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Case Law

2022/1 EELC’s review of the year 2021

Journal European Employment Law Cases, Issue 1 2022
Authors Niklas Bruun, Filip Dorssemont, Zef Even e.a.
Abstract

    Various of our academic board analysed employment law cases from last year.


Niklas Bruun

Filip Dorssemont

Zef Even

Ruben Houweling

Marianne Hrdlicka

Anthony Kerr

Attila Kun

Jean-Philippe Lhernould

Daiva Petrylaitė

Luca Ratti

Jan-Pieter Vos
Developments in International Law

The Decision on the Situation in Palestine Issued by Pre-Trial Chamber I of the International Criminal Court

Reflecting on the Legal Merits

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords International Criminal Court, ICC, Palestine, Oslo Accords, jurisdiction
Authors Rachel Sweers
AbstractAuthor's information

    On 5 February 2021, the Pre-Trial Chamber I of the International Criminal Court (ICC) issued its decision on the Situation in Palestine affirming that its territorial jurisdiction extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem. The Situation was brought before the Chamber by request of the ICC’s Prosecutor. Legal issues were addressed in the Majority Decision, as well as in the Partly Dissenting Opinion and Partly Separate Opinion. The procedural history involving the Prosecution Request that seized the Chamber on the Situation in Palestine will be discussed, including a brief analysis of the legal basis for this request. Furthermore, the legal merits of the Situation in Palestine will be compartmentalized into three main pillars in order to analyze step by step how the Chamber reached its conclusion.


Rachel Sweers
Rachel Sweers: legal intern, International Criminal Court, the Hague.
Review of Hungarian Scholarly Literature

Tamás Szabados, Economic Sanctions in EU Private International Law (Book Review)

Hart Publishing, Oxford, 2020, 280 p, ISBN 978-1-509-93351-8

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Authors Susanne Gössl
Author's information

Susanne Gössl
Susanne Gössl: professor of law, Christian Albrechts University, Kiel.
Case Law

Access_open 2021/1 EELC’s review of the year 2020

Journal European Employment Law Cases, Issue 1 2021
Authors Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka e.a.
Abstract

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont
Article

Regional Differentiation in Europe, between EU Proposals and National Reforms

Journal European Journal of Law Reform, Issue 3 2020
Keywords regional differentiation, regional disparities, autonomy, regionalism, subsidiarity, European Union, multilevel governance
Authors Gabriella Saputelli
AbstractAuthor's information

    Regions and local governments play a very important role in the application of European law and in the implementation of European policies. The economic crisis of 2008 has accentuated territorial and social differentiation and highlighted the negative effects of globalization. This circumstance has created resentment among peripheral and marginal communities in the electoral results, but also a strong request for involvement, participation and sometimes independence from territories. These developments raise new questions about the relationship between the EU and the Regions and, more widely, about the role of subnational entities in the EU integration process, as they are the institutions nearest to citizens.
    The aim of this article is to contribute to that debate by exploring the following research question: ‘is subnational differentiation positive or negative for European integration?’ Towards a possible answer, two perspectives are examined from a constitutional law approach. From the top down, it examines the attitude of the EU towards regional differentiation, from the origins of the EU integration process and its development until recent initiatives and proposals. From the bottom up, it analyses the role of subnational entities by presenting the Italian experience, through the reforms that have been approved over the years until the recent proposal for asymmetric regionalism. The aim is to understand whether regional differentiation still represents a positive element for the European integration process, considering the role that subnational entities play in many policies and the challenges described earlier.


Gabriella Saputelli
Researcher of Public Law at the Institute for the Study of Regionalism, Federalism and Self Government (ISSiRFA) of the National Research Council (CNR).
Article

The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity

Incitement/Conspiracy as Missing Modes of Liability

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords modes of liability, International Law Commission, crimes against humanity, incitement, conspiracy
Authors Joseph Rikhof
AbstractAuthor's information

    The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity does not include the inchoate crimes of conspiracy or incitement. However, this choice has generated a great deal of academic commentary. This article critically assesses the choice of the drafters to exclude conspiracy and incitement liability, arguing that their decision was flawed. It examines the comments made by academics, as well as participants in the work of the Commission on this draft convention. Additionally, it scrutinizes the methodology employed by the Commission in reaching this conclusion. Finally, it presents a conceptual analysis of the desirability for the inclusion of these two inchoate crimes, arguing that their inclusion would assist in meeting the policy of preventing crimes against humanity.


