International Law

Featured Freedom of Speech International Law

The Case for International Whistleblowers Protections

That, ultimately, is the critical flaw or design defect intentionally integrated into every system, in both politics and computing: the people who create the rules have no incentive to act against themselves.

— Edward Snowden, Permanent Record

In recent weeks, two stories involving whistleblowers exposing alleged human rights abuses have stirred global controversy. First is CNN’s report on Israel’s Sde Teiman detention center and military base, which houses around 70 Palestinian detainees. The accounts of three Israeli whistleblowers and more than a dozen former Palestinian detainees allege severe mistreatment, including physical and psychological torture and wanton medical malpractice. As one whistleblower describes, “They stripped them down of anything that resembles human beings.” Abuses, another claims, “were not done to gather intelligence. They were done out of revenge.”

Second is the sentencing of ex-military lawyer David McBridge—who leaked the notorious 2017 ‘Afghan Files’, detailing potential war crimes—to nearly 6 years in jail by an Australian court. The Afghan Files allegedly reveal 39 unlawful killings, including of unarmed men and children, by Australian Defense Forces (ADF).

In both cases, the whistleblowers leaked information about alarming human rights abuses directly to the media, bypassing internal reporting channels and legal procedures. In choosing the extra-legal route, the Israeli whistleblowers and Mr. McBridge risked serious legal repercussions and employment retaliations, notwithstanding community and public ostracization, which manifested as a prison sentence for the latter. Justifying the sentencing of Mr. McBridge, Australian Supreme Court Justice David Mossop pronounced, “There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order.” The contention that whistleblowers should only exercise their duty within the bounds of the law—however extraordinary the moral cause—seems to be the default government position whenever an especially brazen whistleblower ignites public scandal. Commenting on Edward Snowden, who was charged with espionage for leaking massive NSA-run surveillance programs in 2013, then-President Obama remarked, “If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe or conduct foreign policy.”

Of course, the threats whistleblower vigilantism poses to national security and the integrity of intelligence systems should not be dismissed. Secrecy is necessary for defense and intelligence strategies to succeed in both staving off adversarial threats and protecting the security of personnel. But, the leap of faith in government self-discipline has its limits. The glaring question remains: when the government is both the perpetrator and judge of its own misconduct, with strong incentives to keep abuses concealed, what measures should a potential whistleblower take? Without extra-legal disclosures, serious government-perpetrated human rights violations may never reach public awareness. Although they may contravene domestic law, these disclosures are crucial in upholding international law and generating responses, as evinced by the influence of Snowden’s leaks in prompting a UN investigation into surveillance programs.

Since the world’s first whistleblower law in the US, which was enacted in defense of military whistleblowers, protections for those in both the private and public sectors have undergone significant enhancements, both domestically and abroad. This is except for classes of individuals who share similar circumstances and moral causes as those who inspired the original whistleblower law in the first place—namely those in intelligence and military. It should be expected that governments would not be especially keen on equipping whistleblowers with the means to expose government wrongdoing. But, with the advent of international bodies and laws—whose raison d’être is to uphold universal principle against the excesses of state self-interest—there is now a more appropriate home for military and intelligence whistleblowers beyond the very government they are blowing the whistle on.

The Origins of Whistleblowing—A Revolutionary Act

In 1777, merely a year into the Revolutionary War, ten USS Warren sailors and marines held a clandestine meeting, the outcome of which would test the nascent republic’s loyalty to principle against tyranny. In the meeting, the perturbed revolutionaries traded concerns about the behavior of the first U.S. naval commander, Commodore Esek Hopkins. Hopkins, they alleged, subjected British prisoners to grueling torture. Despite incurring major risks of retaliation from the powerful Commodore and without any whistleblower law to ground legal recourse, the men agreed to voice their concerns to the government. Before the Second Continental Congress, Marine Captain John Grannis ‘blew the whistle’ (in modern terms) on their commander’s misconduct, condemning his behavior as “inhuman and barbarous.” Amidst a longshot war, the Congress decided to affirm the principles of the Revolutionary cause despite potentially jeopardizing its wartime interests, moving to suspend Commodore Hopkins for his abuses. Further, on July 30, 1778, prior to the Constitution, the Congress unanimously passed what is possibly the world’s first whistleblower law:

That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.

However, perhaps most stunning is the government’s decision to, in effect, expose itself. Convinced that the whistleblowers’ act constituted not betrayal but exceptional loyalty to the public interest, the Congress proceeded to release their petitions about Commodore Hopkins, further risking international embarrassment, vulnerability, and wartime interests. Transparency and public trust, in their decision-calculus, took precedence.

Global Precedent

In backing the whistleblowers, the Continental Congress not only set a formative legal precedent for both public and private whistleblower protections, but engendered a spirit of prizing whistleblowers as champions of the public interest rather than degrading them as ‘squealers’ or ‘snitches’. In enacting the 1778 Whistleblower Protection Act, just two years after the Declaration of Independence and still a decade before the Constitution was ratified, the Continental Congress not only laid the ground for a series of landmark whistleblower acts —such as the 1863 False Claims Act (‘Lincoln’s Law’), the 2002 Sarbanes-Oxley Act, and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act—but it also set a global precedent.

Some legal protections for whistleblowers now exist, at least nominally, in 170 nations and self-governing territories. The stronger examples include Korea, Australia, Japan, and South Africa, many of which are either directly or indirectly inspired by the United States’ unusually robust array of whistleblower laws. At the international level, laws like the United Nations’ Convention Against Corruption (2003) and the OECD’s Anti-Bribery Convention (1999) have proven critical in setting global standards, encouraging member states to implement more effective and comprehensive whistleblower protections. Although there is no universally accepted framework for whistleblower law—let alone a common definition for ‘whistleblower’ across countries—most laws concern preventing and punishing retaliation perpetrated by employers. A select few countries also offer monetary incentives and confidential reporting channels.

Global Failure

Despite the growing global consensus supporting stronger protections for whistleblowers, one alarming yet persistent gap remains—protections and effective reporting channels for whistleblowers seeking to expose government-perpetrated military and intelligence abuses. The precarious situation that this class of whistleblowers face has stoked considerable controversy, particularly in the US, which is at the same time regarded as the vanguard of whistleblower protection.

