On 10 September, US National Security Advisor John Bolton used his first major speech since joining the White House to attack the International Criminal Court’s (ICC) potential investigation of American personnel in Afghanistan. The ‘American patriots’, as Bolton describes them, are being investigated for potential torture and ill-treatment of detainees, mostly in 2003 and 2004, during the United States-led invasion of the country.

Bolton has a long history of opposition to the ICC. Although the US signed the ICC Statute under president Bill Clinton, it was ‘unsigned’ by Bolton, then an under-secretary of state in the George W Bush administration.

And when the court first opened its doors in 2002, Bolton helped secure, in what he described on 10 September as one of his ‘proudest achievements’, around 100 bilateral agreements with other countries to prevent them from delivering US personnel to the ICC. Those agreements were often extracted under pressure, with the US threatening to cut off military and other aid to countries that refused to sign.

In recent years under the Obama administration, relations between the US and the ICC improved, and the US offered help and support to the court. Bolton’s attack is aimed at reversing those gains – with measures aimed directly at the court and its staff.

These include: (i) negotiating ‘even more binding, bilateral agreements to prohibit nations from surrendering US persons to the ICC’; (ii) banning ICC judges and prosecutors from entering the US, sanctioning their funds in the US financial system and prosecuting them in the US criminal courts (and doing the ‘same for any company or state that assists an ICC investigation of Americans’); and (iii) ‘taking note if any countries cooperate with ICC investigations of the United States and its allies, and remember[ing] that cooperation when setting US foreign assistance, military assistance and intelligence sharing levels’.

These are serious threats – they would potentially undermine the work of a court that is designed to prosecute the world’s worst crimes. The ICC prosecutor and its judges would be barred entry from the US to attend to vital work of the court.

Some of that work, ironically, is at the behest of the US. For instance, two of the UN Security Council’s referrals to the ICC, one in relation to atrocities committed in Sudan, the other in respect of the crimes committed by Muammar Gaddafi in Libya, were referred with US support. 

Also, the meetings of the ICC Assembly of States Parties are held each year at UN headquarters in New York. Those meetings may have to be held elsewhere if the ICC judges and staff are under threat of arrest.

In the case of the potential torture linked to operations in Afghanistan, the ICC has not been acting on its own initiative in investigating. For example, the Center for Constitutional Rights submitted ‘victim’s representations’ to the ICC on behalf of two of their clients, Sharqawi Al Hajj and Guled Hassan Duran, emphasizing the importance of an ICC investigation of US officials for serious crimes arising out of post-9/11 detention and interrogations.

According to the center, both Al Hajj and Duran were detained by the CIA in black sites or 'proxy-detention' by other countries, tormented and tortured.

Although the US is not a party to the ICC Statute, Afghanistan is, and therefore the court has jurisdiction over US nationals who allegedly committed atrocities in Afghanistan. And it should be noted that the investigation includes pursuing any atrocities committed by the Taliban and Afghan security forces during the same period.

So the basis for attacking the work of the ICC based on this is shaky, and Bolton’s threats raise a number of important international law questions going forward. 

For one, they may be unlawful retaliatory steps, given that the US has obligations to accord at least some privileges and immunities to judges and other personnel of the ICC under the 1947 UN Headquarters Agreement between the UN and US. Counter-measures might be considered by member states of the ICC, either alone, or collectively. 

In this regard, Bolton’s comments about the EU will not go unnoticed: he suggests Europe is a region where ‘the global governance dogma is strong’. The US may yet come to learn just how strong that ‘dogma’ is.

With US abstention from the ICC, the opening remains for Europe and other regions to position themselves at the heart of the international criminal justice regime, thereby – as in response to the US attitude towards climate change – building a network of partnerships with other like-minded nations to compensate for US disengagement.

Further, while the ICC has many critics, and could be improved as an institution, Bolton’s speech may have the effect of galvanizing support for the world’s first permanent international criminal court. That could be a good thing for the court, which is sorely in need of support for its work.

Whatever concerns states may have about the ICC, they may be outweighed by a mutual desire to stand up to perceived bullying by the Trump administration, in favour of the international rule of law. 

The specific objectives were to:

• create a platform for Chinese international law academics working on international human rights law issues to present their thinking and exchange ideas with counterparts from outside China;
• build stronger understanding within the wider international law community of intellectual debates taking place in China about the international human rights system and China's role within it;
• support networking between Chinese and non-Chinese academics working on international human rights and related areas of international law.

The roundtable forms part of a wider Chatham House project exploring China's impact on the international human rights system and was inspired by early discussions with a burgeoning community of Chinese academics thinking, writing (mainly in Chinese) and teaching about international human rights law.

For CUPL, one of the largest and most prestigious law schools in China and perhaps the only university in the world with an entire faculty of international law, the initiative is part of a drive to forge partnerships beyond China in the international law field.

The meeting was co-hosted with CUPL and involved 28 participants, consisting of 19 Chinese participants (from six leading research institutions in Beijing and Shanghai) and nine nonChinese participants (from eight leading research institutions in Australia, the Netherlands, the UK, Switzerland, Canada and Singapore).

To ensure continuity while also expanding the expert network being built, the fifth meeting included a mix of participants from the previous meetings and some new participants.

All discussions were held in English under the Chatham House Rule.

In a decade as UN Secretary-General, Kofi Annan championed a vision of global governance anchored in shared responsibility and the rights and dignity of the individual.

Confronted with multiple global crises that raised questions about the UN’s purpose, Annan pressed for human rights and development to be at the centre of international efforts and sought to broaden participation in shaping and delivering solutions to global challenges.

As the UN’s 75th anniversary approaches, this conference will explore Annan’s legacy for the future of global governance.

Questions include the appropriate response to high-profile and ongoing failures to prevent human rights atrocities and protect victims of conflict, the impact of technology on democracy, lessons from the Millennium Development Goals for the Sustainable Development Goals and ways to meaningfully involve civil society, businesses and individuals in addressing global challenges.

The conference will bring together key figures involved in Annan’s initiatives with actors currently engaged in conflict prevention, humanitarian action, human rights and development to identify lessons and generate forward-looking recommendations.

This conference is being held as part of a series, including a public event hosted by UNA-UK at Central Hall in Westminster, exploring Kofi Annan's legacy.

This initiative is generously supported by the Bill & Melinda Gates Foundation and Open Society Foundations and enjoys the cooperation of the Kofi Annan Foundation.

The 1998 treaty which established the International Criminal Court (ICC) was adopted at a time when the world (or most of it) was willing to reach multilateral agreements on a variety of topics and was encouraging the development of international criminal justice. The two tribunals, set up by the UN Security Council, for the former Yugoslavia and for Rwanda had been relatively successful. The time was ripe for states to agree together to set up a permanent international court with wider scope than the two tribunals.

So the ICC was created, with jurisdiction over the international crimes of genocide, crimes against humanity and war crimes; its jurisdiction for the crime of aggression developed later. The court was given the power to prosecute nationals of states that were parties to the ICC Statute, and also to prosecute where the crime was committed in the territory of a state party, whatever the nationality of the alleged criminals. The court had further jurisdiction when the Security Council referred a situation to it.

