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International Law

Legacy of the ICTY

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The International Court is the judicial body that brings to justice individuals accused of violation of the international law. The idea to create the court arose after the end of the World War II and it is based on the principle: all persons, including high-ranking state officials, accused of committing serious international crimes must be punished.

International criminal tribunals should not be considered in the same way as domestic or national courts. When people hear the words “court” and “law” – they immediately think it refers to national law, but they are wrong. There is distinction even between personnel that works in international and national courts, and much less in other characteristics.

The paper will put a special emphasis to the work of the ICTY, describing a number of positive as well as the negative sides of the Court.

The ICTY

The ICTY has been established at the proposal of the UN Secretary General on the basis of Resolution No. 827 of the UN Security Council of 25 May 1993. The territorial jurisdiction of the Court covers the territory of the former Socialist Federal Republic of Yugoslavia (hereinafter: the former Yugoslavia), including its land surface, airspace and territorial waters, while the temporal jurisdiction includes the period from 1 January 1991, without indicating when the temporal jurisdiction ends. However, the UN Security Council ordered to the Court to end its work by 2010, by Resolution No. 1503 of 2003 and the Resolution No. 1534 of 2004. Due to the abovementioned reasons, the Court was supposed to put an end to all investigations and filing all indictments by 2004; to end all trials by 2008 and to end all appeal proceeding by 2010. However, the year is 2015 and the ICTY has not ended its work. According to some estimations given in December 2014, three out of four appeal proceedings are expected to be completed during 2015, while the judgment in the case of Ratko Mladic is expected to be rendered in March 2017 or event after this date. However, addressing the UN Security Council on 10 December 2014, President of the ICTY Theodor Meron assured that these forecasts do not mean closure of the ICTY in 2017.

The ICTY is an ad hoc court based in The Hague. The Court can prosecute only individuals and not organizations or governments. The court can impose life imprisonment as maximum penalty. As a result, the Court signed an agreement with a number of countries, in order to enable enforcement of the penalties on their territories.

Huge role of the ICTY’s Trial Chamber significantly determines work of the ICTY and it implies wide powers of arbitrators and initiative relating to probative evidence. The basic principles that the Court follows in its work are: justice, rapidity and equality of arms.

The aim of establishment of the ICTY is to bring to justice persons responsible for serious violations of the international humanitarian law during conflict in the area of the former Yugoslavia. However, “although it was obvious that many actions of the conflicting sides, people who fought within their ranks or who joined them, represent serious crimes under domestic law or the international humanitarian law (the former Yugoslavia ratified all the Geneva Conventions of 1949 and their Protocols of 1977), almost none of the suspects for these crimes was charged and brought to the Court until 1993”.

All violations that are put under the jurisdiction of the ICTY and which represent violation of the international humanitarian law committed in the former Yugoslavia, are divided into:

  • Grave breaches of the Geneva Conventions of 1949;
  • Violations of the laws or customs of war;
  • Genocide;
  • Crimes against humanity.

The criminal defense of crime against humanity exists under the following conditions:

  • In case of an attack;
  • If the accused committed the crime as part of the attack;
  • If the attack was directed against any civilian population;
  • If the attack was widespread or systematic;
  • If the accused knows that his acts are part of a pattern of widespread or systematic crimes directed against a civilian population and if he knows that his act fit in the pattern.

Regardless of the rules that regulate work of the ICTY, its employees are faced with several challenges.

The first challenge certainly refers to a rule that an individual may be punished for grave breach of the Geneva Conventions under the Article 2 of the Statute, only if the crime for which he is charged, was committed against persons and property that are considered protected.

Another challenge is the Article 7, Paragraph 1 of the Statute, i.e. the Article 4 Paragraph 3 of the Statute. Namely, when the Court finds that the accused person had no genocidal intent, but he or she helped others to commit genocide, the question is which of these two provisions of the Statute of the Court should be applied. The first Article envisages responsibility for assisting in committing any criminal offense put under the jurisdiction of the Court, while the second Article envisages, inter alia, complicity in genocide. Furthermore, the Court has the jurisdiction to act in case of committing any of the criminal offenses listed in Article 5 of the Statute, but only if the crimes were committed in an armed conflict. Therefore, an armed conflict is a precondition for prosecution before the ICTY. At the same time, the only Article of the Statute that relates to penalties is the Article 24 that envisages the obligation of the Chamber when sentencing, to take into account gravity of the defense and individual circumstances of the perpetrator. However, the Article 2 of the Statute represents the biggest challenge and it envisages that every crime regulated by this Article, shall be committed in the context of the international armed conflict.

The first trial before the ICTY started on 7 May 1996 and the first verdict was rendered on 29 November 1996. So far, a total of 161 persons have been indicted. Proceedings against 147 persons ended, while proceedings against 14 persons are still ongoing.