Daniel Ellsberg, who leaked the Pentagon Papers in 1971, was charged with violating the Espionage Act, carrying a potential sentence of 117 years. Due to government mishandling and an unusually strong defense, Mr. Ellsberg’s charges were dismissed. Chelsea Manning, who released thousands of incriminating military misconduct to WikiLeaks in 2010, was similarly convicted of espionage and served 7 years until her sentence was commuted by President Obama. Wary of a legacy of unfriendly behavior to those before him, Edward Snowden fled to Russia after being charged with two counts of espionage. He has lived there since, unable to return for fear of having his prosecution resumed. Notable crackdowns and retaliations against military and intelligence whistleblowers have occurred beyond the US in countries like the UK, Thailand, and, as mentioned earlier, Australia.

President Obama defended the charges of espionage against Mr. Snowden by citing his Presidential Policy Directive 19 (PPD-19), which supposedly carved out more protections for intelligence community whistleblowers that Mr. Snowden should have utilized. However, it is likely that Mr. Snowden would have not enjoyed much protection—much less his objective of informing the public about mass privacy infringements—under the directive due to severe faults ripe for circumvention. Opposing the directive, the National Whistleblower Center points to the fact, among others, that the American government grants the responsibility of protecting the whistleblower to the agency (e.g., the NSA) heads, the same authorities who have incentives to retaliate against the whistleblower. Further, even if Snowden did wish to legally file allegations against the government, the nature of the classified information means that he would have scant evidence on which to stand.

Although the exact character of regulatory frameworks, such as sanctioned internal reporting methods and anti-retaliation measures, vary across countries, the primary issue is the same. For instances of private sector misconduct and instances of defrauding the government, the government has clear incentives to encourage and protect whistleblowers and launch investigations. In fact, the whistleblower programs housed by the IRS, SEC, and DOJ in the US and some of their counterparts in other countries are unusually robust. They not only offer whistleblowers protection through anonymous reporting and complimentary anti-retaliation laws, but they incentivize whistleblowers to come forward by providing monetary rewards, recognizing that agencies perform their jobs better when more whistleblowers submit useful information. In contrast, the government allowing individuals to blow the whistle on its own abuses and pursuing investigations yields no self-serving benefit, only potentially jeopardizing security strategy and risking international embarrassment.

Whistleblowing, Internationalized

Given governments’ incentives not to protect government-abuse and national security whistleblowers but to silence them, international bodies are better positioned to accept claims of government misconduct and offer protections. For example, the Office of the United Nations High Commissioner for Human Rights (OHCHR), through HRC Resolution 5/1 passed in 2007, offers an online portal for individuals to confidentially submit complaints of human rights violations by any UN member. These complaints are initially screened and, if determined to be admissible, relayed to the accused state for its response. The case is then passed to two Working Groups and, in turn, to the Human Rights Council (HRC), all behind closed doors to prevent leaks and public embarrassment. The Human Rights Council may continue to keep the case under review, make the case public, or recommend the OHCHR to facilitate cooperation and advise the accused country.

According to the Council, up to 15,000 complaints are submitted each with a 95-100 percent state response rate. The OHCHR claims that this procedure has had a marked influence on causing positive actions across the globe, including releasing political detainees, granting reparations to victims, and aligning policies with international law. Although, it does not provide data substantiating this, nor does it shed light on how it protects whistleblowers from persecution beyond confidentiality.

This alternative, international-level route for whistleblowing yields clear benefits to all parties. The whistleblower is able to report abuses without disclosing their identity, protecting themselves from retaliation by their government—which is almost always forfeited when reporting to the media—thereby escaping the dreaded predicament of choosing between honoring their moral principles and losing their career or worse. On the other hand, the accused government gains the assurance of a fairer and comprehensive review process before the option of publicization becomes available, which is not the case when an individual resorts to disclosing to the media. Further, by being involved in the process, the accused nation can work with the Office to ensure unnecessary security details are not revealed if the allegations are made public.

However, there are two clear issues that fail to even meet the standard of most state frameworks and to address the important concern of public knowledge. Firstly, HRC Resolution 5/1 does not include any anti-retaliation measures or assign special protections to whistleblowers to ensure their safety and entitled rights upon being discovered. Without anti-retaliation measures, such as sanctions, there is little to deter a state from threatening or punishing—physically, financially, or otherwise—a whistleblower and from preventing further cooperation. Without effective retaliation prevention and punishment, whistleblowers would still face grave risk in reporting to OHCHR.

A possible antidote to this challenge would be amending the 1951 Convention and Protocol Relating to the Status of Refugees to extend refugee status and mandatory protections for whistleblowers facing retaliation by a State for reporting to the OHCHR. If granted refugee status, whistleblowers who have fled their home country out of fear of persecution, such as Edward Snowden, would enjoy the right to non-refoulement (the right to not be deported to a country that may persecute them). Backed by international lawyers, the NGO Blueprint for Free Speech has advocated for this amendment since 2017. Adding protection measures would decrease perceived risks of submitting a complaint, increase investigations of potential human rights violations, and, in turn, spur international law abidance and deter violations.

The second, larger limitation of the OHCHR complaint procedure is that it does not guarantee, even with agreed-upon abuses, public disclosure. Although an option, the OHCHR notes that it has made cases public in two instances: one against Kyrgyzstan in 2006 and Eritrea in 2012. Not guaranteeing public disclosure of human rights abuses, let alone only pursuing it in two instances, parts with the basic right to “receive and impart information … through any media and regardless of frontiers”, as per Article 19 of the UN Universal Declaration of Human Rights.

It also betrays the important precedent set by the first whistleblower proceedings in the U.S., where the Continental Congress voluntarily published potentially damaging petitions in the interest of democracy. For whistleblowers motivated by the necessity to publicly reveal information, such as Mr. Snowden, the closed-door nature of the OHCHR reporting process may do little to dissuade them from reporting to the media. Although some degree of secrecy is warranted to ensure the integrity of a state’s security, excessive opacity—especially in cases of rampant rights violations—erodes public trust and lays the ground for democratic backsliding. It also risks global scandals that jeopardize state legitimacy, as in the case of the NSA surveillance programs.

The OHCHR complaint procedure provides an admirable alternative to internal, state-sanctioned channels for whistleblowers who wish to expose flagrant government wrongdoing. That said, it evidently lacks the robustness, both in protection and in effect, that many of the otherwise vigilante-whistleblowers may desire in their pursuit of defending the public interest. Moreover, with scant information online advertising it as a desirable avenue and touting its potency, it may do little to catch the eyes of its target audience. In order for the program to maximize its potential as an avenue for government-abuse whistleblowers, it is imperative that the OHCHR devote more effort to publicizing the program and provide more resources and protections for those considering blowing the whistle.

