On the Illegality of Crimean Secession under International Law

Contemporary application of the principle of territorial integrity under International law raises serious concerns. Arguably, this issue is becoming popular once again now that the Crimean referendum has finally taken place with 95% of the Crimean population having voted for secession of Crimea from Ukraine,[1] which, in turn, renders the interests of the people of Crimea claiming secession incompatible with territorial interests of Ukraine. Continue reading

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Infographic: Armed Conflicts 1946-2013

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Have you ever wondered how many armed conflicts there’ve been since 1946 and what impact they had? Or maybe you’re interested in how many conflicts there are now and what states remain conflict-free? Suit up! A Contrario has prepared the infographics on armed conflicts since 1946 up to now that includes the most up-to-date information that will help you find the answers you are looking for.

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How High are High Officials: Analyzing Obama’s Speech on Syria

The early hours of August 21, 2013 saw a drastic turn in the Syrian conflict as a chemical weapons attack on civilians living in the agricultural belt around Damascus took place. Three days after the attack, medical charity Medecins Sans Frontieres confirmed that three hospitals it supports in Damascus had treated about 3,600 patients with “neurotoxic symptoms” on the day of the attack; 355 of these had died.[1] Ever since there’ve been mutual accusations of the use of chemical weapons by the countering parties, namely Assad’s regime and the rebels,[2] which also caused a split of views and stances on the international plane. Yet, despite the absence of the forthcoming United Nations [hereinafter UN] report on the attack,[3] the parties to the conflict and the international community are all of no doubt that the attack has taken place. 10 days after the beginning of the political turmoil within the ‘concerned’ international community President Obama issued a statement on Syria accusing the Assad’s regime of the attack on its own people and calling for a targeted military strike to deter the regime from using the chemical weapons ever again.[4]

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Superior Orders under the Rome Statute: a Flawed Development

Individual criminal responsibility for the violation of the provisions of International Humanitarian Law is the matter of International Criminal Law. The latter, in turn, envisages different forms of responsibility for the crimes committed as well as certain grounds upon which one may be relieved of the aforementioned responsibility. Article 33 of the Rome Statute of the International Criminal Court deals with individual responsibility in cases of superior orders or the prescription of law and states that:

1.         The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a)     The person was under a legal obligation to obey orders of the Government or the superior in question;

(b)     The person did not know that the order was unlawful; and

(c)     The order was not manifestly unlawful.

2.         For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.[1]

Several interesting issues should be pointed in respect to this. First, in order to relieve one of individual criminal responsibility under Article 33 its conditions (a), (b) and (c) have to be met cumulatively. Moreover, Article 33 won’t be of much help when committing a crime of genocide or a crime against humanity pursuant to an order of the government or a superior. Thus, given that the Rome Statute currently envisages only three crimes which fall under the jurisdiction of the Court (genocide, war crimes, crimes against humanity), meeting the aforementioned criteria cumulatively arguably relieves a person of criminal responsibility only for the committal of war crimes.

One should bear in mind that this provision of the Rome Statute is different from those of the Charter of the International Military Tribunal (the Nuremberg Tribunal), the Charter of the International Criminal Tribunal for the former Yugoslavia and the Charter of the International Criminal Tribunal for Rwanda which provided for individual criminal responsibility of subordinates notwithstanding the circumstances. The decision of the ICTY on the case of Dražen Erdemović is notable in this regard. On the 16 of July 1995 Dražen Erdemović, a soldier of the 10th Sabotage Detachment, and others received an order to execute 1000-1200 men and boys who had surrendered to the members of the Bosnian Serb police or army near Srebrenica. Erdemović allegedly resisted the order, but was then told that he either shot them, or hand his gun to another, and join those to be killed. Erdemović followed the order and performed the execution. He was brought before the ICTY and found guilty notwithstanding the circumstances since the ICTY Charter did not contain provisions on the relief of criminal responsibility.[2] This was fortunately fixed in the Rome Statute, yet, one might argue that the latter has its own flaws.

Since the provisions of Resolution RC/Res.6[3] adopted at the Kampala Conference and amending the Rome Statute do not affect Article 33, one can reasonably argue that meeting its three criteria cumulatively also relieves one of criminal responsibility for the committal of the crime of aggression. The definition of the crime of aggression is set in Article 8 bis (1) of the Rome Statute:

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

To narrow it down a bit in order for there to be a crime of aggression there has to be an act of aggression which constitutes a manifest violation of the UN Charter. Bearing in mind that the three criteria have to be met cumulatively a person is relieved of criminal responsibility only if the order of a superior or the government is not manifestly unlawful. If these two statements are put together, the following question arises: can an order to perform an act constituting a manifest violation of the UN Charter be not manifestly unlawful? I doubt it.

