ILSA Law Journal Issue 1 - 2021 by HHS ILSA Law Journal

2020 issue 1 ILSA Law Journal

Table of Contents Editor in Chief’s note

The Guest Editors

Acknowledgements

Femicidal Futures: Expanding the Rome Statute By Georgia Delgado-Fitzgerald

The Gambia v. Myanmar: Judgement for Judgement’s Sake, A Commentary on the Order of 23 January 2020 By Max Marolt

Settlements in the West Bank: Israel’s Transfer of Population under Article 8(2)(b) of the Rome Statute By Myriam Hunfeld

The EU Leniency Policy: Is the EU Commission Being More Lenient than it Should? By Deivid Mustafa

The EU Vietnam Investment Protection Agreement: Analyzing the Scope of the Agreement and National Treatment By Tanvir Rai Singh

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EDITOR IN CHIEF’S NOTE The ILSA Law Journal invites students, Alumni as well as the Faculty of the International and European Law Program of The Hague University of Applied Sciences to hand in written submissions in response to our Call for Papers for the 2021 edition of the HHS ILSA Law Journal.

This issue of the Journal focuses on the topical question of International Law in Practice. This year, the ILSA Law Journal has decided to focus the discussion on the current legal regime and its shortcomings. The multitude of the impactful events witnessed recently has raised questions regarding the role and effectiveness of international law in today’s society. Concretely, the lack of regulations on environmental protection, the inability or even reluctance to adequately address gender and race issues, and the countries’ isolationist tendencies, have projected new trajectories in the global political agenda. Therefore, we believe that every circumspect observer should be offered the possibility to criticise or propose recommendations on how to improve the current legal framework. The discussion is not limited to a certain area but spans every area of law.

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THE GUEST EDITORS Dr. Michail Vagias Michail (Michael) Vagias is a Senior Lecturer in Law at The Hague University of Applied Sciences and Program Manager for the ProCuria Project on Professional Legal Training. Following the conclusion of his Ph.D. studies in Leiden University, Michail became a lecturer and later a Senior Lecturer in Law at The Hague University of Applied Sciences. He has acted as an Expert on Mission for migration policy development, as well legal counsel in international cases. Dr Vagias’ research interests focus on questions of jurisdiction in domestic and international law. In addition to his monograph (The Territorial Jurisdiction of the International Criminal Court, CUP, 2015), his latest publications include ‘Revocation of enduring amnesties vs. principle of legality: jurisprudential contestations between the Inter-American Court of Human Rights and Domestic Courts’, 26 Italian Yearbook of International Law 2016 and ‘Retroactive State Criminal Jurisdiction under International Law’, Cambridge International Law Journal 2018. His work has been cited by the Prosecutor of the ICC in the 2018 Bangladesh/Myanmar Jurisdiction Request and the OTP’s 2019 Palestine Jurisdiction Request. Dr Vagias has contributed to this issue of the ILSA Law Journal as a guest editor and has used his experience and expertise in the editing and publication process. Furthermore, Dr Vagias has also offered two workshops on writing editing pieces for periodicals in collaboration with the ILSA Law Journal.

Ms. Christine Tremblay Ms. Christine Tremblay is a lecturer and researcher at the International and European Law Programme at The Hague University of Applied Sciences since 2015. Her areas of expertise include Public International Law, International Criminal Law, International Humanitarian Law, Feminist Legal Theory, as well as Gender and Law. Ms. Tremblay is a PhD Candidate at Leiden University, who has been working on “The Impact of Feminist Scholarship on International Criminal Law Since 1991.” Ms. Tremblay obtained her law degree (B.C.L. and LL.B. diplomas) from McGill University in 1999. She is also a qualified lawyer and member of the Quebec Bar. After working at the International Criminal Tribunal for the former Yugoslavia (ICTY), she completed her LL.M. (adv.) in Public International Law with a specialization in International Criminal Law at Leiden University (2001-2002). Further, Ms. Tremblay occupied the position of General Coordinator of the 2020 issue 1 ILSA Law Journal

Grotius Centre for International Legal Studies since its foundation in 2003. She was responsible for managing and coordinating the activities and the finances of the Centre, as well as coordinating the Marie Curie Project sponsored by the European Commission. Moreover, Ms. Tremblay was also the Managing Editor of the Leiden Journal of International Law from 20082011. Ms. Tremblay has contributed to this issue of the ILSA Law Journal as guest editor and has used her expertise in the editing and publication process.

Dr. Eva Maria Foldes, Mária Éva Földes, PhD is a lecturer in EU Law at The Hague University of Applied Sciences. Her research interests focus on European and international health law, the dynamics of EU decision-making and health care governance. Her articles and book chapters have been published in scientific journals like the Journal of European Integration, the European Journal of Risk Regulation, the International Journal of Public Health and the European Journal of Consumer Law, and publishers like Cambridge University Press and Oxford University Press (forthcoming). Prior to joining THUAS, she worked as assistant professor at the University of Vienna, Institute for European Integration Research and as postdoc researcher at Tilburg University, Tilburg Law and Economics Center. She obtained her PhD degree at the Central European University. Dr Eva Maria Foldes has contributed to this issue of the ILSA Law Journal as guest editor and has used her expertise in the editing and publication process.

Dr. Christina Contartese Cristina Contartese (MA University of Birmingham; PhD University of Bologna-University of Strasbourg) is Lecturer in EU Law at the Hague University of Applied Sciences. Previously, she was Lecturer in EU and International Law at the European Law and Governance School/European Public Law Organization (Athens). She held positions as a Post-doc researcher at the University of Bologna, where she taught International Law, and at the University of Luxembourg (Marie Curie fellow/FNR-Luxembourg), where she researched on dispute settlement mechanisms from EU and International Law perspectives. She was a visiting researcher at the Max Planck Institute–Luxembourg, and at the iCourts Centre (University of Copenhagen). Her main research interests include: EU Constitutional Law, EU External Relations, International Dispute Settlement, International Water Law, and the European 2020 issue 1 ILSA Law Journal

Convention on Human Rights. She published on these subjects in edited books and peerreviewed journals, such as Common Market Law Review, Rivista di Diritto Internazionale and Legal Working Papers of the European Central Bank. She is an analyst for ‘EU Law Live Blog’, and a member of the editorial board of International Journal of Human Rights and Constitutional Studies (IJHRCS). Dr Christina Contartese has contributed to this issue of the ILSA Law Journal as guest editor and has used her expertise in the editing and publication process.

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ACKNOWLEDGEMENTS The ILSA Law Journal would like to acknowledge and thank the participation and work of its guest editors Ms. Tremblay, Dr Vagias, Dr Eva Maria Foldes and Dr Christina Contartese for directing and guiding the process of selection and edition of this Issue 1 on the International Law in Practice of the ILSA Law Journal.

The Journal would also like to thank the support and collaboration of the ILSA Management Board of 2020-2021, including President and Head of Social Events Ms. Bianca Maria Leahu, Vice-President and Head of Communications Ms. Sarah-Jane Tchakerian, Head of Main Events Ms. Mara Corlade, Head of Marketing Mr. Daniel Neave-Maass, and Editor in Chief of the ILSA Law Journal Mr. Deivid Mustafa.

Finally, the Journal would like to acknowledge the participation of its members including Secretary and Editor Ms. Alexandra Sarban, Editors Mr. Gustavo Jimenez, Ms. Ashleigh Mulder, Mr. Jacky-Long Mouthy, Ms. Egle Bartminaite, Mr. Tikhon Filonov, and Ms. Myriam Hunfeld, Ms. Lauriane Eudeline and Ms. Aarya Adhiakari. This year, the selection process was solely conducted by the Guest Supervisors so as to avoid any bias and to ensure that the selection was based on merit. Furthermore, the Journal introduced this year the “Paper of the Year” award. The winner will be declared with Issue 2/2021 of the Journal.

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Femicidal Futures: Expanding the Rome Statute By Georgia Delgado-Fitzgerald*

ABSTRACT

This article highlights the state practice of Mexico as a case study, where femicide has a tenacious grip on the state. Mexico’s state practice in response to femicide is analysed to understand the current circumstances and frictions of femicide dualistically on both the state and the international level, addressing the contentions of femicide and its intersections with patriarchal values, organised crime violence and domestic violence. These intersections complicate the criminalisation of femicide when attempting to hold states accountable, given the precarious and harrowing reality of organised crime and state relationships, with power dynamics oppressing both organised crime actors and state actors, who simultaneously contribute and create necropolitical violence. The aim of highlighting Mexico’s high rates of femicide is to reflect on state practice in responding to female subjugation and to demonstrate the urgency of the inclusion of femicide as a novel core crime in the Rome Statute. This paper will assess femicide as a form of genocide, finding it problematic due to the activation of the female identity to the exclusion of trans and queer victims. It will then consider it as a crime against humanity and find it is equally problematic to apply to the endemic nature of femicide as femicide needs to meet the widespread and systematic requirements. Ultimately, the inclusion of femicide into the Rome Statute as a novel core crime will be argued for, and the implementation of this will further criminalise state actors who show inertia in the implementation of international norms that protect women.

LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences.

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INTRODUCTION

Femicide is universally prevalent at alarming rates.1 This questions the efficiency of legal enforcements currently in place to prevent femicide. In Mexico in particular, femicide has a grim and relentless hold on the state,2 with ten killings per day in 2019.3 Universally, femicide is a pandemic in itself that has been compounded by the negative effects of the current Coronavirus pandemic on family and gender dynamics.4 In this paper, Mexico is used as a case study to understand the current circumstances and frictions of femicide on a state level, addressing the contentions of femicide as a crime by omission. Mexican femicides and the intersection with organised crime violence is highlighted. Moreover, this paper will show how complicated the issue becomes when attempting to hold states accountable, due to the nature of femicide as a global issue involving a multiplicity of actors. This article aims to demonstrate the possibilities of establishing femicide as a crime under the Rome Statute, to prosecute state actors before the ICC and to enforce accountability on states. Femicide as a crime may be considered as an act of genocide, a crime against humanity or be introduced as a novel core crime. This article argues that the International Criminal Court (ICC) provides the ability to hold state actors accountable for contributing to, or for a lack of action on mass femicide within their state, thus ensuring effective means to prohibit and prevent femicide. Additionally, expanding femicide as an international criminal act produces a formal and greater recognition of women’s experiences of violence, and exemplifies the ICC and international criminal law as receptive and alive.

II.

FEMICIDE DEFINITION

The term femicide refers to the killing of women and girls. Femicide is the act of homicide of a woman because of her gender.5 United Nations documents define femicide as the gender-related killing of women that can take different forms, such as intimate partner and domestic violence killings, dowry related killings, witchcraft killings, honour killings, killings within an armed conflict, killings of black

Adrian Lewis, 'Combatting Femicide in France' (2020) 23 Hum Rts Brief 11. Melissa W. Wright, ‘Necropolitics, Narcopolitics, and Femicide: Gendered Violence on the Mexico-U.S. Border’ (2011) 36/3 Signs 726. 3 Kirk Semple and Paulina Villegas, ‘The Grisly Deaths of a Woman and a Girl Shock Mexico and Test Its President’ The New York Times (19 February 2020) <https://www.nytimes.com/2020/02/19/world/americas/mexico-violence-women.html> accessed 16 April 2021. 4 United Nations Office of the High Commissioner for Human Rights, ‘Urgent action needed to end pandemic of femicide and violence against women, says UN expert’ (25 November 2020) <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26533&LangID=E> accessed 16 April 2021. 5 Rae Taylor and Jana L Jasinski, 'Femicide and the Feminist Perspective' (2011) 15 Homicide Stud 341. 2

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and indigenous women, killings of queer and trans women, and more.6 The Vienna Declaration on Femicide7 adds genital mutilation femicides, and gang, organized crime, drug dealers, and human trafficking killings. Femicide, beyond this definition, is a “complex, polyhedral and culturally dependent murder”.8 The rate of femicide is rising,9 and efficient legal enforcement to prevent this number from increasing is now overdue. Additionally, the information collected on homicide is often not differentiated on account of sex or gender by states, hence the rate is currently under-represented.10 Including femicide in the Rome Statute offers state obligations as well as international attention and public shame, that current legal instruments, such as The Vienna Declaration on Femicide, 11 do not offer. Developments in international criminal law in practice on gender-based violence, such as the Akayesu12 case, which established rape as a genocidal act, demonstrate international criminal law’s ability to expand on gender-based crimes. This indicates the potential for the explicit inclusion of femicide into the realm of international criminal law.

III.

CRIMINALISATION

This paper argues for individual criminal responsibility in States that indulge or allow femicide practices, rather than state responsibility or the implementation of human rights frameworks. Advocating for punitive measures can be considered problematic, given the oppressive power structures that criminalisation can construct and enforce.13 Criminalisation prevents and limits the imaginative possibility of transformation, healing and possibly interpersonal justice14 that other avenues may offer. Criminal responsibility provides a distinction between individual and state accountability, implying a personal attribution of the crime of femicide onto perpetrators.15 Highlighting individual criminal responsibility, although incredibly important for state restoration, can limit the ability to assess the

UNGA 'Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Rashida Manjoo' (23 May 2012) UN Doc A/HRC/20/16. 7 ECOSOC ‘Vienna Declaration on Femicide’ Res 1996/31 (1 February 2013). 8 Magdalena Grzyb, Marceline Naudi and Chaime Marcuello-Servós “Femicide Definitions” in Shalva Weil, Consuelo Corradi and Marceline Naudi (eds) Femicide across Europe: Theory, Research and Prevention (Bristol University Press 2018). 9 Lewis (n 1). 10 Patricia Eastal, 'Femicide: The Politics of Woman Killing' (1994) 27 Aust & NZ J Criminology 210 11 ECOSOC (n 7). 12 Prosecutor v Akayesu (Judgment) ICTR-96-4-T, T Ch I (2 September 1998). 13 Jackie Wang, Carceral Capitalism (Semiotext(e), 2018) 297. 14 ibid. 15 Vincenzo Militello, 'The Personal Nature of Individual Criminal Responsibility and the ICC Statute' (2007) 5 J Int'l Crim Just 941.

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wider problems that lead to widespread and mass violence.16 However, the creation of an objective historical record through investigations and evidence demonstrates who was instrumental in the contribution to femicide and instrumentalizes public shame on powerful state actors to stain and discredit individuals that contribute to femicide.17 Individual criminal responsibility additionally highlights that the power of the state is constructed and maintained not only by powerful actors themselves but also by systems of the patriarchy and the people that uphold it.18

IV.

MEXICO

This article presents Mexico as a case study, in order to highlight the complicated intersections of femicide with drug and organised crime violence and how these political issues complicate the situation of femicide there. Additionally, the precarious and harrowing reality of organised crime and state relationships complicate the opportunity to hold states liable on an international scale under the Rome Statute.19 The aim of highlighting Mexico’s high rates of femicide and using Mexico to reflect on state practice in responding to femicide is to demonstrate the urgency of characterising femicide under the Rome Statute in certain states outside the context of war. Mexico is used in this article to demonstrate how femicide on a state level can be neglected, because of other factors, such as organised crime, patriarchal values, a lack of resources20 and other priorities. To avoid accusations of western paternalism, it should be noted that femicide is also rising in Western and European states.21 Additionally, Mexico’s issue with femicide is so alarming that Mexican feminists have coined the concept ‘feminicidio’.22 The concept of ‘feminicidio’ is very close to femicide, although not identical, as it includes state responsibility for protecting women from femicide. This concept was developed in the 1990s by Mexican feminist scholars. It was inspired by femicide and it is used to provide a framework to describe the current, alarming and dramatic rise in extreme violence against women and gender-based killings in Mexico. The difference between femicide and ‘feminicidio’ is the critical element of the failure of the state to legally prosecute or punish the perpetrators of femicide.23‘Feminicidio’ extends upon the traditionally conceptualised idea of femicide, evaluating femicide as a state crime and placing accountability on state actors. This definition of femicide provides

Tor Krever, 'International Criminal Law: An Ideology Critique' (2013) 26 LJIL 701 page 24. Nesam McMillan, 'Our Shame: International Responsibility for the Rwandan Genocide' (2008) 28 Austl Feminist LJ 3. 18 Doris E Buss, 'Knowing Women: Translating Patriarchy in International Criminal Law' (2014) 23 Soc & Legal Stud 73. 19 Karen Stout, 'Intimate Femicide: An Ecological Analysis' (1992) 19 J Soc & Soc Welfare 29. 20 Wright (n 2). 21 Lewis (n 1). 22 Grzyb, Naudi and Marcuello-Servós (n 8) 20. 23 ibid. 17

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the potential for international obligations for human right violations,24 and demonstrates the need for state action on femicide in Mexico as envisioned/advocated by Mexican feminist legal scholars. The concept of ‘feminicidio’ emphasizes a push from Mexican feminist legal scholars on creating accountability at a state level for femicidal acts through international criminal law in Mexico. Mexico as a state party to the Convention on the Elimination of All Forms of Discrimination Against Women,25 violates obligations of the Convention on the Elimination of All Forms of Discrimination Against Women committee.26 There are issues in the enforcement of femicide as an international crime within international criminal law, due to a lack of enforceable treaties upon states and state reluctance.27 It has been argued that the development of women’s rights against violence have alienated women from the protection of femicidal acts in the historical process,28 an example being the Convention on the Elimination of All Forms of Discrimination Against Women.29 Femicide is neglected in this convention, with no specific provision on violence against women or femicide.30 This Convention does however outline that women require freedom of “distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women,”31 therefore Mexico has a duty to enforce these obligations, and address issues of femicide.32 Later recommendations33 fill in existing gaps in the Convention, providing protocols on femicide, demonstrating that international criminal law in practice offers developments in response to global concerns, even if through soft-law and non-legally binding instruments.34 The Istanbul Convention35 explicitly places responsibility on the state to prevent all forms of violence against women, protect those

ibid. UNGA Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entry into force 3 September 1981) UNTS vol. 1249. 26 UN Committee for the Elimination of All Forms of Discrimination against Women, ‘General Recommendation No 19’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (29 July 1994) UN Doc HRI/GEN/1/Rev.1. 27 Katherine Mobilia, 'Salvation for the Women of El Salvador: Recognizing a Violation of International Human Rights for the Sake of Ending Femicide' (2020) 43 Fordham Intl LJ 1329. 28 Christine Chinkin, ‘Violence against women: The international legal response’ (2010) 3/2 Gender and Development 25. 29 UNGA (n 25). 30 Chinkin (n 28) 26. 31 UNGA (n 25). 32 Rosa M Celorio, 'The Case of Karen Atala and Daughters: Toward a Better Understanding of Discrimination, Equality, and the Rights of Women' (2012) 15 CUNY L Rev 335. 33 UN Committee for the Elimination of All Forms of Discrimination against Women, ‘General Recommendation No 19’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (29 July 1994) UN Doc HRI/GEN/1/Rev.1. 34 Chinkin (n 28) 26. 35 Council of Europe 'Convention on Preventing and Combating Violence against Women and Domestic Violence' (11 April 2011) CETS 210. 25

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who experience it and prosecute perpetrators.36 The Vienna Declaration on Femicide additionally offers a definition of femicide37 – an important development.38 These international treaties prohibit femicide, yet rates of femicide are still high and states show a lack of enforcement of these treaties. It should be noted that Mexico has not ratified the Istanbul Convention. There is reluctance from state actors to implement existing laws that provide women with protection from violence, and the state criminal justice system’s ineffectiveness adds additional barriers to the criminalisation of femicide on a state level.39

FEMICIDE AS A CRIME IN THE ROME STATUTE SYSTEM

This article identifies three options for the criminalization of femicide at the ICC. Femicide will be analyzed below as a crime of genocide, crimes against humanity and a novel core crime.40 Firstly, femicide may be construed as a genocidal act against women as a group. Femicide could be considered within the scope of the act of murder under Rome Statute Article 6 (a),41 if the suspect killed women specifically due to their membership in an existing group, as argued by Carson and other feminist advocates.42 Additionally, femicide could be considered as crime against humanity under Article 7 of the Rome Statute,43 provided that femicide fulfils the widespread or systematic requirements. Finally, femicide is analysed as a possible novel core crime in the Rome Statute. This option provides for a more generous understanding of femicide, since genocide and crimes against humanity have a narrow scope when applied to the crime of femicide. International laws and practices aiming to prevent or prohibit femicide, such as international treaties specifically aimed at femicide criminalisation,44 have weak enforcement mechanisms that are proving non-effective.45 Femicide, and even more broadly, gender persecution, have been historically neglected

Shalva Weil, ‘Femicide Across Europe: Theory, research and prevention’ in Shalva Weil, Consuelo Corradi and Marceline Naudi (eds) Femicide Across Europe: Theory, research and prevention (Policy Press 2018) 9. 37 ECOSOC (n 7). 38 Weil (n 35). 39 Veronica Michel, ‘Judicial Reform and Legal Opportunity Structure: The Emergence of Strategic Litigation against Femicide in Mexico’ (2020) 82 Studies in Law, Politics and Society 46, 16. 40 Graciela Atencio, Femicidio: De la categoría político-jurídica a la justicia universal (Los Libros De La Catarata 2021). 41 Rome Statute of ICC (adopted 17 July 1998, entered into force on 1 July 2002) 2187 UNTS 3 article 6 (a). 42 Kimberly E Carson, 'Reconsidering the Theoretical Accuracy and Prosecutorial Effectiveness of International Tribunals' Ad Hoc Approaches to Conceptualizing Crimes of Sexual Violence as War Crimes, Crimes against Humanity, and Acts of Genocide' (2012) 39 Fordham Urb LJ 1249. 43 Rome Statute of (n 40) 7. 44 (Such as) ECOSOC ‘Vienna Declaration on Femicide’ Res 1996/31 (1 February 2013), Council of Europe 'Convention on Preventing and Combating Violence against Women and Domestic Violence' (11 April 2011) CETS 210. 45 Chinkin (n 28). 36

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by international legal instruments46 and the ICC.47 The first case on gender persecution was the Al Hassan48 case before the ICC, as recently as 2015. Although there are some more recent contributions49 to international criminal law to protect women from gender-based violence, femicide as an international legal crime is not found in international instruments that provide criminal responsibility. However, it is currently an emerging crime that has yet to achieve universal acceptance. The Rome Statute outlines that “the Court shall be limited to the most serious crimes of concern to the international community as a whole.”50 This article will argue that femicide is currently a critical and unprecedented endemic, and that femicide deserves inclusion as a separate crime within the ICC. This journal article is motivated by a gap in legal theory academia on femicide urgently needing expansion into the Rome Statute51 to offer the potential of adequate individual criminal responsibility for perpetrators. Femicide’s expansion into the Rome Statute is analysed under several different crimes, namely femicide as a genocidal act, a crime against humanity, or a separate core crime. In order to criminalise this phenomenon, femicide as a war crime in the Rome Statute has been set aside. War crimes are an aggravating circumstance for femicide but amending the legal framework of war crimes is not part of this article. Female victims in war can be murdered by both sides as violence can be inflicted on both sides of a conflict. When women are the target of homicide outside of war, perpetrators and victims have a different group verification and this would limit the scope of femicide’s potential to be criminalised. Additionally, it would restrict the ability to prosecute states that by omission, are responsible for femicide outside the scope of war, such as Mexico.

VI.