In any case, one thing is clear: governments are not the appropriate agent to protect this precarious class of intelligence and military whistleblowers nor to ensure their own accountability. It is naive to expect modern states to abide by an honor system, like the Second Congress two-and-a-half centuries ago. States are now bound by international law, which military and intelligence abuses often violate. As such, whistleblowers of these violations should have accessible and strongly protected channels at the international level.

Image source: Tingey Law Firm on Unsplash

June 3, 2024 0 comment

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Featured Guest Article International Law Women

The Recognition of Acts of Sexual Violence as Genocidal Crimes

written by thegeneration

By Alix Mazieres, Columbia University

Maria Bahizi, now 67 years old, narrates her traumatizing experiences of April 1994 during the Rwandan genocide: “I think that I am still alive, that the Interahamwe didn’t kill me, because the high-level army officials came to rape me every day. Because I was ‘their’ woman,” she says. “And for me, it was like I was more than dead.” A Bosnian Muslim girl anonymously referred to as Witness 87 shares a similar story of the Bosnian genocide that started in 1992. She explains that the Serb soldiers “would come inside looking for particular persons, girls. They would select them, as many as they wanted, and then they would take them with them,” every night. It is estimated that between 100,000 and 250,000 women were raped during the Rwandan genocide and between 20,000 and 50,000 women were raped during the Bosnian genocide. These testimonies and figures demonstrate the consistency of rape as a means of genocide, that it is not collateral damage as is often argued, but intrinsically linked to the oppressor’s intention to dehumanize an ethnic, national or religious group.

Though these numbers are already appalling, rape is only one of the acts of sexual violence that occur during genocide and war, including in Rwanda and Bosnia. It must be noted that sexual violence is an umbrella term that refers also to sexual assault, sexual slavery, enforced prostitution, sexual trafficking, forced pregnancy, and enforced sterilization. These crimes are in majority committed against women, but can also be perpetrated against men.

Acts of sexual violence are undoubtedly human rights violations, breaching one’s right to health and bodily integrity and to not to be subject to torture, cruel, inhuman or degrading treatment or punishment. These rights are enshrined in binding international treaties on political and civil rights and socio-economic rights. Women are additionally legally protected from sexual violence through the Convention of Elimination of Discrimination Against Women (CEDAW) that recognizes gender-based violence, defined by the General Recommendation 19 as “violence that is directed against a woman because she is a woman or that affects women disproportionately.” In times of conflict, instruments of international humanitarian law, such as the Geneva Conventions, also protect civilians populations against all acts considered as cruel treatment and torture, sexual violence falling under these protections.

Despite international law treaties protecting one from sexual acts of violence both in conflict and in peace, they are limited in their enforceability. Different definitions of rape and other acts of sexual violence render accountability and justice difficult to implement. The differences among countries revolve around factors such as the legal age of consent, the definition of penetrative acts considered as sexual violence, and the recognition of marital rape. Moreover, debates persist about whether sexual violence refers to the victim’s lack of consent or to the use of force, threat, and coercion. These variations complicate the international community’s role in enforcing human rights and legal obligations when it comes to sexual violence. Historically, the international community has failed to correctly address the question: are acts of sexual violence in conflict individual crimes, or are they constitutive of genocide? In developing a uniform and universal answer to this question, the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in the aftermath of the Rwandan and Bosnian genocides represent turning points, considering sexual violence as war crimes, crimes against humanity, and as genocidal crimes. Nonetheless, I later argue these tribunals were of a limited efficiency regarding accountability of perpetrators of sexual violence.

Established by the UN Security Council, the ICTY, formed in 1993, and the ICTR, formed in 1994, have indeed considerably changed the way sexual violence is recognized in international law. While both of these tribunals operated independently from one another, being conducted simultaneously, they followed similar principles, rules, and inspired one another. In this article, I will be using examples from both to highlight a larger trend in international justice.

First, and most importantly, by condemning rape within their statutes as crimes against humanity, the ICTY and ICTR both recognized that systemic rape is not an isolated crime from genocide and war. Notably, article 4 of the ICTR gives judges the freedom to condemn “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault” within the context of genocide. In that sense, the tribunal affirmed that sexual acts of violence are not ordinary crimes and that the perpetrators can be tried as war criminals for such acts. This stance, shared by the ICTY, represents an unprecedented progress in international law, sexual violence not yet having been defined as a war crime in past international trials.

In the additional rules to their mandates and statutes, the tribunals defined consent, and therefore non-consent, with more precision and breadth than previous international tribunals. The ICTY stated that meaningful consent is not possible when the victim “has been subjected to, threatened with, or has reason to fear violence, duress, detention or psychological oppression” or “reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear.” This definition of what is considered lack of consent is large and thus represents a great progress concerning the prosecution of sexual violence. Further, the ICTY has a set of Rules of Procedure and Evidence partly created to protect victims, including victims of sexual violence. For instance, rule 96 states that corroboration is not required in sexual violence cases. By implementing this rule, the tribunal acknowledges the challenge of presenting evidence for wartime sexual violence and aims to ensure that the testimony of the victim can be given appropriate weight and consideration in legal proceedings.

In practice, one case that has changed the course of international law concerning sexual violence is the Prosecutor v. Akayesu case of the ICTR. The court accused Mr. Akayesu, mayor of the Taba commune during the genocide, of knowing of acts of sexual violence and refusing to help those seeking safety from rape. For his inaction in the face of mass sexual violence and genocide, Mr. Akayesu was found guilty of both genocide and crimes against humanity. This case confirmed in an unprecedented way that sexual violence can be recognized as constitutive to genocide rather than as an isolated crime. It demonstrates that sexual violence in genocide is not about male pleasure but rather concerned the will of a group to dehumanize, humiliate and torture a minority.

