In a sense, that particular development has overtaken the debate about its own boldness or inevitability. It is reasonable, of course, for the average person to ask whether Mr Putin would ever be brought to trial at the ICC given the obvious stature of power that he enjoys in the international community. That, of course, remains to be seen.
The eventuality of his prosecution can, however, reasonably actualise a winning wager. This is because no head of state or head of government has ever escaped eventual prosecution—once indicted—in the modern era of international law. That was the fate of Colonel Théoneste Bagosora (who was the effective head of state of Rwanda during the Rwandan Genocide following the death of President Juvenal Habyarimana in a plane crash), Mr Jean Kambanda (the Prime Minister of Rwanda during the genocide), Mr Slobodan Milosević (the President of Serbia), and Mr Charles Taylor (the President of Libera). They were all prosecuted before an international criminal tribunal (Milosević died while on trial). Towards the end of World War II, the Allies had Adolf Hitler (the German Fuhrer) in their sight for criminal prosecution. He escaped that fate by the simple strategy of committing suicide. But his successor as Germany’s head of state, Grand Admiral Carl Dönitz, was prosecuted before the International Military Tribunal at Nuremberg, in the same way that Colonel Bagosora was later tried before the International Criminal Tribunal for Rwanda.
One must go back 104 years to find a case where a head of state was indicted but not ultimately prosecuted. This was the case of Kaiser Wilhelm II, Emperor of Germany and King of Prussia during World War I. He was certainly one of the—if not the—world’s strongest man of his own era. At the end of the Paris Peace Conference of 1919, he was “publicly arraigned” for trial, in the terms of Article 227 of the Versailles Treaty. Alas, he was never tried because he had received asylum in the Netherlands on the eve of WWI’s armistice. The Dutch refused to surrender him to the Entente States for his trial pursuant to Article 227 of the Versailles Treaty. He lived out the rest of his life in asylum in the Netherlands.
Some observers have rued the Dutch refusal to surrender the Kaiser for trial. In my view, however, international law was on the side of the Dutch government on that question. This is because the Netherlands was a neutral country during WWI. As such, the spirit, if not the terms of the 1907 Hague Convention No 5 (respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land) afforded the Dutch an eminently reasonable basis to decline to surrender the Kaiser. This is no occasion to elaborate on the point.
Be that as it may, the “public arraignment” of the Kaiser in Article 227 of the Versailles Treaty, was the first spectre of the new genie of accountability for international crimes that WWI unleashed for even the most powerful heads of state who inflict wars of aggression upon humanity. Until WWI, international law permitted states to do just that if they were strong enough to do so. Aggressors only needed to worry about the resolve of other states—usually led by the United Kingdom—to muster military opposition as an exercise in the balance of power doctrine. There was no legal consequence that aggressors needed to worry about.
WWI changed that calculation. That change was announced in earnest by the political leadership of the United Kingdom and France. To that end, for instance, Sir F E Smith KC, the Attorney-General of England (the future Lord Chancellor Birkenhead), communicated the resolve of his government on 6 November 1918:
“To us it seems that the most effective deterrent of all is that for all ages men who are tempted to follow the wicked and the bloody path which the Governors of the Central Empires have trodden during the last four years, shall have present before their eyes, not a picture merely of the brilliant and meretricious glamour of military success, but also the recollection that in this great conflict punishment attended upon crime.”
Similarly, his political boss, Prime Minister David Lloyd George, insisted that “rulers who plunge the world into all this misery ought to be warned for all time that they must pay the penalty sooner or later.” Therefore, he insisted, the Kaiser “ought to stand his trial.” Lloyd George was not perturbed by the fact that up until then, there was no precedent for the prosecution of a head of state as a matter of international criminal law. “With regard to the question of international law,” he said, “well, we are making international law, and all we can claim is that international law should be based on justice.” That declaration epitomised the reform of international law that the British and French governments were leading, when they insisted that leaders who would in the future unleash wars of aggression must be held accountable in international criminal law.
In the arrest warrant that the ICC has issued against Mr Putin, a preeminent global strong man of the modern era, the genie of accountability is clearly coming almost full circle. To truly come full circle, it is not enough to prosecute him for war crimes. He ought also to be prosecuted for the crime of aggression. It will truly send that message that Lord Birkenhead and Mr Lloyd George were keen to communicate at the end of WWI in relation to the accountability of the most powerful leaders who embark on wars of aggression.