That was some 20 years ago. There is now a perception in many quarters that the ICC has not fulfilled the expectations of its founders. The court’s proceedings are cumbersome and lengthy. Many of the accused are still at large, including Omar al-Bashir, the former president of Sudan. Some €1.5 billion has been spent, and there have been only three convictions for the core international crimes.

There have been criticisms of the judges, the former Prosecutor and other officials, as well as concern over particular decisions of the court. The allegation that the court is only interested in crimes in Africa[1] is perhaps heard less frequently now than it once was (most of the African governments concerned referred the situations in their countries to the ICC themselves), and there has not been the mass walk-out of African states that was once predicted.

But in other quarters there is serious unease about the situation in the court. As the UK representative said at a meeting last year, ‘We cannot bury our heads in the sand and pretend everything is fine when it isn’t.’[2]

The negative assessment of the ICC’s work may be countered by the fact that it is the failure of states to cooperate with the court that causes many of the problems. Further, the expectations of states and civil society about the possibilities of international criminal justice have been so high that no court would be able to meet them. It is not possible for one court actually to ‘end impunity’ for international crimes,[3] nor to prevent war-related violence and mass atrocities, nor to satisfy all victims.

Moreover, the criticisms of the ICC come against the background of the global crisis for multilateralism more generally. The present US administration is notoriously hostile towards this international institution.[4]

On the plus side, the establishment of the court has encouraged states to revise their own laws on international crimes and to institute their own prosecutions where it is possible to do so. It is also claimed that the very existence of the court can be a deterrent to potential perpetrators of international crimes. The court has begun to add to the body of international criminal law and has increased the possibility that mass atrocities will be investigated.

But there is indeed some truth in the criticisms made of the internal workings of the court. One problem is that the particular combination of the civil and common law systems that has developed has produced cumbersome procedures regarding the representation of victims at most stages of the proceedings. It has also resulted in endless appeals from huge numbers of small decisions made by one chamber or another.

Then there are the management failures which have led to officials of the court being awarded compensation by the administrative tribunal of the International Labour Organization (ILO) because of the way they were treated by the court, and finally the decision of a few of the judges to take proceedings themselves at the ILO to have their salaries increased. 

Some ICC decisions have been met with surprise. For example, a former vice-president of the Democratic Republic of the Congo, Jean-Pierre Bemba, who was in the custody of the ICC for 10 years, was convicted by a unanimous trial chamber of various crimes and then succeeded on his appeal. Following this and the acquittal of former Côte d’Ivoire president Laurent Gbagbo,[5] there are concerns about the ability of the prosecution to succeed in cases against high-level alleged perpetrators.

Most recently, there has been criticism of the reasoning behind the appeal court decision regarding the immunity – or, rather, lack of immunity – of former president Bashir. And a decision of a chamber of the ICC not to authorize the opening of an investigation in Afghanistan has been seen as shielding the US from possible proceedings (though it has been welcomed by others as a pragmatic approach).

The message that certain problems with the ICC need fixing is coming not just from the writings of academics and the legal blogs,[6] but from governments too, including those, like the UK, which are among the foremost supporters of the court.

The former presidents of the ICC’s Assembly of States Parties (which comprises the representatives of all states parties) say that they ‘are disappointed by the quality of some of [the court’s] judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the Court from living up to its full potential’.[7] 

Changes to remove the worst excesses of the procedures that have evolved could be effected without amendments to the treaty incorporating the ICC Statute. It may be that a change in culture is also needed. More modesty by the court, along with more realism from governments and civil society, is needed.

And, attractive as it might seem to push at the boundaries of the law, the court should be realistic in what it can achieve. It is next to impossible to prosecute a case effectively where there is no cooperation from the state on whose territory the crimes were committed.

What is needed is a court that can undertake efficient and effective criminal proceedings, delivering fair and impartial justice in the small number of cases which it is reasonable to expect it to address, in the light of the evidential challenges, limited resources and limited state cooperation.

Governments should decide together at the Assembly of States Parties to set in hand a review of the ICC’s operations. It has been suggested that a group of experts might be mandated to assess the management of the court;[8] on the basis of their report, governments could agree on the necessary improvements.

Not everything, however, can come within the remit of such a group. Governments should adopt new rules and practices to address matters such as the election process for judges and their training; governments might consider reaching their own understandings on how some provisions of the ICC Statute should be interpreted in practice. Governments should reach out to the many civil society organizations which have supported the court over the years, to ensure that they are involved in the process.

Measures of this kind cannot detract from the fact that the ICC is fundamentally sound and that its role is as necessary as when it was first established. As Richard Goldstone, former chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, has said, ‘If there were no ICC in existence today, many people in many countries would be agitating for and demanding one. That we have one is a singular achievement. It behoves us to make it the best possible and to assist it, as States, civil society, and individuals, in the best and most productive way possible.’[9]

Notes

[1] See, for example, du Plessis, M., Maluwa, T. and O’Reilly, A. (2013), Africa and the International Criminal Court, London: Royal Institute of International Affairs, July 2013, https://www.chathamhouse.org/publications/papers/view/193415.

[2] GOV.UK (2018), ‘UK statement to ICC Assembly of States Parties 17th session’, 5 December 2018, https://www.gov.uk/government/speeches/uk-statement-to-icc-assembly-of-states-parties-17th-session.

[3] As the preamble to the ICC Statute desires. See ICC (2011), Rome Statute of the International Criminal Court, p. 1, https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf.

[4] See the speech of John Bolton, US National Security Advisor. Just Security (2018), ‘Bolton’s Remarks on the International Criminal Court’, 10 September 2018, https://www.justsecurity.org/60674/national-security-adviser-john-bolton-remarks-international-criminal-court/.

[5] Gbagbo was accused of various crimes which took place after Côte d’Ivoire’s election in 2010, in which Gbagbo lost power to Alassane Ouattara. The case was terminated by the court following a year’s hearings in which the prosecution put forward its evidence.

[6] See, for example, Guilfoyle, D. (2019), ‘Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?’, EJIL:Talk! blog post, 8 May 2019, https://www.ejiltalk.org/reforming-the-international-criminal-court-is-it-time-for-the-assembly-of-state-parties-to-be-the-adults-in-the-room/.

[7] Al Hussein, Z. R., Stagno Ugarte, B., Wenaweser, C. and Intelman, T. (2019), ‘The International Criminal Court Needs Fixing’, Atlantic Council, 24 April 2019, https://www.atlanticcouncil.org/blogs/new-atlanticist/the-international-criminal-court-needs-fixing.

[8] Ibid.

[9] Goldstone, R. (2019), ‘Acquittals by the International Criminal Court’, EJIL:Talk! blog post, 18 January 2019, https://www.ejiltalk.org/acquittals-by-the-international-criminal-court/. Richard Goldstone is also a former justice of the Constitutional Court of South Africa.

This essay was produced for the 2019 edition of Chatham House Expert Perspectives – our annual survey of risks and opportunities in global affairs – in which our researchers identify areas where the current sets of rules, institutions and mechanisms for peaceful international cooperation are falling short, and present ideas for reform and modernization.

