A critical analysis of the Fifth Report of the Special Rapporteur on Immunity of State Officials from Criminal Jurisdiction

By Sujoy Sur

[This article is a critical analysis of the Fifth Report of the Special Rapporteur, Ms Concepción Escobar Hernández, on Immunity of State Officials from Criminal Jurisdiction, discussed during the 68th session of the International Law Commission. It was written as a part of an internship at the International Law Commission, Geneva during its 68th session in 2016]

The Report A/CN.4/701 can be accessed here. Since it is a lengthy report, a summary of the Report in the form of a conclusion drawn by the Special Rapporteur that there must be exceptions and limitations to the immunity of State Officials can be read onwards page 92 of the Report. This article is not a comprehensive critique of the Special Rapporteur’s report but a mere critique of the methods employed by the Rapporteur and the line of reasoning the Rapporteur tries to establish to make a case for exceptions to immunity of State officials in certain cases. Since diplomatic protection of State Officials is a customary norm, there is a prevailing trend of immunity in its favour, both in terms of Rationae Materie and Rationae Personae. The following analysis must be read in light of this established fact.Read More »

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Analysing the Legality of India’s ‘Surgical Strike’ under International Law

by Sujoy Sur

What happened?

India took military action at eight terrorist launch-pads across the LOC in Pakistan Occupied Kashmir (POK). India chose to tag the attack as a ‘surgical strike’, thus, implying the remedial nature of its action. It is to be noted that India in its official announcement did not deem it to be an act in retaliation to the Uri attacks but a military measure against the increasing incursions by non-state actors in the territory of India.

Image Courtesy: Indian Express

To look at the act from a layman’s point of view in light of prevalent international notions of territorial sovereignty, war, and military action, it seems to be a deliberate attempt of entering the territory of another state and carrying out targeted killings. Now that Pakistan has not owned up to it, that is, it has blatantly denied that any such measure was taken by the Indian army, it has reduced the measure to a general ceasefire violation, which is not uncommon in the region. Also, it means that the repercussions bilaterally will not be unforeseeable or grave. But, since top Indian officials have endorsed the act it comes under the purview of state practice under international law from India’s end. This calls for a pertinent question, whether India’s surgical strike was legal under international law?Read More »

Iraq accedes to ICSID: Signed and Ratified

by Sujoy Sur

Iraq has finally acceded to ICSID, and the sigh of finality is resounding because it is the first globally recognised and followed international arbitration framework to which it has acceded to. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) was signed today on behalf of the Republic of Iraq by H.E. Dr. Sami Raouf Al-Araji, Chairman of the National Investment Commission.[1]

ICSID Convention Signing_Iraq.jpg Read More »

The Syrian Refugee Crisis and the Hegelian Right of Recognition (or the anti-pseudo Hobbes-Locke-Rousseauian Right for Survival).

by Sujoy Sur

The international community was appalled when the photograph of a young Syrian boy, a refugee, whose boat had capsized in the process of migration from Syria across the Aegean sea, flooded the internet showing his dead body upside down on a beach of a Turkish Resort. The whole episode epitomizes the tragedy of the international system. War torn middle east battling violent demons resurrected by the ashes of the bridges and the houses burnt by the west is an online story which attracts quite an interest by dilettante netizens who empathise with the refugee crisis which they were not aware of till yesterday, or even if they were they did not notice it because the crisis did not have a face in the form of a young boy’s dead body.

Credits: IBTimesRead More »

Enclave-tion: It’s official!

by Sujoy Sur

At the stroke of midnight, as the clock struck 12, on the 31st of July 2015, a few more people in the already independent countries of India and Bangladesh tasted the air of legal and political independence. In a post earlier, we had in detail discussed about the issue of India-Bangladesh land border dispute with respect to enclaves; an issue which culminated on the 31st of July with the agreement finally becoming official. 14,000 people who were de-jure a part of Bangladesh were not in all capacities a part of India, factually and legally. These 14,000 people are spread over 51 enclaves which belonged to Bangladesh earlier and have become a part of India now. With respect to Bangladesh, there are about 37000, spread over in 111, enclaves who have now become a part of Bangladesh, factually and legally.Read More »

Al-Bashir, and Cursus Curiae of the ICC and South African Supreme Court.

By Sujoy Sur

South African executive’s open defiance of its Supreme Court’s order to arrest Omar Hasan Ahmad Al-Bashir is an issue which had attracted a great many concerns from many corners of the international arena, and rightly so. The concern is that Mr. Al-Bashir is an international criminal and South Africa, a country which  has signed the Rome Statute (ICC) and is a committed actor to international peace and security (member of UNSC and UN Charter), should have have acted in accordance with International law. Instead, South Africa invited Al-Bashir to the African Union summit and allowed him to leave the country despite the Court’s order.

Background

Omar Al-Bashir is the president of Sudan. Yes, the same country which got divided into two, into a new South Sudan, which went on to become the 193rd member of the UN General Assembly (UNGA). A referendum was held in January, 2011 in which majority of the population (99.83%) people voted for a South Sudan. The reason for it’s independence, so to speak, are intertwined with that Al-Bashir’s indictment. South Sudan was deeply affected by Civil Wars which had torn the region apart. The first Sudanese civil war lasted from 1955-1972, the improper culmination of which lead to a second Sudanese civil war from 1983-2005. Many atrocities were committed during this period, out of which Omar Al-Bashir was held “individually criminally responsible for genocide, crimes against humanity and war crimes” committed in Darfur, since 2003. Allegations were pitched against Al-Bashir formally by the Chief Prosecutor of ICC, Luis Moreno Ocampo, in July 2008. An arrest warrant was issued against him by a Pre-Trial chamber composed of judges Akua Kuenyehia of Ghana, Anita Usacka of Latvia, and Sylvia Stenier of Brazil indicting him on five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape) and two counts of war crimes (pillaging and intentionally directing attacks against civilians).Read More »

Enclave-tion: An analysis of the Indo-Bangladeshi Agreement

By Sujoy Sur

Image courtesy: Deccan Herald
Image courtesy: Deccan Herald

The 4 decade long India-Bangladesh enclave saga has been concluded by the monumental 119th Constitutional Amendment Bill (100th Constitutional Amendment in effect), which was passed by the Indian Parliament on 7th May. While there are 198 enclaves in total (106 Indian and 92 Bangladeshi), the agreement which was put in effect by the Constitutional amendment settles the position of 162 enclaves. Out of these 162 enclaves, India gets 51 Bangladeshi Enclaves, constituting an area of around 7,110 acres, while Bangladesh gets 111 Indian enclaves, constituting an area of around 17,160 acres.

What is an enclave?

Colloquially speaking, an enclave is a island land of one country surrounded by the land of another. An enclave under international law is generally understood to be a part of the territory of a state that is enclosed within the territory of another state whose inhabitants are culturally and ethnically distinct. A prominent example of this is the Vatican City, which is territorially surrounded by Italy. As one can see, their existence is rare and abnormal in the international scheme of state order as they defeat the very idea of contiguity of territoriality of a nation state. They usually pose difficulty in governance and even have the potential to threaten international peace, which is why states prefer to either dispose of the contentious land by agreement or sale or by an international accord.

Enclave-tion

The issue of enclaves, though complex in itself, is not as simple as its definition seems to be. Enclaves often have counter-enclaves, which is an enclave in an enclave. Say there are two countries, A and B. Country A has an enclave in Country B, say en-A. Now, a counter enclave would be an enclave of country B in this en-A. Still confused? Take a look at this diagrammatic representation.Read More »