Nov 6, 2023 | Online Scholarship, Perspectives, Ukraine
By David Donat Cattin* and Philippa Greer**
Introduction
In our latest article for the Harvard International Law Journal (HILJ) on the topic of modernizing the International Criminal Court (hereinafter “ICC” or “Court”) through the creation of hybrid chambers, we advocated for amendments to the Rome Statute to allow for hybrid chambers at the ICC, which could yield several significant benefits. Most notably, we suggested that the introduction of such chambers could motivate states parties to engage more readily with the Court, incentivize non-party states to join, and accomplish the principal goal of ensuring criminal accountability.
On April 19, 2023, together with Judge Volker Nerlich of the Appeals Chamber of the Special Criminal Court of the Central African Republic, we presented at Harvard Law School further interventions regarding the proposal to introduce a hybrid chamber at the ICC, as well as our experiences concerning hybrid justice, or internationalized domestic jurisdictions, in international criminal law. The discussion that ensued from this thought-provoking HILJ event has prompted a revision of our original article and the issuance of this second part with operational suggestions for legislative drafters. These suggestions are two-fold. First, we propose additional consideration of the need to avoid amendments to the Rome Statute’s articles not falling under the accelerated amendments process provided under Article 122 of the Rome Statute, which specifically envisages reforms of a purely institutional and organizational nature, and hence does not affect states parties’ rights and obligations nor carry any jurisdictional or substantive law implications. Second, we reflect on the vital importance of the outreach and community-based work of judicial institutions, including those hosting hybrid chambers. We exclusively direct this Article’s proposal to the internal law of international organizations, also known as the “proper law of international organisations,” to quote C. Wilfred Jenks (1962).[1] As such, in accordance with the letter and spirit of Article 122 of the Rome Statute, it would be sufficient that a majority of two-thirds of states parties vote for its adoption and immediate entry into force for all states parties, thereby ensuring that there would be no fragmentation and unity would be preserved in the self-contained system of the Statute.
Atrocity crimes pose a global threat to humankind. The progressive development of the practice of international criminal law, in addition to the advancement of the body of international criminal law itself, is essential to the mission of the ICC today. Both are critical to advancing the central objective of international criminal justice, namely, to combat impunity in the face of the gravest crimes of concern to the international community.
In response to Russia’s invasion of Ukraine in February 2022, states embarked on what may emerge as one of the most comprehensive responses to a situation of mass atrocities to date. Forty-three states parties referred the situation in Ukraine to the ICC and thereby allowed the Prosecutor to open an investigation immediately. Many states sent voluntary financial contributions and seconded staff to support the Court (not only to bolster investigations in Ukraine, but also to reinforce the Office of the Prosecutor’s capacities in all the other situations under investigation) and national Ukrainian investigators in their efforts to document war crimes and crimes against humanity. The ICC was invited to participate in complex mechanisms set up by relevant states to address the mounting crime waves in Ukraine, such as the Joint Investigation Team and the International Center for the Prosecutor of Aggression (ICPA) facilitated by the European Union’s Eurojust, and in Libya, specifically, the Joint Team supporting investigations into crimes against migrants and refugees, supported by the European Union Agency for Law Enforcement Cooperation (Europol). These significant developments, which are raising the bar for international cooperation in the global fight against impunity for mass atrocities, all point to the continued international legitimacy of the ICC.
Given the complexities of the subject matter, however, one of the most pressing conversations in international criminal law today is whether and how an ad hoc international jurisdiction or a specialized hybrid court can be set up to address the crime of aggression in Ukraine. The ICC’s jurisdiction over this crime is characterized by an extremely complicated regime, regarding which some states, led by Germany, and NGOs have been calling for reform. Due to a distinctive feature in its Statute as amended by the Kampala Review Conference (2010), the ICC cannot exercise jurisdiction over the crime of aggression by nationals of non-party states, including Russia (Art. 15 bis, para. 5), or perpetrated through the use of armed forces of states that have not ratified the Statute (Art. 15 bis, para. 4). Accordingly, numerous states are currently considering in tandem the creation of a new judicial mechanism that can exercise jurisdiction over the crime of aggression, with a few scholars insisting that such a court should be hybrid in nature, while a majority have expressed support for a special international tribunal (see, e.g., Oona Hathaway, Yale Law School; Jennifer Trahan, NYU Center for Global Affairs; Astrid Reisinger Coracini, University of Vienna; Philippe Sands, UCL Faculty of Laws; and David Crane, Syracuse University). These proposals are based on Ukraine’s call for, and explicit consent to, the exercise of jurisdiction over the crime of aggression, which is a crime under international law that shocks the conscience of humankind and represents the ultimate infringement on international peace and security. It falls within the framework of which all the other crimes, such as war crimes and crimes against humanity, are “contained” when they are perpetrated as a consequence of the waging of a war of aggression causing an international armed conflict. If this “special tribunal” is created, regardless of its model, there will be strong ownership by the territorial state.
Yet – looking back to the work of the ICC in this area – upon the issuance of arrest warrants against President Vladimir Putin and Ms. Maria Lvova-Belova on March 17, 2023, the first concrete step taken by the ICC with respect to the Situation in Ukraine, Prosecutor Karim A. A. Khan KC noted the following: “Since taking up my position as Prosecutor, I have emphasised that the law must provide shelter to the most vulnerable on the front lines, and that we also must put the experiences of children in conflict at the centre of our work. To do this, we have sought to bring our work closer to communities, draw on advanced technological tools and, crucially, build innovative partnerships in support of our investigative work.” To be “closer to the communities” affected by the relevant crimes, the Prosecutor entered into arrangements with the above-mentioned Joint Investigative Teams and developed a synergic cooperation with the authorities and civil society of Ukraine, a state that accepted the jurisdiction ad hoc under Article 12(3) of the Rome Statute and has not yet ratified the treaty.
In addition to the recent developments concerning the Situation in Ukraine at the ICC, the Court has furthered the objective of bringing the work of the ICC closer to affected communities through its recent actions, such as the conclusion of new memoranda of understanding renewing cooperation towards justice in the Democratic Republic of Congo, the establishment of an in-country office in Venezuela, and an action plan for renewed cooperation with Colombian national authorities in pursuit of accountability. Moreover, over the last twenty years, local and international NGOs and legal representatives of victims have repeatedly called for a greater presence of the ICC in the field through interactive outreach and public communications, including through the application of the Statute’s provisions on in situ proceedings.
Summary of the Benefits and Risks of Creating a Hybrid Chamber at the ICC
To summarize briefly the benefits and risks of creating a hybrid chamber at the ICC, as addressed in our original article, it is first noted that, on the risks side, there is the potential for compromised justice institutions through the use of national judges at the ICC, particularly in contexts involving a high degree of political instability. For instance, the rulings of national judges could be dismissed as lacking in impartiality or, even if impeccably well-reasoned, lacking the appearance of impartiality.
There is also the potential of a “due process critique” that a judge from the same state as a defendant might be biased in favor of, or against, that defendant, depending on the political climate following atrocity crimes. Also on the risks side, hybrid chambers could come with increased costs, or a rebalancing of resources away from the ICC’s core mandate. The Court would also need to adapt to new procedures for selecting judges, which could create difficulties at the initial stages. However, on the benefits side, hybrid chambers (and courts) may allow for building a more localized ownership of the justice process and fostering the development of international human rights norms within domestic legal systems.
There are a number of additional benefits a hybrid system would provide. The integration of national judges may provide a visible and more culturally appropriate justice process, which also adheres to international human rights standards. Furthermore, there is a perceived sense of transparency and greater resistance to political interference from the use of a combination of international and national judges. Indeed, integrating national judicial actors within the ICC’s decisionmaking process could enable a form of hybrid justice while still maintaining the ICC’s international legitimacy. Moreover, a hybrid chamber within the ICC could also motivate states parties to engage more readily with the Court, incentivize non-party states to join, and accomplish the principal goal of ensuring criminal accountability.
Having a national judge take part in proceedings could indicate a greater degree of respect for state sovereignty and an institutional effort to be more representative. Also, hybrid chambers could serve to promote knowledge transfer and strengthen the capacity of domestic judicial systems through the engagement of national judges in international criminal proceedings that adhere to international standards.
Additionally, the participation of national judges could also increase the use of the language of the incident state during trials, facilitating national media coverage and making the proceedings seem closer to home for the relevant population. Finally, a hybrid chamber could create a more specialized chamber. For example, in situations where the Court has jurisdiction on the basis of the location of the respective atrocity crimes, a judge of the territorial state appointed to the bench might be expected to have special expertise in the specific language of the state in which the situation arose, in addition to cultural skills and background knowledge of the relevant state. This could help to make the hybrid chamber more focused and efficient.
In order to advance these goals and minimize the hurdles or complications that may be associated with institutional innovation, it is necessary for the states parties to the Rome Statute to elaborate a set of amendments that would empower the Assembly itself and relevant Court organs to take the necessary action in forming hybrid chambers within the ICC, when their configuration would be suitable to bring the justice process closer to the victims and the communities affected by the perpetration of international crimes.
Proposed Amendments to the Rome Statute
The practical vehicle through which amendments to the Rome Statute may best be effected to allow for the establishment of hybrid chambers within the Court is Article 122, which provides that an amendment of an institutional nature may be proposed by any state party and must then receive unanimous support or, in the absence of consensus, a two-thirds majority vote in the Assembly of States Parties (ASP) for its adoption and immediate entry into force. The latter characteristic of Article 122 makes it much more efficient and effective than the Article 121 amendment procedures, which cause “fragmentation” or diversification of jurisdictional regimes between states that have ratified amendments and states that have not ratified them. Additionally, amendments that require the ratification by seven-eighths of the states parties before entering into force (for all states), such as the 2015 amendment through which the ASP unanimously deleted the transitional provision on war crimes of Article 124 from the Statute, are essentially impossible to achieve. This is due to the fact that political momentum for the amendments’ ratification is normally missing, and the technicalities of ratification processes pose an obstacle to collective and coordinated action by such a large number of states parties. Article 122 was conceived to allow adjustments in the internal (institutional) law of the ICC, but, as of today, it has never been applied or invoked by states parties, even if a Report of the Bureau on the Study Group of Governance, published October 15, 2013, encouraged states to submit proposals pursuant to this Article at paragraph 22.
It is further recalled that Article 39 of the Rome Statute leaves the Court free to establish new Pre-Trial and Trial chambers as it deems efficient. However, these chambers are composed only of judges from the existing Pre-Trial and Trial Divisions, respectively. Article 39 could therefore be amended to allow for the creation of hybrid trial chambers in addition to ordinary trial chambers, with two judges from the corresponding division and a third judge appointed on an ad hoc basis. The required amendments must specify that one or more hybrid chambers, in addition to ordinary trial and pre-trial chambers, are permissible and should set out the appointment mechanism for judges to hybrid chambers, in addition to the service, qualifications, nomination, and election requirements regarding ad hoc judges.
As also emphasized in our original article, we note in this respect that ad hoc judges would not fall under the definition of ICC judges. The Court would also need to adopt new procedures for selecting judges. The distinct articles of Part 4 of the Rome Statute would further require amendment in certain respects in order to detail how the provisions related to service of judges (Art. 35), qualifications and nomination/election (Art. 36, but exclusively in respect of para. 8 on criteria for selection, i.e., expertise and independence of ad hoc judges, and in respect of para. 9 to outline ad hoc judges’ term of office), the organizational functions of the Presidency of the Court (Art. 38), the configuration of the Trial Division (Art. 39, para. 1, second sentence) and the composition of the Trial Division (Art. 39, para. 2(b)(ii)), removal from office (Art. 46), disciplinary measures (Art. 47), and salaries, allowances and expenses (Art. 49) would apply to ad hoc judges (appointed to hybrid chambers). Other provisions, such as those on the independence of judges (Art. 40), excusal and disqualification of judges (Art. 41), solemn undertaking (Art. 45) and privileges and immunities (Art. 48) will need to be interpreted as applicable to ad hoc judges. Finally, ad hoc judges would also need to be exclusively bound to apply the law in accordance with Article 21 (Applicable Law) of the Rome Statute (which would impede their application of domestic law outside the extremely limited boundaries of Art. 21, para. 1(c)).
How Hybridity Can Foster Domestic Reconciliation: The ECCC Example
Beyond additional consideration of the need to avoid amendments to articles of the Rome Statute that do not fall under the accelerated amendments process provided for in Article 122 of the Rome Statute, it is important to also contextualize the hybridization project more broadly, in view of the overall goal of fostering domestic stabilization and reconciliation through accountability efforts.