However, the progress made through the ICTY and the ICTR was limited, and despite sexual violence being addressed by the tribunals, most perpetrators were not convicted of any or all of the rapes of which they were accused. For instance, Sylvestre Gacumbitsi, during the Rwandan genocide, would encourage the rape of Tutsi women publicly with a megaphone and was accused of rape by multiple women. He was found guilty of rape as a crime against humanity, but the ICTR failed to convict him of all the acts of sexual violence he encouraged and participated in because of the difficulty to prove his direct responsibility. Although his conviction can and should be seen as a progress in international law, it must be noted that it did not provide justice for all of the concerned victims. As for the Bosnian genocide, where it is estimated that at least 20,000 women were raped, the court heard 161 cases of sexual violence crimes, charged 78 individuals, and convicted only 32 perpetrators. Victims’ fear to testify in an effort to promote reconciliation or their inability to testify against their assaulter because they did not know their name can partly explain such a turnout. Therefore, in Rwanda as well as in Bosnia, most victims of sexual violence did not get the justice they deserved.

Furthermore, rank-and-file individuals that committed acts of sexual violence during the genocide in an effort to humiliate and torture were not charged as war criminals. Only the commanding officers (e.g. Akayesu, Gacumbitsi) were charged with war crimes, crimes against humanity, and genocidal crimes for acts of sexual violence. Thus, the novel principle of considering rape as a war crime, as stated in the statutes of the ICTR and the ICTY, was not applied equally to all individuals that have participated in the sexual violence of the genocides. This is problematic in the sense that, whenever it is within the context of genocide, sexual violence should be regarded as a genocidal act and as a war crime, whoever the perpetrator may be. Ultimately, the ICTR and the ICTY failed to convict all perpetrators of sexual violence, rendering their contribution to changing accountability for sexual violence in international humanitarian law less practical than it had been hoped.

The last limitation to the progresses of the ICTR and the ICTY regarding sexual violence is revealed by the one-sided narrative that only men are the perpetrators of rape and only women are their victims. By considering that sexual violence can only be gendered violence against women — even if that is true for the overwhelming majority of cases — one underestimates the prevalence of rape against men during conflicts. In contexts of genocides where the target of mass violence is an ethnic group, one’s vulnerability to sexual violence is dependant on ethnicity as much as it is on gender. For example, a Bosnian ex-prisoner narrates anonymously his experience being raped in an interview for a local Balkan newspaper and confirms that rape was a strategy of humiliation and emasculation during the war. His rapist has never been brought to justice. As the witness explains, men who were victims of these crimes were often scared of being stigmatized by addressing the courts, and for this reason, many cases of rape against men went unreported.

To conclude, sexual violence cannot be regarded as an isolated crime from contexts of genocides and brutal wars. Rape is used as a tool for dehumanizing ethnic, national or religious minorities. The ICTR and ICTY tribunals of the 1990s, following the Rwandan and Bosnian genocides, have built the foundation for a greater recognition of rape and sexual violence within the scope of war crimes, crimes against humanity, and genocidal crimes. These advances had effects beyond their own jurisdictions, inspiring future courts and international considerations on sexual violence. However, the accountability of perpetrators through these tribunals was limited because of challenges regarding the lack of proof of non-consent, the forgotten responsibility in international courts of individual perpetrators of sexual violence, and lastly, the one-sided narrative that undervalues the prevalence of men as victims. Writing this article has led me to ask myself whether sexual violence against women and men in conflict, and especially in genocide, is inevitable. As long as sexual violence may be regarded as a means to the end of genocide and is used to express profound hatred, it seems like even significant efforts in the international community may not suffice. Therefore, are we bound to depend on postbellum reparations and sentences by criminal courts such as the ICTY and the ICTR to address sexual violence in conflict? If so, can ad hoc tribunals eventually offer justice for all victims of sexual violence in conflict, ovecoming challenges related to proof, taboos, and fear? As new conflicts erupt globally and threaten the rights, health and dignity of countless vulnerable individuals, it seems that a forward-looking approach to addressing sexual violence must still be reinforced, both building on the previous efforts of the ICTY and ICTR, as well as learning from their failures and limitations.

January 11, 2024 0 comment

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Democracy Diplomacy Featured International Law

This International Law Lets You Get Away with Murder!

written by Max Schaked

“Harry was bubbly and outgoing and from the age of 7, he shared a passion for riding motorbikes with his Gramps and step-dad… He loved to get out on the road and explore the countryside”

In August 2019, 19 year old Harry Dunn was riding his motorbike outside of Royal Air Force Croughton air station in Northamptonshire, England when he was fatally hit, in full collision, by a woman driving on the wrong side of the road. Local officials investigated the situation, found the woman, and were about to press charges when — they were barred from doing so. The culprit, Anne Sacoolas, is the wife of high-ranking American diplomat Jonathan Sacoolas. She would have likely been charged with involuntary manslaughter, but diplomatic immunity prevented any such charges from being pursued. A few days later, the woman flew back to the states, leaving Harry’s family speechless and suffering.

This is no standalone case. Diplomatic immunity has allowed international diplomats to take part in serious crimes without ramifications all over the world. But what exactly is diplomatic immunity? How does it work? Why is it so powerful? And, of course, should it be in place.

From a historical perspective, recordings of the idea were first found in the Ramayana and Mahabharata epics, where diplomats and messengers were free from capital punishment. The prophet Muhammad was also known to be a proponent of protecting envoys and allowing no harm to come to them — a practice that was even followed by certain caliphs after his death. Even Genghis Khan insisted on peaceful conduct towards representatives from different empires, though if a government did not respect the rights of his own diplomats, he was known to respond with terrifying and violent conquest. In 1709, the British Parliament enacted the Diplomatic Privileges Act which granted full immunity to foreign ambassadors, though it should be noted that this act was known to be selectively relevant. Diplomatic immunity was granted to ambassadors from allied governments like Russia, but less so to non-allied representatives from The Ottoman Empire.

In 1961, The Vienna Convention on Diplomatic Relations made Diplomatic Immunity a worldwide custom. As of today, the only UN recognized nations who have not signed on have been Palau and South Sudan. The convention also expanded immunity rights to family members and staff in the case of high-ranking officials.

Regardless of its ever-present international standing, misinformation (or mere lack of information) on the concept has led to overenforcement and underenforcement of domestic laws, as well as general confusion. I’m going to provide a brief but content-dense overview of diplomatic immunity so that you’ll feel like an expert on the matter — or at least enough information to get through this article.

