9/19/2021 The Amnesty Exception: The Oscillating Stance between Legality and Illegality in International JurisprudenceRead NowThis article is authored by Diya Rajesh Kumar Vaya, a Third Year Student of B.S.W. LL.B. at Gujarat National Law University, Gandhinagar.
Overview Peace and justice are the two important considerations that arise in a post-conflict society. However, they are often seen as incompatible goals. The paradoxical issue of peace vs justice has been omnipresent in the international law discourse. This issue has become even more complex with the contemporary application of amnesties for those involved in human rights abuses, including crimes against humanity, as in the case of Libyan Saif-Al-Islam Gadaffi. While there exists a presumptive general ban on blanket amnesties, the legality of situation-specific and conditional amnesty vis-a-vis international law is yet to be conclusively determined. Some scholars proclaim that there exists a moral and legal duty to prosecute perpetrators of grave international crimes to ensure justice and deter impunity. However, others point out the benefits of a conditional amnesty to thwart the danger of potentially destabilizing peaceful restructuring and reconciliation of the society by insisting on prosecution. In such an ambiguous situation, it is critical to determine the legality and validity of a national amnesty for those committing human rights abuses, under international law. This essay aims to, first, decode the existing jurisprudence surrounding the legality of an amnesty under international law, second, examine the decision of the ICC Appeals Chamber in the 2020 Gaddafi Admissibility Decision and third, recommend a holistic criterion to determine whether an amnesty is acceptable under international law in a particular case. Introduction An amnesty is a sovereign act of oblivion for past acts, granted to individuals guilty of crime. It may be based on certain conditions and a reassurance that they will not repeat the same acts. Those in favour argue that it is a necessary restorative measure to ensure that the society peacefully undergoes reconciliation and is protected from social and political isolation. Those who are against it argue that the grant of an amnesty brings about impunity, unaccountability, allows criminals to easily escape lability, and prevents victims from achieving true justice. Hence, the question of the grant and use of an amnesty, to allow the perpetrators of heinous crimes to escape criminal liability, has gained a controversial reputation. Ascertaining the international legal status of amnesties is a complicated procedure due to two main reasons: first, there is no consensus on the treatment of amnesties under international law. Second, while international treaties mention an explicit duty to prosecute, there is neither mention of the validity, legality or effect of the grant of an amnesty to such violators, nor an explicit ban on amnesty. Decoding the International Jurisprudence on the Legality of Amnesties The oscillating stance of international law on the issue of amnesties is a matter of concern. While it is argued that the jurisprudence on this issue is developing, presently the ambiguity is blinding. Various treaties such as the Geneva Conventions 1949, Rome Statute of the ICC, Genocide and Torture Conventions explicitly provide for a duty to prosecute crime of a grave nature which includes "grave breaches," crimes against humanity, genocide, crimes of aggression, war crimes, torture etc. Yet, some commentators argue that an amnesty exception does exist within the Rome Statute based on an interpretation of its provisions. First, Article 17(1)(b), provides that in situations wherein the State having jurisdiction decides not to prosecute the accused, the ICC will declare a case inadmissible. However, if the State is unwilling or unable the ICC may exercise its jurisdiction. Second, Article 53(2)(c), which allows the Prosecutor to refuse prosecution where, “a prosecution is not in the interests of justice,” Third, on the basis of Article 16 which gives the Security Council discretionary power to defer proceedings. Fourth, under Article 15, which gives the Prosecutor discretionary powers to decline to prosecute proprio moto. Moreover, Article 6(5) of Additional Protocol II is often invoked to justify the grant of amnesties for war crimes. Several courts have used this provision to support their findings that amnesties are valid under international law, such as the AZAPO case. However, the ICRC interpretation of Article 