Joseph Rikhof
Adjunct Professor, University of Ottawa.
Article

A Civil Society Perspective on the ILC Draft Convention on Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, impunity, aut dedere aut judicare, amnesties, reservations
Authors Hugo Relva
AbstractAuthor's information

    In a relatively short period of time, the International Law Commission has accomplished the impressive task of drafting and adopting the text of the Draft Articles on Prevention and Punishment of Crimes against Humanity. The Draft Articles circulated to states are promising. However, a number of substantive amendments appear to be necessary if the Draft Convention is to become a powerful tool “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”, as stated in the Preamble. Moreover, in order to avoid the rapid ossification of the new potential treaty, it is advisable for the articles to reflect the most significant developments in international law, and also allow for future progressive developments in the law, instead of reflecting a lowest common denominator acceptable to all states. This article suggests some revisions to existing provisions, new provisions which may make the text much stronger and finally identifies some important omissions which should be fixed by states at the time of adopting the Draft Convention.


Hugo Relva
Legal adviser, Amnesty International.
Article

The ILC Draft Articles on Crimes Against Humanity

An African Perspective

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords Africa, norm creation, crimes against humanity, colonial crimes, official immunity
Authors Alhagi B.M. Marong
AbstractAuthor's information

    Africa’s contribution towards the development of the International Law Commission (ILC) Draft Articles should not be assessed exclusively on the basis of the limited engagement of African States or individuals in the discursive processes within the ILC, but from a historical perspective. When analysed from that perspective, it becomes clear that Africa has had a long connection to atrocity crimes due to the mass victimization of its civilian populations during the colonial and postcolonial periods and apartheid in South Africa. Following independence in the 1960s, African States played a leading role in the elaboration of legal regimes to deal with international crimes such as apartheid, or in the development of accountability mechanisms to respond to such crimes. Although some of these efforts proved unsuccessful in the end, the normative consensus that was generated went a long way in laying the foundations for the Rome Statute of the International Criminal Court, which, in turn, influenced the conceptual framework of the ILC Draft Articles. This article proposes that given this historical nexus, the substantive provisions and international cooperation framework provided for in the future crimes against humanity convention, Africa has more reasons to support than to oppose it when negotiations begin at the United Nations General Assembly or an international diplomatic conference.


Alhagi B.M. Marong
Senior Legal Officer, United Nations Assistance Mission in Afghanistan (UNAMA).
Article

Time to Deliver

Defining a Process Towards the Negotiation of a Convention on the Prevention and Punishment of Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords Sixth Committee, International Law Commission, intergovernmental negotiations, multilateral treaties, treaty-making process
Authors Pablo Arrocha Olabuenaga
AbstractAuthor's information

    In 2019, the International Law Commission (ILC) adopted its articles on the prevention and punishment of crimes against humanity and referred them to the UN General Assembly with the recommendation of adopting a multilateral treaty based on them. The General Assembly’s Sixth Committee was unable to take a decision on this matter and deferred its consideration to 2020. This article focuses on how, in resuming its discussion, the Sixth Committee will have a unique opportunity to define the process towards intergovernmental negotiations. This will close a gap in international criminal law, while generating a new dynamic in its relationship with the ILC on codification, breaking its current cyclical inertia of inaction.


Pablo Arrocha Olabuenaga
Vice-president of the Seventy-fourth Session of the Sixth Committee of the General Assembly, Legal Adviser of the Permanent Mission of Mexico to the United Nations and personal assistant to the ILC’s Special Rapporteur for the topic ‘provisional application of treaties’, Mr. Juan Manuel Gómez-Robledo.
Article

Crimes Against Humanity in the “Western European & Other” Group of States

A Continuing Tradition

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Western Europe and Other Group of States, WEOG, Draft Articles on the Prevention and Punishment of Crimes Against Humanity
Authors Beth Van Schaack
AbstractAuthor's information

    The Western Europe and Other Group of states have a long history with crimes against humanity. They were pivotal in the juridical creation of this concept, in launching prosecutions in both international and national courts, and in formulating the modern definition of the crime. However, some members have expressed concerns around the International Law Commissions Draft Articles on the Prevention and Punishment of Crimes Against Humanity. This article provides a summary of the history of crimes against humanity in the Western Europe and Other Group of states, as well as the current status of crimes against humanity in their legal systems. It argues that although these states have successfully incorporated crimes against humanity into their legal frameworks, it would be beneficial for them to embrace the proposed Crimes Against Humanity Convention.


Beth Van Schaack
Leah Kaplan Visiting Professor of Human Rights, Stanford Law School.
Article

Defining Crimes Against Humanity

Practicality and Value Balancing

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Rome Statute, Draft Articles, state sovereignty
Authors Margaret M. deGuzman
AbstractAuthor's information

    Since crimes against humanity were first defined in the Charters of the International Military Tribunals at Nuremberg and for the Far East, various international, hybrid and national institutions have adopted definitions that differ in important respects. The International Law Commission’s draft articles are the latest definition, using language that is almost identical to the definition in the Rome Statute of the International Criminal Court. This article explains that decision, as well as the few divergences between the draft articles and the Statute. Defining crimes against humanity involves balancing the value of respecting state sovereignty against that of protecting human rights, and the values of consistency and clarity against those of breadth and flexibility. It argues that in adopting the draft articles, states will affirm the balance among these values that was struck in Rome, but that both definitions contain sufficient flexibility to permit new balances to be found as global values evolve.