Moreover, as argued by P. Gaeta, “if the performance of an order by a superior implies the commission of a war crime, the order cannot but be considered manifestly unlawful, given the very serious nature of the conduct prohibited by the international rules on such crimes. The illegality of an order which constitutes a grave breach of the 1949 Geneva Convention (such as the order to kill, torture or threat inhumanely persons protected by the Conventions) is obvious.”[4]

Therefore, the provision of Article 33(1)(c) of the Rome Statute read in conjunction with Article 33(2) is arguably futile since it can hardly be applied to any crime at all, however, in the absence of any judicial practices in this respect it is hard to tell whether the ICC will unconditionally decline the challenges raised under it. Moreover, currently the Court primarily focuses on superiors and given that it operates in a highly charged political atmosphere and still has to assert itself within the international community the application of Article 33(1)(c) is not likely to happen within the near future.

Written by Jan Guardian


[1]       UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, Article 33 [online][accessed 31 July 2013].

[2]       Prosecutor v. Dražen Erdemović (Sentencing Judgement), IT-96-22-Tbis, International Criminal Tribunal for the former Yugoslavia (ICTY), 5 March 1998 [online][accessed 31 July 2013].

[3]       Kampala Review Conference, Resolution RC/Res. 6, 13th Plenary Meeting, June 11, 2010, I.C.C. Doc. RC/Res. 6 [online][accessed 31 July 2013].

[4]       Paola Gaeta, The Defence of Superior Orders, 10 EJIL 172 (1999), p. 185 [online][accessed 31 July 2013].

Transnational Organized Crime in the Commonwealth of Independent States: a Brief Characterization

Official statistics on Transnational Organized Crime (hereinafter – TOC) in the Commonwealth of Independent States (hereinafter – CIS) does not exist. According to some experts, more than 300 organized groups and criminal organizations in the CIS have international connections, i.e. accomplices, divisions or isolated groups in other states.[1] Most of these connections, however, are limited to the CIS countries themselves.

This phenomenon is conditioned by the nature of the respective types of TOC, with the following being the most dangerous in the CIS:

  • Terrorism;
  • Drug trafficking;
  • Trafficking in weapons and ammo;
  • Smuggling of alcohol, oil, gas and securities;
  • Smuggling of motor vehicles;
  • Laundering;
  • Counterfeiting.

TOC in the CIS does not differ that much from the TOC throughout the world, except for it has its own arguably unique features:

  • A fairly successful infiltration into the highest governmental bodies;
  • Intense association as to both effectively counter criminal prosecution and to crowd out the leading criminal structures from their markets in Europe and in the United States;
  • Focus on long-term export of illicit assets outside the CIS;
  • Frequent resort to assassinations and extortion as a means of redistribution of influence;
  • Focus on securing transport routes for drug trafficking from the Asian and Caucasian regions to the Western Europe;
  • A critically high number of criminal associations having strong connections with corrupt authorities including police, local governmental authorities and their bodies;
  • Centralization on the Moscow region as a financial bridge between criminal organizations of the CIS and the rest of the world.[2]

The development of TOC in recent decades might be considered as a process of rational reorganization of criminal enterprises on the international plane analogous to that of legal enterprises in the economic market. Besides, national and international criminal organizations’ structures are very similar to those of big corporations: both have labor division aimed at extracting maximal profits and ensuring minimal risks. TOC entities in the CIS, however, did not appear spontaneously: they were growing in numbers in proportion to the growth of political and social instability caused by rapid and erroneous changes in the economy and politics.

CIS criminals act coordinately in single criminal zones of their countries. The growth trend of TOC which is common to many countries around the world will be common to the CIS at least for a couple of decades. One can hardly believe that TOC entities will not exploit such favorable conditions as the simplified procedure for crossing the border, the establishment of free economic zones, the weakness of the legal framework governing the fight against TOC and inadequate border and customs control.

The development of international relations simultaneous to the increase of crime entails the growth of the criminal environment activities on establishing new transnational connections and the growth of the number of transnational crimes, with one of the indicators that proves such merging of criminal entities across the CIS being human trafficking.

Studies on TOC in the CIS show that there are peculiarities in the geography of criminal activities: Central Asia is favorable for drug trafficking, the Far East – for smuggling cars and extortion.