Immunity
There may be those who may wonder whether Mr Putin enjoys immunity in international law before the ICC or any other international tribunal. That question is comprehensively answered in an upcoming article of mine that will soon be published by the Journal of International Criminal Justice, titled “International Law Rejects Immunity for International Crimes: Full Stop.” An early version of the piece is attached here.
Loss of Belligerent Rights
In a related development, I have another article coming up in the next issue of the German Yearbook of International Law, titled “Rethinking Military Necessity in Wars of Aggression.” I argue in that piece, that the Russian forces are not entitled to the claim of military necessity when they attack civilian residential blocks and flatten them on consideration that they were being shot at from those places in Ukraine. This is because Russian forces are embarked upon an illegal, nay, criminal war in Ukraine. Legal rights do not arise from criminal conduct, in a way that benefit those who are engaged in that criminal conduct.
Indeed, the logic of that reasoning has these two further implications: (i) Ukrainian officials, soldiers or citizens are not legitimate targets for Russians in this war of aggression. In other words, Russians are not entitled to target the President of Ukraine or any other Ukrainian citizen including Ukrainian soldiers. To do so will anchor a charge of murder (for any resulting death), attempted murder or assault (if no death occurs); and, (ii) Russian soldiers captured in Ukraine are not entitled to prisoner of war (POW) status. This does not mean that Ukrainians are entitled to treat them inhumanely. It only means that Russian soldiers can be prosecuted for murder, attempted murder, assault, and unlawful destruction of property. It is true that foot soldiers or field commanders may not be prosecuted under the Rome Statute for the crime of aggression. But that is a different question. That question does not prevent the prosecution of those who launch and fight wars of aggression for the crimes of murder, attempted murder, assault and wanton destruction of property—for every death, injury or destruction of property resulting from their participation in the war of aggression.
Conclusion
It is by pursuing the prosecutorial strategies outlined above can the world truly begin to realise the benefits of what it means to say that wars or aggression are illegal in international law.
Chile Eboe-Osuji was the President of the International Criminal Court from 2018 to 2021. He is the Distinguished International Jurist and Special Advisor to the President at Toronto Metropolitan University; Paul Martin Senior Professor at University of Windsor; Visiting Professor, University of California Los Angeles School of Law, formerly Distinguished Visitor, University of Toronto Law Faculty; formerly Herman Phleger Visiting Professor of Law at Stanford Law School; and, formerly Senior Fellow, Carr Center of Kennedy School, Harvard University.
The Public Order Emergency Commission, chaired by Mr Justice Paul Rouleau, has finally released its report. The Commission’s report is lengthy. It comes in five volumes, totalling more than 2000 pages. Even the executive summary (volume 1) took up 272 pages.
The Commission was established to inquire into the legality of Prime Minister Justin Trudeau’s declaration of national emergency between 14 and 23 February 2022, and the measures taken in dealing with that emergency as declared.
For purposes of this commentary, it may help to recall in summary the factual circumstances that led to the declaration of emergency. For more than two weeks in February 2022, news of the world trained its sights on Ottawa and the Ambassador Bridge that connects Windsor and Detroit. Ottawa got the lion share of attention, as it is the seat of the federal government. Drivers of heavy lorries used their rigs to block the streets of downtown; constantly blaring their horns, revving their engines and making whatever noise they could use their vehicles to make. They meant to be an intolerable nuisance and it was bedlam in Ottawa. The resulting pollution was not only auricular (until a judge issued an injunction to stop the blaring of horns); there were also the exhaust fumes from the engines that ran all the time. Symbols of hate, such asswastikas and confederate flags, were also part of the paraphernalia on display at the protests.
The truckers of the so-called “Freedom Convoy”—many of whom presumably do cross-border haulage—were protesting the federal government’s imposition of measures aimed at combatting the Covid19 pandemic. Amongst other things, those measures included requiring proof of full vaccination and a negative PCR test (taken no longer than 72 hours) before entry into Canada. Millions of dollars poured in (including from the United States) to support the protest. All that continued until the Prime Minister declared national emergency, using the attendant powers to shut down the protest and clear the streets.
The object of the Rouleau Commission inquiry was to establish whether the Prime Minister’s declaration of national emergency and the measures taken under the resulting power amounted to an abuse of powers, given the tests set out for declarations of national emergency. The National Emergency Act requires the existence of “an urgent and critical situation of a temporary nature that (a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or (b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada” and which situation “cannot be effectively dealt with under any other law of Canada.”