Legacy of the ICTY

The region of the former Yugoslavia welcomed the establishment of the ICTY with great suspicion, complaining that incompetent body has established the Tribunal (the Security Council), and that the Court cannot be an impartial judicial body, since it has been established as a subsidiary body to the executive authority (the Security Council). However, author of this paper shares the standpoint of Dr. Vojin Dimitrijevic, who says that „in a sea of such attacks (…) legitimate and legal reviews of critics about the way The Tribunal has been established, the advisability of some of the provisions of its Statute, the quality of the rules of procedure and so on, are lost (…)“. The author also shares Dimitrijevic’ stance that work and existence of the ICTY should be seen as a “unique judicial experience in the actual application of the international humanitarian law, its written and unwritten rules and the very Statute of the first international criminal Tribunal that, despite of the fact that it has been formed on temporary basis as an ad hoc court, has acted so long and prosecuted so many persons on various posts for so many crimes that are considered international crimes”.

There is no doubt that there are positive and negative aspects of the international criminal proceedings led before all courts. Positive sides of the proceedings before the ICTY are certainly higher level of impartiality, easier ways to collect evidence, uniformity in the application of the international law and greater preventive effect of international trials. Namely, it is logical that people who are not involved in a concrete dispute, i.e. judges who are not related to armed conflicts will be more objective to decide about the dispute. National courts are almost always insufficiently objective, and these courts are not interested enough to lead proceedings against its own nationals who have committed crimes against foreign nationals. At the same time, the fact that this is a proceeding led before an international court, proceedings related to these and all other conflicts in the international community are set to be uniform, with the continuity in application of law and decision-making process.

Although a proceeding before the ICTY does not fully meet all demands which the right to fair trial puts before the Court, its practice gives hope that the proceedings will get closer to the standards of the fair trial. The procedure led before the ICTY is complex, but it was inevitable because it has been established quickly as a reaction to the situation on the ground (for example, the states harmonized their stances about formation of the International Criminal Court for years). Principles like the ones from the Geneva Conventions of 1949 (ratified by most of the states in the world) would certainly remain only a dead letter, if it was no courts like the ICTY. Namely, such courts defined an armed conflict, defined when an armed conflict begins etc.

One of the important specifics that refer to international crimes is the existence of a large number of victims. The procedural status of victims and witnesses in criminal proceedings for these crimes is a particular problem in international judiciary, because of direct or indirect risk of intimidation, reprisal or retaliation against the victims. For these reasons, rules of the ICTY include adequate provisions on protection of victims and witnesses in the proceedings. Per example, such provisions are stipulated in the rule that the main hearing will be held without the presence of the public; the rule about the protection of identity of the victims, and the rule on formation of Department for Victims and Witnesses, as the body in charge to provide support and advices to victims and witnesses and propose measure for their protection.

The ICTY has contributed to clarification of some basic concepts that are of huge importance for the international criminal law and the international humanitarian law. For example, the rule on the obligation to distinguish civilians from combatants was clarified in the judgment in the cases of Tadic, Martic, and Kupreskic, while the rule to distinguish civilian from military facilities was clarified in the judgment in cases of Kupresic, Kordic and Cerkez, judgment in cases of Kunarac and Furundzija defined torture, etc. For the first time in the history, an international court found that rape (although prohibited by humanitarian law) may constitute torture. This is also the first international court which included sexual violence as a crime against humanity in its Statute. Besides, the Court also gave huge contribution to the interpretation of serious violations of the Geneva Conventions.

According to the current President of the ICTY Theodor Meron, the ICTY has demonstrated to the world that, after half a century of impunity, it is possible to lead complex trials at the international level, in accordance with the highest international standards. The ICTY has developed an influential body of jurisprudence concerning a large number of procedural issues and issues related to evidence and thus, created conditions for establishment of new international and mixed criminal courts. The support to strengthening of national judicial systems relating to war crimes trials is certainly one of the most positive things in the heritage of the ICTY.

Many criticize the ICTY for the reason that all the accused have not been convicted especially the ones who are accused of the crime of genocide. However, the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 stipulates very strict conditions for proving genocide. The Genocide is a crime that does not have to be committed during armed conflicts: the crime can be committed in peacetime, during a war, against civilians and against combatants, with or without committing widespread or systematic attack. Under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, “(… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to 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;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

As the aforementioned definition reads, it is a state of mind of the perpetrator of the crime of genocide that matters (that he committed the crime with intention to destroy, in whole or in part, a national, ethnical, racial or religious group). Therefore, certain group and not individuals in the group should be the main objective and likewise, the destruction should be physical or biological nature, not cultural. Proving responsibility for the crime of genocide is harder than proving responsibility for any other international crime. Murders and other prohibited acts must be committed with the intention to destroy, in whole or in part, a national, ethnical, racial or religious group (dolus specialis). If a prosecutor fails to prove that intention, it is considered a crime against humanity or a war crime – and the ICTY is not authorized to prosecute these crimes.

