Research & publications In the spotlight

Tom Ruys
Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC

published in (2018) 29 European Journal of International Law, pp. 887-917

The activation of Articles 8bis, 15bis and 15ter of the Rome Statute in July 2018 has once again fuelled debates over the prosecution of the crime of aggression. While various flaws and imperfections of the Kampala Amendments have attracted scholarly attention in recent years, the present article focuses on one particular source for concern – that is, the implica- tions that the activation of the International Criminal Court’s (ICC) jurisdiction may have for the legal regime governing the use of force between states. It is assumed at the outset that, even if investigations into alleged crimes of aggression may not occur on a frequent basis, sooner or later the ICC will inevitably be called upon to apply Article 8bis of the Rome Statute. Indeed, even if the majority of situations dealt with by the Court pertain to non- international armed conflicts, there have also been a number of situations involving an inter - national/interstate element. In essence, each such situation potentially raises jus contra bellum concerns and may accordingly lead to allegations that the crime of aggression has been committed. Even if the lion’s share of these allegations is unlikely to make it past the preliminary examination or investigation phases, the way in which the ICC prosecutor and the Pre-Trial Chambers play their role as gatekeepers with regard to the crime of aggression is bound to have strong repercussions for the interpretation and compliance pull of the law on the use of force. This article first addresses the possible impact of the ICC’s jurisdiction over the crime of aggression on the recourse to, and acceptance of, unilateral humanitarian intervention, before addressing other ways in which it may influence the international legal framework governing the use of force.

Alexandra Hofer
Negotiating International Public Policy through the Adoption and Contestation of Sanctions

Article published in the RBDI, 2017/2, special issue "Public policy meets property protection", Tom Ruys and Diederiek Bruloot (eds)

Sanctions are commonly understood as a means to enforce international law in the global order. In legal doctrine, the focus is generally on these measures’ coercive purpose. Nevertheless, sanctions can serve other policy objectives. Of particular relevance for the international legal order is a sanction’s stigmatization function. In this case, states and regional, or international, organizations adopt sanctions in reaction to behaviour that breaches an international norm in order to signal their commitment to that norm and to stigmatize the alleged wrongdoer as a deviant. Because processes of stigmatization help distinguish accepted behaviour from rejected behaviour, they contribute to the formation of the international legal order. Importantly, targeted states do not simply accept their status as deviants. Rather, they align with groups of states that contest the adoption of unilateral coercive measures. They respond to stigmatization by affirming the norms that constitute their version of the international legal order. The practices of justifying and contesting sanctions thus reveal the tug of war between different groups of states that seek to determine the norms that lie at the foundation of the international legal order and how they should be enforced.

Tom Ruys
Reflections on the ‘Global Magnitsky Act’ and the use of targeted sanctions in the fight against grand corruption

Article published in RBDI, 2017/2, special issue "Public policy meets property protection", Tom Ruys and Diederiek Bruloot (eds)

The present paper focuses on the recent adoption and implementation by the United States of the so-called Global Magnitsky Act, in particular inasmuch as it allows for the imposition of targeted sanctions against corrupt foreign officials, as well as the enactment of similar legislation in other countries. Given the tendency to transfer the gains of grand corruption abroad, the recourse to targeted sanctions against corrupt officials potentially offers a useful tool in the international fight against corruption and could accordingly be seen as a way of furthering the aims of the UN Convention against Corruption and of the UN more generally. On the other hand, as the article explains, the use of asset freezes in this context also raises a variety of questions, both in terms of the legality of such practice, as well as in terms of their effectiveness and legitimacy.

Prof. Dr. Tom Ruys Sebastiaan Van Severen Carl Vander Maelen
JUFIL DIGEST OF STATE PRACTICE (1 January - 30 June 2018)

JUFIL Digest of State Practice - 1 January - 30 June 2018

The latest Digest of State Practice, covering jus ad bellum practice in the period 1 January - 30 June 2018, is now available online. It was edited by GRILI members Tom Ruys, Carl Vander Maelen and Sebastiaan Van Severen.

Alexandra Hofer
War of Wor(l)ds – Clashing Narratives and Interpretations of I(H)L in the Intractable Israeli-Palestinian Conflict

Book chapter published in International Humanitarian Law and Justice: Historical and Sociological Perspectives, edited by Mats Deland, Mark Klamberg and Pål Wrange, published by Routledge 2018

By applying the social concepts of collective memory and social identity, this chapter explores how parties in an intractable conflict appropriate and interpret international law where existential issues are at stake. It does so by using the dispute on the legal nature of the occupied Palestinian territories as a case study and by analysing the arguments put forth by Israel and Palestine during the proceedings before the United Nations General Assembly and the International Court of Justice in the context of the advisory opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.” The paper concludes that in intractable conflicts where existential issues are at stake for both parties, law is appropriated and integrated into group narratives, enabling them to extend their conflict-based policies by other means. If law can help channel and frame the dispute, it cannot impose peace upon either party.

