by boat during the pandemic

In 2020, the COVID-19 pandemic radically changed the governance of borders worldwide. Both at their external boundaries and internally, many States imposed unprecedented restrictions upon the entry and movement of citizens and foreign nationals.

For most purposes, Australia’s external borders remain ‘closed’. Australian Border Force liaison officers are working with airlines at overseas airports to identify those who should not board flights to Australia, ensuring they do not reach Australian soil. There is also a ban on foreign-flagged cruise ships entering Australian waters, and non-commercial vessels such as yachts and superyachts must comply with certain restrictions.

While contentious and imperfect in their application to Australian citizens and permanent residents abroad, these border restrictions are, overall, reasonable and proportionate. But how might Australia respond to the arrival of an asylum seeker vessel during this period?

COVID-19 and older persons: Why we need a federal Human Rights Act – Nathan Kennedy

01/02/202119/03/2021 Editors Analysis, Articles

COVID-19 has made older Australians fear for their lives and also for whether they will receive care to the same standard as younger people. Would better human rights protection in law, such as a federal Human Rights Act, ensure policies put human dignity at their core and free older persons from this fear?

The preamble to the Universal Declaration of Human Rights includes ‘freedom from fear’ as the ‘highest aspiration of the common people’. The current pandemic is scary, especially for older persons. Not just because they are at higher risk of dying from the virus but because they fear being seen as less deserving of the best care due to their age. Stronger human rights protections in Australia, such as a Human Rights Act, could assist in allaying those fears.

The Aged Care Royal Commission has heard that Australia’s COVID-19 aged care death rate is among the highest in the world. By September 2020 approximately 74% of Australian COVID-19 deaths were residents of aged care. The data also clearly shows that while a person is more likely to catch COVID-19 if they are aged in their 20s, the vast majority of those who have died are aged 70 or over.

The South China Sea Arbitration: Shedding light on sovereignty and international law – Niamh McCormack

01/02/202119/03/2021 Editors Analysis, Articles

This piece considers China’s actions in relation to the South China Sea arbitration commenced by the Philippines and how it provides insights into the role of state sovereignty for international dispute settlement.

As far back as the Alabama claims of the United States of America against Great Britain arbitration in 1872, the international community has committed itself to the rule of international law and the peaceful settlement of disputes. The South China Sea Arbitration and subsequent events provide an opportunity to reflect on the nature and practical outcomes of international dispute settlement.

An overview of the recent developments in the South China Sea can be found in Julia Weston’s previous post on the ILA Reporter. This current piece examines the South China Sea arbitration between the Philippines and China, focusing on the contested jurisdiction and validity of the tribunal, and what the case demonstrates on the implications of non-participation by a party and the role of sovereignty in international dispute settlement.

Deep seabed mining: Time to get our regulatory ducks in a row — Tess Van Geelen

09/01/202119/03/2021 Editors Analysis, Articles

In 1871, the French novelist Jules Verne published Twenty Thousand Leagues Under the Sea, an adventure novel in which Verne predicted that ‘in the depths of the ocean, there are mines of zinc, iron, silver and gold that would be quite easy to exploit…’

A century and a half on, the Secretary-General of the International Seabed Authority, Michael Lodge, recently explained that:

The sea floor, just like the terrestrial environment, is made up of mountain ranges, plateaus, volcanic peaks, canyons and vast abyssal plains. It contains most of the same minerals that we find on land, often in enriched forms, as well as minerals that are unique to the deep ocean, such as ferromanganese crusts and polymetallic nodules.

Interest in ocean mineral deposits has ebbed and flowed over the past century and a half.

In recent years, shortages of easily exploitable terrestrial mineral reserves have renewed interest in seabed deposits. The pressure to identify new mineral reserves has also increased in response to global population growth, expanding middle classes and the resulting higher demand for manufactured goods, technological advancements (particularly in computing), and the shift to low-carbon renewable energy production and manufacturing, which require specific mineral resources.

Lodge argues that seabed mining can contribute to sustainable development by offering an alternative to terrestrial mining, and in particular may offer an economic boon for small island developing states. In particular, for many South Pacific nations that rely heavily on tourism, the Covid-19 pandemic has increased pressure to identify alternative economic opportunities.

The technical challenges posed by the extreme conditions at the seabed have so far prevented any successful commercial mining. In the past decade, however, a handful of ambitious projects have edged closer to fruition. It is timely, then, to consider whether the nascent regulatory system for seabed mining is fit for purpose.