The UK Supreme Court’s ruling last Wednesday has, at least temporarily, scuppered the prime minister’s plans to limit parliamentary debate before the looming Brexit deadline. Some of the prime minister’s allies have attacked the ruling as a ‘constitutional coup’. But a close reading reveals that the court has stayed within its remit to interpret, rather than make, the law.

In a carefully reasoned judgment, the court emphasized that the case was not about Brexit. But the judges certainly did not shy away from the extraordinary nature of the matters before it, noting that such factual situations have ‘never arisen before and are unlikely ever to arise again… But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.’

The key question before the court was whether the prime minister’s decision to seek prorogation was ‘justiciable’ – i.e. amenable to being reviewed by a court. The English and Scottish courts earlier on in these proceedings had come, dramatically, to opposing views on this.

The Supreme Court was not dissuaded by the inherently political considerations involved in the prime minister’s decision, stating that while ‘courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it’.

The court went on to emphasize that the Crown’s remaining prerogative powers (exercised on the advice of the government or directly by ministers) have long been subject to judicial scrutiny; such oversight is essential to guarding the separation of powers underpinning the UK’s constitution.

So far, so conventional. The full bench of the Supreme Court was required to grapple, though, with a prerogative power that had never been tested before in the courts. And so they delved back to the 1611 Case of Proclamations: ‘the King hath no prerogative, but that which the law of the land allow him’. In the court’s view, the legal issue to be resolved was the scope of the power to prorogue (the existence of this particular prerogative not being in dispute).

With no case law available to provide direct guidance on this question, the court, instead, relied on two fundamental principles of the UK’s constitution – parliamentary sovereignty and parliamentary accountability. What would be the logical consequence of an unlimited power to prorogue? The ability to shut parliament permanently.

The conclusion: this particular prerogative power had limits. The court held that:

‘A decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.’

Having come to this conclusion, the court was left to examine what justification had in fact been given, noting that the prime minister’s motives were irrelevant. It noted that no clear reason had been given – the relevant documents were all concerned with preparing for the Queen’s speech.

Noting evidence on normal practice for such preparations, including from a former prime minister, the court found it ‘impossible… to conclude…that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks’.

The court’s decision was neither inevitable nor a radical departure from legal tradition. It represents the gradual evolution of the long-established legal principle that the crown’s powers are set by the law and supervised by the courts.

Courts have traditionally been reticent to rule on prerogative powers which are ‘high politics’ by nature – classic examples include declaring war and negotiating treaties. In recent years, though, the judiciary has shown a growing confidence to grapple with the contours of those prerogative powers that remain. Deference is still shown when looking at how those powers have been used as opposed to the limits of the prerogative in question.

The Supreme Court ruling won’t reassure those who worry about the emergence of an activist court willing to wade (improperly) into the political arena. Nor will it necessarily bring comfort to those anxious about an unwritten constitution in an era where political conventions are fast unravelling.

But divisive court rulings are nothing new, nor are ministerial outbursts about inconvenient judgments. In the current environment, politicians should take particular care not to send mixed messages which undermine the independence of the UK’s judiciary. Public trust in British institutions is dangerously low and the UK can ill-afford further damage to its reputation as a country steeped in democracy and the rule of law.

About the Conference

In the run-up to the UN’s 75th anniversary and almost a year after his death, Chatham House and the United Nations Association – UK (UNA-UK) held a two-day conference to explore Kofi Annan’s legacy in the context of the current period of global uncertainty.

The ‘Our Shared Humanity’ conference brought together a global and diverse group of individualsworking on peace and security, human rights and development issues to:

• Reflect critically on Annan’s record, and capture lessons learned from his tenure as UN secretary-general, and his later work as a mediator and elder statesperson; and
• Generate recommendations for current policymakers and influencers.

This paper summarizes key points raised during each session of the conference, and presents the substantive recommendations that emerged from the discussion.

In order to bring the conference themes to a wider audience, UNA-UK held a public event on the eve of the first day of the conference at Central Hall Westminster – where the UN had held its first ever meetings in 1946 – with speakers including Nane Annan, Sherrie Westin (president of global impact and philanthropy, Sesame Workshop), Amina Mohammed (current UN deputy secretary-general) and Mary Robinson (chair of The Elders and former UN High Commissioner for Human Rights).
 

Summary

• Online political campaigning techniques are distorting our democratic political processes. These techniques include the creation of disinformation and divisive content; exploiting digital platforms’ algorithms, and using bots, cyborgs and fake accounts to distribute this content; maximizing influence through harnessing emotional responses such as anger and disgust; and micro-targeting on the basis of collated personal data and sophisticated psychological profiling techniques. Some state authorities distort political debate by restricting, filtering, shutting down or censoring online networks.
• Such techniques have outpaced regulatory initiatives and, save in egregious cases such as shutdown of networks, there is no international consensus on how they should be tackled. Digital platforms, driven by their commercial impetus to encourage users to spend as long as possible on them and to attract advertisers, may provide an environment conducive to manipulative techniques.
• International human rights law, with its careful calibrations designed to protect individuals from abuse of power by authority, provides a normative framework that should underpin responses to online disinformation and distortion of political debate. Contrary to popular view, it does not entail that there should be no control of the online environment; rather, controls should balance the interests at stake appropriately.
• The rights to freedom of thought and opinion are critical to delimiting the appropriate boundary between legitimate influence and illegitimate manipulation. When digital platforms exploit decision-making biases in prioritizing bad news and divisive, emotion-arousing information, they may be breaching these rights. States and digital platforms should consider structural changes to digital platforms to ensure that methods of online political discourse respect personal agency and prevent the use of sophisticated manipulative techniques.
• The right to privacy includes a right to choose not to divulge your personal information, and a right to opt out of trading in and profiling on the basis of your personal data. Current practices in collecting, trading and using extensive personal data to ‘micro-target’ voters without their knowledge are not consistent with this right. Significant changes are needed.
• Data protection laws should be implemented robustly, and should not legitimate extensive harvesting of personal data on the basis of either notional ‘consent’ or the data handler’s commercial interests. The right to privacy should be embedded in technological design (such as by allowing the user to access all information held on them at the click of a button); and political parties should be transparent in their collection and use of personal data, and in their targeting of messages. Arguably, the value of personal data should be shared with the individuals from whom it derives.
• The rules on the boundaries of permissible content online should be set by states, and should be consistent with the right to freedom of expression. Digital platforms have had to rapidly develop policies on retention or removal of content, but those policies do not necessarily reflect the right to freedom of expression, and platforms are currently not well placed to take account of the public interest. Platforms should be far more transparent in their content regulation policies and decision-making, and should develop frameworks enabling efficient, fair, consistent internal complaints and content monitoring processes. Expertise on international human rights law should be integral to their systems.
• The right to participate in public affairs and to vote includes the right to engage in public debate. States and digital platforms should ensure an environment in which all can participate in debate online and are not discouraged from standing for election, from participating or from voting by online threats or abuse.