Tom Ruys Emre Turkut
Turkey’s Post-Coup ‘Purification Process’: Collective Dismissals of Public Servants under the European Convention on Human Rights

Human Rights Law Review, volume 18(3), 2018, pp. 539-565

On 15 July 2016, an attempted military coup took place in Turkey, which left 246 dead and 2194 wounded, and sent a shockwave through Turkish society. The response from Ankara followed swiftly. On 21 July 2016, the Turkish Government imposed a nationwide state of emergency, and notified its intention to derogate from the European Convention on Human Rights (ECHR). Numerous emergency decrees were promulgated, providing for the closure of more than 3000 schools, media outlets and so on, as well as the detention and arrest of several tens of thousands of individuals. One of the key features of the Turkish Government’s response concerns the dismissal, and exclusion from public service, of more than 130,000 judges, prosecutors, military personnel, police officers, teachers and other civil servants. Having regard to a number of recent admissibility decisions which make clear that the European Court of Human Rights is unlikely to address the matter soon, this article critically examines this unprecedented ‘purge’ from the perspective of ECHR law. It specifically focuses on the application of Article 8 of the ECHR and Article 6 together with Article 13 of the ECHR, drawing analogies with the European Court’s case-law on lustration proceedings. It finds that, even having regard to the exceptional circumstances at hand as well as the Turkish derogation from the ECHR, the Turkish ‘purge’ of public servants cannot be reconciled with the state’s obligations under the ECHR.

Tom Ruys (editor) Olivier Corten (editor) Alexandra Hofer (assistant editor)
The Use of Force in International Law: a Case-based Approach

The international law on the use of force is one of the oldest branches of international law. It is an area twinned with the emergence of international law as a concept in itself, and which sees law and politics collide. The number of armed conflicts is equal only to the number of methodological...

The volume comprises 66 chapters including contributions by GRILI members Tom Ruys, Alexandra Hofer and Luca Ferro.

Full list of authors: Constantine Antonopoulos, Karine Bannelier, Janina Barkholdt, Susan Breau, Wenke Brückner, Michael Byers, Enzo Cannizzaro, Kenneth Chan, Théodore Christakis, Olivier Corten, Fanny Declercq, Ashley Deeks, Oliver Dörr, François Dubuisson, Luca Ferro, Mathias Forteau, Gregory H. Fox, Daniel Franchini, Tarcisio Gazzini, Terry D. Gill, Christine Gray, James A. Green, Douglas Guilfoyle, Andrea de Guttry, Gerhard Hafner, Nabil Hajjami, Wolff Heintschel von Heinegg, Mohamed S. Helal, Christian Henderson, Etienne Henry, Alexandra Hofer, Jörg Kammerhofer, Maurice Kamto, Pierre Klein, Robert Kolb, Marcos Kotlik, Vaios Koutroulis, Claus Kreß, David Kretzmer, Dino Kristiotis, Jean-Christophe Martin, Lindsay Moir, Sean D. Murphy, Anne Lagerwall, Eliav Lieblich, Georg Nolte, Benjamin K. Nußberger, Mary Ellen O'Connell, Alexander Orakhelashvili, Ki-Gab Park, Mónica Pinto, Erin Pobjie, John Quigley, Aurora Rasi, Theresa Reinold, Natalino Ronzitti, Tom Ruys, Alison See, Ying Xiu, Paulina Starski, Raphaël Van Steenberghe, Christian J. Tams, Kinga Tibori-Szabó, Dire Tladi, Kimberley N. Trapp, Nicholas Tsagourias, Antonios Tzanakopoulos, Agatha Verdebout, Ugo Villani, Christian Walter, Marc Weller, Erika de Wet, Nigel White, Myra Williamson, Sir Michael Wood

Luca Ferro Nele Verlinden
Neutrality During Armed Conflicts: A Coherent Approach to Third-State Support for Warring Parties

Chinese Journal of International Law, volume 17(1), 2018, pp. 15-43

The law of neutrality and the principle of non-intervention both promulgate neutrality norms pertaining to third-state assistance for belligerent parties embroiled in an international or non-international armed conflict. This article compares and contrasts these two legal frameworks and assesses whether they work in perfect harmony or, on the contrary, establish different standards of behaviour depending on the type of armed conflict. Additionally, by approaching both regulatory frameworks simultaneously, conceptual uncertainties hindering their effective application in practice can be clarified. It is submitted that by adopting such a holistic approach, fresh insights are offered on the “duty of neutrality”, sensu lato, during armed conflicts under international law.

