Groningen Journal of International Law

International Law Under Construction


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The Psychological Assessment of the Defendant in the Ongwen Case: An Interview with Prof. Joop de Jong

Marina Fortuna, based on an interview with Prof. Joop de Jong

Following up from a previous discussion on the psychological assessment of the defendant in the Ongwen case, this blog post shares the observations of Prof. Joop de Jong, one of the mental health professionals who assessed Dominic Ongwen’s mental state. Prof. de Jong identified three main challenges posed by the case, which may come up in the International Criminal Court’s (ICC) future case law: (1) the impact of the cultural beliefs on the determination of the Defendant’s mental health, (2) the selection of mental health experts and the ways in which the reports of the experts can be challenged and (3) the problem of reaching the conclusion on the mental health state at the time of the commission of the crimes.

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EUROPEAN STATES TO RETURN BENIN BRONZES TO NIGERIA: TOWARDS A DECOLONISED LEGAL BASIS FOR ANCHORING CULTURAL RESTITUTION CLAIMS

Anh Nguyen

Introduction and Historical Background of the Benin Bronzes

In 1897 over 3000 plaques and sculptures known as the Benin Bronzes were looted by British troops in an armed “punitive expedition” against the Benin Kingdom after its ruler, the Oba, massacred a British delegation for not heeding his warning not to enter the kingdom during a sacred period. The Benin Bronzes were brought back to Britain, where they were transferred to the British Museum, which still houses the largest collection of Benin Bronzes in the world, as well as to other European and US institutions and private collectors.

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How Should International Law Deal with Autonomous Underwater Vehicles (AUVs)?

Daiana Seabra Venancio

The recent incident with the KRI Nanggala Indonesian submarine highlighted the dangerous situations that the crews of underwater vehicles may encounter. Moreover, when submarines sink, the limited oxygen supply and rescue conditions are more complicated than in ordinary shipping accidents. For this reason, unmanned vehicles in the deep sea are not only ideal but should become a standard in the future to safeguard human life and allow operations in some of the most inhospitable environments on the planet.  

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The Situation in Tigray and the Duty to Investigate Serious Violations in the Context of Armed Conflicts under International Law

Fikire Tinsae Birhane

Background

It has been noted by various commentators, including myself, that there has been a non-international armed conflict (NIAC) between the Federal Government of Ethiopia and the dissident forces of the former ruling party of the Tigray region of Ethiopia, the Tigray People Liberation Front (TPLF) since around the late hours of 3 November 2020 (see here, here, here, and here). In addition to the two opposing parties to the conflict, Eritrean forces have also been taking part in the conflict on the side of the Federal Government. Such involvement of a foreign state does not change the non-international character of the conflict.

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Vattenfall Dispute Settled: Questions Remain Unanswered

Yash Shiralkar

What’s going on?

The Vattenfall v. Germany saga, which dealt with the phase-out of nuclear power plants by Germany in the wake of the Fukushima disaster, may have finally come to an end. After several domestic court judgments, objections on the validity of intra-EU BIT claims post-Achmea and multiple instances of arbitrator challenges, it seemed as if the ICSID proceedings were finally underway. However, in a press media report dated 5 March 2021, the German Federal Ministry for Environment, Nature Conservation and Nuclear Safety announced that they had settled with Vattenfall. The Germany Ministry clarified that the phase-out would be completed by the end of 2022 and that it would pay €2.428 billion compensation (€1.425 billion of which would go to Vattenfall). Vattenfall, in its own press release dated 5 March 2021, reiterated the terms of the settlement and revealed that it would lead to the discontinuation of the Energy Charter Treaty (ECT) proceedings.

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The ECtHR on Nagorno-Karabakh: Current Approaches and Future Prospects

Gayathree Devi KT

In recent years, the European Court of Human Rights (ECtHR) has seen an influx in claims concerning human rights violations in contested territories. Nagorno-Karabakh is one such interesting territory, because it involves competing territorial claims not only from States – Azerbaijan (the internationally recognized territorial State) and Armenia (the occupying force) – but also from a non-State actor, the Republic of Artsakh. Although Artsakh lacks international recognition, it has been exercising de facto control over Nagorno-Karabakh to the exclusion of Azerbaijan since at least 1991. Its role in the human rights situation in Nagorno-Karabakh matters, because several human rights violations in the region are being committed by this de facto regime (DFR), whether with or without Armenia’s support. Against this backdrop, this blogpost analyses how the ECtHR has been establishing jurisdiction and responsibility for claims arising out of the Nagorno Karabakh conflict so far. It also considers the implications of the court’s 2021 decision in Georgia v Russia (II) for claims arising out of the recent resumption of hostilities in Nagorno-Karabakh.

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The Potential of Common Article 1 to the Geneva Conventions in the Nagorno-Karabakh Conflict (and Beyond)

Kilian Roithmaier

Introduction

Since the end of the Nagorno-Karabakh War in 1994, Armenia and Azerbaijan have remained in dispute over the Nagorno-Karabakh region that is internationally considered to be part of Azerbaijan and occupied by Armenia. The conflict has triggered occasional fighting in the past, but the most recent and intense round of hostilities erupted after Azerbaijan commenced a military offensive on 27 September 2020. On 9 November 2020, Armenia and Azerbaijan concluded a ceasefire agreement brokered by Russia. Whether the truce, despite reported violations, will hold and resolve the decades-old dispute, remains yet to be seen.

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Locating Human Rights in the Heart of the New ‘International Pandemic Law’: A Reply to Steve Charnovitz

Dr I-Ju Chen

The COVID pandemic has caused significant and evolving challenges to every nation in the world since it occurred in December 2019. It has resulted in, for example, export prohibitions and restrictions in international trade, cross-border sharing of scientific data for global health efforts, and has affected human rights. These unprecedented disruptions have required countries to navigate solutions for the pandemic, and further revealed gaps and challenges in international law. In the Opinio Juris Symposium entitled ‘COVID-19 and International Law’ held in March 2020, Professor Philippe Sands, a leading international law scholar, pointed out that ‘the birth and transmission of the Sars-Cov-2 virus, and the COVID-19 illness it generates, and the response to it – are matters for international law’. Moreover, the 2005 International Health Regulations have been criticised for their ambiguity in the COVID pandemic, according to Armin von Bogdandy and Pedro A Villarreal’s research. The function of this governing regulation has generated many discussions on how to reform international health law. The COVID pandemic is thus a matter for international law, and rule-of-law responses for the pandemic under international law are necessary.

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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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