At a very basic level, having diplomatic immunity means not being under the jurisdiction of local courts or authorities in an official (and sometimes personal) context. There are different levels of immunity. For example, those with the title of “diplomatic agent” enjoy complete immunity from criminal jurisdiction, while members of administrative and technical staff only enjoy criminal immunity in connection with official duties. In the latter’s case, personal offenses are not protected. Diplomats are not known to flout their international lawbreaking, but those with full immunity can use protection to their advantage themselves and those with partial immunity can stretch the limits on what is ‘official’ business. After all, no nation wants to start a hostile international incident over a minor offense. It’s for these reasons exactly that the City of New York is currently owed over $20 million in parking tickets by international diplomats. Interestingly enough, the National Bureau of Economic Research found that diplomats from nations who either 1. have a higher corruption index, 2. have a less amicable relationship with the United States, or both, have higher amounts of unpaid parking tickets. In 2017, Canadian journalists found in their nation alone cases of armed robbery, assault, potential human trafficking, theft, domestic violence, and tax evasion that all went without consequence. Saudi businessman Sheikh Walid Juffali separated from his wife in 2013, and in 2014 was named St. Lucia’s representative to the International Maritime Organisation (IMO) in order to avoid her separation claims to part of his wealth. This caught the attention of diplomatic immunity critics as before the decision, Juffali had no connection to St. Lucia.

Of course, there are limitations to these protections. At any point, a host nation can declare a diplomat persona non grata, basically expelling the diplomat from the state — though this might strain relationships between nations. Similarly, a state can deny their diplomat immunity, as in the case of Dwight Sagaray. Sagaray was found guilty of killing Olga Fonseca — both Venezuelans stationed in Kenya — after she was set to take over the embassy from him in 2012. Committing a crime as a diplomat with immunity is technically a roll of the dice, but usually one’s country is on their side.

These are all unintended consequences. Obviously, The Vienna Convention did not strive for corruption, evasion, and murder. The idea of diplomatic immunity was spread around the world so that representatives of foreign nations (and their families) could not be threatened, harassed, or hurt as a way of influencing policy, decisions, or diplomatic actions. It is a protective measure that allows an ambassador of South Korea to, as an example, tour North Korea without fearing for their life.

Some believe that diplomatic immunity is an outdated cold-war era policy that needs to be altered given the numerous abuses it has allowed without punishment. Dr. James Hoare rejects these ideas, arguing that it is an absolute necessity to diplomats in order to complete the tasks they are assigned in a foreign nation without interference, He specifically mentions private communications and “diplomatic bags” — bags which cannot be searched by police — which are protected under diplomatic immunity. The security of meetings, business, and exchange that diplomats encounter on a daily basis are all reliant on immunity. The detainment of foreign officials by a nation to use as political leverage is also prohibited under the principle. Proponents of keeping the international law, especially those who worked in the foreign service, stress that specific cases of abusing the system should not undermine nor compromise diplomatic immunity given the necessary freedoms it provides.

We are a new and young generation of aspiring change-makers. We’re high school and college students — learning about history, contemporary social and political geography, international economics status quos, and other taken-at-face-value institutions — who are disillusioned with the way of things. Diplomatic immunity has been in the ‘hot seat’ in recent years, but there are substantial arguments both for and against the international law. It protects representatives in the ways the Vienna Convention intended, but with some unintended side-effects. It is on us now to rely on it, revoke it, or reform it.

June 27, 2023 0 comment

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Europe Geopolitics Human Rights Humanitarian Aid International Law Military Print Article Russia Security and Conflict Ukraine

New Lesions Next to Old Scars: An Analysis of Atrocity Prevention Tools Created from the Yugoslav Wars and their Application to War in Ukraine

written by Annabelle Werner

We passed a small red sign that cautioned passersby of unexploded ordnance, which was just one of the fading reminders of war scattered across the idyllic Bosnian countryside. Back in Sarajevo, a mural criticizing UN Peacekeeping bordered a chic restaurant showcasing a grand piano in the window. Modern stores encroached on the occasional dilapidated, bullet-riddled building that had been left untouched. Most evidently of all, pristine white gravestone markers appeared in many small villages, signaling the final resting place of murdered Bosnian Muslim families. The ghastly scars of genocide were raised in some places more than others.

The dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) in 1991 catalyzed a series of wars that would span 10 years, and the people of the Balkans would grapple with post-conflict reconstruction in the decades after. Meanwhile, the international community was left to debate how the few atrocity prevention mechanisms in place had failed so grievously. The UN “safe areas”, or areas designated by the United Nations Security Council (UNSC) to be free from “armed attacks or hostile acts”, would become the sites of massacres. The UNSC became so stuck in perpetual deadlock that the only foreseeable way to peace was to break international law in the form of a NATO bombing campaign. Further, some were asking if there was even an obligation at all to protect citizens of foreign governments.

In time, new understandings of international criminal and humanitarian law were developed in a dogged commitment to justice. Conceptions of sovereignty, obligations to protect civilians, and gendered aspects of humanitarian law (i.e., considering rape as a weapon of war) were re-conceptualized in favor of expanding such protections. An expanded awareness of how to prevent atrocities emerged.

War has once again returned to Eastern Europe. Disturbing reports of forced transfers of Ukrainian civilians to “filtration camps” to suppress resistance have surfaced. Mass graves have been discovered in Izium. There have been reports if torture, rape, and the execution of civilians by Russian soldiers in Bucha. And civilian sites have been targeted in Kyiv, Dnipro, and Zaporizhzhia in retaliation for advances made on the warfront. A few questions arise from seeing war come back to Eastern Europe: Do any parallels exist between the international crimes committed in Sarajevo and the Donbas? How will the international doctrines that were developed following the genocides of the 90s apply to the challenges of the Ukrainian-Russian war?

It may prove constructive to investigate the difficulties of applying the international community’s current mechanisms and obligations that developed from the painful cessation of the SFRY to today’s frightening conflict with a nuclear state.

Reflection: Sarajevo in the 90s

The former Socialist Federal Republic of Yugoslavia was a communist state that dissolved into a series of bloody secessionist conflicts. It was composed of many Slavic ethnic groups with diverse cultural and religious backgrounds under the rule of Josip Broz Tito. With the fall of communism in the late 80s and early 90s, the SFRY was plunged into a period of political and economic turmoil. Ethnic tensions were stoked by nationalistic rhetoric. Following Tito’s death in 1991, wars for independence and sovereignty broke out as ethno-nationalism fueled intense violence on all sides.