Alexandra Hofer
'The "Curiouser and Curiouser" Legal Nature of Non-UN Sanctions: The Case of the US Sanctions against Russia'

Journal of Conflict and Security Law, volume 23(1), 2018

This article presents the legal conundrums arising from non-United Nations (UN) sanctions adopted by States as a means to enforce international law. Though the international legal system has developed various categories of self-help measures—from forcible acts of self-defence to non-forcible acts of retorsion or countermeasures—applying these labels to State practice can be challenging. These complexities are perceptible in the US sanctions adopted against Russia for its alleged role in the Ukrainian crisis. Assessing the legality of the US sanctions leads to questions regarding the nature of Russia’s actions in Ukraine, the purpose of the sanctions, who is targeted and why, the US standing to respond to Russia’s policies in Ukraine, etc. This article provides tentative answers but ultimately points to the gray areas governing non-forcible measures. It follows that, despite appearances, the legal framework governing non-UN sanctions is messy in practice and leads to more open-ended questions than reassuring answers. The difficulty in applying seemingly clear-cut legal rules to unilateral sanctions is perhaps due to the fact that States principally conceive of sanctions as policy tools and do not necessarily adopt unilateral acts to enforce legal obligations. Consequently, if international law wants to have an impact on State practice and provide for effective enforcement it is necessary to bridge the gap between legal theory and political practice.

Gert Vermeulen Ellen Desmet
Essential Texts on European and International Asylum and Migration Law And Policy

This volume comprises the relevant legal instruments and principal policy documents in the area of international and European asylum and migration, including the latest versions of pending legislative proposals. The range of issues covered is comprehensive: human rights; nationality and statelessness; equal treatment, non-discrimination, racism and xenophobia; citizenship, residence and free movement; borders, border management and entry; visa and passenger data; labour migration; family reunification; asylum, subsidiary and temporary protection; irregular migration; and trafficking in human beings.
The texts have been ordered according to the multilateral co-operation level within which they were drawn up: either the United Nations, the Council of Europe or the European Union (including Schengen-level instruments).
This edition provides practitioners, authorities, policy makers, scholars and students throughout Europe with an accurate, up-to-date and forward-looking compilation of essential texts on asylum and migration matters.

Eva Brems Ellen Desmet
Integrated Human Rights in Practice Rewriting Human Rights Decisions

This book aims to introduce concrete and innovative proposals for a holistic approach to supranational human rights justice through a hands-on legal exercise: the rewriting of decisions of supranational human rights monitoring bodies. The contributing scholars have thus redrafted crucial passages of landmark human rights judgments and decisions, ‘as if human rights law were really one’, borrowing or taking inspiration from developments and interpretations throughout the whole multi-layered human rights protection system. In addition to the rewriting exercise, the contributors have outlined the methodology and/or theoretical framework that guided their approaches and explain how human rights monitoring bodies may adopt an integrated approach to human rights law.

Tom Ruys
Sanctions, retorsions and countermeasures: concepts and international legal framework

in L. van den Herik (ed.), Research Handbook on UN Sanctions and International Law (Edward Elgar: Cheltenham)(2017), pp. 19-21

This chapter aims at giving a broader overview of the concepts of sanctions and countermeasures and the overarching international legal framework. At the outset, a note of caution is due. In spite of the laudable efforts of the International Law Commission, the issue of enforcement by means of non-forcible measures is and remains ‘one of the least developed areas of international law’. Notwithstanding its importance, it remains plagued by a variety of delicate controversies and grey areas. The present chapter’s aim is essentially to map the main knowns and, perhaps even more so, the main unknowns. Section 2 looks at the extent to which sanctions may constitute mere ‘unfriendly’ retorsions that largely operate below the radar of international law. In the alternative, Section 3 examines the main accepted legal bases which may justify the recourse to sanctions by States and organizations. Section 4 turns to the controversy over the legality of third-party countermeasures. Section 5 concludes.

Eva Brems Ellen Desmet Wouter Vandenhole
Children’s Rights Law in the Global Human Rights Landscape

Children’s rights law is often studied and perceived in isolation from the broader field of human rights law. This volume explores the inter-relationship between children’s rights law and more general human rights law in order to see whether elements from each could successfully inform the other. Children’s rights law has a number of distinctive characteristics, such as the emphasis on the ‘best interests of the child’, the use of general principles, and the inclusion of ‘third parties’ (e.g. parents and other care-takers) in treaty provisions. The first part of this book questions whether these features could be a source of inspiration for general human rights law. In part two, the reverse question is asked: could children’s rights law draw inspiration from developments in other branches of human rights law that focus on other specific categories of rights holders, such as women, persons with disabilities, indigenous peoples, or older persons? Finally, the interaction between children’s rights law and human rights law – and the potential for their isolation, inspiration or integration – may be coloured or determined by the thematic issue under consideration. Therefore the third part of the book studies the interplay between children’s rights law and human rights law in the context of specific topics: intra-family relations, LGBTQI marginalization, migration, media, the environment and transnational human rights obligations.