The latest criticisms directed against work of the ICTY are addressed to the President Theodor Meron, an experienced US (Israeli) lawyer and a judge. Many believe that he made terrible mistakes in individual trials which he chaired, especially in the cases of Gotovina and Markac, Stanisic and Simatovic and in a particularly interesting case from the legal point of few – case of Momcilo Perisic. The judgment in the case of Momcilo Perisic has established a new legal standard of command responsibility, providing amnesty to political leaders and military commanders in case of committing war crimes in the future period. Namely, the appeal judgment to Perisic has adopted the new specific direction criterion which has not existed in the international customary law. The question is whether court judgments discourage future threats against human civilization or the opposite? The UN Security Council has established the ICTY after some people endangered peace and security of the civilization and nowadays, some experts believe that the ICTY turned into its contradiction after Perisic’s acquittal, and its decisions jeopardize international peace, security and order.

When it comes to criticisms related to the impact of the Hague judgments to victims of the conflict, we must take into account that, when it comes to individual criminal responsibility, the ICTY is authorized to prosecute the crimes, but it has no option to adjudicate adequate compensation for victims of the crimes. Namely, primary role of the ICTY is retributive: the Court renders a judgment and defines whether someone is guilty for a certain crime or not, and orders an appropriate penalty for the crime. Of course, the ICTY also has a restorative function and it aims to ensure accountability, establish facts, bring justice for the victims and give them the right to speak, enhance the rule of law and pawing a way for reconciliation in the region. However, the ICTY is not established to be a mean for bringing complete justice to the victims and a mean to deal with the past.

Regardless of the aforementioned facts, the ICTY has taken away from us the ability to forget the past. The legacy of the ICTY is greater and more significant than occasional mistakes and judgments rendered without a legal explanation, while the Court will provide insight to future generations into judgments and facts about the atrocities.

Conclusion

The abovementioned text has led us to conclusion that, when it has established the ICTY, the international community has directly contributed to sanctioning of state policies and individuals responsible for initiation and conduct of armed conflicts at the territory of the former Yugoslavia. The paper also led us to conclusion that judgments rendered by the ICTY have clarified some theoretical parts of the international humanitarian law, international criminal law and the international human rights law.

Despite of many criticisms directed against the ICTY, the author of the paper believes that the ICTY has registered more positive than negative results. Unreasonably high expectations from work of the Court have been huge. At the end, when a conflict starts and when crimes happen, people say nowadays: “Send him to The Hague”, which was not the case a few years ago, when there was no court authorized to prosecute the perpetrators.

There is no doubt that existence of such a court is necessary and we could see it clearly in the case of Leipzig in 1921, when Germans were allowed to trial to themselves on their own. As a result, audience, judges, prosecutors greeted some people who were accused of crimes when they entered a courtroom, not to mention that all sanctions were minimal; two months, six months and four years of imprisonment. Therefore, author of the paper believes that foreign judges did not bring expertise in proceedings related to this territory, but impartiality.

Author of the paper considers the following facts as the greatest contributions of the ICTY:

  • The ICTY is a legal body that represents a basis for establishment of new judicial bodies;
  • The ICTY revealed limitations of trials;
  • The ICTY has left us legacy.

On the other hand, the fact that the ICTY has primarily focused on jurisprudence and its impact, without realizing how much it is important to reach out to the victims, is the main deficiency of this body.

International Law

Geneva Conventions mark 70 years of ‘limiting brutality’ during war

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Seventeen UN Member States met in November 1947 to sign protocols to amend the Geneva Conventions of 1921, 1923, and 1933. UN Photo

In commemorating the 70th anniversary of the landmark Geneva Conventions, the president of the United Nations Security Council hailed the “significant body of law”, describing it as playing “a vital role in limiting brutality of armed conflicts”.

In the aftermath of the Second World War, the treaty, comprised of four Conventions and three Additional Protocols, established the modern, international legal standards for humanitarian treatment during times of war. They were agreed on 12 August 1949, and with some exceptions, ratified by 196 countries around the world.

“As they are ratified and acceded by almost every State of the world, the principles and legal norms enshrined in these Conventions are also recognized as customary international humanitarian law [IHL] and are universally applicable”, said Poland’s Foreign Minister Jacek Czaputowicz, speaking for his nation which holds the Presidency of the Council for August. “This is a rare quality for any multilateral treaty”.

Among other things, the Conventions established protections for vulnerable groups in armed conflict, namely the wounded and sick; prisoners of war; and civilians, including civilians living under occupation. 

Because Poland has been “painfully affected by consequences of other States’ failures to comply with international agreements” and in conjunction with its “sense of responsibility” to maintain international peace and security, Mr. Czaputowicz said that strengthening international law has always been important to his country.

“The greatest challenge to protecting human life in modem conflict is observance of and respect for the existing rules by the armed forces and non-State armed groups”, he asserted. “If existing rules were followed, much of the human suffering in contemporary armed conflicts would not occur”.

Poland’s top diplomat also pointed to new threats that demand practices and policy consistent with international humanitarian law.

“Artificial intelligence and autonomous weapon systems, such as military robots and cyber-weapons, reduce the role and control of human factors during wartime”, he continued. Moreover, the general rules of IHL prohibiting indiscriminate and inhumane weapons, “are being violated”.

