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By Stephen Dockery On February 22, 1918, Montana’s sedition act—which criminalized speaking out against the government and its international activities in World War I—became law. Responding to a surge of anti-German and patriotic fervor, the law severely limited speech and assembly rights in the state. The Montana statute would be used as a blueprint for the federal Sedition Act of 1918 which likewise prohibited criticism of the country, its armed forces, and its flag. The Montana law was used to convict 79 people between 1918 and 1919. The convicted were mostly rural blue-collar workers, many of whom had immigrated to the country from Germany or Austria. Montana residents convicted for minor criticisms of American policy received an average of 19 months in prison and many were fined up to $20,000, about $354,000 in today’s dollars. Those convicted under the law were pardoned in 2006 by then-Governor Brian Schweitzer. “I'm going to say what Gov. Sam Stewart should have said: I'm sorry, forgive me and God bless America, because we can criticize our government," Schweitzer told The New York Times. The sedition law is a stark reminder of the way paroxysms of nationalist fervor, often stoked by international conflict, can lead to gross domestic encroachment on civil liberties.

Guest Contributor: Jenny Poon  Ph.D. Candidate; Faculty of Law, University of Western Ontario. Introduction Based on United Nations High Commissioner for Refugees (UNHCR) official figures, there are currently 65.6 million forcibly displaced people worldwide as of 2016. According to the Norwegian Refugee Council Internal Displacement Monitoring Centre in its Global Report, since 2016, there were 31.1 million new internal displacements by conflict, violence and disasters – the equivalent of one person forced to flee every second. These statistics show the ongoing importance to provide and enhance protection for the internally displaced. A neglected group of individuals Despite the ongoing need for protecting Internally Displaced Persons (IDPs), analyses of non-refoulement are often focused solely on international protection. A critical piece of the puzzle has been neglected by academic literature: namely, what happens to IDPs who are forcibly displaced but not crossing international borders? Since non-refoulement applies equally to both asylum seekers and refugees, can a case be made that IDPs also benefit from non-refoulement protection? Another question worth asking is: What is the distinction, if any, between an IDP and asylum seeker? An asylum seeker is defined as someone who is in the process of seeking asylum or protection but whose claim has not yet been formally assessed. An IDP is defined, under Article 2 of the United Nations Guiding Principles on Internal Displacement (Guiding Principles) as ‘persons or groups of persons who have been forced or obliged to flee or leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border’. As one can see, an IDP may seek asylum from situations aforementioned, but they are legally distinct from refugees because they have not crossed an international border. Although the UNHCR does not have a specific mandate to protect IDPs, it has been authorized by the UNGA ‘to be involved operationally under certain circumstances in enhancing protection and providing humanitarian assistance to internally displaced persons through special operations’. A gap within existing law Current legal protection for IDPs is scarce. IDPs are generally protected by general international human rights law such as Article 12 of the International Covenant on Civil and Political Rights, and Article 49 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War in international humanitarian law. Since the situation of IDPs is specific, without a proper IDP-tailored framework, it is difficult to enhance protection for this group of individuals who are otherwise not eligible for refugee protection because they have not crossed an international border. Patchwork legislation as a result of sewing together different branches of international law leave gaping holes for IDPs. This concern is affirmed by the Norwegian Refugee Council in its Opinion Series on IDPs. The Guiding Principles applicable to IDPs is a soft law instrument, so that it has no binding force under international law. Non-refoulement protection is therefore vital in safeguarding the fundamental rights of IDPs. The principle of non-refoulement is recognized under Art 15(d) of the Guiding Principles, which states that: ‘Internally displaced persons have: (d) The right to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/or health would be at risk’. The link between non-refoulement and IDPs The link between non-refoulement and IDPs may be illustrated some examples. The Russian annexation of Crimea in early 2014. Human rights organizations such as the Human Rights Watch has expressed concern over Russia’s actions in occupied Crimea. In the situation of an IDP fleeing from Russian occupation of Crimea for fear of persecution from Russian forces, he or she may not be entitled to the same protection as refugees, since the IDP is not crossing an international border.  The IDP is especially vulnerable where the State of Ukraine is unable or unwilling to offer protection. Here, the question of internal flight alternative (as in the case for determining refugee status) does not exist or may not be applicable, given the IDP is unable to gain protection from the State of Ukraine elsewhere. Since IDPs are not within the core mandate of the UNHCR, no protection or humanitarian assistance from international agencies is available. Further, given the complexity of the situation between Russia and Ukraine, the international community may be reluctant to intervene – this is despite the United Nation’s obligation to prevent human rights violations such as non-refoulement from taking place pursuant to Article 55 of the Charter of the United Nations. The European Union, for instance, has issued a detailed study on enhancing the national legal framework in Ukraine for protecting the human rights of IDPs in 2016, especially to address the massive flows of IDPs from eastern Ukraine as a result of the armed conflict with Russia. The question remains, however, on whether non-refoulement obligations may apply if an individual has not been able to leave Crimea. In that scenario, the IDP cannot be ‘returned’ to Crimea, if he or she never ‘left’. Another situation which warrants discussion is the Syrian IDP problem. According to UNHCR estimates, there are currently 6.5 million people, including 2.8 million children, displaced within Syria, which is the biggest IDP population in the world. If one accepts that non-refoulement would apply in the situation of IDPs, as argued above, IDPs displaced within internal borders of Syria (thus not refugees) but under occupied power of rebel groups or forces should be protected from being sent back to occupied territories within Syria, where they may face threats to their lives or freedom. In practice, this would mean that Syrian IDPs fleeing internally from persecution or situations of generalized violence, would be protected from being sent back to parts of Syria where they fled (such as rebel-occupied territories). There is UNHCR support for the application of non-refoulement to IDPs, in particular in its Handbook for the Protection of Internally Displaced Persons. As the Crimean and Syrian examples show, protection for IDPs requires more attention from the international community. One way of enhancing such protection for IDPs is by recognizing the need to protect IDPs from refoulement to situations where they may face massive violations of human rights, even where they may not be crossing an international border. Concluding Remarks The above served as a brief sketch of the underlying problems around legal protection for IDPs. It has been demonstrated that, despite this gap in the law, the very basic protection for IDPs such as protection from refoulement should be safeguarded. It is the hope that this blog post can raise awareness on the need for enhanced protection for those being forcibly displaced internally.

By Fatma Ezzahra Sassi On February 7, 1992, the Member States of the European Community signed the Maastricht Treaty. This treaty constituted a turning point in the history of European integration: it formally established the European Union and added a political vocation to the European project. Indeed, going beyond the realization of a common market, the Maastricht Treaty aimed to mark “a new stage in the process of creating an ever closer union among the peoples of Europe.” The Treaty established a European Union (EU) based on three pillars: the three European Communities, a Common Foreign and Security Policy, and cooperation in Justice and Home Affairs. It also introduced the concept of European citizenship and set a three-phase scheme for the creation of a single currency, the Euro. The ratification process of the Treaty took longer than expected due to the negative vote in the Danish referendum. Nevertheless, after negotiations, the Treaty finally entered into force in November 1993. Most recently, the United Kingdom voted to leave the EU in a June 2016 referendum, with the so-called Brexit scheduled for March 2019.