Another Use of National Emergency Powers
The occasion brings to mind another time, not long ago, when another political leader used his country’s national emergency powers in circumstances that mark a very sharp contrast from those in which Prime Minister Trudeau used his own.
Many will recall that President Trump Administration was a dark period for the multilateral international order. Amongst the victims of his attacks were the World Health Organisation, the World Trade Organisation, the Human Rights Council, UNESCO, to name a few. The International Criminal Court bore a special brunt of Mr Trump’s calumny against the international order. A major issue for his Administration was that the ICC Chief Prosecutor, Ms Fatou Bensouda, had insisted on also (I shall explain that later) investigating allegations that US personnel had committed torture in Afghanistan as part of the US Government’s war on terror. In response, Mr Trump imposed economic sanctions against the ICC Chief Prosecutor and one of her senior aides, invoking powers conferred upon US Presidents by various legislation including the International Emergency Economic Powers Act and the National Emergencies Act. The Administration even threatened to do the same thing to the Court’s judges.
Apparently, in the view of the Trump Administration, the ICC Prosecutor’s insistence upon doing justice according to both international law and United States law was something that threatened the national security of the United States, thus compelling Mr Trump to impose sanctions against the Chief Prosecutor, on grounds of “national emergency.”
Notably, the treaty that established the ICC (the Rome Statute) gave the Court a back-stop jurisdiction over international crimes allegedly committed within the territory, or by a national, of a Court’s member State, such as Afghanistan, if that state proves unwilling or unable to investigate and prosecute the crime.
According to a principle of international law, notably articulated by the US Supreme Court in the Schooner Exchange case in 1812, every country has, as a general proposition, absolute jurisdiction over events within its territory. That includes the actions of foreigners. It is also the sovereign right of the country with jurisdiction to sign over that jurisdiction to another competent national or international authority, typically by treaty. That is what Afghanistan did when it became a party to the ICC treaty.
Afghanistan was clearly unable or unwilling to exercise jurisdiction over rampant criminality within its territory including terrorist acts such as beheadings, suicide bombings, and improvised explosive device attacks. The ICC’s interest was thus to do justice in behalf of the victims who had not received it in Afghanistan in respect of these crimes. No one ever suspected the US personnel in Afghanistan to be implicated in these crimes of terrorism.
The matter was that the Prosecutor was not prepared to take a blinkered approach to her investigations, by focusing exclusively on these crimes of terrorism while doing her best to avoid probing into allegations that US personnel had committed torture in Afghanistan. Notably, the inquiry of a US Senate select committee chaired by Senator Feinstein, which found that US personnel had committed torture as part of their war efforts in Afghanistan, made it difficult for the Prosecutor to look the other way.
Torture is a crime in both international law and in US national law. The Convention Against Torture requires criminal punishment of those who commit it. It is a war crime when committed as part of a war effort. It is not only the Rome Statute that says so in articles 7(1)(f) and 8(2)(a)(ii) amongst other provisions; in their common provisions that outlaw grave breaches, all the four Geneva Conventions of 1949 also make torture a punishable war crime. The US is not a party to the Rome Statute, but it is a party to both the Convention against Torture as well as the Geneva Conventions. Notably, those treaties are part of the US federal law, in light of article 6 of the US Constitution which provides that treaties ratified by the Senate are part of the “supreme law of the land.” Within the US itself, the Lieber Code, a US Civil War era national legal instrument, also forbids torture. Also notable amongst other US federal law that requires punishment of American officials and agents who commit torture, even while abroad, is section 2340A of Title 18 of the United States Code. In that connection, the US Congress, on 28 October 2004, declared it a sense of Congress that the “Constitution, laws, and treaties of the United States and the applicable guidance and regulations of the United States Government prohibit the torture or cruel, inhuman, or degrading treatment of foreign prisoners held in custody by the United States.”
The essence of the ICC Prosecutor’s insistence on investigating the allegation that US personnel had committed torture was that those who violate these legal norms must be held accountable. How then could it be reasonable to consider that insistence on the rule of law and justice as a threat to the national security of any nation, let alone the United States? It was thus unsurprising that when he came into office, President Biden sensibly reversed Trump’s sanctions against the ICC Chief Prosecutor.
The Limits of Rights and Freedoms
Prime Minister Trudeau’s use of national emergency powers is a very different world from Mr Trump’s use of emergency powers in the US to attack the ICC. The Rouleau Commission saw no abusiveness in Mr Trudeau’s use of the power. It is a phenomenon of the age that conspiracy theories will be spun by those who do not like the Commission’s findings, all in a bid to discredit the report. Those theories are baseless.