Two IHL principles under the Geneva Conventions that deserve particular attention, according to Mr. Czaputowicz, are “the obligation to protect civilians, prisoners of war, the wounded and shipwrecked” as well as “limitations to the rights of parties to an armed conflict on how they conduct operations and on their choice of weapons”.

The increasing role of non-State actors and IHL legal loopholes are “the new reality of modem conflict”, he spelled out, bemoaning that they hinder international humanitarian law “in many ways”.

“International humanitarian principles are under pressure” and “the complexity of new challenges impedes the process of classification of conflict situations and makes it difficult to determine the exact rules that may be applied”, he elaborated.

‘Historic moment for humanity’

According to UN Legal Counsel Miguel de Serpa Soares, the four Conventions are “at the core” of IHL.

Noting that the first three conventions “were by no means completely novel at the time”, he singled out the Fourth Convention as being “the first treaty that was specifically dedicated to the protection of civilian persons in time of war”.

Mr. Soares also drew attention to Article 3, the provision on basic rules governing the humane treatment of people not involved in hostilities, including soldiers who have laid down their arms, those wounded or in detention, as well as civilians.

Calling the inclusion of Article 3 “a historic moment for humanity”, he said it was the first instance in which non-international armed conflicts were regulated by a multilateral treaty. The significance is augmented by the fact that the Geneva Conventions are now universally adhered to.

Conventions show ‘what is possible’

For his part, Peter Maurer, President of the International Committee of the Red Cross (ICRC), maintained that the Geneva Conventions represent “one of the greatest achievements of inter-State cooperation” and “symbolize our enduring and common humanity”.

“The Conventions show us what is possible when States take collective and individual action to uphold the law and humanitarian principles”, he said.

Noting that “every single day” international humanitarian law is at work saving lives and protecting women, men and children in conflicts, he highlighted that while “we rightly hear about the violations because the consequences are tragic and visible”, we must also “recognize the protective power and positive impacts when IHL is respected”.

The ICRC chief painted a picture of IHL in action, when the wounded and sick are evacuated to safety; the detained are treated with dignity; the fate of missing people is clarified; and humanitarian assistance is delivered across lines.

“The impacts of IHL are also shown through acts of restraint, when horrors are not inflicted – civilian areas are spared from direct shelling, medical workers are able to freely operate without threat or targeting”, he added.

Continued violations do not mean the law is inadequate, but rather that efforts to ensure respect are inadequate, he flagged, urging “we can – and must – do more”.

The world must not forget that “the Geneva Conventions represent a line of our common humanity, and they shield us from our own barbarity”, underscored Mr. Maurer.

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International Law

Kerfuffle about Kashmir’s `special status’

Amjed Jaaved

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It is eerie that Pakistan’s foreign office, media and politicians have shallow understanding of the Kashmir dispute. Let us not forget dimensions to the Kashmir dispute. Pakistan is committed to United Resolutions. These resolutions do not recognise `accession’ of disputed Kashmir under a resolution of the puppet Constituent Kashmir assembly or under Maharajah’s `instrument of accession’.

India never presented the accession `resolution’ or the `maharajah’s instrument’ before the UN. Yet, it claimed that the occupied Kashmir’s constituent assembly had voted for accession to India. As such, it is no longer necessary for her to let the promised plebiscite be held in Kashmir. Now, it has abrogated `special status’, hitherto quid pro quo.  Has disputed Kashmir reverted to 1947 status in India’s own parlance?

In parliament, Amit Shah banked on the `instrument’ which is void.  The Independence Act required intention of accession to be absolute and crystal-clear. But, a stray glance at the ‘Instrument’ would make it clear that it is equivocal. The ‘Instrument’ expresses ‘intention to set up an interim government and to ask Sheikh Abdullah to carry the responsibilities’ with maharajah’s prime minister. The last sentence in the ‘Instrument’ is ‘In haste and with kind regards’. Handwritten corrections on the text of the ‘Instrument’ speak volubly about the wavering state of the maharajah’s mind. Any `instrument’, extracted under coercion and duress, is invalid under law.

Subsequent accession resolution, passed by the occupied Kashmir’s ‘constituent assembly’, also, is void. This resolution violates the Security Council’s resolutions forbidding India from going ahead with the accession farce. Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions to forestall the `foreseeable accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state.

`Accession instrument’ is a myth, unregistered with the UN. Alastair Lamb, in his book Incomplete Partition (Chapter VI: The accession Crisis, pp.149-151) points out that Mountbatten wanted India not to intervene militarily without first getting `instrument of accession’ from maharajah Hari Singh.  Not doing so would amount to `intervening in the internal affairs of what was to all intents and purposes an independent State in the throes of civil conflict’.  But, India did not heed his advice. It marched its troops into Kashmir without maharajah’s permission _ an act of aggression. Lamb says `timing of the alleged Instrument of Accession undoubtedly affected its legitimacy'(p.172, ibid). He adds `If in fact took place after the Indian intervention, then it could well be argued that it was either done under Indian duress or to regularise an Indian fait accompli’.