GENOCIDE

Genocide is provided for under Article 6 of the Rome Statute.52 To establish genocide under the Rome Statute, five underlying acts can be committed exclusively, including killing members of the group.53 These acts must be committed with the intent to destroy in whole or in part a racial, ethnic,

Thiago Pierobom de Avila, ‘The Criminalisation of Femicide’ in Kate Fitz-Gibbon, Sandra Walklate, Jude McCulloch, JaneMaree Maher (eds), Intimate Partner Violence, Risk and Security: Securing Women’s Lives in a Global World (1st edn, Routledge 2018) 181. 47 Kristina Hatas, ‘The case for gender-based violence as an international crime’ (Hertie School, 13 September 2019) <https://www.hertie-school.org/the-governance-post/2019/09/gender-based-violence-as-an-internationalcrime/> accessed 4 February 2021. 48 The Prosecutor v Al Hassan Ag Aboul Aziz Ag Mohamed Ag Mahmoud (Decision on the Prosecutor’s Application for the Issuance of a Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud) ICC-01/12-01/18, Pre-Trial Chamber I (22 May 2018). 49 Weil (n 37) 9. 50 Rome Statute of ICC (n 40) art 5(1). 51 ibid. 52 ibid. 3 art 6. 53 ibid. 46

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national, or religious group, as such. “As such” means that the act is committed against that person because they are a member of that group.54 The murder of women must form part of a manifest pattern, as established by Jelisić,55 satisfying the contextual element of genocide, to ensure that the conduct of femicide is committed against women in a pattern. Some feminist scholars advocate that gender should be considered the fifth group within genocide,56 adding to the four existing groups of racial, ethnic, national, or religious.57 Genocide protects these four groups only, meaning that acts of femicide on a large scale58 are not regarded as genocidal because women are not one of the four protected groups and cannot be considered a target for genocide. Genocide disproportionally impacts women,59 but the Genocide Convention60 does not discuss gender as a group in genocidal campaigns.61 Additionally, The Rwandan Tribunal found burgomaster Akayesu62 guilty of committing genocidal acts by the actus reus of rape, demonstrating that sexual acts can constitute genocide as causing seriously bodily or mental harm,63 establishing that rape as an act can satisfy Article 6 (b) of the Rome Statute. Additionally, many women are raped before they are murdered in genocidal campaigns64 illustrating the nature of how women experience genocide from a gendered perspective, and that genocidal conflicts intersect with gender-based violence. Several authors argue that sexually destroying the group of women meets the requirement of genocide, when women belong to the existing groups that meet the genocide requirements.65 Therefore, femicide as a genocidal act would need to be the murder of women that belong to one of these four groups, if it were to follow the genocidal rape expansion of Akayesu.66 To ensure that women not belonging to any of the four groups can be protected by genocide under the Rome Statute, women can be considered their own, standalone group. This would require establishing ‘women’ as an additional fifth group. To add women as their own group would be problematic, considering that women are not murdered to totally or partially destroy the group of women, but because women are victims of femicide due to social values universally placed on women. To prosecute femicide as a genocidal act would require the

ibid. Jelisić Case (Judgment) ICTY-95-10 (14 December 1999). 56 Rebecca S. Katz, 'Genocide: The Ultimate Racial Profiling' (2003) 5 J L & Soc Challenges 65. 57 Rome Statute of ICC (n 40) art 6. 58 Catharine A MacKinnon, 'Genocide's Sexuality' (2005) 46 NOMOS: Am Soc'y Pol Legal Phil 317. 59 ibid. 313. 60 UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948, UNTS 277, vol. 78) (1951) art. II. 61 Katz (n 54). 62 Prosecutor v Akayesu (n 12). 63 ibid para 731. 64 Katz (n 54). 65 ibid. 66 Prosecutor v Akayesu (n 12). 55

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mens rea to destroy in part or in whole women as a group, which is difficult to prove when femicide is a complex act that exposes how “rational masculinity contribute(s) to violence, to the silencing of citizens, and to state-sanctioned impunity.”67 Additionally, the omission of political, economic, social and other groups demonstrates the limitations put in place by having an exhaustive list of protected groups or identities,68 and therefore it is probably inefficient to add to a limited and narrow list of identities that can be protected from genocide. As the mens rea of femicide is not necessarily to destroy in part or in whole women as a group69, because the individual act of femicide contributes to a larger patriarchal system that causes violence against women.70 Femicide’s determining factor, to murder women on account of their gender, is the motivation for the crime, but the intention to destroy women in whole or in part is not demonstratable. Therefore, it is not adequate to enforce femicide criminalization as an extension of genocide. Using Article 6 of the Rome Statute to prosecute femicidal acts conceptualizes femicide as a killing of a woman because she exists as a member of an already persecuted group. To counter this, some scholars such as Rebecca S Katz have argued for sex as a group.71 Gender is a more appropriate word when attempting to activate the group identity requirement, when it concerns the “social dynamic of gender”72 as referenced in the Rome Statute. A more holistic approach that protects women also outside of persecuted groups, is adding gender as an identity group to the existing four groups. This would ensure that women were protected as their own group, as women are murdered for the reason of having the identity of a woman. It would also ensure the protection of identities outside of women, and also transgender people. Transgender women are often marginalized from the group identity of cis-gendered women while also being murdered for being trans women, problematizing the activation of the group of gender amongst women. As genocide requires proof of the victim’s group solidarity and active belonging to the group that is being persecuted, this option may marginalize transgender women from being able to activate their female identity in relation to cis gendered women. Additional barriers to the manifest pattern established by Jelisić73 are placed as femicide can be committed outside of a similar pattern, and therefore I hesitate to argue for this expansion into the Rome Statute.

Wright (n 2) 726. William A. Schabas, Groups Protected by the Genocide Convention: Conflicting interpretations from the International Criminal Tribunals for Rwanda (2000) ILSA J Int’l & Comp. L p. 375. 69 Atencio (n 39). 70 ibid. 71 Katz (n 54) 65. 72 Rome Statute of ICC (n 40) (3). 73 Jelisić n 53). 68

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States such as Mexico, where the rates of transgender femicides are exorbitant,74 may be precluded from criminal responsibility under the Rome Statute if genocide is applied to the death of transgender women. The gender identities of transgender women are often dismissed, and the subjugation of transgender women may be precluded from the active group element of both gender or woman, as often violence perpetrated against transgender women is characterized as generalized violence or hate crimes75 rather than femicidal acts.

VII.

CRIME AGAINST HUMANITY

Although there are instrumental treaties in the development of criminalizing femicide, cases such as The Cotton-Field Case76 have additionally led to the criminalization of femicide in sixteen Latin American countries.77 Although these developments placed femicide in the international spotlight for a brief period of time,78 some feminist scholars argue that to criminalize femicide appropriately, the Cotton-Field Case should have considered the gendered killings as a crime against humanity, considering that women in Mexico are endemically murdered.79 Scholar Emily Chertoff advocates for crimes against humanity to expand the acts of crimes against humanity to include femicide, as this negates the genocide requirements of belonging to a group and cuts out intersectional group identity issues.80 A crime against humanity as established under Article 7 of the Rome Statute can be summarized as an act committed as “part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”81 consisting of many underlying crimes, including the act of murder.82 Considering this, femicide must be an intentional attack, that is inter alia widespread or systematic, to constitute a crime against humanity. Provided that femicide is endemic and common place in certain

Leigh Goodmark, 'Transgender People, Intimate Partner Abuse, and the Legal System' (2013) 48 Harv CR-CL L Rev 51. 75 ibid 54. 76 Inter-American Court of Human Rights González et al. (“Cotton Field”) v. Mexico (2009) 49 ILM 637. (Adjourn: The Inter-American Court of Human Rights decided on the case of three murdered women, whose bodies were found in a cotton field in Ciudad Juárez, Mexico, in the context of widespread violence against women and embraced a gender perspective on women’s death and the prevalence of femicide in Mexico in the judgement, later incorporated into domestic laws to criminalize femicide). 77 Rebecca Cook, 'Lessons from the Cotton Field Case about Gender Justice' (2010) 104 Am Socy Intl L Proc 565. 78 ibid. 79 Thiago Pierobom de Avila, ‘The Criminalisation of Femicide’ in Kate Fitz-Gibbon, Sandra Walklate, Jude McCulloch, JaneMaree Maher (eds), Intimate Partner Violence, Risk and Security: Securing Women’s Lives in a Global World (1st edn, Routledge 2018) 181. 80 Emily Chertoff, 'Prosecuting Gender-Based Persecution: The Islamic State at the ICC' (2017) 126 Yale L J 1052. 81 Rome Statute of ICC (n 40) 7. 82 ibid.

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states, such as Iraq with respect to Yazidi women being raped and murdered, for being women, on mass, and Nigeria with respect to women and girls being abducted and murdered by Boko Haram,83 femicide committed in these circumstances would qualify as widespread and systematic attack on civilians. The systematic chapeau element of crimes against humanity refers to the organized nature of the acts of violence and the improbability of isolated acts.84 Provided the insidious and repetitive nature of femicide occurring in both current ISIS attacks against Yazidi women and Boko Haram attacks on Nigerian women, femicide here is considered to be a coordinated attack. In Mexico, given femicide’s relation to gang violence and family violence, and the multiplicity of actors when holding states accountable for acts of omission, femicide could be understood as isolated cases of violence rather than results of unequal power imbalances and widespread violence, as femicide is often misunderstood.85 Although femicide is endemic in Mexico, the contentions of gang violence and family violence could negate the widespread attack on women. This would set dangerous precedent that femicide would need to be part of a coordinated attack from an organization like structure,86 rather than a result of coordinated and interlocked power structures involving organized crime gangs and the patriarchy at large, that enforce state omission. Additionally, states such as Mexico who have demonstrated a lack of action on preventing femicide and punishing femicide perpetrators could be argued to be held accountable under omission responsibility.87 A concern for applying crimes against humanity in Mexico is that women do not constitute the general population, because women are inscribed with social difference in relation to their gender. Therefore, femicide in Mexico could be excluded from the systematic or widespread attacks on individuals, possibly considered isolated or sporadic violence, characterizing homicides of women deaths as domestic homicides. However, this would not provide justice to the bigger, global endemic of femicide, given the disruptive nature of femicide to the status quo, appearing chaotic, while being inherently logical to the systems in place that subjugate women.88 Some cultural practices allowed by states, such as Mexico, by omission would not be understood as part of an organizational attack considering the indirect nature of femicide in these states and the difficulty in proving coordinated gang violence. Therefore, crimes against humanity may not efficiently be able to characterize femicide. I therefore again hesitate to argue for this framework, although it does provide a more encompassing identity element than genocide.

Chertoff (n 77) 1050. Rudolfo D Saenz, 'Confronting Mexico's Enforced Disappearance Monsters: How the ICC Can Contribute to the Process of Realizing Criminal Justice Reform in Mexico' (2017) 50 Vand J Transnat'l L 45. 85 Chinkin (n 28). 86 Douglas Guilfoyle, International Criminal Law (OUP 2016) 201. 87 ibid. 88 Wright (n 2) 713. 84

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VIII.

CORE CRIME

Elevating femicide to a core crime adequately and directly establishes criminal responsibility for femicide and demonstrates the development of international law in practice as responsive to the critical issue of femicide by offering adequate protection. The Rome Statute has inferred options for prosecuting femicide as genocide and crimes against humanity. However, these existing crimes do not state femicide as an explicit, core crime. This additional crime would prove effective for the protection of victims of femicide and would not place the conditions of genocide and crimes against humanity elements place on their crimes, providing direct responsibility on states that have contributed to femicide by acts or state omission. Therefore, establishing femicide as a core crime into the Rome Statute will provide a fifth additional core crime. Considering the Netherlands previously proposed to add the crime of terrorism as the fifth core crime, it is plausible that a state party could request an amendment to the Rome Statute and request femicide to be incorporated as a novel core crime. The Netherlands proposed the inclusion of terrorism for several reasons, one being that the international community stands united against terrorism in all forms.89 Considering that the reason provided was to stress the universal scale, urgency, and the issue of impunity for acts from states and current international laws on crimes of terrorism, it is possible that femicide could follow suit. Establishing femicide as its own core crime would ensure that femicide does not have to fit within the crime of genocide or crimes against humanity requirements, providing a more generous and flexible approach to international law in practice. Provided with the contentions of Mexico and the reasons for state omission on femicide, this would adequately provide direct criminal responsibility for state actors that dismiss and normalize femicide in states such as Mexico. Presenting femicide as a core crime provides the space to advocate for a redefinition of gender within international criminal law. Considering genocide’s limited identity groups, and the Rome Statute’s declaration that gender “refers to the two sexes, male and female, within the context of society,”90 femicide as a core crime creates space to advocate for gender inclusive language and laws. This is because femicide as a core crime would cover gender inclusive language and remove itself from activating a female identity but would concern itself with protecting women killed for being gendered. Femicide as a core crime would also present the ability to create criminal responsibility outside of the crime against humanity chapeau elements of widespread or systematic, regarding its universal prevalence. Considering the urgency of protecting women from femicide, femicide as a core crime and its potential to combat the limitations of genocide and crimes against humanity in protecting women is crucial.

89 90

Jennifer Trahan, 'Potential Future Rome Statute Amendments' (2012) 18 New Eng J Int'l & Comp L 331. Rome Statute of ICC art 7(3).

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The possibility of the ICC considering femicide as a novel crime is perhaps naïve. The potential of new core crimes being freely debated is not realistic given the limited history of this, however international law in practice has proven herself responsive to world events.91

IX.

CONCLUSION

This article has only briefly explored the potential of femicides expansion into The Rome Statute and the future of femicide at the ICC. International law in practice has an expansive and dynamic nature that could swell to provide accountability for femicide, which is essential given the crucial urgency of preventing this endemic crime. Contentions of this complicated crime were raised in this article, voicing contentions on state response to femicide, using Mexico as an example to demonstrate the problematic nature of social norms, organized crime and family dynamics contributing to the crime of femicide, as well as the states responsibility by omission. Feminist scholars evaluate genocide and crimes against humanity protecting women from femicide as weak and problematic.92 The genocide expansion does not provide for women or gender as a group. The crimes against humanity chapeau elements requires femicide to be widespread or systematic and against a civilian population, that could make acts of femicide by state omissions from states such as Mexico difficult to prosecute.93 When femicide is required to be a widespread attack on a civilian population, here women, it removes the ability to prosecute state omission on family violence, as women fitting into civilian population is problematic.94 Establishing femicide as its own core crime at the Rome Statute provides an international legal response to the current femicide epidemic that demonstrates international law in practice, particularly the mechanisms at the ICC, as receptive and a living instrument, responsive to women’s experiences of violence with aims to provide women with peace.

Trahan (n 86) 348. Atencio (n 39). 93 Hatas (n 46). 94 ibid. 92

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The Gambia v. Myanmar: A Judgement for Judgement’s Sake, A Commentary on the Order of 23 January 2020 By Max Marolt*

INTRODUCTION

In 1968 Paulo Frere published a book titled Pedagogy of the Oppressed. The book marks the beginning of the school of Critical Pedagogy. Frere viewed ‘activism’ as “action for action’s sake.”1 Drawing from this scholarship this paper is going to take a critical view on the judgement of The Gambia v. Myanmar and query; does the judgement have any meaningful impact for the victims? or is it solely a judgement for judgement’s sake? On 11 November 2019 the Republic of The Gambia (hereinafter ‘The Gambia’) filed an Application instituting proceedings against the Republic of the Union of Myanmar (hereinafter ‘Myanmar’) concerning alleged violations of the Convention on Prevention and Punishment of the Crime of Genocide (hereinafter ‘the Genocide Convention’). 2 On 23 January 2020, the International Court of Justice (hereinafter ‘ICJ’ or ‘the Court’) issued its order in response to the application of The Gambia. 3 The ICJ found that it has prima facie jurisdiction over the dispute. Correspondingly, the Court granted The Gambia’s requests and unanimously issued four provisional measures. The measures require Myanmar to adhere to the requirements of Article II of the Genocide Convention, and, in particular that Myanmar’s military, in addition to any other armed groups directly or indirectly supported by it on the territory of the Rohingya state, immediately seize any actions incompatible with the acts enumerated in that provision. 4 Furthermore, the Court required Myanmar to ensure the preservation of any evidence related to the allegations of acts of genocide and to file a report on all measures taken to give effect to this Order.5

LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences, LL.B. Candidate, Psychology, Leiden University. 1 Paulo Frere, Pedagogy of the Oppressed (Print Book, Penguin Books 1972). 2 UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277, available at: https://www.refworld.org/docid/3ae6b3ac0.html [accessed 28 February 2021]. 3 Application of the convention on the prevention and punishment of the crime of genocide (The Gambia v. Myanmar) Order 23 January 2020. https://www.icj-cij.org/public/files/case-related/178/178-20200123-ORD-0100-EN.pdf. 4 ibid. 5 ibid para 86.

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This landmark ruling sheds light on many issues. On the one hand, it gives rise to issues concerning the fairness of the proceedings and the administration of justice. As such, this article will focus on, firstly, the standard of proof for adopting provisional measures and, secondly, whether or not, and, if so, to what extent the Court’s provisional measures have already paved the way for the outcome of the case. On the other hand, the case leads us to ask the question concerning its purpose for the victims, i.e., what good does it do for the victims? The importance of these issues lies in assurances of the Court’s ability to administer justice based on law, the likelihood of compliance with the final judgement and, above all, helping the victims of these horrific crimes. In order to achieve these objectives, this article will begin by analysing the provisional measures issued by the Court. Next, special emphasis will be put on the level of standard of proof used by the Court for granting the adoption of the measures. Furthermore, the article will discuss the extent to which these measures already predetermine the outcome of the trial. The last part of the article will focus on the likelihood of a positive impact, if any, the proceedings will have on the victims.

II.

PROVISIONAL MEASURES

In order to preserve rights under the Genocide Convention, The Gambia submitted an Application to the Court. The Application contained a Request for the indication of provisional measures in accordance with Article 41 of the Statute and Articles 73, 74 and 75 of the Rules of the Court, pending the Court’s final decision in the case. Among these provisions, Article 41 requires further elucidation. Article 41 of the Court’s Statute states: 1. ‘The Court shall have the power to indicate, if it considers that the circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of the parties. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and the Security Council.’ 6

Statute of the International Court of Justice, art 41.

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The ICJ has determined in LaGrand7 that provisional measures granted by the Court are binding. The combination of Article 41 of the Statute and the decision made by the Court in LaGrand provides us with two discussion points.8 Firstly, Article 41 imposes a direct obligation on the state to follow any Court orders issued thereunder. 9 Secondly, given the fact that the obligation to comply formally arises under treaty law, some have described Article 41 as a “sparse, axiomatic statement”. 10 Thus, its scope and content must be assessed by the Court on a case-by-case basis. Heretofore, the Court required the demonstration of (1) the prima facie jurisdiction of the Court over its claims and (2) the danger of irreparable harm to the rights claimed, linked to an urgency of the claimed protection.11 Concerning the application of the latter requirement to the case at hand, The Gambia contends that there is a risk of irreparable prejudice to the rights of the Rohingya population and to its own rights under the Genocide Convention, as well as urgency. 12 The condition of urgency is met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the Court makes a final decision on the case.13 Myanmar, on the other side, denies any existence of an immediate risk of irreparable prejudice. 14 By contrast, Myanmar asserts that it is currently engaged in repatriation initiatives for the return of the Rohingya and drafting policies aimed at protecting the people in Rakhine State while holding accountable those responsible for past violence. The Court recalled that the Genocide Convention ‘was manifestly adopted for a purely humanitarian and civilizing purpose.’ This was due to the fact that “its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality.” 15 Hence, the

LaGrand (Merits) [2001] ICJ Rep 466, 502–03. Cameron A. Miles, ‘Provisional Measures and the Margin of Appreciation before the International Court of Justice’, Journal of International Dispute Settlement, 2017, 8, 1–21. 9 ibid. 10 Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (OUP 2005) 62. 11 The space available in the present forum allows for only a brief rendition of these, but good general treatments of the additional preconditions can be found in: Brown (n 4) 135–46; Shabtai Rosenne, The Law and Practice of the International Court 1920–2005 (4th edn, Martinus Nijhoff 2006) 1399–413, Max Planck Encyclopedia of Public International Law (online edn, OUP 2006) s C; Karin Oellers-Frahm, ‘Article 41’, in A Zimmermann and others (eds), The Statute of the International Court of Justice: A Commentary (2nd edn, OUP 2012) 1026, 1038– 50; Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (OUP 2013) 929–46 (vol 1), 1771–99 (vol 2); Robert Kolb, The International Court of Justice (Hart Publishing 2013) 621–38. 12 Order (n 2) para 67. 13 ibid., para 65. 14 ibid., para 68. 15 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, 23. 8

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Court considers that the rights questioned in these proceedings, in particular the right of the Rohingya group in Myanmar to be protected from killings and other acts threatening their existence as a group, are of such a nature that prejudice to them is capable of causing irreparable harm.16 Additionally, the Court further takes note of the reports drawn during the Fact-Finding Missions of 2016 and 2019 which tend to be in support of the arguments put forth by The Gambia. In light of the considerations set out above, the Court finds that there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia. 17 In regard to the application of the former requirement, namely, the demonstration of prima facie jurisdiction, the Court, firstly, recognized that The Gambia and Myanmar are parties to the Convention.18 This, however, is not sufficient to establish of jurisdiction pursuant to Article IX Genocide Convention. The article reads as follows:

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. 19 In other words, Article IX of the Genocide Convention makes the Court’s jurisdiction conditional upon the existence of a dispute relating to the interpretation, application or the fulfilment of the Convention. 20 The Gambia has invoked as a basis of the Court’s jurisdiction the compromissory clause of the Genocide convention. Therefore, the Court must ascertain whether the acts complained of by the Applicant are capable of falling within the provisions of that instrument and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain.21 It is because of the special requirements necessary to establish jurisdiction, prima facie, - enshrined in Article IX - the provision requires further discussion. In contrast to The Gambia, Myanmar claims that the Court does not have jurisdiction under Article IX of the Genocide Convention. Specifically, Myanmar bases their claim on,

Order (n 2) para 70. ibid., para 75. 18 ibid., para 19. 19 Article IX Convention on Prevention and Punishment of Genocide. 20 Order (n 2) para 20. 21 ibid., para 20. 17

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firstly, the argument that there is no dispute between the Parties because The Gambia is acting as a “proxy” and “on behalf” of the Organization of Islamic Cooperation (hereinafter ‘OIC’). 22 To this claim, the Court gives a concise response in the negative. It does so, primarily, by relying on the fact that The Gambia instituted proceedings in its own name. Additionally, it restates that the existence of a dispute is a matter of objective determination by the Court; it is a matter of substance, and not a question of form or procedure. 23 Secondly, Myanmar denies the existence of such dispute at the time of the filing of the Application. Myanmar claims that the statements issued by The Gambia regarding the situation of the Rohingya could not give rise to a dispute between the Parties as they did not amount to allegations of violations of the Genocide Convention. Recalling Article IX, Myanmar concludes that, the Court’s lack of jurisdiction in the absence of a dispute is manifest. 24 Intending to oppose this claim, the Court relies on the parties’ statements in the seventy-fourth session of the General Assembly to establish an existence of a dispute. On that day, The Gambia and Myanmar presented opposing views on the situation in Rakhine state. 25 In the Court’s opinion, these statements made by the Parties before the United Nations General Assembly suggest the existence of a divergence of views concerning the events, which allegedly took place in Rakhine State in relation to the Rohingya.26 The Court considered this divergence of views as sufficient to demonstrate the existence of a dispute. In sum, the Court established the presence of urgency, the demonstration of danger of irreparable harm to the rights claimed and established prima facie jurisdiction over the matter. Nonetheless, the establishment of prima facie jurisdiction, by itself, does not amount to an automatic right for the court to adopt provisional measures. Thus, further discussion is needed regarding the standards through which the Court granted provisional measures.

ibid., para 23. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 (I), p. 270, paras. 35-36). 24 Order (n 2) para 24. 25 ibid., para 27. 26 The Court recalled on previous precedent for establishing a dispute based on the given facts: “a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis . . . the position or the attitude of a party can be established by inference, whatever the professed view of that party” (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315, para 89). 23

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III.

