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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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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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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Australian war crimes in Afghanistan: Prosecutions face an uncertain road ahead – Alexandra Fowler

It has now been six months since the Brereton Report detailed credible evidence of a series of alleged SASR war crimes in Afghanistan from 2005-2016. According to the Report, 39 Afghans had been wilfully and unlawfully killed by 25 ADF members in 23 incidents, along with two instances of cruel treatment, in circumstances where it “was or should have been plain that the person killed was a non-combatant, or hors-de-combat” (paras 15-16 of Chapter 1.01). The killings and abuse were accompanied by a damning catalogue of slips in military discipline, culture and oversight, involving the “blooding” or initiation of young soldiers, a practice of covering up deliberate killings by placing “throwdowns” on bodies to make them look like legitimate kills, sanitising operational reports to make it appear that the laws of engagement had been complied with, and a marked culture of impunity. There were other issues relating to a lack of command and control of Special Forces in theatre, and insufficient impartial and effective investigatory mechanisms (paras 322-349 of Chapter 1.01, and Chapter 3.03). Brereton recommended the cases be referred to the AFP as there was a realistic prospect of a criminal investigation obtaining sufficient information to charge the perpetrators with the war crime of murder, and/or counselling, procuring or inciting the war crime of murder (Criminal Code (Cth) ss11.2, 11.4 and 268.70), in some cases on the basis of command responsibility (Criminal Code (Cth) s268.115). For the two instances of cruel treatment, there was sufficient evidence for charges under Criminal Code (Cth) s268.72. Overall, 36 matters arising out of 23 incidents by 19 individuals were recommended for potential prosecution (para 21 of Chapter 1.01).

Since the Inquiry, the (related) Ben Roberts-Smith case has dominated media coverage. A series of suppression orders have to date prohibited public release of a range of material in Roberts-Smith’s defamation case against Nine media outlets. However, sensational reports of his alleged attempts to conceal evidence from the AFP and from the Brereton Inquiry in relation to an already ongoing war crimes investigation into his conduct, including alleged storage, altering and transmission of classified Defence Department footage and NATO information, have rightly drawn much attention. Arguments for Nine will reportedly rely on the defence of truth, and link to allegations contained in the Brereton Report. The defamation case is scheduled to commence in the Federal Court on 7 June and will be closely followed. 

Although the regular drip of reporting on Roberts-Smith has given Australians a taste of some of the issues that may arise if cases head to court, in general the issue of prosecutions for other alleged SASR war crimes has largely fallen off the public radar. So, six months since the Brereton Report shocked Australia, it is worth examining what the potential for these prosecutions really is. 

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Regulating cross-border information flow: the proposed Chinese Personal Information Protection Law – Jeanne Huang

An examination of the People’s Republic of China draft Personal Information Protection Law published for consultation on 30 April 2021 reveals that its regulation of cross-border data transfer will have important consequences for individuals, businesses and judicial assistance.

To better protect personal information and develop the digital economy, China is taking action to enact its Personal Information Protection Law. On 30 April 2021, the second deliberation draft of the Personal Information Protection Law (hereinafter ‘Proposed Chinese Personal Information Protection Law’) was published by the Standing Committee of the National People’s Congress for public opinion (official version and unofficial English translation available). Regulating cross-border information flow is a highlight of the Proposed Chinese Personal Information Protection Law. Five important issues deserve attention.

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COVAX, Global Health Governance and the Failure of Multilateralism – Rebecca Brown

The COVID-19 pandemic has been a breakpoint for global health governance, necessitating unprecedented cooperation worldwide. However, the success of global initiatives has been hampered by lack of state interest. This piece investigates why one such initiative, the COVID19 Vaccine Global Access Facility (COVAX), was abandoned by its high-income state supporters, setting out its vision, development and failings. In doing so, this piece seeks to outline issues within the Global North’s approach to multilateral health governance more broadly.

