Groningen Journal of International Law

International Law Under Construction


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The ‘Mental Disorder’ Defence in Prosecutor v Ongwen

Marina Fortuna

Introduction

On 4 February 2021 the Trial Chamber IX of the International Criminal Court (ICC) issued its judgment in the Prosecutor v. Dominic Ongwen. The case concerns the events which occurred in Northern Uganda between 1 July 2002 and 31 December 2005 for which Ongwen was charged with 70 counts of war crimes and crimes against humanity, 66 of which he was found guilty for.

During the proceedings, the Defence Counsel raised the defence of mental disease (or defect), provided for in Article 31(1)(a) of the ICC Statute as a ground for excluding Ongwen’s responsibility. The judgment’s course of proceedings and the Trial Chamber’s reasoning addresses important procedural and evidentiary issues concerning the ICC’s mental disease defence. This contribution discusses two of them: the procedural issues concerning the burden and standard of proof and the evidentiary issues concerning the expert reports and psychological/psychiatric examination.

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Biden-Harris Back to Paris – A Free Pass From the Past? An International Legal Perspective on the Reparations Still Due

Mohit Khubchandani

Introduction

On 20 January 2021, Joe Biden took office as the 46th President of the United States of America (US), alongside Kamala Harris, the first female Vice-President. Among his first acts as President, Biden signed an executive order to rejoin the Paris Agreement on Climate Change, 2015 (PA). While this a welcome decision, this article argues that the US still owes reparations to the world for the transboundary environmental harms committed. There is no retrospective escape from the internationally wrongful acts committed by the past administration. The Trump Administration had announced its decision to leave the agreement in June 2017 but could legally exit it only in November 2020. Therefore, every climate adverse policy enacted in the interim period is something for which the nation owes as an apology to the world; a legal one, too. This is also an opportunity for the world to see, tactically and politically, how much this new administration is willing to take responsibility.

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Genocide Risk in Nagorno-Karabakh

Dr Melanie O’Brien and Dr Suren Manukyan

Atrocity Risk Factors

Multiple risk factors lead to the commission of atrocity crimes, including genocide. Many of these risk factors can be observed in the Nagorno-Karabakh situation with regards to the Armenian population of that entity. This post will draw on several crucial sources of genocide risk factors: the United Nations Framework Analysis for Atrocity Crimes, and the work of several genocide scholars such as Barbara Harff. While the UN Framework lists 14 risk factors of atrocity crimes, scholars over the years have presented anywhere from four to seven risk factors for genocide.

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Dalit Lives Matter: Caste Discrimination and International Law

Dr. Srinivas Burra

Cambridge University academic Priyamvada Gopal’s tweet, ‘White lives don’t matter. As white lives,’ on 22 June 2020 became controversial. Explaining that ‘Whiteness does not qualify someone to have their life matter; the life matters but not the whiteness’, she made a comparison between her Brahmin background and whiteness. In her view, one could not say Brahmin Lives Matter in the same way that Dalit Lives Matter.

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The Right to Academic Freedom in Latin America: A commentary on the report of the UNSR on freedom of opinion and expression

Salvador Herencia-Carrasco and Catalina Arango Patiño

‘Education is the vaccine against violence and ignorance’. These words of Argentinean cartoonist Quino, immortalized by Mafalda, reflect the importance of education for the progress of our societies. Despite the fact that everyone seems to agree on their relevance, the almost secondary place that academic freedom has in international human rights law is striking.

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Recognizing Economic and Social rights in the context of COVID-19 Pandemic: An Expensive Wakeup call?

S. M. Morsalin Hider, Muhammad Rezaur Rahman and Arpeeta Shams Mizan

The UN Secretary-General Antonio Guterres has addressed the Covid-19 pandemic as the most challenging crisis since the Second World War. Most States, including those with advanced economies and medical facilities, have drastically failed to tackle the pandemic. Confronting Covid-19 is requiring not only national emergency funds but also private assistance. Continue reading


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The Enrica Lexie Incident: The Jurisdiction Clause Marooned

Pranay Lekhi

On 2 July 2020, an Arbitral Tribunal under Annex VII of the United Nations Convention on the Law of Seas (UNCLOS) published a redacted dispositf in “The Enrica Lexie Incident” between India and Italy. Since then the final Award of 21 May 2020 has become publicly available.The dispute pertained to the killing of two Indian fishermen on board an Indian vessel named the “St. Antony” by two Italian marines aboard an oil tanker flying the Italian flag called the “Enrica Lexie” (Award, paras 77-117). The incident led to India exercising criminal jurisdiction over the Italian marines, which was disputed by Italy inter alia on the grounds that India acted inconsistently with the UNCLOS as the marines had immunity by virtue of being “Italian State officials exercising official functions” (Award, para 732). Continue reading


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Public International Law and Internet Shutdowns: Time to unpack emerging norms?

Yohannes Eneyew Ayalew

1.   Introduction

On 25 June 2020, the ECOWAS Community Court of Justice ruled that the deliberate internet shutdowns in Togo imposed in 2017 were illegal and violated applicants rights to freedom of expression. Also, domestic courts — including in  India, Indonesia, Pakistan, and Zimbabwe –  have ruled in favour of internet restoration against shutdown measures. This would give rise to the question how the issue of internet shutdown is resurfaced under public international law? The aim of this post is therefore to flag how internet shutdown can be examined from the perspective of two bodies of public international law, i.e., — international human rights law and international telecommunications law. Continue reading


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Assessing the WTO Consistency of India’s Recent FDI Policy Reform for Preventing Acquisition of Distressed Assets During a Pandemic – Part II

Abhishek Rana and Rishabha Meena

In the first part of the blog series, the authors discussed the specifics of India’s recent FDI policy change and its criticism by China. The discussion further delved into China’s inability to bring a successful claim against India at the WTO under GATT and TRIMS. The second part of the blog series thereby attempts to address the possible violations of provisions under the General Agreement on Trade in Services (GATS), and the likely way forward for India. Continue reading


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Assessing the WTO Consistency of India’s Recent FDI Policy Reform for Preventing Acquisition of Distressed Assets During a Pandemic – Part I

Abhishek Rana and Rishabha Meena

Introduction

While the COVID-19 (also referred to as ‘coronavirus’) pandemic has been declared as a public health emergency of international concern by the WHO -with the health sector of many economies in crisis, this virus has had an equally significant impact on the global economy too. To deal with issues surrounding the outbreak of this pandemic, numerous countries have taken multiple economic measures like the imposition of restrictions on exports of specific goods and services, the shutdown of factories and industries, changes in investment policies, et cetera. UNCTAD through its Investment Policy Monitor’s special issue, published on May 4, 2020, highlighted the responses of various countries to this ongoing crisis by analysing the investment policy measures undertaken for the facilitation of investment, support for small and medium-sized enterprises (SMEs), foreign investment screenings, and other incentives to the domestic industries. The pandemic has affected the foreign direct investment (“FDI”) flows as well, where the recent report from the UNCTAD’s Global Investment Trade Investment Monitor noted that there is a 40% expected decline in such global FDI flows during the 2020-21 period. Numerous countries, mostly being developed economies, like Italy, Germany, Australia, France, and Spain have interestingly already amended their domestic legislation(s) concerning FDI. For instance, Australia amended its FDI policy requiring approval from the Foreign Investment Review Board (FIRB) in all types of foreign investment irrespective of its value; whilst Italy amended its Golden Power law empowering the government to regulate and screen investments in new sectors too with such amendment being enforced until December 31, 2020. Continue reading