Attacks against journalists and challenges to media freedom are urgent and global. The sharp decline globally of democratic values which are underpinned in international values highlights the need for a free press and the necessity for states to take concerted action to protect media freedom.

The High-Level Panel of Legal Experts on Media Freedom is an independent body convened at the request of the UK and Canadian governments in July 2019.

The remit of the panel is to provide recommendations to governments on how to better protect journalists and address abuses of media freedom in line with international human rights law.

Drawing on the panel’s new report, the speakers will discuss the use of targeted sanctions to protect journalists and a free press. Can the threat of targeted sanctions help curb the trend of increasing abuses against journalists?

And what legal frameworks and mechanisms will be necessary to ensure targeted sanctions achieve their goal of identifying, preventing and punishing abuses against journalists?
 
This event is organized in collaboration with the International Bar Association’s Human Rights Institute which acts as the secretariat to the High-Level Panel of Legal Experts on Media Freedom.

 

This roundtable is part of a series under the project, 'Implementing the Commonwealth Cybersecurity Agenda', funded by the UK Foreign and Commonwealth Office (FCO). The roundtable aims to provide a multi-stakeholder, pan-Commonwealth platform to discuss how to implement the Commonwealth Cyber Declaration with a focus on its third pillar 'To promote stability in cyberspace through international cooperation'.

In particular, the roundtable focuses on points 3 and 4 of the third pillar which revolve around the commitment to promote frameworks for stability in cyberspace including the applicability of international law, agreed voluntary norms of responsible state behaviour and the development and implementation of confidence-building measures consistent with the 2015 report of the UNGGE. 

The workshop also focuses on the commitment to advance discussions on how existing international law, including the Charter of the United Nations and applicable international humanitarian law, applies in cyberspace.

The roundtable addresses the issue of global cyber governance from a Commonwealth perspective and will also include a discussion around the way forward, the needed capacity of the different Commonwealth countries and the cooperation between its members for better cyber governance.

Participants include UNGGE members from Commonwealth countries in addition to representatives to the UN Open-Ended Working Group from African countries as well as members from academia, civil society and industry.

Strengthened links between the states of sub-Saharan Africa (SSA) and Central and Eastern Europe (CEE) are emerging marked by growth in diplomatic representation, trade and economic ties and supporting networks.

Against this backdrop, labour migration within and from the CEE and East Africa sub-regions are a key policy area with significant potential for shared learning and cooperation. For both regions, migration trends in recent years have evolved as a result of a diverse range of interactions among public, private and civil society actors and at local, national, regional and international levels. Unpacking such interactions and their political and geographical specificities is essential to effective engagement and cooperation within and between the regions on issues of labour migration and their management.

This roundtable brainstorming workshop will provide a platform for stakeholders based in East Africa to discuss the way in which different actors and agencies in the region influence and shape labour migration processes and policy responses.

This event is supported by the Robert Bosch Stiftung.

Russia’s ongoing occupation of Ukraine’s Crimean peninsula and support of separatist hostilities in the eastern provinces of Donbas have resulted in 1.5 million internally displaced persons, 3,000 civilians killed, and a growing list of alleged violations of international law and socio-economic hardship.

But Ukraine is struggling in its efforts to hold Russia accountable – either as a state or through individual criminal responsibility - as it cannot unilaterally ask any international court to give an overall judgment on the conflict.

So it focuses on narrower issues, referring them to authorised adjudication and arbitration platforms such as the International Court of Justice (ICJ), European Court of Human Rights, UNCLOS arbitration, and the International Criminal Court (ICC). These options are limited, but still worth taking - and their relevance is proving to be far wider than the Russia-Ukraine conflict.

Policy of cultural eradication

In 2017, Ukraine initiated proceedings against Russia at the ICJ on the basis of two international treaties: the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), with regard to Crimea; and the International Convention for the Suppression of the Financing of Terrorism (ICSFT), with regard to Donbas.

Under the CERD, Ukraine alleges Russia has carried out a policy of cultural eradication of ethnic Ukrainians and Crimean Tatars in Crimea, including enforced disappearances, no education in the Ukrainian and Crimean Tatar languages, and the ban of the Mejlis, the main representative body of the Crimean Tatars.

Under the ICSFT, Ukraine alleges Russia has supported terrorism by providing funds, weapons and training to illegal armed groups in eastern Ukraine. In particular Ukraine alleges Russian state responsibility - through its proxies - for downing the infamous MH17 flight.

Both these treaties are binding upon Ukraine and Russia and entitle an individual state party to refer a dispute concerning them to the ICJ, but certain procedural pre-conditions must first be exhausted. These include a failed attempt to settle a dispute either through negotiations or the CERD Committee (for the CERD) or unsuccessful negotiations and arbitration (for the ICSFT).

Russia challenged Ukraine’s compliance with the pre-conditions, but the ICJ disagreed with Russia’s submission that Ukraine had to resort both to negotiations and to the CERD Committee. For the first time, the court clarified these procedures under the CERD were two means to reach the same aim, and therefore alternative and not cumulative.

Requiring states to avail of both procedures before going to the ICJ would undermine the very purpose of the CERD to eliminate racial discrimination promptly, and ensure the availability of effective domestic protection and remedies.

The relevance of this clarification transcends the Ukraine-Russia dispute. With the rise of discriminatory practices, from populist hate-filled rhetoric endangering vulnerable communities to large-scale persecution such as that of the Rohingyas, the UN’s principal judicial body is sending a clear larger message to the world: such practices are unacceptable and must be dealt with expeditiously and efficiently. If states fail to do so, there are now fewer procedural impediments to do it internationally.

The ICJ also confirmed Ukraine had complied with both procedural preconditions under the ICSFT and that it would give judgement on the alleged failure of Russia to take measures to prevent the financing of terrorism. The outcome of this will be of great importance to the international community, given the general lack of international jurisprudence on issues of terrorism.

The court’s interpretation of knowledge and intent in terrorism financing, as well as clarification of the term ‘funds’, is particularly relevant both for the Ukraine-Russia case and for international law.

As the final judgement may take several years, the ICJ granted some provisional measures requested by Ukraine in April 2017. The court obliged Russia to ensure the availability of education in Ukrainian and enable the functioning of the Crimean Tatar representative institutions, including the Mejlis.

When Russia contested Ukraine’s references to the alleged Stalin-ordered deportation of the Crimean Tatars and the rule of law in the Soviet Union being hypocritical, by arguing that history did not matter, the court disagreed.

In fact, Judge James Crawford emphasised the relevance of the ‘historical persecution’ of Crimean Tatars and the role of Mejlis in advancing and protecting their rights in Crimea ‘at the time of disruption and change’.

These conclusions are important reminders that the historical inheritance of injustices inflicted on vulnerable groups should be taken into account when nations address their imperial legacies.

The court’s provisional measures and Judge Crawford’s position are particularly relevant in light of Russia’s policy of the total - territorial, historical, cultural – ‘russification’ of Crimea, as they highlight the role of the historical background for assessing the alleged discriminatory and prosecutorial policy of Russia’s occupying authorities against the Crimean Tatars.