There is no question that the pandemic genuinely tested the limits of the patience of many around the world. But surveys repeatedly showed that a majority of Canadians supported the federal government’s vaccine mandate, as well as those of the various provincial and municipal governments. It was also significant that the Canadian Trucking Alliance issued a statement “strongly” disapproving of the truck convoy blockade of Canadian public roads and thoroughfares. The Alliance added that a vast majority of the Canadian trucking industry is vaccinated, at a rate that matches the general population.
These reports raised the question about the political warrant of those intent on using large lorries to choke Ottawa up until the federal government reversed its vaccine policy that a majority of Canadians (and most truckers) apparently supported. Was the protest even politically innocent? In asking that question, one notes the prominent feature of placards—and signs on protesters’ vehicles—bearing anti-Trudeau expletives. These were the same sort of signs that had been on prominent display amongst counter-rallies organised to disrupt Mr Trudeau’s campaigns during the immediately preceding election, events at which projectiles and spittle were directed at him. Indeed, some of the protesters had declared that their aim was to bring down the Trudeau Government, and there were reports that the Governor-General’s office was inundated with calls to dissolve the Government.
One is thus left to wonder whether those who opposed the election of the Trudeau Government during the preceding election had regrouped not only to force the government to reverse a crucial policy that defined the times, but also to bring down a government that they did not help to elect. If so, was that the way to do democracy?
There is also the equally disturbing question of the methods that were employed during the protests. Annals of protests have seen sit-ins and campouts, withholding of services, group nudity by protesting women in cultures in which public nudity is a serious taboo. People have been known to wield harmless parts of trees and shrubs as symbols of protests. Other protests have been less charming than presenting flowers to security personnel clad in anti-riot gear, such as when protests involved urination or worse on government premises or public spaces. Nuisance all these may be, but they are ultimately peaceful.
The use of large trucks is a very different matter. Driving them into place, blaring their horns relentlessly at decibels that cause hearing loss, revving engines and spinning wheels all involve conducts that are more than passive aggressive. These behaviours would legally qualify as assault. At the very least, they amount to using very large trucks as weapons of mass disruption, nuisance and intimidation. Considering that a much smaller vehicle in the hands of a malcontent can be readily used as a weapon against life and safety (as some terrorists have done) the error of using huge lorries to force a political outcome becomes very clear.
It was thus significant that the anti-vaccine protests had been cast as assertions of “rights and freedoms.” The argument and assumption are that citizens have rights and freedoms with which the government must not interfere. As the protesters argued, their lives are their own. So, they had the right to go wherever they pleased in the community, and to be as close as they pleased to anyone else, without vaccination and wearing no masks. Was it as simple as all that? What about the rights of the majority of Canadians who wanted to be protected against the pandemic and its detrimental effects on their own health?
*
Ultimately, the silver lining in the protests is the opportunity it presented to revisit the importance of civics in schools. Teaching citizens about “rights” and “freedoms”—and the limitations that come with them—must not be the exclusive preserve of university law faculties. It is hoped that the average civics teacher in elementary or high school teaches pupils and students that “rights” and “freedoms” are never cast in absolute terms. The Rouleau Commission, resulting from what must be the most high-profile protest in Canada’s recent history, should help to inform that lesson. The Commission was spot on in driving home the message that “no rights are absolute.” [See Report of the Public Inquiry into the 2022 Public Order Emergency, vol 1, p 24.] It is a point, which the Commission was careful to underscore as “often seems to be forgotten in discussions about fundamental freedoms.” [Ibid, p 22.]
The constitutional guarantee of freedom of expression, for instance, “protects a person’s right to communicate a message, as long as the method and location of that expression is compatible with the values of truth, democracy, and self-realization.” [Ibid, p 23.] Understandably, the Commission was careful to point out that protection of free speech is not conditional on the message being conveyed or its meaning. “There is protection for expression regardless of the meaning or message sought to be conveyed.” [Ibid, p 23.]
The circumstances of a particular protest may present difficult questions about the manner of the exercise of the right to speech. Violence is not protected speech. But what about disruption? Does free speech lose its protection when exercised in the manner of disruptive protests, merely because the Canadian Charter of Rights and Freedoms guarantees only “peaceful” assemblies? Not necessarily, said the Commission. In its view, “it can be reasonable to protect assemblies that produce an element of disruption. Many public protests are disruptive, and that disruption may be central to their efficacy. This is especially true for groups and communities who are otherwise politically marginalized.” [Ibid, p 23.]