Lamb concludes (p. 191, ibid):`According to Wolpert, V. P. Menon returned to Delhi from Srinagar on the morning of 26 October with no signed Instrument of Accession.  Only after the Indian troops had started landing at Srinagar airfield on the morning of 27 October did V. P.   Menon and M. C. Mahajan set out from Delhi from Jammu. The Instrument of Accession, according to Wolpert, was only signed by Maharajah Sir Hari Singh after Indian troops had assumed control of the Jammu and Kashmir State’s summer capital, Srinagar.

Lamb also regards the Instrument of Accession, ‘signed’ by the maharajah of Kashmir on October 26, 1947, as fraudulent (Kashmir – A disputed legacy 1846-1990). He argues that the maharajah was travelling by road to Jammu (a distance of over 350 km). How could he sign the instrument while being on the run for safety of his life? There is no evidence of any contact between him and the Indian emissaries on October 26, 1947.

It is eerie to note that India has never shown the original Instrument’ in any international forum. India took the Kashmir issue to the UN in 1948 under article 35 of Chapter VI which outlines the means for a peaceful settlement of disputes.

Pakistan’s foreign office faux pas

Pakistan should not accept `special status’ as a fait accompli. Instead, it should focus on human-rights violations, and right of self-determination under UN conventions. While agitating these issues, Pakistan should avoid the legal wizard, a self-styled `international-law expert’, founder of a research society of international law, who selected Reqo Diq-fiasco incompetent legal team.

In his weekly press briefing, Pakistan foreign-office director general (South Asia and SAARC) Dr. Mohammad Faisal said (April 6, 2019), “Pakistan will never accept the repeal of Article 370 of the Indian Constitution… Besides violating the rights of Kashmiris, it will also contravene relevant UNSC (UN Security Council) Resolutions”. He added that Article 370 was incorporated in India’s Constitution in October 1949. And, it exempts Jammu and Kashmir from the country’s Constitution while allowing the state to draft its own [constitution]. Not so. Article 370 violates UN resolutions. Article 370 is rooted in accession-to-India resolution of so-called `constituent assembly’ of the disputed Kashmir. The `assembly’ itself banks on Maharajah Hari Singh’s mythical `Instrument of Accession’, not registered with the UNO. By accepting Article 370 and occupied Kashmir’s constitution, Pakistan binds itself to accepting Azad Kashmir as part of India. The IHK’s constitution provides seats for Azad Kashmir. Will Pakistan hold elections in Azad Kashmir under Indian or IHK’s constitution?

If our foreign office revisits Kashmir-case files, it will come to know that: (a) India never registered Instrument of Accession with the United Nations.  In the summer of 1995, the Indian authorities reported the original document as lost or stolen? (b) Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions _ Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957 _ to forestall the `foreseeable accession’ by the puppet assembly.. These resolutions outlaw accession or any other action to change status of the disputed state. (c) Pakistan stresses international-law jus cogen `pacta sunt servanda’ treaties are to be abided by, being binding on signatories. Non-compliance reduces a state to status of a rogue state. (d) India through a series of steps whittled down Kashmir’s special status under Article 370 and 35-A of India’s Constitution. Governor replaced sadr-e-riast who could conveniently dismiss wazir-e-riast (now chief minister). (e) Kashmiri leaders are begging for `election’ which is ultra vires of UN resolutions. Kashmiris’ fate of total integration hangs in hands of petition pending with India’s Supreme Court.

Pakistan’s information minister’s statement

In a prelude to Foreign Office spokesman’s statement (April 6, 2019), Pakistan’s information minister had dared India hold elections in Indian-held Kashmir (March 11, 2019). Taking the two statements juxtaposed, the inference is that Pakistan implicitly admits that: (a) Jammu and Kashmir is not a disputed territory. It is an `integral part of India’. IHK had acceded to India as per the maharajah’s Instrument of Accession not registered with UNO or invoked on UN forums. (b) `Pakistan administered Kashmir’ (Azad Kashmir) is under illegal occupation by Pakistan. Heretofore I quote from IHK’s `Constitution’.

`Preamble to the Constitution of Jammu and Kashmir

“WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR,having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as a part thereof…’.

`Relations with Government of India

Article 3 in part 2 of the Jammu and Kashmir constitution reads as,

“Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India.

Relations with Pakistan administered Kashmir

Article 48 of Part VI of Jammu and Kashmir constitution defines Pakistan administered Kashmir as “Pakistan Occupied Territory”.

There are currently 87 seats in Jammu and Kashmir State assembly, but article 48 of Jammu and Kashmir constitution also recognizes 24 seats from Pakistan administered Kashmir and mentions that these 24 seats will remain vacant till Pakistan ceases the “occupation” of Kashmir and the said area shall be excluded in delimiting the territorial constituencies till that time.

To India’s pleasure, Pakistan’s chagrin

What information minister or foreign-office said should please India? For, India says clasula rebus sic stantibus, a fundamental change of circumstances (literally `things as they stand’), making plebiscite demand an anachronism.