Regarding the importance of bringing the work of the ICC closer to affected communities, we note that any such proposal to amend the Rome Statute to create a hybrid chamber should ideally be accompanied by a campaign or mechanism to enable increased resources aimed at fostering domestic outreach activities and embedding national judges in the judicial decisionmaking work and processes of the Court.
Taking the example of the Extraordinary Chambers in the Courts of Cambodia, known as the ECCC or informally as the Khmer Rouge Tribunal, the importance of fostering domestic outreach activities is clear. The ECCC was established within the Cambodian legal system in 2006 to seek justice for the crimes committed by the Khmer Rouge regime. It has received international assistance through the United Nations Assistance to the Khmer Rouge Trials, known as UNAKRT.
The ECCC can only prosecute two categories of alleged perpetrators for alleged crimes committed between April 17, 1975, and January 6, 1979, the first being senior leaders of Democratic Kampuchea, and the second being those believed to be most responsible for grave violations of national and international law. There have been four cases at the ECCC, with the second and fourth cases severed into two and three sub-cases, respectively (Case 001: defendant Kaing Guek Eay, alias “Duch”; Case 002 (severed into Case 002/01 and Case 002/02): defendants Khieu Samphan, Noun Chea (deceased), Ieng Sary (deceased), and Ieng Thirith (deceased); Case 003: defendant Meas Muth; Case 004 (severed into Case 004/01, Case 004/02 and Case 004): defendants Yim Tith, Im Chaem, and Ao An).
To date, three individuals have been convicted and sentenced to life imprisonment by the ECCC (Kaing Guek Eav, alias “Duch” (Case 001); Nuon Chea and Khieu Samphan (Case 002)), two of whom have since passed away (Nuon Chea passed away on August 4, 2019, in the hospital at the age of ninety-three. Kaing Guek Eav was serving his sentence at Kandal Provincial Prison, Cambodia, until he passed away on September 2, 2020, in the hospital at the age of seventy-seven. The last surviving prisoner convicted by the ECCC, Khieu Samphan, has recently been transferred from the ECCC Detention Unit to Kandal Provincial Prison, to serve out his sentence, under the jurisdiction of the General Department of Prisons of the Ministry of Interior.
The ECCC has a majority of Cambodian judges in each chamber. In the Pre-Trial Chamber, there are three Cambodian judges and two international judges (with the President of the Chamber being Cambodian and there being a reserve Cambodian and a reserve international judge). In the Trial Chamber, there are three Cambodian judges and two international judges (with the President of the Chamber again being Cambodian). In the Supreme Court Chamber, there are four Cambodian judges and three international judges (with the President of the Chamber being Cambodian and there being a reserve Cambodian and a reserve international judge).
Beyond a mixed composition of judges in chambers, there are, for example, Co-Prosecutors, both international and national, Co-investigating Judges, both international and national, and mixed international and national personnel in all other areas of the court, including the Office of Administration, the Defence Support Section, Victims Support Section, and there is also one Cambodian and one international Civil Party Lead Co-Lawyer.
Many commentators in the international justice realm have noted that the ECCC has experienced high levels of acceptance and support in its communities. Compared to domestic courts, it has also arguably demonstrated greater transparency and resistance to political interference. It has achieved a high degree of public attendance and victim engagement in trial proceedings. Through its Public Affairs Section, for example, it has hosted a weekly radio program, and a broader outreach program, and generated a high level of domestic media coverage. The ECCC also made great advances in interpretation and transcription of its three working languages (namely, English, French, and Khmer). To give just one example of this, the trial judgment in Case 002/02 stands at 2,259 pages in length and was issued in English, French, and Khmer.
The survey results of a recent study undertaken this year by the court show that the tour program organized by the ECCC as part of its public outreach is relevant for imparting knowledge to younger generations. According to most respondents, the ECCC study tours provided additional knowledge of the trial of Khmer Rouge senior leaders and the history of the Khmer Rouge regime – including through presentations by relevant officials and visits to Toul Sleng Genocide Museum, the Cheong Ek Genocide Centre, and Win Win Memorial. These results came from a survey that was conducted online by the court from February 15 to April 6, 2023, open to individuals who had participated in the ECCC study tour program. From February 15 to April 6, 2023, there were 3,430 youth, students, and teachers who had participated in the study tours organized by the court. 1,527 people responded to the online survey.
This focus on public awareness and engagement by the court is significant. The mandate of the Public Affairs Section prompts us to reflect on broader questions related to the role of capacity-building in a post-conflict society and how hybrid justice can help to develop a sense of local ownership of the justice process, while also leaving impacts for future generations to come. At the ECCC, officials routinely visit remote provinces and speak to members of the public, including school children, about the work of the court, distributing information materials about the ECCC and taking questions from students and the public about the court proceedings.
This aspect of the work of the court may be powerfully described with the notion of “justice under a tree.” The proposal to create a hybrid chamber within the ICC is based to an extent on the idea that hybrid forms of justice can help to develop a sense of local ownership of the justice process, leaving impacts for generations to come. The idea of “justice under a tree” is one which can be used to draw an analogy to the notion that hybrid justice and hybrid courts are often viewed as providing a more visible and culturally appropriate justice process that adheres to international human rights standards.
The concept comes from traditional African societies: under the tree is where people would meet to resolve disputes. For instance, with respect to the Constitutional Court of South Africa, the logo of the court depicts people sheltering under a canopy of branches, a representation of the court’s protective role and of the theme of justice under a tree. This logo reveals the ethos and culture of the court as a source of protection for all, as well as the Constitution’s historical roots in South Africa in terms of the struggle for human rights, infused with the spirit of a new democracy. Indeed, the Constitutional Court was borne not from clichéd images of the scales of justice and Roman columns. Rather, the symbol chosen for the court’s logo was the tree – something that protects, just like the Constitution. However, the tree does not stand alone in the logo. It is sheltering people who have gathered under its branches.
Standing outside, under trees, in school playgrounds in rural settings, public outreach missions in Cambodia may be said to have brought a sense of “bringing the law home” to affected communities, thereby further ensuring truth-telling in terms of historical record and teaching future generations to be attuned to the early warning signs of genocide and atrocity crimes. This may be considered as an extended form of “justice under a tree,” ensuring that justice is both visible and community-based.
Therefore, the proposal to amend the Rome Statute of the ICC to create a hybrid chamber within the Court with a composition of national and international judges may be viewed as one way of bringing the law one step closer to the communities affected by the work of the Court.
In order to achieve this result, it would be essential for the Assembly of States Parties to the Rome Statute to fulfill its legislative responsibility and make use of the provisions of Article 122 of the Statute, empowering a qualified majority of two-thirds to reform and modernize the internal judicial infrastructure of the Court and, ultimately, increase its impact, performance, and effectiveness.
This reform must be accompanied by concurrent efforts to increase the public outreach efforts of the Court and the accessibility of the only permanent international criminal tribunal, the ICC, for victims, including survivors. Therefore, such a proposal should ideally be accompanied by a campaign or mechanism to enable increased resources aimed at fostering domestic outreach activities, alongside embedding national judges in the judicial decisionmaking work and processes of the Court. The overarching question which we should always remain focused on is: how do we best produce positive results for affected communities?
[1] See generally Clarence Wilfred Jenks, The Proper Law of International Organisations (1962).
*David Donat Cattin is an Adjunct Associate Professor of International Law, Center for Global Affairs, NYU; Research Fellow, Center for International Law Research & Policy (www.cilrap.org/donat-cattin/); and Senior Fellow, Montreal Institute for Genocide and Human Rights Studies at Concordia University.
**Philippa Greer is the Head of the Legal Office of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, Gaza Strip. She previously served as a legal adviser at the United Nations in Afghanistan, Jerusalem, Cambodia and Tanzania and worked at the UN Secretariat in New York. The views expressed herein are those of the author alone and do not necessarily reflect the views of the United Nations. Philippa tweets @philippa_bear.
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Oct 16, 2023 | Content, Online Scholarship, Perspectives
By Philip Alexander*
I. Introduction
Earlier this year, Google announced a ‘Code Red’ at its California headquarters, instructing its employees to prioritize developing newer, more advanced Artificial Intelligence (AI) projects, with CEO Sundar Pichai describing AI as the next ‘electricity or fire.’ Notably, the spotlight on ChatGPT and its successor GPT4 has elevated the domain of AI as a revolutionary piece of technology. The benefits arising from this global movement in medicine, language and engineering are unquestionably significant. However, on the other end of its vast spectrum lies an array of globally disruptive Artificial Intelligence (GDAI), that could have far-reaching implications on life, liberty and humanity. This note examines the rise and effects of such AI and devises an international governance framework that balances automated technology with International Humanitarian Law (IHL) and Algorithmic Accountability. Specifically, I focus on Autonomous Weapon Systems (AWS) as an example of GDAI, where the nexus between automated technology and human rights is clearly established.
The development of international law and the proliferation of military technology are directly proportional. In 1648, the Treaty of Westphalia was drafted to restrict gunpowder weaponry after the Thirty Years’ War. In 1918, World War I and the rise of military trench warfare resulted in the formation of the Permanent Court of International Justice. Finally, nuclear weaponry used in World War II formed the rational basis behind the conception of the United Nations. In 2023, we exist in a stage of weaponry described as the ‘Third Wave of Warfare,’ where automated AI-enabled systems define the contours of military warfare. For example, Iran announced its development of a series of automated miniature tanks that hold military grade weaponry. In another instance, Turkish defense technology company STM engineered a fully autonomous combat drone, the Kargu-2, capable of precision-guided munition. These drones were first used in the Libyan internecine conflict of 2020 and now in the Russian-Ukraine armed conflict.
The emerging trend of automated weaponry raises questions on the urgency of developing regulatory mechanisms that govern autonomy. Should the international community push for the formation of a framework composed of soft and hard laws that explicitly define the limits of automated engineering? As Peter Singer, an expert on drone engineering, puts it, drones’ ‘intelligence and autonomy [are] growing [and] the law’s not ready for this.’ In the following section, I examine the legality of AWS and propose a tiered governance framework that reconciles such weaponry with IHL.
II. The Unpredictability of Algorithms
International Humanitarian Law, a set of rules that seeks to limit the effects of armed conflict, contains two principles relevant to AWS’s validity: The Principle of Precaution and the Principle of Distinction. These principles guide the conduct of belligerents during armed conflict and have become customary international law through state practice.
The principle of precaution, embodied in Article 57(1) of Additional Protocol I of the Geneva Convention, states that ‘n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.’ The principle of precaution emphasizes the continuous and diligent effort required to safeguard civilian lives during military operations. It stresses the importance of taking necessary measures to avoid or minimize unintended harm to non-combatants, such as confirming targets as legitimate military objectives, allowing for the cancellation or suspension of attacks if civilians are at risk, and providing warnings when feasible to protect the civilian population.
The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) determined in Prosecutor v. Kupreškić that Article 57 of the 1977 Additional Protocol I had attained the status of customary international law. This conclusion was reached based on two factors: Article 57 expanded upon and elaborated on existing customary norms. Secondly, it was observed that no State, including those that had not ratified the Protocol, appeared to contest the validity of this provision. This principle is also a fundamental axiom in several legal documents, manuals on military affairs and decisions by international and domestic judicial and quasi-judicial bodies, indicating its elevation as state practice.
The principle of distinction states that parties to a military armed conflict must distinguish between civilians and combatants, where ‘the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy.’ As described by the ICJ in the Nuclear Advisory Opinion as an ‘intransgressible [principle] of international customary law,’ it is codified in Articles 48 and 52(2) of Additional Protocol I and forms one of the central tenets of IHL.
The principal concern with AWS and other GDAI that could impede human rights is the unpredictability associated with the algorithms used to operate such technology. ‘Automatic’ machine systems are programmed to respond to rules, where ‘if X, then Y’ is followed. These systems do not necessarily pose concerns regarding their predictability. However, AWS is engineered using machine learning, where the software constantly responds to external factors and builds upon its existing knowledge repository, much like how ChatGPT operates. If the operation of this type of software malfunctions at any point during armed conflict, causing civilian harm, it violates customary humanitarian and international law.
Numerous instances of algorithmic bias and discrimination exist, where AI misperceives information. However, no party to the armed conflict could be held liable for this type of violation because of the absence of intent and knowledge required to establish a crime under international criminal law. In the following sections, I first discuss examples of algorithmic bias, providing precedent on the unpredictability of machine learning algorithms. I then devise a framework for AI governance that attempts to bridge some of the gaps in the status quo.