STANDARD OF PLAUSIBILITY

Recognition of orders is an inherent flaw of the ICJ’s jurisprudence. 1 One of the reasons behind this inadequacy lies in the Court’s inconsistency in issuing provisional measures. 2 One of the many controversies arising from the granting of provisional measures can be traced back to the standard of proof the Court uses for their determination. International law recognizes that the standard of proof required for granting provisional measures should meet a lower threshold than that of, for example, ‘beyond reasonable doubt.’3 The reason lies in the need for differentiation between judgement of admissibility and judgement of merits. With this, the Court avoids predetermining the judgement prior to the merits stage. To further elucidate, the Court approached the issue in its own jurisprudence by distinguishing the ‘standard of plausibility’ from the ‘beyond reasonable doubt standard’. The authority for the view that the standard of proof is “plausibility” appears explicitly in the Court’s case law only with the Obligation to Prosecute or to Extradite Order4 in the Belgium v Senegal judgement of 2009. This condition of plausibility has been restated and applied in each order on provisional measures through an evolving jurisprudence. 5 Unfortunately, the question remains: what type and quality of evidence must be presented to the Court to show that this plausibility is met? Plausibility may range from a minimum standard, i.e., fumus non boni juris, to medium standards, to some high standards, i.e., fumus boni juris.6 In effect, the Court has not yet been

Provisional Measures and the Margin of Appreciation before the International Court of Justice, Cameron A. Miles, 2. 2 Indeed, its first order of provisional measures in Anglo-Iranian Oil was ignored by Iran and for a period throughout the 1970s and 1980s, non-compliance was rife. In the late 1990s and early 2000s, the recalcitrance of the United States in the Breard and LaGrand cases did further damage to the Court’s reputation. Although the compliance rate stabilized after the clear ruling by the Court in LaGrand that provisional measures were binding, the recent repeated breaches of the Court’s interlocutory orders by Nicaragua in the joined cases of San Juan River and Border Area have again identified the Court’s tenuous position. (see: Provisional Measures and the Margin of Appreciation before the International Court of Justice, Cameron A. Miles, 2). 3 Zimmermann (n 10). 4 ICJ, Reports, 2009, pp. 151–152, paras 57. 5 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua, 2011); Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand, 2011); Seizure and Detention of Certain Documents and Data (Timor Leste v. Australia); Immunities and Criminal Proceedings (Equatorial Guinea v. France, 2016); Application of the ICSFT and of the CERD (the famous Ukraine v. Russia case, 2017); Jadhav (Pakistan v. India, 2017); Application of the CERD (in the Qatar v. UAE case, 2018); Alleged Violations of the 1955 Treaty of Amity (in the Iran v. U.S. case, 2018); Application of the CERD (new measures, Qatar v. UAE, 2019). 6 6 Karin Oellers-Frahm and Andreas Zimmermann, “Article 41”, in: Andreas Zimmermann and Christian Tams (eds.), The Statute of the International Court of Justice, A Commentary (3rd edition, 2019), 1158.

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clear as to what plausibility entails: it has swung from the notion of “possibility” 7 to the mere and blank assertion of plausibility 8 whatever that may exactly mean. 9 It appears that there is great uncertainty in the law with regard to this standard. Arguably, the Court is bound to receive criticism for not taking this opportune situation to provide some clarification into what exactly the standard of plausibility entails and when it is met.10 Genocidal intent (dolus specialis) serves as the decisive element in distinguishing genocide from other serious international crimes. On the one hand, The Gambia claims that genocidal intent can be deduced by a pattern of conduct directed against the Rohingya in Myanmar and refers, in this regard, to the inference of such intent drawn by the Fact-Finding Mission in its reports.11 In The Gambia’s view, the Court is at this stage only required to accept that from the facts stated in the Fact-Finding Mission report, one of the many plausible inferences to be drawn is that of the existence of genocidal intent. The Gambia is thus, as could be expected, arguing for the low threshold of the standard of plausibility. On the other hand, Myanmar, however, never truly addresses whether or not the rights asserted by The Gambia are plausible.12 Nevertheless, Myanmar does bring forth the argument that a “plausible claim” under the Genocide Convention must include evidence of the required specific genocidal intent.13 Their claim - “it is this subjective intent that is the critical element distinguishing genocide from other violations of international law such as crimes against humanity and war crimes”14 – is very much aligned with the view of Vice-President Judge Xue. In her separate opinion on the judgement, she states: “... I have serious reservations with regard to the plausibility of the present case under the Genocide Convention. For the genocide offence to be distinguished from other most serious international crimes, e.g. crimes against humanity, war crimes, genocidal intent constitutes a decisive element. Even accepting that, for the purpose of indication of provisional measures, a determination of the existence of such intent is not necessarily required, the alleged acts and the relevant circumstances should, prima facie, demonstrate that

Obligation to Prosecute or Extradite case, ICJ, Reports, 2009, p. 152, para 60. Certain Activities, ICJ, Reports, 2011-I, p. 19, para 58. 9 Kolb (n 10) p.380. 10 Nevertheless, the Court might benefit from abstaining to elucidate the notion, for it is free to exercise some degree of discretionary power. 11 Order (n 2) para 46. 12 ibid., para 27. 13 ibid., para 47. 14 ibid. 8

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the nature and extent of the alleged acts have reached the level where a pattern of conduct might be considered as genocidal conduct. In other words, there should be a minimum standard to be applied at this early stage. In order to find the jurisdiction of the Court under Article IX of the Genocide Convention to indicate provisional measures, the Court has to determine, prima facie, that the subject-matter of the dispute between the Parties could possibly concern genocide.”15 In contradiction to the above, the Court decided not to address the plausibility of existence of genocidal intent.16 By doing so, the Court showed some inconsistency to its previous case law. It did not follow the previously set precedent of the process of analysis in Ukraine v Russia.17 In that case, the Court required proper proof of the plausibility of all subjective elements of the offences.18 Although the Court refers to this judgement in its Order, it does not mention it in light of the plausibility of subjective element. As such, the Court seems to neither confirm nor abandon its Ukraine v Russia precedent, bringing further confusion to the standard of plausibility in cases concerning allegations of genocide.

IV.

WHAT CAN BE EXPECTED: JUDGEMENT AND VICTIMS

The main question of this article remains: what impact, if any, will the judgement have for the victims, the Rohingya people? Firstly, the justification of the Court's cautious approach to inferring genocidal intent and restrain from determining a violation, if any, of the Genocide Convention lies in the Court's obligation not to let the discussion of the merits take place at the preliminary stages of the trial. The latter ensures that the discussions that have taken place do not reach conclusions that would pre-determine the trial's outcome. 19 An example is a genocidal intent, i.e., if the Court recognized the existence of dolus specialis for the concerned crime, it

Vice president Xue seperate opinion, para 2. The Court recognizes this by stating, among other things, that “for the purposes of the present proceedings, the Court is not required to ascertain whether any violations of Myanmar’s obligations under the Genocide Convention have occurred. See order para 30. 17 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, pp. 131-132, para 75, importantly, this case never explicitly mentioned »genocidal intent« however it did discuss »dolus specialis« in general. 18 In Ukraine v. Russia the Court insisted on the fact that the applicant must establish a prima facie merits case in order to get provisional measures; it then clarified that this means that the dolus specialis of any alleged breach must be proved to that standard; and it finally pointed out that Ukraine failed to meet that standard. 19 Zimmermann (n 31). 16

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would be difficult to continue proceedings, for there would not be much left to discuss. However, as elucidated above, plausibility does not mean certainty. Whereas establishing the existence of dolus specials would indeed bring the judgement too close to the merits, establishing its plausibility would not. The Court nevertheless refrained from any discussion and granted the order of provisional measures based on the facts and standards elucidated in previous parts of this note. The measures that the Court granted are the following:

1. The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group; 20

2. The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide; 21

3. The Republic of the Union of Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide;22

Order (n 2) para 86. ibid. 22 ibid. 21

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4. The Republic of the Union of Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court.23 The measures enumerated above, despite their denomination as ‘provisional’ appear to achieve at least three objectives. First, the Court reaffirmed the continued existence of the obligations incumbent upon Myanmar under the Genocide Convention. Second, it issued an obligation to ensure that military forces do not commit genocidal acts at present and in the future. Third, through an obligation imposed on Myanmar to submit reports, the Court, in a way, indirectly, requested ‘proof’ of non-repetition. Now, let us bring forth the possibility of the Court finding Myanmar to have violated the Genocide Convention in the judgement on merits.24 In this potential scenario, the final judgement of the Court can entail the following: (1) recognition of continued existence of the obligation25 to prevent and punish genocide, (2) obligation to cease the activity and providing guarantees of non-repetition,26 and, (3) grant reparations27 to The Gambia in forms of either restitution, 28 compensation,29 or just satisfaction.30 Concerning option three, it is safe to assume that restitution for crimes of this gravity is impossible. Thus, the question arises – so what? Apart from affording satisfaction, if it has arguably not yet done so, the Court will, in addition to everything it already achieved in the provisional measures, grant compensation for Myanmar's damages to The Gambia. Importantly, we must ask ourselves what exactly are the damages that The Gambia suffered? Even if the Court concludes that Myanmar committed genocide, the victim is not The Gambia or its people. Moreover, the ILC articles on Diplomatic Protection provide for the basic principle that an injury to an alien state is an injury to his/her state of nationality,31 as well as for the right of the winning claimant state to keep the compensation for itself. 32 All of the above

ibid. the probability of which will not be discussed in this note. 25 ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) UN Doc A/56/10 art 20. 26 ibid art 30. 27 ibid art 31. 28 ibid art 35. 29 ibid art 36. 30 ibid art 37. 31 ILC, 'Draft articles on Diplomatic Protection' (2006) UN Doc A/61/10. 32 ibid. 24

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forces us to examine the last question of this article: what will the impact of the judgement be on the victims of the alleged genocide? As elucidated above, the Court has already ordered Myanmar to ensure that its military or any other forces directly supported by it do not commit any acts incompatible with Article 2 of the Genocide Convention or even to conspire or attempt to commit genocide. The Court also requested for the reporting of compliance with these orders from the Myanmar authorities. Unfortunately, there is not much more than the actual victims of the genocide – The Rohingya People – can expect. The potentially awarded compensations are directed towards the “damaged party”, which is, in this case, The Gambia. However, despite satisfaction technically being awarded to The Gambia, if the ICJ recognizes the horrific atrocities committed over the Rohingya population as genocide, it will hopefully bring some satisfaction to the Rohingya. Apart from potential recognition of the horrors committed upon the Rohingya population the victims of genocide will in all likelihood get nothing out of this judgement – beyond a statement of formal recognition of their plight. So, is this only a judgement for judgement’s sake?

CONCLUSION

The question posed in the title of this article seems to, unfortunately, have an answer in the affirmative. It appears that the real-world consequences contingent on the outcome of this trial have been predetermined if not already occurred. The reason for this conclusion lies in the provisional measures issued by the Court in its Order of 23 January 2020. In this Order, the Court justified provisional measures by establishing that it has prima facie jurisdiction. It found that there is a danger of irreparable harm and the requisite urgency to act on the matter. Having discussed this, the Court missed out on yet another opportunity to elucidate further the standards required for such decisions, especially the standard of plausibility. Some judges, in their Separate opinions, pointed this out together with other related concerns. The Order listed four provisional measures which were aimed at ensuring Myanmar’s compliance with the Genocide Convention. Focusing on the victims, the Rohingya population, and the real-world consequences the judgement will leave for them, we, unfortunately, cannot expect much more from the final judgement than that which has already been established with the provisional measures.

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Settlements in the West Bank– Israel’s Transfer of Population under Art 8(2)(b) of the Rome Statute By Myriam Hunfeld*

INTRODUCTION

Since the end of the Second World War, few crises have caused so much division as the Situation in Palestine and the occupation of Palestinian territories. Previously, Palestine had been administered by the United Kingdom under the mandate system established by the League of Nations.1 After the Second World War, the UN General Assembly voted in favor of the Partition Plan proposed by the UN Special Committee in Palestine. 2 This plan proposed a partition of the territory which would result in the founding of two independent States. 3 However, the 1949 Armistice Agreements between Israel and Egypt, Lebanon, Transjordan and Syria that followed the 1948 war meant territorial changes in Palestine. 4 These changes led to Israel gaining substantial additional portions in the West Bank, whereas Egypt held the Gaza Strip, and the remaining parts of the West Bank were united with Transjordan. 5 However, the division of territory changed once again after the Six-Day war between Israel and Egypt, which left 1,1 million Palestinians under Israeli occupation. Since then, the political tension in the territory continued to cause turmoil, and incidents like Entebbe 6 in 1976 further reduced the chance for a de-escalation of the Situation. Until today, especially in neighborhoods surrounding the Gaza Strip, reoccurring terrorist attacks by the Hamas or airstrikes conducted by the Israeli military continue to disrupt civilian lives. In the past year, the international community has put a particular focus on the legal situation in Palestine. The situation has remained belligerent, and reports of human rights violations and

LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences. 'The Legal Status of The West Bank and Gaza - CEIRPP, DPR Study - DPR Publication - Question of Palestine' (Question of Palestine, 2021) <https://www.un.org/unispal/document/auto-insert-203742/> accessed 1 May 2021. 2 UNGA Res 181 (II) (29 November 1947) UN Doc A/RES/181(II). 3 ibid. 4 DPR Study (n 1). 5 ibid. 6 The hijacking of an Israeli passenger flight by a group of Palestinians that was freed in Entebbe, Uganda is generally referred to as the ‘Entebbe incident’, see for further information here https://www.britannica.com/event/Entebbe-raid. 1

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the commission of war crimes continue to emerge. 7 Palestine acceded to the Rome Statute on January 1, 2015, and thereby accepted the Court’s jurisdiction over alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014’. 8 In May 2018, pursuant to arts. 13(a) and 14 of the Rome Statute, Palestine referred the Situation in the State of Palestine to the Prosecutor, who filed the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’ on 22 January 2020. 9 Israel, on the other side, is not a party to the ICC and has not submitted an official response to the Court. Nevertheless, it has issued an independent statement in which it declines the Court’s territorial jurisdiction over any potential crimes committed in the Occupied Palestinian Territory (OPT).10 The Prosecutor requested a preliminary ruling on the Court’s territorial jurisdiction over potential international crimes in the Occupied Palestinian Territory (OPT). 11 On 5 February 2021, the Pre-Trial Chamber (PTC) decided by the majority to grant the Prosecutor’s request for a preliminary ruling12 and to confirm the Court’s territorial jurisdiction. 13 By establishing the Court’s territorial jurisdiction, Pre-Trial Chamber I cleared the way for the initiation of an investigation by the Prosecutor. This development now shifts the focus from the question of territorial jurisdiction to the issue of subject-matter jurisdiction; namely, over which acts can the Court exercise its jurisdiction as international crimes under the Rome Statute? Throughout the years, commentators have identified many international crimes potentially emerging from the Palestine Situation, such as war crimes or crimes against humanity.14 This paper will focus on the war crime of transfer of population during an armed conflict as established under Art. 8(2)(b)(viii) of the Rome Statute. More precisely, it is of interest to examine if under the given circumstances there is reason to believe that the elements of Art. 8(2)(b)(viii) are fulfilled by the actions of Israeli officials and hence the war crime of transfer

'World Report 2015: Rights Trends in World Report 2015: Israel/Palestine' (Human Rights Watch, 2021) <https://www.hrw.org/world-report/2015/country-chapters/israel/palestine> accessed 1 May 2021. 8 Presidency, Decision assigning the situation in the State of Palestine to Pre-Trial Chamber I (‘Presidency Decision’), Annex I, 24 May 2018, ICC-01/18-1-AnxI, <https://www.icccpi.int/CourtRecords/CR2021_01165.PDF> p. 2. 9 Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, 2021) <https://www.icc-cpi.int/CourtRecords/CR2020_00161.PDF> accessed 1 May 2021. 10 (Mfa.gov.il, 2021) <https://mfa.gov.il/MFA/PressRoom/2019/Documents/ICCs%20lack%20of%20jurisdiction%20over%20socalled%20“situation%20in%20Palestine”%20-%20AG.pdf> accessed 1 May 2021. 11 Request (n 9). 12 ibid. 13 ibid. 14 See, i.e., Katherine Gallagher (Icc-cpi.int, 2021) <https://www.icccpi.int/CourtRecords/CR2020_01171.PDF> accessed 13 May 2021.

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of population occurred in the OTP. This is of particular interest because the transfer of population is still ongoing and may have a severe impact on the crucial question of sovereignty over the occupied territories, which lies at the heart of both the ongoing armed conflict between Israel and Palestine and the question already put to the Court. This article will be structured into three Chapters in order to give insight into (I) the Palestinian issue in context – a short history with an emphasis on the transfer of population, (II) the war crime of transfer of population during an armed conflict under the Rome Statute, its origin and its text, and lastly (III) why there is reason to believe that Israeli officials may be responsible for this crime. The article will close with certain concluding observations regarding potential developments in the future.

II.

THE PALESTINIAN ISSUE IN CONTEXT – A SHORT HISTORY WITH EMPHASIS ON THE TRANSFER OF POPULATION

To fully appreciate the complication and depth of both sides' arguments on the Palestinian issue before the ICC, it is necessary to examine the conflict's roots. A full analysis, however, would go beyond the scope of this paper. Therefore, this part will discuss only briefly the transfer of population from a historical perspective regarding the Occupied Palestinian Territories, in order to familiarize readers with the key dimensions of the issue at hand.

a. A brief overview of the historical context

The area which constitutes the Occupied Palestinian Territory is generally defined by the Pre-1967 lines.15 These comprise the West Bank, Gaza and East Jerusalem.16 This perception of the territory is based on the 1949 Amnestic lines, also known as Green Line, as developed by the UN Special Committee in Palestine.17 Hence, as concluded by the Office of the Prosecution and Pre-Trial Chamber I, the Occupied Palestinian Territory for the purpose for the ICC and this Article, constitutes the West Bank, including East-Jerusalem, and Gaza. 18

ibid. ibid. 17 'The Legal Status of The West Bank and Gaza - CEIRPP, DPR Study - DPR Publication - Question of Palestine' (Question of Palestine, 2021) <https://www.un.org/unispal/document/auto-insert-203742/> accessed 1 May 2021. 18 ibid. 16

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As the following brief overview of the region's historical developments will reveal, the borders in the territory in question have been fluid and often subject to change depending on the division of power and local conflicts throughout history. Before the establishment of the British mandate, the UK issued the Balfour Declaration providing for the establishment of a “national home for the Jewish people”. 19 Some say this declaration can be seen as the starting point of the Israel-Palestine conflict20, since it affirmed the Zionist quest for a Jewish State. However, at the same time it stated that “nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine”.21 Moreover, a conflicting promise had been made by the UK in World War I to ensure the military support of the Arabs.22 This promise ensured the establishment of one or more independent Arab states in the areas that today comprise, among others, Lebanon, Palestine and Transjordan. 23 The arising dilemma was addressed in the British White Paper from 1939 which stated that “[…]His Majesty's Government believe that the framers of the Mandate in which the Balfour Declaration was embodied could not have intended that Palestine should be converted into a Jewish State against the will of the Arab population of the country.”24 The results of these conflicting promises in correlation with the following establishment of the British Mandate will be discussed below. Since 1919, the region of Palestine was placed under British Mandate in the context of the Mandate system established by the League of Nations.25 The mandate ended in 1947 when the UK surrendered its authority over the territory to the UN.26 Following this, the UNGA agreed to the Partition Plan as proposed by the UN Special Committee in Palestine, which provided for “Independent Arab and Jewish states and the Special Integrational Regime for the City of Jerusalem”. 27 Even though the Arabs rejected the plan based on the Palestinians’ right

'The Avalon Project: Balfour Declaration November 2, 1917' (Avalon.law.yale.edu, 2021) <https://avalon.law.yale.edu/20th_century/balfour.asp> accessed 1 May 2021. 20 ibid. 21 ibid. 22 'The Hussein-McMahon Correspondence (July 1915-August 1916)' (Jewishvirtuallibrary.org, 2021) <https://www.jewishvirtuallibrary.org/the-hussein-mcmahon-correspondence-july-1915-august-1916> accessed 1 May 2021. 23 'McMahon's Correspondence (1915)' (Bu.edu, 2021) <http://www.bu.edu/mzank/Jerusalem/cp/1915.htm> accessed 1 May 2021. 24 ibid. 25 Great Britain and Palestine 1915-1945, Royal Institute of International Affairs, Information Paper No. 20 (Oxford University Press, 1946), p, 51. 26 ibid. 27 UNGA Res. 181 (II) (29 November 1947) UN Doc A/RES/181(II).

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to self-determination, it went into force on 1 August 1948.28 Since the neighboring Arab States were not satisfied with the Partition Plan, they submitted a case on behalf of the Palestinians to the ICJ.29 However, Israel refused to submit to the Court’s jurisdiction. After the war in 1948, the Armistice Agreement from 1949 between Israel and Egypt, Lebanon, Transjordan and Syria led to Israel acquiring additional territory in the West Bank than what was allocated to them in the Partition Plan.30 The remaining parts of the West Bank were united with Transjordan whereas Gaza was controlled by Egypt. 31 Nonetheless, the overall objective of both the initial Mandate system of the League of Nations and the UN had always been self-government in the area.32 This was supported by the United Arab Republic, which stated that “[t]he entry of the Arab armies into Palestine for the purpose of her protection was as a temporary measure in no way intended to lead to the occupation or partition of Palestine".33 Yet, in 1950 the Kingdom of Jordan and the areas of the West Bank that were controlled by it were voluntarily united with a resolution by the newly elected Parliament which was a result of equal representation of both the East and the West Bank. 34 Again, King Hussein of Jordan emphasized before the UNGA in 1979 that this was without prejudice to the Palestinians’ right to self-determination, and that Israel had to withdraw from the Occupied Territory. 35 Still, during the 1967 war, Israel did not withdraw but occupied the remaining Palestinian Territory, which led to Israeli control over more than 1,1 million Palestinians. 36 Since 1967, the status quo seems to have frozen. This is the result of the beginning of Israeli occupation of the territories comprising Gaza, the West Bank and East Jerusalem after the end of the six- day war. However, this long-lasting occupation in no way deprives the Palestinian people of their right to self-determination and sovereignty over the Occupied Palestinian Territories.