By Guest Contributor Maitreyee Dixit As Trump and Kim Jong-Un exchange threats over Twitter, television, and speeches in the UN General Assembly, one cannot help but wonder whether such threats, especially North Korea’s, are legally permissible. Does international law permit threats to use force, especially the likes being exchanged between two States armed with nuclear weapons? Article 2(4) of the United Nations Charter, in fact, prohibits not only the use of force but the threat to use of force, which has been not dealt with as extensively as the use of force itself in scholarship. Even jurisprudence on this subject is sparse, with the International Court of Justice (ICJ) adjudicating upon it only in the Nuclear Weapons advisory opinion and the Nicaragua case. The Permanent Court of Arbitration has held the threat to use of force to be a violation of Article 2(4) of the United Nations Charter in Guyana/Suriname matter. It was held in Nicaragua that the level of armament of a nation is its sovereign prerogative, and in the absence of international obligations regulating the same, cannot constitute a threat under Article 2(4); however, this position was altered in the Nuclear Weapons case, which considered the possibility of such a nuclear armament being a threat, even though in limited sense. The Court laid down- “Some States put forward the argument that possession of nuclear weapons is itself an unlawful threat to use force. Possession of nuclear weapons may indeed justify an inference of preparedness to use them…Whether this (possession of nuclear weapons) is a ‘threat’ contrary to Article 2, paragraph 4, depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defense, it would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it, would be unlawful under the law of the Charter.” This would entail that the possession of nuclear weapons itself would be a threat falling under the prohibition imposed by Article 2(4) of the Charter, if the use of those weapons is envisaged against the pointers enumerated by the Court. In scholarship, there has been a divergence of opinion with respect to what constitutes a threat of use of force which violates Article 2(4). While scholars like Romana Sadurska define the restriction permissively, considering the threat of use of force to be a better alternative than the actual use of force in diplomatic relations; the others are wary of the risks of such a definition. Amongst the second group, the most cited theorization is that of Brownlie, which was also adopted by the ICJ in the Nuclear Weapons opinion. Brownlie defines an illegal threat to use of force as “an express or implied promise by a State of a resort to force conditional on non-acceptance of certain demands of that State”. He further asserts that there exists symmetry between the legality of the threat of use of force and the actual use of force. In essence, if the use of force in a circumstance is considered unlawful, then the threat of use of such force cannot be considered lawful. Thus, the two exceptions to the prohibition of threats to use of force will also be self-defense and force sanctioned by the United Nations Security Council (UNSC), corresponding to the exceptions of the actual use of force. Authors like Roscini theorize these threats differently, inasmuch as they do not consider demands made by the threatening State necessary for the threats to be illegal. Hence, even if there exists no specific demand made of the targeted state, the threat may still reach the threshold of an illegal threat. Roscini uses the ‘will’ of the threatening state as the defining factor of the illegal threat, meaning that the actual use of force is based upon the ‘will’ of the responsible State. Any threat that fulfills that requirement then becomes an illegal threat, regardless of whether force follows it. Furthermore, according to Roscini, it is not required to prove that one particular statement, in isolation, amounts to a threat of use of force to invoke Article 2(4). To the contrary, the relationship between the concerned states and the context play a key role in determining whether such a ‘threat’ exists. An example of this is the Corfu Channel Case, in which UK’s minesweeping was not seen as a ‘threat’ of use of force, in the specific context of a previous firing by Albania. It is in this framework that the threats of North Korea (NK) have to be analyzed as a violation of Article 2(4). 1. The 2013 Threats Threats and hostile communication being exchanged between the U.S. and NK is no recent development, deteriorating further with NK testing nuclear weapons under King Jong-Il and the acceleration of its nuclear program. NK had threatened the U.S. with nuclear strikes as far back as 2013, which was triggered by the latter’s practice-bombing exercise over the Korean peninsula in the wake of escalating tensions between South Korea (SK) and NK. There were several threats released by NK, followed by the official release of a picture of Kim Jong-Un “discussing” with his generals “plans to strike the mainland U.S.”, Guam, and South Korea, succeeded by statements declaring the ‘readiness’ of its missiles to strike ‘anytime’. It is pertinent to note that all this was taking place in violation of numerous UN sanctions that prohibited the launch of ballistic missiles by NK. Practice drills with drones, cutting off of military hotlines, threats of a pre-emptive nuclear strike characterized NK’s interactions with the U.S. in 2013, similar to the 2017 exchange. However, there is one crucial difference: NK’s increased capability to actually use the threatened nuclear force in the present. In 2013, there was an uncertainty regarding NK’s capability to build and launch long-range Intercontinental Ballistic Missiles (ICBMs) which could carry nuclear warheads. However, with the number of tests conducted by North Korea this year, accompanied by actual displays of such capacity, such a conclusion can no longer be drawn as comfortably. 2. Response to UNSC Sanctions in August 2017. The 2017 exchanges have been more hostile and worrisome, with Trump using vitriol to stir tensions further. The adoption of a fresh round of UN sanctions against NK in August, with the U.S. at the helm, triggered a strong reaction from NK. Calling these sanctions a violation of its “sovereignty”, it threatened the U.S. with retaliatory ‘righteous’ action, to which Trump responded with his infamous ‘fire and fury’ remark. In retaliation, NK released statements threatening to attack Guam with missiles, which were supplemented by NK’s official statements regarding the concretization of a military plan to strike Guam. 3. Missile Launches Over Japan NK’s successive launches of Ballistic Missiles over Japan marked a turning point in NK-U.S relations, as Japan was cooperating with the U.S. over NK’s nuclear policy and is its ally. Apart from this, the missiles also threatened the U.S. territory in a more direct way: the distance the second missile covered was comparable to that between NK and Guam, and in both cases, the Missiles were launched in Guam’s direction 4. Testing of the Hydrogen Bomb Between the two launches, NK tested a hydrogen bomb in early September (its sixth nuclear test) which resulted in a 6.3 magnitude tremor. This bomb was said to be eight times more powerful than the bombs dropped by the U.S. on Hiroshima and Nagasaki in the Second World War. Accompanying the ‘test’ was a picture of Kim Jong-Un inspecting a thermonuclear bomb, which led to a detailed reconsideration of NK’s nuclear weapon manufacturing capabilities. This act was firmly condemned by several states across the globe, including Russia and China as it posed a considerable threat to the nuclear non-proliferation agenda. The conduct of NK necessitated successive UN meetings, which resulted in new sanctions being slapped on NK. NK, in response, threatened to sink Japan and reduce the US to "ashes and darkness", which was succeeded by the second Missile launch over Hokkaido. 5. Responses to Trump’s speech at the United Nations General Assembly Trump’s speech in the UNGA, triggered an ‘unprecedented’ response from NK, with Kim Jong-Un himself threatening Trump and U.S. (unlike the usual method: release of reports by the NK agencies), in which he vowed to “surely and definitely tame the mentally deranged U.S. dotard (Trump) with fire.” NK then threatened to test a hydrogen bomb over the Pacific Ocean in retaliation to Trump’s speech, which would directly affect the U.S. and Japan. Ri Yong-Ho, NK’s Foreign Minister then gave his speech at the UNGA, claiming that “firing its rockets at the US mainland was inevitable” in the wake of Trump’s responses. 