Algorithmic Bias
Algorithms in the context of machine learning are computational methods that utilize mathematical models to discover and comprehend underlying patterns present in data. These algorithms can recognize patterns, classify information, and make predictions based on their learning from existing data, known as the training set. There is an excessive reliance on the objectivity of such algorithms employed in artificial intelligence. This phenomenon is known as ‘mathwashing,’ where the output created by AI is treated as an absolute value, immune to inaccuracy. This perception stems from the fact that mathematics forms the fundamental basis for the existence of AI and is objective by its nature. However, this approach needs to be revised because algorithmic bias has been well-documented in several cases in the public domain.
A study conducted in 2019 discovered that health insurance service provider Optum’s algorithm exhibited racial bias by favoring healthier white patients for insurance coverage and medication, while neglecting sicker Black patients. The algorithm initially suggested providing additional care to only 17.7% of Black patients. However, if this bias were removed, the percentage of Black patients recommended for extra care would rise to 46.5%.
In another study conducted by MIT, it was discovered that the margin of error for three different facial recognition software was 0.8% for white men but 35% for women of color. Algorithmic bias has also been documented in criminal prosecution trials. Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS for short, is a predictive algorithm that assesses recidivism risk, or the likelihood of someone reoffending in the future. This software has been adopted in states such as California, Florida, New York and Wisconsin. However, a report found that Black offenders were nearly twice as likely to be classified with a potential risk of reoffending at 48%, compared with white offenders at 28%. In 2014, Brisha Borden, a Black woman, was arrested for burglary and petty theft. The COMPAS software labeled her as ‘high risk’ for future violent crimes. On the other hand, Vernon Prater, a White male with a history of multiple criminal charges, was arrested for a similar crime but was classified as ‘low risk’ for reoffending. Today, Borden has been released from prison without any pending criminal charges, while Prater has returned to prison and is currently serving an eight-year sentence.
These are just some examples of how unreliable artificial intelligence and machine learning can be. Incorporating unpredictable algorithms in military weaponry can have disastrous effects on human life. For this reason, AWS must be regulated so that states with powerful militaries do not take indiscriminate decisions without weighing their potential consequences. In the following section, I propose a two-tiered framework for protecting civilian life that balances the necessity of automated decision-making during armed conflict with principles of algorithmic accountability and IHL.
III. Proposal for the International Governance on AWS
There is an increasing sense of urgency in the algorithmic regulation debate. Recently, the Council of Europe announced that it is in the process of drafting the ‘Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law.’ Ursula von der Leyen, President of the European Commission, submitted a proposal for the Artificial Intelligence Act with the intention of ‘addressing the opacity, complexity, bias, a certain degree of unpredictability and partially autonomous behavior of certain AI systems, to ensure their compatibility with fundamental rights and to facilitate the enforcement of legal rules.’ The Biden Administration is also working on AI governance, releasing a blueprint for the AI Bill of Rights with ‘principles that should guide the design, use, and deployment of automated systems to protect the American public in the age of artificial intelligence.’ The impetus behind artificial intelligence provides the right opportunity to introduce domestic and international laws further, regulating specific kinds of AI such as AWS. In the following section, I examine an international governance framework that states can adopt as a possible structure for the regulation of AWS.
The proposal for this framework consists of two tiers. Tier I suggestions will permit the development and use of AWS during armed conflict, with accompanying restrictions that protect civilian life. These restrictions will expressly outline the limits of AWS in congruence with the rules of IHL. Tier II limitations will include stricter and enforceable restraints on AWS that states may enact at their discretion, either unilaterally, bilaterally with another state, or multilaterally with several states. A tiered code will precisely delineate to what extent AWS is permitted in compliance with IHL, while establishing stricter mechanisms on the attribution of liability.
Tier I
Firstly, states may adopt a declaration that expressly permits the development of machine learning in military weaponry in a way that respects civilian life. Constituting recommendations, guidelines and non-binding resolutions, this declaration would be a soft law instrument that lays down normative standards on what is and is not to be expected from member states concerning AWS. This instrument will also clarify the breach of the rules necessary to trigger state responsibility, including the extent, scope and nature of IHL, primarily codified in the four Geneva Conventions and two Additional Protocols.
Tier II
Tier II comprises binding and enforceable restrictions based on algorithmic accountability as opposed to general rules of IHL, that states must strictly adhere to while engineering AWS algorithms. Algorithmic accountability is the process where developers of algorithms are made responsible for situations where the algorithm renders a decision that has a disparate negative impact on an individual or a group of individuals. Stronger standards of accountability would significantly improve transparency in AI development, allowing members of the public to better understand what goes into building algorithms used for AWS.
A narrower approach, observed in such Tier II restrictions, would make it significantly easier to trace and attribute liability in accidental or intentionally unlawful conduct. These principles must be enforced alongside sanctions for violations and would jointly operate with the rules of IHL, creating a robust regulatory framework for AWS.
States must be obligated to conduct periodic Algorithmic Impact Assessments (AIA) at different stages of AWS’s life cycle. This achieves two goals.
Firstly, it allows the manufacturers of automated systems to think rationally and methodically about the potential implications of such technology before its implementation. This is especially crucial in technology that could violate individual rights and would ensure a greater likelihood that the final product reflects the principles and values determined in the initial impact assessment.
Secondly, it ensures the documentation of all decisions made in the development of AWS at different points of its life cycle, improving transparency and accountability to the public. An example of algorithmic impact assessments can be seen in the Algorithmic Accountability Act introduced by Senator Ron Wyden before Congress in 2022. The Bill seeks ‘[t]o direct the Federal Trade Commission to require impact assessments of automated decision systems and augmented critical decision processes, and for other purposes.’ In another example, Article 35 of the GDPR imposes Data Protection Impact Assessments ‘[w]here a type of processing […] using new technologies […] is likely to result in a high risk to the rights and freedoms of natural persons.’
Another measure that could be enforced is forming a bilateral or multilateral consultative commission that conducts regular inspections on a state’s AWS technology, ensuring that it complies with treaty restrictions. This step has been implemented in treaties that limit the non-proliferation of nuclear weaponry. For example, the New START Treaty is a nuclear arms reduction agreement between the United States and Russia that permits 18 on-site inspections yearly. An oversight body for AWS algorithms will ensure the compliance of AWS technology with the Tier II rules and obligations outlined in any treaty or agreement formed between states on AI regulation.
IV. Conclusion
The Tier I and II recommendations provide a viable solution to AI governance, balancing its utility while creating a robust regulatory framework that restricts the misuse of its autonomy. The proposed governance framework serves as a structure for future policy decisions regarding AWS and other GDAI. To this effect, the international community must deliberate upon these developments with the intention of framing broader domestic and international policy on AI and its intersection with human rights.
*Philip Alexander is a law student at the West Bengal National University of Juridical Sciences, India.
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Apr 1, 2023 | Content, Online Scholarship, Perspectives
PATRICK MILLER & KABIR DUGGAL*
Introduction
Milton Friedman famously stated that a business has no purpose except to increase shareholder value. This approach is increasingly dying.[1] Most international commercial lawyers have a general sense of human rights law—though it is often dismissed as a collection of non-binding, aspirational pronouncements having little practical effect on the way business is conducted or how businesses advise their clients. Indeed, human rights law in international law is often understood as obligations of states in relation to humans with a limited role for business. As a result, businesses often have only a passing understanding of the legal regimes related to business and human rights (“B&HR”).
Businesses which are not steeped in these issues can be forgiven for assuming that regimes related to B&HR are limited to the non-binding, aspirational arena, particularly as this may have been true for a time. On the one hand, we see an increased focus on Environmental, Social, and Governance (“ESG”) obligations, although these tend to be non-binding or aspirational. At the same time, we notice the creation of hard law obligations which are enforced by national governments.
Inquiries into corporate misconduct in the 20th century rarely went beyond the question of whether corporations even had a duty to protect human rights. The international conventions described below were landmark milestones in setting out a coherent framework establishing the bounds of corporate conduct and the obligations that multinationals have to various stakeholders. These milestones laid a foundation for national governments to begin enacting “hard law” regulations.[2] We expect that ESG and B&HR obligations will take a firmer form in the years to come—although these changes will often be a result of political pressure, national priorities, and global initiatives.
This article traces the key recent developments in B&HR from international agreements to some of the leading national regulatory regimes.
I. The International Framework
International law has traditionally focused on the role of states. While the role of non-state actors has played a limited role, certain efforts to identify international obligations for businesses exist.
A. The UN Global Compact (2000)[3]
Conceived by former UN Secretary Kofi Annan, the UN Global Compact is a voluntary initiative where companies commit to implement universal sustainability principles and take steps to support UN goals. The UN Global Compact is “open to any company that is serious about its commitment to work towards implementation of the UN Global Compact principles throughout its operations and sphere of influence, and to communicate on its progress.”[4] Principle I requires a company to comply with all applicable laws and internationally recognized human rights while Principle 2 requires that companies are not complicit in human rights abuses.[5] The remaining eight principles provide specific provisions for labor, environment, and anti-corruption.[6] Even though the Compact is a voluntary initiative, by signing up, companies must produce an annual “Communication on Progress” (COP) that details their work to embed the ten principles in their activities. So far, 21,493 companies from 162 countries have signed up for the Global Compact.[7]
B. The (Draft) Norms on the Responsibilities of Transnational Corporations (2003)[8]
In 2003, a Working Group chaired by Professor David Weissbrodt submitted the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights” (the “Norms”) to the UN Sub-Commission on the Promotion and Protection of Human Rights. The Norms were the first attempt to create human rights norms specifically aimed at transnational corporations.
There were specific Norms addressing non-discriminatory treatment, security of persons, rights of workers, anti-bribery provisions, consumer protection, and environmental protection. The document also identifies 14 obligations and 5 provisions aimed at implementing the Norms. The Norms were subject to “periodic monitoring and verification” by the UN, including by existing mechanisms, and a mechanism to be created regarding the application of the Norms. Even though the Norms were regarded as a landmark step, they were not approved by the UN Commission on Human Rights because they faced opposition from several states and the business community.[9]
C. The UN Guiding Principles on Business and Human Rights (2011)[10]
Following the failure of the Norms, the former UN Secretary General Kofi Annan appointed Harvard Professor John G. Ruggie as a Special Representative on Business and Human Rights. This led to the creation of the UN Guiding Principles on Business and Human Rights (the “Guiding Principles”). The Guiding Principles are based on three pillars: (i) a state bears the duty to protect against human rights abuses within its territory, (ii) a corporation must respect human rights and address adverse human rights impacts with which they are involved, and (iii) a state has the primary responsibility to remedy any human rights abuses within its territory.
While the Guiding Principles do not have a formal accountability mechanism,[11] they envision that “effective grievance mechanisms” are available based on multi-stakeholder and other collaborative initiatives. As a largely voluntary initiative, the Guiding Principles are often invoked by parties in their international pleadings to argue the failure of due diligence (see Bear Creek Amicus Reply[12] or Guatemala Counter-Memorial)[13] or the need for human rights assessment (Metlife Amicus).[14]
D. Draft UN Legally Binding Instrument to Regulate Activities of Transnational Corporations (2021)[15]
Despite the failure of the Norms, since 2014, there have been efforts to create a Legally Binding Instrument to Regulate the Activities of Transnational Corporations and Other Business Enterprises (the “Instrument”). The Open-Ended Intergovernmental Working Group (OEIGWG) created by the UN Human Right Council drafted this Instrument. The Draft makes clear that the purpose of this Instrument is to clarify the human rights obligations of business enterprises and facilitate the implementation of these obligations (art. 2.1). The Instrument places primacy of obligation on state parties who are required to “regulate effectively the activities of all enterprises within their territory, jurisdiction or otherwise under their control” (art. 6.1).
Art. 16 provides that states shall take all “necessary legislative, administrative or other action including the establishment of adequate monitoring mechanisms” to ensure implementation. Indeed, the Instrument envisions the creation of an International Fund for Victims to provide legal and financial aid (art. 15.7).
II. Efforts within National Law
We see a nascent effort to move obligations from voluntary regimes to obligations in domestic law. At this stage, the obligations are limited; however, with greater pressures from the public and with concerns about climate change, we might see further action. Listed below are examples of human rights obligations on businesses.
A. US: Uyghur Forced Labor Prevention Act (UFLPA)
Since the 1930 Tariff Act, the US has had legislation prohibiting products created by forced labor from entry into the country. However, carveouts allowed nearly all products to escape inquiry by the Government.
Over the past few years, the US Government has sought to enforce its regulations prohibiting the import of goods produced using forced labor through its increasing use of Withhold Release Orders by the US Customs and Border Protection Agency (“USCBP”) and its implementation of the Uyghur Forced Labor Prevention Act (“UFLPA”).[16]
Many Guidance documents on complying with these regimes reference the Guiding Principles and other international best practices such as human rights due diligence as methods of ensuring that a company’s supply chains practices comport with their responsibilities under the law.