Bosnia and Herzegovina faced the worst of this violence, specifically against the Bosinaks or Bosnian Muslims. Bosnia’s central location made the territory desirable, and its population was one of the most diverse in the region: 43% Bosnian Muslims, 33% Bosnian Serbs, and 17% Bosnian Croats among other nationalities. In 1992, a referendum on independence resulted in favor of secession. The vote had been boycotted by Bosnian Serbs, who were against severance with the SFRY, and these results catalyzed brutal armed conflict. The Yugoslav People’s Army (JNA) and the Serbian Army overpowered resistance quickly, and these actors conquered 60% of the state’s territory. The Bosnian Serbs declared this area an autonomous zone known as the Republika Srpska and wanted to create an “ethnically pure” state. The capital, Sarajevo, underwent the longest military siege in modern history; over the course of 1,425 days, 11,541 people lost their lives.

Water and supply lines were cut off as Bosnian Serb forces encircled Sarajevo, utilizing the surrounding mountains. Snipers targeted civilians so frequently, one boulevard (Zmaja od Bosne Street and Meša Selimović Boulevard) was designated as “Sniper Alley” in which Serbian forces would shoot down at any man, woman or child from the tall buildings that lined the street. The worst massacre committed on a single day was in the Markale Massacre when Serbien forces killed 68 civilians and injured 140 while they were trying to buy bread.

Outside the city, an ethnic cleansing campaign brought death to each village. Violence was committed on all sides during the war, and ultimately Croats, Bosinaks, and Serbs were found guilty by international tribunals. In the Republika Srpska, a few hours east of Sarajevo, the Bosian Serb forces had murdered Bosinaks in each town. The worst of this violence culminated in genocide when Serb forces executed 8,000 men and boys in the fields outside of a UN designated safe area and town called Srebrenica.

The International Criminal Tribunal for the former Yugoslavia (ICTY) sentenced 90 war criminals to prison, and its successor, the International Residual Mechanism for Criminal Tribunals, is finishing the last trials from the war. Further, advocates of international criminal law harnessed this momentum to not only establish a temporary court to prosecute atrocity crimes committed within this conflict’s jurisdiction, but also a permanent court to try the most powerful, the international criminal court (ICC).

Bosnia and Ukraine

A few months shy of the thirty-year anniversary of the Siege of Sarajevo, Putin declared a “special military operation” in the Donbas region, escalating the conflict that had begun in 2014 with the annexation of Crimea.

The conflicts in Bosnia and Ukraine are incredibly different. Ethno-nationalism was clearly at the center of the former SFRY’s dissolution, an intense internal division that emerged in the aftermath of the fall of communism and chaos as the post Cold War world order fought to settle. Now, world order is transitioning once again. Some researchers will state that Putin’s nihilistic invasion is rooted in his resistance to NATO expansion and desire to return Russia to a more exalted role on the world stage. Yet, lurking the background of these rather neat, realist observations is the systematic use of power to wipe out Ukrainian nationality in favor of Russian political control and cultural identity.

International criminal law (ICL) clearly asserts that an unprovoked invasion of a sovereign state is one of the four most serious crimes, specifically known as the crime of aggression. The other principle international crimes include war crimes, crimes against humanity, and genocide. Each definition has overlapping crimes, but the latter three are generally conceptualized as increasing in severity, each harder to prove than the last. As the war in Ukraine continues, driven by Russia’s desire to dismantle the Ukrainian nation-state, we have seen evidence of terrible international crimes being committed.

In Sarajevo, there were indiscriminate shelling attacks, the targeting of civilians, and forced transfers of women and children that were committed in order to reduce the ability for ethnic groups to repopulate. There were massacres throughout Bosnia, and these ultimately culminated in ethnic cleansing and genocide.

In the Donbas, there have been reports of indiscriminate shelling attacks, including using banned cluster bombs, and the targeting of civilians. Russian has backed separatists in Donbas for years, contriving a story about the fictitious need to protect an at-risk population of ethnic Russians from Ukrainian nationals. This region is especially vulnerable to further crimes. “Filtration camps” have also appeared, holding able-bodied men against their will in order to “filter” out support for the Ukrainian state. These crimes of attacking Ukrainian civilians have been understood to be laced with the purpose of deteriorating the Ukrainian sense of national identity and will to fight.

Former and ongoing Russian military involvement in Crimea and Syria remains morally repugnant and illegal under international law. But that involvement at least bared some sort of resemblance to a politically motivated agenda rooted in security risks or establishing state interests in an ongoing war. In contrast, there is a lack of a concrete political answer for Moscow’s invasion and continued attacks in Ukraine. Some have argued that the original plan was for the Russians to depose of the Kyiv government and quash hopes of the state joining NATO, and when this failed Moscow unleashed warfare on other parts of the state. Officially, the Kremlin has said the “operation” is to protect ethnic Russians and “de-nazify” Ukraine, although it is absurd that a process of “de-nazifying” would mean a war against a Jewish president. These disturbing motives, rooted in dismantling the Ukrainian state or even the expansion of Russian empire, makes the war in Ukraine an unequivocal violation of Article 52, the international law that prohibits the use of force. Further, the invasion is a clear violation of an international crime known as the crime of aggression which is prosecuted by the ICC. Evidence of war crimes have been collected, and human rights watchdogs are nervous about the potential escalation of these crimes.

Ultimately, the genocide in Bosnia was committed to eliminate an ethnic group (the Bosniaks) and create an affiliated Serbian state. The international crimes committed in Sarajevo were about brutality and retribution. Today, there is a desire to destroy Ukrainian national identity through war and terror, and there is evidence of war crimes in cities like Izium and Bucha where crimes such as killing the elderly out of revenge. Another example of retaliation against civilians is when Russia bombed critical energy infrastructure in Kyiv along with parks and universities after the Ukrainians blew up the Kerch bridge to Crimea last month. These elements of retribution against civilians on the grounds of nationality should be a clear warning sign for escalation of atrocities and persecution.

Moscow claims to not want to govern Ukrainian territory, but after their initial attempt to replace the government in Kyiv failed, they seem to be playing by the rules of realpolitik: believing there is no choice but to escalate.

The Difficulties of Applying Atrocity Prevention Doctrine and Tools

It is clear that any unilateral or multilateral force meant to halt the Russian invasion of Ukraine would lead to World War III. Such a situation would also most likely involve nuclear warfare, thus ensuring catastrophe. This effectively rules out the use of multilateral humanitarian intervention, but not necessarily other atrocity prevention tools that are consistent within the Responsibility to Protect (R2P) framework.