6. Response to Trump’s Tweet on 24th September Trump responded to Yong-Ho’s speech via Twitter, stating that they (the regime) “won’t be around much longer”. Yong-Ho construed this as a ‘declaration of war’ by the U.S. on NK, which prompted ‘all options’ to be put on the table. The U.S. has called this “absurd”, and has maintained that their aim is to accomplish peaceful denuclearization of the Korean Peninsula, and not ‘declare war’; which in spite of Trump’s bellicose language, is evident from the U.S.’ continuous efforts at the UNSC. Yong-Ho further claimed that the ‘declaration’ allowed NK to ‘make countermeasures’ which would include shooting down U.S. strategic bombers which are not even in its airspace. It has, in fact, boosted defenses on its east coast to achieve that objective. The White House has maintained that such an act will contravene international law. Analysis All these facts, when taken cumulatively, fulfill the requirements of an illegal threat according to Brownlie’s and Roscini’s definitions. NK has, through its conduct, promised to use force on the U.S. and its allies, demanding the U.S. and the international community cease its non-proliferation efforts in the Korean region. The threat also fulfills the ‘will’ criterion laid down by Roscini, since the use of nuclear force depends solely on the will of Kim Jong-Un, which has been demonstrated repeatedly. Employing the opinion in the Nuclear Weapons case, it may be argued that nuclear armament by NK itself may amount to a threat under Article 2(4), as it is not in doubt that if NK does use force, which it has threatened to do against the U.S., Guam, Japan and South Korea, it will violate their territorial integrity. Use of nuclear force can also arguably violate the purpose of the U.N., which is maintaining global peace and security. Conclusion The analysis of NK’s threats in the provided framework makes it difficult to deny that that its threats contravene Article 2(4). North Korea’s statements and actions, like conducting missile launches over the territory of Japan, testing hydrogen bombs etcetera, all in violation of UNSC sanctions have the effect of cumulatively fulfilling the criteria laid down for the determination of illegal threats. One counter argument, however, is crucial to be addressed, albeit in brief. The exchange between NK and Trump has been bilateral, with both sides using fiery rhetoric; in that scenario, shouldn’t NK’s remarks have the benefit of being seen as self defense? It is indeed possible to envisage counter threats as a measure of self defense when faced with threats of use of force. However, such application cannot be seen as a simple exercise and will largely depend on the choice of a reference point. For example, in the current situation, North Korea’s threats and conduct in and prior to 2013, in the absence of threats by the U.S., make it difficult for them to claim self defense in 2017. The U.S. can claim self defense more effectively in that context. However, keeping in mind Trump’s equally bellicose rhetoric (the threat to “completely destroy NK”) the extent of this permissibility is yet to be examined. In addition to this, it can be argued that U.S.’ threats have always tried to ensure that NK complies with UNSC sanctions and hence are legal. This too, however, is not rid of complexities. On one hand, U.S.’ threats can be seen to be compatible with the purpose of the United Nations (maintaining global peace and security through nuclear disarmament) and its recourse to UNSC instead of other methods does correspond with peaceful settlement of disputes to a reasonable degree; but on the other hand, legality requires that the very UNSC sanction allows for use of force to ensure compliance for the threats to be legal- like in the case of the Iraqi invasion of Kuwait- which is absent here. It can be argued that this is a narrow construction of the exception, but a broadening of such an exception has to be done cautiously.

By Guest Contributors Harsh Mahaseth & Nirupan Karki Harsh Mahaseth and Nirupan Karki are currently pursuing their degree in law from the National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad, India. The longstanding Israel-Palestine conflict dates back to 1967, when Israel captured West Bank and the Gaza Strip. As a result, more than 700,000 Palestinian Arabs were forced out of their settlements and made into refugees. Israeli authorities, since then, have taken thousands of acres of Palestinian land for their settlement and have facilitated the transfer of its citizens to the West Bank- a territory of Palestine. It is now home to approximately 580,000 Israeli people who have settled there with aid from their government. Such an action is similar to one of colonization and is contrary to the Fourth Agreement of the Geneva Convention. While the settlers are provided with adequate infrastructures, subsidies, protection and rights, these benefits are not extended to Palestinians living there. They are instead subjected to oppression, discrimination and severe violations of Human Rights. Discriminatory laws have particularly made it difficult for Palestinians to obtain building permits in West Bank and East Jerusalem, which are exclusively under Israeli control. This has led Palestinians to give up on land that is rightfully theirs. Furthermore, Israel revoked residency of Palestinian citizens residing on the West Bank citing arbitrary security concerns. As Human Rights Watch rightly puts it, this is a “repression that extends far beyond any security rationale. On April 1, 2015, Palestine became the 123rd member to ratify the Rome Statute and became a member of the International Criminal Court (ICC). The reason behind this ratification was to threaten to bring charges against Israeli officials who had committed severe crimes in the Occupied Territories. This decision has met widespread approval, with the European Parliament describing it as a “historic moment in the Palestinian people’s struggle for justice, freedom and peace.” Both international law and the public opinion has been seen to side strongly with the Palestinians, but Israel shows no signs of stepping back. Palestine in the ICC The Office of the Prosecutor of the ICC began its preliminary examination in Palestine in January 2015. During this phase the prosecutor determines whether the certain criteria have been met to pursue a formal investigation. In September, 2017, four Palestinian human rights groups submitted a 700 page communication to the ICC alleging Israeli officials of committing war crimes and crimes against humanity in West Bank and East Jerusalem.  According to these human rights groups, this step is “necessary step to ending the culture of impunity that has long prevailed in regard to Israeli crimes and to hold high-level political and military officials accountable". This communication is said to hold evidence of the war crimes which could be considered strong evidence to launch a full investigation. This is not the first time an organization has requested the ICC to open up a formal investigation. In 2016, Human Rights Watch had requested the ICC to open a formal probe drawing on the “unlawful attack” carried out by both sides during the Israeli war on Gaza and the continuous expansion of illegal settlements. In light of this report being submitted there are chances that this process is taken further. Implications of the ICC’s Decision According to the mandate of the ICC, Individuals can be tried and be held accountable for committing serious crimes that are of concern to the international community. The crimes should fall under any of the four criteria, namely genocide, war crimes, crimes against humanity, and the crime of aggression. In its mandate, the ICC further states that deportation or forcible transfer of population comes under the ambit of “crimes against humanity”. Thus, facilitating illegal settlements of Israelis in Palestinian territories and forcing conditions where Palestinians have to move out of their own houses does constitute as a serious crime under the ICC’s mandate and gives them jurisdiction to try those involved. Considering that Israel is not a party to the Rome Statute, it may not agree to the decision of the ICC; however, its nationals can be tried by the ICC for crimes committed on Palestinian territory. Although enforceability of such a judgment lies solely in the hands of individual states and their stance on international law, failure to comply will be met with repercussions from the international community. Therefore, it would create a favorable outcome for the Palestinians as it would cast Israel in an unfavorable light in relation to the United Nations, international law, and public opinion, etching Israel’s history. Considering Israel’s volatile relations with nations of the Middle East and most of the P5 countries, as of late, disregarding the ICC judgment is not advised. The Way forward Lately, many have been wondering if the recent considerations of some African countries to withdraw from the Rome Statute will generate a domino effect and result in the end of the ICC. During the near two decades of the operation of the ICC, it has been very reluctant to be proactive except for in Africa, and that too has seen an immense backlash by the African nations as being unfairly targeted. The ICC has been reluctant to stir up political opposition in the West, which is bound to happen if a full investigation is opened up by Palestine. With the ICC now beginning to take on powerful nations such as the United Kingdom for its actions in Iraq, or Russia for its actions in Georgia, or Israel for its actions in Palestine, there needs to be a more dominant role of the ICC. The dependence of the Court on the States’ cooperation and the rage against the Court by the AU has left the ICC in a conundrum. The ICC requires the States’ cooperation and without this, there can be no expectation of the victims of mass crimes having recourse to justice or atrocious crimes from being prevented from occurring now and in the future. The step taken by Palestine to take the Israelis to the ICC helps restore support for the flagging claims of the Palestinian Authority to serve as the sole legitimate representative of the Palestinian people. However, the arguments against Palestine taking the Israelis to the ICC are something that needs consideration as well. This move could also prove to be fatal as the Israelis could move quicker towards closing the conflict and annexing West Bank. Their disproportionate reactionary tendencies to any formal action directed at the legality of their policies and practices can prove to be harmful to Palestine, but considering the strong support Palestine now has from the international community, a strong foundation is laid for Palestine the 50-year long deadlock.