Current practices suggest that the main features of TOC entities in the CIS are:

  • Regular acquisitions of goods in countries where some members of a criminal group reside and their subsequent export to countries of other criminal members where the goods are in a higher demand;
  • The presence of mixed organized groups whose primary focus is smuggling and illegal export of large quantities of goods;
  • A large network of goods marketing operating under single leadership;
  • A network of currency exchange for illicit financial assets;
  • Export channels for illicit assets.[3]

Written by Jan Guardian


[1]     Bekryashev A., Belozyorov I., Shadow Economy and Economic Crime. Moscow: Open Society Institute (2000), chapter 3 [online][accessed: June 26, 2013].

[2]     Erkenov S., Transnational Crime: State and Transformation, Bilenchuk P. (ed.) K: Atika (1999), chapter 1 [online][accessed: June 26, 2013].

[3]     Gevorgyan G., State of transnational organized crime in the CIS, “Black Holes” in Russian Legislation 1 (2003), p. 276 [online][accessed: June 26, 2013].

Extraordinary Rendition and the ICC

Contemporary international practices in fighting crimes and, especially, those related to the exercise of the jurisdiction over a suspected criminal envisage a possibility of implementation of a set of mechanisms used for his search and subsequent committal for a trial which inter alia may include extradition and other interstate procedures.[1] However, these practices show that extradition as a form of international cooperation is referred to by the states more frequently than the others, whereas the procedure of surrender is exercised solely on the basis of the mutual will of the sovereign states concerned subject to the application of the requesting state, consent of the surrendering state and the latter’s compliance with the principle aut dedere aut judicare in cases of committal of serious international crimes by the suspect.[2]

On the other hand, even when the aforementioned application has been made by the requesting state, the surrendering states are sometimes unable to detect the location of the suspect. In such cases states may search for the suspects proprio motu and resort to transnational abduction from the territory of another state. Moreover, these actions are often undertaken notwithstanding the existence of an extradition treaty which provides for the use of regular legal procedures ensuring prosecution or execution of punishment.[3]

In this respect, while such a resort to irregular means of surrender of the fugitive has almost unilaterally been defined by scholars as ‘extraordinary rendition’,[4] there is still a continuous debate on whether a court should exercise its jurisdiction over such a person and what the necessary prerequisites and possible consequences are.[5] This issue has somewhat been pleaded in few domestic and international proceedings across the globe and is enshrined in the famous doctrine male captus bene detentus,[6] which provides for the possibility of the expansion of extraterritorial jurisdiction of the state, abduction of the fugitive and the exercise of the jurisdiction by the court notwithstanding the circumstances of a person’s arrest.

Nonetheless, given the growing number of such instances, yet, little and controversial reflection of the matter in national and international law this dilemma has become even more worrying with the establishment of the International Criminal Court (hereinafter ICC) in 1998, whose Statute does not contain any provisions in respect to the issue at stake.[7]

One should bear in mind that rendition as means of eliminating secure zones for criminals and, in particular, terrorists, should not at the same time undermine international legal order which is based on the principles of state sovereignty and non-interference which prohibit any illegal intrusion in the surrender of the suspect as well as the exercise of forcible actions in the territory of another state without latter’s knowledge and consent. Moreover, when there is a serious violation of the rights of the suspect regardless of whether it occurs due to the actions of states, individuals or international institutions, there arises a legal impediment which may trigger the unwillingness of the judicial body to exercise its jurisdiction for the sake of integrity and stability of international legal order and human rights as its integral part.

Unfortunately, the Rome Statute of the ICC does not contain any provision in respect to extraordinary rendition as such. Arguably, the only applicable provisions concern the legality of arrest of the accused and certain human rights. Article 59(1), for example, imposes an obligation on State Parties to apprehend suspects upon the request from the Court.[8] This, however, is to be done “in accordance with the law of that state,” while according to Article 59(2) the arresting state must also have a “competent judicial authority” determining, “in accordance with the law of that State, that:…(b) the person has been arrested in accordance with the proper process; and (c) the person’s rights have been respected.”[9]

Some scholars argue that the aforementioned Article does not entail the right of the accused to have the lawfulness of his arrest or detention reviewed by a domestic court, nonetheless, bearing in mind that it may follow from human rights conventions to which the requested State is a party.[10] As regards the human rights of the accused, Article 55(1) of the Rome Statute envisages that no one shall be subjected to arbitrary arrest or detention.[11] Article 21(3), in turn, provides that the law shall be interpreted and applied by the Court in a way consistent with internationally recognized human rights.