Out of the Yugoslav Wars, and of the Rwandan genocide, emerged the idea of the Responsibility to Protect. Simply stated, it is the idea that sovereignty can be revoked if governments systematically attack their own populations or others, thus asserting that anyone, regardless of their nationality or lack of nationality, should be afforded protections against international crimes.

R2P has faced immense criticism from both sides of the political spectrum. Some argue that sovereignty is untouchable and that nothing, not even the failure to protect one’s civilians from international crimes, or the execution of atrocities against others, is grounds to revoke it. Others argue that it provides legal justifications for weaker states to be exploited by war hawks from the global North. For example, a multilateral force would never invade China for committing international crimes but could feasibly invade most of the global South. Essentially, the overlapping arguments against R2P is that degrading state sovereignty is wrong.

However, the spirit of R2P is that every human deserves protection from international crimes at the hands of their own state, or that of an aggressor, through appropriate and necessary means. Multilateral humanitarian intervention is the most extreme example of the third pillar, and the other pillars of the doctrine are asserting that 1) states should not exterminate their own people and 2) states have the responsibility to assist other states in meeting that responsibility. Assisting states in preventing atrocity prevention can take many forms, including public diplomacy, developmental aid, or prosecutions of perpetrators, and all are consistent with R2P framework as long as these actions are appropriate and necessary means to protect other human beings from atrocities.

The idea that the international community should care about the Ukrainian people, and not because of their state’s economic value to global industry but on the grounds of a shared humanity, is an idea that emerged from the post-conflict reconstruction following the Yugoslav Wars. What this article now seeks to investigate is which atrocity prevention tools could potentially apply within this framework.

First, ensuring physical, legal, and economic protections of refugees is imperative. Millions have already evacuated Ukraine, and many other European states quickly mobilized to take in these individuals and families. However, it is also important to note that at this point in the war, if the safest evacuation route is through Russia, that state should fulfill their international obligations to grant Ukrainians refugee status and adhere to proper protocols where they can choose to leave Russia with no strings attached.

Other important mechanisms include fact-finding missions to collect evidence on the crimes committed. This information can inform policymakers on the international stage throughout the conflict, and when the war ends, it can provide an accurate understanding for prosecutions and historical narrative writing. Grappling with difficult truths will also build resilience against propaganda and revisionist history in future. But for the present, other tools security assistance can be an unconventional form of atrocity prevention. This can include “aid that promotes another state’s defense” can “degrade potential perpetrators’ capacity to commit atrocities”. Arming vulnerable parties in the form ofammunition and medical supplies could further this goal. The U.S. has given a remarkable $18.2 billion dollars to Ukraine since 2021.

Additionally, mediation can be another atrocity prevention tool. This role is usually conducted by neutral third parties, as the US did in negotiating the Dayton Accords. The U.S.’s aid to Ukraine and the Biden’s public statement calling the atrocities across the globe “genocide” will most likely confound its potential to mediate, but that doesn’t mean that the U.S. couldn’t help generate diplomatic strategies. Because ultimately, a diplomatic end to this war will involve a solution that both restores Ukrainian sovereignty as well as finds a way for Russia to “save face” enough for them to leave Ukraine. The U.S. could help sift through various bargaining tools to generate solutions that could walk this fine line.

Finally, let’s briefly examine another well-known atrocity prevention tool, UN Peacekeeping (UNPK). Specifically, the lessons learned in Bosnia and why these forces cannot protect civilians in Ukraine. UNPK can be a tool to prevent conflict by physically embodying a political symbol of international monitoring. However, they are not equipped to, nor have the mission of, fighting wars. They are not standing armies. This non-military status allows these troops to exist in contentious situations and prevent escalation, but if the opposing armies are going to imminently attack both peacekeepers and civilians, the troops become stuck in a catch-22. Staying would result in being overpowered, yet a withdrawal of the UNPK forces who are guarding civilian sanctuaries can lead to brutal massacres. Historically, this has happened in both Bosnia and Rwanda. The lesson learned from the 90s is that the UNPK cannot keep peace in the face of a standing army that is intent on committing international crimes.

The issue of using UNPK to monitor civilian zones is clearly off the table and has been since 2014 with the first sign of concrete military action. And considering Putin’s original goal for the war was to push against NATO prominence and expansion, mobilization of collective security forces now would clearly escalate this situation into a world war with many nuclear states. Even the funding and military equipment sent to aid the Ukrainians must be done with political nuance. But that doesn’t mean there aren’t other tools to help protect civilians.

Overall, the doctrine of R2P that emerged following crimes in Bosnia is not obsolete just because there isn’t a US led military coalition entering the war. Atrocity prevention tools can take other forms, and the current strategies are partly informed by the lessons learned from the past.

The Precipice of a Cold Winter

Every act of military support is confounded by the threat of escalation to war with a nuclear power. Will a cold European winter force more support on behalf of the EU to Kyiv despite this risk? What other tools are available to the international community to put an end to this war? These are questions that the international community – particularly Western nations – will have to answer in the coming months to ensure Ukraine’s survival and the end of Russia’s interminable assault on Ukraine’s identity. Because the evidence collected thus far of potential war crimes, combined with Moscow’s intent on destroying the Ukrainian national identity, only emphasizes the warning signs of terrifying potential atrocities. And it may not be a morally pure solution, but the U.S. should consider possible consolations where the Russians could save face before the crimes against Ukrainians escalate and the war further ravages the country.

It’s been three decades since Bosnia was devastated by war, and the state has spent those years in the arduous task of reconstruction. Optimistically, there have been massive economic gains. The country has risen to the status of an upper middle income country, and there is the potential for the state to eventually gain EU membership.

Also in Bosnia, the World Health Organization states that “ten percent of Bosnia’s population, or 400,000 people, have been diagnosed with PTSD”, but “associations who help people suffering from PTSD, however, claim that the true number is close to 1.7 million people, nearly half of the country’s population.” It becomes clear that these advances have been made atop deep, chafing lesions.

Today, new scars are being wrought on Eastern Europe. When the dust settles, this war will also have deeply affected the international political landscape – and the generation who suffers such violence first-hand – for years to come.

November 20, 2022 0 comment

Image taken by Fred Murphy, under CC License. https://www.fredmurphy.com/photos/riseclimate18/#/view/ID7615561.

Climate Change Human Rights International Law

Taking to the Courts: the International Court of Justice and Climate Change

written by Arya Goyal

The 2022 United Nations Climate Change Conference, also known as COP27, is yet another attempt by world leaders to tackle the issue of climate change. The yearly meeting will be held in Sharm El-Sheikh, Egypt, and will be attended by approximately 200 countries.