By Guest Contributor Jessica Espinoza  L.L.M. at Harvard Law School Last year, the International Criminal Court (ICC) celebrated its 15th anniversary. When the Rome Statute was adopted in 1998, the international community considered it a historic milestone to establish the first permanent international criminal court, which unlike the many ad hoc tribunals established to deal with mass atrocities, would have a deterrent effect as a threat of legitimate punitive action already in place. However, throughout fifteen years in operation, many questions have been raised about the ICC’s credibility. First, its complementarity-based prosecutorial rules and policies have been mistaken for a political approach to its mandate. Second, the ICC has been blamed for having an African bias since, except for in one case, all of the situations under investigation involve African countries. Although factually and legally inaccurate, these claims have created a misconception on the legitimacy of the ICC. They have also caused –or perhaps helped craft the opportunity for– a group of countries to announce their intentions of withdrawal from the Rome Statute. Such was the case of Gambia, South Africa, and Burundi in 2016, only the last one successfully withdrawing from the treaty, and likely to be followed by others in the region. A Matter of Rules and Policies The essential feature of the ICC is its complementary character. The ICC acts only as a subsidiary body, closing the gap of impunity caused by the –ideally– exceptional inaction of the States. The whole Rome Statute system is designed over this premise. The ICC may exercise its jurisdiction over the crime of genocide, crimes against humanity, and war crimes, based on the principles of territory or nationality, provided the case is admissible on grounds of complementarity, gravity, and the interests of justice. That is, a case is admissible when there are no States exercising their jurisdiction in relation to the same person for substantially the same conduct, or if true, when the national proceedings are influenced by a lack of political will or judicial capacity to investigate and prosecute genuinely. Also, the case has to meet a certain gravity threshold, and the potential ICC investigation should not be contrary to the interests of justice and the interests of the victims. The interests of justice test is a countervailing consideration that may give a reason not to proceed with an investigation even when the jurisdiction and admissibility requirements are satisfied. To date, there is extensive ICC jurisprudence for the interpretation of these statutory rules. Since it is not the role of the Prosecutor, nor practically feasible for the ICC to investigate and prosecute every alleged crime or every allegedly responsible person for such crimes, the Office of the Prosecutor has designed policies to guide the exercise of the prosecutorial discretion and at the same time promote transparency in the selection of situations of conflict for the opening of an investigation, as well as the selection and prioritization of cases for investigation and prosecution. Among the factors that the ICC ponders are the scale, nature, manner of commission of the crimes, their impact on victims and communities, and the degree of responsibility or participation of the alleged perpetrators and the potential charges. Also, the Office of the Prosecutor issues an annual report on its preliminary examination activities as well as other situation-specific reports giving account of the phase that each situation is undergoing and the basis of the decision to either proceed or not with an investigation. All these rules and policies seem fairly clear for the claim of a politics-oriented ICC to be sustained. However, there is one aspect that may create the impression that the ICC is tainted by international politics, and which should be clarified: the role of the United Nations Security Council (UNSC) in referring a situation to the Prosecutor. There is three trigger mechanisms for the ICC to exercise its jurisdiction. The Prosecutor may open an investigation on a situation (i) proprio motu if previously authorized by a Pre-Trial Chamber, (ii) when referred by a State Party to the Rome Statute or (iii) by the UNSC, a political body. A referral by the UNSC must observe only the temporal and subject-matter competences of the ICC, irrespective of the territorial or nationality jurisdiction conditions. This mechanism allows the UNSC to refer situations of conflict taking place in States non-parties to the Rome Statute. The rationale for such an exception is that the UNSC would be acting under Chapter VII of the United Nations Charter, to maintain or restore international peace and security. It is true that three of the five permanent members of the UNSC are not States Parties to the Rome Statute, and would hardly ever be investigated by the ICC, but still can bring other non-parties under investigation. Yet, this is just another possibility within the vast measures available to the UNSC under Chapter VII, which actually turns out to be an important resort to increase the reach of the ICC action to potentially universal, as with the referrals of the Sudan and Libya situations –although unlikely for Syria, for instance. However, even when referred by the UNSC, a situation is subject to legal scrutiny, and the Prosecutor makes the corresponding assessment. The investigation is not automatically initiated. On its part, the African bias argument is a rather superficial one. There are in fact nine situations under investigation that implicate African countries, and the tenth involves a Eurasian country, Georgia. From the nine African-related situations, two were referred to the ICC by the UNSC (Sudan and Libya); five were at the request of the situation countries themselves, and only two were initiated by the Prosecutor: Kenya and Côte d'Ivoire. Kenya unsuccessfully appealed on grounds of jurisdiction and admissibility the authorization granted by Pre-Trial Chamber II for the Prosecutor to open the investigation (see resolution). Regarding Côte d’Ivoire, the Prosecutor opened the investigation in 2011, authorized according to the State’s declaration accepting the ICC’s jurisdiction under article 12(3) of the Rome Statute, initially made by President Gbagbo and then reconfirmed by President Ouattara, before becoming a State Party to it in 2013, yet compelled to fully cooperate with the ICC. Moreover, there are ten ongoing preliminary examinations awaiting a decision of the Prosecutor whether to open an investigation. These situations involve African countries such as Burundi –which notified its withdrawal from the Rome Statute in October 2016–, as well as countries from the Middle East, South Asia, South America, Eastern Europe, and even the United Kingdom with regard to the Iraq conflict, a country that many suggested would be safe from any ICC intervention. Positive Complementarity: Really Improving International Criminal Justice There is a fundamental part of the work of the ICC that is generally overlooked and really improving international criminal justice. During the Review Conference of the Rome Statute in 2010, it was noted that the notion of complementarity had created the idea of an “antagonistic relationship” between the ICC and the States, but that there was a positive aspect of this concept, too. The ICC promotes and engages in actions of positive complementarity to enable States to conduct genuine investigations and prosecutions as the Rome Statute system relies primarily upon national jurisdictions. These actions may take any form and be carried forward with the support of the ICC or by the States themselves with other stakeholders, such as international and non-governmental organizations (NGOs). The ICC organizes training courses for national counsel, judges and other judicial personnel with a train the trainer component to maximize the spread. There is also an ICC Victims and Witnesses Unit training project for local authorities on witnesses handling and security arrangements. Other projects developed by international organizations and NGOs include capacity building for judges and prosecutors, political support building, advising on legislative drafting and implementation, transitional justice activities, and financial aid for physical infrastructure (see compilation). Although there are few explicit implementation obligations in the Rome Statute, States Parties are nevertheless compelled to take all necessary actions to strengthen their prosecutorial and judicial institutions and adjust their laws and practice to ICC standards. Only when this is accomplished and every State is enabled to deal with the most serious crimes, international criminal justice will be happening on the required scale and have a deterrent effect. Conclusion The ICC has faced a series of criticisms that have damaged its credibility as an impartial, independent court. Frequently referring to its prosecutorial policies apparently conforming to international politics and an alleged bias against African countries. These claims are mainly due to a lack of knowledge of the ICC’s mandate and statutory capabilities, as well as political resistance. Besides its prosecutorial and judicial duties, the ICC promotes and works on positive complementarity actions aimed at strengthening national jurisdictions and encouraging national ownership of investigations and prosecutions. This is a major task for the ICC and one with a great potential to make a large scale difference.

