ICJ Issues Provisional Measures to Protect Guyana Territorial Rights Pending Court Decision on Validity of 1899 Border Agreement

By: Megan Mary Qualters

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – The International Court of Justice (hereinafter ICJ) ordered provisional measures to protect Guyana’s rights in highly contentious territory dispute with Venezuela.

 
Photo image of Venezuelan government revealing a map indicating the “Guayana’s Esequiba” as Venezuelan territory | Photo Courtesy of the New York Times, see Gaby Oraa/Getty Images.
  

Procedural History

In March 2018, the Co-operative Republic of Guyana’s government (hereinafter “Guyana”) filed proceedings against the Bolivarian Republic of Venezuela (hereinafter “Venezuela”). The legal issue is whether the Arbitral Agreement of 1899, which establishes the border line between Guyana and Venezuela, in a region called the “Guayana Esequiba,” is legally valid. Guyana claims it is valid and thus grants the Esequiba to Guyana, but Venezuela claims it is void and argues that the Esequiba is Venezuelan territory.

On October 23, 2023, Venezuela published a list of five questions it planned to use in a “Consultative Referendum,” to be held on December 3, 2023. The questions asked for support in rejecting the validity of the 1899 Award, the ICJ’s jurisdiction, and advocated for an accelerated plan to incorporate the Esequiba into Venezuela.

On October 30, 2023, in response to Venezuela’s questions and referendum plans, Guyana requested the ICJ issue provisional measures to prevent Venezuela from publishing its questions, ultimately asking the ICJ to protect its rights to the Esequiba region while the validity of the 1899 Award is pending.

On November 14 and 15, 2023, the ICJ heard oral arguments from both parties regarding the issue of provisional measures. Guyana asked the Court to order the following provisional measures, while Venezuela asked the court to reject the request.

  1. “Venezuela shall not proceed with the Consultative Referendum planned for 3 December 2023 in its present form;
  2. In particular, Venezuela shall not include the First, Third or Fifth questions in the Consultative Referendum;
  3. Nor shall Venezuela include within the ‘Consultative Referendum’ planned, or any other public referendum, any question encroaching upon the legal issues to be determined by the Court in its Judgment on the Merits . . .
  4. Venezuela shall not take any actions that are intended to prepare or allow the exercise of sovereignty or de facto control over any territory that was awarded to British Guiana in the 1899 Arbitral Award.
  5. Venezuela shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”

Required Elements of an ICJ Provisional Measure

The ICJ, after affirming its 2020 Judgement that it has the necessary jurisdiction to adjudicate the claims of Guyana, turned to Article 41 of the ICJ Statute, which focuses on the preservation of rights claimed by parties in a case. To issue provisional measures the Court must find (1) the rights claimed by a party is plausible, (2) there is a link between the right claimed and the provisional measure requested, and (3) without the provisional measure “there is a real and imminent risk that” (4) “irreparable prejudice will be caused to the rights claimed before the Court gives its final decision.”

Here, the Court found that Guyana’s right to “preservation and protection of its right to the territory” is plausible. The Court notes that a right’s existence need not be proven, it only need be asserted plausible. Therefore, the Court need not determine which country has a right to the territory, but only that Guyana could have a plausible right to the Esequiba. The Court held that the existence of the 1899 Award and the dispute itself are sufficient to give Guyana a plausible right to the Esequiba.

Moreover, the Court found there is a link between the plausible right and the provisional measure sought. Guyana “seeks to ensure” that Venezuela does not prepare to, or exercise control of, the territory awarded to Guyana in the 1899 Award, which the ICJ considers a measure “aimed at protecting Guyana’s right which the Court has found plausible.”

Lastly, the Court turned to “Venezuela’s expressed readiness to take action with regard to the territory in dispute in these proceedings at any moment following the referendum scheduled for 3 December 2023” as sufficient evidence to find that Guyana is at serious risk of irreparable prejudice, and that the risk of this is urgent in a real and imminent sense.

ICJ’s December 1 Order

Due to the reasons above, the Court found it necessary to issue a provisional measure to protect Guyana’s right to the Esequiba.  However, the Court found the measures provided need not match exactly what Guyana requested. Its resulting provisional measure consisted simply of ordering Venezuela to refrain from taking any action “which would modify the situation that currently prevails in the territory in dispute” and that both Parties “shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” The ICJ has yet to determine the validity of the 1899 Award.