In addition to “truth, democracy, and self-realization” that the Commission identified as values that may inform the limits of free speech, it is also important to underscore public safety and the rights of other citizens as other factors that must be brought into accommodation in any exercise of right or freedom.
In any society in which citizens are equal, none can claim a greater entitlement in the shared civic space to enjoy his own right, than that which his fellow citizen should have to enjoy hers. That consideration is not readily bypassed by the sheer strategy of uniting in a group in order to assert a particular right. The futility of that strategy is readily evident in the phenomenon of counter-groups formed to assert a right that is inconsistent with the right asserted by the first group. It all calls for reasonable accommodation, the spirit of give and take, when rights are claimed or asserted. How that is achieved in any given case will depend on its own circumstances. Ultimately, it falls to the government to step in and help to modulate the conflicting rights. That is the chief task of government.
*
The Rouleau Commission was an occasion to remind Canadians about the existence of other important provisions in the Canadian Charter of Rights and Freedoms. Primarily section 1. It accepts limitations to rights and freedoms, subject to judicial determination that the limitation in question is reasonable in a free and democratic society.
Also to be noted is section 33 of the Charter, which allows the legislature to enact legislation and specifically insulate it from judicial inquiry about whether the law violated a right or freedom apparently protected by the Charter. Of, course, the government whose legislature would invoke section 33 exposes itself to political accountability at the polls for doing so.
*
It is important to point out that the permissibility of reasonable limitation on rights and freedoms is seen not only in the Constitution of Canada. It is also the case in international law. Notably, having listed the fundamental rights and freedoms that people must enjoy, the Universal Declaration of Human Rights stresses two countervailing norms in article 29. First, everyone also owes “duties to the community” that sustains him or her in the full enjoyment of all those rights and freedoms. And, second, “[i]n the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” Similarly, in the International Covenant on Civil and Political Rights, the same theme of duty upon all rights-bearers is stressed. So, too, reasonable limitations to rights and freedoms are permissible. In particular, the Covenant recognises [in articles 4, 6(1), 8(3)(a), 9(1), 12(1), 13, 14(1), 18(3), 19(3), 21 and 22(2)] that governments may adopt laws that are reasonably necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
It is against that background that the following claims of the “Freedom Convoy” protesters must be considered: (a) their claim of entitlement to ignore a fellow citizen’s right to life during a pandemic when they defy the government’s pandemic control measures; (b) their claim to entitlement to force the government to end the pandemic control measures for everyone; and, (c) their claim to entitlement to subject their fellow citizens to harassment and intimidation and denial of freedom of movement, using large lorries.
*
It has to be said that the law’s recognition of the possibility of reasonable limitation to rights and freedoms is not to say that whatever government does must be accepted as reasonable limitations on rights and freedoms. But there are orderly ways of challenging the correctness of laws and government policies and decisions. Those orderly ways do not leave it to everyone to be the judge and the enforcer of his or her own judgment of his or her own understanding of his or her own rights and freedoms, even using trucks or other physical objects liable to intimidate and harass fellow citizens.
Citizens who wish the government to terminate its policies as unlawful or unreasonable limitation on rights and freedoms can bring legal proceedings before national courts or international treaty bodies such as the United Nations Human Rights Committee. The litigants can call evidence that support their cause of legal action.
Using the legal process, those who opposed vaccination might even have been in a respectable position to liberate their underlying concerns from what many would dismiss as crank conspiracy theories: such as the allegations that the pandemic had all along been a profit-oriented hoax deployed or hyped up by multinational businesses intent on exploiting fears of peoples and their governments around the world. A global history of capitalism gone rogue may attract sympathy to aspects of these concerns. But, what was needed was credible evidence presented in the proper forum of a court of law, not unsubstantiated conspiracy theories.
In the end, the Rouleau Commission did not give a free pass to the citizens who would use intimidating physical objects to compel governments to reverse a policy that a majority of their compatriots support.
[1]Chile Eboe-Osuji was the President of the International Criminal Court from 2018 to 2021. He is the Distinguished International Jurist and Special Advisor to the President at Toronto Metropolitan University; Paul Martin Senior Professor at University of Windsor; Visiting Professor, University of California Los Angeles School of Law, formerly Distinguished Visitor, University of Toronto Law Faculty; formerly Herman Phleger Visiting Professor of Law at Stanford Law School; and, formerly Senior Fellow, Carr Center of Kennedy School, Harvard University.