By Guest Contributor: Michael Ristaniemi (LL.M. Uni. of Turku, Finland)  Currently, a Visiting Researcher at Berkeley Law and Legal Counsel at Metsä Group (on study leave). This piece summarizes the content of a talk he gave at UC Berkeley on 21 September 2017, as a part of the Humanities & Social Sciences Association Interdisciplinary Teaching Series. Setting the scene Throughout time, business has had an overwhelmingly positive effect in creating well-being for society. On the other hand, much of the concern about the future of our planet is concurrently a result of the past detrimental action of companies in the process of doing business. A question that is relevant to all of us is how to alter this status quo to one which minimizes the negative externalities of business while retaining the benefits we all enjoy. The relevance of this question is a way of describing the purpose of corporate sustainability since companies are both the main root cause and solution to our current unsustainable way of life. The UN Global Compact defines corporate sustainability as “(a) company’s delivery of long-term value in financial, social, environmental and ethical terms”. Indeed, executives will be interested in being sustainable to the extent that an action (or inaction) will align with and further its purpose to benefit its owners, thus providing a ‘business case’ for such conduct. From a company’s perspective, natural ways to do this are to harness technology and adopt other practices that are simultaneously sustainable and either bring cost savings or create goodwill with key stakeholders, such as with its customers. Examples include airlines wanting to transition to newer, more fuel-efficient airplanes in order to save on cost and thus becoming more competitive, which also helps conserve fossil-fuel and has the collateral effect of generating goodwill among consumers. Companies might however not naturally possess the incentives to act in a sufficiently sustainable way. This may simply be due to the still-prevailing notion that a company’s purpose is to create value for its shareholders, which may also be codified in legislation. While a company’s leadership does have a degree of discretion in determining how to create maximum shareholder value, this purpose can be interpreted narrowly so as to focus on mere compliance with laws instead of embracing a broader ethos towards being sustainable. There are however a number of ways stakeholders can incentivize companies to do good. The role of policymakers is crucial, they have a range of options at hand. They are able to either prohibit and restrict undesirable practices or – as a softer approach – to impose more comprehensive reporting obligations on sustainability-related matters of public interest as well as subsidize practices that are seen as beneficial to society. Reporting initiatives seem to be many regulators’ weapon of choice since so-called ‘non-financial reporting’ obligations have increased, an example of which is the 2014 EU Directive on non-financial reporting. Customers, NGOs or – in the consumer business – the general public are all able to set expectations for companies to conduct business in a certain manner, as well, particularly when companies are forced to become more transparent through increased reporting. All of the above amount to hurdles to gain a license to operate – practices that a company is inclined to adopt in order to help ensure the future success of its business. A number of international policy options exist Whatever incentives are preferred, corporate sustainability considerations must transcend a nation-state’s borders in order to have enough impact. The differences in various nations’ economies and the resulting imbalance does however not make cooperation simple. There are a number of possible international policy alternatives for cooperation, in general, that apply also for sustainability matters. These include possibilities ranging from both international binding agreements and non-binding standards; convergence among laws of different nations; case-by-case cooperation between authorities; as well as promoting sustainability with leading companies and their supply chains. The current state of affairs in corporate sustainability can be described as a hybrid of all of the above – an unstructured and unsatisfactory approach indeed. Binding international agreements are generally difficult, particularly when concluded multilaterally. Nations dislike relinquishing sovereignty by constraining themselves in such agreements. Moreover, interests vary greatly among nations, rendering reaching consensus among many nations a tiring mission. Further, international agreements do not usually create obligations that would directly apply to companies, this would require domestic regulation in each contracting nation. However, since territories on our planet are in any case governed by various nations, it is imperative to have their support in ensuring the adequate sustainability of whatever takes place in their respective territory, in whatever way possible. International trade agreements are an exception. They are a way for powerful nations, such as the EU and the US who are already serious about sustainability questions to leverage the influence they have in trade in order to induce sustainability commitments on the part of the other contracting nations as a prerequisite for entering into such trade agreement. Advancing a sustainability agenda in trade agreements is relevant in both bilateral and multilateral contexts. While said agreements do not impose direct obligations on companies, they do have the potential to pressure contracting nations to create appropriate national legislation to that effect. Non-binding ‘soft law’ and other voluntary options are easier to generate support for and may actually be the de facto most feasible path towards convergence and consensus internationally. Several examples exist of international non-binding standards concerning corporate sustainability. These include the UN Global Compact, the UN Guiding Principles, the OECD Guidelines for Multinational Enterprises, and the IFC Performance Standards. Multinational companies have a significant role in the utility of such standards: they can impose contractual obligations on actors upstream in their supply chain, which might consequently update detrimental practices in fear of otherwise losing a key customer, i.e. the leading company. However, the efficacy of such voluntary-based alternatives may fall short of what is sufficient, particularly when a company’s business incentives are not aligned with what the environment or society might need. Concluding thoughts Corporate sustainability as it currently is practiced is simply insufficient, from a global sustainability perspective. It brings mostly only incremental gains for the global society and it is difficult to see it extending further than what represents cost savings and other ‘low-hanging fruit’. Companies are not to blame, it is the framework in which they operate that needs updating. We need to truly incentivize businesses to strive towards being sustainable and making a positive social impact in the progress. This would constitute a transformative change, which requires stronger input and requirements imposed by policymakers and society at large, which, in turn, demands more dedicated cooperation internationally.