The ICJ’s judgement on the merits of this as well as other human rights, and terrorism issues of Crimea and Donbas will be an important consideration for the international community in its view of the Russia-Ukraine armed conflict and the sanctions policy against Russia.

The development of this case also has a mutually catalysing impact on Ukraine’s efforts to establish those individually criminally responsible for atrocities in Crimea and Donbas, through domestic proceedings and through the International Criminal Court.

Ukraine’s attempts to seek individual criminal responsibility for gross abuses in Donbas and Crimea at the International Criminal Court (ICC) are assessed in part two of this series, coming soon.

When the H1N1 influenza pandemic struck in 2009, some industrialized countries were well prepared. Many countries’ preparedness plans had focused on preparing for an influenza pandemic and based on earlier alerts over the H5N1 ‘bird flu’ virus, countries had made advanced purchase or ‘sleeping’ contracts for vaccine supplies that could be activated as soon as a pandemic was declared. Countries without contracts scrambled to get supplies after those that already had contracts received their vaccine.

Following the 2009 pandemic, the European Union (EU) developed plans for joint-purchase vaccine contracts that any member state could join, guaranteeing the same price per dose for everyone. In 2009, low-income countries were unable to get the vaccine until manufacturers agreed to let 10 per cent of their production go to the World Health Organization (WHO).

The situation for COVID-19 could be even worse. No country had a sleeping contract in place for a COVID-19 vaccine since nobody had anticipated that the next pandemic would be a coronavirus, not an influenza virus. With around 80 candidate vaccines reported to be in development, choosing the right one will be like playing roulette.

These candidates will be whittled down as some will fail at an early stage of development and others will not get to scale-up for manufacturing. All of the world’s major vaccine pharmaceutical companies have said that they will divert resources to manufacture COVID-19 vaccines and, as long as they choose the right candidate for production, they have the expertise and the capacity to produce in huge quantities.

From roulette to a horse race

Our game now changes from roulette to a horse race, as the probability of winning is a matter of odds not a random chance. Countries are now able to try to make contracts alone or in purchasing consortia with other states, and with one of the major companies or with multiple companies. This would be like betting on one of the favourites.

For example, it has been reported that Oxford University has made an agreement with pharmaceutical company AstraZeneca, with a possibility of 100 million doses being available by the end of 2020. If the vaccine works and those doses materialize, and are all available for the UK, then the UK population requirements will be met in full, and the challenge becomes vaccinating everyone as quickly as possible.

Even if half of the doses were reserved for the UK, all those in high-risk or occupational groups could be vaccinated rapidly. However, as each major manufacturer accepts more contracts, the quantity that each country will get diminishes and the time to vaccinate the at-risk population gets longer.

At this point, it is not known how manufacturers will respond to requests for vaccine and how they will apportion supplies between different markets. You could bet on an outsider. You study the field and select a biotech that has potential with a good production development programme and a tie-in with a smaller-scale production facility.

If other countries do not try to get contracts, you will get your vaccine as fast as manufacturing can be scaled up; but because it is a small manufacturer, your supplies may take a long time. And outsiders do not often win races. You can of course, depending on your resources, cover several runners and try to make multiple contracts. However, you take on the risk that some will fail, and you may have compromised your eventual supply.

On April 24, the WHO co-hosted a meeting with the president of France, the president of the European Commission and the Bill & Melinda Gates Foundation. It brought together heads of state and industry leaders who committed to ‘work towards equitable global access based on an unprecedented level of partnership’. They agreed ‘to create a strong unified voice, to build on past experience and to be accountable to the world, to communities and to one another’ for vaccines, testing materials and treatments.

They did not, however, say how this will be achieved and the absence of the United States was notable. The EU and its partners are hosting an international pledging conference on May 4 that aims to raise €7.5 billion in initial funding to kick-start global cooperation on vaccines. Co-hosts will be France, Germany, Italy, the United Kingdom, Norway and Saudi Arabia and the priorities will be ‘Test, Treat and Prevent’, with the latter dedicated to vaccines.

Despite these expressions of altruism, every government will face the tension between wanting to protect their own populations as quickly as possible and knowing that this will disadvantage poorer countries, where health services are even less able to cope. It will not be a vote winner to offer a share in available vaccine to less-privileged countries.

The factories for the biggest vaccine manufacturers are in Europe, the US and India. Will European manufacturers be obliged by the EU to restrict sales first to European countries? Will the US invoke its Defense Production Act and block vaccine exports until there are stocks enough for every American? And will vaccine only be available in India for those who can afford it?

The lessons on vaccine availability from the 2009 influenza pandemic are clear: vaccine was not shared on anything like an equitable basis. It remains to be seen if we will do any better in 2020.

Leaders of the resource-rich Central Asian region have the propensity to remain in power until mortality dictates otherwise. Much like the UK and Brexit, however, few wanted to see Central Asia’s longest reigning ruler, Kazakhstan’s septuagenarian president Nursultan Nazarbayev, crash out without a deal.

The sudden departure of the country’s official leader of the nation with no clear succession plan could have led to investment chaos, intra-elite fighting and the unravelling in a matter of months of a system he had built over decades, à la Uzbekistan following the death of long-serving autocrat Islam Karimov in 2016.

In order to avoid just such a ‘no-deal’ scenario and ensure the continuity of his policies, in March Nazarbayev carefully choreographed his own resignation and the election of a hand-picked successor, President Kassym-Jomart Tokayev, while retaining plum positions and powers for himself.

Tokayev’s assumption of the presidency was accompanied by protesters in the streets, increasing wealth inequality, rising Sinophobia among rank-and-file Kazakhstanis, a hard-to-kick economic dependence on oil revenues and a lack of clarity as to which leader—the old or the new president—would actually be calling the shots. But, amidst this plethora of concerns, as argued in a recent Chatham House report, Kazakhstan: Tested by Transition, one bright spot has been the tangible growth of intra-Central Asian cooperation, with the Nazarbayev-Tokayev ruling duo appearing eager to improve the regional dialogue.

Kazakhstan has long shaped its identity as a Eurasian state that has acted as more of an intermediary between Russia and Central Asia than as an integral part of the Central Asian region. But since 2017, in particular, Kazakhstan has been increasingly looking for opportunities to boost hitherto weak cooperation with its Central Asian neighbours. While this is first and foremost owing to the liberalization of Uzbekistan’s large market, there are other factors at work that get less airplay.

One such factor is a perceptible disentangling from the Kremlin’s policy directions as Kazakhstan has come to view Russia’s foreign policy as increasingly neo-colonial. The example of the Russia-led Eurasian Economic Union is in many respects more off-putting than inspiring, and Nur-Sultan does not want to be locked tightly into the union’s economic orbit. And in distancing itself slightly from Moscow in order to limit Russian leverage in its affairs, Nur-Sultan has shown itself to be more open to Central Asian regional initiatives.

As part of the leadership’s plan to offset oil dependence, Kazakhstan aspires to become the transport, telecommunications and investment hub for Eurasian integration. The intense focus on connectivity and the development of logistical arteries and infrastructure could have the knock-on effect of boosting trade within the Central Asian region and reducing transit times, which are currently greater than in most other parts of the globe.

