Larissa van den Herik

The Security Council's Targeted Sanctions Regimes: In Need of Better Protection of the Individual

This contribution examines the problem of review of targeted sanctions imposed by the Security Council in the light of recent developments occurring in the EU context. Some recent judgments of the European Court of First Instance of the European Communities (CFI) are analysed, as rendered in the cases of Yusuf and Kadi and also in the more recent cases of the Mujaheddeen and Sison. These last two judgments show that flaws in the targeted sanctions regimes exist not only at UN level. The CFI also does not substantively review the listing when this listing is carried out by the Council of the EU. An examination of the progress made at UN level to address procedural flaws shows that, more than anything else, the real stumbling block is the lack of a substantive review of intelligence information by an independent and impartial organ. The only conclusion that can be drawn from this is that we are on the way towards a better de-listing procedure, but are not there yet.

The Public Good of Academic Publishing in International Law

This piece has been written as an editorial of the Leiden Journal of International Law. It seeks to entice (self-) reflection on the public good at the heart of academic publishing. It argues that, in the intricate social process from information to knowledge, law journals constitute an essential medium and that the public good of law journals like LJIL primarily boils down to their contribution to the crystallization of information and opinions in legal knowledge. This means that law journals, like LJIL, are constitutive parts of the assembly line for the validation as knowledge of information and opinions about international law. Yet, the digital age has come with huge challenges. These observations particularly focus on 5 core questions whose answer will define the assembly line of knowledge about international law of tomorrow.

Eroding the Primacy of the UN System of Collective Security: The Judgment of the European Court of Justice in the Cases of Kadi and Al Barakaat

This contribution examines the problem of review of targeted sanctions imposed by the Security Council in light of recent developments that occurred in the EU context. Some recent judgements of the European Court of First Instance of the European Communities (CFI) are analysed, as rendered in the cases of Yusuf and Kadi, and also more recently in the cases of the Mujaheddeen and Sison. These latter two judgements show that flaws in the targeted sanctions regimes do not only exist at UN level. The CFI also does not substantively review the listing when this listing is done by the Council of the EU. An examination of the progress made at UN level to address the procedural flaws shows that more than anything else, the real stumbling block is substantive review of intelligence information by an independent and impartial organ. The only conclusion that can be drawn from this is that we are on the way towards a better de-listing procedure, but we are not there yet.

Counter-terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges

Introduction: the fragmented international legal response to terrorism Part I. Improving International Co-operation in the Investigation and Prosecution of Terrorist Acts: 1. A snapshot of international criminal justice co-operation in the fight against terrorism since 9/11 2. Terrorist crimes and the Aut Dedere Aut Judicare obligation 3. The need for a multilateral co-operative framework for mutual legal assistance 4. The role of regional organisations in promoting co-operation on counter-terrorism matters: the European and African institutions in a comparative perspective 5. Lessons of the European Arrest Warrant 6. Intelligent co-operation versus evidence collection and dissemination 7. International co-operation in counteracting terrorist financing 8. The international regulation of the use of force: the politics of interpretative method Part II. The Use of Force against Terrorists: 9. The role of the UN Security Council in relation to the use of force against terrorists 10. Self-defence against terrorists: the meaning of armed attack 11. Anticipatory self-defence against terrorists 12. The necessity and proportionality of anti-terrorist self-defence Part III. Intersection between International Human Rights Law and International Humanitarian Law in the Fight against Terrorism: 13. Armed conflict and terrorist organisations 14. Extra-territorial application of the rights to life and personal liberty, including habeas corpus during situations of armed conflict 15. Harmony or conflict? The interplay between human rights law and international humanitarian law in the fight against terrorism 16. The legal regime governing treatment and procedural guarantees for persons detained in the fight against terrorism 17. The legal regime governing the use of lethal force in the fight against terrorism 18. The legal regime governing transfer of persons in the fight against terrorism 19. Terrorism as a crime in international law and domestic law open issues 20. All necessary measures? Reconciling international legal regimes governing peace and security and the protection of persons in the realm of counter-terrorism and international law Appendix: Leiden Policy Recommendations on Counter-terrorism and International Law.

THE DUTCH ENGAGEMENT WITH THE PROJECT OF INTERNATIONAL CRIMINAL JUSTICE

This article analyses the Dutch practice on the prosecution of international crimes with a view to determining whether this practice has been inspired by or has informed developments at the international level and more generally to analyzing how Dutch practice interrelates with international developments. The article singles out three episodes. First, a prelude of frustration in which the extradition of the German Emperor was refused (1918-1920). Subsequently, two periods of engagement, which were to some extent inspired by international proceedings (1946-1951 and 1994-today). In these periods, Dutch courts demonstrated commitment to the project of international criminal justice and they have produced insightful judgments which have even served as a source of law and a source of inspiration to contemporary international criminal law adjudication. The article has been written on the occasion of the 100th anniversary of the Netherlands Society of International Law.