6(5) states that this provision only provides for "combatant immunity," and cannot be applied to those who violate international law. Hence, it is clear that while treaty-based law places an obligation to prosecute upon States, there is no explicit preclusion of amnesties to alleged perpetrators. The Inter-American Human Rights System has produced comparatively detailed amnesty case law due to the frequent use of amnesties in South America. These judgments conclude that amnesties that prevent investigation and prosecution of international crimes, such as war crimes, crimes against humanity, including serious human rights violations are impermissible. The IACHR, has explicitly determined that blanket amnesties granted by Chile, Peru, Argentina and El Salvador were incompatible with the rights under the ACHR, led to a complete derogation of human rights and the principles of natural justice. Further, The ICTY pointed out the frivolity of States adopting national measures that absolve its perpetrators from prosecution through an amnesty law for jus cogens norms. It reflected the international consensus against amnesties by stating that amnesties are generally opposed to the duty of States to investigate, to protect and guarantee non-repetition. There have been various other instances where the grant of a national blanket amnesty has been declared illegal. However, there have also been instances where a qualified or conditional amnesty has been appreciated and accepted under international law. The prime example of an amnesty that was deemed acceptable was in the case of South Africa. The South African Constitutional Court upheld the legality of the amnesty granted. The main argument was that a Truth and Reconciliation Commission had been appointed to unearth the truth, the amnesty was conditional and not granted to all, it was granted on individual case-to-case basis and efforts were made to rehabilitate the victims. Recently, in 2014, the Grand Chamber of the European Court of Human Rights paved way for the possibility of the acceptance of an amnesty which includes compensation for the victims or some reconciliation. The International Law Commission’s Special Rapporteur on Crimes against Humanity also established that national amnesty laws should be be judged on a case by case basis. Hence, there is no uniformity in the jurisprudence that has developed over the years. There exists acute confusion and ambiguity in the legal treatment of amnesties under international law. However, while there is no explicit general ban, blanket amnesties are generally considered unacceptable. Amnesties that are unconditional and only enacted as a "sham trial" will not be accepted. A conditional amnesty may be accepted, based on the circumstances and conditions of its grant. Examining the Legality of the Amnesty Granted in the Case of Sail-Al-Islam Gaddafi Recently, the case against Saif-Al-Islam Gaddafi was declared admissable by the ICC. While the Court did not rule on the legality of the national amnesty, it reversed the holding by the Pre-Trial Chamber that the grant of amnesty for crimes against humanity is incompatible with international law. There is clear reluctance on part of the ICC to place an explicit ban on amnesties. While the Appeals Chamber did not rule on the legality of the amnesty law, the Prosecutor's Office in its response argued that the Libyan national amnesty law was invalid on various grounds. They argued that, first, the law did not exclude any category of perpetrators and included even high office holders or those with high responsibility who led the crimes. Second, the law allows exclusion from liability in international crimes, which is against the international legal consensus developed over the years. Third, the law didn’t provide for any effective means of accountability or reparations to the victims. Fourth, while the law does provide for the grant of amnesty through a reasoned judicial decision, it does not provide for transparency of the procedure. Fifth, there is no evidence that Gaddafi contributed to any peace-building efforts or that the grant of amnesty to him will contribute to any peace or reconciliation. The reluctance of the ICC to conclusively rule on the subject of amnesties is premised on the argument that a conclusive rule can cause future complications. However, the Prosecution's arguments in this case show a growing trend towards the acceptance of a conditional amnesty that is truly involved in peaceful rehabilitative efforts. A very interesting aspect of these amnesties is the