Look at Janus-faced Pundit Jawaharlal Kaul/Nehru. Nehru had earlier declared in a radio broadcast (Nov 2, 1947) that the government of India was “prepared, when peace and order have been established in Kashmir, to have a referendum held under international auspices like the United Nations.” I am quoting from Chaudhri Mohammad Ali’s The Emergence of Pakistan.

Nehru be-fooled Sheikh Abdullah to stab Pakistan in the back. Barkha Dutt recalls (This Unquiet Land, p. 154) `In a 1948 speech to the United Nations, Sheikh Abdullah … made a blistering defence of the accession to India. Sher-e-Kashmir (Lion of Kashmir) roared, :I had thought all along that the world had got rid of  Hitlers…but what is happening in my poor country I am convinced that they have transmigrated their souls into Pakistan…I refuse to accept Pakistan as a party in the affairs of Jammu and Kashmir’

Dutt says, “Sheikh Abdullah [later] began to talk about possibility of independent Kashmir…Soon after he changed his stance he was jailed and dismissed from office and was not able to lead the state for another twenty years’. Stanley Wolpert and Alastair Lamb (Kashmir – A disputed legacy 1846-1990, Birth of a Tragedy) also doubt existence of Instrument of Accession (October 26, 1947).

Pakistan’s foreign office has yet to produce a luminary of the caliber of Indian foreign secretaries Shiv Shankar Menon, Krishnan Srinivasan, JN Dixit and Jagat S. Mehta. These gentlemen knew that Kashmir was not an atoot ang (unbreakable part), but a disputed state. India and Parvez Musharraf partly implemented Mehta’s proposals. His proposals are contained in his article “Resolving Kashmir in the International Context of the 1990s” Some points of his quasi-solution are: (a) Pacification of the valley until a political solution is reached. (b) Conversion of the LoC into “a soft border permitting free movement and facilitating free exchanges…” (c) Immediate demilitarization of the LoC to a depth of five to ten miles with agreed methods of verifying compliance. (d) Final settlement of the dispute between India and Pakistan can be suspended (kept in a “cold freeze”) for an agreed period. Voracious readers may refer for detail to Robert G Wirsing, India, Pakistan and the Kashmir Dispute (1994, St Martin’s Press, New York pp. 225-228). Mehta’s thinking is in line with JN Dixit’s. Dixit says ‘it is no use splitting legal hair. “Everybody who has a sense of history knows that legality only has relevance up to the threshold of transcending political realities. And especially in inter-state relations… so to quibble about points of law and hope that by proving a legal point you can reverse the process of history is living in a somewhat contrived utopia. It won’t work.”(Victoria Schofield’s book Kashmir in the Crossfire). 

Conclusion

Does Pakistan’s Foreign Office abide by IHK and India’s constitutions? When shall Pakistan cease its `occupation of Azad Kashmir’ to hold elections on 24 seats reserved for Pakistan-administered Kashmir’? Certainly, the afore-quoted statements do not reflect Pakistan’s position on Kashmir dispute, based on UN resolutions. India has no mandate to change the status of the disputed state through sham elections, or sham `special status’. It is time Pakistan gagged its loose-cannon information minister, unbridled foreign-office, or politicians.  It’s time for Pakistan about militarisation of Kashmir, human right violations and need for self-determination, recognised under UN conventions and resolutions. 

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International Law

Reserve judgment: Arbitrating energy disputes in Africa

Simon Sloane

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As African states seek to use national laws to protect their natural resources and increase revenue from their development, Fieldfisher dispute resolution partner, Simon Sloane, considers the difficulties facing energy companies seeking to protect their investments while respecting the transformational needs of host states.

Africa’s capacity to benefit equitably from its own natural resources continues to be one of the main challenges facing many of its most energy-abundant jurisdictions.

While blaming this state of affairs on the old “resource curse” myth is simplistic and unhelpful, it remains the case that nations rich in resources tend to be poorer and less developed than those which are not, with many of the benefits of their exploitation going offshore.

Despite the clear moral case for African countries to profit more from their energy and mineral reserves, legally the picture is more complicated.

Much of the cost and risk of extracting these resources tends to be shouldered by foreign investors, who expect to be compensated for their outlays and assume that the terms on which they invested will be protected by local and international laws.

Consequently, any new domestic legislation guaranteeing host countries a “fair” share of the revenues from internationally funded projects is often treated as breaching protections given to foreign investors in bilateral investment treaties (BITs).

There have been numerous incidents of foreign companies successfully bringing arbitrations against African states that have tried to amend investment terms retrospectively, with investors relying on safeguards such as fair and equitable treatment (FET) and non-expropriation rights provided in BITs.

This has led to growing scepticism among African governments of (particularly first and second generation) BITs, as these treaties are often perceived as looking after the interests of foreign investors, to the detriment of states’ needs to transform their economies.

Affirmative action

A handful of African countries, including South Africa and Tanzania, have recently cancelled a number of their BITs – a situation that has created tension between the desire to preserve domestic assets for the national benefit and the need to attract foreign investment to fuel economic growth.