The UFLPA came into effect on 21 June 2022.[17] It expands the scope of the US Government’s approach to prohibiting goods which it suspects were produced using forced labor from entering the US market.[18] The enforcement plan for the UFLPA creates a rebuttable presumption that all goods (or component parts of such goods) imported into the US that have a nexus to the Xinjiang region of China, or a list of restricted entities that use Uyghur labor, were produced under conditions of forced labor.[19]
The enforcement guidance states that US Customs and Border Protection “will implement an enforcement plan that identifies and interdicts goods from high-priority sectors that are found to have a nexus to production in Xinjiang, subsidiaries and affiliates of Xinjiang Production and Construction Corps, and any other producing entity found to utilize forced labor via a government-labor scheme.”[20]
The UFLPA applies to all imports into the US and, importantly, does not contain a de minimis exception. Thus, even if one button on a jacket has a nexus to Xinjiang, this shipment would be prohibited from entry. It also applies to manufacturers that use Uyghur labor in other areas of China if they are on the list of restricted entities. Its geographical scope is broader than the Xinjiang region.
If USCBP determines that products are within the scope of the Act, the evidentiary burden to rebut the presumption of forced labor is extremely high. There have not yet been any reports of importers successfully rebutting the presumption of forced labor. Rather, importers have focused on demonstrating to the USCBP that the subject goods do not fall within the scope of the Act, i.e., they have no nexus to Xinjiang and/or Uyghur labor.
B. Due Diligence Regimes in EU Countries
The European Commission has recently proposed a prohibition on the import and/or export of products that were produced using forced labor.[21] Although some EU countries require multinationals of sufficient size to establish a human rights due diligence framework to identify and prevent human rights abuses, others, including Germany[22]and France,[23] have implemented human rights due diligence regimes for international supply chains.
Companies which are subject to the regulations by virtue of their size (e.g., employee numbers or revenue) must conduct their operations in accordance with governments’ expanding ESG priorities. These companies, for instance, should develop contractual frameworks with their counterparties that solidify these requirements as obligations, particularly when their counterparties are not subject to similar ESG-type regulation. For example, Section 6 of the German Due Diligence law discusses implementing: (i) contractual assurances that suppliers will comply with human rights obligations; and (ii) contractual control mechanisms when abuses are discovered.
In February 2022, the European Commission made public its Draft Directive on the proposed standard for due diligence on human rights and environmental issues (the “EU Draft Directive”).[24] The EU Draft Directives applies to EU companies which have either (i) more than 500 employees and a net worldwide turnover of EUR 150 million, or (ii) more than 250 employees and a net world turnover of more than EUR 40 million provided 50% of the net turnover was in a “high risk” sector (such as textiles, clothing and footwear, agriculture, forestry, fisheries, and extraction of mineral resources among others). It also applies to non-EU companies which have either (i) net turnover of more than EUR 150 million in the EU, or (ii) net turnover of more than EUR 40 million but not more than EUR 150 million, provided that at least 50% of its net worldwide turnover was in a “high-risk” sector (art. 2). The EU Draft Directives lay down rules (i) on obligations for companies regarding actual and potential adverse impacts on human rights and the environment with respect to their operation, their subsidiaries, and the value chain operations, and (ii) on liability for violations of the obligations. The EU Draft Directive will be enforced by Member States that create supervisory authorities. These supervisory authorities can take remedial action, including the imposition of sanctions. When pecuniary sanctions are imposed, they are based on a company’s turnover (art. 20).
Conclusion
ESG obligations at the international and regional level remain at a nascent stage. With increased public focus and efforts by both the UN and the EU, however, we will likely see the creation of binding obligations that companies managing international supply chains will have to consider.
[*] Patrick Miller is the Founding Attorney of Impact Advocates APC, a law firm focused on international commercial dispute resolution, responsible supply chains and ESG-related matters. He is a strong advocate for ESG & social businesses and passionate about assisting these companies when they encounter commercial disputes. Kabir Duggal is an SJD Candidate at Harvard Law School and a Lecturer-in-Law at Columbia Law School. The views expressed are personal and the authors reserve the right to change the positions stated herein.
[1] See Colin Mayer, Leo E. Strine Jr. & Jaap Winter, 50 Years Later, Milton Friedman’s Shareholder Doctrine Is Dead, Fortune (Sept. 13, 2020), https://fortune.com/2020/09/13/milton-friedman-anniversary-business-purpose/.
[2] Scholars have referred to a “Galaxy of Norms” which includes both international conventions and national ‘hard law’ obligations. See, e.g., Elise Groulx Diggs, Milton C. Regan & Beatrice Parance, Business and Human Rights as a Galaxy of Norms, 50 Geo. J. Int’l L. 309 (2019).
[3] The Ten Principles of the UN Global Compact, United Nations, https://unglobalcompact.org/what-is-gc/mission/principles.
[4] About the UN Global Compact: Frequently Asked Questions, United Nations Global Compact, https://unglobalcompact.org/about/faq.
[5] The Ten Principles of the UN Global Compact, supra note 3, at Principles 1 and 2.
[6] Id. at Principles 3 to 10, available at: https://unglobalcompact.org/what-is-gc/mission/principles.
[7] United Nations Global Compact Website Cover page, U.N. Global Compact, https://unglobalcompact.org/.
[8] U.N. Econ. and Soc. Council, Sub-Comm’n on the Promotion and Prot. of Hum. Rts., Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003), https://digitallibrary.un.org/record/501576?ln=en#record-files-collapse-header.
[9] Pini Pavel Miretski ¶ Sascha-Dominik Bachmann, The UN ‘Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’: A Requiem, 17 Deakin L.R. 5, 8-9 (2012) (“Such explicit support for the Norms was accompanied by often fierce opposition from various states and the majority of the business community. Such opposition arose from the moment the Norms were formally introduced as a discussion paper after their approval by the Sub-Commission. Most states expressed strong reservations, emphasizing their determination not to depart from the traditional framework of international law, which stresses the central and pivotal role of the state as a legal subject of public international law. The Norms were eventually abandoned in 2005 and the task of regulating transnational corporate accountability was transferred to other UN organs.”) (internal citation omitted).
[10] Guiding Principles on Business and Human Rights, U.N. Office of the High Comm’r For Hum. Rts. (2011),https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf.
[11] In contrast, the 2011 OECD Guidelines for Multinational Enterprises provides for “National Contact Points” “to further the effectiveness of the Guidelines by undertaking promotional activities, handling enquiries and contributing to the resolution of issues that arise relating to the implementation of the Guidelines . . .” as well as the “Investment Committee” that shall “periodically or at the request of an adhering country hold exchanges of views on matters covered by the Guidelines and the experience gained in their application.” See Procedural Guidance, OECD Guidelines for Multinational Enter. 68 (2011), https://www.oecd.org/daf/inv/mne/48004323.pdf.
[12] Bear Creek Mining Corp. v. The Republic of Peru, ICSID Case No. Arb/14/21, Bear Creek’s Reply to the Amicus Curiae Submissions of Dhuma and Dr. Lopez ¶ 18 (Aug. 18, 2016).
[13] Daniel W. Kappes and Kappes, Cassiday and Associates v. Republic of Guatemala, ICSID Case No. ARB/18/43, Guatemala’s Counter-Memorial ¶¶ 1, 152 (Dec. 7, 2020).
[14] MetLife, Inc., MetLife Servicios S.A. and MetLife Seguros de Retiro S.A. v. Argentine Republic, ICSID Case No. ARB/17/17, Amicus Curaie Submission (Mar. 30, 2021), ¶ 90.
[15] Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Transnational Corporations and Other Business Enterprises, U.N. Open-Ended Intergovernmental Working Grp. on Transnat’l Corps. and Other Bus. Enter. With Respect to Hum. Rts. (2021), https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/LBI3rdDRAFT.pdf.
[16] Forced Labor, U.S. Customs and Border Prot., https://www.cbp.gov/trade/forced-labor.
[17] Strategy to Prevent the Importation of Goods Mined, Produced, or Manufactured with Forced Labor in the People’s Republic of China: Report to Congress, U.S. Dept. Homeland Sec. (June 17, 2022), at 8, https://www.dhs.gov/sites/default/files/2022-06/22_0617_fletf_uflpa-strategy.pdf.
[18] Id.
[19] Id. at v (“The UFLPA establishes a rebuttable presumption that goods mined, produced, or manufactured wholly or in part in Xinjiang or by an entity on the UFLPA Entity List are prohibited from U.S. importation under 19 U.S.C. § 1307.”).
[20] Id. at 19.
[21] Philip Blenkinsop, EU Proposes Banning Products Made With Forced Labour, Reuters (Sept. 14, 2022), https://www.reuters.com/markets/europe/eu-proposes-banning-products-made-with-forced-labour-2022-09-14/.
[22] See Lieferkettensorgfaltspflichtengesetz [LkSG] [Act on Corporate Due Diligence Obligations in Supply Chains], July 16 2021, https://www.bmas.de/SharedDocs/Downloads/DE/Internationales/act-corporate-due-diligence-obligations-supply-chains.pdf;jsessionid=71731FA3BE835852C39F24D5BEFF8C60.delivery1-replication?__blob=publicationFile&v=2.
[23] See French Duty of Vigilance Law – English Translation, Bus. and Hum. Rts. Res. Ctr. (Dec. 14, 2016), https://www.business-humanrights.org/en/latest-news/french-duty-of-vigilance-law-english-translation/.
[24] Just and Sustainable Economy: Commission Lays Down Rules for Companies to Respect Human Rights and Environment in Global Value Chains, Eur. Comm’n (Feb. 23, 2022), https://ec.europa.eu/commission/presscorner/detail/en/ip_22_1145.
Jan 19, 2023 | Content, Online Scholarship, Perspectives
SOFIA OLOFSSON
I. Introduction
In its judgement on 23 June 2022, the African Court of Human and Peoples’ Rights (the African Court) ruled that the Kenyan government must pay reparations for evicting Indigenous Ogiek people from their ancestral lands in the Mau Forest.[1] This landmark win for Indigenous Ogiek sets a precedent for other forcefully removed Indigenous people across Africa. Before diving into the significance of this judgement, an overview of the state of the law for the right to land contextualises the African Court’s decision.
II. The Right to Land
Many have drawn connections between the right to the land of Indigenous people and the right to life. Numerous cases from Africa support this notion. In the Democratic Republic of Congo, the population of the Batwa has halved in less than fifty years because its people cannot adapt to a lifestyle outside of their traditional forest-dwelling.[2] In Kenya, the life expectancy of the Ogiek has likewise significantly decreased due to difficulties adapting to a new way of life outside of traditional forest-dwelling.[3] In Tanzania, the Maasai “feel especially attached to the land”[4] because “without it, they cannot survive, especially since they do not also have the skill necessary for survival outside the pastoral sector.”[5]
According to human rights law instruments, the right to property encompasses land and land use. The Universal Declaration of Human Rights refers to the right to property, noting that “[e]veryone has the right to own property, alone as well as in association with others and no one shall be arbitrarily deprived of his or her property.”[6] Article 14 of the African Charter on Human and Peoples’ Rights (the African Charter) includes the protection of the legitimate expectation to obtain and peacefully enjoy the property of an individual, a group, and a people.[7] It also protects traditional custom and “land and other natural resources held under communal ownership” with imposed duties on the State to ensure the security of ownership to rural communities.[8] However, the protection of property is not absolute, and the State can give concessions in cases of public need or when it is in the general interest of the community.[9]
While the Indigenous and Tribal Peoples Convention 169[10] and the United Nations Declaration on the Rights of Indigenous Peoples recognize the indigenous right to land, the African Charter does not explicitly recognize it. Fortunately, though, the interpretation of other general rights in the African system helps deal with this lack of explicit indigenous rights. In recognizing the rights of Indigenous peoples, the collective rights to both wealth and resources in article 21[11] of the African Charter and the right to development in article 22,[12] as well as the right to property from article 14,[13] are of utmost importance.
This overview illustrates that the protection of Indigenous peoples’ right to land goes beyond the protection of property. If the right to land of Indigenous people closely relates to the right to life, this right should be non-derogatory and unable to be suspended in a state of emergency. Unfortunately, this is not the case: some states actively challenge Indigenous rights to land and forcefully-remove peoples to gain exclusive land ownership.
III. African Commission on Human and Peoples’ Rights v. Republic of Kenya
Since British colonial domination, the Ogiek have been forcibly displaced from their native grounds. Today, the Kenyan government asserts that evictions prevent deforestation of the Mau Forest, the largest remaining indigenous forest in Kenya, and that the land is under its authority for conservation purposes. The Mau Forest has been the subject of a 13-year legal dispute between the Indigenous Ogiek people and the Kenyan government over its ownership. In 2009, the community filed a petition to the African Commission on Human and Peoples’ Rights following a 30-day eviction notice.
