Tag Archive | "Public International Law"

70 Years of Justice

Meeting in The Hague on 3 February 2015, the International Court of Justice (ICJ) dismissed genocide claims by Croatia and Serbia. UN Photo/CIJ-ICJ/Frank van Beek.

Meeting in The Hague on 3 February 2015, the International Court of Justice (ICJ) dismissed genocide claims by Croatia and Serbia. UN Photo/CIJ-ICJ/Frank van Beek.

This week we celebrate a very important birthday – on April 18th, 1946, the International Court of Justice (ICJ) was born. Since its birth 70 years ago, the ICJ has had the opportunity to hear 161 cases. These cases have been entered from large countries like the United States and the former Soviet Union all the way to small ones like Burkina Faso and Malta. I thought I would take this opportunity to explore the history and purpose of this very important court as it’s not one that many American jurists get the opportunity to encounter.

To do so, we need to go back a little further in time. You may be surprised to learn that what Americans know as “alternative dispute resolution” actually predates judicial settlement in history. Mediation had its origins in ancient India and the Islamic world, while arbitration was used throughout ancient Greece, tribal Arabia, and medieval Europe. Finally, in 1899, the International Court of Arbitration was established by the first Hague Peace Conference in the newly built Peace Palace. By the time judicial settlement took its place in the international realm, World War I had just come to an end. The precursor to the ICJ, the Permanent Court of International Justice (PCIJ), was established by the League of Nations in 1920 and heard 29 cases that mostly dealt with issues from WWI.

The PCIJ came to an end when the League of Nations was dissolved and with the establishment of the United Nations, so came the ICJ. This coincided with World War II and a whole new set of issues. Article 1 of the UN Charter defines the ICJ’s purpose is “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” Also seated in the Peace Palace at The Hague, Netherlands, the ICJ is composed of 15 judges elected for nine-year terms. Besides settling disputes between nations (contentious procedure), the ICJ also issues advisory opinions on legal questions submitted by UN bodies and agencies (advisory procedure).

However, advisory procedure should definitely not be seen as secondary to contentious procedure. In 1947, the ICJ decided on the conditions necessary for a state to be admitted to the UN, something that still controls today. 1950 brought about procedure regarding the genocide convention following WWII. 1993 and 1995 brought about advisory procedure on the legality of the threat and use of nuclear weapons. Of course, contentious procedure has made its mark on the world too. The Nottebohm case (1950) has been a cornerstone of nationality determinations the world over. The United States Diplomatic and Consular Staff in Tehran case (1980) was brought by the US against Iran following the Iran hostage crisis. Finally, another 10 cases are currently in progress and range on issues from maritime borders to the cessation of the nuclear arms race and disarmament.

Whether or not you believe that international public law is important, the ICJ has made determinations that affect you. Whether you live on a small fishery on the coast of Iceland, drive a gas-powered tractor on a potato farm in Idaho, or dream of a world where nuclear missiles are no longer a threat, your life has been shaped by the decisions of the ICJ. The last 70 years have moved our world in a positive direction. Happy Birthday, ICJ – cheers to the next 70.

Lorne Hiller is a 3L at the University of Denver Sturm College of Law and the Executive Editor of the Denver Journal of International Law and Policy.

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Lady Justice

An argument for consecutive sentencing at International Tribunals

On August 2nd, a Guatamalan court convicted four former soldiers for the murder of 201 people during the Guatamalan civil war in the 1980s. The court sentenced the four to 12,060 years each, which represents 60 years per victim – 30 for murder and 30 for a crime against humanity.

Contrast that sentence with that of Kaing Guek Eav, better known as Duch, the commander of the S-21 Tuol Sleng prison in Cambodia during the Khmer Rouge regime. Duch was found by the Cambodian Tribunal to be responsible for the torture and execution of more than 12,000 people over a period of several years.  That court sentenced him to 35 years, giving him credit for 16 already served and acceptance of responsibility — for a total of 19 additional years to be served.  Duch is 68.  He could conceivably live to see freedom once again.

It is hard to reconcile the two sentences.  The Duch sentence equates to one day of incarceration for every victim.  By contrast, if the Duch Tribunal had issued a sentence of 60 years per victim similar to Guatamala, his sentence would have been 720,000 years.

Lady Justice

Lady Justice

To what do we attribute this radical disparity?   International tribunal practice has been to issue a single sentence up to to life imprisonment regardless of the number of victims.  This is true despite the fact the rules do not prohibit consecutive sentencing.  Article 39(1) of the Cambodia Tribunal prescribes a sentencing range of five years to life imprisonment for each of the crimes the accused is charged with.  Domestic jurisdictions frequently issue concurrent sentences tied to the number of victims.  A California court sentenced Juan Corona to twenty five consecutive life sentences for murdering twenty five migrant farm workers.  In New York, Shalom Weiss robbed hundreds of pensioners of their life savings and received a sentence of 2000 years.