The question remains whether this conference will result in any constructive change with regard to climate change, or will it be another greenwashing event? Indeed, despite the disastrous effects of climate change, little progress has been achieved in tackling it on an international scale. Although several treaties and summits exist, citizens and civil society organizations are now turning to courts to combat this issue.

One such example is found with the pacific nation of Vanuatu which is leading the charge in obtaining legal advice from the International Court of Justice (ICJ) on protections needed due to the detrimental effects of climate change. It is important to assess the extent to which the benefits of an advisory opinion by the ICJ on this matter outweigh the risks. This can be done by looking at the ICJ’s relationship with national courts, previous advisory opinions by the ICJ, and the focus of the question which is presented to the ICJ. Indeed, this question presented to the ICJ should emphasize the link between climate change and its effect on human rights.

ICJ—the principal legal organ of the United Nations— is seen as “first among equals” within the international judicial system, rendering its judgments to have “great legal weight and moral authority.” Its advisory opinion plays an important role in both setting precedents for national courts and inspiring political mobilization among the general populace. Regarding the former, an opinion clarifying the responsibility of states under international law would give national and regional courts administering climate change cases against corporations and governments a foundation to rely on.

This is especially pivotal given the recent increase in climate change litigation cases brought forth by private citizens and NGOs who are becoming increasingly disillusioned with their governments. As of July 2020, there have been approximately 1550 cases filed in 39 countries. Although 77% of the cases were filed in the US, there is an upward trend of cases filed in Latin America, Asia, and Africa. Thus, a helpful advisory opinion by the ICJ could result in initiating an “international public consciousness” on the urgency of climate change and could prompt the public to act.

It is important to keep in mind that the ICJ does not possess any mechanism for the enforcement of its rulings, and rather relies on states. This drawback, however, does not affect this case as the intention of the advisory opinion is not to place blame on a certain state but rather provide non-binding legal advice. In fact, this is in line with the Paris Agreement which is both “non-adversarial and non-punitive,” allowing states to set their own goals through the Nationally Determined Contribution (NDC). Moreover, differing from the contentious opinion case which only applies to states involved in the dispute, an advisory opinion allows inputs from all state parties, capturing collective state interests.

Although the ICJ has not taken on a climate change case before, it does have experience with environment-related cases underscoring its ability to handle complex scientific information. Indeed, the Threat or Use of Nuclear Weapons advisory opinion of 1996 was a monumental case of international law where the ICJ ruled that there was no law prohibiting the use of nuclear weapons as long as it complied with humanitarian and self-defense laws.

An important aspect of obtaining an advisory opinion is formulating a question that is put forth to the ICJ. In this case, Vanuatu would develop a question to be voted on by the UN General Assembly; it would need a majority for the case to be referred to the ICJ. The phrasing of the question is key in that it should fall under international law and be specific enough that the court can give a pointed answer. Moreover, the question could fall under one of the three areas—state responsibility, loss and damage, and human rights.

State responsibility would ask the court to clarify state obligations to ensure that their greenhouse emissions do not severely affect other states. Loss and damage would be concerned with the issue of compensation for damage caused by climate change. Lastly, human rights would identify the state’s obligation to combat climate change due to its effect on human rights. Framing the question in accordance with the last area, human rights, would be most beneficial due to the precedence it could set for future litigation.

The link between climate change and human rights was recognized on 8th October 2021 by a UN Human Rights Council resolution which stated that “having a clean, healthy and sustainable environment is a human right.” Furthermore, the UN Committee on the Rights of the Child also declared that “failure to take measures to prevent foreseeable human rights harm caused by climate change…could constitute a violation of States’ human rights obligations.” This demonstrates the growing acceptance by courts and international institutions of the damaging effects of climate change on human rights: taking away the right to life, right to health, and right to housing among others.

Indeed, Urgenda v The Netherlands is a landmark case wherein 886 Dutch citizens asserted that the government had a legal duty to mitigate climate change. Despite several appeals by the government, the Supreme Court upheld the decision and asked that Netherlands reduce its emissions by at least 25% in comparison to 1990 levels before 2020. The significance of this case and its potential replication in other countries was emphasized by Michelle Bachelet, the UN High Commissioner for Human Rights. Thus, if the ICJ’s advisory opinion clarifies the state’s responsibility on mitigating climate change due to its effect on human rights, it would set precedent for national courts making replication of Urgenda v The Netherlands easier.

In addition to providing national courts a basis for litigation, an advisory opinion highlighting the human dimensions of climate change would give climate-vulnerable states more leverage while engaging in international climate negotiations. Specifically, it would oblige states to have climate targets that are in line with international human rights standards and also entitle “victims of human rights violations” to some compensation. In the court, violations considered could be loss of land or forced displacement, both of which could warrant reparations. Indeed, this goes back to John Locke’s theory of natural rights wherein human beings are born with certain fundamental rights such as that of life, liberty, and property that the government has a responsibility to protect. Therefore, climate change’s effect on the right to life—through dangerous weather-related events—or on the right to property—through the displacement of people’s homes—requires government intervention.

Furthermore, this reliance on courts is especially essential as international climate negotiations at times result in a deadlock, with no incentive for a state to cooperate unless they are experiencing a tangible risk from the climate crisis. In fact, an example is the ongoing debate between developed and developing countries on who has contributed the most to global warming and how the cost of mitigating climate change should be divided. Developing countries argue that the industrialization undertaken by the developed countries over time has led to the accumulation of greenhouse gasses (GHGs) in the atmosphere, transferring the responsibility of tackling global warming onto them. Developed nations, however, argue that current polluting nations—such as India and China—should cut down on their emissions to play their part.

This illustrates the collective action problem wherein it would be advantageous for nations to cooperate to alleviate climate change, but they do not do so and instead expect each other to take charge. Thus, holding governments and corporations accountable through judicial means has become an attractive option. Climate-vulnerable countries like Vanuatu have a lot to gain from a favorable ICJ ruling. An ICJ’s advisory opinion has the ability to establish the link between human rights and climate change, potentially allowing national courts to litigate based on this precedent. However, given all the benefits, it is important to underscore that if nations, especially powerful ones in the global North, do not comply with the ICJ’s ruling, it would ultimately harm the legitimacy of international law.

November 17, 2022 0 comment