In 2017, the African Court determined that Kenya breached seven articles of the African Charter due to evictions, namely: Article 1, Obligations of Member States; Article 2, The Right to Non-Discrimination; Article 8, The Right to Religion; Article 14, The Right Property; Article 17(2) and (3), The Right to Education; Article 21, Natural Resources; and Article 22, The Right to Development.[14] Finally, on 23 June 2022, the Court delivered its ruling on the issue of reparations.[15]
The African Court unanimously rejected the arguments of the Kenyan government and, in response to its 2017 ruling, ordered the State to compensate the Ogiek community $849,256 in moral damages[16] and $491,295 in material damages.[17] The Court refused to accept that forest protection justified eviction of the Ogiek. Rather, the Court found that the degradation of the Mau Forest resulted from other factors, including incursions, allocation to others, and logging.
This decision instructs Kenya to give the Ogiek community title to their land in the Mau Forest and consult with them on future development projects. Kenya must also work with the Ogiek to develop land-sharing and access agreements. This ruling emphasizes that the Kenyan government must “undertake an exercise of delimitation, demarcation, and titling to protect the Ogiek’s right to property. Securing their right to property, especially land, creates a conducive context for guaranteeing their continued existence.”[18]
Another significant milestone is the recognition of the Ogiek as an Indigenous people. The Court said that Kenya must take measures to guarantee the full recognition of the Ogiek as an Indigenous people of Kenya in an effective manner.[19]
Although the Court requested a report from Kenya on the implementation of its orders within 12 months, executing the ruling will be challenging, given that the Court does not have direct enforcement power over the Kenyan government.
IV. Practical Significance of the Case
The reparation judgement solidifies the historic verdict of 2017, which upheld the rights of the Ogiek over their ancestral land in Mau Complex. Considering the government-lead conservation practices that harm Indigenous peoples, this ruling also serves as a precedent for other pending cases.
The Batwa in the Democratic Republic of the Congo, the Maasai in Tanzania, and the Endorois in Kenya are only a few examples of Indigenous communities that have brought cases to the African Commission. All these cases concern violent evictions of Indigenous peoples from their lands to create protected areas, a global practice known as fortress conservation.
Despite victory in this case, there are many challenges ahead. The Maasai, for instance, can no longer directly access the African Court since Tanzania withdrew from it. Also, the experience of the Endorois illustrates enforcement challenges: 12 years after the African Commission ruling, the Endorois assert that Kenya has failed to follow through on the core recommendations of the Commission, including the right to land, access for ceremony and animal grazing and financial damages. [20]
The Court ruling indicates how governments should act to make amends to Indigenous populations. The Court made it clear that the survival of Indigenous people depends on safeguarding their rights to land and natural resources. Therefore, the Kenyan government must follow this decision and consult with the Ogiek in good faith and through their designated representatives to restitute the land, implement the remaining verdict, and restore the Ogiek’s rights.[21] Hopefully, this decision will provide a solid framework for analysing claims over Indigenous lands.
[1] The Matter of Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, Application No. 006/2012, ¶ 64 (June 23, 2022), https://www.african-court.org/cpmt/storage/app/uploads/public/62b/aba/fd8/62babafd8d467689318212.pdf.
[2] Albert Kwokwo Barume, Land Rights of Indigenous Peoples in Africa, IWGIA (2010), https://www.iwgia.org/images/publications/0002_Land_Rights_of_Indigenous_Peoples_In_Africa.pdf.
[3] Id.
[4] Id. at 56.
[5] Id.
[6] Universal Declaration of Hum. Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 17.
[7] Afr. Comm’n H.P.R., Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples Rights, ¶ 53
(1986).
[8] Id. ¶ 54.
[9] Id. ¶ 55.
[10] International Lab. Org., Indigenous and Tribal Peoples Convention, 27 June 1989, C169.
[11] Organization of Afr. Unity, Afr. Charter on Hum. and Peoples’ Rts., 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), art. 21.
[12] Id. art. 22.
[13] Id. art. 14.
[14] Organization of Afr. Unity, Afr. Charter on Hum. and Peoples’ Rts., 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), art. 8, 14, 17, 21, 22.
[15] Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, No. 006/2012, Decision, Afr. Comm’n H.P.R., ¶ 144-45 (May 26, 2017), https://www.escr-net.org/sites/default/files/caselaw/ogiek_case_full_judgment.pdf.
[16] Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, No. 006/2012, Afr. Comm’n H.P.R., ¶ 93 (June 23, 2022), https://www.african-court.org/cpmt/storage/app/uploads/public/62b/aba/fd8/62babafd8d467689318212.pdf.
[17] Id. ¶ 77.
[18] Id.¶ 115.
[19] Id. ¶ 126.
[20] Joseph Lee, Indigenous Endorois Fight for Their Land and Rights at UN, Grist (May 4, 2022), https://grist.org/global-indigenous-affairs-desk/indigenous-endorois-of-kenya-fight-for-their-land-and-rights-at-un/>.
[21] Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, No. 006/2012, Judgment on Reparations, Afr. Comm’n H.P.R., ¶ 144-45 (June 23, 2022), https://www.african-court.org/cpmt/storage/app/uploads/public/62b/aba/fd8/62babafd8d467689318212.pdf.
Cover photo: Doron, CC BY-SA 3.0 license.
Dec 24, 2022 | Content, Online Scholarship, Perspectives
PAVITRA KHAITAN & JVALITA KRISHAN*
I. Introduction
In the context of the rights of refugees within the framework of humanitarian and customary international law, the principle of non-refoulement is an essential form of protection. Non-refoulement “prohibits states from removing or transferring individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment, or other serious human rights violations.”[1] The 1951 Convention Relating to the Status of Refugees has enshrined the prohibition of refoulement in treaty law under Article 33. This provision bans a contracting party from returning a refugee in any manner to the borders of territories that are known to threaten the life and freedom of said refugee “on account of their race, religion, nationality, membership of a particular social group, or political opinion.”[2] Clause 2 of Article 33 provides for two exceptions if there are reasonable grounds for either regarding a refugee as a threat to the security of the country or the refugee as a danger to its community upon a final judgment convicting them of a serious crime.[3] This paper explores the importance of the non-refoulement principle and the complex ways in which states bypass its implementation. It also sets out to prove non-refoulement as an obligation erga omnes partes for state parties to the Convention. The resultant inference is that state parties to the 1951 Refugee Convention may bring a suit to the International Court of Justice (ICJ)[4] against any nation in violation of the principle of non-refoulement.
II. Non-refoulement Compliance During COVID-19
The non-refoulment principle has been evaded by several states in recent years as governments halted migration procedures to prevent the spread of COVID-19. These policies left no exception for those seeking refuge.[5] For example, the Belgian government introduced measures effectively suspending refugees’ right to seek refuge on account of the coronavirus. It then created an online registration system that caused lengthy wait times for refugees seeking an appointment with concerned officials.[6] And several reports and interviews of asylum-seekers conducted by Human Rights Watch show that Greek law enforcement officials coordinated returns of asylum-seekers to Turkey, where they were then placed on small inflatable rafts and set adrift in Turkish territorial waters.[7] Both these countries are signatories to the Convention. The U.N. High Commissioner for Refugees (UNHCR) opined in its advisory capacity that non-refoulement constitutes a non-derogable provision of international refugee protection but that the application of the two categories of exceptions whereby the refugee is considered a danger to the security of the country or a final judgement convicting the refugee of a serious crime renders them a danger to the community of the country requires an individualised determination by each country in which the refugee seeks asylum.[8]
However, the exceptions do not extend to a pandemic circumstance that warrants a blanket policy of turning away all refugees without assessing their claims.[9] UNHCR declared that “the imposition of a blanket and indefinite measure against the admission of all asylum seekers, or of those of a particular nationality, could lead to a risk of the violation of the principle of non-refoulement.”[10] The UNHCR further added that in case of a confirmed public health crisis such as the ongoing pandemic, alternative available measures such as the implementation of quarantine and isolation to manage the safe arrival of asylum-seekers must be considered to continue safeguarding the right to seek asylum and the principle of non-refoulement.[11] Thus, states that are parties to treaties with provisions relating to non-refoulement such as the 1951 Refugee Convention and Protocol of 1967 relating to the Status of Refugees (which creates an obligation to process asylum claims) must prioritise compliance with their treaty obligations by ensuring that refugees are not returned to their countries of origin if such return would pose a threat to their well-being while also imposing pandemic health protocol measures.[12] The least a state under these obligations can do is grant the refugee temporary admission until states take on greater collective responsibility to share the role of the protection of refugees.[13]
III. General Methods to Evade Compliance
Mechanisms utilized by states to restrict the entry of asylum-seeking refugees do not only limit themselves to pandemics. Consider the track record of states that are parties to treaties containing a refoulement prohibition and refugee rights. Belgium in the 1990s had a ninety percent rejection rate of asylum-seekers at its borders and an extraordinarily high threshold of eligibility aimed at preventing illegal immigrants. These barriers were so severe that genuine refugees were discouraged from approaching the state through elaborate institutional mechanisms and preferred entering illicitly.[14] Similarly, members of the European Union (EU) have imposed unrealistic visa requirements for states that produce refugees such as Romania, Sri Lanka, and Iraq.[15] The Schengen Border Control (SBC) regulation which governs the border control of persons crossing the external borders of EU member states is silent on the definition of ‘refugees and persons seeking international protection.’[16] The effect of this is that refugees are assimilated into the general ‘third-country national’ category and are subjected to criterion under Article 6 of the SBC which include possession of valid travel documents and proof of their intention and ability to return to their country of origin prior to the expiry of their permitted duration of stay.[17] Such conditions imposed on refugees whose documentation status and departure from the country often remains indeterminable, results in the pre-emptive gatekeeping of persons of specific nationalities and their right to seek asylum. The phenomenon of refugees irregularly moving from the country where they have received protection to seek permanent settlement or asylum elsewhere came about owing to the unavailability of long-term educational and employment opportunities that promote local integration and resettlement of refugees.[18] The concept of “safe third country” was created to address the destabilising effect of such irregular movement on the organised international efforts to protect refugees[19] but conveniently denies the vetting of asylum requests due to the mere fact of such a refugee having previously transited a country deemed safe.[20] Germany’s policy is one such example that sent refugees back to the transit country without any verification of the existence of proper asylum procedures and protection of refugees.[21]
The “non-suspensive effect” is another problematic mechanism by which states like Austria, France, and Sweden absolve themselves of the responsibilities of integrating refugees into their jurisdiction. The non-suspensive effect arises because refugees who appeal the decision denying them entry cannot remain in the country during the pendency of the appeal, and are therefore forced to remain illegally as their lives are threatened in their country of origin.[22] States even go so far as to confine their interpretation of the definition of refugees to only include those facing persecution from the state,[23] when reality many asylum-seekers face life-threatening danger from non-state agents such militant extremist groups. The currently unrecognised de facto Taliban government that effectively reoccupied Afghanistan in 2021 is just one example.[24] Nowhere in Article 33 does the provision specify that the threat to the life and freedom asylum-seekers must emerge from state persecution alone. Such a restrictive understanding of the prohibition of non-refoulement is violative of a refugee’s right to seek asylum and find recourse in state parties to the convention. It is also inconsistent with the purpose of the Convention: to safeguard refugees’ rights.
State parties to the Convention bend their conduct to cater to versions of non-refoulement that favour their interests. This makes it crucial to ensure a level of compliance to prevent arbitrary violations of human rights. Before discussing whether the non-refoulement principle is an obligation erga omnes partes, it is essential to gain a clear understanding of the concept. In contrast to obligations erga omnes owed to the international community as a whole, obligations erga omnes partes are specifically confined to a group of states—typically state parties to a multilateral convention with a common interest.[25] The common interest implies that violations of such obligations create a legal interest in all other state parties to ensure the protection of the associated rights.[26]
IV. The Test to Establish an Erga Omnes Partes Obligation
In Belgium v. Senegal, the International Court of Justice laid down the test to determine whether an obligation is an obligation erga omnes partes.[27] The Court must consider whether being a state party to the Convention is sufficient for a State to be able to bring a claim to the court regarding the violation of an obligation of the treaty. Determining whether an obligation constitutes an obligation erga omnes partes requires ascertaining first, the object and purpose of the treaty; second, that the state parties have a common interest in compliance with the obligations laid down by the treaty; and third, whether the particular obligation in question was incorporated to fill this purpose of the treaty as determined.[28] We will now apply this test to the obligation of non-refoulement under the Refugee Convention.