focus on victims. While criminal prosecution is sidelined, justice is not. An amnesty, to be legal, must provide for rehabilitation of individual victims and involve a judicially transparent procedure. These aspects definitely make conditional amnesties a worthy option vis-a-vis criminal prosecution. Recommended Criteria to Determine the Legality of an Amnesty in International Law There are certain guidelines and uniform practice that have been adopted in several cases, as well as certain fundamental positions of law have been reiterated time and again. This allows us to make certain strong inferences. The most important guidelines on amnesties are the Belfast Guidelines, which allow us to create a perspective of valid and legal amnesties as opposed to illegal and blanket amnesties. These guidelines have also been cited by the ICC. Based on the jurisprudence that has developed, it is clear that for an amnesty to be valid under International Law, certain pre-conditions need to be fulfilled: First, an amnesty must achieve objective of establishment of peace and initiating or furthering reconciliation. There is evidence that amnesty and truth and reconciliation procedure of South Africa, though criticized, prevented a civil war. The UN has also supported amnesty agreements that covered international crimes that were necessary to end military stand-offs in Haiti. Belfast Guideline 4A also states that for the pursuit of peace, accountability, disarmament and certain objectives, an amnesty can be given. Second, the amnesty must be given along with other measures of eliciting accountability such as truth commissions, investigatory bodies, etc. This idea of justice implies that a conditional amnesty with an effective truth commission could bring justice. United Nations, has worked for establishing truth commissions as a mechanism complementary to criminal trials, with a limited amnesty to those “least responsible” for perpetrating the least serious crimes in post conflict Cambodia, Iraq, Afghanistan, etc. Belfast Guideline 5 reiterates the importance of accountability measures. Third, Blanket amnesties should be prohibited entirely. Amnesties negotiated between incoming and outgoing regimes to facilitate transition, with proper legal body making decisions on grant of amnesty should be created. Amnesties such as those granted in Spain and Argentina will not be allowed. Belfast Guideline 14 reiterates the same. Fourth, amnesties should be applicable only to subordinates, and NOT that those “most responsible” or high-level authorities responsible for perpetrating the crime. The grant of amnesty to Gaddafi, Pinochet, Sary, and other leaders who are the main powerful perpetrators is wrong. This exemplary approach was adopted in Cambodia as well as Sierra Leone, reiterated in Belfast Guideline 8. Fifth, amnesty should not be granted for jus cogens crimes such as torture, crimes against humanity, genocide, grave breaches of Geneva Conventions, etc. Guideline 7 of the Belfast Guidelines requires exclusion of serious international crimes from the grant of an amnesty. Sixth, amnesty should be granted only upon the fulfillment of pre-conditions such as surrendering, participation in restoration efforts to victims, truth telling, and a promise to prevent conduction of such crimes in the future. Belfast Guideline 11 and 12 state the same. International law as a legal regime needs to come to terms with existent political realities in order to remain relevant. These guidelines can serve as a framework in determining the legality of an amnesty granted in the present and the future. Conclusion A post-conflict state is often caught in an extremely vulnerable position, wherein it may be forced to grant amnesty in exchange for peace and end of violence as it transpired in South Africa. It is not pragmatic to pit peace against justice. The most cogent and practical manner to achieve the equilibrium between the two, is through the grant of a conditional amnesty that is in accordance with International Law. There is no doubt about the ambiguity surrounding the status of amnesties under international law. However, it is clear through the jurisprudence developed over the years, that a conditional amnesty, with measures of victim rehabilitation and accountability granted after a transparent judicial process is a worthy and credible way out of violence and war.
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This article is authored by Hriti Parekh, a Third Year student of Law at Hidayatullah National Law University, Raipur, India.