In addition, demographic trends and educational shifts that favour ethnic Kazakhs, together with a growing ethno-nationalist narrative, have allowed the state’s leadership to identify more closely with Kazakhstan’s common Central Asian heritage and, by extension, a common Central Asian region—although Kazakhstan’s leadership still remains eager to demonstrate that the country is not just another ‘stan’. The coming to power of President Mirziyoyev in Uzbekistan appears to have made Kazakhstan more aware of the interconnectedness of the two countries in terms of geographical location and potential economic complementarities, as well as culture and history.

Not least, there is a growing recognition among the Central Asian states themselves—including isolationist Turkmenistan to a degree—that deepening regional trade is mutually beneficial, especially given the constraints associated with Russia’s economic problems. The strengthening of Kazakhstan’s ties with Uzbekistan has slowly kick-started regional cooperation as a whole: trade turnover between the Central Asian states in 2018 grew by 35 per cent on the previous year.

But both Kazakhstan and Uzbekistan are keen to stress that there is no discussion of integration or institutionalization, not least because previous attempts at integration have been overtaken by Russia, leaving Central Asia without its own coordinating body.

The official consensus in Kazakhstan is that Uzbekistan’s economic reforms after years of isolation will spur ‘a healthy rivalry’ and ultimately boost Kazakhstan’s own economy, in so far as the competition for foreign investment will require both countries to work harder to improve their respective business and regulatory environments.

At the unofficial level, however, some Kazakhstani analysts view Uzbekistan’s rise as potentially unprofitable, given the possible diversion of some investments and market activity from Kazakhstan to Uzbekistan. Moreover, Uzbekistan has the advantage of having undergone a clear change of executive, while it remains unclear which developments await Kazakhstan once First President Nazarbayev leaves the scene for good.

It can certainly be argued that Uzbekistan does pose a potential threat in the long-term to Kazakhstan’s entrenched position as Central Asia’s economic powerhouse: Uzbekistan’s population is one-and-a-half times bigger, even if its nominal GDP is three times smaller. Uzbekistan has a bigger market and a well-developed industrial sector, and is already the regional leader in terms of security. But it is not as though the world’s interest is moving from Kazakhstan to Uzbekistan; rather, Uzbekistan is in the process of trying to catch up.

Despite this relatively upbeat picture, Kazakhstan’s combined trade with the other Central Asian states accounts for less than 5 per cent of its total volume of foreign trade—a figure that cannot begin to equal its trade with Russia, China, and Europe. As a result, Kazakhstan will continue to give greater importance to positioning itself as a global player than as a regional leader.

This article was originally published in The Diplomat.

Russia’s ongoing occupation of Ukraine’s Crimean peninsula and support of separatist hostilities in the eastern provinces of Donbas have resulted in 1.5 million internally displaced persons, 3,000 civilians killed, and a growing list of alleged violations of international law and socio-economic hardship.

But Ukraine is struggling in its efforts to hold Russia accountable – either as a state or through individual criminal responsibility - as it cannot unilaterally ask any international court to give an overall judgment on the conflict.

So it focuses on narrower issues, referring them to authorised adjudication and arbitration platforms such as the International Court of Justice (ICJ), European Court of Human Rights, UNCLOS arbitration, and the International Criminal Court (ICC). These options are limited, but still worth taking - and their relevance is proving to be far wider than the Russia-Ukraine conflict.

Policy of cultural eradication

In 2017, Ukraine initiated proceedings against Russia at the ICJ on the basis of two international treaties: the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), with regard to Crimea; and the International Convention for the Suppression of the Financing of Terrorism (ICSFT), with regard to Donbas.

Under the CERD, Ukraine alleges Russia has carried out a policy of cultural eradication of ethnic Ukrainians and Crimean Tatars in Crimea, including enforced disappearances, no education in the Ukrainian and Crimean Tatar languages, and the ban of the Mejlis, the main representative body of the Crimean Tatars.

Under the ICSFT, Ukraine alleges Russia has supported terrorism by providing funds, weapons and training to illegal armed groups in eastern Ukraine. In particular Ukraine alleges Russian state responsibility - through its proxies - for downing the infamous MH17 flight.

Both these treaties are binding upon Ukraine and Russia and entitle an individual state party to refer a dispute concerning them to the ICJ, but certain procedural pre-conditions must first be exhausted. These include a failed attempt to settle a dispute either through negotiations or the CERD Committee (for the CERD) or unsuccessful negotiations and arbitration (for the ICSFT).

Russia challenged Ukraine’s compliance with the pre-conditions, but the ICJ disagreed with Russia’s submission that Ukraine had to resort both to negotiations and to the CERD Committee. For the first time, the court clarified these procedures under the CERD were two means to reach the same aim, and therefore alternative and not cumulative.

Requiring states to avail of both procedures before going to the ICJ would undermine the very purpose of the CERD to eliminate racial discrimination promptly, and ensure the availability of effective domestic protection and remedies.

The relevance of this clarification transcends the Ukraine-Russia dispute. With the rise of discriminatory practices, from populist hate-filled rhetoric endangering vulnerable communities to large-scale persecution such as that of the Rohingyas, the UN’s principal judicial body is sending a clear larger message to the world: such practices are unacceptable and must be dealt with expeditiously and efficiently. If states fail to do so, there are now fewer procedural impediments to do it internationally.

The ICJ also confirmed Ukraine had complied with both procedural preconditions under the ICSFT and that it would give judgement on the alleged failure of Russia to take measures to prevent the financing of terrorism. The outcome of this will be of great importance to the international community, given the general lack of international jurisprudence on issues of terrorism.

The court’s interpretation of knowledge and intent in terrorism financing, as well as clarification of the term ‘funds’, is particularly relevant both for the Ukraine-Russia case and for international law.

As the final judgement may take several years, the ICJ granted some provisional measures requested by Ukraine in April 2017. The court obliged Russia to ensure the availability of education in Ukrainian and enable the functioning of the Crimean Tatar representative institutions, including the Mejlis.

When Russia contested Ukraine’s references to the alleged Stalin-ordered deportation of the Crimean Tatars and the rule of law in the Soviet Union being hypocritical, by arguing that history did not matter, the court disagreed.

In fact, Judge James Crawford emphasised the relevance of the ‘historical persecution’ of Crimean Tatars and the role of Mejlis in advancing and protecting their rights in Crimea ‘at the time of disruption and change’.

These conclusions are important reminders that the historical inheritance of injustices inflicted on vulnerable groups should be taken into account when nations address their imperial legacies.

The court’s provisional measures and Judge Crawford’s position are particularly relevant in light of Russia’s policy of the total - territorial, historical, cultural – ‘russification’ of Crimea, as they highlight the role of the historical background for assessing the alleged discriminatory and prosecutorial policy of Russia’s occupying authorities against the Crimean Tatars.

The ICJ’s judgement on the merits of this as well as other human rights, and terrorism issues of Crimea and Donbas will be an important consideration for the international community in its view of the Russia-Ukraine armed conflict and the sanctions policy against Russia.