First, the object and purpose of the Refugee Convention is to provide refugees with basic rights and freedoms. The Vienna Convention on the Law of the Treaties allows emphasis to be placed on the Preamble of a treaty whilst determining its object and purpose.[29] Inspecting the preamble to the Refugee Convention, it declares that all state parties to the Convention must endeavour to assure refugees the exercise of their fundamental rights. The object and purpose of the Convention is hence to assure the widest possible exercise of fundamental rights and liberties of refugees through international cooperation.[30] The adoption of this treaty was to guarantee the refugees these rights in human and equitable terms.[31] Further, the Vienna Convention allows us to place reliance on the preparatory material to the convention.[32] The Travaux Préparatoires of the Convention showed that there was a recognition that the foundation of the Convention is to place refugees on equal footing with the citizens of the countries of refuge.[33] The intention of the Convention includes the will of the state parties to be bound by the principle of non-discrimination with reference to the treatment of refugees.[34] The returning of a refugee to a nation where his life or freedom would be threatened on account of his race or religion would be equivalent to delivering him into the hands of his persecutors. We can thereby conclude that the object and purpose of the Refugee Convention is to provide refugees with their basic human rights and liberties.
Second, we must determine that state parties have a common interest in complying with the obligations laid down by the treaty. In Belgium v. Senegal, the International Court of Justice held that all parties to the Convention Against Torture have a “common interest” to comply with the obligation to prosecute alleged perpetrators of acts of torture even if the alleged torturer or victim have no connection with the state parties.[35] These states can be said to have a “legal interest” in these erga omnes partes obligations. The obligations in question are owed to all parties of the convention.[36] Applying the same reasoning to the Refugee Convention, states have a common interest in the protection of fundamental human rights thus including an interest to protect the fundamental rights and liberties of refugees. Human rights treaties are of such nature that a state has obligations to all state parties, notwithstanding their nexus to the State violating the treaty.[37] This provides state parties with an obligation to call upon state parties and demand compliance.[38] Human rights treaties are not concluded on the basis of reciprocity, instead they are “series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties.”[39] From this, one can conclude that all human right treaties are erga omnes partes in nature.[40]
Further, the International Court of Justice has previously compared the provisions of the Convention Against Torture to the Convention of the Prevention and Punishment of the Crime of Genocide since in both conventions “the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention.”[41] The same is true of the Refugee Convention, where the common interest element is the protection of fundamental human rights for refugees. This common interest to ensure that any violator who does not abide by the objective of the refugee convention does not enjoy impunity directly implies that obligations under the Convention are owed by each state party to all the other state parties.[42] Obligations created to protect the collective interest of a group of states are established with the intention of “transcending the ‘sphere of the bilateral relations of the State parties,’” thereby creating obligations of a multilateral nature.”[43] The common interest in compliance with the relevant obligations of the Refugee Convention gives rise to the entitlement of each state party to the Convention to invoke the responsibility of another state to make a claim concerning the cessation of an alleged breach by another state party.[44] Since no special interest is required for this purpose, the relevant obligations can be said to be of an erga omnes partes character.
Third, the obligation of non-refoulement can be incorporated to fulfil the purpose of the Refugee Convention. Obligations erga omnes partes are those obligations that are so integral to the subject and purpose of the treaty that no reservations or derogations are permissible.[45] The Refugee Convention is underpinned by the fundamental principle of non-refoulement.[46] Article 33 lays down this paramount obligation. And as per Article 42, no reservations or derogations are permissible to Article 33. It is so paramount that the UNHCR has noted that “the principle of non-refoulement is a norm of customary international law based “on a consistent practice combined with recognition on the part of nations that the principle has a normative character.”[47] The principle of non-refoulement is the cornerstone of asylum and of international refugee law.[48] As stated in Article 33, the Convention prohibits the return or expulsion of refugees (“refouler”) to a country where the refugee’s life or freedom is threatened.[49] The party States to the 1951 Convention and the 1961 Protocol have acknowledged that “the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of non-refoulement,” as embedded in customary international law.[50] The protection of the principle of non-refoulement is essential to defending the common interest of the exercise of basic fundamental rights as established in the Convention. If the principle is violated, there exists a “real and imminent risk of irreparable prejudice” of the values and interests advocated by the treaty.[51]
The object and purpose of the Refugee Convention may be frustrated by a breach of this principle by any one state. The fundamental nature of non-refoulement as a cardinal principal has been reaffirmed by the Executive Committee of the UNHCR and the United Nations General Assembly.[52] In 1980, the UNHCR Executive Committee [r]eaffirmed the fundamental character of the generally recognized principle of non-refoulement.’[53] Its 1991 conclusions reiterated ‘the primary importance of non-refoulement and asylum as cardinal principles of refugee protection’.[54] The vitality of non-refoulement within the aegis of refugee protection has also been express by the United Nations General Assembly in multiple resolutions.[55] The obligation of states to abide by the principle of non-refoulement and not send refugees back to the host nation when there exists danger to the refugee’s life is essential to fulfilling the aim of the Refugee Convention. Therefore, the principle is of the erga omnes partes nature insofar that all State parties ought to have a legal interest in others’ compliance with this obligation.[56]
V. Conclusion
The proving of non-refoulement as an obligation erga omnes partes in the capacity of the Refugee Convention automatically mandates that any nation party to the convention may bring a nation in violation of this obligation to the International Court of Justice. It confers on state parties to the convention, therefore, an obligation to not turn away any refugees seeking aslyum. With this establishment, the enforceability of non-refoulement obligations is thus enhanced, enabling a better likelihood of the safeguarding of persecuted refugees’ rights in the tumultuous global socio-political landscape.
[1]The Principle of Non-Refoulement Under International Human Rights Law, United Nations High Comm’r for Hum. Rts.,https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf .
[2] Convention Relating to the Status of Refugees 1951 Art 33, Apr. 22, 1954, 189 U.N.T.S 150.
[3] Id.
[4] Id. at Art. 38.
[5] See Oona Hathaway, Covid-19 and International Law: Refugee Law- The Principle of Non-Refoulement, Just Sec. (Nov. 30, 2020), https://www.justsecurity.org/73593/covid-19-and-international-law-refugee-law-the-principle-of-non-refoulement/.
[6] See id.
[7] Greece: Investigate Pushbacks, Collective Expulsions. EU Should Press Athens to Halt Abuses, Hum. Rts. Watch (Jul. 16, 2020), https://www.hrw.org/news/2020/07/16/greece-investigate-pushbacks-collective-expulsions .
[8] See Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, Advisory Opinion, United Nations High Commissioner for Refugees, (Jan. 26, 2007).
[9] See Hathaway, supra note 4.
[10] UNHCR Legal Considerations with Regard to the EU Commission´s Guidelines for Border Management Measures to Protect Health and Ensure the Availability of Goods and Essential Services, United Nations High Comm’r for Refugees (Mar. 18, 2020).
[11] Id.
[12] See Hathaway, supra note 4.
[13] See Salvo Nicolosi, Non-refoulement During Health Emergency, EJIL: Talk! (May 14, 2020), https://www.ejiltalk.org/non-refoulement-during-a-health-emergency/.
[14] See Christiane Berthiaume, Measures Imposed by European Governments to Stem the Tide of Illegal Immigrants are Threatening the Very Foundations of Asylum, Refugees, 1 Sept. 1995, https://www.unhcr.org/en-in/publications/refugeemag/3b543cb84/refugees-magazine-issue-101-asylum-europe-asylum-under-threat.html .
[15] See id.
[16] Juan Fernando López Aguilar, Humanitarian Visas, Eur. Parliamentary Rsch. Serv. (Jul. 2018)https://www.europarl.europa.eu/cmsdata/150782/eprs-study-humanitarian-visas.pdf 19.
[17] Id at 20.
[18] See Conclusions Adopted by the Executive Committee on the International Protection of Refugees, United Nations High Comm’r for Refugees (Dec. 2009) https://www.unhcr.org/en-my/578371524.pdf 77
[19] Id.
[20] See Nicolosi, supra note 13.
[21] Id.
[22] Id.
[23] Id.
[24] See Ben Saul, “Recognition” and the Taliban’s International Legal Status, Int’l Ctr. for Counter-Terrorism (Dec. 15, 2021) https://icct.nl/publication/recognition-talibans-international-legal-status/.
[25] See Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgement, 2012 I.C.J 422 ( Jul. 20).
[26] See id.
[27] Id.
[28] Id.
[29] See Vienna Convention on the Law of the Treaties art. 31, May 23, 1969, 1155 U.N.T.S 331.
[30] See Economic and Social Council Res. 1950/319 (Aug. 16, 1950).
[31] See U.N. ESCOR, 11th Sess., 158th mtg., U.N. Doc. E/AC.7/SR.158 (Aug. 15, 1950).
[32] See Vienna Convention on the Law of the Treaties, supra note 29.
[33] See Paul Weis, The Refugee Convention, 1951, The Travaux Préparatoires Analysed with a Commentary by the Late Dr. Paul Weis (1995).
[34] Id.
[35] Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), supra note 25.
[36] Id.
[37] See H.R.C. General Comment No. 31, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004), ¶2; Dinah Shelton, The Oxford Handbook of International Human Rights Law 510 (2013); Walter Kälin and Jörg Künzli, The Legal Nature of Human Rights Obligations, in The Law of International Human Rights Protection (2d. ed., 2019) 86.
[38] See id.
[39] Jean S. Pictet, The Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: Int’l Comm. Of the Red Cross ed., 1958), comments on common Article 1.
[40] Erika de Wet, The International Constitutional Order 55 (Cambridge University Press ed., 2008).
[41] Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, 1951 I.C.J. Rep 15, ¶ 23 (May 28).
[42] See Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), supra note 25.
[43] Linos-Alexander Sicilianos, The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility, 13 Eur. J. Int’ L. 1127, 1135 (2002).
[44] See Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), supra note 25.
[45] Vienna Convention on the Law of Treaties art. 19(c), May 23, 1969, 1155 U.N.T.S 331; Pok Yin Stephenson Chow, On Obligation Erga Omnes Partes. 52 Georgetown J. Int’l L. 469 (2020).
[46] Weis, supra note 33.
[47] Commentary on The Refugee Convention 1951 Articles 2-11, 13-37, United Nations High Comm’r for Refugees (1997).
[48] United Nations High Comm’r for Refugees, Note on the Principle of Non-refoulement, U.N. Doc EC/SCP/2 (23 August 1977).
[49] Refugee Convention 1951 art 33, Apr. 22, 1954, 189 U.N.T.S 150.
[50] Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States Parties, Geneva, Switzerland, 12-13 Dec. 2001, U.N. Doc. HCR/MMSP/2001/09, (16 Jan. 2002).
[51] Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukr. v. Russ.), Provisional Measures, 2017 I.C.J. Rep. 104, ¶ 63 (Apr. 19).
[52] UNHCR EC Conclusion No.79 ¶ (i) (1996); G.A. Res. 51/75, ¶ 3 (Feb 12, 1997).
[53] UNHCR EC Conclusion No.17 ¶ (b) (1980).
[54] UNHCR EC Conclusion No. 65 ¶ (c) (1991).
[55] See G.A. Res. 48/116, ¶ 3 (24 Mar., 1994); G.A. Res., 49/169 ¶ 4 (Feb. 24, 1995); G.A. Res. 50/152, ¶ 3 (Feb. 9, 1996); G.A. Res. 51/75, ¶ 3 (Feb. 12, 1997).
[56] See Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), supra note 25.
Cover photo: Mstyslav Chernov/Unframe, CC BY-SA 4.0 license.
May 24, 2022 | Content, Online Scholarship, Perspectives
ANOUSH BAGHDASSARIAN*
I. Introduction
One year ago, on April 24th, 2021, President Biden did what no U.S. President had done before and recognized the atrocities committed against the Armenian population by the Ottoman Empire in 1915 as genocide. Descendants of Armenian Genocide survivors living in the United States, scholars, attorneys, and others close to the Armenian community, saw this acknowledgement as a step towards accountability.[1] Not only did this recognition place political pressure on Turkey[2] and offer a moral sense of redress through the recognition of the victims’ dignity, but it also opened doors for strategic litigation in U.S. courts that had been closed previously. Before Biden Administration’s recognition, many claims brought in U.S. courts seeking redress for harms suffered in connection to the Armenian Genocide were unsuccessful because the executive branch had not clearly designated the 1915 events as genocide. Without this designation, the judiciary often cited the “act of state doctrine”[3] or similar principles of deferring to the executive with regard to matters of foreign affairs, to dismiss Armenian Genocide cases before reaching their merits. Now that this obstacle to Armenian Genocide litigation has been removed with U.S. official recognition, litigants can try to bring Armenian Genocide claims again in U.S. courts with hope to reach the merits stage. Even without guarantee to win on the merits, the ability to reach this stage gives litigants both a greater chance of success as well as a sense of fairness in that their claims will be decided on the basis of their strength in law and will be less influenced by geopolitics.