By Edward Richter Since his election, French President Emmanuel Macron has embarked on an ambitious plan: to reform not only France’s economy, but indeed the social underpinning of the nation itself as he seeks to reform the nation along Nordic lines. In doing this Macron has drawn praise from businesses and scorn from Unions who see his actions as condemning the French people to the mercies of the Anglo-American economic model. Whether Macron’s proposed legal reforms will follow the Nordic model as he says they will, or follow the Anglo-American model as his detractors claim, is at this point uncertain. However, by analyzing and comparing the underlying legal, social, and economic constructs of France and the Nordic countries, it appears that Macron’s current plans may be unviable. Synopsis of French Labor Law: The French labor market has been highly regulated since the 19th century with companies’ ability to hire, fire, and manage employees being regulated at the national level through the voluminous, complex, and opaque Code du Travail. The Code du Travail has been blamed for France’s high unemployment rates as it imposes considerable costs to hire and fire employees. The result has been a highly static labor market that ensures excellent security for those with jobs, but makes it difficult for many people to get jobs. Synopsis of the Reforms: The crux of Macron’s proposed changes is a two-pronged reformation of France’s labor laws by first overhauling the Code du Travail, and then restructuring France’s existing social safety net into something closer to the Nordic Flexicurity model. Macron has already made progress overhauling the Code du Travail as the Parliament has voted to let him pass the reforms by ordinance, meaning he only needs the Administrative High Court’s assent for the changes to become law. The first of the core changes that Macron has proposed is to place more emphasis on in-house labor talks as opposed to sector-level discussions in the hope that this will provide companies with greater flexibility during a downturn by allowing each one to negotiate a deal that fits their situation. The second major change is that when assessing the legality of a layoff plan, French judges can only look at the health of the company inside France rather than internationally. The third proposed change is that there shall be a predetermined scale for damages in wrongful dismissal actions which should make the cost of such actions more consistent for businesses. The fourth change is that the works, health, and safety councils that are needed for all companies with more than fifty employees shall be combined into one. The fifth major change is that the length and renewal terms of short term employment contracts will be decided on the industry rather than national level, which will give companies more flexibility in hiring short term workers. The result of these changes is that it will be easier to hire and fire workers, which should result in more people employed but lower quality jobs with less security. However, there has been relatively little movement to enact the reforms of the French social safety net to bring it in line with the Nordic model as Macron has said he intended to do. Indeed, the only real movement on this matter is that the minimum damages awarded for a wrongful dismal are to be increased, a far cry from the extensive safety net present in the Nordic countries. As such, any analysis of the impact of the second prong of Macron’s plan is premature, until he implements it, or it is revealed that there will be no implementation of it whatsoever. Comparison and Analysis: Macron’s claim that he is trying to create a Nordic style Flexicurity model is questionable. This is because while the Nordic countries do not have as many restrictions on businesses, the potential negatives of said lack of restrictions is balanced out by a generous social safety net. This safety net means people are essentially free to leave their jobs in search of ones that are a better fit for them or to pursue other endeavors, subject to a few restrictions. The French safety net meanwhile is less substantial in terms of the support it provides the unemployed in favor of ensuring greater protections and benefits for the employed. As such, without the implementation of the second prong of Macron’s plan, any hope of moving France to the Nordic model is fanciful. Furthermore, whether the second prong can be implemented is questionable.  This is because Macron’s goal of expanding the social safety net may come into conflict with Macron’s foreign policy goal of strengthening the E.U., which involves complying with the E.U.’s limits on public debt. This limits Macron’s ability to spend money on the social safety net, as he needs to cut spending. As such, it is highly questionable how Macron would be able to accomplish the second prong of his plan. More concerning is the possibility that even if the second prong is implemented France’s social conditions may be too divergent from the Nordic countries for their model to be viable. This is due in large part to differences in how France and the Nordic countries’ unions and businesses interact. Notably in the Nordic countries unions and the companies whose workers they represent have a largely functional working relationship which keeps wages to levels business can support to ensure businesses profit and hence higher more people. However, in France strikes and conflict between unions and businesses are endemic and so relations are fraught with tension, which may make it impossible for France to achieve the sort of trust that enables an equitable balance between business and unions. The result of the likely failure of the second prong of the plan is not exactly clear, but considering France’s existing social safety net it seems unlikely that France will end up like the Anglo-American countries with low unemployment but shrinking real wages. Instead, France may instead end up like Germany with low unemployment but a proliferation of short-term and part-time jobs in place of careers. Conclusion: Macron’s goal of shifting France onto the Nordic model by reforming French labor law and expanding the social safety net to enable more fluid movement of labor is laudable. However, difficulties are posed by his competing foreign policy objectives and the tense relationship between labor and management in France. While France’s safety net will probably prevent disastrous results like in the Anglo-American countries, the result will likely see a proliferation of short-term and part-time jobs like Germany. Authors Note: I would like to thank Professor Marie Mercat-Bruns of the Universities of Sciences Po Law School and the Conservatoire National des Arts et Métiers for her help in putting this essay together. Her most recent book Discrimination at Work compares anti-discrimination law in France, Europe, and America and is available free through Luminos the University of California Press’s open access publishing service.