Margaret M. deGuzman
Professor Margaret M. deGuzman is James E. Beasley Professor of Law and Co-Director of the Institute for International Law and Public Policy at Temple University’s Beasley School of Law.
Article

Relating to ‘The Other’

The ILC Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance Initiative

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords International Law Commission (ILC), Draft Convention on Crimes Against Humanity, Mutual Legal Assistance (MLA) initiative, crimes against humanity, international criminal law
Authors Larissa van den Herik
AbstractAuthor's information

    The International Law Commission (ILC) Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance (MLA) Initiative have largely run in tandem throughout their development. Both projects are motivated by similar gap-filling desires and both projects aim to expand the international criminal justice toolkit; however, these similarities have led to questions if both projects are necessary. This article addresses that question, looking at how different actors have answered this question during the respective processes of maturation of both projects and where both projects stand today. It argues that, while there is significant overlap between the projects, both instruments have merits which the other is lacking, and the optimal solution would be to bring both projects to fruition.


Larissa van den Herik
Prof. Dr. L.J. van den Herik is professor of public international law at the Grotius Centre for International Legal Studies at Leiden University.
Article

Unlocking the Sixth Committee’s Potential to Act for Crimes Against Humanity as It Did for Genocide

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, General Assembly, International Law Commission, Sixth Committee, United Nations
Authors Michael Imran Kanu
AbstractAuthor's information

    The International Law Commission, on completion of its work on the draft articles on prevention and punishment of crimes against humanity, recommended to the General Assembly the elaboration of a convention by the said Assembly or by an international conference of plenipotentiaries based on the said draft articles. The Sixth Committee of the United Nations General Assembly at the first opportunity only took note of the draft articles and postponed consideration of the recommendation to its next session. The resolution of the General Assembly, as recommended by the Sixth Committee, does not readily disclose the full extent of the debate, proposals and concerns expressed in the Sixth Committee that prevented the General Assembly from acting on the Commission’s recommendation. This article, in considering the cornucopia of views expressed by States, outlines a path to unlock the Sixth Committee’s potential to act, by proposing a separation of the organizational and substantive matters and future-proofing the further consideration of elaborating a convention through the adoption of a structured approach.


Michael Imran Kanu
Michael Imran Kanu is a Doctor of Juridical Science (CEU, Budapest and Vienna), and currently Ambassador and Deputy Permanent Representative for Legal Affairs, Permanent Mission of the Republic of Sierra Leone to the United Nations. michaelimrankanu@gmail.com.
Article

Why a Crimes Against Humanity Convention from a Perspective of Post-Soviet States?

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, criminal law, ICC Statute, implementation, post-Soviet States
Authors Sergey Sayapin
AbstractAuthor's information

    Most post-Soviet States have introduced penal responsibility for crimes against humanity, either explicitly or under alternative headings. As a rule, their respective criminal laws are modelled after relevant provisions of the Draft Code of Crimes against the Peace and Security of Mankind or the Rome Statute of the International Criminal Court. The International Law Commission’s adoption of the Draft Articles on Prevention and Punishment of Crimes Against Humanity represents an appropriate occasion for post-Soviet States that have not yet penalized crimes against humanity to bring their criminal laws into fuller conformity with customary international criminal law.


Sergey Sayapin
LLB, LLM, Dr. iur., PhD, Associate Professor of International and Criminal Law and Director of the LLB. in International Law Programme at the School of Law, KIMEP University (Almaty, Kazakhstan).
Article

Asian Perspectives on the International Law Commission’s Work on Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords Asian States, crimes against humanity, international criminal law, Draft Articles on Prevention and Punishment of Crimes Against Humanity
Authors Mari Takeuchi
AbstractAuthor's information

    No Asian States expressed regret over the failure of the Sixth Committee to reach a consensus on the elaboration of a convention on crimes against humanity. This article examines the comments of Asian States during the Sixth Committee debate on the final Draft Articles submitted by the International Law Commission, demonstrating that most States believed further discussions were needed. It situates these comments against the wider Asian approach to international criminal law, and argues that the concerns of the Asian States during the Sixth Committee are part of a broader context. In doing so, it suggests a common ground for future discussion and the progression of a convention.