For further information, please see:

ICJ – Order of 1 December 2023 – 1 Dec. 2023

ICJ – Arbitral Award of 3 October 1899 (Guyana v. Venezuela) Latest Developments

New York Times – Venezuela Renews Claims to Part of Guyana, the Oil-Rich ‘Second Qatar’ – 21 Dec. 2023

South Africa Initiates Proceedings in ICJ Against Israel for Violations of the 1948 Genocide Convention in Gaza

By: Garrison Funk

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On December 29, 2023, South Africa initiated proceedings in the International Court of Justice against the state of Israel for its actions in the Gaza Strip, accusing Israel of violating the 1948 Genocide Convention due to its treatment of Palestinians throughout the conflict with Hamas. Israel has confirmed it will appear at the proceedings to fight the allegations.

 
Judges at the International Court of Justice at The Hague | Photo Courtesy of Al Jazeera, Remko De Waalepa/EFE/EPA
  

South Africa pointed to the ongoing humanitarian crisis and magnitude of death and destruction in Gaza, stating such action meets the threshold of the 1948 Convention under international law. South Africa has also requested the Court order an injunction on any further Israeli attacks in the region.

Israel’s actions in the Gaza Strip have been a part of a three-month long campaign against Hamas, the perpetrators of the October 7, 2023, terrorist attack in Israel which led to the deaths of approximately 1,200 Israelis. Israel responded by launching a series of airstrikes into Gaza, targeting suspected Hamas strongholds, prior to launching a full-scale ground invasion of the Gaza Strip on October 27, 2023. Since the start of the invasion, the Palestinian Ministry of Health in Gaza has reported the death toll to exceed 22,000.

South Africa claims Israel’s actions violate obligations set under the 1948 Genocide Convention. The Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Israel has pushed diplomatic cables requesting countries to denounce the claims and pointed to its effort to increase humanitarian support in the region to refute the idea of genocide. The United States has already stated its support for Israel, calling South Africa’s submission “meritless, counterproductive, and completely without any basis in fact whatsoever.” However, pro-Palestine countries such as Turkey and Jordan have both expressed their support for South Africa’s challenge.

Israel has boycotted the ICJ and its rulings for decades, and its participation in this instance as a signee to the 1948 Genocide Convention speaks volumes of the importance of this issue to Israel. The case is set to be heard by the ICJ on January 11, 2024.

For further information, please see:

Al Jazeera – Israel promises to fight South Africa genocide accusation at ICJ – 2 Jan. 2024

Axios – Inside Israel’s plan to quash South Africa’s Gaza genocide case – 5 Jan. 2024

CSIS – Hamas’s October 7 Attack: Visualizing the Data – 19 Dec. 2023

The Guardian – Stakes high as South Africa brings claim of genocidal intent against Israel  – 4 Jan. 2024

ICJ – Application Instituting Proceedings – 29 Dec. 2023

UNN – Gaza fighting continues amid ‘apocalyptic’ conditions; Security Council to meet Friday – 7 Dec. 2023

ICC Office of the Prosecutor Implements New Policy to Promote the Inclusion of Children in the International Criminal Justice Process

By: Rebecca Pioso

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, The Netherlands – On December 8, 2023, the ICC Office of the Prosecutor implemented the “Policy on Children” to address the worldwide suffering that children face regarding their historic underrepresentation and lack of appropriate engagement with the criminal justice process.

 
Cover Page of the ICC Office of the Prosecutor Policy on Children | Photo courtesy of ICC Office of the Prosecutor.
  

The ICC’s Rome Statue grants the ICC jurisdiction over international crimes involving genocide, crimes against humanity, war crimes, and crimes of aggression. Article 54 of the Rome Statute mandates that the Office of the Prosecutor devote special consideration to investigations and prosecutions against children. Children have the right to partake in the criminal justice process, just as adults are. However, the ICC has acknowledged the routine failure of tribunals to appropriately include children in international criminal justice processes, which in turn violates their human rights.

Addressing children’s participation in the international criminal justice processes is crucial. Nearly one third of the global population is under eighteen years of age, yet children’s experiences and their key roles within the accountability processes are largely overlooked or otherwise ignored based on misconceptions, stereotypes, and failures to devote appropriate resources to support proper methodologies that account for the specific needs of each child. For example, tribunals traditionally have an adult-centric view which largely excludes children and often stereotype them as a homogenous group, regardless of their unique needs and capacities. Moreover, crimes impacting children are routinely under-reported, under-investigated and under-prosecuted.

The ICC has recognized the necessity of improving the understandings of and adaptation to children’s experiences and facilitating their engagement in the international criminal justice processes. The Court has committed to increasing children’s access to justice by implementing a children’s rights approach. It will ensure that children’s voices will be affirmatively heard in each case and situation that they are involved in under the Rome Statute so that their unique vulnerabilities and the manners in which they are targeted and ultimately impacted based on their status in society regarding their physical, mental, psychological development, and ability to engage with criminal justice process, can be better understood.