DPR Study (n 16). ibid., and Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories (United Nations document A/8089), p. 91. 30 DPR Study (n 16). 31 ibid. 32 ibid. 33 The Government of the United Arab Republic contained in the report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories United Nations Document A/34/PV.7, pp. 18-20. 34 DPR Study (n 16). 35 ibid. 36 ibid. 29

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This has been confirmed time and again by some of the principal organs of the UN, namely the General Assembly (GA), the Security Council (SC) and the International Court of Justice (ICJ). Since as early as 1947, UN organs have been involved in solving the Palestinian Issue.37 However, whereas Israel acquired membership to the UN in 1948, Palestine only became a “Non-Member Observer State” in late 2012.38 It is the only member with that status, which does not include the right to take part in any voting mechanisms of the various UN organs.39 Nevertheless, the UN General Assembly has recognized the Palestinian people's sovereignty and inalienable rights over the occupied territories in GA Res 2535 40 as well as their right to self-determination in Res. 2672. 41 After Israel occupied the Palestinian territory, the UN General Assembly passed Resolution 2253 (ES-V), in which it declared these measures “invalid” and called upon Israel to rescind them and desist from taking any action which would alter the status of Jerusalem. 42 For its part, the Security Council in Resolution 242 of November 1969, as an answer to the occupation of the disputed territory, called for work on peace in the region and an immediate withdrawal of forces, 43 whereas Israel made a commitment to adhere to Art. 2(4) of the UN Charter. That is because under the UNGA Res. 2625, acquisition of territory by war is inadmissible, a doctrine confirmed by the SC in, among others, SC Resolution 298 from 1971.44 This Resolution also “confirmed” in the clearest possible terms that all legislative and administrative actions taken by Israel to change the status of the City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section, are totally invalid and cannot change that status”. 45 The International Court of Justice for its part relied in the Wall Advisory Opinion on that same resolution when it concluded that the construction of the wall, the route of which encompassed around 80 percent of the settlers living in the OPT, severely impeded, among

'Establishment of Working Groups on Jewish DP's, Legal Issues, Unitary State - Ad Hoc Cttee Subcommittee #2 Meeting - Press Release - Question of Palestine' (Question of Palestine, 2021) <https://www.un.org/unispal/document/auto-insert-214165/> accessed 1 May 2021. 38 UNGA Res 67/19 (4 December 2012) UN Doc A/RES/67/19. 39 ibid. 40 UNGA Res 2535 (XXIV) (10 December 1969). 41 UNGA Res 2672 (XXV) (8 December 1970). 42 UNGA Res 2253 (ES-V) (4 July 1967) UN Doc A/RES/2253, paras 1-2. 43 UNSC Res 242 (22 November 1967) UN Doc S/RES/242. 44 UNSC Res 298 (25 September 1971) UN Doc S/RES/298. 45 ibid., para 3.

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others, the exercise of the right to self-determination by the Palestinian People. 46 When delivering its opinion, the Court considered both statements made by the SC and the Fourth Geneva Convention, claiming that Israeli settlements constituted a breach of international law.47 Lastly, the Court observed that the construction of the wall and its associated régime created a “fait accompli” in the area that might become permanent, and hence could lead to a de facto annexation.48 There was a movement towards peace with the end of the Cold war and the conclusion of the Oslo Accords from 1993 and 1995. Oslo I contained a declaration of principles and a timetable for the peace process in the Middle East.49 Moreover, it provided for an interim Palestinian Government in Gaza and Jericho. 50 Oslo II expanded on Oslo I by including provisions regarding the full withdrawal of Israeli troops from the territory and elections for the Palestinian Legislative Council. 51 b. Israel’s settlement policy in time

As mentioned earlier, one of the alleged crimes emerging from the Israeli policy in the OPT is the transfer of population by Israel into the Occupied Territories. Settlements refer to the transfer of an occupying state's civilian population into a territory that is being occupied. 52 Notably, the term "settlements" is not a legal term per se and is neither defined nor codified as a term in international treaty law. In practice, they include the physical and non-physical structures, processes, and systems that "enable and support the establishment, expansion and maintenance" of settler communities.53 They constitute a form of population transfer, a legal term that refers to "a practice or policy that has the purpose or effect of moving persons into or

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall Advisory Opinion) (2004) (Advisory Opinion) ICJ Rep 2004. 47 ibid. 48 ibid. 49 (Peacemaker.un.org, 2021) <https://peacemaker.un.org/sites/peacemaker.un.org/files/IL%20PS_930913_DeclarationPrinciplesnterimSelfGovernment%28Oslo%20Accords%29.pdf> accessed 1 May 2021. 50 ibid. 51 ibid. 52 ibid art. 49(6). 53 U.N. Human Rights Council, Rep. of the Independent International Fact-Finding Mission to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the Palestinian People Throughout the Occupied Palestinian Territory, Including East-Jerusalem, T 4, U.N. Doc. A/HRC/22/63 (Feb. 7, 2013).

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out of an area, whether within or across an international border, or into or out of an occupied territory”.54 Israel’s settlement policies have varied under different governments ever since 1967. 55 However, the transfer of Israeli settlers into the occupied territories has been consistent over the decades and has led to a displacement of Palestinians while encouraging settlers with low rents, favorable tax rates, government subsidies, and access to cheap Palestinian labor. 56 For instance, President Sharon stated in the Israeli daily that "'[i]n the unilateral plan, there is no Palestinian state[...]” and that this situation could continue for many years. 57 In fact, one United Nations Report determined that "[e]very Israeli government since 1967 has left office with more settlers living in the occupied territory than when it assumed office". 58 Immediately after the end of the six-day war the Israeli government began with occupying Palestinian territory formerly under Egyptian and Jordanian control and began in late 1967 to transfer its population into East Jerusalem.59 Ever since, settlers in the West Bank live under Israeli law, drive on roads for the exclusive use of Israelis, and benefit from Israeligoverned "state land" in the form of national parks and archeological sites.60 Roughly 60% of the West Bank are home to approximately 400,000 Israeli Settlers in 225 settlements. 61 In comparison, only 1% of that area is designated for the use of the roughly 150,000 to 300,000

Awn Shawkat Al-Khasawneh (Special Rapporteur on the Human Rights Dimensions of Population Transfer), Freedom of Movement: Human Rights and Population Transfer: Final Rep. of the Special Rapporteur, Mr. AlKhasawneh, para. 1, U.N. Doc. E/CN.4/Sub.2/1997/23 (June 27, 1997) (including "the implantation of settlers and settlements" in its study on the human rights dimensions of population transfer). 55 U.N. Secretary-General 2017 Report, Israeli Settlements, para. 10. One U.N. Report lists September 1967 as the establishment of the first Israeli settlement in the newly occupied Palestinian territories. UNHRC, Report on Israeli Settlements, annex I, at 26 and Michael S. Lynk (Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Since 1967), Rep. of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, U.N. Doe. A/72/43106 (Oct. 23, 2017); Theodor Meron, The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six-Day War, 111 AM. J. INT'L L. 357, 357 (2017). 56 (Hrw.org, 2021) <https://www.hrw.org/sites/default/files/report_pdf/israel0116_web.pdf> accessed 1 May 2021. 57 CNN Research, 'Oslo Accords Fast Facts' (CNN, 2021) <https://edition.cnn.com/2013/09/03/world/meast/osloaccords-fast-facts/index.html> accessed 1 May 2021. 58 Lynk and Meron (n 57). 59 S.C. Res. 298, para 3 (Sept. 25, 1971) ("[A]l legislative and administrative actions taken by Israel to change the status of the City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section, are totally invalid and cannot change that status"). See also Lynk, Report of the Special Rapporteur, para. 45; ICJ Wall Advisory Opinion, para. 75. The U.N. further declared Israel's annexation of East Jerusalem "null and void." S.C. Res. 478, para. 3 (Aug. 20, 1980). 60 UNHRC, Report on Israeli Settlements, para 18 and Lynk (n 57) 147 and Meron (n 57) 359. 61 Lynk (61) para 47.

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Palestinians living in the Area. 62 This area of the West Bank is the only one that is virtually off-limits to Palestinians and continuous and connected, whereas other areas of the OTP are isolated, which makes it almost impossible for their inhabitants to travel from one area to the next.63 Israel claims that it has the right to administer and settle Jews in the OPT based on different arguments. First, the land based on the notion of historic rights to the territory as a homeland which was affirmed in the Balfour Declaration, internal and external security grounds and the deep symbolic value for Jews of the occupied area, especially the city of Jerusalem.64 The Balfour Declaration, as mentioned earlier, promised a Jewish State after the end of the First World War. 65 Internal and external security grounds relate to the continuous terrorist attacks conducted by the terrorist organization Hamas and the international armed conflict which is still ongoing in the OPT.66 More on this will be discussed in chapter III. Lastly, the City of Jerusalem holds significant historical and cultural value for both Israelis and Palestinians. For this reason, neither party is willing to give up their side of this historical truth, which, in their view, reserves a rightful claim towards the city. 67 Israel sees the legal status of the West Bank as ‘disputed’ rather than occupied even though the contrary was affirmed by the UN as has been explained above. 68 As a result of this policy, it was reported in 2016 that approximately 20 Israeliadministered industrial zones in the West Bank covering about 1,365 hectares were established, and Israeli settlers oversee the cultivation of 9,300 hectares of agricultural land. In comparison, the built-up area of residential settlements covers 6,000 hectares, even though their municipal borders encompass a much larger area.69

UNHRC (n 62) para 37. U.N. Office for the Coordination of Humanitarian Affairs (OCHA), Restricting Space: The Planning Regime Applied by Israel in Area C of the West Bank, 3 (Dec. 2009) [hereinafter OCHA, Restricting Space]. 64 (Hrw.org, 2021) <https://www.hrw.org/sites/default/files/report_pdf/israel0116_web.pdf> accessed 1 May 2021. 65 The Avalon Project (n 18). 66 'World Report 2015: Rights Trends in World Report 2015: Israel/Palestine' (Human Rights Watch, 2021) <https://www.hrw.org/world-report/2015/country-chapters/israel/palestine> accessed 1 May 2021. 67 Rathbun, Brian C., ‘Diplomacy's Value: Creating Security in 1920s Europe and the Contemporary Middle East’ (Cornell University Press 2014) 205. 68 ibid. 69 (Hrw.org, 2021) <https://www.hrw.org/sites/default/files/report_pdf/israel0116_web.pdf> accessed 1 May 2021. 63

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In sum, Israeli settlement policies appear to have led to continuous occupation of the unlawfully obtained territories and the displacement of Palestinian inhabitants. These practices are still ongoing, making the following analysis of Article 8(2)(b)(viii) Rome Statute necessary in order to assess if these settlement policies fulfill the necessary threshold to account for the War Crime of transfer of population.

III.

FORCIBLE TRANSFER: THE ORIGNIS AND CONTECT OF ARTICLE 8(2)(b)(viii) ROME STATUTE

The question before the Court remains whether the described practices may amount to the war crime of forcible transfer of population under Art. 8(2)(b)(viii) Rome Statute. In order to make this assessment, a thorough analysis of the origins of the law, its actus reus, mens rea and the Elements of Crimes entail will be conducted below. However, before we discuss the content, it is important to first address the roots of Article 8(2)(b)(viii) and the establishment of the war crime of forcible transfer in humanitarian law.

a. Origins.

The Hague Regulations do not adequately address the question of deportation; this was probably because the practice of deporting people was regarded at the beginning of this century as having fallen into abeyance. 70 The events of the last few years such as the deportation of Rohingya Muslims from Myanmar to Bangladesh have, however, made it necessary to make more detailed provisions on this point which may be regarded today as having been embodied in international law.71 The idea of criminalizing the transfer of a population into occupied territory can be traced back to the Nuremberg Trials. The International Military Tribunal found two of the accused guilty of attempting the “Germanization” of certain territories. 72 This war crime, as defined by the Tribunal, included the forced deportation of inhabitants who were

'Treaties, States Parties, And Commentaries - Geneva Convention (IV) On Civilians, 1949 - 49 - Commentary Of 1958' (Ihl-databases.icrc.org, 2021) <https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=523BA38706C71588C 12563CD0042C407> accessed 1 May 2021. 71 ibid. 72 MT, Trial of the Major War Criminals, Judgment, 1 October 1946, pp. 238, 261, 295 and 335 (http://www.legaltools.org/doc/f21343/).

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predominantly non-German and the introduction of German 'colonists'. 73 The “establishment of settlers in an occupied territory and changes to the demographic composition of an occupied territory” were viewed as “exceptionally serious” war crimes.74 After Nuremberg, the war crime of forcible transfer was first laid down in the 1949 Geneva Conventions. Article 49(1) provides that “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”75 Additionally, Article 49(6) GC IV stipulates that “[t]he Occupying Power shall not deport or transfer parts of its own population into the territory it occupies.” 76 The Pictet Commentary to Article 49 states that its first paragraph regarding forcible transfer is “by far the most important” one, for it “prohibits the forcible transfer or deportation from occupied territory of protected persons”. 77 It is based on the Tokyo Draft that prohibited the deportation of the inhabitants of an occupied territory as a result of the atrocities committed during the second World War. 78 The prohibition is absolute and allows no exceptions, apart from those stipulated in paragraph two.79 Consequently, "unlawful deportation or transfer" was introduced among the grave breaches, defined in Article 147 of the Convention as calling for the most severe penal sanctions. 80 Two core rationales can be identified in Article 49(6) GC IV. Firstly, occupation by its very concept was always meant to be a temporary situation and introducing parts of the occupying power’s own population might facilitate a potential process of illegal annexation. 81 Secondly, another rationale is the protection of civilians living in occupied territory by prohibiting the occupying power from altering the fundamental demographic composition of that territory.82

Report of the International Law Commission on the work of its forty-third session (29 April-19 July 1991), UN Doc. A746/10, Vol. II, 19 July 1991, 104. 74 ibid. 75 Geneva Convection (n 54) art 49(1). 76 ibid Art 49(6). 77 Commentary of 1958 (n 72). 78 (Un.org, 2021) <https://www.un.org/en/genocideprevention/documents/atrocitycrimes/Doc.3_1946%20Tokyo%20Charter.pdf> accessed 1 May 2021. 79 Commentary of 1958 (n 72). 80 ibid. 81 'Lexsitus' (Cilrap-lexsitus.org, 2021) <https://cilrap-lexsitus.org/clicc/8-2-b-viii/8-2-b-viii#d1aab72a> accessed 1 May 2021. 82 ibid.

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Finally, the prohibition of forcible transfer also forms part of customary humanitarian law.83 Rule 130 of the ICRC study of International Customary Law states that “[s]tates may not deport parts of their own civilian population into a territory they occupy.” 84 Article 20(c)(1) of the 1996 Draft Code defined “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies” as a war crime when committed “willfully in violation of international humanitarian law”. 85 The wording of Article 8(2)(b)(viii) Rome Statute is based on Article 85(4)(a) of Additional Protocol I to the Geneva Conventions. 86

b. Article 8(2)(b)(viii)

Article 8(2)(b)(viii) of the Rome Statute states that “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory”

constitutes a war crime for the purposes of the ICC, when committed in the context of an international armed conflict. 87 For the purpose of this article, only the former part of Art. 8(2)(b)(viii) is of interest, which is why the analysis conducted below will disregard the latter. The Elements of Crime require the perpetrator to (a) transfer, directly or indirectly, parts of its own population into the territory it occupies; or (b) deport or transfer all or parts of the population of the occupied territory within or outside this territory. 88 Article 30 of the Rome Statute requires a perpetrator to commit the crimes with intent and knowledge. 89 With regard to the conduct, this entails that a person means to engage in the conduct. 90 In relation to a consequence, that same person means to cause that consequence or is aware that it will occur

Rule 130 of the ICRC study on customary international law. ibid. 85 Hannes Jöbstl, “An Unlikely Day in Court? Legal Challenges for the Prosecution of Israeli Settlements under the Rome Statute”, in Israel Law Review, 2018, vol. 51, no. 3, 344. 86 Commentary of 1958 (n 72). 87 UNGA ‘Rome Statute of the International Criminal Court’ (17 July 1998) art 8(2)(b)(viii). 88 (Elements of Crimes) <https://asp.icc-cpi.int/iccdocs/asp_docs/Publications/Compendium/ElementsOfCrimeENG.pdf> accessed 1 May 2021. 89 UNGA (n 87) art 30. 90 ibid. 84

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in the ordinary course of events.91 Lastly, "knowledge" translates to

awareness that a

circumstance exists, or a consequence will occur in the ordinary course of events.92 "Know" and "knowingly" shall be construed accordingly. As regards the actus reus, the crime is committed when the perpetrator transfers directly or indirectly part of its own population in the occupied territory.93 The notions of ‘directly or indirectly’ have proven controversial in humanitarian law on point.94 The main difference to Article 49(6) GC IV and Article 85(4)(a) AP I is the inclusion of the phrase “directly or indirectly”. 95 Direct transfers cover the construction of housing by the state or the provision of official settlement plans.96 Indirect transfers include the implementation of policy measures to induce and facilitate settlement in the occupied territory, for instance through subsidies and tax cuts.97 In both instances and contrary to forced transfer, however, the population still migrates on its own free will. 98 The operative word of the actus reus of Article 8(2)(b)(viii) is “transfer” or “transferred”. Therefore, the interpretation of this term in relation to article 8(2)(b)(viii) will show whether this provision can be seen as an instantaneous, continuous or continuing crime. From the preparatory works of the Statute, it can be drawn that the interpretation of the term “transfer” in the context of Art. 8(2)(b)(viii) has been left open for interpretation by the judges on purpose.99 This is supported by footnote 44 of the Elements of Crimes, where it is stated that the phrase “transfer” should be “interpreted in accordance with the relevant provisions of International Humanitarian Law” (IHL).100 However, the footnote does not clarify which exact Rule or Rules of IHL these should be. This leaves a wide margin for argumentation by potential parties before the Court as to which IHL rule is applicable and, ultimately, the scope of Art. 8(2)(b)(viii).101 In other words, if only a limited amount of IHL Rules were applied, Art. 8(2)(b)(viii) would only have a narrow scope, meaning that the term “transfer” would be

ibid. ibid. 93 ibid. 94 Lexsitus (n 82) 95 ibid. 96 ibid. 97 ibid. 98 ibid. 99 Knut Dörmann, ‘Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary’ (Oxford University Press 2003) 209. 100 Elements of Crimes (n 88) Art. 8(2)(b)(viii). 101 Uzay Yasar Aysev, “Continuing or Settled? Prosecution of Israeli Settlements under Article 8(2)(b)(viii) of the Rome Statute” (the Palestine Yearbook of international law 20) (2019) 33–83. 92

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interpreted narrowly as a discreet act which is completed once the transferred population settles into the occupied territory, leading to the characterization of Article 8(2)(b)(viii) as an instantaneous crime. 102 On the contrary, if several IHL Rules were applied in order to interpret Art. 8(2)(b)(viii), the term “transfer” would be seen as an ongoing process, rather than an instant act, which continues to cause harm as long as the transferred population remains within the occupied territory, i.e., a continuing crime. 103 Considering this, it may be argued that the latter approach is the intended one since it addresses the legally protected interest and the harm that Art. 8(2)(b)(viii) should prevent. 104 Neither the ICRC’s commentary on Art. 49(6) GC IV nor AP I to the Geneva Conventions on which Art. 8(2)(b)(viii) is based on offer guidance on the interpretation of the term “transfer”, even though footnote 44 of the Elements of Crime may be construed as referring to these provisions.105 Following a narrow interpretive approach, the term “transfer” within the context of Art. 8(2)(b)(viii) may be interpreted as “the movement of persons into an occupied territory with a view to settling there”, based on the ordinary meaning of its wording.106 This is also supported by the official commentary on Art. 49(6) GCIV. Therefore, “the meaning of the words “transfer” and “deport” are deemed to be different from that in which they are used in other paragraphs of article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power [emphasis added]”. 107 It can be drawn from this that following the narrow interpretive approach, the focus seems to be on the movement of population and not necessarily on their subsequent presence in the territory.108 Hence, transfer is seen as an instant event in the time that passes once the movement and settlement of the population into the occupied territory is completed. This is further supported by the fact that only the “transfer” and not the continuing presence of the population is criminalized by Art. 8(2)(b)(viii). Likewise, the drafters rejected the inclusion of the word “settlers” and the phrase “changes to the demographic composition of an occupied territory”, hinting that the drafters did not prefer an ongoing and continuing situation. Instead,

102

ibid. ibid. 104 ibid. 105 Christian Tomuschat, Chapter 73: Prohibition of Settlements, in The 1949 Geneva Conventions: A Commentary 1551, 1559 (Andrew Clapham et al. eds., 2015). 106 Yoram Dinstein, ‘The International Law of Belligerent Occupation’ (Cambridge University Press 2009) 240. 107 Jean S. Pictet, ‘Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War Article 49(6)’ (1958 283 (1958). 108 Eugene Kontorovich, ‘When Gravity Fails: Israeli Settlements and Admissibility at the ICC’, (2014) 47 Isr. L. Rev. 379 and 384. 103

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with the addition of the words “directly or indirectly”, this can arguably be taken as an indication of the intention of the drafters to solely criminalize the act of transfer of population. This is in contrast to “not necessarily any conduct related to the continuance of the situation on the ground that subsequently emerges once the transfer is completed”. 109 The fact that the transfer of population must be carried out by “the occupying power” may, on the contrary, also characterize the crime in Art. 8(2)(b)(viii) as continuous since it implies that a certain degree of state involvement in the planning and implementation is necessary. 110 The role of the State in facilitating the transfer of population in a systematic, coercive and deliberate manner establishes the contextual link among what would otherwise be regarded as isolated and separate instances of population movement. 111 Such involvement may be based on financial subsidies, planning, public information, military action, recruitment of settlers, legislation or other judicial action, and even the administration of justice. 112 Following this approach, transfer of population into an occupied territory can be regarded as a combination of all the individual population movements that are contextually linked to one another. A crucial point of consideration emerges from the interaction of Article 8(2)(b)(viii) and Article 22 of the ICC Statute. Adopting the narrow approach would be in line with the requirement under Article 22(2) to construe the definition of Statute crimes strictly and in favor of the person being investigated, prosecuted or convicted. 113 However, there are two fundamentally problematic aspects associated with this practice. First and most importantly, a limitation of the meaning of the term ‘transfer’ solely to initial movement and settlement of the nationals of the Occupying Power would completely ignore the fundamental purpose of Article 8(2)(b)(viii), as well as that intended for the Statute. 114 The legal interest that is protected and the harm that is meant to be prevented by this provision are not sufficiently covered by the prohibition solely of the initial movement and settlement of the population into the occupied territory. This is since, as stated before, Art. 8(2)(b)(viii) is a reflection of Art. 49(6) of GCIV which was drafted with the intention “to prevent a practice adopted during the Second World

109

ibid. Michel Cottier and Elisabeth Baumgartner, Paragraph 2(b)(viii): Prohibited deportations and transfers in occupied territories, in The Rome Statute of the International Criminal Court: A Commentary (Otto Triffterer and Kai Ambos, 2016) 404 and 410. 111 U.N. ECOSOC, The Realization of Economic, Social and Cultural Rights: The human rights dimensions of population transfer including the implantation of settlers, U.N. Doc. E/CN.4/ Sub.2/1993/17 (1993), para 15. 112 ibid. 113 Aysev (n 102) 33–83. 114 ibid. 110

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War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories.” 115 Arguably, Art. 8(2)(b)(viii) therefore protects the same legal interest as Art. 49(6) GCIV. If the narrow interpretation was adopted, an accountability gap would emerge with regard to the unlawful state of affairs caused by the presence of settlers who moved into an occupied territory before the temporal jurisdiction of the Court but remained thereafter. Secondly, there is no obvious reason why footnote 44, which serves as the main interpretative guidance for Article 8(2)(b)(viii), should be read narrowly as to only refer to Article 49(6) GCIV and Article 85(4)(a) API. There is a vast amount of IHL provisions that may be regarded as relevant to the interpretation of the term ‘transfer’ in the context of Article 8(2)(b)(viii). Such an approach could expand the meaning of the term ‘transfer’ beyond the mere movement and settlement of the nationals of the occupying power into the occupied territory. Arguably, this would be more in line with the fundamental purpose of Article 8(2)(b)(viii) and the overall purpose of the Statute to end impunity. The conduct in question has to have taken place in the context of and has to have been associated with an international armed conflict. 116 Lastly, the perpetrator must have been aware of factual circumstances that established the existence of an armed conflict. The general inclusion of population transfers into the ICC Statute seemed not to be very controversial among state parties, except for the Israeli delegation, which expressed fierce opposition to the provision.117 Scholars argue that the phrase “parts of its own civilian population” indicates that the commission of the offense has to involve the actual settlement of a certain number of individuals. 118 Therefore, indirect measures can only be covered by the scope of Article 8(2)(b)(viii) if they essentially lead to a physical transfer, which is regarded as

“Fundamental principles of the Red Cross”, Jean Pictet, (art. 49(6), 283 (1958). In the Nuremberg indictment the accused were charged with “Germanization of Occupied Territories” which was described as “[i]n certain occupied territories purportedly annexed to Germany the defendants methodically and pursuant to plan endeavoured to assimilate these territories politically, socially and economically into the German Reich. They endeavoured to obliterate the former national character of these territories. In pursuance of these plans and endeavours, the defendants forcibly deported inhabitants who were predominantly non-German and introduced thousands of German colonists. This plan included economic domination, physical conquest, installation of puppet governments, purported de jure annexation and enforced conscription into the German Armed Forces.” See International Military Tribunal, Trial of the Major War Criminals, Volume I: Official Documents, at 63,(1947). (See Aysev (n 102)). 116 Herman von Hebel, ‘Elements of the Specific Forms of War Crimes: Article 8(2)(b)(viii), in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence’ (Roy S. Lee ed., 2001) 158 and 161. 117 Lexsitus (n 82). 118 Michael Cottier and Elisabeth Baumgartner, “Article 8(2)(b)(viii)” in Otto Trifferer and Kai Ambos (eds.), The Rome Statute of the International Criminal Court, (3rd. ed., C.H. Beck, Hart, Nomos, Munich, Oxford, BadenBaden 2016) 410. 115

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the core actus reus. 119 However, it has been argued that such interpretation would exclude actions taken after the physical displacement of settlers has been completed, such as the regularization of constructions built without the required authorization or other incentives to stay in the occupied territory. 120 Most commentators agree that the transfer needs to be of a certain duration to qualify as an illegal transfer. 121 It is further unclear if there has to be a minimum number of transferred individuals. Whereas some suggest that a small number might suffice, others argue that the amount should be substantial due to the fact that the provision is intended to prevent forced demographic changes.122

IV.