“International law today forms part of a legal hierarchy embracing a number of normative systems united by their ultimate dependence on those functional norms which may be well termed the international Constitution. It is this Constitution that the initial hypothesis or Ursprungsnorm of both international law and municipal law is to be sought.” - J.G. Starke[1] 1. Introduction International law makes no specific requirements for fulfilling obligations to integrate conventions or tradition into domestic legal frameworks. Furthermore, the mechanism of integrating international law into domestic law is not governed by international law. There is no diplomatic body in charge of enforcing the law.[2] States incorporate foreign law into their domestic legal systems in a variety of ways, depending on domestic law, such as statutory requirements and custom. However, before international tribunals, the state cannot disregard its commitments under international law. Even where international law disagrees with the parties' domestic rules, international tribunals can give effect to international law. If domestic legislation disagrees with the parties' treaty agreements, even the constitutions of the parties are ignored.[3] This article examines the general position of international law and domestic legal orders on the impact of international law in the Indian domestic legal system, as well as the method of implementing international law in India in the light of the seminal case of Jeeja Ghosh vs. Union of India. 2. Jeeja Ghosh vs. Union of India – A Critical analysis A Brief Summary of the Facts This case stemmed from a public interest lawsuit brought after Ms. Jeeja Ghosh, a disabled rights activist, was pulled from a Spice Jet Ltd plane at the Kolkata airport by its crew because the captain believed she was a danger to the aircraft. The Supreme Court ordered Spice Jet Ltd. to pay Ms. Ghosh Rs. 10 lakh in damages and advised authorities to amend air transport laws to prohibit discrimination against disabled people in airports and on planes.[4] The court also pointed to international law in drawing this decision, emphasizing the interests of people with disabilities. For instance, the “Vienna Convention on the Law of Treaties, 1963” prescribes India's internal laws to conform with foreign agreements, according to paragraph 13 of the judgment. A “State group... may not invoke the provisions of its internal law as justification for its failure to perform a treaty,” according to Article 27.[5] The Paradox between International Law and Domestic Law – An analysis of the Judgement The “Vienna Convention on the Law of Treaties” (VCLT)[6] was signed in 1969 and came into effect in 1980, so the court's reference to 1963 is puzzling. Regardless, the first sentence of para 13 appears to be an expression of the international law maxim of pacta sunt servanda. According to this premise, enshrined in Article 26 of the VCLT, any treaty ratified by a nation binds it, and treaty obligations must be fulfilled in good faith by the country.[7] By ensuring that the country's domestic rules are compliant with its treaty commitments is one way to uphold treaty obligations. The first sentence of paragraph 13 of the judgment reflects this feature. If this is the case, one might ask why, in the same para, the second sentence references Article 27 rather than Article 26. It seems that the court is defending its application of the pacta sunt servanda principle by citing Article 27 of the VCLT (which prohibits the use of domestic law as an excuse for international law violations), although it should have quoted Article 26.[8] The phrasing, if anything, demonstrates that the Indian Supreme Court also lacks full understanding on the essence of international law and its connection to India's domestic legal framework. As a result, a better interpretation of international law and how it interacts with domestic law is important.[9] Unlike in other nations, where international law is considered part of the law of the land even though it has not been transformed into national law (i.e. the concept of monism), “international law does not become binding under the Indian constitution unless appropriate domestic legislation is passed to give substance to it” (as we have already observed). Many concerns have also been raised by the Supreme Court's incorporation of International Law into the municipal system, which can be interpreted as “creeping monism”, which may obscure the line between monism and dualism, potentially limiting parliament's ability to implement laws. “Creeping Monism” – A Cause for Concern? According to Melissa A. Waters, an expert in International law, “Many common law judges, however, are eroding the traditional dualist approach as part of a phenomenon that I call creeping monism - that is, a gradual shift in judicial orientation toward a more flexible interpretive approach to unincorporated human rights treaties. No longer do they treat unincorporated human rights treaties as having no domestic legal effect. Instead, they are developing a wide range of interpretive incorporation techniques that enable them to utilize treaties in their work despite the absence of implementing legislation giving formal domestic legal effect to treaties.” [10] A judicial transition toward monism does raise questions about legitimacy. First, while conventional conceptions of authority and jurisdiction may be changing, this does not imply that traditional common law dualism's philosophical foundations have entirely eroded. Indeed, in a world where jurisdictional borders are becoming increasingly hazy, distinctions between the “national” and the “international” become much more relevant. Roger Alford has warned of the pitfalls of a “international counter majoritarian difficulty”[11] when domestic courts use international legislation to declare legislative actions unconstitutional, potentially overruling the will of the people as articulated by the legislature. 