Reflections from the 51st Annual Conference of the Canadian Council of International (October 27-28, 2022, Ottawa)
By: Idil Atak, Jennifer Orange, Uchechukwu Ngwaba, Hilary Evans Cameron
I Introduction (Idil Atak)
Our panel was entitled “Solidarity and Enlightened Self Interest in International Law: Lessons Learned from Russia’s Invasion of Ukraine”. We explored the topic from the perspective of three different legal areas: the protection of cultural heritage, the right to health, and refugee protection. The common thread running through our presentations is the importance of human rights for peace and justice.
I would like to take a moment to talk about an opinion piece by Dr. Chile Eboe-Osuji, a former judge and President of the International Criminal Court in The Hague, published in the Canadian Review of International Law and Policy (CRILP) Blog launched in October 2022. Dr. Eboe-Osuji argues that the invasion of Ukraine occurred partly because the international community has not managed to make wars of aggression sufficiently risky for the world’s warlords. According to him, the solution involves enhancing the risk of criminal prosecution for the crime of aggression – which would involve the amendment of the Rome Statute of the International Criminal Court. The second concrete suggestion by Dr. Eboe-Osuji is to enhance personal civil liability for warlords through a new international treaty that would establish peace as an actionable fundamental human right. In his opinion piece, Dr. Eboe-Osuji also addresses the objections to recognizing the right to peace and explains, for instance, how such a right would not impede the right of States to self-defence. This forward-looking piece outlines concrete suggestions to deter and punish wars of aggression while emphasizing the importance of international law in achieving peace and justice.
IIProtecting Ukrainian Cultural Heritage: practicing the norms of international law (Jennifer Orange)
Before and after of the Ivankiv Museum in Kyiv. Source:Unitar & Unisat (Universal Satellite Communications, Inc.)
When Russia invaded Ukraine in February 2022, many people doubted the relevance of international law. The strong military response of the international community of states, and of NATO states in particular, is one indicator that international law continues to be respected and relevant. In this talk, I looked at another indicator—the remarkable actions of the international heritage sector.
Within days of the invasion, Russia had destroyed major Ukrainian cultural sites, such as the Ivankiv Historical and Local History Museum, which was destroyed on February 25th, 2022 – one day after the invasion began. This museum contained the treasured collection of 25 works by the Ukrainian folk artist Maria Prymachenko. As of October 24th, 2022, UNESCO counts 207 damaged sites. The destruction and pillage of cultural objects and sites during armed conflict may violate several international instruments, such as the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, the Geneva Conventions and the Rome Statute.
Since the invasion, individual museums and their associations have engaged in practices that support the protection of heritage objects and heritage professionals in the name of international law. In this talk, I described the ways that museums are working to identify important Ukrainian cultural objects and sites; protect those sites from being damaged; monitor the damage caused by Russian forces; and create exhibitions around the world that educate visitors about the threat to Ukraine and the beauty of Ukrainian culture. Through these practices, the international heritage sector is validating both the relevance and necessity of international law.
IIIThe Right to Health, Pandemic Response, and the Ukrainian Conflict: Implications for International Solidarity (Uchechukwu Ngwaba)
I raised three questions in my talk: (1) What obligations can we infer from existing normative instruments on the right to health to ground the responsibility of states involved in armed conflict (such as Russia and Ukraine) to protect and fulfil the right to health? (2) What additional responsibility does a pandemic situation present for protecting and fulfilling the right to health? (3) In situations of armed conflict where affected states are either unable or unwilling to protect and fulfil the right to health of affected populations should the international community assume those obligations based on international solidarity principles?
I suggest in response to my first question that even in situations of armed conflict states are obligated under international law to protect and fulfil the right to health of affected populations. Both international humanitarian law (IHL) which applies to armed conflict situations, and international human rights law (IHRL) which applies to all other situations create these obligations. Obligations under IHL abound in the following contexts:
Wounded and the sick are to be protected against attempts upon their lives and violence against their person (1949 First Geneva Convention (GC I) Art 12; 1949 Second Geneva Convention (GC II) Art 12; Fourth Geneva Convention (GC IV) Art 16; 1977 First Additional Protocol (AP I) Art 10; 1977 Second Additional Protocol (AP II) Art 7).