‘Fragmentation’, Diversification and ‘3D’ Legal Pluralism: International Criminal Law as the Jack-in-The-Box?

This chapter constitutes the introduction of a new volume entitled The Diversification and Fragmentation of International Criminal Law (Martinus Nijhoff Publishers, 2012).

The Meaning of the Word 'Destroy' and the Implications for the Wider Understanding of the Concept of Genocide

The occasion of the sixtieth anniversary of the Genocide Convention (the Convention) provides momentum to both commemorate the past and reflect on what the future may bring. A first observation at this juncture is that the Genocide Convention has seemingly not lost any of its relevance over the past sixty years. The continuing relevance of the Genocide Convention for legal purposes is demonstrated by the fact that the crime of genocide has featured and continues to feature in quite some indictments before national and international criminal courts and tribunals. These cases address Second World War crimes, but also — and perhaps even in their majority — other situations of mass crime. Even though the Holocaust has not been repeated in scale, form and character, the qualification of genocide has been invoked in quite a number of situations, ranging from the massacres in Rwanda, Srebrenica and Darfur, to the annihilations of Indians in the Americas and the transfer of Aboriginal children in Australia. The question is: are all these situations truly comparable, and is the qualification of genocide the most adequate one? Phrased in more abstract terms: to what extent is the definition of genocide — as included in the Genocide Convention — applicable to new situations, and what can recent jurisprudence teach us about the future application of the Convention? In this essay, it is argued that the essence of the legal definition of genocide is captured in the word “destroy” — part of the mental element of the crime —, namely, that an act is committed with the specific intent to destroy a group. A review of recent jurisprudence on the meaning of the word “destroy” will indicate to what extent, if at all, the definition of genocide, as applied by international judges, has moved beyond its original conceptualization.

The Difficulties of Exercising Extraterritorial Jurisdiction: The Acquittal of a Dutch Businessman for Crimes Committed in Liberia

Reports of the NGO Global Witness in which the implication of the Dutchman Kouwenhoven in the civil war in Liberia was exposed served as the lead for the Dutch Prosecution Office to start a criminal case against this national. In June 2006, the Dutch businessman Guus Kouwenhoven was convicted in first instance for the violation of an arms embargo, but acquitted of the count on war crimes. On appeal, Kouwenhoven was fully acquitted of all charges. In its judgment quashing the prior conviction, the Dutch Court of Appeal heavily criticized the Public Prosecutor and observed that the case against Kouwenhoven was built on quicksand. Even though not based on universal jurisdiction, the case does illustrate the inherent complexities of exercising extraterritorial criminal jurisdiction. A remarkable aspect of the case is that the Court of Appeal evaluated the evidence presented in a fundamentally different way than the Court of First Instance had done. This might be related to the inherent difficulties of assessing “foreign evidence”. In this note, it is argued that when adjudicating such foreign cases, national judges being unfamiliar with the historical and cultural setting in which the alleged crimes took place, should call upon experts on the region to assist in the evaluation of the evidence. In terms of substance, the case leads to interesting questions as to how charges of illegal arms trade do and should relate to charges of complicity in war crimes.

Reparation for Victims of Armed Conflict: Impulses from the Max Planck Trialogues

The international law on reparation for victims of armed conflict is complex. Numerous subfields of international law are involved, among them international human rights law, international criminal law, international humanitarian law, and the law on State responsibility. In addition to this complexity, reparation-related questions are often highly politically charged. They are focal points of contestation about moral values, different conceptions of justice, and approaches to international law, including the status of the individual human being in this order. Against this backdrop, the collection of short essays explores whether and under which circumstances individuals have a right to reparation under international law. The introduction unpacks the legal dimensions and identifies the currently most controversial issues. One set of essays then analyses, from different angles, whether a right to reparation for individuals exists as a matter of law. Another set recounts experiences with the implementation of reparation mechanisms and discusses the challenges. A third group of essays addresses the role of domestic courts. The essays (‘impulses’) are one outcome of the Max Planck Trialogue workshop on reparation for victims of armed conflict, held in November 2017 in Berlin.

Human Rights Bodies and International Humanitarian Law: Common But Differentiated Approaches

Human rights courts and bodies are increasingly called upon to look outwards, beyond the immediate contours of their constituent instruments and beyond their own jurisprudence. A key aspect of this phenomenon is the jurisprudential ‘borrowing’ or trans-judicial ‘dialogue’ between human rights courts, bodies and systems that is explored in detail in other chapters of this book. There is, however, also a growing call for such bodies to have regard to, interpret and in some cases ‘apply’ a range of other norms of international law beyond international human rights law (IHRL). UN imposed sanctions, the assertion of immunities of the state and state officials and issues of state responsibility are among the contexts in which human rights courts have recently had to grapple with generic international law-concepts or rules from areas of law other than IHRL, often with controversial results. This chapter considers the approach of human rights courts and bodies to one such issue of interplay that arises with increasing frequency, namely the application of international humanitarian law (IHL) alongside IHRL in situations of armed conflict.