Which brings me to my point: in cases with thousands of victims the sentence should be  symbolically long and should be based in part on the number of victims to avoid the absurdity of a sentence like Duch’s.  Sentencing should distinguish mass atrocity cases from domestic crimes.  With Duch, he committed a crime for the ages but his 35 year sentence is that of a common murderer.

For the credibility of international tribunals it is important for prosecutors to rethink sentencing.  Where appropriate, they should demand that tribunals issue consecutive sentences based in part on the number of victims involved.

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Professor John Ruggie

UN Principles of Corporate Responsibility Fall Short

Professor John Ruggie

Professor John Ruggie

The UN recently adopted a set of guiding principles based on the dual responsibility of governments and companies to protect human rights against corporate abuse, but it misses the mark. Why don’t we hold businesses to a higher standard? Who should be responsible for setting the proper standards for corporations?

Summary: Governments and companies have a duty to work together to promote human rights rather than simply protect against human rights from corporate abuse. Ruggie’s endorsement of a dual responsibility misses the mark on what is truly needed, i.e. a drastic shift in corporate culture and a decrease in corporate influence of national legislative agendas.

On June 16, 2011, the United Nations Human Rights Council unanimously endorsed a new set of global guiding principles for businesses (“Guiding Principles on Business and Human Rights“) designed to ensure that companies do not violate human rights in the course of the their transactions and that they provide redress when infringements occur. The principles are a culmination of six years of research led by Professor John Ruggie of Harvard University, the UN’s special representative on business and human rights since 2005, who visited 20 countries, conducted online consultations with thousands of participants, and received dozens of recommendations. According to Ruggie, states and companies have a dual responsibility under which states must enact and enforce the appropriate laws and companies have an independent responsibility to respect human rights. This is an effort to combat the lack of enforcement or weak status of national laws which is often used as an excuse or explanation for the failure of businesses to act responsibly.

However, one should pause to think about what type of solution will resolve this inefficiency and yield the desired results. When national laws are inadequate and/or unenforced companies are free to violate human rights on their path to gaining market share, in the so-called, “best interest of their shareholders.” This problem is further exacerbated by the exponential growth of multinationals which, due to the nature and expanse of their global operations, are capable of committing both major and minor violations and these often go unnoticed and/or unpunished.

The guiding principles differ from the UN’s Global Compact (which Ruggie was also instrumental in designing) and mark the culmination of Ruggie’s tenure as the special representative on the issue of human rights and transnational corporations and other business enterprises. In spite of the Global Compact’s 8,000 corporate members from over 135 countries, it has befallen a great deal criticism for its failure to punish those companies who violate its code. Whereas the Global Compact was enacted as an initiative of the secretary general, the principles recently adopted by the Human Rights Council were established by governments and include remedy and prevention mechanisms in order to broaden their scope beyond that of the Global Compact. Yet after six years and extensive research, more should be expected.

The framework is based on three pillars – the State duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human rights, which means avoiding infringing on the rights of others and to address adverse impacts that occur; and greater access by victims to effective remedy, both judicial and non-judicial.

Under the ‘State Duty to Protect,’ the guiding principles recommend how governments should provide greater clarity of expectations and consistency of rules for business in relation to human rights.
The ‘Corporate Responsibility to Respect’ principles provide a blueprint for companies on how to know and show that they are respecting human rights.
The ‘Access to Remedy’ principles focus on ensuring that where people are harmed by business activities, there is both adequate accountability and effective judicial and non-judicial redress.

Human Rights Watch described the Principles as a “squandered opportunity” to take meaningful action to curtail business-related human rights abuses. In spite of the differences from the Global Compact, the Principles represent only a “weak” stance on human rights in business due to the absence of a mechanism to ensure that the basic steps to protect human rights set forth in the Guiding Principles are put in practice.

Ruggie claims the Principles are the authoritative global reference point for business and human rights and also provide a concrete mechanism to civil society, investors and others through creating the necessary tools to measure real progress in the daily lives of people. On the other hand, critics see them as guidance alone, where companies are encouraged but not obliged to respect human rights, and there is little certainty that they are clear enough to ensure that they are carried out and monitored effectively. According to Arvind Ganesan of Human Rights Watch, rather than guidance alone, what is needed is a mechanism to scrutinize how companies and governments apply these principles.

Furthermore, while the Guiding Principles were adopted by governments and in Ruggie’s view, represent collaboration between states and corporations, his own belief that the inadequacy of the current status quo is a result of unenforced state laws. Yet when state legislative bodies are so heavily influenced by business and lobbied by corporate interests, it is hard to imagine a collaborative endeavor in which businesses pressure governments to demand more corporate responsibility. Until corporate culture changes in such a way that respecting human rights becomes synonymous with making profit and actions that benefit stakeholders are equally promoted as those that benefit shareholders, when the triple bottom line is considered as important as the single bottom line, then businesses will be in a position to push governments to accordingly enact those laws that will accommodate and further corporations’ needs and desires to promote and respect human rights because doing so is not only good, but also profitable.

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