WHY ARE THERE GROUNDS TO BELIEVE THAT IN THE PRESENT CASE ISRAELI OFFICIALS ARE RESPONSIBLE FOR THIS CRIME?

After looking at the historical context and the law, it becomes necessary to apply the facts to the law in order to establish potential violations made by Israeli officials. Even though it has been established that the settlement policy began as early as 1967, for the purposes of Article 11(2) Rome Statute the ICC only crimes committed after Palestine’s accession to the Rome Statute in 2015 can be prosecuted.123 Nevertheless, Israel continued in 2015 to enforce severe and discriminatory restrictions on human rights of Palestinians; to conduct

unlawful

settlements in; and facilitate the transfer of Israeli civilians to the occupied West Bank 124 , which makes the assessment conducted below of relevance for the Court. The overarching requirement for any war crime for the purposes of the Rome Statute is the existence of an armed conflict. 125 More specifically, for the application of Article 8(2)(b)(viii) an international armed conflict (IAC) must exist. 126 According to Art. 42 of the fourth Geneva Convention, a territory is considered occupied if it is placed “under the authority of the hostile

Andreas Zimmermann, “Palestine and the International Criminal Court Quo Vadis? – Reach and Limits of Declarations under Article 12(3)”, in Journal of International Criminal Justice, 2013, vol. 11, no. 2 324. 120 Jöbstl (n 85) 344. 121 ibid. 122 Cottier and Baumgartner (n 117) 410. 123 UNGA (n 89) art 11(2). 124 'World Report 2016: Rights Trends in Israel/Palestine' (Human Rights Watch, 2021) <https://www.hrw.org/world-report/2016/country-chapters/israel/palestine> accessed 1 May 2021. 125 UNGA (n 89) art 8. 126 ibid art (2)(b)(viii). 119

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army”.127 Under Common Art. 1 of the Geneva Conventions, a situation of belligerent occupation qualifies as an international armed conflict. 128 Hence, an IAC is a necessary precondition for the status of occupation. In the situation at hand, the UN has confirmed multiple times that there is belligerent occupation in the OPT, confirming the classification of the conflict as an IAC as well. 129 As stated above, Article 8(2)(b)(viii) Rome Statute requires direct or indirect transfer of parts of the population by the occupying power into the occupied territory. In this context, direct transfer refers to state involvement such as encouragement via settlement plans. 130 In December 1973 the General Assembly confirmed that the Fourth Geneva Convention, “applies to the Arab territories occupied by Israel since 1967”. In March 1979 the Security Council also affirmed that the Fourth Geneva Convention “is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem” and determined that “the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity”.131 Around seventy-five Israeli settlements have been established in the above territories. 132 This excludes military camps on the West Bank into which small groups of civilians have recently moved.133 Israel established its first settlements in the occupied territories in 1967 as paramilitary 'nahals'134. A number of 'nahals' have become civilian settlements as they have become economically viable. 135 It continued with civilian settlements in 1968. To clarify, civilian settlements are supported by the government, and also by non-governmental settlement movements affiliated in most cases with political parties. Most of them are reportedly built on public property outside the

127

Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 2 November 1950) 75 UNTS 135 art 42. 128 ibid, art. 1 129 UNGA (n 40) paras 1-2. 130 Lexsitus (n 82). 131 UNSC Res 446 (22 March 1979) UN Doc S/RES/446, para 1. 132 Letter of the State Department Legal Advisor, Mr. Herbert J. Hansell, Concerning the Legality of Israeli Settlements in the Occupied Territories of 21 April 1978. International Law Materials (1978) 777-779. 133 ibid. 134 Nahal - Fighting Pioneer Youth was a paramilitary Israel Defense Forces program that combined military service and the establishment of agricultural settlements often in peripheral areas. During the 1990s, the program changed its objectives and as for today combines military service with mostly social welfare and informal education projects such as youth movement activities. (See http://www.israeli-forces.com/cgilocal/product.pl?product_id=502&act=show_product), Letter of the State Department Legal Advisor (n 133). 135 ibid.

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boundaries of any municipality, but some are built on private or municipal lands expropriated for the purpose.136 The start of the now well-known Israeli Settlement Policy in the West Bank was the first settlement called Kfar Etzion. This came only a few months after the beginning of the occupation of the territory following the Six-Day War in 1967. 137 Since then, the Israeli governments implemented over 130 settlements and 100 outposts over a time span of several decades which led to a growth of population in the area to almost 600000. 138 The international fact-finding mission to investigate the implications of the Israeli settlements on civil, political, economic, social and cultural rights of the Palestinian People throughout the OPT including East Jerusalem found that since 1967, the Governments of Israel have openly led and directly participated in the planning, construction, development, consolidation and/ or encouragement of settlements by including explicit provisions in the fundamental policy instrument (basic policy guidelines), establishing governmental structures and implementing specific measures. These specific measures include (a) building infrastructure, (b) encouraging Jewish migrants to Israel to move to settlements; (c) sponsoring economic activities; (d) supporting settlements through public services delivery and development projects; and (e) seizing Palestinian land, some privately owned, requisitioning land for military needs, declaring or registering land as State land and expropriating land for public needs.139 It can be drawn from these practices that the previously mentioned measures, by their way of implementation and design, constitute an underlying act committed by the perpetrators of transfer of population into the West Bank. Thereby, they satisfy the actus reus of Art. 8(2)(b)(viii). Hence, this situation is concerned with direct transfer. Now, if potential judges were to follow a narrow interpretive approach, only those measures that had a direct or indirect impact on the building, population and enlargement of Israeli settlements after June 2014 would fall within the jurisdiction of the Court. 140 This would seriously impact the scope of jurisdiction of the court, since it would be only able to adjudicate on the transfer of a relatively

136

ibid. Diakonia, History of Israeli Settlement Policy (Nov. 13, 2013), <https://www.diakonia.se/ en/IHL/where-wework/Occupied-Palestinian-Territory/Administration-of-Occupation/ Israeli-Settlements-policy/History/> accessed 5 May 2021. 138 Bt’Selem, Statistics on Settlements and Settler Population, https://www.btselem.org/ settlements/statistics; U.N. Doc. A/HRC/34/39, para 11. 139 Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, U.N. Doc. A/RHC/22/63 (Feb 7, 2013). 140 Zimmerman (n 118) 324 and Kontorovich (n 108) 383. 137

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small percentage of the hundreds of thousands of Israeli settlers who currently live in the West Bank.141 Moreover, this would lead to a significant negative bearing on the gravity considerations under Art. 17 for admissibility of potential cases 142 just like the sentencing of potential perpetrators.143 Following this approach to the end, this interpretation would ultimately lead to an accountability gap with a view to an unlawful state of affairs that acts (i.e., the fact that Israeli settlers continue to be present and maintain this presence in the OPT), and omissions of the Israeli officials maintain, and which observers have classified as a violation of international law in the West Bank. 144 In the end, a narrow interpretation of Art. 8(2)(b)(viii) would lead to a distortion of its main objective similarly as the Statute in Palestine would be frustrated, which is why this Article will follow the broad interpretation of Art. 8(2)(b)(viii). A broader interpretation would allow for a wider scope of conduct in relation to the settler population in the West Bank to fall within the jurisdiction of the court. In addition to conduct leading to further movement of settlers, any conduct that has a causal link with the continuing presence of the entirety of the settler population in the West Bank would fall within the jurisdiction of the Court, disregarding the time of their initial movement and settlement. Following this train of thought, through such conduct, the Israeli authorities maintain the unlawful state of affairs in the West Bank precipitated by the establishment of Kfar Etzion

141

Aysev (n 101) 33–83; There are conflicting statistics regarding the number of settlers in the West Bank as of June 2014. UN reports on the issue consistently indicate that 500,000 to 650,000 settlers are believed to be already present in the West Bank by 2014; see U.N. H.R.C. Res. 25/38, Israeli Settlements in the Occupied Palestinian Territory, including East Jerusalem and the Occupied Syrian Golan, U.N. Doc. A/HRC/25/38 (Feb. 12, 2014), at para. 8; U.N. H.R.C., Israeli Settlements in the Occupied Palestinian Territory, including East Jerusalem and the Occupied Syrian Golan, U.N. Doc. A/HRC/28/44 (Feb. 12, 2014), para. 13; A more recent UN report found the settler population in the West Bank to be over 594,000 by the end of 2015 based on the data of the Israeli Central Bureau of Statistics; see U.N. Doc. A/HRC/34/39, para. 11. The Israeli media, on the other hand, reported that as of 30 June 2014, the settler population in the West Bank stood at 382,031; see Josef Federman, West Bank settler group boasts rapid growth, Times of Israel (Sep, 16, 2014), https://www.timesofisrael.com/ west-bank-settlergroup-boasts-rapid-growth/. According to the Israeli media, there are currently 421,000 settlers living in the West Bank; see Number of Israeli settlers living in West Bank tops 421,000: NGO, I24 News (Sep. 2, 2017), https://www.i24news.tv/en/news/ israel/137225-170209-number-of-israeli-settlers-living-in-west-bank-top-421000-ngo. (Yasar Aysev) 142 Kontorovich (n 108) 383. 143 Aysev (n 101) and ICTY, Prosecutor v Kunarac, IT-96-23/1-A, Judgement, para. 356, (Jun. 12, 2002); where the Appeals Chamber considered the length of enslavement, which is a continuing crime, to be an aggravating factor and found that “[t]he longer the period of enslavement, the more serious the offence.” See also Prosecutor v Sesay et al., Case No. SCSL-04–15-T, Sentencing Judgement, para. 167 (Apr. 8, 2009); where the Trial Chamber considered the continual, large scale and for prolonged nature of instances of enslavement as an aggravating factor. 144 The ICJ, for instance, found that “since 1977, Israel has conducted a policy and developed practices involving the establishment of Settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6 [of the 4th Geneva Convention]” and Wall Advisory Opinion, para 120.

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settlement in 1967, which left the continuation of this unlawful state of affairs reliant on their discretion. Moreover, the legally protected interests of the native population in the West Bank under Article 8(2)(b)(viii) continues to be jeopardized. The resulting dispossession and economic destitution they suffer145 accumulates over time as long as settlers are transferred into the occupied territory and remain therein. 146 An assessment of the Israeli policy of provision of subsidies and incentives to the Jewish settlements in West Bank shows that through the implementation of a governmental scheme of financial incentives in industrial zones that are designated as National Priority Areas, 147 “the Israeli authorities continuously and actively encourage commercial development of Israeli and international businesses in and around the settlements in the West Bank”. 148 This becomes apparent through measures such as benefits though tax breaks for individuals and business enterprises149 and direct encouragement to the industrial, agricultural and tourism sectors. 150 In addition to these benefits, Israeli authorities offer construction, housing and education subsidies to the settlers in the West Bank which Israeli citizens living in Israeli territory do not receive. 151 The Israeli settler population in the West Bank has seen a steady growth over the years because of the enactment of these policies.152 It has been reported that such privileges have turned many settlements in the West Bank into wealthy communities for Israeli citizens within an area where Palestinians live under military rule and in conditions of widespread poverty.153 Due to the fact that the provision of such incentives, benefits and subsidies continues, it can be assumed that this has led to both the migration of new settlers into the West Bank since June 2014, as well as the maintenance or preservation of the presence of the settler population that was established in the West Bank before that date. 154 As can be drawn from the above, the criteria set out by Article 8(2)(b)(viii) Rome Statute are met by the actions of the different Israeli governments since the beginning of the occupation

145

Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, U.N. Doc. A/67/379 (Sep. 19, 2012), para 9. 146 Aysev (n 101) 147 UNGA ‘Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General’ (13 April 2017) UN Doc A/HRC/34/39, para 24. 148 Aysev (n 101) 149 UNGA (n 146). 150 U.N. Doc. A/HRC/22/63, para 22. 151 U.N. Doc. A/67/379 (n 144) paras 9–10. 152 U.N. Doc. A/HRC/34/39, para 24. 153 U.N. Doc. A/67/379 (n 144). 154 Aysev (n 101).

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in 1967. These activities continued after 2015 and ever since, which leads to the assumption that the necessary threshold of Article 8(2)(b)(viii) Rome Statute is met and the war crime of forcible transfer of population has been committed by Israeli officials within the different governments in charge since the beginning of the occupation in 1967.

CONCLUSION

In conclusion, an end to the international armed conflict between Israel and Palestine cannot be expected soon. When looking at the historical roots of the conflict, it becomes apparent that the whole of the international community in form of the UN is vested in the situation and has issued their condemnation on Israeli settlement practices as well as the demand to immediately withdraw from the territory. These practices have been in place ever since the beginning of the occupation of Palestinian territory and in the near future an end is not in sight. This article aimed to look at the Israeli transfer of population in the past decades and tried to assess if there is a reasonable basis to believe that these acts may amount to the war crime of transfer of population for the purposes of Article 8(2)(b)(viii) Rome Statute. A thorough analysis of both Israeli settlement policies and the relevant Article and its effects lead to the assumption that indeed, the situation is concerned with the direct transfer of Israeli population into the Occupied Palestinian Territory by Israel. Additionally, the facts at hand show that Palestinians inside the territory have been displaced as well. Even though these acts commenced over 50 years ago, they are still ongoing today; as such, they fall within the temporal scope of the ICC’s jurisdiction since Palestine’s accession in 2015. The criteria set out in Article 8(2)(b)(viii) Rome Statute are met by the evidence of Israeli settlement acts. Nevertheless, even though PreTrial Chamber I has confirmed the territorial jurisdiction of the Court, Israel is not a State Party. This leaves the international community guessing where the Situation before the Court may go. More precisely, even if, as has been established in this article, the Prosecution were to open a case and find sufficient evidence for the prosecution of, i.e., the war crime of transfer of population by Israel, will Israeli officials ever be tried before the International Criminal Court? Only time will tell – and this leaves victims and observers alike waiting for the initiation of proceedings by the opening of a case before the ICC.

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The EU Leniency Policy: Is the EU Commission Being More Lenient than it Should? By Deivid Mustafa* I.

INTRODUCTION

The Leniency Policy (LP) is a law enforcement tool used by the European Commission (EC) to combat anti-competitive behaviours such as economic cartel formation. As the name suggests, lenience is given to “repenting” cartelists who at a certain point decide to retreat from the cartel and report it to the EC. The rationale behind allowing these companies to report, while pardoning them from sancations at the same time, can be found on the preamble of the text of the policy and can be summarized as follows. Namely, the collaboration of a company in the detection process of the cartel has intrinsic value for the Commission.1 To understand the notion of “intrinsic value”, one needs to compare the LP to regular witness protection programs. Concretely, under these programs, the government offers to remove or reduce liability to perpetrators who decide to cooperate with law enforcement authorities. The motivation behind these offers is that perpetrators can provide the authorities with valuable information on the deeper levels of the crime, such as information that could bring down the criminal enterprise; information that only an insider is able to provide. Equally, the EC uses the same strategy to detect cartels, and that is why the information provided by applicants perfectly justifies a reduction of a fine, the degree of which, varies upon the contribution that is offered by the company.2 However, as it will be demonstrated in this article, the Leniency Policy might incentivise a company to join a cartel for the sole purpose of being the first reporter in order harm its partners financially. Specifically, by being the first reporter in several cartel detection proceedings, the company can learn how escape the liability while its partners are countinuously sanctioned with astronomical fines. Surprisingly, this phenomenon is not addressed by the Leniency Policy and the legislation on this matter is rather scarce. One of the main reasons behind this gap is that it is very expensive and difficult to spot cartels. 3 Concretely, only 13% of the existing

LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences. Commission Notice on Immunity from fines and reduction of fines in cartel cases [2016] OJ C 298. 2 ibid., para 5. 3 Payal Verma and Philippe Billet, ‘Why would cartel participants still refuse to blow the whistle under the current EC leniency policy?’ 2009 Global Antitrust Review 14. 1

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cartels have a chance of being detected.4 Therefore, it is in the interest of the Commission to use all the help that it can get, because its options are limited.5 Though article 101 TFEU does not prohibit this strategy, it must be classified as an anti-competitive agenda because companies can use it to damage competitors, which is contrary to the very essence of competition law. This article addresses this strategy and assesses whether it is in the interest of the Commission to categorise it as an anti-competitive behaviour. Towards this end, the article first discusses the notion of a cartel and the rationale on as to why they are prohibited. Secondly, it explores the damage that cartels cause the economy and how the Commission, in turn, has developed a particular approach on tackling them. Thirdly, the article presents the reasons why companies apply for a leniency programme, some of them being motivated by the shortcomings this programme. Lastly, it addresses the issue of whether it is in the interest of the Commission to modify the policy and how this modification should be carried out.

II.

CARTELS AND THEIR CHARACTERSITCS

According to paragraph 1 of the Notice, cartels are agreements and/or concerted practices, conducted by a group of companies, who agree to commonly indulge in illegal practices so as to gain a competitive advantage. 6 These practices disturb the competition, while negatively affecting other competitors who do not take part in such cartels. 7 The list of illegal practices covers price fixing, allocation of production or sales quotas, the sharing of markets including bid-rigging, restrictions of imports or exports and/or anti-competitive actions against other competitors.8 In terms of hierarchy, price fixing and market sharing are considered to be the most harmful, hence commonly referred to as- hardcore restrictions.9 While other practices can benefit from exemptions 10, these two are automatically excluded from that possibility

ibid. ibid. para 3. 6 LP 2006 (n 1) para 1. 7 ibid. para 2. 8 ibid. 9 Commission Staff Working Document, ‘Guidance on restrictions of competition "by object" for the purpose of defining which agreements may benefit from the De Minimis Notice SWD [2014] 198 final accompanying the document, Communication from the Commission, ‘Notice on agreements of minor importance which do not appreciably restrict competition under Article 101(1) of the Treaty on the Functioning of the European Union (De Minimis Notice)’ C [2014] 4136 final 3. 10 Commission Regulation (EU) 330/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices [2010] OJ L 102. Some agreements are beneficial to society, therefore it is in the interest of everyone to have them implemented even 5

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because they bring nothing but damage to the competition. 11 These practices are the main activity of cartelists and that is why cartels are considered to be highly detrimental and are strictly prohibited as a result.

a. Rationale behind cartel formation Let’s start this discussion by acknowledging the fact that a strong competitive environment can be difficult to navigate into because there is continuous presence of pressure to innovate. Therefore, financially speaking, one option for a company would then be to increase its prices or reduce its output solely for its own profit. The issue is that, in a market where the customer’s interest is paramount, a company cannot do so, because the customers would immediately replace it with another company. However, if the company decides to remove competition by cooperating with its competitors, it would gain more market power and thus it would be able to create its own market rules. 12 To put this into perspective, if a group of companies, regardless of their sector of operation, agree to simultaneously increase prices for a similar product, then the customers would have limited choices and not be able to replace any of the companies. As a result, customers would be forced to pay a higher price for cheaper products of a lesser quality. 13 Understandably, this would prove profitable for that specific group of companies, hence cartels are formed.

b. How is the cartel maintained?

It is hard to operate under a cartel because the management of the operation requires a high degree of secrecy. 14 The question would then be: how do these companies manage to maintain a well-functioning line of operation that is utterly illegal? Certainly, it appears difficult for these companies to keep themselves on track, because it would be unwise for them to complain about each-other to the authorities in cases of non-compliance with cartel rules.

though they might bring restrictions; the law has given a chance to these agreements, provided that they fulfil certain criteria. 11 Commission Staff Working Document (n 10). 12 Johannes Wachs & János Kertész, ‘A network approach to cartel detection in public auction markets’ (2019) 9, 10818 Sci Rep <https://doi.org/10.1038/s41598-019-47198-1> accessed 27.02.2021.; see also Robert C. Marshal & Leslie M. Marx, ‘The economics of collusion, cartels and bidding rings’ (1st edition, MIT Press Books, 2014). 13 LP 2006 (n 1) para 2. 14 Alberto Heimler, 'Cartels in Public Procurement' (2012) 8 J Comp L & Econ 849 2.