However, the Rome Statute is silent as to the right of the requested state to decline the surrender on the grounds of an illegal arrest. This, in turn, leads to believe that the obligation of the requested state to surrender the suspect to the ICC is supreme over any national law that might allow the domestic court to decline such a surrender when the suspect has been subjected to illegal arrest or detention. Therefore, it is up to the ICC as to consider the violation of human rights of the suspect, and, as provided by Article 85(1) to arbiter compensation to anyone who has been the victim of an unlawful arrest or detention.[12] However, the Rome Statute and the Rules of Procedure and Evidence do not provide a definite answer to the issue of whether and when the Court should exercise its jurisdiction in cases of extraordinary rendition.

The uncertainty in this respect was about to change on 14 December 2006, when the Appeals Chamber had to reconsider the application lodged by Thomas Lubanga Dyilo.[13] Mr. Dyilo challenged the Court’s ability to exercise jurisdiction over him under Article 19(2) of the Rome Statute before the Pre-Trial chamber. In his application Mr. Dyilo alleged that he had been subjected to mistreatment when he was detained in the Democratic Republic of the Congo prior to his surrender to the ICC which the Prosecutor had been complicit in. He alleged that it constituted the abuse of process and applied for the dismissal of the case.

Referring to Nikolić and Barayagwiza the Pre-Trial Chamber stated that it could potentially dismiss the case as a remedy for abuse of process and on the protection of the fundamental rights of the accused in Article 21(3). However, the Chamber had to decline the application due to the lack of evidence in support of complicity and mistreatment. This has been reconsidered by the Appeals Chamber whose findings varied drastically. The Chamber stated, that the issue was not that of jurisdiction, but rather “a procedural step not envisaged by the Rules of Procedure and Evidence or the Regulations of the Court invoking a power possessed by the Court to remedy breaches of the process in the interests of justice.”[14] Further on, the Chamber reviewed the doctrine of abuse of process and stated that since the concept is not really known to civilian systems, the doctrine “is not generally recognized as an indispensable power of a court of law, an inseverable attribute of judicial power,” and therefore was not among any inherent powers the ICC had.[15] Nonetheless, the Chamber stated that the human rights standards imposed by Article 21(3) imply the Court’s power to stay proceedings if the treatment of the accused interferes with the right to a fair trial.[16] In particular the Court confirmed that there must be a human rights-based remedy available to the accused under Article 21(3) of the Rome Statute, however, declining to characterize it as a “jurisdictional” power.

The aforementioned approach seems balanced and justified. Nevertheless, if the ICC decides to change it, there will certainly be cases where prosecuting universally condemned offences will by itself create threats to international peace and security. Notably, the ICC operates in a highly-charged political atmosphere and even a minor disregard of illegality might provoke a political conflict, which will worsen the situation and damage the legitimacy and credibility of the ICC.[17] Therefore, it is highly advisable that these practices have no future before the Court.

Written by Jan Guardian


[1]      See Aparna Sridhar, The International Criminal Tribunal for the Former Yugoslavia’s Response to the Problem of Transnational Abduction, 42 Stan. J. Int’l L. 343 (2006) [hereinafter Sridhar, ICTY Response], at 343-344.

[2]      Ozlem Ulgen, The ICTY and Irregular Rendition of Suspects, 2 Law & Prac. Int’l Cts. & Tribunals 441 (2003), at 441.

[3]      See e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992).

[4]      Laura Barnett, Extraordinary Rendition: International Law and the Prohibition of Torture, (rev. July 17, 2008) [online][accessed 1 May 2013].

[5]      Frederick Alexander Mann, Reflections on the Prosecution of Persons Abducted in Breach of International Law, in International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Yoram Dinstein ed., 1988), at 414.

[6]      Douglas Kash, Abducting Terrorists Under PDD-39: Much Ado About Nothing New, 13 Am. U. Int’l L. Rev. 139 (1997) [hereinafter Kash, Abducting Terrorists], at 141.

[7]      UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9 [hereinafter Rome Statute][online][accessed 1 May 2013].

[8]       Ibid., Article 59(1).

[9]       Ibid., Article 59(2).

[10]        B. Swart, Arrest Proceedings in the Custodial State, in the Rome Statute of the International Criminal Court, Vol. II (A. Cassese, P. Gaeta and J.R.W.D. Jones, eds , 2002), at 1252.

[11]     Rome Statute, supra note 7, Article 55(1).

[12]     S. Zappala, Compensation to an Arrested or Convicted Person, in A. Cassesse, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford-New York: Oxford University Press, 2002) 1577, at 1580.