The development of this case also has a mutually catalysing impact on Ukraine’s efforts to establish those individually criminally responsible for atrocities in Crimea and Donbas, through domestic proceedings and through the International Criminal Court.

Ukraine’s attempts to seek individual criminal responsibility for gross abuses in Donbas and Crimea at the International Criminal Court (ICC) are assessed in part two of this series, coming soon.

The 1998 treaty which established the International Criminal Court (ICC) was adopted at a time when the world (or most of it) was willing to reach multilateral agreements on a variety of topics and was encouraging the development of international criminal justice. The two tribunals, set up by the UN Security Council, for the former Yugoslavia and for Rwanda had been relatively successful. The time was ripe for states to agree together to set up a permanent international court with wider scope than the two tribunals.

So the ICC was created, with jurisdiction over the international crimes of genocide, crimes against humanity and war crimes; its jurisdiction for the crime of aggression developed later. The court was given the power to prosecute nationals of states that were parties to the ICC Statute, and also to prosecute where the crime was committed in the territory of a state party, whatever the nationality of the alleged criminals. The court had further jurisdiction when the Security Council referred a situation to it.

That was some 20 years ago. There is now a perception in many quarters that the ICC has not fulfilled the expectations of its founders. The court’s proceedings are cumbersome and lengthy. Many of the accused are still at large, including Omar al-Bashir, the former president of Sudan. Some €1.5 billion has been spent, and there have been only three convictions for the core international crimes.

There have been criticisms of the judges, the former Prosecutor and other officials, as well as concern over particular decisions of the court. The allegation that the court is only interested in crimes in Africa[1] is perhaps heard less frequently now than it once was (most of the African governments concerned referred the situations in their countries to the ICC themselves), and there has not been the mass walk-out of African states that was once predicted.

But in other quarters there is serious unease about the situation in the court. As the UK representative said at a meeting last year, ‘We cannot bury our heads in the sand and pretend everything is fine when it isn’t.’[2]

The negative assessment of the ICC’s work may be countered by the fact that it is the failure of states to cooperate with the court that causes many of the problems. Further, the expectations of states and civil society about the possibilities of international criminal justice have been so high that no court would be able to meet them. It is not possible for one court actually to ‘end impunity’ for international crimes,[3] nor to prevent war-related violence and mass atrocities, nor to satisfy all victims.

Moreover, the criticisms of the ICC come against the background of the global crisis for multilateralism more generally. The present US administration is notoriously hostile towards this international institution.[4]

On the plus side, the establishment of the court has encouraged states to revise their own laws on international crimes and to institute their own prosecutions where it is possible to do so. It is also claimed that the very existence of the court can be a deterrent to potential perpetrators of international crimes. The court has begun to add to the body of international criminal law and has increased the possibility that mass atrocities will be investigated.

But there is indeed some truth in the criticisms made of the internal workings of the court. One problem is that the particular combination of the civil and common law systems that has developed has produced cumbersome procedures regarding the representation of victims at most stages of the proceedings. It has also resulted in endless appeals from huge numbers of small decisions made by one chamber or another.

Then there are the management failures which have led to officials of the court being awarded compensation by the administrative tribunal of the International Labour Organization (ILO) because of the way they were treated by the court, and finally the decision of a few of the judges to take proceedings themselves at the ILO to have their salaries increased. 

Some ICC decisions have been met with surprise. For example, a former vice-president of the Democratic Republic of the Congo, Jean-Pierre Bemba, who was in the custody of the ICC for 10 years, was convicted by a unanimous trial chamber of various crimes and then succeeded on his appeal. Following this and the acquittal of former Côte d’Ivoire president Laurent Gbagbo,[5] there are concerns about the ability of the prosecution to succeed in cases against high-level alleged perpetrators.

Most recently, there has been criticism of the reasoning behind the appeal court decision regarding the immunity – or, rather, lack of immunity – of former president Bashir. And a decision of a chamber of the ICC not to authorize the opening of an investigation in Afghanistan has been seen as shielding the US from possible proceedings (though it has been welcomed by others as a pragmatic approach).

The message that certain problems with the ICC need fixing is coming not just from the writings of academics and the legal blogs,[6] but from governments too, including those, like the UK, which are among the foremost supporters of the court.

The former presidents of the ICC’s Assembly of States Parties (which comprises the representatives of all states parties) say that they ‘are disappointed by the quality of some of [the court’s] judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the Court from living up to its full potential’.[7] 

Changes to remove the worst excesses of the procedures that have evolved could be effected without amendments to the treaty incorporating the ICC Statute. It may be that a change in culture is also needed. More modesty by the court, along with more realism from governments and civil society, is needed.

And, attractive as it might seem to push at the boundaries of the law, the court should be realistic in what it can achieve. It is next to impossible to prosecute a case effectively where there is no cooperation from the state on whose territory the crimes were committed.

What is needed is a court that can undertake efficient and effective criminal proceedings, delivering fair and impartial justice in the small number of cases which it is reasonable to expect it to address, in the light of the evidential challenges, limited resources and limited state cooperation.

Governments should decide together at the Assembly of States Parties to set in hand a review of the ICC’s operations. It has been suggested that a group of experts might be mandated to assess the management of the court;[8] on the basis of their report, governments could agree on the necessary improvements.

Not everything, however, can come within the remit of such a group. Governments should adopt new rules and practices to address matters such as the election process for judges and their training; governments might consider reaching their own understandings on how some provisions of the ICC Statute should be interpreted in practice. Governments should reach out to the many civil society organizations which have supported the court over the years, to ensure that they are involved in the process.

Measures of this kind cannot detract from the fact that the ICC is fundamentally sound and that its role is as necessary as when it was first established. As Richard Goldstone, former chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, has said, ‘If there were no ICC in existence today, many people in many countries would be agitating for and demanding one. That we have one is a singular achievement. It behoves us to make it the best possible and to assist it, as States, civil society, and individuals, in the best and most productive way possible.’[9]

Notes

[1] See, for example, du Plessis, M., Maluwa, T. and O’Reilly, A. (2013), Africa and the International Criminal Court, London: Royal Institute of International Affairs, July 2013, https://www.chathamhouse.org/publications/papers/view/193415.

[2] GOV.UK (2018), ‘UK statement to ICC Assembly of States Parties 17th session’, 5 December 2018, https://www.gov.uk/government/speeches/uk-statement-to-icc-assembly-of-states-parties-17th-session.

[3] As the preamble to the ICC Statute desires. See ICC (2011), Rome Statute of the International Criminal Court, p. 1, https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf.

[4] See the speech of John Bolton, US National Security Advisor. Just Security (2018), ‘Bolton’s Remarks on the International Criminal Court’, 10 September 2018, https://www.justsecurity.org/60674/national-security-adviser-john-bolton-remarks-international-criminal-court/.

[5] Gbagbo was accused of various crimes which took place after Côte d’Ivoire’s election in 2010, in which Gbagbo lost power to Alassane Ouattara. The case was terminated by the court following a year’s hearings in which the prosecution put forward its evidence.