Domestic legislation designed to promote equitable ownership include South Africa’s black economic empowerment initiatives, which compel 26% of shares in mining assets to be distributed to disadvantaged local people.

In Tanzania, new laws including the Natural Wealth and Resources Contracts (Review and Re-negotiation of Unconscionable Terms) Act, 2017 and the Natural Wealth and Resources (Permanent Sovereignty) Act, give the government power to renegotiate contracts with investors on terms more favourable to the state.

Although international arbitration is generally a last resort for resources companies when disputes arise, lately there has been a noticeable increase in requests for arbitration in circumstances where African states have sought to implement alternative local laws.

BIT terms and Western-centric legal principles rarely align with traditional African customary laws and there is a growing unwillingness in many African states to accept foreign rulings over key national assets, which can make the enforcement of an international arbitration award against a state politically challenging.

Since relatively few African court decisions are published, it is hard to tell statistically where many countries are in terms of compliance with international arbitration awards, and how many are resisting enforcement.

There have been some very public rejections of international arbitrators’ decisions.

Zimbabwe, for example, has resisted recent efforts to enforce awards made against it in US courts.

Nigerian courts have also refused the local enforcement of a multi-billion dollar London Court of International Arbitration (LCIA)commercial arbitration award against a state-owned entity in favour of foreign investors, notwithstanding that the English courts have upheld the validity of the award (see P&ID Ltd v Federal State of Nigeria).

Yet even in cases where the authority of international arbitrators is accepted, the variety and nature of local laws can cause problems when it comes to implementing awards in African states.

Parallel proceedings

Growing distrust of the international arbitration system among African governments is a considerable problem for foreign investors, especially in the highly litigious energy sector, as there is currently no trusted alternative for resolving disputes.

Historically, arbitration has not been high on the agenda for most African states and relatively few African judges have significant experience of international arbitration.

Efforts are being made to redress this through legal education and there have been moves to establish regional arbitration centres throughout Africa that have the confidence of both states and investors, although these are yet to gain significant traction.

In the meantime, there continue to be serious problems in resolving energy project disputes caused by parallel proceedings, where one party will ignore an arbitration clause in a contract and ask for the matter to be addressed in a local court.

In these situations, partiesend up straddling one or more proceedings on the same issues, with different tribunals and courts regularly reaching different decisions and with the added hurdle of a party facing competing anti-suit or anti-arbitration injunctions.

Such circumstances are common where at least one partner is foreign and relies on an arbitration clause in a contract or its public international law rights under a BIT, while local parties are more naturally inclined to seek decisions from local judges.

Often, the impasse is caused by local judges who are suspicious of the international arbitration process and are not willing to abdicate their powers to a foreign tribunal .

Pre-empting problems

In many cases, the need for arbitration can be avoided by careful and far-sighted approaches to contract negotiation.

Simply including an arbitration clause in a contract will not automatically prevent the parties ending up in messy disputes being contested simultaneously in domestic and international courts.

Energy projects especially will usually involve a complicated series of contracts between international energy companies and one or more domestic counterparts, including government bodies, local investors and contractors.

If a domestic party decides to ignore an arbitration clause and asks a local court to intervene, the foreign party then has to choose whether to seek an injunction and refer the dispute to arbitration, or submit to the local court’s jurisdiction.

In these situations, the international partner is likely to have difficulty locally enforcing any award they obtain, if they proceed with the arbitration.

Alternatively, the international party can opt to engage in the local court process which can expose them to the vagaries of an unfamiliar legal system.

Where there is a suite of contracts containing different arbitration clauses, this leaves the parties open to arguments about which arbitration clause governs which dispute and the possibility of multiple proceedings.

Habitually, there is a lack of attention given by lawyers drafting contracts to what are sometimes mandatory laws to protect natural resources.

Rules obliging infrastructure developers to use local contractors on large projects are also frequently ignored.

This failure to respect local laws can lead to litigation in local courts, especially as communities become more empowered to challenge this practice, over issues which should have been addressed at the drafting stage.

While not wholly avoidable, the risk of becoming embroiled in paralysing disagreements can be minimised by careful drafting and fully thinking through how proceedings will work in particular African jurisdictions.

Intra-African arbitration centres

One of the solutions being implemented to improve the perception of international arbitration in African disputes is the establishment of local arbitration centres.

In 2016 alone, there were more than 70 international arbitration centres operating across Africa,, with varying degrees of credibility, and more have sprung up since.

The Cairo Regional Centre for International Commercial Arbitration, established in 1979, has been notably successful in attracting Arab and north-Saharan arbitrations.

In Nigeria, the Lagos Court of Arbitration is growing in stature, as are the Kigali International Arbitration Centre (KIAC) in Rwanda and the Ghana Arbitration Centre.

The Casablanca International Mediation and Arbitration Centre (CIMAC) in Morocco and the Mauritius International Arbitration Centre (MIAC), which was previously an offshoot of the LCIA, are also actively seeking to play active roles in resolving African disputes.

