ICTIG June 2021 Newsletter

Vol. 2, Issue 2 June 2021 International Courts & Tribunals Interest Group Newsletter Introductory Note The International Courts and Tribunals Interest Group has been quite active since INSIDE THIS ISSUE the last newsletter. On March 12, ICTIG hosted, with the ABA’s International Courts Developments at International and Judicial Affairs Committee, an event titled “International Courts: Legitimacy, Courts & Tribunals Perception, and Outcomes.” The discussion addressed issues of diversity on the 2 international bench, featuring comments by Saadia Bhatty, Manuel Casas, Linda Strite Murnane, Nicola Peart, and was moderated by Cesare Romano. New Publications 3 On March 25, ICTIG co-chairs David Bigge and Freya Baetens hosted a chat with Philippa Webb during the interest group’s annual business meeting. The discussion Notable Judgments & Decisions centered on Webb’s new book, co-authored with Amal Clooney, titled “The Right to 3 a Fair Trial in International Law,” with a focus on how that right is applied by international courts. Opportunities 6 On May 27, ICTIG hosted, with the Centre for International Law at the National University of Singapore, a discussion on maritime delimitation as a judicial process. Member News The panel for this fascinating discussion, which included Nilufer Oral, Massimo 8 Lando, Tara Davenport, Alina Miron, Sarala Subramaniam, and Judge Tomas Heider, addressed how the International Court of Justice has developed its tests for maritime delimitation over time, and considered proposals for future developments. International Courts & Recordings of both the “Legitimacy, Perception, and Outcomes” event and the Tribunals Interest Group “Maritime Delimitation” event can be found on ICTIG’s page on the ASIL web site. CO-CHAIRS We have several events in the planning stages, including an event scheduled for next David Bigge fall on “International Law Without International Courts.” Please see the Calls for Freya Baetens Papers section of this newsletter for more details on how you can participate in this EDITORS exciting event. Sara Ochs Lisa Reinsberg -David Bigge & Freya Baetens, Co-Chairs Views contained in this publica- tion are those of the authors in their personal capacity. The American Society of International Law and this Interest Group do not generally take positions on substantive issues, including those addressed in this periodical. International Courts & Tribunals Interest Group Newsletter June 2021 Developments at International Courts & Tribunals ECCC Issues Revised Completion Plan ECtHR Receives Renewed Funding for Hearing Webcasts The Extraordinary Chambers in the Courts of Cambodia (ECCC), the hybrid tribunal established to prosecute In June, the European Court of Human Rights announced atrocities committed in Cambodia during the Khmer Rouge it will continue to provide webcasts and recordings of its regime in 1975-1979, is preparing for closure. On March 31, public hearings, thanks to renewed funding from the Irish 2021, the ECCC released its Revised Completion Plan, which Department of Foreign Affairs and Trade. Ireland has details the steps and timing for completion of its pending provided financial support for the webcasting of ECtHR cases. In particular, the ECCC anticipates the appeal hearings since 2007. Webcasts and recordings of past judgment in Case 002/02 will be issued in 2022. hearings may be accessed on the Court’s website. U.S. Government Repeals Sanctions against Special Tribunal for Lebanon Faces the ICC Financial Crisis On April 2, 2021 President Biden revoked an Executive Order The Special Tribunal for Lebanon (STL) is undergoing a sig- previously issued by President Trump and lifted sanctions nificant budgetary crisis which poses a grave threat to the imposed by the Trump Administration on International court’s future operations. In June 2021, the STL’s registrar Criminal Court (ICC) Prosecutor Fatou Bensouda and the filed notice with the Trial Chamber that the exhaustion of ICC’s Head of the Jurisdiction, Complementarity and the Tribunal’s available funds was “imminent,” and would Cooperation Division of the Office of the Prosecutor, impact the STL’s ability to carry out normal operations Phakiso Mochochoko. President Trump’s Executive Order, beyond July 2021. Several days later, the STL’s Trial Chamber issued on June 11, 2020, characterized as a national emer- II issued an order cancelling the commencement of the sec- gency the ICC’s investigation into alleged crimes committed ond trial against Salim Jamil Ayyash, whose trial in absentia by U.S. military and intelligence officials in and related to the was scheduled to begin on June 16, 2021. Fifty-one percent Afghanistan conflict, and authorized the imposition of sanc- of the STL’s budget is funded by voluntary contributions, tions against any foreign person who engaged or materially while 49% is funded by the Lebanese Government. assisted the ICC’s investigation of U.S. personnel. In revoking the Executive Order, President Biden also terminated a 2019 New Prosecutor Takes the Helm at the ICC policy imposing visa