Willfully killing the wounded or sick or causing great suffering or serious injury to their bodies or to their health constitutes war crimes as grave breaches of the Geneva Convention (GC I, Art 50; GC II, Art 51).
Wounded and sick are to be searched for and collected by parties to an armed conflict (GC I, Art 15; GC II, Art 18; AP II, Art 8).
Wounded and sick must be protected from pillage and ill-treatment (GC I, Art 15; GC II, Art 18; GC IV, Art 16; AP II, Art 7 and 8).
Wounded and sick must be treated without discrimination; if distinctions are to be made, it should be because of their medical condition (GC I, Art. 12; GC II, Art. 12; AP II, Art. 7(2)).
Equally so, IHRL creates additional obligations as seen under Art. 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which requires states to take steps to ensure the right of everyone to the enjoyment of a variety of facilities, goods, services, and conditions necessary for the realization of the highest attainable standard of physical and mental health (the right to health). Additionally, General Comment No. 14 of the Committee on Economic, Social and Cultural Right (CESCR) – the UN human rights treaty monitoring body comprising independent experts that monitor the implementation of the ICESCR – states that the right to health contains the core obligations to maintain essential primary care, access to minimum essential food, basic shelter, housing and sanitation, and an adequate supply of safe and potable water, as well as the obligation to provide essential drugs. These core obligations are non-derogable and require states to respect, protect and ensure the right to health. There are other international law guarantees of the right to health such as Art. 25 of the Universal Declaration of Human Rights which provides for the right to medical care; the right of access to health care is articulated in several instrument (such as Convention on the Elimination of All Forms of Discrimination Against Women Arts 11(1)(f), 12 and 14(2)(b); International Convention on the Elimination of All Forms of Racial Discrimination Art 5(e); Convention on the Rights of the Child Art 24; Convention of the Rights of Persons with Disabilities Art 43(e) and 45(c) etc).
With respect to my second framing question, I suggest that the current Covid-19 pandemic is a harbinger of the future of international public health challenges, the consequences of which are exacerbated by the impacts of armed conflicts. The Covid-19 pandemic has amply demonstrated how infectious diseases can morph into more virulent strains with increased lethal capacity. The international containment of infectious diseases is severely constrained by state insecurity, political instability, terrorism, repression, human rights abuses, and displacement of citizens by armed conflict. Immediate and intergenerational consequences are not limited to the outbreak or public health ramifications thereof, but include environmental determinants of health impacted by conflict, such as destruction of homes, congestion and inadequate sanitation, community fragmentation, homelessness, poverty and poor nutrition, all of which compromise individual and community resilience and health protective behaviours.
All of these lead to the third point I make in response to my third framing question, namely, international solidarity is required now more than ever to tackle these great challenges confronting the human family. I adopt the definition of international solidarity offered by the First UN Independent Expert on Human Rights and International Solidarity, Rudi Mohammed Rizki, who defines the term as: “…the union of interests, purpose and actions among States and social cohesion between them, based on the interdependence of States and other actors to preserve the order and very survival of international society, and to achieve common goals that require international cooperation and collective action.” I make the following concluding observations:
In order to preserve the order and very survival of international society, and to achieve common goals that require international cooperation and collective action we need to deepen normativity around protecting and fulfilling the right to health of populations affected by armed conflict (especially during a pandemic) through humanitarian interventions based on solidarity where the affected states are UNABLE to do so.
Conversely, in situations where the affected states involved in armed conflict are UNWILLING to protect and fulfil the right to health, existing normative instruments of IHL should be invoked to characterize such behaviours as war crimes for which international criminal consequences should follow.
IV Fact-finding in International Refugee Law: Lessons from the Russian Invasion of Ukraine (Hilary Evans Cameron)
Source: Getty Images/iStockphoto
In the first months after the Russian invasion, many countries that rightly welcomed Ukrainian refugees worked equally hard to keep other refugees at bay. What can we learn from this? Nothing that we did not already know. The people responsible for offering refugee protection may be more motivated to protect some refugees than others. They may be motived to protect some refugees and not others. And they may not be motivated to protect any refugees at all. If they have the discretion, either in fact or in law, to decide who they want to protect, they may use that discretion unjustly.