The Prosecutor’s new has specific objectives to:

  • Remedy the historic lack of representation and engagement of children in the international criminal justice process.
  • Bring attention to the viewpoint that crimes under the Rome Statute can be committed against and impact children.
  • Ensure that, in all dealings with children, the Office of the Prosecutor takes a child rights, child-sensitive, and child-competent approach that is guided by the child’s best interests.
  • Actively adapt and reflect topics including intersectionality, children’s developmental stages, their capacities and abilities.
  • Re-emphasize the Office of the Prosecutor’s commitment to building an international community that facilitates effective investigation and prosecution of crimes against children.
  • Promote the exchange of knowledge regarding best practices and accountability efforts.

The Policy focuses on recruitment, training, external collaboration, implementation, monitoring, and evaluation, with the goal of promoting a more effective and equitable system for prosecuting crimes against and impacting children. The Policy also reflects the ICC’s awareness of their place within a global ecosystem of accountability, and specifically, the Office of the Prosecutor’s commitment to broadening and then reflecting its understanding as to the unique impacts of Rome Statute crimes involving children, and to improving the processes for effectively including children in the international criminal justice processes.

For further information, please see:

ICC – How the Court Works – 2024

ICC Office of the Prosecutor – Policy on Children – Dec. 2023

ICC Office of the Prosecutor – Statement by ICC Prosecutor Karim A.A. Khan KC – 8 Dec. 2023

ICC Office of the Prosecutor – Policy on Children (2016) – Nov. 2016

Russia Sends No Representation to ECHR Grand Chamber Hearing Regarding Russian Occupation of Crimea

By: Rachel Wallisky

Impunity Watch News Staff Writer

STRASBOURG, France – On December 13, 2023, the European Court of Human Rights (ECHR) held a Grand Chamber Hearing in the case of Ukraine v. Russia (re Crimea). However, the Russian Government failed to notify the court of the names of their representatives prior to the hearing, nor did any representatives appear on its behalf. The ECHR elected to continue with the hearing, pursuant to Rules 64 and 65 of the Rules of the Court. The Ukrainian Government is represented by Marharyta Sokorenko, Ben Emmerson, Iyrna Mudra, Andrii Luksha, and Oleksii Yakubenko.

 
The ECHR Grand Chamber Hearing of December 13, 2023, in the case of Ukraine v. Russia (re Crimea) | Photo Courtesy of the ECHR.
  

The Complaints

The Hearing relates to three inter-state applications filed by Ukraine in the ECHR over the past decade. Two applications submitted to the Court by Ukraine in 2014 and 2015 were joined in 2018. The ECHR issued a decision establishing its jurisdiction over the application on December 16, 2020.

The Ukrainian Government argues in its application that Russia has exercised “effective control” over Crimea, the City of Sevastopol, and integral parts of Ukraine since February 27, 2014. By doing so, the Ukrainian Government argues that Russia has violated several Articles of the Convention including Article 2 and Article 3, the Right to Life and Prohibition of Inhuman Treatment and Torture, respectively.

Specifically, Ukraine argues that between February 27, 2014 and August 16, 2015, Russia exercised an administrative practice of “enforced disappearances” of “perceived opponents to Russia,” especially Ukrainian soldiers, ethnic Ukrainians, and Tartars, and that Russia failed to engage in any adequate investigation of those disappearances.

The Hearing

The Hearing began with a reading of a summary of the applications being considered and the complaints surrounding them. The President of the ECHR, Síofra O’Leary, noted that Russia ceased to be a party to the ECHR on September 16, 2022. However, because Russia was a member of the Counsel of Europe at the time of the complaints, it cannot escape its obligations under the Convention. President O’Leary noted that though the ECHR had maintained communication with Russia regarding the allegations made against it by Ukraine, Russia has not communicated with the Court since leaving the ECHR.

When addressing the Court, Mr. Emmerson remarked that it was “unprecedented” that a Hearing continued though only one party was present for arguments. Mr. Emmerson argued that Russia’s “enforced disappearance” practices during its occupation of Crimea fell under Article 2 because the failure of the Russian government to acknowledge that a person had been imprisoned or killed increased the likelihood that they would be subject to inhumane treatment, regardless  of if the person is later released or their killing acknowledged.

A ruling from the ECHR can be expected “at a later stage” but a recording of the Grand Chamber Hearing is available on the ECHR’s website.