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Additionally, these companies cannot bind each-other through contracts, otherwise they would increase the chances of exposure by making more evidence available. 15 Nevertheless, the strong drive for profit has silenced these concerns to a certain degree. As expected, through a high level of cooperation, cartels manage to compile and structure their own system of enforcement to ensure internal compliance with cartel rules. For instance, if a company deviates from the rules to the detriment of its partners, it can be sanctioned through price slicing and the threat of price wars.16 At the same time, apart from aforementioned sanctions, elements such as effective communication, reciprocity in terms of conducting agreements and, reputation, play a crucial role in the maintenance of a cartel. 17 Most importantly however, is that cartel maintenance is achieved through constant and strict monitoring between the cartel participants, aimed at their respective actions. In summary, due to the lack of legal norms regulating cartels, companies have chosen these informal social rules to maintain their activities, which have proven quite effective.18

c. How much damage do cartels cause?

As we saw in the second section, EU legislation is clear on the prohibition of cartels and as it will be illustrated later, the punishment for participation can be heavy. Moreover, EU legislators have adequately defined the concept of cartels and explained to a great extent the reasons why they are considered harmful. But how bad can these cartels actually be for the functioning of the common market? The answer is not fully accurate, simply because not all the existing cartels are discovered and the actual damage cannot be measured as a result. 19 However, in regard to cartels that are discovered, researchers have provided data that indicates that in 2013, damages amounted to €16.8 billion of lower bound yearly damages and €261.22 billion of upper bound yearly. 20 On that basis, these sums amount to 0.15% and 2.3% of EU

J. D. Jaspers, ‘Managing cartels: how cartel participants create stability in the absence of law’ [2017] 23 Eur J Crim Policy Res < https://doi.org/10.1007/s10610-016-9329-7> accessed 27.02.2021. 16 ibid. 17 ibid.; see also Christopher R. Leslie, ‘Trust, distrust and antitrust’ (2004) 82 Tex. L. Rev. 517, 532-540. See also Van Erp, J. G., ‘Reputational sanctions in private and public regulation’ (2008) 5 Erasmus Law Review, 145163. See also Van de Bunt, ‘Walls of secrecy and silence’ (2010) 9(3) Criminology and Public Policy 435-453. 18 ibid. (n 24). 19 Frank Maier-Rigaud & Ulrich Schwalbe, ‘Quantification of antitrust damages’ (2013) IESEG Working Papers Series <https://www.ieseg.fr/wp-content/uploads/2013-ECO-09_Maier-Rigaud.pdf> accessed 27.02.2021. 20 ibid. 15

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GDP.21 The Trucks cartel alone, which will be discussed in this article, was estimated to cause a net welfare loss of €15.5 billion to the Union.22 To measure these damages, many factors are taken into account, such as the longevity of the cartel, its market coverage, the price increase and reduction in quantity of the products. 23 Among others, focus must remain on longevity, because unsurprisingly, cartels can operate for decades without being detected and the longer a cartel endures, the higher the loss will be for the market.24 According to an OECD 2020 report, the average duration for a cartel in Europe is 5.5 years.25 However, as explained further in the report, in several cases cartels can operate for longer, especially when they have close ties with business or trade associations and governments.26 To elaborate, these ties depend on the product or service that the companies are providing. For example, a successful company providing transportation services will usually hold a high stake in the industry and consequently be an important contributor to society in that relevant sector. This would give the company higher access in terms of information that it receives and in relations that it is able to form with other important stakeholders. In cases of cartels, this access proves highly useful and enhances the chances of survival. 27 Nevertheless, despite the complexity of the detection procedures, the National Competition Authorities (NCAs) and the EC have effectively brought before justice a considerable number of cartels throughout the years. Therefore, it can reasonably be concluded that the impact of the Leniency Policy in this regard has been positive and effective to a certain degree.28 To thoroughly understand this impact, it is important to take a look at various decisions that the EC has provided. The following section presents three decisions which describe the process of detecting cartels and how the LP works in reality.

ibid. Christian Beyer, Elke Kottmann & Korbinian von Blanckenburg, ‘The welfare implications of the European Trucks case (2020) 55 Intereconomics <https://link.springer.com/content/pdf/10.1007/s10272-020-0881-5.pdf> accessed 27.02.2021. 23 Maier-Rigaud & Schwalbe (n 20). 24 ibid. 25 OECD, ‘OECD Competition trends’ (2020) <http://www.oecd.org/daf/competition/OECD-CompetitionTrends-2020.pdf> accessed 27.02.2020, 43. 26 ibid. 27 ibid. 28 Catarina Marvao & Giancarlo Spagnolo, ‘What Do We Know about the Effectiveness of Leniency Policies? A Survey of the Empirical and Experimental Evidence’ (2014) 28 Stockholm Institute of Transition Economics < https://www.econstor.eu/bitstream/10419/204739/1/site-wp0028.pdf> accessed 27.02.2021. 22

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III.

EU COMISSION’S DECISIONS

The Commission decisions that will be analysed are the Trucks, TV and Computer Monitor Tubes and Forex. In these decisions, the Commission has found a chance to expand its view on the concept of a cartel and explain the rationale behind its prohibition. Furthermore, these decisions clearly familiarise us with the sanctions that ensue after cartel detection. More importantly, these decisions demonstrate how the first reporter of the cartel gains full or partial immunity from these sanctions. Above all, the choice of these decisions is motivated by the fact that the first reporters were pardoned from huge fines as a result of their cooperation, while their partners had to pay every single penny.

a. Trucks

The Trucks case illustrates how European truck companies managed to secretly maintain a cartel for 14 years. As it was previously pointed out, the damage caused was enormous and once they were detected, the companies received a massive fine of up to €3.8 billion.1 The starting point of this cartel dates back to January 17th 1997, where the senior managers of these companies decided to exchange information on gross list prices for medium and heavy trucks in the EEA. 2 The Commission examined the behaviour of the companies while taking into account several principles that form the basis of article 101(1) TFEU. It also shed light on the intricate process that brought about the cartel. Firstly, the companies had decided to coordinate with the aim of minimizing the risk of competition.3 This was achieved through close cooperation, consisting of an intertwined set of agreements and concerted practices that had as their object the prevention, restriction and/or distortion of competition of the trucks industry. 4 All these practices and agreements were strictly prohibited pursuant to article 101(1) TFEU and 53(1) of

European Commission, ‘Antitrust: Commission fines truck producers Euro 2.93 billion for participating in a cartel’ (Press release, 19 July 2016) <https://ec.europa.eu/commission/presscorner/detail/en/IP_16_2582> accessed 27.02.2021. 2 Beyer (n 23). The truck market consists of three segments, defined according to the gross vehicle weight measured in tons: I Lights Trucks (< 6t); II Medium Trucks (6-16t); III Heavy Trucks (>16t). 3 Trucks (Case AT.39824) Commission Decision 2017/C 108/05 [2016] OJ C 108 para 71. 4 ibid para 81. 1

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the EEA agreement. 5 In addition, the Commission specified that this infringement occurred as a result of a series of acts that formed an “overall plan”, which was to distort the independent price setting and the normal movement of prices.6 The specifics of this plan were found in the characteristics of the contacts between the companies and the non-sporadic nature of their encounters.7 Out of the six companies, MAN was the first to apply for immunity under the leniency program, followed by Daimler, Iveco and Volvo/Renault. As a consequence, the firms received a 100%, 30%, 10% and 40% reduction of fines respectively. Out of €3.8 billion, MAN paid nothing, while Daimer, the market leader at the time, paid approximately €1 billion and the rest paid the remainder.8 As can be seen in the Commission’s decision, MAN zealously co-operated with the authorities and effectively complied with all the requirements of the Leniency Notice. 9 Paragraph 45 of the decision points out that the principal documentary evidence that was used during the investigation was mainly provided by MAN, followed by the rest of the applicants. 10

b. TV and Computer Monitor Tubes

Similarly to the Trucks case, the companies at hand, namely Chunghwa, LG Electronics, Philips, Samsung SDI, Panasonic, Toshiba, MTPD and Technicolor were involved in two cartels, in which they fixed prices, shared markets, allocated customers between themselves and restricted their product output for two decades.11

In its decision, the

Commission classified the two cartels as two separate infringements due to the fact that they evolved around two different products. Namely, there was a CTP cartel, which concerned colour picture tubes used for televisions, and a CDT cartel, which concerned display tubes used in computer monitors.12 Moreover, there were several reasons why the Commission decided to

ibid paras 65-85. In these paragraphs, the Commission describes the behaviour of the companies and how the nature of their collaboration was considered to be damaging to the competition and prohibited under the applicable law. 6 ibid. para 70. 7 ibid. paras 72-73. 8 Beyer (n 23) 3. The rest of the firms paid an average of € 500 million each. 9 Trucks (n 32) para 129. 10 ibid para 45. 11 European Commission, ‘Antitrust: Commission fines producers of TV and computer monitor tubes Euro 1.47 billion for two decade-long cartels’ (Press release, 5 December 2012) <https://ec.europa.eu/commission/presscorner/detail/en/IP_12_1317> accessed 28.02.2021. 12 TV and computer monitor tubes (Case AT.39437) Commission Decision 2013/C 303/07 [2012] OJ C 303 para 650 and European Commission press release 5 December 2012 (n 40).

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make a distinction between the two cartels. One of them is that although the agreements that brought about these cartels overlapped, their respective methods of implementation differed. 13 The Commission found the cartels to be in infringement of article 101 TFEU. 14 Furthermore, it specified in order to fall under the prohibition, agreements do not necessarily have to be put in writing, or include formalities and contractual sanctions. 15 The form of the agreement is irrelevant for as long as it represents a common plan to breach article 101 TFEU, a line of reasoning which can also be found in Case T–9/99 Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH Vo. KG (HFB) and Others v Commission.16 Furthermore, the Commission based its argument on the “requirement of independence”.17 This requirement stipulates that an economic operator must have an independent economic policy. 18 To expand, an economic operator must be allowed to adapt itself intelligently to the conduct of its competitors.19 However, establishing contact with the aim of disclosing economic policies to competitors is prohibited.20 Clearly, the companies at hand did not abide by this requirement. Accordingly, the Commission imposed a total fine of €1.4 billion on the participating companies.21 Chunghwa, the first company to notify the Commission under the LP procedure got a 100% reduction, while its partners paid sums amounting from €150 million to €390 million.22 Through its effective cooperation with the Commission, Chunghwa managed to escape undamaged from the cartel and put all of its partners to justice. Furthermore, there were other companies such as Samsung, Philips or Panasonic who submitted applications for reduction of fines, only to be faced with a 40% or less reduction. 23 Then again, the evidence provided by Chunghwa was considered highly valuable - valuable enough to disregard the fact that it had itself chosen to participate in the cartel for 20 years.24

ibid para 645. ibid paras 623-624. 15 ibid para 603. 16 ibid para 603. See also Case T–9/99 Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH Vo. KG (HFB) and Others v Commission [2002] ECR II–1487, para 207 and Joined Cases T–305/94 T-306/94, T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T329/94 and T-335/94 Limburgse Vinyl Maatshcappij N.V. and others v Commission (PVC II) [1999] ECR II–931, para 715. 17 ibid para 607. 18 ibid. 19 ibid. 20 ibid. 21 Press release 5 December 2012 (n 40). 22 ibid. 23 ibid. 24 ibid. 14

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c. Forex

Lastly, the Forex decision presents a similar storyline. This time, the infringement was concerned with the sector G10 Foreign Exchange (FX or Forex) spot trading, in which companies trade currencies. The companies at hand were found to be cooperating and exchanging sensitive information through online chat rooms.25 This cooperation would prove useful to the traders as they could manage their strategies, refrain from interfering with each other's plans and make market decisions accordingly. 26 The Commission imposed two decisions per cartel, namely the “Forex - Three Way Banana Split” and the “Forex- Essex Express”.27 According to the EC, the cooperation between the companies constituted a continuous infringement, as it was orientated solely to the benefit of the traders and excluded every non-participating company from the advantages thereof. 28 UBS, one of the companies, was the first to apply under the Leniency Programme 2006. It received full immunity from fines and thus avoided a €285 million fine, while its partners, Barcleys, RBS, Citigroup and JPMorgan paid the aggregate sum of €1.06 billion.29 These decisions illustrate the practical implementation of the Leniency Policy by the Commission. Roughly speaking, after choosing to participate in a cartel, companies decide to report their partners in exchange for a full reduction. Clearly, the amount of the imposed fines is considerably high, and the financial effect on the companies is not without consequences. From a competition standpoint, avoiding a fine of this sort can prove beneficial for the first reporter and detrimental for the rest of the cartelists. What could be learnt from these cases is that the Commission will value religiously the evidence provided by the first reporters and disregard the fact that they voluntarily participated in a cartel in the first place. Therefore, it would appear reasonable for every company to suddenly decide to join a cartel just to be the first reporter at a later stage and avoid the fine, while its partners have to pay. Nevertheless, in

European Commission, ‘Antitrust: Commission fines Barclays, RBS, Citigroup, JPMorgan and MUFG € 1.07 billion for participating in foreign exchange spot trading’ (Press release, 16 May 2019) <https://ec.europa.eu/commission/presscorner/detail/en/IP_19_2568> accessed 28.02.2021. 26 ibid. 27 ibid. 28 Forex-Three Way Banana Split (Case AT.40135) Commission Decision 2020/C 226/05 [2019] OJ C 226 para 12-15. 29 P release 16 May 2019 (n 54). 25

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order to support this assumption, it is important to take a closer look at the reasons why companies decide to apply for a leniency programme.

IV.

WHY DO COMPANIES APPLY FOR A LENIENCY PROGRAME?

In the previous sections, we saw that companies enter into or form cartels with the aim of reducing the risk of strong competition and maximising their profit. Additionally, once a cartel is formed, cartelists structure their own rules of enforcement and they maintain reciprocity in terms of implementing their agreements. However, on the other side, case law indicates that the cartelists are usually the first “whistle-blowers” and often the main reason the Commission decides to open an investigation in the first place. 30 Here are two reasons that explain to a certain extent the rationale behind this behaviour. Firstly, although it has been difficult to measure the effectiveness and the efficiency of the Leniency Policy, it can be argued that it has played an important role in combating cartels throughout the years since its creation. This success can be attributed to the fact that companies are aware of this policy and they might refrain from colluding in the first place, out of the fear that one of the partners will report to the authorities.31 Concretely, should a group of companies decide to create a cartel, they will be faced with a double risk; apart from fear of punishment resulting by getting caught, they will now have to learn to be cautious of their partners, which may lead them to get caught. 32 Theorists and practitioners have referred to this phenomenon as the “protection from punishment” effect and “race to the courtroom” effect. 33 It is common for companies to run to the authorities after they find out that their illegal operations have been discovered, be that from an internal or external leak. Therefore, after being faced with the dilemma on whether or not the partners should be trusted, companies realise that it is in their interest to cooperate with the authorities and reduce the liability, rather than choosing to remain silent.34

“Usually” because there are cases in which the Commission receives information from anonymous sources. Catarina Marvao, ‘The EU leniency programme and recidivism’ (2016), 48 Red Ind Organ <https://doi.org/10.1007/s11151-015-9474-z> accessed 28.02.2021. 32 ibid. 33 ibid. (n 37). 34 Baskaran Balasingham, ‘The EU leniency policy: reconciling effectiveness and fairness’ (1st edition, Alphen aan den Rijn, 2017) 65. 30 31

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Secondly, the reason why companies decide to report revolves around a financial viewpoint, namely, the financial status of a company after its partners have been severely fined. Would there be a financial benefit for a company if its partners are fined? In the beginning one might think that the answer is no because the companies are interlinked together and damaging one of them would damage the whole group. However, in terms of competition strategies, it is perfectly reasonable to assume that a cartelist which enters the cartel for its sole benefit and manages to escape the liability, is put in a much better position than the rest of the companies which have to pay the fine. Accordingly, the characteristics of the fines demonstrate the stakes at hand. As mentioned before, cartels cause much damage to the economy and this damage in turn becomes a profit for the participating companies. However, even though participation in a cartel can be profitable, the fining system of the competition authorities ensures that profit gained from the cartel activities is proportionately claimed back from the perpetrators. 35 As the “Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003” indicates, fines can amount up to 10% of the annual turnover for the firm. 36 In order to calculate a fine, the European Commission relies on the gravity (i) and the duration of the infringement (ii). 37 Moreover, the Commission will assess the aggravating and mitigating factors on a case by case basis.38 Lastly, as the document indicates, the Commission will also measure the ability of the firms to pay the fine, therefore, the fines shall not be construed in such a way as to fully depreciate the value of the company and jeopardize its economic viability.39 Based on this, we can logically presume that even though the fines are specifically designed to not cause a firm to face bankruptcy, they sufficiently redeem the damage caused to the society. Therefore, it is in the firm’s interest to avoid these fines, because they can sabotage the purpose of joining a cartel in the first place and remove the profit gained therefrom. However, if one of the cartelists becomes the first reporter, it will get to keep this profit, because it will not pay the fine. Clearly, this creates an incentive for the company to report, because not paying the fine will put the company in a better market position, especially when the fine is high.

Sarah Gale, ‘The leniency regime and the fight against cartels by the Directorate General for Competition’ (2004) 25(11) Comp. Law. 2004 324-330; see also Wouter P.J. Wils, ‘Recidivism in EU Antitrust Enforcement: A legal and Economic Analysis’ (2012) 35(1) World Competition, 8. 36 European Commission, "Guidelines on the method of setting fines" [2006] OJ C210/2, para 32. 37 ibid., para 2. 38 ibid., paras 28–29. 39 ibid., para 35. 35

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DOES THIS LEAD CARTELISTS TO TAKE ADVANTAGE OF THE LP?

As it was previously brought up, in theory, being the first reporter might appear profitable to cartelists, however, we need to see whether they actually follow this strategy in reality. To understand this, we need to take a closer look at the background of the companies which have previously benefited from fine reductions. For example, studies have shown that the firms who receive fine reductions are most likely to be repeat offenders and this presents an interesting pattern of behaviour.40 Concretely, Akzo Nobel, has participated in nine cartels and has received seven leniency fine reductions. 41 Degussa AV (Evonik) has participated in four cartels and has received four leniency fine reductions.42 In essence, repeat offenders, by continuously participating in the LP proceedings, gain experience in creating cartels, concealing them and dealing with “whistle-blowers”.43 This puts them in an advantage towards the new cartel members in situations where an investigation has been started. 44 More specifically, these offenders learn how to react quickly during investigations and they learn how to report and provide more valuable information. 45 As a consequence, they receive larger reductions, while at the same time damaging their new partners.46 This is further supported by various authors, who argue that according to empirical evidence, repeat offenders have proven to be the first reporters, especially after the revision of the 1996 LP into the 2002 LP.47

a. How are repeat offenders and ringleaders treated under the law? For now, the Commission has provided for a definition for “repeat offenders” and considers this status as an aggravating circumstance when determining the fine. 48 However,

Cung Truong Hoang, ‘Determinants of self-reporting under the European corporate leniency program’ (2014) 40 International Review of Law and Economics 15-23. 41 Marvao (n 60). 42 ibid. 43 ibid. 44 ibid. 45 ibid. 46 ibid. 47 Hoang (n 69). 48 Guidelines on the method of setting fines (n 65) and John M. Connor, ‘Has the European Commission become more severe in punishing cartels? Effects of the 2006 Guidelines’ (2011) 32(1) E.C.L.R. 27-36. The definition covers firms who have previously breached article 101 and 102 TFEU. 40

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there is an ambiguity as to whether repeat offenders can be eligible for a full reduction in cases where they decide to be the first reporters of the cartel. This definitely raises questions regarding the presence of recidivism in the grand scheme of the LP proceedings. Thus far, the Commission has expelled from such eligibility only cartel ringleaders, without allowing them to be the first reporters. 49 Nevertheless, as it will be demonstrated in the next paragraph, this approach also has its own shortcomings. The Leniency Policy 2006 Notice does not explicitly lay down a definition of ringleaders. However, paragraph 13 implicitly connects this term to the initiators of the cartel who in certain cases, go as far as to coerce others to join. 50 Authors portray this term as a leading position, one where the company decides to orchestrate the coordination of the cartel by approaching other firms and instigating them into formation. 51 As a result, these companies are automatically expelled from full immunity and receive fine reductions only if they comply with the necessary conditions. 52 At first, this policy might be perceived as a discouragement for companies to join cartels or take the leading role, but in contrast, various authors disagree with this assumption.53 According to some experimental studies, this system of discrimination is likely to generate the formation of more cartels. 54 That is because it appears irrational to the ringleaders to report if they are excluded from total immunity. 55 On the other side, this exclusion guarantees to the rest of the companies a loyal partner who does not have an interest in cooperating with the Commission.56 This security is further enhanced if the cartel is led by more than one ringleader. Therefore, in that sense, this aspect of the policy has failed in terms of deterrence, because it not only discourages ringleaders from reporting, but it also encourages the rest of the firms to collude and not report.57 In summary, a company has the possibility to get a full reduction even if it is a repeat offender for as long as it is not the ringleader and additionally, it will be more encouraged to join a cartel for as long as the cartel has a ringleader. In this way, companies are incentivised

LP 2006 (n 1) para 13. ibid. 51 Stephen Davis & Oindrilla De, ‘Ringleaders in larger number asymmetric cartels’, (2013) 123 The Economic Journal 24. 52 LP 2006 (n 1) para 13. 53 Georg Clemens & Holger A. Rau, ‘Do leniency policies facilitate collusion? Experimental Evidence’ (2014) DICE Discussion Papers 130, University of Düsseldorf, Düsseldorf Institute for Competition Economics (DICE). 54 ibid. 55 ibid. 56 ibid. 57 ibid., 17. 50

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to repeatedly participate in cartels and be the first reporters, to the detriment of their competitors, because the LP does not prohibit this behaviour.

VI.

IS IT IN THE INTERST OF THE COMMISSION TO ADDRESS THIS STRATEGY AND IF YES, HOW CAN IT BE ADDRESSED?