Through an examination of the trajectory of Armenian Genocide litigation in the United States, this Article addresses the legal significance of U.S. genocide designations, a particularly timely analysis. In just the past year the United States has officially declared three atrocities genocide: the Ottoman Empire’s Genocide of the Armenians,[4] China’s Genocide of the Uyghurs,[5] and Myanmar’s Genocide of the Rohingya.[6] Not only is such recognition important for upholding human dignity and signaling the United States’ intolerance for impunity, but it also opens possible avenues for accountability and redress in the United States. Even if litigation for the Armenian Genocide may be limited given the fact that over a century has passed since its perpetration and evidence may be stale, lacking, or inadmissible, a review of the ways in which recognition for the Armenian Genocide could have propelled failed cases forward shed light on the importance of recognition for other potential genocide-related litigation in the United States for ongoing genocides today.
II. History of U.S. litigation involving the Armenian Genocide: “Impermissibly Intruding on Foreign Affairs”
For the past 100 years, creative lawyers have attempted to bring cases in the United States for descendants of Armenian Genocide survivors, mostly against banks or life insurance groups. Oftentimes those cases would fail: without the executive branch’s recognition (or even after the legislative branch’s recognition in 2019[7]), the judiciary hesitated to deem the killings of 1915 a genocide through its decisions. Courts would often decide that the nature of the 1915 events was not yet fully settled by the executive and fell outside the judicial powers, thereby hindering certain avenues for justice for descendants of those affected in the Genocide. This Section reviews some of those failed cases implicating lack of U.S. recognition of the Armenian Genocide as one of the reasons for dismissal, in order to better understand the legal implications of President Biden’s designation of the 1915 massacres of 1.5 million Armenians as genocide.
Courts have long recognized that foreign affairs are a matter to be left to the executive branch. The Constitution reserves exclusively to the federal government the power to make and resolve war, including the power to legislate restitution and reparations claims.[8] Within the ambit of the executive’s foreign affairs power is the legal designation of a mass killing as genocide. In Sarei v. Rio Tinto, PLC, the dissenting judge articulates the broad scope of this power:
“The political branches may choose to take no action against terrible evils to preserve essential alliances, as they did with respect to the Soviet Union during World War II; to avoid entanglements that would cost blood and money despite the justice of the cause, as with the Rwandan genocide; to avoid giving offense to regimes whose votes are useful to us in the United Nations or whose disinvestment in treasury securities would damage our economy; and to avoid ejection of our military bases from foreign territory if we characterized their history in an offensive manner, as with the Armenian genocide by Turkey. These political decisions are not pretty, but they are an integral part of the management of foreign affairs, and this task is for good reasons not assigned to the judiciary.”[9]
The court’s concern of impermissibly intruding into foreign affairs is what has stopped many U.S. cases related to the Armenian Genocide before they could reach an assessment on the merits. This Part will review four cases: Deirmenjian v. Deutsche Bank A.G.;[10] Bakalian v. Central Bank of Republic of Turkey;[11] Movsesian v. Victoria Verischerung A.G.;[12] and Davoyan v. Republic of Turkey.[13]
A. Deirmenjian v. Deutsche Bank A.G.
In Deirmenjian, California residents of Armenian descent filed a putative class action against German banks operating in Turkey, alleging that the banks withheld money from Armenian account holders following the Armenian Genocide.[14] The defendants claimed that “as a matter of Turkish … and international law the Republic of Turkey is the successor state of the Ottoman Empire,” and it “has not disavowed its acts.”[15] As a consequence, the defendants argued, adjudication of the action could interfere with the United States’ relations with Turkey. The court engaged in a choice of law analysis and decided that Turkish law would apply to the claims, rather than U.S. or, more specifically, California law.[16] The choice of law analysis is consequential. California Code of Civil Procedure poses no statute of limitation on actions brought to recover money or other property deposited with any bank.[17] Thus, under California law, the plaintiffs’ claims would likely not have been time-barred. Conversely, under Turkish law, the claims were time-barred after ten years, and thus the plaintiffs found no recourse.[18]
The choice of law analysis included a governmental interest test. First, the court examined each jurisdiction’s interest in applying its own law to the particular case to determine whether a true conflict existed.[19] Then, the court evaluated and compared the nature and strength of each jurisdiction’s interest to determine whose interest would be more impaired if its policy was subordinated.[20] In carrying out this analysis, the court worried whether its decision would disrupt U.S. relations with Turkey. To prove the possibility of disruption, the defendants cited the fact that in 2000, several former executive officials wrote to the Chairman of the House Committee on International Relations and urged the defeat of a bill that would have officially categorized the Armenian tragedy as genocide.[21] The appellate court ultimately decided that Turkey’s interests in applying its laws to conducts that occurred within its borders and in regulating companies doing business there predominated over California’s interests in applying its law.[22] This finding only served to reinforce judicial hesitation in ruling on cases regarding redress for the Armenian Genocide.
B. Movsesian v. Victoria Verischerung A.G.
Not only are federal courts presumed to relegate any foreign affairs matters to the executive, but states are too.[23] Under the Supremacy Clause, the Constitution and acts of Congress preempt state law.[24] State law therefore must yield to federal law where: (1) an express provision for preemption is included in federal law; (2) federal law was intended to occupy the relevant field; or (3) state law conflicts with federal law.[25] Under this formulation, a state law that interferes with foreign affairs may be unconstitutional if it “may disturb foreign relations.”[26] However, a state law with no more than an “incidental or indirect effect in foreign countries” would be valid.[27] This is known as the “incidental effects test,” whose application the Supreme Court[28] and several circuits have addressed, one example of which is Movsesian.
In Movsesian, the Ninth Circuit held that a California statute vesting state courts with jurisdiction over insurance actions by Armenian Genocide victims and extending the statute of limitations for victims’ claims was unconstitutional. It found that the statute at issue had “more than some incidental or indirect effect” on foreign affairs because it established “a particular foreign policy for California — one that decrie[d] the actions of the Ottoman Empire and [sought] to provide redress for ‘Armenian Genocide victims’ by subjecting foreign insurance companies to lawsuits in California.”[29] Ultimately, the Ninth Circuit held that the California Armenian Genocide insurance statute impermissibly intruded on foreign affairs by “impos[ing] the politically charged label of ‘genocide’ on the actions of the Ottoman Empire (and, consequently, present-day Turkey),” and by requiring courts to make a “highly politicized inquiry” into whether a policyholder “escaped” the Ottoman Empire “to avoid persecution”.[30] The court further said,
“The passage of nearly a century since the events in question has not extinguished the potential effect of section 354.4 [of the California Code of Civil Procedure: Armenian Genocide victims; insurance policy claims; waiver of statute of limitations] on foreign affairs. On the contrary, Turkey expresses great concern over the issue, which continues to be a hotly contested matter of foreign policy around the world.”[31]
Later cases have cited Movsesian as a representative case for the principle that a state could be deemed to have intruded impermissibly on foreign affairs by “express[ing] a distinct point of view on a specific matter of foreign policy” and “send[ing] a political message on an issue of foreign affairs by providing relief and a friendly forum to a perceived class of foreign victims.”[32] However, when the federal government designates an atrocity as genocide, such concerns of intruding impermissibly on foreign affairs cease to exist because the act of state defense does not extend to acts of genocide — which constitute a “‘clear and unambiguous’ violation of the law of nations.”[33] Thus, the California statute in Movsesian might not have been preempted had the genocide designation been in place at the time.
C. Davoyan v. Republic of Turkey
Davoyan, a case brought around the same time as Movsesian, furthered this hesitancy to reach the merits of Armenian Genocide-related cases absent of U.S. designation of the atrocities as genocide. In Davoyan, grandchildren of Armenians and former Turkish citizens brought a putative class action against the Republic of Turkey and Central Bank of the Republic of Turkey, alleging that their grandfathers were deprived of citizenship, deported, and had their property seized and expropriated by Turkey or its predecessor government under the Ottoman Empire.[34] Similar to Movsesian, the Davoyan court declines to decide this case because they did not wish to answer the question of whether the events of 1915 were genocide. The court concluded,
“In either case, [referencing Movsesian], allowing the lawsuit to proceed would involve judicial interference in foreign relations—here because establishing that ‘genocide’ occurred is a jurisdictional prerequisite. In light of the political question doctrine and analogous Ninth Circuit precedent, this Court cannot resolve such an inherently political question that our Constitution reserves for the other two coordinate branches of government. Therefore, this lawsuit must be dismissed.”[35]
It is clear that a case like Davoyan would have been able to move further along had the genocide designation already been in place.
D. Bakalian v. Central Bank of Republic of Turkey
Most recently in Bakalian, grandchildren of Armenians and former Turkish citizens brought a putative class action against two Turkish national banks, similarly seeking compensation for property taken from their ancestors. They brought the case under the Foreign Sovereign Immunities Act (FSIA), which establishes the limitations on whether a foreign sovereign nation may be sued in U.S. courts.[36] While foreign sovereigns enjoy jurisdictional immunity by default, exceptions exist under the FSIA.[37] One of these exceptions is the expropriation exception, which grants U.S. courts jurisdiction over foreign states in cases where rights in property taken in violation of international law are at issue.[38]
Although the court in Bakalian did not reach the substantial legal questions concerning FSIA jurisdiction, it did raise an important question, of whether the judiciary could be the first branch to decide that a genocide has occurred. The court rested its decision “on a straightforward statute of limitations determination” and found that the plaintiffs’ claims were time-barred.[39] Otherwise, the court further elaborated, it would have had to decide “a complex issue of first impression: whether the FSIA necessarily authorizes the judiciary to decide in the first instance whether a genocide has occurred even if a foreign state denies that it has.”[40] The genocide determination was critical in this case because it was necessary to allow the cause of action to properly fall within the expropriation exception. For many years, including when Bakalian was decided, there was a judge-made exception to the FSIA in which courts had interpreted the expropriation exception to incorporate international human rights law. Thus, some courts held that a state’s systematic expropriation of its nationals’ property in conjunction with an alleged genocidal scheme could establish jurisdiction under the FSIA’s expropriation exception.[41]
While this legal path could have been available for descendants of Armenian Genocide survivors just a few months prior to President Biden’s official recognition, it is unfortunately cut off by a quiet ruling by the Supreme Court in February 2021.[42] In Germany v. Philipp, the Court held that the expropriation exception to the FSIA does not cover expropriations of property belonging to a country’s own nationals, on the reasoning that the expropriation exception is tied to the international law of expropriation specifically, and does not incorporate broader international law, including human rights law.[43] Under international human rights law, including laws prohibiting genocide, there might be a cause of action against a sovereign in a foreign court; by contrast, under the international law of expropriation, a foreign sovereign’s taking of its own nationals’ property — that is, a domestic taking — remains a domestic affair.[44] Thus, descendants of those Armenians who were citizens of the Ottoman Empire and whose property was taken by the Ottoman Empire would not be able to use this exception to hold the Turkish government or its instrumentalities accountable for their ancestors’ loss of property since the Supreme Court held that the expropriation exception excludes domestic takings.
III. Conclusion
While the expropriation exception of the FSIA may no longer be a viable litigation avenue, there are still available paths for genocide litigation in the United States through civil federal statutes like the Alien Tort Statute,[45] possible criminal prosecution under the Genocide Statute,[46] and both primary and secondary liability state law tort claims, including negligence per se, intentional infliction of emotional distress, unjust enrichment, conspiracy, aiding and abetting of wrongful death, assault, battery, and more. In each of the four cases discussed above, an official genocide designation by the United States would have likely helped the cases go further and preserved the plaintiffs’ day in court.