China’s approach to arbitrating in Africa is also worth paying attention to. The China-Africa Joint Arbitration Centre (CJAC) in Shanghai was specifically set up to deal with infrastructure project disputes, and China is now looking to set up centres with broader mandates in East and West Africa.

The goal of all of these African centres is to regionalise arbitration, so that cases involving precious national assets are dealt with in Africa by African lawyers and arbitrators, with the buy-in of African governments and international investors.

However, until local courts are equipped to play a supportive role in arbitration, it may be hard for these centres to command confidence, especially when there are so many centres competing to hear arbitrations.

Transparency within the local court system also needs to improve, as where there is little or no access to court judgments, the worst assumptions are going to prevail.

International investors need to feel they can trust the integrity of local courts before they can be comfortable with their handling of cases.

The Paris-headquartered International Court of Arbitration (ICA) is pushing to improve the transparency of enforcement, on the grounds that it is important for tribunals and courts to know what other courts are doing, and for the rest of the world to see that key treaties are not being overturned and set aside.

The Organization for the Harmonization of Business Law in Africa (OHADA) is similarly seeking to facilitate a pro-arbitration stance in West Africa.

It is worth noting that suggestions around using institutionally appointed arbitrators, who have the advantage of proven expertise in the area they are arbitrating on, have generally received a cool reception by courts, states and investors.

Stabilisation clauses

The use of stabilisation clauses in contracts as a means for foreign investors to mitigate or manage political risks associated with their project is coming under scrutiny in Africa.

The World Bank and other multi-lateral development organisations favour the deployment of clauses that allow an investor to sue a state if the terms on which they invested change, as a way of increasing investment in Africa and developing economies in general.

But it is becoming increasingly evident that such clauses bind African governments and prevent them from amending local labour and environmental laws or their fiscal regimes, even if such reforms are deemed necessary to transform their societies and enhance domestic economies.

Although many African countries recognise that including stabilisation clauses in a BIT is likely to lead to expensive disputes that state balance sheets can ill afford, the need to attract foreign investment means that most governments are still willing to take the risk.

This is an area that multi-lateral organisations need to review, as it is clear that the current situation does not adequately serve the transformational needs of many African states.

New model treaties

Simultaneously with the growth of local arbitration centres, a raft of regional investment and co-operation agreements have sprung up to foster intra-African state and private investment from home-grown and international sources.

The majority of these agreements contain carve-outs expressly to enable African states to address their transformational needs, including exemptions for disenfranchised communities and the need to protect natural resources, without the fear of incurring liability to foreign investors.

The African Continental Free Trade Agreement (AfCFTA), signed in Kigali in March 2018, is intended to provide a platform for intra-African investment between 27 African Union member states, both at state level and for private investors.

It is also hoped that the AfCFTA will go some way towards dealing with the perception that foreign investors have advantages over local partners under traditional BITs, and with some of the problems of enforcing courts’ decisions on disputes.

The New York Convention

One major benefit of international arbitration is the ease of enforcement in foreign jurisdictions which are signatories to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”).

In sub-Saharan Africa, a region which comprises 46 of Africa’s 54 countries, many but not all jurisdictions have ratified the New York Convention.

The challenge now will be to ensure that the convention is properly implemented and respected by all signatories.

African governments are also closely following developments in Europe around the Investment Court System as an alternative to international arbitration, for resolving investor disputes in EU member states.

Tackling corruption

Non-governmental organisation Transparency International singles out the global oil and gas industry as one of the business sectors at the greatest risk of corruption, with Africa being a particular hot spot.

While there has been ample evidence of corrupt practices in some jurisdictions, observers should be cautious generalising about Africa, as many African countries are highly ranked as places to do business cleanly and legally.

Corruption is one of the issues at the heart of many governments’ dissatisfaction with the international arbitration system, as it smacks of injustice that an investor may be involved in illegal activity, by coercion or by choice, yet still win significant arbitration awards.

There have been a few advances in BITs and model laws that indicate international law is starting to get to grips with the issue.

The Dutch Model BIT published earlier this year allows tribunals to take into account whether there has been corruption when making an award – a development that has been largely welcomed and is likely to be replicated in other BITs around the world.

The Nigeria-Morocco BIT (the Reciprocal Investment Promotion and Investment Agreement) signed in late 2016, which contains a comprehensive anti-corruption provision, is also seen as one of the most progressive new formats of BIT.

The future of African energy disputes

Anyone considering making investments in Africa needs to be aware that there are a number of regional treaties to be complied with in order to benefit from investment protections.

There continue to be unresolved questions around enforcement mechanisms and what protections are enforceable through arbitration, especially as countries pull out of BITs.

For users or would-be users of the arbitration system, there are some difficult choices to be made for those who find themselves in the midst of several parallel proceedings.

While disputants may be convinced that they are legally right that arbitration is the way to resolve an issue, parties need to be very certain that there is some kind of enforcement option available to justify the time and expense involved.

Otherwise, disputes can turn into difficult procedural battles between arbitrators and local court proceedings, leading to spiralling costs and project delays, ultimately forcing parties to abandon the case.

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