What we have seen is that the main rationale behind the leniency policy is that in terms of public interest, it is perfectly justified to grant full reduction to cartelists because their contribution in detecting cartels is highly valuable. 58 On the other side, we have to consider that the main purpose of article 101 TFEU is not to protect and look after “repenting” cartelists, but ensure that the economic integration within the EU is maintained by prohibiting practices hindering cross-border trade such as cartels. 59 However, if the LP is offering a strategy for companies through which they can damage their partners by joining cartels to consequently report them, we must conclude that the LP is deviating from its main goal. 60 To elaborate, this gap creates a situation where the number of cartels would not be reduced but instead increased. In that sense, it is in the interest of the Commission to address this problem because it would protect the functioning of the internal market. Be that as it may, the counter-response must be conducted in such a way as to not jeopardize the effectiveness of the LP by discouraging firms to report to the Commission.

a. Current conditions to be eligible for a LP application

As the LP stipulates, there are a number of requirements that companies have to comply with in order to get a full reduction when filing a leniency application. A few of them were mentioned throughout the article, but generally they can be summarised as such: to get a full reduction a company has to i) be the first company to report the cartel, ii) refrain from further participation in the cartel; iii) not be the ringleader and lastly, iv) provide the competition

General Court Press Release No.87/11 on Case T-12/06 and Case T-25/06 (September 9, 2011). Protocol on the internal market and competition [2008] OJ 115 0309; and Pablo Ibáñez Colomo, ‘Article 101 TFEU and market integration’ (2016) 12(4) Journal of Competition Law & Economics 749-779. 60 Marvao (n 60). 59

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authorities with valuable information regarding the existence and the operation of the cartel.61 If a firm fails to meet one of these conditions then the competition authorities will have the possibility to revoke the immunity. 62 By way of comparison, in the US, these conditions are offered to the applicant in a contractual form, meaning that the government and the company will sign a non-prosecution agreement resulting in the applicants waiving their right to remain silent while the government promises to not abrogate the immunity without a significant reason. 63 By contrast, in Europe the conditions are offered in an administrative form, meaning that the government will simply apply the law.64 Nevertheless, the result is the same. Namely, if the applicants breach one of the contractual obligations in the case of the US, or breaches one of the conditions as stipulated by EU law, they will not be entitled to immunity. 65 Authors have argued that the competition authorities should apply revocation only in rare circumstances, because taken from the viewpoint of the companies, it is highly risky to self-report. Concretely, companies are faced with the possibility that the authorities might decide that the information is not valuable enough, after they have assessed the submitted evidence.66 This would expose them and as a result discourage them from reporting in the first place. However, this is the case only when the conditions for immunity/procedure are not adequately clear or transparent. Whereas in jurisdictions where this is not an issue, the conditions have the positive effect of filtering the genuine applicants from those who apply for personal benefit.67

b. Proposal for new conditions

The proposal for this theme would be to outlaw the strategy of reporting with the sole purpose of gaining a competitive advantage by adding two conditions in the application procedure. Firstly, the Commission must prohibit repeat offenders from fine reductions even

Gönenç Gürkaynak, K. Korhan Yildirim and E. Açelya Setkaya, ‘Granting immunity and revoking immunity: a global overview of leniency programs’ (2014) 25 (6) International Company and Commercial Law Review by Sweet & Maxwell 195. 62 ibid. 63 ibid; see also Taylor v Singletary 148 F. 3d 1276, 1283 (11th Cir. 1998); see also Castaneda 832, 836 (5th Cir. 1998); Fitch, 964 F.2d 571, 574 (6th Cir. 1992). 64 ibid. 65 ibid. 66 Iris Tilley, "A Sour Carrot and A Big Stick" (2007) 6 Seattle J. Soc. Just. 391, 408. 67 Colomo (n 88). 61

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when they attempt to be the first reporters. If the Commission continues to allow repeat offenders to escape the consequences, they will be encouraged to participate in cartels again. This undermines the authority of the Commission and defeats the whole purpose of prohibiting cartels in the first place. The second condition should require the first reporters to specifically provide for a signed declaration that explains that the company did not join the cartel for the purpose of damaging competition. The credibility of this statement must be supported by evidence such as the company’s commercial strategies and plans, which can include internal compliance regimes. Furthermore, the company must give reasons as to why it decided to join the cartel in the first place. This would have to be assessed by a specific panel, composed of experts in competition law, who will deal particularly with this task. Furthermore, in order for companies to be eligible for the program and get a fine reduction they need to clarify their commercial purposes. A clear plan that excludes the aim of gaining competitive advantage will increase the applicant’s credibility before the Commission and thus increase the chance of getting a reduction. At the same time, if the possibility of being eligible for a reduction is minimised in such a way, the companies will be more discouraged from joining the cartel. Moreover, third parties, such as other companies, must be allowed to support or submit evidence in regard to the company’s declaration. Consequently, if the applicant’s statement turns out to be untrue, the fines must be reimposed without a possibility of reduction.

VII.

CONCLUSION

The aim of this article was to familiarize the reader with the concept of economic cartels and the current state of the LP, and its shortcomings. Firstly, the article started by giving a description of cartels and presented the degree of damage that cartels cause. Furthermore, it discussed how the EU legislators have approached the issue of detecting cartels by creating the LP and encouraging cartelists to cooperate in the detection process. In essence, the LP allows cartelists to report the cartel in which they partake, against a full or partial fine reduction, depending on whether or not they provide valuable information, or whether they were the cartel leader and etc. Although it is a helpful tool for the Commission, the LP has a number of gaps through which companies can utilize in a manner undesired by the authorities. The paper highlights these gaps along with the ways in which companies can use the LP to their advantage.

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a. Main takeaways

The context of the LP was explained and examined in the light of its current provisions of EC decisions, according to which, companies must act as independent economic operators and refrain from disclosing the information to each-other. What is important to note is that in these decisions showed that the European Commission is inclined to disregard the whole fact that the first reporters of the cartel have been willingly participating in the cartels for years, for as long as they provide evidence to take the cartel down. Understandably, at first sight, this might appear as a reasonable trade-off, because cartel detection is quite difficult, not to mention the damage that the existence of cartels brings to society. However, this might send the wrong message to the companies by telling them that they can partake in cartels and gain the benefit thereof, for as long as they report to the Commission at the right stage. More importantly, we saw that a company might decide to become the first reporter because a full fine reduction can put it into a financial advantage in relation to its partners. The specifics of this financial advantage were assessed in light of the harshness and the payable amounts of the fines that the Commission imposes on cartelists. We discussed a number of research projects in which several authors pointed out that cartelists who have participated in a cartel more than one time, or as commonly referred, repeat offenders, are likely to be more familiar with the LP and have developed methods to take advantage of it. For instance, they are likely to acquire skills on reporting faster and providing valuable information to the authorities. Furthermore, we discovered that there is no current legislation that penalises repeated cartel participation. As a result, this gap allows companies to continuously participate in cartels and be the first reporters so as to escape liability and put the rest of the co-perpetrators in a financial disadvantage. As such, through the lack of legislation, these companies can illegitimately strengthen their position in the market. This indicates that there is indeed a possibility for companies to view and use the LP as a way to economically outperform their partners, a form of use which must be classified as an anti-competitive behaviour.

b. Solutions

This article presented a number of ways to address this phenomenon. Namely, the first measure is that the Commission must stop granting fine reductions to repeat offenders. Furthermore, upon an investigation or upon the reporting phase, the Commission must heavily 2020 issue 1 ILSA Law Journal

scrutinise companies and request them to sign an affidavit in which they state that this report is not initiated in bad faith. This needs to be supported by credible evidence and listed reasons as to why the company decided to join the cartel in the first place. Initially, companies might find it hard to provide such evidence. However, due to it being a requirement, they will be inclined to make internal policies transparent and checks so that they can actually afford to be the first reporters. This will filter out genuine companies from those that aim at gaining an undesired competitive advantage through loopholes.

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The EU-Vietnam Investment Protection Agreement: Analysing the Scope of the Agreement and National Treatment By Tanvir Rai Singh*

INTRODUCTION

Vietnam is the second Asian country, after Singapore,1 to sign a trade and investment agreement with the European Union (“EU”). 2 While opinions regarding its desirability from a human rights perspective differ, 3 it should be noted that the EU is the 5th largest direct investor in Vietnam, having invested more than 23.927 billion US dollars by the end of 2018. 4 Negotiations for this agreement lasted from 2012 until 2015, after which it was divided into two parts: (1) the Free Trade Agreement (“FTA”),5 and, (2) the Investment Protection Agreement (“IPA”). 6 This apportionment is due to the division of the competences between the EU and its Member-States as embedded in the Treaty on the Functioning of the European Union (“TFEU”).7 A consequence of the division is that the international agreements made by the EU are to be separated into a part which contains competences exclusive to the EU 8 and a part which contains shared competences (and therefore must be concluded and ratified by the

LL.B. Graduate International and European Law Program, The Hague University of Applied Sciences, Junior Customs & Trade Compliance Consultant at AEO Now B.V. 1 European Commission, ‘EU-Singapore Trade and Investment agreements (November 2019) <https://trade.ec.europa.eu/doclib/press/index.cfm?id=961> accessed 27 April 2021 2 European Commission, ‘EU-Vietnam Trade and Investment Agreements’ (24 September 2018) <http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437> accessed 21 April 2021. 3 Human Rights Watch, 'Joint NGO Letter on EU-Vietnam Free Trade Agreement' (4 November 2019) <https://www.hrw.org/news/2019/11/04/joint-ngo-letter-eu-vietnam-free-trade-agreement> accessed 21 April 2021.: “ 4 Delegation of the European union to Vietnam, 'Guide to the EU-Vietnam Trade and Investment Agreements'(2018) <https://eeas.europa.eu/sites/eeas/files/eu_fta_guide_final_3.pdf> accessed 21 April 2021, Pag 18. 5 European Commission, ‘Free Trade Agreement between the European Union and the Socialist Republic of Vietnam’(24 September 2018) <http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437> accessed 21 April 2021. 6 European Commission, ‘Investment protection agreement between the European Union and its Member States and the Socialist Republic of Vietnam’ 24 September 2018) <http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437> accessed 21 April 2021. 7 Consolidated Version of the Treaty on the Functioning of the European Union [2020] OJ C202/1 art 3-6. 8 ibid art 3.

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EU as well as its Member-States).9 The trade and investment agreement was signed in June 2019 and is in the process of ratification by all the EU Member-States.10 Due to its scale and impact, this IPA has required significant time and attention to ensure indented scope and interpretation of its articles. This is important for the host state, as a broad or ill-drafted IPA could potentially result in investment disputes. 11 It is therefore in the interest of the parties that the IPA is well defined and narrowly interpreted by tribunals, as tribunals have taken different approaches when interpreting treaty standards. A well-defined and narrow application of treaty standards could prevent unexpected interpretations which could broaden the scope and result in adverse effects for the treaty parties. One way to provide a narrow and well-defined standard is by limiting to what investors the IPA applies to. By imposing more requirements and narrowly defining its scope, an IPA can limit the scope of application, as well as provide less room for unexpected and broadening interpretations by tribunals. This scope of application, in turn, is significant for the standard of National Treatment (NT), as it compares foreign and domestic covered investors and investment to establish potential violations.12 Keeping that in mind, I shall analyse the scope of the IPA and the standard of NT, focussing on the clarity of the wording as well as the guidance and possible grey areas tribunals may face or encounter when interpreting these notions. Thereafter, a brief conclusion shall be provided.

II.

THE SCOPE OF THE IPA

The first article of Chapter two of the IPA13 sets out the scope of application as follows: “This Chapter applies to (a) covered investment, and (b) investors of a Party with respect to the operation of their covered investment.” 14 To analyse the scope of application in detail, this definition can be broken down into three parts: (1) who/what are investors of a Party, (2) what

ibid., art. 4 – 6 and Opinion 2/15 (16 May 2017) ECLI:EU:C:2017:376 https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX%3A62015CV0002%2801%29 accessed 27 April 2021. 10 Geert bourgeois, 'EU-Vietnam Investment Protection Agreement’ (23 October 2020) <https://www.europarl.europa.eu/legislative-train/theme-a-stronger-europe-in-the-world/file-eu-vietnamipa> accessed 30 November 2020. 11 Prabhash Ranjan and others, India’s model Bilateral investment treaty: Is India too risk averse? (Brookings India IMPACT 2018) 9. 12 European Commission (n 6), art 2.1, art 2.3. 13 ibid., Chapter II: investment protection. 14 European Commission (n 6), art 2.1. 9

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is a (covered) investment, and (3) what does the operation of a covered investment mean. Each part shall be discussed separately below. a. Investors of a party

An investor of a party can either be a natural or juridical person, who has made an investment in the territory of the other party. 15 This part of chapter one shall focus on how natural and juridical persons are defined in the IPA as well as how tribunals may interpret these notions. i.

Natural Persons of a Party

The IPA states that the domestic laws and regulations of the parties determine the definition of natural persons, and notes that non-citizens permanently residing in Latvia having a non-citizen passport are included.16 This is important as non-citizens who permanently reside in Latvia that

have non-citizen passports are not considered nationals of Latvia, and

accordingly are not considered as citizens of the European Union. 17 States have sovereignty to set conditions for granting nationality, as found in international law 18 and reflected in, for example, the Nottebohm case.19 While this is true, some tribunals have found themselves empowered to decide on the issue of nationality, despite requirements being present in the national law of the State party in question. 20 While great weight should be accorded to the applicable national laws, 21 tests used to determine nationalities by tribunals may differ. 22 Treaties, however, have the ability to impose additional

ibid., art 1.2(a) European Commission (n 2). 17 European Parliament, 'Parliamentary questions' (15 November 2004) <https://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2004-2192&language=EN> accessed 14 April 2021. 18 League of Nations, ‘Convention on certain Questions relating to the conflict of nationality laws’ Ch.1, art 1 (12 April 1930) <http://eudocitizenship.eu/InternationalDB/docs/Convention%20on%20certain%20questions%20relating%20to%20the%20 conflict%20of%20nationality%20laws%20FULL%20TEXT.pdf> accessed 21 April 2021. 19 Affaire Nottebohm (Liechtenstein v Guatemala) (Judgment) [1955] ICJ Rep 131. para 4. 20 Hussein Nuaman Soufraki v The United Arab Emirates, decision on annulment, ICSID-ARB/02/07 <https://www.italaw.com/cases/1041> accessed 21 April 2021. 21 ibid., para 44. 22 Marvin Roy Feldman Karpa v United Mexican States,interim decision on preliminary jurisdictional issues ICSID ARB (AF)/99/1 <https://www.italaw.com/cases/435> accessed 21 April 2021. 16

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conditions for nationality, which must be met cumulatively with those found in national laws and regulations.23 This results in less room for tribunals to apply a test unforeseen by the parties, as the scope is narrowed down, giving more legal certainty to the drafting parties and investors. This IPA, however, does not include any additional conditions to determine nationality on top of domestic laws and regulation. It does, however, broaden the scope somewhat by including non-citizens permanently residing in Latvia.24 This lack of additional requirements could result in a greater discretion for tribunals to adopt tests unforeseen by the parties in cases where nationality is disputed. Furthermore, the IPA is also silent on dual nationality. 25 While it is true that dualnationals are prohibited from bringing claims under the International Centre for Settlement of Investment Disputes (“ICSID”) Convention, 26 some tribunals have taken a different approach.27 The IPA’s silence on this has the potential risk of broadening the scope so as to include dual nationals to be able to bring cases Lastly, the IPA is silent on the rights of third-country nationals with permanent residence permits or dominant and effective domicile in the contracting parties’ territories. 28 Considering the absence of additional requirements for nationality in the IPA itself, this could also have a potential broadening effect, such as taken, for example, in the Serafín García case.29 In the latter case, the tribunal concluded that if the countries to the treaty want an exclusion on a treaty protection, they would have to expressly include it in the text of their treaty. 30 A similar

‘Investment treaty between the Republic of Singapore and the Republic of Peru on the promotion and protection of investments’ <https://investmentpolicy.unctad.org/international-investment-agreements/treatyfiles/2561/download> accessed 21 April 2021. 24 European Parliament (n 17). 25 Oxford Dictionary, ‘Dual Nationality’<https://www.lexico.com/definition/dual_nationality> accessed 21 April 2021. 26 International Centre for the Settlement of Disputes, ‘International Convention on the Settlement of Investment Disputes, Regulations and Rules’ (2006) <https://icsid.worldbank.org/en/documents/icsiddocs/icsid%20convention%20english.pdf> accessed 21 April 2021, art 25(2)(a). 27 Champion Trading Company, Ameritrade international Inc. v Arab Republic of Egypt, decision on jurisdiction, ICSID ART/02/9 (2003) <https://www.italaw.com/sites/default/files/case-documents/ita0147.pdf> accessed 21 April 2021. contradicted as found in Eva Paloma Treves, ‘investment treaty arbitration: dual nationals are now welcome: a way out of ICID’s Dual Nationality exclusion’ [2018] 49(2) New York University Journal of International Law and Politics 607 – 618 understanding the case Serafín García Armasa and Karina García Gruber v. Bolivarian Republic of Venezuela, PCA 2013-3, decision on jurisdiction 2014. 28 European Commission (n 6) art 1.2(a) 29 Treves (n 27). 30 ibid. 23

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approach could be adopted in relation to the rights of third-country nationals and could accordingly have the unintended effect of broadening the scope of the IPA. ii.

Juridical Person of a Party

Before the IPA defines juridical persons of a party (which is included in its scope) it defines what juridical person is (which does not fall within its scope). The IPA defines juridical persons as any legal entity under applicable law, whether private or governmentally-owned and whether for profit or not, after which an illustrative list is given. 31 While I shall not discuss this, the inclusion of the latter provides a general idea and clarification of what is and is not covered by the IPA. A juridical person of a party must be set up in accordance with the domestic laws and regulations, and engage in substantive business operations within the territory of such party.32 A juridical person can either be set up in accordance with the so-called incorporation theory,33 or real seat theory. 34 Which theory applies is found in the domestic laws and regulations of the EU Member-States and Vietnam. The parties have, furthermore, agreed that substantive business operations shall have the meaning equivalent to ‘effective and continuous link with the economy’ as enshrined in EU primary law. 35 This means that juridical persons formed in one Member-State and having its registered office, central administration, principal place of business, branch or agency in the EU, 36 shall be treated the same way as natural persons of other Member States.37 This also means that an ‘effective and continuous link with the economy’ of an EU Member-State is met when a mere factual link between the juridical person and a Member State’s legal system exists. 38 The parties then go on to explain that Vietnamese juridical persons having a registered office or central administration are excluded from the

European Commission (n 6) art 1.2(b) ibid., art 1.2(c). 33 Nicola De luca, European Company law: Text, Cases and Materials (1st edn, Cambridge University Press 2017) 14. 34 ibid. 35 European Commission (n 6) art 1.2(c) and TFEU (n 7) art 54. 36 TFEU (n 7) and C-337/08, X Holding [2010], EU:C:2010:89. <https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62008CJ0337&from=NL> accessed 27 April 2021 para 17 and C-307/97 Saint-Gobain ZN [1999] ECR I-6161 para 35. 37 ibid. 38 Karl P. Sauvant, Yearbook on International Investment Law & Policy (Oxford University Press 2011) 178. 32

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scope of application unless an effective and continuous link with the economy of Vietnam exists.39 Considering this, the conditions for EU juridical persons are broader and more inclusive as only the condition to be set up in accordance with the applicable law and having an effective and continuous link with the economy of the EU must be met. On the other side, the conditions for Vietnamese juridical persons are narrower and more exclusionary (as certain juridical persons are excluded). It should be noted that the notion of territory plays an important role and shall be discussed in section 1.2.1.1. Furthermore, companies have tried to take advantage of IPAs or clauses in the past by changing their corporate structures, known as Nationality Planning. 40 Such practice is generally not allowed if the primary objective is to benefit from a particular (investment) agreement or clause for the enforcement of the latter against a State.41 One way to limit Nationality Planning is by imposing more requirements as to who falls under the scope of the IPA, which is clearly reflected in the requirements set by the IPA. Considering the analysis above, the risk of Nationality Planning is significantly bigger against Vietnam, as the IPA is more lenient towards EU juridical persons. The parties go on to explain the definitions of owned and controlled juridical persons. To establish ownership, at least 50% equity interest should be beneficially owned by a natural or juridical person of one of the parties. 42 On the other side, to be controlled by a natural or juridical person of a party means to have the power to name a majority of directors or otherwise legally direct its actions.43 In early cases of the International Court of Justice (“ICJ”), shareholders controlling juridical persons were not able to rely upon their nationality, thereby excluding locally incorporated companies from protection. 44 While this case did not concern investments, some investment tribunals have taken an approach in line with the latter. 45 Other tribunals, however,

European Commission (n 6). Mark Feldman, Setting Limits on Corporate Nationality Planning in Investment Treaty Arbitration (Foreign Investment Law Journal 2012). 41 Mobil corporation v Venezuela holding, award, <https://www.italaw.com/cases/713> accessed 21 April 2021, s 27 42 European Commission (n 6) art 1.2(c). 43 ibid. 44 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 337. 45 Enron Corporation and ponderosa assets L.P v the Argentina Republic <https://www.italaw.com/sites/default/files/case-documents/ita0290.pdf> accessed 21 April 2021 para 35. 40

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have held that the inclusion or exclusion of shareholders is dependent on the agreement between the parties, which may or may not include conditions for such. 46 Therefore, it can be concluded that shareholders, regardless of the percentage of shares held, are able to bring claims, unless provided differently. As seen above, the IPA poses conditions such as 50% for ownership and a majority for control, thereby excluding minority shareholders and significantly limiting its scope of application in favour of the host state. In summary, the treaty leaves some room for interpretation when it comes to natural persons, however, is much more specific and restricting when it comes to the scope of juridical persons. b.

Covered Investment

Having discussed the notion of “investors”, this part deals with what a covered investment is. It should be noted that the term investment and covered investment have different meanings. The difference is that the term investment looks at what constitutes an investment, whereas a covered investment assesses whether or not an investment is covered under the treaty in question. In other words, a covered investment limits the scope of investments subject to protection. Therefore, I shall first look into the notion of ‘investment’ under the IPA and thereafter assesses what a covered investment under the IPA is.

Investment

States are free to determine the definition of investments, as customary international law is silent on the latter.47 This IPA takes a so-called asset-based approach to determine investments. Namely, it describes categories of investments, four substantive investment

Azurix Corp. v The Argentine Republic, decision on jurisdiction <https://www.italaw.com/cases/118> accessed 21 April 2021 paras 65 and 73; this is also true for minority shareholders where no limit has been included in the treaty itself: CMS Gas Transmission Company v The Republic of Argentina, decision on objections to jurisdictions <https://www.italaw.com/sites/default/files/case-documents/ita0183.pdf accessed 27 April 2021>, 798, para 56. 47 C. Benson, P. Madden and C Knoebel, The Investment Treaty Arbitration Review: “Covered Investment” (Law Business Research 2016), <https://www.gibsondunn.com/wp-content/uploads/documents/publications/BensonMadden-Knoebel-Chapter-1-Covered-Investment-The-Investment-Treaty-Arbitration-Review-Law-BusinessResearch-2016.pdf> accessed 27 April 2020 chapter 1.

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characteristics, and an illustrative list of six examples.48 It should be kept in mind, however, that the ICSID Convention 49 also provides an autonomous definition of investment that must be met cumulatively by an investor before bringing a claim. 50 Each of the foregoing elements of investments shall be discussed below in the following order: (1) investment, (2) substantive characteristics, and, (3) the illustrative list.