By  Dru Spiller “Colorblindness” is the effective removal of minority identity for the purpose of official equality. Its use in Western European countries, who try to produce an anti-racist culture, creates benefits for disadvantaged people of color but it can also produce stereotypical and racialized representation of people of color in the media. European anti-discrimination laws and the principles behind their creation serve as the basis for the concept of colorblindness. World War II is often credited for the development of the European model of human rights and equality. This European concept of equality is also traced by Bruno de Witte in his essay “From a Common Principle of Equality to European Antidiscrimination Law” (2010); and by Daniel Sabbagh in his essay, “The Collection of Ethnoracial Statistics: Developments in the French Controversy” (2008). Both consider the aftermath of World War II and genocide in tracing the origin of, current cultural manifestation of color blindness. It was during the transition and reconstruction period following the war, as countries tried to make sense of the resulting chaos, that antidiscrimination became a high priority for the newly created intergovernmental organizations. In an effort to prevent another Holocaust, anti-discrimination began to play a very central role in individual state policies and eventually the European Union’s treatment of minorities. The European Court of Human Rights and the European Convention on Human Rights (Article 14) both contain language designed to protect against discrimination of sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation. This same language is also translated into the national or state level by many European countries, including France, which has articles in their constitutions that are meant to ensure equality and prohibit discrimination. Although these state policies were created with the intent of producing a more tolerant society, the language calls for equality by forbidding the designation of “minority” characteristics as a separate entity. As a result, discrimination-against and concerns unique to minorities are often ignored in order to maintain the façade of cohesion and equality. Although many have estimated that the black population in France is the largest colored minority in Europe, the French policy of anti-discrimination and color blindness means that there is no numerical count of the black population because a census identifying race is illegal. This means there are no statistics to lean on when addressing the proper ratio of diversity in politics and media to accurately represent the ethnic make-up of France. Instead of creating laws that deal with the history and culture of racism stemming from neo-colonialism and, antisemitism, and how it affects the way people think and act, France has covered the issue by making any act of racial designation illegal. Not only are hate crimes illegal, but also any policy or action that has taken place because of race, creed, religion, or so on is unlawful. The issue, then, becomes how people of color, as supposed “minorities”, can prove and seek to address disparate treatment and how the non-minority citizens of the country can understand and address the embedded racism when many aspects of the conversation are banned. When anti-discrimination laws are designed only to produce a “colorblind” discourse, they become ineffective pieces of legislature that allow countries to appear post-racial. In this way, antidiscrimination laws produce a colorblind discourse that affects the ways in which people of color are seen. In his work on administrative violence and transgender politics, Dean Spade uses Critical Race Theory to explore anti-discrimination law and colorblindness as harmful factors resulting in the “neoliberal politics of denying that unequal conditions exist, portraying any unequal conditions that do exist as natural or neutral” (Spade 2011: 28). Within French media this idea translates into the racialized stereotypes of minorities. Media becomes the medium through which most people begin to understand the “other” citizens that they are not in regular contact with because of various economic and social reasons. When minorities cannot fully assimilate into a preconceived French identity, which is nearly impossible for Muslim and darker skinned immigrants, they are portrayed in ways that conform to the larger society’s stereotypes. Because the images of the racialized other in media roles conform to your stereotypes your biases are no longer considered discriminatory but an assessment of their natural condition. The lack of diverse minority representation in the French media contributes to the ignorance and ostracization from French society surrounding minority populations.  By attempting to create equality through anti-discrimination laws the country has created a system of colorblindness that delegitimizes the issues that minorities face from racism, ostracization, integration, and representation in favor of a more cohesive and seemingly equal nation. It is this system that allows French media to perpetuate the ideals of a society that supports their dominant view of French identity based on whiteness and that lack accurate representation of the non-white ethnic communities or portrays them in ways that contribute to immigrant stereotypes.

By Harris Mateen On November 8, 1968, the UN ECOSOC passed the passed the Vienna Convention of Road Traffic and the Vienna Convention of Road Signs and Signals.  These treaty intended to create a standardized system of rules and procedures to increase road safety between nations, making it easier to drive between different nations. These treaties helped standardize important signs used internationally. The Convention codified the use of red-yellow-green traffic signals, octagonal stop signs, and handicapped parking panels. Another important component of these treaties required cars to display clear symbols of their nations of origin. This has led to country codes and symbols being integrated into license plates. However, remnants of this original rule can be seen o many Swiss cars which display an oval with CH—for Confederation Helvetica—on their back bumpers. Several major nations including the United States, Canada, Australia, and China did not sign the treaty. This makes sense considering that the size of these nations makes driving into the countries from abroad more difficult than for many of the signatory nations.

By Sarah Pike The Internet can help promote shared international values through the exchange of information and ideas. However, it can also be a site of surveillance and abuse. With more of the world coming online, opportunities for privacy to be invaded will continue to grow. These violations matter to the international community due to their frequency, impact on human rights, and the ways they occur across borders and impact multiple jurisdictions. As the law struggles to keep pace with technological advancement, looking to the current international landscape may help to synthesize best practices while showing how far we have to go to protect the right to privacy in these spaces we all share. Privacy Problems: The Example of Doxxing There are a variety of ways in which privacy rights can be infringed digitally, including online abuse which is disproportionately gendered, racialized, or otherwise targeted at marginalized communities. One such example is doxxing, or doxing. Doxxing (from “docs” or “document” when the term originated with hackers) is the posting of personal information (ranging from social security numbers to home addresses) in order to cause harm. This release of private information can lead to a variety of frightening offline outcomes, from lost jobs to assault. Here, privacy concerns cut two ways. First, doxxing victims clearly invades their privacy through the publication of their uncovered or collated personal information. In the too-common cases of doxxers targeting marginalized individuals, “unmasking” those responsible may seem to serve justice. However, there is a second privacy interest to consider: that of the doxxers. Allowing states or private corporations to revoke the anonymity of users can have major consequences if these powers are then used in other contexts against minority, activist, or other communities who depend on anonymity to keep themselves safe. We may feel very differently about the doxxing of a private individual who speaks out about gender discrimination in her industry than we do about the release of private documents that show wrongdoing by powerful politicians in an authoritarian regime. We may wish for these cases to be differentiated by law, just as some countries’ defamation laws have different standards for public and private actors. However, online privacy laws currently diverge across countries. Some nations may distinguish such cases, others may not, and some may have no applicable laws at all. Though just one of many similar issues, doxxing reveals the importance of online privacy laws and the problems with their variance worldwide. A Lack of International Consensus Like other human rights, the right to privacy is outlined in a range of international human rights laws. Some, like the European Union’s Data Protection Directive, focus on current challenges raised by digital communications and devices. Others, like the Universal Declaration of Human Rights, were authored too long ago to have considered such technologies. Despite many such documents, there is currently no universally agreed-upon definition of privacy. In 2015, the United Nations appointed the first-ever Special Rapporteur on the Right to Privacy. The Rapporteur’s Mandate includes a focus on the “particular challenges arising in the digital age” as well as an effort to define the right to privacy. Until then, nations are addressing privacy questions to varying degrees. State & Corporate Actors Adoption and update of online privacy laws is proceeding worldwide. Though some nations have no relevant legal instruments, over 100 independent states and jurisdictions now have privacy or data protection laws. Still, these online privacy protections vary in their strength and breadth. The European Union’s Data Protection Directive, mentioned above, was considered a leading framework for its comprehensive protection of privacy. An updated General Data Protection Regulation involved many critical debates, and will come into force in 2018. These changes are encouraging other countries that had been considered online privacy leaders, like Canada, to review their laws as well, demonstrating the quick pace of change needed in this area. In India, the Supreme Court recently ruled unanimously that privacy is a right inherently included, and thus protected by, the Constitution. While recent updates to the Information Technology Act include explicit protections for online privacy, this new decision may push such protections even further in future. Some privacy laws are becoming more specific. The United Kingdom has started to focus on online abuse by individuals, by including doxxing and other forms of harassment in its recently updated cyber offense guidelines. Countries like Singapore and South Africa also have laws against online harassment. However, some countries have laws that are simply too outdated to adequately respond to contemporary online privacy issues. For example, the main federal statute governing online privacy in the United States is the Electronic Communications Privacy Act, passed in 1986. A proposed federal bill, the Online Safety Modernization Act, would make doxxing and similar online acts crimes under the United States Code. California has also passed its own California Electronic Communications Privacy Act, with modern provisions. Besides state actors, it is also important to consider large private corporations. Millions of clients worldwide may be impacted by the privacy policies and degree of government cooperation of such companies. This is especially true of social media platforms like Facebook and Twitter, which are often the venue of doxxing attacks and other forms of privacy invasion, such as government surveillance. As non-elected bodies, there may be particular concerns about allowing such actors to self-regulate. Online harassment and violence is only one of many potential threats to privacy in the digital age. Laws at both the international and national level have promise, but are still works in progress. As our online interactions expand, it behoves us to keep creating clear and robust protections for privacy.