restrictions on certain ICC personnel. However, he also made clear that the U.S. Government Karim Ahmad Khan took over as Prosecutor of the “strongly disagree[s]” with the ICC’s investigation. President International Criminal Court, replacing Fatou Bensouda, on Biden further maintained the U.S.’s “longstanding objection June 16, 2021. Khan, a national of the United Kingdom, was to the Court’s efforts to assert jurisdiction over personnel of elected to the position by the Assembly of States Parties to non-States Parties such as the United States and Israel.” the Rome Statute in February of this year. His CV is available on the Court’s website. Bensouda, a national of Gambia, had AfCHPR Launches 2021-2025 Strategic Plan served as Prosecutor since June 2012, and issued an end of term statement. The African Court on Human and Peoples’ Rights officially launched its Strategic Plan for 2021-2025 on June 1, 2021. The Meeting of States Parties to the UN plan has not been posted online, but it reportedly envisions Convention on the Law of the Sea the creation of a Compliance Monitoring Unit and a human rights course for national judges, among other initiatives The thirty-first meeting of States parties to the United aimed at improving the Court’s impact. From June 2 to 4, the Nations Convention on the Law of the Sea is scheduled to Court held its inaugural Judicial Retreat of Judges of the take place from June 21 to 25, 2021. The meeting will com- African Court, described as “the first step” in implementing bine in-person plenary meetings, held at UN Headquarters in the strategic plan. Previously, the Court had solicited stake- New York, with virtual consultations. The Convention, which holder input for the plan via a survey and workshop. —continued on page 3 2 International Courts & Tribunals Interest Group Newsletter June 2021 New Publications Notable Judgments & Decisions Books AfCHPR Rules on Benin’s Failure to Implement Its Decisions We are proud to share that ICTIG members have recently published the following books: Lisa Reinsberg, International Justice Resource Center • Esmé Shirlow, Judging at the Interface: Deference to State The African Court on Human and Peoples’ Rights has ruled Decision-Making Authority in International Adjudication that it has jurisdiction to decide complaints concerning (Cambridge University Press 2021). States’ execution of its decisions, in a case involving exiled Beninese presidential candidate Sébastien Ajavon. The • Catharine Titi, The Function of Equity in International Law Court’s March 29, 2021 judgment in Sébastien Ajavon v. Benin (Oxford University Press 2021). (app. no. 065/2019) considered whether Benin violated its human rights obligations when it failed to execute the Articles, Essays, & Book Reviews Court’s order of provisional measures and judgments in Ajavon’s favor. ICTIG members have recently published articles and essays including the following: In December 2018 and March 2019, respectively, the Court adopted provisional measures and its judgment concern- • Brian L. Cox, Recklessness, Intent, and War Crimes: ing Ajavon’s complaint (app. no. 013/2017) of due process Refining the Legal Standard and Clarifying the Role of violations leading to his 2018 conviction and twenty-year International Criminal Tribunals as a Source of Customary sentence for drug trafficking. Ajavon further challenged the International Law, 52 Geo. J. Int’l L. 1 (2020). conviction because it made him ineligible to stand for elec- • Md. Rizwanul Islam, Ordering the Repatriation of the tion. After finding multiple due process violations, the Rohingya, 62 Va. J. Int’l L. Online 1 (2021). African Court had ordered Benin to “take all necessary measures to annul” Ajavon’s conviction and its effects within six months of its March 2019 judgment. When Benin failed to take these steps, Ajavon submitted a new application to the Court in November 2019. —continued on page 4 Developments at International Courts & Tribunals —continued from page 2 established the International Tribunal for the Law of the Sea gin of appreciation in the Convention’s preamble; removes (ITLOS), currently has 168 States parties. The provisional the limitation in ECHR art. 35(3)(b) that had prevented the agenda includes ITLOS’ presentation of its annual report Court from declaring an application inadmissible on the for 2020. ground that the applicant had “not suffered a significant dis- advantage,” in instances when a domestic court had not Entry into Force of Protocol 15 to the “duly considered” the case; eliminates parties’ right to object European Convention on Human Rights to relinquishment of a case by a Chamber to the Grand Chamber; and replaces the requirement that judges’ terms On August 1, 2021, Protocol 15 to the European Convention end when they reach age 70 with a requirement that candi- on Human Rights (ECHR) will enter into force, bringing some dates be less than 65 years old when the Parliamentary significant changes to the functioning of the European Court Assembly requests the list of candidates.

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