1. Investments An investment is understood as any kind of asset which is (in)directly owned/controlled by an investor, in the territory of the other party. 51 Each of these terms shall be discussed below. While the term asset is not defined by the IPA, it has the ordinary meaning of anything of value, which is rather broad.52 To limit the scope, the IPA requires characteristics and gives examples, as will be discussed in part 1.2.2 and 1.2.3 below. As to direct control and ownership (discussed in section 1.2), the same requirements apply to indirect control and ownership.53 The inclusion of indirect ownership and control is important, as tribunals may otherwise exclude this. 54 The IPA is therefore clearer, making sure that it does not have any unintended interpretation. However, as seen above, the requirements for (in)direct control and ownership are high and therefore have a limiting effect on the scope. Lastly, the parties have agreed that their territory comprises of their exclusive economic zones and continental shelves. 55 This poses a clear territorial restriction to the application, as

European Commission (n 6) art 1.2(h) and J.W. Salacuse, ‘The law of investment treaties’, Oxford international library, 2nd edition, May 2015, 180. 49 ICSID Convention, Regulations and Rules. Washington, D.C.: International Centre for Settlement of Investment Disputes, 2003, <https://icsid.worldbank.org/en/Documents/icsiddocs/ICSID%20Convention%20English.pdf>, accessed 22 December 2019. 50 ibid., art 25 and Malaysian Historical Salvors v The Government of Malaysia, award on jurisdiction, ICSID ARB/05/10 <https://www.italaw.com/sites/default/files/case-documents/ita0496.pdf> accessed 27 April 2021, para 55. 51 European Commission (n 6) art 1.2(h). 52 Cambridge Dictionary, ‘Asset’ <https://dictionary.cambridge.org/dictionary/english/asset> accessed 21 April 2021. 53 Siemens v The Argentine Republic, Decision on jurisdiction ICISD-ARB/02/8, para 136. 54 Standard Chartered Bank v United Republic of Tanzania, award, ICSID-ARB/10/12 <https://www.italaw.com/sites/default/files/case-documents/italaw1184.pdf> accessed 21 April 2021 §167 55 United Nations Convention on the Law of the Seas (Adopted 10 December 1982, entered into force 1 November 1994) 1833 UNTS 397. 48

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tribunals have a history of examining the nexus between the investment and the jurisdiction, whether such limitation is included or not. 56 Therefore, the inclusion provides more legal certainty as to what is required to be considered an investment. 2. Substantive Characteristics As discussed in section 1, the IPA stated that investments should have the following characteristics: (1) the commitment of capital or other resources, (2) the expectation of gain or profit, (3) the assumption of risk, and (4) a certain duration. 57 These characteristics closely resemble the criteria in the Fedax58 and Salini59 cases, as well as article 25 of the ICSID Convention.60 As to the first requirement, it is notable that a commitment of capital or other resources does not need to be substantial, unlike the aforementioned cases. While the latter will be specific to each case, 61 the IPA lowers the threshold, as any kind of commitment will be sufficient. This, therefore, broadens the scope by describing an inclusive characteristic. As to the second requirement, there is no need for regularity of gain or profit, unlike Fedax and Joy Mining.62 This would have the effect that mere expectation of gain/profit is sufficient, which has the ordinary meaning of a feeling or expecting something to happen. 63 How this feeling of an investor can be interpreted ex post facto, is highly circumstantial and leaves a great amount of grey area and discretion to the tribunal, as no further guidance is given by the IPA.

Philippe Gruslin v Malaysia, award ICSID-ARB/99/3 <https://www.italaw.com/cases/515> accessed 21 April 2021 para 21. 57 European Commission (n 6) art 1.2(h). 58 R. Dolzer and C. Schreuer, Principles and Rules of International Investment Law, (Oxford University Press, 2012), p. 66 summarizing Fedax v Venezuela, decision on jurisdiction paras 21-33. 59 ibid, p. 248, summarizing Salini Costruttori SpA et Intalstrade SpA v Morocco, decision on jurisdiction, para 53. 60 ICSID Convention (n 49) art 25. 61 Joy mining Machinery Limited v The Arab Republic of Egypt, award on jurisdiction ICSI-ARB/03/11 <https://www.italaw.com/sites/default/files/case-documents/ita0441.pdf> accessed 27 April 2021, para 47. 62 Michael hwang sc and Jennifer fong lee cheng, 'Definition of “Investment”—A Voice from the Eye of the Storm' [2011] 1(1) Asian Journal of International, <https://www.cambridge.org/core/journals/asian-journal-ofinternational-law/article/definition-of-investmenta-voice-from-the-eye-of-thestorm/7308610FFDDFCC1A9A7F1ED8EA26223D> accessed 14 April 2021. 63 Cambridge dictionary, ‘expectation’ <https://dictionary.cambridge.org/dictionary/english/expectation> accessed 27 April 2021.

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As to the third characteristic, the notion of risk has been interpreted differently by scholars and tribunals. Where some state that risk is associated with an enterprise, 64 some have held that a commercial risk is not sufficient, 65 and yet others have included the State’s failure to perform.66 The lack of guidance in the IPA leaves every possibility open for interpretation, either following a previous interpretation of risk or adopting a new one. This, therefore, could broaden the scope of the IPA. As to the last requirement, there have been attempts to set a minimum duration for investments.67 Such standard, however, is not included in this IPA. As this requirement must be able to distinguish between what duration is sufficient for an investment and what is not, the non-inclusion leaves this to be circumstantial and therefore is subject to the interpretation of the tribunal at hand, giving significant grey area and discretion to interpret the term duration. This list of characteristics is not exhaustive; however, the stated conditions must cumulatively be met due to the word “including”. This could have as consequence the requirement of other characteristics, creating discretion for tribunals when interpreting ‘investment’. Where some tribunals have used characteristics as guidelines 68, others have declined jurisdiction when not cumulatively met. 69 As there have been no cases in regard to the IPA of this, how this will be interpreted remains a question.

3. Illustrative List The IPA provides an indicative list of what forms an investment may take. 70 This paper shall only discuss the most notable aspects of the latter.

Sébastien Manciaux: ‘the notion of investment: new controversies’ <https://www.eisourcebook.org/cms/files/attachments/other/Investment,%20New%20Controversies.pdf> accessed 27 April 2021, 13, footnote 58 quoting D. Carreau and P Julliard, Droit international économique, 4th edition, 1998, 1083 65 Malaysian Historical Salvors v The Government of Malaysia (n 50) §112. 66 Ibid R. Dolzer and C. Schreuer (n 58) Fedax N.V v the Republic of Venezuela, ARB/96/6, decision on objections jurisdiction para 40. 67 Salini Contruttori S.P.A and Italstrade S.P.A v The Kingdom of Morocco, decision on jurisdiction ICSIDARB/00/4 <https://www.italaw.com/sites/default/files/case-documents/ita0738.pdf> accessed 27 April 2021, §54 68 Ambiente Ufficio S.P.A and others v the Argentine Republic, decision on jurisdiction and admissibility, ICISDARB/08/9 <https://www.italaw.com/sites/default/files/case-documents/italaw1276.pdf>, accessed 27 April 2021, para 181. 69 Madden and Knoebel (n 47). 70 European Commission (n 6) art 1.2 (h). 64

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Firstly, when including the form of enterprises, the treaty explicitly excludes representative offices (see section 1.1.2). This closes any loopholes on which representative offices may be covered and consequently narrows down the scope of the IPA. Secondly, the IPA excludes claims to money arising from commercial contracts for the sale of goods or services or the financing of contracts other than loans included in the article, thereby giving this illustrative list a closed-list approach as to claims to money. The parties also included that orders, judgements or arbitral awards awarding the latter are excluded, making such rendered decisions unenforceable. This again results in the narrowing down of the scope of investments. Thirdly, in relation to IP rights, the minimum rights shall be as included in the TRIPS agreement,71 leaving the parties open to adopt a higher standard of protection if they wish to do so. Therefore, there are some closed lists included in this article, excluding everything else, thereby limiting the scope of investments. Lastly, the parties touched upon invested returns including reinvestments, as they shall be treated as investments for as long as the characteristics of investments are met. 72 The obligation for meeting the characteristics is discussed above (section 1.2.1.2). The inclusion of this ensures that invested returns are defined and poses cumulative requirements, having a limiting effect on the ability of tribunals to interpret the latter.

4. Covered investment In order for an investment to be a covered investment, it must have been in existence on the day of entry of force of this agreement. Additionally, investments that are made or acquired after the IPA has come into effect will also be considered covered investments, on the condition that such are made in accordance with the applicable laws and regulations of the parties.73 This makes it clear that investments made before the treaty entered into force are covered as well, while excluding all previous or newly made investments which are not in accordance with the applicable laws and regulations (i.e. illegal investments). It is well

ibid. ibid. 73 ibid., art 1.2 (q). 72

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established that, unless provided differently, treaties do not apply retroactively. 74 While this is true, it cannot be said to be an absolute exclusion to continuing breaches, 75 while some tribunals disagreed.76 It is also understood that the steps taken before or at the time of the investment are not covered by this.77 How this is to be interpreted by a tribunal remains unclear as no further guidance is provided by the IPA. Secondly, the agreement excludes illegality. Some tribunals, however, have held that non-trivial violations do not amount to an exclusion from the protections of the agreement. 78 Violations of investment regimes and fraud, 79 as well as violations by States, do meet the standard of illegality.80 However, how to determine the distinction between trivial and nontrivial violations of national law is not included in this IPA. This leaves it up to the tribunal to decide on this, with great discretion. c. The operation of a covered investment

Having discussed who/what investors are and what a covered investment is, this part shall look at what the operation of a covered investment entails. Operation has been defined as the conduct, management, maintenance, use, enjoyment, sale or other type of disposal of the investment. 81 This definition has the effect of limiting the circumstances in which investments are protected as the list provided is partly exhaustive, apart from ‘other types of disposal’. What criteria should be met for other disposals and what limits (if any) are posed on such are not included and consequently left open for interpretation by the tribunal.

United Nations, Vienna Convention on the Law of Treaties, Treaty Series, vol. 1155 <http://www.refworld.org/docid/3ae6b3a10.html> accessed 24 December 2019 art 28. 75 Société Générale v The Dominican Republic, award on preliminary objections to jurisdiction LCIA-UN/7927 <https://www.italaw.com/sites/default/files/case-documents/ita0798.pdf> accessed 27 April 2021, para 94. 76 Ping An life Insurance v Kingdom of Belgium, award, ICSID-ARB/12/29, paras 189-190. 77 Mihlay international corporation v Democratic socialist republic of Sri Lanka, award, <https://www.italaw.com/cases/documents/703> accessed 27 April 2021, para 34. 78 Tokios Tokelés, v Ukraine ICSID-ARB02/18 <https://www.italaw.com/cases/1099> accessed 27 April 2021, §86 79 Saba Fakes v Republic award, ICSID-ARB/07/20 <https://www.italaw.com/cases/429> accessed 27 April 2021, para 117. 80 World Duty Free Co. Ltd. V Republic of Kenya, award ICSID-ARB/007/7, <https://www.italaw.com/cases/3280> accessed 27 April 2021. 81 European Commission (n 6) art 1.2(h).

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Having discussed the scope of application, it should be noted that the IPA does not apply to (1) the social security system of the parties, even when investors/investments are only occasionally linked to such, (2) access to employment markets, and (3) citizenship or residence.82 Considering the scope of this paper, these shall not be discussed, apart from the limitations relating to NT shall be discussed below (chapter 2.2). To conclude Chapter 1, the analysis done above shows that the notion of ‘scope of the IPA’ includes several components which are well defined and limit a broad interpretation: the notions of control and ownership, the definition of territory, the list of characteristics and the notion of operation of a covered investment. There were also several aspects that were illdefined and leave room for a tribunal to interpret them: the notion of assets, the characteristics an investment must encompass and the definition of covered investments.

III.

NATIONAL TREATMENT

The IPA includes the obligation of NT and is defined as: “each party shall accord to investors of the other party and to covered investments, with respect to the operation of the covered investments, treatment no less favourable than it accords, in like situations, to its own investors and to their investments” 83, after which exceptions are provided. 84 This paper first discusses the scope of application of the article and thereafter the exceptions. a. Scope of Application

As seen above, NT contains several terms which need to be defined: (1) the investors and investments compared, (2) like situations, and (3) less favourable treatment. Each of those shall be discussed below.

ibid., art 1.2. ibid., art 2.3. 84 ibid. 83

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The Investors and Investments Compared

The IPA compares investors and covered investments of the home state (with respect to the operation of the covered investments) to investors and their investment of the host state. The notion of investors, covered investments and the operation of such (see chapter 1), pose significant limitations to the scope of application of NT.

ii.

Like Situations

The IPA states that, in order to be covered by NT, situations must be alike. The likeness of a situation is, however, highly circumstantial. Tribunals have taken different approaches to determine the likeness of situations; some have taken a narrow approach while others have understood likeness in a broader way. A narrow approach can be seen where tribunals have looked at the line of business to ascertain likeness,1 and excluded that being a litigant in the same case was sufficient. 2 Some tribunals have taken a broader approach by considering businesses and economic sectors. 3 A broad approach was taken in, for example, the Occidental4 case, where the tribunal looked at domestic producers in general rather than sector-specific investments.5 Other tribunals have taken an approach commonly seen in WTO cases, 6 taking

Marvin Feldman v Mexico, ARB(AF)/99/1 <https://www.italaw.com/sites/default/files/casedocuments/ita0319.pdf> accessed 27 April 2021, para 172. 2 The Loewen Group Inc. And L. Loewen v United States of America, award, ARB(AF)/98/3, <https://www.italaw.com/sites/default/files/case-documents/ita0470.pdf> accessed April 27 2021, para 140/ 3 Pope &Talbot Inc. v Canada, award on merits (phase 2), <https://www.italaw.com/sites/default/files/casedocuments/ita0678.pdf> accessed 27 April 27 2021, 35, para 78. 4 Occidental Exploration and Production Company and The Republic of Ecuador, award <https://www.italaw.com/sites/default/files/case-documents/ita0571.pdf> accessed April 27 2021 5 ibid 60 para 173. 6 DS308, Mexico Tax Measures on Soft Drinks and Other Beverages <https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds308sum_e.pdf> accessed April 27 2021.

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into account the way investments were taxed. 7 The latter approach has however been subject to critique.8 This IPA does not provide any guidance as to how to interpret like situations, giving the tribunal the discretion to interpret likeness in a manner which it deems appropriate. This could have as consequence the adoption of an interpretation contrary to the party’s intentions or broaden or narrow the scope of application. iii.

Less Favourable Treatment

As NT is an obligation not to discriminate on the basis of nationality, a less favourable treatment occurs when a foreign investor/investment has been discriminated against vis-à-vis the national investor/investment. 9 Investment tribunals have taken different approaches to the notion of discrimination. Some tribunals have held that a de facto discrimination (the effect of being discriminatory) is sufficient to be considered a less favourable treatment,10 thereby not requiring a discriminatory intent.11 However, other tribunals have held that there cannot be a de jure discrimination12 without a de facto discrimination.13 The weight afforded to discriminatory intent and whether or such is required or not, has different effects on the potential success of a claimant to prove a violation of NT. If both intent and de facto discrimination are required, the burden to proof is higher, limiting protections for the investor. By contrast, if only de facto discrimination is required and intent is taken into consideration, a violation is easier to prove, providing a higher

Sergei Paushok, CJS Golden East Company and CJCS Vostokneftegaz Company v the Government of Mongolia, award on jurisdiction and liability <https://www.italaw.com/sites/default/files/case-documents/ita0622.pdf> accessed April 27 2021, 69, para 311. 8 M. Sornarajah, ‘The International Law on Foreign Investment’ <https://www.cambridge.org/core/services/aopcambridge-core/content/view/F6DA69E7F09DF65DB129D68E30262037/9780511841439c5_p172235_CBO.pdf/bilateral_investment_treaties.pdf> accessed April 27 2021, 203. 9 Aceris law LLC, 'The National Treatment Standard – Investment Arbitration' (Aceris Law firm: international arbitration Law firm, 04 October 2018) <https://www.acerislaw.com/the-national-treatment-standardinvestment-arbitration> accessed 14 April 2021. 10 International Thunderbird Gaming Corporation and The United Mexican States, award <https://www.italaw.com/sites/default/files/case-documents/ita0431.pdf> accessed 27 April 2021, para 177. 11 S.D Myers Inc. And Government of Canada, partial award <https://www.italaw.com/sites/default/files/casedocuments/ita0747.pdf> accessed 27 April 2021, para 252. 12 Cambridge dictionary ‘having a rights or existence as stated by law’ <https://dictionary.cambridge.org/dictionary/english/de-jure> accessed 27 April 2021. 13 Methanex Corporation v United States of America, final award <https://www.italaw.com/sites/default/files/case-documents/ita0529.pdfU> accessed 27 April 2021, part IV – chapter B, p.10, para 21.

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level of protection to an investor. It should be noted that tribunals have held that once a foreign investor provides evidence of less favourable treatment, the burden shifts to the host State to rebut or provide justifications.14 Investment tribunals have also taken steps to clarify the meaning of ‘less favourable’. In Pope and Talbot15, for example, the tribunal held that the NT obligation required a treatment equal to the best treatment accorded to national investors/investment, not better or worse.16 This statement clarifies that the scope of the treatment to be afforded is limited and cannot be broadened to treatment better than nationals, however, it poses an obligation to accord the best treatment. The IPA at hand does not provide guidance on how to interpret discrimination or what less favourable entails. This could result in the tribunal applying either a broad or narrow interpretation as to the requirements for discrimination, significantly expanding or decreasing the protections afforded to investors and investments. As the scope of less favourable treatment, a tribunal could follow the interpretation in Pope and Talbot or limit or expand the scope. b. Exceptions

The IPA poses several limitations as the NT; general exceptions to the scope of application (as briefly mentioned in the introduction to part 1) and limitations included in the article covering NT.17 This section shall discuss each separately below.

General Exceptions

The IPA, when discussing its scope of application, excludes the application of NT (and Most-Favoured-Nation Treatment (MFN)) to a number of areas.18 The list provided is a closed list, from which this paper shall only discuss the most notable exceptions. Firstly, when discussing the mining, manufacturing and processing of nuclear materials, reference has been made to the International Standard Industrial Classification of all economic

Hussein Nuaman Soufraki v The United Arab Emirates (n 20) para 176. Pope &Talbot Inc. v Canada (n 87). 16 ibid., para 42. 17 European Commission (n 6) art 1.2 and 2.3. 18 European Commission (n 2) art 2.1.2. 15

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activities to explain what processing entails.19 What is notable from the wording is that the meaning of processing includes all the activities contained in the aforementioned international classification and therefore does not have a limiting effect. 20 This makes clear that the latter is non-exhaustive, however, no further guidance has been provided as to what, in excess of such, could be considered processing. This leaves room for the tribunal to interpret the word processing if not covered. Secondly, when discussing national maritime cabotage, it has been made clear that the scope is to be determined under domestic laws and regulations. In addition to the latter, the parties have clarified that it also covers the transportation of passengers or goods between the parties (including their continental shelf), traffic originating and terminating at the same port. 21 The inclusion of this gives national laws and regulations the power to determine its scope, which could differ in the EU Member-States itself. On top of that, it includes certain situations in which it applies, as such might or might not be included in the national laws or regulations. The parties also explain what the territorial application entails and the fact that the traffic originating and terminating at the same point is to be included as well, clarifying that there is no requirement of different locations to be considered traffic. This has as effect that the tribunal has little grey area to apply this article as it is well defined. Thirdly, regarding air transport services, the parties have extended the scope to any scheduled and non-scheduled services, thereby expanding the scope of application, including those directly related to the exercise of traffic rights. 22 The parties, however, go on to limit the scope by excluding certain situations, meaning that such will be subject to NT. 23 While the scope of this exclusion is broad, the parties have been very selective in narrowing it down. Consequently, the scope remains broad, in favour of the host state. When subject to interpretation, the tribunal has little grey area to assess what could be subject to NT. Lastly, the parties note that NT and MFN do not apply to subsidies granted by the parties. The parties further elucidate that the term subsidy has a different scope of application for the EU and Vietnam. For the EU, such term includes state aid as found in the Union law, 24 while for Vietnam it includes investment incentives and assistance after which an illustrative

European Commission (n 1). ibid. 21 European Commission (n 2). 22 European Commission (n 6) art 2.1.2 (e). 23 ibid., art (e), (i)-(v). 24 TFEU (n 7) art 107. 20

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list is provided which includes human resources training and market information and promotion, covering more investment specific areas compared to the EU meaning of subsidies.25 While the parties have given an idea of what subsidies cover, the word ‘includes’ indicates that the scope can be expanded by the tribunal as no other guidance is given. ii.

Exceptions included in article 2.3

Article 2.3 lays down three situations in which a party may adopt or maintain a measure, with respect to the operation of a covered investment (see section 1), thus being inconsistent with the EU’s schedule of specific commitments or Vietnam’s schedule of specific commitments and Annex 226 (exemption for Vietnam on NT on 16 fields). 27 What is notable from this Article is that Vietnam is exempted from more areas to give NT than the EU is. Each of the situations in which the parties can adopt measures inconsistent with their commitments shall be discussed below. First, a party can do so when made before or on the date of the entry into force of the IPA. While this sets a temporal limitation, it does not cover the effect of partial entry into force of the agreement. How a tribunal will interpret this, however, is unclear. Second, if such a measure is made before or on the date of entry into force and is being continued, replaced or amended, it must not be less consistent with the obligations discussed above. How ‘less consistency’ is to be determined, what the threshold for such is, what the requirements are and what factors are to be considered is unclear and left open to be determined by the Tribunal. Last, when a situation is not covered by the situations above, it should not cause any loss or damage to investments made before the entry into force of such measure, taking into account the phase-in period and other measures addressing the effects. The terms ‘loss’ and ‘damage’ are not defined, leaving it open to interpretation by the Tribunal. To conclude Chapter 2, the analysis done above shows that several aspects of NT are well defined and limit the scope: the investors/investments compared and the general exceptions. The notions of likeness and discrimination, as well as the exceptions included in article 2.3, were ill-defined and leave room for a tribunal to interpret them.

European Commission (n 106). European Commission, Annex 2, exemption for Vietnam on national treatment, <https://trade.ec.europa.eu/doclib/docs/2018/september/tradoc_157397.pdf> accessed 27 April 2021. 27 European Commission (n 6) art 2.3. 26

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IV.

CONCLUSION

This paper aimed to critically assess the scope and NT as enshrined in the EU-Vietnam IPA, focusing on the clarity of the wording as well as the guidance and grey areas the tribunals could have when interpreting these notions. To briefly recap, Chapter I dealt with the scope of the agreement. Considering the notion of natural persons, the IPA has been silent on a number of issues including additional conditions, dual nationality, permanent residents and persons with dominant or effective nationality. As seen above, tribunals have taken different approaches, which potentially can broaden the scope, to the disadvantage of the Host State. As to judicial persons, more requirements are included thereby narrowing down the scope significantly in favour of the host state. Regarding the notion of investment, the IPA contained four characteristics, all of which contained important terms which are undefined, broadening the scope. The notion of covered investments, however, excludes illegal investments but leaves open important terms such as what amounts to a violation of national law and what limits are posed on the disposal of an investment. Therefore, this could be disadvantageous for the host state. Chapter II focused on the NT standard. However, no guidance has been given on how to interpret likeness, less favourable treatment or discrimination, thereby broadening the scope. While the exceptions are broad in nature, such as territorial limitations and what is considered traffic as well as the specific exceptions included in the relevant article, some notions are still unclear, for example, partial application, and loss and damage. It would have been in the interest of the host state to secure the broad interpretation of these terms as well, to make sure the exceptions are interpreted as broadly as possible. Thus, the analysis done above showed that several aspects of the scope as found in the IPA are well defined and limit the scope: the notions of control and ownership, the definition of territory, the list of characteristics and the notion of operation of a covered investment. There were also several aspects that were ill-defined and leave room for a tribunal to interpret them: the notion of assets, the characteristics of investments and the definition of covered investments. As to NT, the following notions were well defined and limit the scope: the investors/investments compared and the general exceptions. The notions of likeness and discrimination, as well as the exceptions included in article 2.3, were ill-defined and leave room for a tribunal to interpret them. The ill-defined and broad aspects could have been narrowed down into more detail to prevent an interpretation from having adverse effects on the Host State. 2020 issue 1 ILSA Law Journal

2020 issue 1 ILSA Law Journal

ILSA Law Journal Issue 1 - 2021

Articles inside

By Myriam Hunfeld

By Max Marolt

Femicidal Futures: Expanding the Rome Statute By Georgia Delgado Fitzgerald

Acknowledgements

Table of Contents