By Sam Mottahedan In recent years, trenchant critiques have emerged over the reach of the European Convention of Human Rights (‘ECHR’) to British troops acting abroad. The controversy began with a report published in 2015 by Policy Exchange (a center-right think-tank based in London). In the hyperbolically-entitled Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, Policy Exchange authors called attention to what they referred to as “a new form of judicial imperialism”, “the cavalier expansion” of the apparently civilian norms of ECHR to overseas armed forces that has, in their view, undermined military effectiveness. Alarmingly, despite not having been either authored or endorsed by a single international lawyer, the report was approved by last year’s Conservative party conference. The UK Secretary of Defense Michael Fallon has since announced an intent to follow Policy Exchange’s recommendations and derogate from the ECHR to “protect British troops serving in future conflicts” from persistent legal claims in future overseas operations. Albeit, in its more recent election manifesto, the Conservative Party has pledged to postpone any derogation or withdrawal from the ECHR till after Brexit, but misperceptions within government circles surrounding the ECHR still persist. Leaving aside the very questionable legal validity of a hypothetical derogation from the ECHR for the purposes of avoiding claims against the armed forces (dealt with here), I would like to address three misleading claims made by the UK Government on the apparent benefits of immunity, another unsubstantiated claim, and offer some conclusions. Misleading Claim #1: That the ECHR has only recently been found applicable to overseas operations Far from novel, the general understanding that the ECHR applied extraterritorially existed before the ECHR was even incorporated into UK law by the 1998 Human Right Act. Case law stretching from Loizidou (1996) to Al-Skeini (2011) has confirmed that human rights obligations can extend to both areas under effective control of a contracting state as well as to persons under the control and authority of state agents. This view is supported by the UN Human Rights Committee (‘HRC’) in Lopez Burgos (1981) as well as by the International Court of Justice (‘ICJ’) in it Advisory Opinion on The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (1996) and on the Legality of the Threat or Use of Nuclear Weapons (1996). The ICJ, the Human Rights Committee and the European Court of Human Rights (‘ECtHR’) are all in agreement that human rights obligations do not disappear in times of armed conflict. In short, this so-called  “cavalier expansion” or growing “judicial imperialism” identified by the Policy Exchange is a vast exaggeration. Misleading Claim #2: That derogation would protect British service personnel from vexatious claims and “significant distress.” Civil obligations under the ECHR reside with the UK government for alleged breaches by public authorities. In other words, the UK government is liable for breaches by the armed forces, not individual army personnel.  There is no civil liability for individual military or civilian commanders in international human rights law. Armed personnel may only have personal criminal liability under international humanitarian or criminal law. Of course, the procedural duty under the ECHR to conduct a full and independent investigation into allegations of abuses may have had a significant personal impact on the service personnel called upon to give evidence. Yet these issues do not immediately demand an end to legal scrutiny, but an improvement in the procedures and standards of inquiries that call upon service personnel. Misleading Claim #3: That the ECHR was designed for peacetime The Policy Exchange report consistently describes the ECHR system as designed for “the peacetime conditions of post-war Europe”. Such an assumption certainly parts company with the approach authoritatively laid down by the International Court of Justice on the applicability of international human rights law in armed conflict. Any notion that the intention of the ECHR’s framers was that it applies only in peacetime is undermined by the text itself, in which Article 15 “provides that a state may derogate from the provisions of the Convention in times of war, rather than such provisions are rendered automatically inapplicable”. Further, the ECHR has experience with situations of conflict and insecurity, with an illustrious history of deciding cases from Northern Ireland, Cyprus, the Turkish-Kurdish conflict, and Chechnya. Arguments that the ECHR’s obligations are impractical and restrictive in times of difficult security conditions and armed conflict do not take into account the ECtHR’s flexible approach. In Jaloud v Netherlands, the ECtHR has expressly acknowledged that a State’s obligations may vary depending on the circumstances, and has made reasonable allowances for the relatively difficult conditions in which states must carry out investigations. In times of armed conflict, the Court has also confirmed in that the application of the ECHR has to take account of international humanitarian law, and in practice international humanitarian law is seemingly privileged. (Hassan v UK) An unsubstantiated claim: Human rights undermine military effectiveness. There is no dispute that military commanders and lawyers are concerned about the actual or potential impact of increasing judicial scrutiny on their existing practices. However, as Dr. Marko Miloniv points out, there is no evidence that such a disastrous impact actually exists. Rather, as he puts it, “many of their arguments manifest a broad-brush portrayal of human rights standards as wholly impractical in wartime”. We can at least expect concrete examples to be offered to demonstrate how human rights obligations undermine military operations before making such dramatic policy decisions. On the contrary, a strong argument can be made for European human rights obligations being actually vital tool in assisting military efforts. By shedding light on the failures that allow human rights breaches to occur, the procedural requirement of the ECHR compels governments to act on the very inadequacies and failures that also have an adverse affect on military operations. Take the Iraq Fatality Investigations’ report into the death of Mr. Ahmed Jabbar Kareem Ali, conducted to discharge of the UK’s positive obligation under Article 2 of the ECHR to investigate unlawful deaths. The report revealed that British forces in Basrah were not given any specific directions on how to stop looting.  Consequently, the report demonstrated how the situation in Iraq in 2003 became a “procedurally formless vacuum”, characterized by widespread use by armed forces of “homemade processes and procedures” and where “the level of punishment could differ according to the temperament and inclination of the soldier in command”. The technique of “wetting” was widely used by British forces to deter looting, and was acknowledged as “potentially dangerous for those that could not swim”. Another way in which some soldiers punished looters was by writing “Ali Baba” on their foreheads in permanent marker. Politicians might want such explosive details be left in the dark, but these revelations could only be beneficial in compelling relevant authorities to address reasons for the chain of command failures for future military efforts. Conclusion: The Right of Victims? Any argument for immunity should ultimately address the question of whether the UK should be held accountable for breaches of the ECHR by its armed forces abroad. Most are inclined to answer in the affirmative. Most importantly, if human rights are universal, then “accountability […] cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another state which it could not perpetrate in its own territory”. In the first place, the ECtHR’s ability to effectively secure compliance makes it uniquely well placed in terms of redress when human rights are breached. In the case of Mr. Ahmed Jabbar Kareem Ali, the ECtHR was able to assist his bereaved family while both domestic courts and the international criminal court had been unable to provide a remedy. The ensuing report into Ahmed’s death describes for instance the episode as a “clumsy, ill-directed and bullying piece of conduct”. It describes how Ahmed was apprehended by British soldiers for suspected looting; how his clothes were forcibly removed; how he was made to roll in a stagnant pool of water, while soldiers threw bricks at him; how he was transported to the Al-Zubair bridge and forced to enter the canal at gunpoint; how soldiers left him as he floundered and drowned. Such facts should leave us just as distinctly unimpressed as Judge Bonello by the UK government’s apparent “intent of regulating the conduct of its armed forces according to latitude” - an intent he aptly summarized as reducing the armed forces to “gentleman at home, hoodlums elsewhere”.