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

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].