[6] See, for example, Guilfoyle, D. (2019), ‘Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?’, EJIL:Talk! blog post, 8 May 2019, https://www.ejiltalk.org/reforming-the-international-criminal-court-is-it-time-for-the-assembly-of-state-parties-to-be-the-adults-in-the-room/.

[7] Al Hussein, Z. R., Stagno Ugarte, B., Wenaweser, C. and Intelman, T. (2019), ‘The International Criminal Court Needs Fixing’, Atlantic Council, 24 April 2019, https://www.atlanticcouncil.org/blogs/new-atlanticist/the-international-criminal-court-needs-fixing.

[8] Ibid.

[9] Goldstone, R. (2019), ‘Acquittals by the International Criminal Court’, EJIL:Talk! blog post, 18 January 2019, https://www.ejiltalk.org/acquittals-by-the-international-criminal-court/. Richard Goldstone is also a former justice of the Constitutional Court of South Africa.

This essay was produced for the 2019 edition of Chatham House Expert Perspectives – our annual survey of risks and opportunities in global affairs – in which our researchers identify areas where the current sets of rules, institutions and mechanisms for peaceful international cooperation are falling short, and present ideas for reform and modernization.

The UK Supreme Court’s ruling last Wednesday has, at least temporarily, scuppered the prime minister’s plans to limit parliamentary debate before the looming Brexit deadline. Some of the prime minister’s allies have attacked the ruling as a ‘constitutional coup’. But a close reading reveals that the court has stayed within its remit to interpret, rather than make, the law.

In a carefully reasoned judgment, the court emphasized that the case was not about Brexit. But the judges certainly did not shy away from the extraordinary nature of the matters before it, noting that such factual situations have ‘never arisen before and are unlikely ever to arise again… But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.’

The key question before the court was whether the prime minister’s decision to seek prorogation was ‘justiciable’ – i.e. amenable to being reviewed by a court. The English and Scottish courts earlier on in these proceedings had come, dramatically, to opposing views on this.

The Supreme Court was not dissuaded by the inherently political considerations involved in the prime minister’s decision, stating that while ‘courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it’.

The court went on to emphasize that the Crown’s remaining prerogative powers (exercised on the advice of the government or directly by ministers) have long been subject to judicial scrutiny; such oversight is essential to guarding the separation of powers underpinning the UK’s constitution.

So far, so conventional. The full bench of the Supreme Court was required to grapple, though, with a prerogative power that had never been tested before in the courts. And so they delved back to the 1611 Case of Proclamations: ‘the King hath no prerogative, but that which the law of the land allow him’. In the court’s view, the legal issue to be resolved was the scope of the power to prorogue (the existence of this particular prerogative not being in dispute).

With no case law available to provide direct guidance on this question, the court, instead, relied on two fundamental principles of the UK’s constitution – parliamentary sovereignty and parliamentary accountability. What would be the logical consequence of an unlimited power to prorogue? The ability to shut parliament permanently.

The conclusion: this particular prerogative power had limits. The court held that:

‘A decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.’

Having come to this conclusion, the court was left to examine what justification had in fact been given, noting that the prime minister’s motives were irrelevant. It noted that no clear reason had been given – the relevant documents were all concerned with preparing for the Queen’s speech.

Noting evidence on normal practice for such preparations, including from a former prime minister, the court found it ‘impossible… to conclude…that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks’.

The court’s decision was neither inevitable nor a radical departure from legal tradition. It represents the gradual evolution of the long-established legal principle that the crown’s powers are set by the law and supervised by the courts.

Courts have traditionally been reticent to rule on prerogative powers which are ‘high politics’ by nature – classic examples include declaring war and negotiating treaties. In recent years, though, the judiciary has shown a growing confidence to grapple with the contours of those prerogative powers that remain. Deference is still shown when looking at how those powers have been used as opposed to the limits of the prerogative in question.

The Supreme Court ruling won’t reassure those who worry about the emergence of an activist court willing to wade (improperly) into the political arena. Nor will it necessarily bring comfort to those anxious about an unwritten constitution in an era where political conventions are fast unravelling.

But divisive court rulings are nothing new, nor are ministerial outbursts about inconvenient judgments. In the current environment, politicians should take particular care not to send mixed messages which undermine the independence of the UK’s judiciary. Public trust in British institutions is dangerously low and the UK can ill-afford further damage to its reputation as a country steeped in democracy and the rule of law.

Summary

• Online political campaigning techniques are distorting our democratic political processes. These techniques include the creation of disinformation and divisive content; exploiting digital platforms’ algorithms, and using bots, cyborgs and fake accounts to distribute this content; maximizing influence through harnessing emotional responses such as anger and disgust; and micro-targeting on the basis of collated personal data and sophisticated psychological profiling techniques. Some state authorities distort political debate by restricting, filtering, shutting down or censoring online networks.
• Such techniques have outpaced regulatory initiatives and, save in egregious cases such as shutdown of networks, there is no international consensus on how they should be tackled. Digital platforms, driven by their commercial impetus to encourage users to spend as long as possible on them and to attract advertisers, may provide an environment conducive to manipulative techniques.
• International human rights law, with its careful calibrations designed to protect individuals from abuse of power by authority, provides a normative framework that should underpin responses to online disinformation and distortion of political debate. Contrary to popular view, it does not entail that there should be no control of the online environment; rather, controls should balance the interests at stake appropriately.
• The rights to freedom of thought and opinion are critical to delimiting the appropriate boundary between legitimate influence and illegitimate manipulation. When digital platforms exploit decision-making biases in prioritizing bad news and divisive, emotion-arousing information, they may be breaching these rights. States and digital platforms should consider structural changes to digital platforms to ensure that methods of online political discourse respect personal agency and prevent the use of sophisticated manipulative techniques.
• The right to privacy includes a right to choose not to divulge your personal information, and a right to opt out of trading in and profiling on the basis of your personal data. Current practices in collecting, trading and using extensive personal data to ‘micro-target’ voters without their knowledge are not consistent with this right. Significant changes are needed.
• Data protection laws should be implemented robustly, and should not legitimate extensive harvesting of personal data on the basis of either notional ‘consent’ or the data handler’s commercial interests. The right to privacy should be embedded in technological design (such as by allowing the user to access all information held on them at the click of a button); and political parties should be transparent in their collection and use of personal data, and in their targeting of messages. Arguably, the value of personal data should be shared with the individuals from whom it derives.
• The rules on the boundaries of permissible content online should be set by states, and should be consistent with the right to freedom of expression. Digital platforms have had to rapidly develop policies on retention or removal of content, but those policies do not necessarily reflect the right to freedom of expression, and platforms are currently not well placed to take account of the public interest. Platforms should be far more transparent in their content regulation policies and decision-making, and should develop frameworks enabling efficient, fair, consistent internal complaints and content monitoring processes. Expertise on international human rights law should be integral to their systems.
• The right to participate in public affairs and to vote includes the right to engage in public debate. States and digital platforms should ensure an environment in which all can participate in debate online and are not discouraged from standing for election, from participating or from voting by online threats or abuse.