For further information, please see:

ECHR – European Court of Human Rights Communicates to Russia New Inter-State Case Concerning Events in Crimea and Eastern Ukraine – 1 October 2015

ECHR – European Court of Human Rights Deals With Cases Concerning Crimea and Eastern Ukraine – 26 November 2014

ECHR – Grand Chamber Hearing on Inter-State Case Ukraine v. Russia (re Crimea) – 13 Dec. 2023

ECHR – Interim Measure Granted in Inter-State Case Brought by Ukraine Against Russia – 13 March 2014

ECHR – New Inter-State Application Brought by Ukraine Against Russia – 27 August 2018

ECHR – Rules of Court – 30 October 2023

ECHR – Webcast of Grand Chamber Hearing in Ukraine v. Russia (re Crimea) (nos. 20958/14 and 38334/18) – 13 Dec. 2023

British Government Faces Domestic and International Legal Challenges to Controversial Northern Ireland Act

By: Gavin Gretsky

Impunity Watch News Staff Writer

UNITED KINGDOM – The British Government is facing multiple lawsuits both domestically and internationally that challenge the legality of the recently passed Northern Ireland Troubles Legacy Act (Act).

 
A protest outside of Westminster Square, Westminster against the Northern Ireland Troubles (Legacy and Reconciliation) Bill | Photo Courtesy of Belfast Times
  

The Act, which was passed by British Parliament in September 2023, is an attempt to bring finality and closure to the Troubles in Northern Ireland. The Troubles was a three-decade long period of sectarian violence between Irish republican paramilitaries, the British army, and unionist paramilitaries which resulted in more than 3,500 deaths and over 47,000 injuries. The Troubles effectively ended with the signing of the Good Friday Agreement in 1998, however over 1,000 deaths from that era remain unsolved.

The Northern Ireland Troubles Legacy Act is modeled after the South African Truth and Reconciliation Commission established by Nelson Mandela after the fall of apartheid. The Act will be implemented by the Independent Commission for Reconciliation and Information Recovery (ICRIR), which will seek to find information on the circumstances of the deaths or injuries of victims of the Troubles and share the information with the families of the victims. Under the Act, perpetrators who provide truthful accounts of their actions to the ICRIR can be granted immunity from prosecution. Additionally, the Act will prevent any new civil cases and inquiries about the Troubles from starting. The Act received fierce opposition from all political parties in Northern Ireland, as well as many victims’ groups and organizations, but was supported by U.K. veteran’s groups and Britain’s governing Conservative party.

Shortly after the Act was passed in September, sixteen separate legal challenges were filed with the U.K. High Court in Belfast, Northern Ireland. Legal representatives of the parties, mostly made up of the families of victims from the Troubles, argue that the Act is unlawful because it is incompatible with international human rights standards, including the European Convention on Human Rights. The parties state that the Act interferes with the justice system by denying victims access to the courts which had been a viable avenue open to victims and their families before the Act’s passage. For example, in 2021 an inquest through the previous system found that ten individuals killed in Belfast in 1971 were unarmed at the time of their deaths and that the use of force by the British army was “clearly disproportionate.” Petitioners also indicated their intention to file applications with the European Court of Human Rights (ECHR).

In addition to domestic legal challenges, the Act is now facing challenges on the international stage. The Republic of Ireland has announced that it will be bringing a case against the United Kingdom at the ECHR. The Irish government’s main concern is the grants of immunity given under the Act which will create a barrier to any other action by victims or their families. Grants of immunity have previously been found by the ECHR to be incompatible with a country’s obligation to maintain means to investigate unnatural deaths and torture, a provision of the Good Friday Agreement signed by the United Kingdom. According to Irish Prime Minister Leo Varadkar, both the United Nations and the Council of Europe support Ireland’s position in bringing this challenge. Conversely, the U.K. government states that Act complies with the ECHR and the Good Friday Agreement because it balances grants of immunity with the investigative powers of the ICRIR.

Further details on the filings and decisions of these cases are forthcoming as the cases progress through their respective domestic and international channels.

For further information, please see:

Aljazeera- Ireland to Launch Legal Action Against UK over Troubles Amnesty Law- 20 Dec. 2023

BBC- Troubles Legacy Bill Enters Law After Receiving Royal Assent- 19 Sept. 2023

BBC- What is the Northern Ireland Legacy Bill? – 5 Sept. 2023

Independent- Ireland to Launch a Legal Challenge Against the UK Government Over Troubles Amnesty Bill – 20 Dec. 2023

Jurist- UK Government Publishes Response to Human Rights Decisions from European Court of Human Rights – 14 Nov. 2023

Jurist- UK High Court Hears Legal Challenges to Recently Enacted Northern Ireland Troubles Bill – 20 Sept. 2023

Sky News – Irish government launches legal challenge against UK’s Northern Ireland Legacy Bill – 20 Dec. 2023