3. Varying Approaches of the Indian Courts – Case law based analysis The dualist approach of our India Legal System is observed in the following important cases: In “State of West Bengal v. Kesoram Industries,” the Supreme Court reaffirmed India's “doctrine of dualism,” stating that “a treaty entered into by India cannot become law of the land...unless Parliament passes a law as necessary under Article 253.”[12] In the case of J.G. Verghese v. Bank of Cochin, the Indian Supreme Court distinguished between treaty law and customary international law. The court stated that only treaty law would require the Indian legislature to pass laws in order to be enforced. The court held that, as far as customary law is concerned, courts can be bound by it even before the legislature has made the requisite amendments to Indian law.[13] In the case of “National Legal Services Authority v. Union of India,” the court stated: “If the Indian parliament passes laws that conflict with international law, Indian courts are obligated to apply Indian law rather than international law. In the absence of laws to the contrary, municipal courts in India will respect international law.”[14] In “Krishna Sharma v. State of West Bengal,” the Calcutta High Court stated that where there is a conflict between international and domestic law, courts should attempt to harmoniously construct the two. In addition, courts must examine the text and meanings of international instruments including treaties, conventions, and declarations.[15] In Vishakha vs. State of Rajasthan, it was observed that “regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law”.[16] However, In cases like “G Sundarrajan v Union of India” (2013), the Supreme Court has resorted to international conventions that are compliant with Indian law but that India has not ratified.[17] The most recent case was the WTO Solar Panels Case against the United States where India argued that “legislative action to implement a foreign instrument is expected only where there is conflicting domestic law”, citing its own Supreme Court jurisprudence. As a result, “even though there is no authorizing domestic legislation, foreign instruments that are compliant with domestic law become part of the law of the country.” The WTO Appellate Body, however, rejected India's claim, holding that applying international law to read India's domestic laws would not imply that these international instruments have “direct effect” in the Indian legal system.[18] 4. Proposed Changes to the Order The author proposes a normative framework based on the historical dualism/monism dichotomy to balance the conflicting questions posed by the interpretive integration trend and its weakening of strict common law dualism. Although common law courts are not required to follow a rigid dualist approach to international law, they should not completely abandon it. Instead, they should take a “dualist in orientation, monist in technique”[19] approach to their practice, in which they strive to incorporate the best of monist-oriented interpretive approaches while staying true to their historical dualist origins. In the light of the same, and taking all the previously discussed cases into account, the order of the SC in this case could have been differently written, in the following manner:
5. The way forward Domestic rules take precedence over international laws under the Constitution. Any international convention that is consistent with the fundamental rights and in accordance with its spirit must be read into those provisions in order to expand their scope and substance and to support the Constitution’s purpose. Ignoring international law is not the answer; amending the Constitution to make international law more effective is the answer, and that should happen through the legislature which is the supreme law-making body of the nation. The objective should be to provide an evaluation process that allows courts to grow into their emerging positions as mediators between domestic and international legal regimes. Domestic courts will, in the author’s opinion, play a greater mediating role in the future.[21] However, the mediating position must be established with considerable caution and consideration to questions about democratic legitimacy. One way is the domestic value structure proposed throughout this essay, which encourages courts to remain essentially dualist in orientation (and thus firmly embedded in the domestic polity), while also allowing them to consider at least certain limited uses of treaties in interpreting domestic law, making them monist in technique. [1]J.G. Starke, Monism and Dualism in the Theory of International law, 17 Brit.YB. Int'l. L. 66 (1936) at p. 81. [2]Sunil Kumar Agarwal, Implementation of International Law in India: Role of Judiciary, DEAN MAXWELL & ISLE COHEN DOCTORAL SEMINAR IN INT'L L., MCGILL U., at 1. [3]V.K. AHUJA, PUBLIC INT'L L. 42 (2016). [4](2016) 7 SCC 761 [5]Is the Supreme Court Confused About the Application of International Law? The Wire, https://thewire.in/law/supreme-court-international-law (last visited Jun 12, 2021) [6]Vienna Convention on the law of treaties, 23 May 1969. [7]Ibid. [8]Ibid. [9]Supra note 5. [10]Melissa A. Waters, The Judicial Trend toward Interpretive Incorporation of Human Rights Treaties, 107 Columbia Law Review , 628–705 (2007) [11]Roger P. Alford, Misusing International Sources to Interpret the Constitution, 98 Am. J. Int'l L. 57, 58-62 (2004). [12]Appeal (civil) 1532 of 1993 [13]1980 AIR 470 [14]AIR 2014 SC 1863 [15]AIR 1954 Cal 591 [16] AIR 1997 SC 3011 [17](2013) 6 SCC 620 [18]India's Solar Panel Dispute: A Need To Look Within The Wire, https://thewire.in/energy/indias-solar-panel-dispute-a-need-to-look-within (last visited Apr 23, 2021) [19]Supra note 10. [20]Supra note 5. [21]Supra note 10. This article is authored by Vaishnavi Chaudhry, a Third Year student of Law at Rajiv Gandhi National University of Law, Punjab.