Canadian refugee status decision-makers have long had this discretion, both as a matter of fact and as a matter of law, which helps to explain the persistent wide disparities in their grant rates. In a Canadian refugee hearing today, on any given set of allegations and evidence, an adjudicator can very often decide to accept or deny the claimant fully at their own discretion, for whatever reasons that motivate them, while keeping entirely within the legal constraints. This is because Canadian refugee law allows decision-makers to choose whether to resolve their doubts in the claimant’s favour or at their expense. At the end of the day, a decision-maker can say “I just don’t know what to believe, so I’m accepting your allegation” or “I just know what to believe, so I’m rejecting your allegation.” To reach either conclusion, all they need is doubt. And when the claimant is testifying through an interpreter, across a language and cultural barrier, in a manner often complicated by trauma, and typically with little to no supporting evidence, doubt is not hard to come by.
The drafters of the 1951 Refugee Convention left a crucial question unanswered: how should refugee status decision-makers prefer to err? The law of fact-finding, the law that is supposed to constrain how decision-makers resolve their doubts, depends on the answer to this question. International law must loudly declare that it is a worse mistake, and by orders of magnitude, to reject a claim than should have been accepted than to accept a claim that should have been denied. Providing this missing piece to the law’s normative foundations will not solve the problem of discretion. But we cannot hope for consistently just and principled refugee status decision-making without it.
Idil Atak
Lincoln Alexander School of Law
Areas of Expertise: Irregular migration, refugee protection, securitization of migration and human rights law
Idil Atak is an associate professor at the Lincoln Alexander School of Law. Dr. Atak holds a PhD from the Université de Montréal’s Faculty of Law. The former editor-in-chief of the International Journal of Migration and Border Studies (IJMBS), she is a past president of the Canadian Association for Refugee and Forced Migration Studies (CARFMS). Her research interests include irregular migration, the criminalization of migrants, and the protection of the rights of irregular migrants, asylum seekers and refugees in Canada and in Europe. Dr. Atak served as a legal expert for the Turkish Ministry of Foreign Affairs in Ankara, then as deputy to the Permanent Representative of Turkey to the Council of Europe in Strasbourg, France.
Jennifer Orange
Lincoln Alexander School of Law
Areas of Expertise: Human rights, international law, organizational theory, dispute resolution, socio-legal studies, museology
Jennifer Orange is an assistant professor at the Lincoln Alexander School of Law where she teaches International Human Rights Law. Professor Orange is a lawyer, adjudicator, and human rights scholar. She received her S.J.D. from the University of Toronto, her LL.M. from New York University (International Legal Studies), her LL.B. from the University of Toronto, and her B.A. in Asian and Middle Eastern Studies from the University of Pennsylvania. Her research investigates the relationship of cultural institutions with new developments in both international and domestic human rights law. She is passionate about the potential for partnerships between cultural and legal institutions in the work to prevent, and recover from, human rights violations. She has written and lectured on international law, human rights, the law of armed conflict and the role of museums. She is a Senior Fellow at the Bill Graham Centre for Contemporary International History, a member of the Advisory Board of the Canadian Centre for the Responsibility to Protect and a member of the Canadian Human Rights Tribunal.
Uchechukwu Ngwaba
Lincoln Alexander School of Law
Areas of Expertise: Public health and human rights, international human rights law, health systems, health governance frameworks, constitutional theory, comparative constitutional law, and transitional justice
Assistant Professor Uchechukwu Ngwaba teaches public international law in Lincoln Alexander School of Law. His research program engages multi-disciplinary, comparative and socio-legal methods in exploring complex questions affecting health governance frameworks in the Global North and South. His latest research project which is funded by a SSHRC Explore Grant sets out to embed a regional framework for health governance in the Inter-American Human Rights System. Prof Ngwaba’s work in transitional justice engages TWAIL as a useful theoretical lens for critical internationalism to interrogate claims about universalism in the pursuit of international criminal justice, whilst pushing for better representation for the subaltern in international thought and action.
Hilary Evans Cameron
Lincoln Alexander School of Law
Areas of Expertise: Refugee law; administrative law; memory; risk perception; lie detection; logic and legal reasoning; clinical legal education
Assistant Professor Hilary Evans Cameron teaches evidence law, administrative law, and advanced legal research and writing at the Lincoln Alexander School of Law. A former litigator, she represented refugee claimants for a decade and holds a doctorate in refugee law from the University of Toronto. Her research largely focuses on credibility assessment in the refugee law context. She is the author of a book about the law of fact-finding in refugee status decision-making (Refugee Law’s Fact-finding Crisis: Truth, Risk, and the Wrong Mistake, Cambridge 2018) that explores the normative foundations of the 1951 UN Refugee Convention and its ‘non-refoulement’ principle.