This can be seen in one comparative case currently being litigated in New York, Kashef v. BNP Paribas. The plaintiffs brought this case against a French corporation for aiding and abetting the Sudanese regime in its perpetration of genocide and raised twenty tort claims under New York law.[47] The atrocities that took place in Sudan are widely known and have been condemned by the United States as genocide.[48] The Second Circuit held that the act of state doctrine does not apply,[49] because “international law does not recognize an act that violates jus cogens as a sovereign act.”[50] In other words, acts of genocide and other atrocities allegedly committed by the Sudanese government violated jus cogens norms[51] and thus could not be considered “official acts” of Sudan.[52]
Kashef demonstrates how genocide recognition can help defeat the act of state doctrine defense. According to the district court, the act of state doctrine also bars claims against private entities if an inquiry into “the motives of [a] foreign government” is necessary to determine whether the defendant’s alleged conduct caused the plaintiff’s injury.[53] Thus, to impose secondary liability on BNP Paribas, the court held that it would need to conclude that the Sudanese government engaged in tortious conduct within its territorial boundaries against its own people, and having an official genocide determination is certainly one way to do that.[54]
The Kashef case demonstrates a way forward for accountability for jus cogens violations through state tort law against corporations or banks operating within and beside those sovereign states. In this scenario, foreign sovereign immunity might not pose a bar. To the extent that banks or corporations are not agents or instrumentalities of the state, they are not immune from jurisdiction in the United States. Even for national banks which are considered to be state agents or instrumentalities, the commercial activities exception under the FSIA might help absolve that immunity. The commercial activities exception applies when a cause of action is based on (1) a commercial activity carried on in the United States by the foreign state; (2) an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or (3) an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.[55] Numerous foreign banks and corporations have been held to lack immunity through this exception, and it is reasonable to expect the same exception to continue to apply in similar situations.[56] Thus, with ways around immunity and the act of state doctrine, genocide litigation has a foreseeable path forward in the United States.
While the same reasoning may well be true for litigation of Armenian Genocide claims, the United States perhaps does not intend the recognition to implicate any FSIA exceptions. Tellingly, the State Department said that “[t]he President’s recent statement was not intended to impact Turkey’s sovereign immunity from the civil jurisdiction of United States courts.”[57]
However, as Davoyan demonstrated, new statutes can be written to preclude the statute of limitations from another country, and state courts are bound by their state law unless the statute is unconstitutional. Now this specific California statute might be favored over foreign law because it may not raise as many red flags as before the recognition. Movsesian would have moved further without the determination of a “highly politicized inquiry” of the genocidal nature of the 1915 events. The same was true for Bakalian.
Just the idea that the official genocide recognition could open legal avenues that were closed due to the lack of genocide designation, is a striking testament to the importance of political will in order for certain legal avenues to be available. Official genocide designations have a value and significance that can be felt tangibly within the law, in addition to the intangible added political pressure along with the catharsis in feeling a sense that the victims and survivors’ dignity has been at least partially restored.
Official U.S. recognition/designation is particularly important for the ongoing human rights abuses and genocides in Myanmar and China today, as recourse to those countries’ legal systems are clearly unavailable and any complicity that can be litigated in U.S. courts can help provide some form of redress to those affected by the conflicts in real time. In recent history, such designations have been retroactive, leaving little recourse for those who suffered and only opening narrow avenues for litigation after the fact. However, designations as the crimes are happening are critical to stopping them and preventing more harm while we still can. In the field of U.S. human rights litigation, legal avenues are often blocked in the absence of political will. Hence, it is important to note the legal significance that comes from designations of ongoing genocides to identify how U.S. litigation can be a valuable avenue for efforts of redress and accountability today and in the future.
[1] See, e.g., Miriam Berger, What it means for the U.S. to recognize massacre of Armenians as genocide, Washington Post (Apr. 24, 2021), https://www.washingtonpost.com/world/2021/04/22/armenia-genocide-recognize-biden-turkey/.
[2] See, e.g., Natalie Longmire-Kulis, Recognizing the Armenian Genocide Marks a Historic Turning Point in American Foreign Policy, Just Sec. (Apr. 25, 2021), https://www.justsecurity.org/75881/recognizing-the-armenian-genocide-marks-an-historic-turning-point-in-american-foreign-policy/.
[3] The act of state doctrine prohibits courts from sitting in judgment of another government’s acts. See generally, John Harrison, The American Act of State Doctrine, 47 Geo. J. Int’l L. 507 (2016).
[4] Statement by President Joe Biden on Armenian Remembrance Day, The White House (Apr. 24, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/24/statement-by-president-joe-biden-on-armenian-remembrance-day/.
[5] Fadel Allassan, Biden signs historic bill punishing China for Uyghur genocide, Axios (Dec. 23, 2021), https://www.axios.com/biden-signs-uyghur-forced-labor-bill-f4280bcb-adc4-4a7e-87e9-36307e29f83a.html.
[6] Secretary Antony J. Blinken on the Genocide and Crimes Against Humanity in Burma, U.S. Dep’t of State (Mar. 21, 2022), https://www.state.gov/secretary-antony-j-blinken-at-the-united-states-holocaust-memorial-museum/.
[7] Anoush Baghdassarian, Congressional Recognition of the Armenian Genocide – 104 years of Denial, Harvard Hum. Rts. J. (Dec. 27, 2019), https://harvardhrj.com/2019/12/congressional-recognition-of-the-armenian-genocide-104-years-of-denial/.
[8] See, e.g., Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 965–66 (9th Cir. 2010).
[9] Sarei v. Rio Tinto, PLC, 671 F.3d 736, 815–16 (9th Cir. 2011).
[10] Deirmenjian v. Deutsche Bank A.G., No. CV 06-00774 MMM CWX, 2006 WL 4749756 (C.D. Cal. Sept. 25, 2006).
[11] Bakalian v. Cent. Bank of Republic of Turkey, 932 F.3d 1229 (9th Cir. 2019).
[12] Movsesian v. Victoria Verischerung A.G., 670 F.3d 1067 (9th Cir. 2012).
[13] Davoyan v. Republic of Turkey, 116 F. Supp. 3d 1084 (C.D. Cal. 2013).
[14] Deirmenjian, 2006 WL 4749756, at *1.
[15] Id. at *24.
[16] Deirmenjian v. Deutsche Bank A.G., 548 F. App’x 461, 463–66 (9th Cir. 2013).
[17] Cal. Civ. Proc. Code § 354.45 (West).
[18] Deutsche Bank A.G., 548 F. App’x at 466.
[19] McCann v. Foster Wheeler LLC, 225 P.3d 516, 524 (Cal. 2010).
[20] Id. at 527.
[21] Deirmenjian v. Deutsche Bank A.G., No. CV 06-00774 MMM CWX, 2006 WL 4749756, at *26 (C.D. Cal. Sept. 25, 2006).
[22] Deutsche Bank A.G., 548 F. App’x at 466. It is interesting to note, though, that the district court was not completely without favor towards California’s interests in adjudicating the case. For example, earlier in the litigation, when presented with a motion to dismiss the case from U.S. courts on grounds of forum non conveniens (that is, the U.S. being a comparatively inconvenient forum), the court held that California had a local interest in resolving the controversy as “California is home to the largest populations of Armenians in the world outside the Republic of Armenia…California has expressed strong localized interest in ensuring that Armenian residents obtain relief for claims arising out of or related to the Genocide.” Deirmenjian, 2006 WL 4749756, at *16–17. In response to the defendant’s arguments that Germany has a strong interest in monitoring the activities of its banks, the court agreed but held that “Germany’s interest is outweighed by the interest of the United States and California in ensuring that residents are able to obtain adequate redress for their grievances.” Id. at *16. Lastly, the court held that “in the absence of any similar public sentiment in the European forum under consideration in this case, or a more tangible present-day connection to this subject matter of plaintiffs’ claims, this forum has the stronger public interest in adjudication of plaintiffs’ claims.” Id. at *17. These quotes are important because they demonstrate that perhaps with enough public policy reasons to support the decision in one forum, a foreign country’s interests can be outweighed.
[23] Deutsch v. Turner Corp., 324 F.3d 692, 714 (9th Cir. 2003) (“In the absence of some specific action that constitutes authorization on the part of the federal government, states are prohibited from … modifying the federal government’s resolution of war-related disputes.”).
[24] Const. art. VI, cl. 2.
[25] See generally Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000).
[26] US Awami League, Inc. v. City of Chicago, 110 F. Supp. 3d 887, 892 (N.D. Ill. 2015) (citing Zschernig v. Miller, 389 U.S. 429, 434–41 (1968)).
[27] Id.
[28] See generally Zschernig v. Miller, 389 U.S. 429 (1968). The Court struck down an Oregon law it deemed to be an “intrusion by the State into the field of foreign affairs” because it required judges to determine the overlap of rights protected by foreign law and Oregon law. The Court distinguished this from an earlier decision of its regarding a California law, reiterating the fact that state laws with only “some incidental or indirect effect in foreign countries” do not intrude on the federal domain. Id. at 432–33.
[29] Movsesian v. Victoria Verischerung A.G., 670 F.3d 1067, 1076 (9th Cir. 2012).
[30] Id.
[31] Id. at 1077. To demonstrate this political turmoil, the Court referred to New York Times and BBC articles that discussed Turkey’s retaliatory response to the French bill that criminalized Armenian Genocide denial, and President Obama’s circumvention of the use of the word so as not to anger Turkey. Id.
[32] Id.; Cassirer v. Thyssen-Bornemisza Collection Found., No. CV 05-3459-GAF (CTX), 2012 WL 12875771, at *17 (C.D. Cal. May 24, 2012), aff’d in part, rev’d in part, 737 F.3d 613 (9th Cir. 2013) (citing Movsesian).
[33] See, e.g., Filartiga v. Pena-Irala, 577 F.Supp. 860, 862 (E.D.N.Y. 1984).
[34] Davoyan v. Republic of Turkey, 116 F. Supp. 3d 1084, 1090–93 (C.D. Cal. 2013).
[35] Id. at 1104.
[36] 28 U.S.C. § 1604 (“Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.”).
[37] 28 U.S.C § 1605 (General exceptions to the jurisdictional immunity of a foreign state).
[38] 28 U.S.C. §1605(a)(3).
[39] Bakalian v. Cent. Bank of Republic of Turkey, 932 F.3d 1229, 1235–36 (9th Cir. 2019).
[40] Id.
[41] Cases in Seventh, Fifth, and Ninth Circuits demonstrated this exception. See, e.g., Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 675 (7th Cir. 2012), aff’d sub nom. Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847 (7th Cir. 2015). Additionally, the 7th circuit observed that all U.S. courts to consider the issue recognize genocide as a violation of customary international law. Id. The Ninth Circuit stated that it is settled that genocide violates international law. See, e.g., Sarei v. Rio Tinto, PLC, F.3d 736, 759 (9th Cir. 2011).
[42] Federal Republic of Germany v. Philipp, 141 S. Ct. 703, 705 (2021).
[43] Id. at 714.
[44] Id. at 705.
[45] 28 U.S.C. § 1350.
[46] 18 U.S.C. § 1091.
[47] Kashef v. BNP Paribas S.A., 925 F.3d 53, 55 (2d Cir. 2019).
[48] Steven R. Weisman, Powell Declares Genocide in Sudan in Bid to Raise Pressure, N.Y. Times (Sept. 9, 2004), https://www.nytimes.com/2004/09/09/international/africa/powell-declares-genocide-in-sudan-in-bid-to-raise.html.
[49] Kashef, 925 F.3d at 61–62.
[50] Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir. 1992).
[51] “A jus cogens norm, also known as a peremptory norm of international law, is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Id. at 61.
[52] Id. at 60.
[53] Kashef v. BNP Paribas S.A., 316 F. Supp. 3d 770, 774 (S.D.N.Y. 2018), vacated and remanded, 925 F.3d 53 (2d Cir. 2019) (quoting O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449, 453 (2d Cir. 1987)).
[54] Kashef, 925 F.3d 53. While the district court was concerned that it would be impermissibly intruding on the foreign affairs powers of the other branches in issuing this decision, the Second Circuit reversed and said that applying the act of state doctrine would actually contradict the legislative and executive branches since they have already made clear that they believe atrocities have been committed in Sudan. See Brief of Members of Congress as Amici Curiae at *1, Kashef, 925 F.3d 53 (No. 18-1304).
[55] 28 U.S.C. § 1605(a)(2).
[56] See, e.g., United States v. Turkiye Halk Bankasi A.S., 16 F.4th 336 (2d Cir. 2021), petition for cert. pending, No. 21-1450 (filed May 17, 2022).
[57] Michael Hernandez, Biden’s 1915 events move to not affect legal status, Anadolu Agency (Apr. 30, 2021), https://www.aa.com.tr/en/americas/bidens-1915-events-move-to-not-affect-legal-status/2225900.
* Anoush Baghdassarian is a JD Candidate at Harvard Law School. She has a Master’s in Human Rights Studies from Columbia University, and a Bachelor’s in Psychology and Genocide Studies from Claremont McKenna College. She is Co-founder of the Rerooted Archive, documenting over 200 testimonies from Syrian-Armenian refugees who have fled Syria in the last ten years. She has a career focus on transitional justice and international criminal law and some of her work experiences include interning as an advisor to the Armenian Permanent Mission to the UN, an intern at the UN Office of the High Commissioner for Human Rights, and serving as an upcoming visiting professional at the International Criminal Court.