In July 2020, when the development of an effective vaccine against COVID-19 was in sight, assuring timely access to this vaccine became the essential instrument in the Global North’s political toolbox. The UK secured a ‘portfolio’ of vaccines through privately contracting with a number of pharmaceutical manufacturers, while Australian Prime Minister Scott Morrison announced an agreement with AstraZeneca, before this in fact had been finalised. Now, in May 2021, a 40-year-old may be vaccinated tomorrow, by the end of the year, in some years, or has already been vaccinated – depending on their country of residence. Such disparity in access to vaccines is often attributed to the inadequacy of governmental agreements with private companies. However, this analysis presupposes contemporary knowledge of which vaccines indeed proved effective, and glosses over broader issues of vaccine inequity entrenched by global power differentials and healthcare’s commercialisation. 

To that end, the COVID-19 Vaccine Global Access Facility (COVAX) appeared a promising solution. Initially floated at the extraordinary G20 meeting in March 2020, and launched by a number of state leaders the following month, COVAX swore to maximise access to vaccines, ensuring populations in all participant countries could soon receive a vaccine. Yet, COVAX remains underfunded, and vaccine nationalism – with states competing to secure doses from manufacturers – stymied its ability to acquire and distribute vaccines. COVAX, set out as a multilateral solution to the COVID-19 pandemic, has been reduced to a vessel for financial contributions to lower-income states; its failure represents a broader failure of collective action, and a continuation of neo-colonialist attitudes towards health governance.

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Opportunity Lost: The ECtHR’s Restrictive Approach Re-ignites Vacuum between Human Rights and Humanitarian Law – Alessandro Silvestri

In Georgia v Russia (II), the European Court of Human Rights (‘ECtHR’ or ‘Court’) was asked to decide on numerous alleged breaches of human rights by the Russian Federation (‘Russia’) during a five-day armed conflict between Georgia and Russia. Despite the legal trend favouring the complementarity between International Human Rights Law (‘IHRL’) and International Humanitarian Law (‘IHL’), the Court ultimately held that Russia lacked jurisdiction over extraterritorial breaches of human rights under art 1 of the European Convention on Human Rights (‘ECHR’ or ‘Convention’), signalling a regrettable turnaround from recent case-law.

The ECtHR was handed the perfect opportunity to move past, as rightly underscored by Judge Chanturia, the legally ‘lifeless’ Bankovićdecision and enrich the interplay between IHRL and IHL in Georgia v Russia (II),but ultimately failed to do so. 

For legal purposes, the events under scrutiny may be divided in two parts. The first part concerned the armed conflict between Georgia and Russia, with South Ossetians and Abkhaz forces also playing an important role. Hostilities started on the night of 7 to 8 August 2008 and lasted for about five days, resulting in significant losses, including an alarming number of civilian casualties. Secondly, following a ceasefire, Georgia submitted that Russia perpetrated a number of human rights abuses, including the killings and displacement of civilians, the degrading treatment of civilians and prisoners of war, lootings and destruction of civilian objects, which would constitute significant violations of the ECHR. The scope of this written work is to assess the ECtHR’s approach to the first part and assess whether said approach adequately grasped the interplay between IHRL and IHL, as the latter comprises the body of international law applicable to armed conflicts.

The interplay between IHRL and IHL has been subject to much scrutiny in international law. It is internationally recognised that the two bodies of international law are mutually complementary, thus meaning that the protection of certain human rights, in particular, as the International Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons argued at § 25, the ‘right not arbitrarily to be deprived of one’s life’, does not cease during armed conflict (see also Orakhelashvili and the ICTY in Prosecutor v Kunarac et al§ 467). On the other hand, the ‘intricate legal issues of interplay that sometimes arise’ have arguably posed practical challenges in the way the interplay is to be understood, such as matters of derogation, jurisdiction, discretion, accountability, etc. (see also Bethlehem, 180– 82). The opportunity Georgia v Russia (II) presented for furthering the interpretation of applicable human rights norms in situations of armed conflict was therefore invaluable.

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