Mari Takeuchi
Professor of International Law, Kobe University, Graduate School of Law, Japan.
Article

Interstate Cooperation and Why a Horizontal Treaty Would Make a Difference for ICC Investigations

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords cooperation framework, Draft Articles, international criminal law, International Criminal Court, interstate cooperation
Authors George William Mugwanya
AbstractAuthor's information

    The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity contain an obligation to implement an interstate cooperation regime. This article argues that although this regime is ‘horizontal’, it also has the potential to enhance the efficacy of investigations by the International Criminal Court (ICC). It provides a brief overview of the regime as set out in the Draft Articles, and the ICC’s cooperation regime, before exploring how the Draft Articles can fill some gaps in the ICC system. It also makes suggestions to improve the Draft Articles and strengthen the cooperation regime.


George William Mugwanya
Advocate, High Court of Uganda; Prosecution Appeals Counsel, International Criminal Court (ICC). Formerly Senior Appeals Counsel, UN International Criminal Tribunal for Rwanda, and Senior Lecturer, Makerere University Faculty of Law, he holds a JSD (summa cum laude), (Notre Dame Law School); LLM (Birmingham); LLM (with distinction) (Pretoria); LLB (Hons) (Makerere) and a Postgraduate Diploma in Legal Practice (Law Development Centre).
Article

Gender and the ILC’s 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords gender, crimes against humanity, international criminal law, Rome Statute
Authors Indira Rosenthal and Valerie Oosterveld
AbstractAuthor's information

    The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity document is the latest international instrument to address gender-based crimes under international law and the first to do so outside the context of international courts. The elaboration of a treaty on crimes against humanity provides a critical opportunity to affirm that gender-based crimes are among the gravest crimes under international law. This article examines discussions on the meaning of the term ‘gender’ under the ILC’s Draft Articles, with reference to the discussions two decades prior on the definition of ‘gender’ in the Rome Statute of the International Criminal Court, the basis for the Articles’ consideration of sexual and gender-based violence. It then turns to the ILC consultation process, and the 2019 discussion of the ILC’s Draft Articles in the Sixth (Legal) Committee of the United Nations General Assembly on the term ‘gender’. Additionally, it considers a number of concerns raised by States and civil society on the definition of some of the gender-based crimes included in the Draft Articles and concludes by arguing for a comprehensive gender analysis of all of the Draft Articles.


Indira Rosenthal
Indira Rosenthal, Independent Consultant, Gender, Law and Justice; PhD Candidate, Faculty of Law, University of Tasmania (Australia).

Valerie Oosterveld
Valerie Oosterveld, University of Western Ontario Faculty of Law (Canada).
Article

ILC Report on Prevention and Punishment of Crimes Against Humanity and Enforced Disappearance

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords enforced disappearance, without prejudice clause, Draft Articles, crimes against humanity, commentaries
Authors Claudio Grossman
AbstractAuthor's information

    This article values as an important milestone the Draft Articles on the Prevention and Punishment of Crimes Against Humanity. They greatly contribute to the development of international law, inter alia, seeking to prevent impunity and to establish the duty to prosecute or extradite those who have allegedly committed crimes against humanity. They are a solid basis for a possible diplomatic conference designed to adopt a convention that will establish binding obligations for all ratifying States. The Draft Articles took as a point of departure the Rome Statute of the International Criminal Court to list and define crimes against humanity, and, considering current developments in international law, departed from the Rome Statute so far in two matters: the definition of gender and the treatment of persecution. This article argues why it is essential to follow a similar approach and adopt the definition of enforced disappearance currently used in international conventions that deal with such a horrendous crime. The article also shows why the ‘without prejudice’ clause currently proposed by the Draft Articles is unsatisfactory, depriving States that do not follow the restrictive definition incorporated more than two decades ago in the Rome Statute from the benefits of the proposed convention.


Claudio Grossman
Professor of Law and Dean Emeritus, R. Geraldson Scholar for International and Humanitarian Law, American University Washington College of Law; Member, United Nations International Law Commission; and President, Inter-American Institute of Human Rights.
Article

Access_open Introduction to the Symposium on a Way Forward

Academic and Practitioner Perspectives on the ILC Draft Articles on Prevention and Punishment of Crimes Against Humanity as adopted on Second Reading

Journal African Journal of International Criminal Justice, Issue 2 2020
Authors Charles C. Jalloh and Leila N. Sadat
Author's information

Charles C. Jalloh
Charles C. Jalloh is Professor of Law, Florida International University and Member and Chair of the Drafting Committee (seventieth session) and Rapporteur (seventy-first session), International Law Commission. Email: jallohc@gmail.com.

Leila N. Sadat
Leila N. Sadat is James Carr Professor of International Criminal Law and Director, Whitney R. Harris World Law Institute, Washington University School of Law.
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