[13]     Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2) of the Statute of 3 October 2006), Case No. ICC-01/04-01/06 (OA4), 14 December 2006 [online][accessed 1 May 2013].

[14]     Ibid., para. 24.

[15]     Ibid., para. 35.

[16]     Ibid., para. 37.

[17]     John Rosenthal, A Lawless Global Court: How the ICC Undermines the UN System, Policy Review, February – March 2004, at 29.

The Last Resort

Terrorism

Until the dramatic events of September 2001 terrorism was perceived as an exceptional and a rare phenomenon, which didn’t quite bother specialists of any field. Today there is hardly a person who has never though about the roots and the nature of this evil. The growing threat takes multiple forms, including transnational groups targeting means of transport, planning attacks with weapons of mass destruction or through the Internet, or resorting to new channels to finance their acts.[1] And even though we may disapprove of it, terrorists can indeed assemble plausible if not logical arguments in defense of their actions.

However, whatever the ideological motives of terrorist groups are one should, consider the reasons for a choice of this means of warfare in the first place as to develop an effective doctrine to combat it. As Major Robert W. Cerney states, “terrorists exercise their right to fight for what they believe in the only way they can with any hope of survival till the eventual achievement of their goal.”[2] Terrorism as a means of warfare indeed proves to be successful, but the key point in Maj. Cerney’s assertion is that it’s the only feasible option for those waging an asymmetric war.

It is worth mentioning, that none of the conflicts is perfectly symmetrical, but the wider the gap, the dirtier it gets. Today with only one remaining superpower and more generally the considerable and predictably widening technological divide, a huge imbalance in the capacity of warring parties has become a characteristic feature of any contemporary armed conflict.[3] The wide disparity between the parties, primarily in military and economic power, potential and resources, provides for a need for a form of violence that serves as a force multiplier that maximizes the outwardly limited resources in confrontation with an incomparably stronger opponent that a party cannot effectively challenge by conventional means. Given the inability to fight on the enemy’s own ground and to challenge a stronger opponent on equal terms, the weaker, lower status side has to find some other ground and to rely on other resources to establish a two-way asymmetry.[4] This, in turn, conditions the terrorists’ modus operandi: attacking the enemy’s weakest points, namely, its civilians and non-combatants, thus, not conforming to international legal standards. Yet, why would one play by the system rules when those rules are established to support a system fought…

Western societies are becoming more vulnerable due to many factors, including global communications, travel, and the proliferation of weapons technology, as well as the fact that the number of relatively deprived people in failing societies is growing.[5] The threat of terrorism forces them to respond by increasing homeland security measures. The latter have reduced the number of attacks by 34 percent, limiting the number of terrorism victims to an average of 67 a year and having cost the developed countries roughly US$70 billion since 2001.[6] The material cost of a suicide bombing, in turn, is as low as $150(US), and results in an average of 12 deaths, spreading enormous fear throughout the targeted population.[7] Thus, it amounts to an estimated $5.8(US) billion a year protecting 34 innocent lives which might be deprived at a price of $425(US). Apart from this financial asymmetry, one should also bear in mind that terrorism is responding to new security challenges with new approaches having the same bloodshed effect.

To this end, terrorism seems to be the last if not the only resort of the weaker parties trying to shift the balance and restore the warfare symmetry with any means possible. Given that the means are dirty and that terrorism will not conform to international standards, we must adapt to it and consider a more effective, yet legal, strategy of combating it with a view of its asymmetric character.

Written by Jan Guardian


[1]       United Nations Office on Drugs and Crime, The Universal Legal Framework Against Terrorism. New York (2010), p. iii.

[2]       Major Robert W. Cerney, International Terrorism:  The Poor Man’s Warfare. Executive Summary. USMC CSC 1991 [online][accessed 28 March 2013].

[3]       Robin Geiss, Asymmetric Conflict Structures. International Review of the Red Cross, Vol. 88, 864, December 2006, 757-758.

[4]       Ekaterina Stepanova, Terrorism in Asymmetrical Conflicts: Ideological and Structural Aspects. SIPRI Research Report No. 23. OxfordUniversity Press (2008), p. 20.

[5]       Shahram Chubin, Jerrold D. Green, Terrorism and Asymmetric Conflict in Southwest Asia. RAND (2002), p. 7.

[6]       Bjorn Lomborg, Is counterterrorism good value for money? NATO review 4 (2008) [online][accessed 29 March 2013].

[7]       Ibid.