Overview In the past few years, there has been an increased focus on using digital open-source intelligence (OSINT) for investigating war crimes. This is primarily because OSINT has made it easier for human rights investigators to identify, analyse and corroborate the extent of human rights violations. Though social media platforms such as Facebook, YouTube, and Twitter etc are used as mediums to circulate evidence of human rights violations in the forms of images and videos, it has been quite difficult to use such evidence for legal purposes. Against this background, it is critical to evaluate the role of open-source evidence from an international law and human rights perspective. In light of the same, this short essay will focus on the use of OSINT in conflict zones. It will also discuss the legal framework that has been laid down by the Berkeley Protocol on Digital Open-Source Investigation. OSI has played a critical role in determining the extent of human rights violations across different conflict zones. Though it has been used as a source of evidence for a relatively short period of time, its contribution in international criminal investigations and human rights violations has been significant. OSINT has proved to be instrumental in conducting investigations because it allows investigators to access those conflict zones that they otherwise would not be able to access due to security, diplomatic or logistical factors. In addition, civilians are also made a part of the investigation as they become primary sources of such evidence. In order to understand the importance of OSINT in conflict zones, its use in the Syrian Conflict has been discussed below- Open-Source Evidence and the Syrian Conflict Since the Syrian conflict began in 2011, the government has actively tried to prevent human rights groups from entering the country to investigate the crimes that were being committed against its civilians. Against this background, Syrian citizens resorted to using social media so as to highlight the cruel treatment that was being meted out to them by the Assad led government. Human rights organisations have largely depended on digital documentation to investigate human rights violations in Syria. One example would be the use of open-source investigation to document the March 2017 chemical weapons strikes on Al-Lataminah in Syria. This investigation was conducted by UC Berkeley’s Human Rights Investigations Lab in collaboration with the Syrian Archive. The Syrian Archive has been actively working to collect evidence about the human rights violations taking place in Syria. It has collected several verified videos of the chemical weapons attack, thus, establishing Syria’s violation of international law. It is important to note here that this use of digital technology has not just remained restricted to the Syrian Conflict. In 2017, a fact-finding commission was set up by the UN to investigate the large-scale human rights violations that were being committed against the Rohingya Muslims in the Rakhine State of Myanmar. However, the commission was denied permission to enter the country and subsequently, it had to rely upon digital OSINT to carry out its investigation. Similarly, open source investigation has been used in other conflict zones such as Libya, Cameroon and Yemen. These instances highlight the growing reliance of human rights groups on digital evidence. However, using such evidence to establish a state’s liability for perpetrating human rights atrocities against its citizens has proved to be difficult so far. The release of the Berkeley Protocol on Digital Open Source Investigation is bound to change that. This manual has been prepared in collaboration with the United Nations Human Rights Office of High Commissioner with the view of utilizing open source intelligence with respect to investigating war crimes and other human rights violations in conflict zones. For the past few years, a need for such a protocol was felt due to the lack of any legal standard to determine the validity of social media evidence in legal proceedings before international organisations such as the International Criminal Court. While there is a lack of jurisprudence surrounding the use of Open Source Evidence in International Criminal Trials, there are a few relevant cases on the issue such as the Ahmad Al Faqi Al Mahdi Case. In this case, the accused was a former member of an armed group called Ansar Dine. He was accused of having a hand in the destruction of nine mausoleums in Timbuktu. To prove his guilt, the OTP resorted to the use of open-source evidence that was collected in collaboration with open-source investigators and civil society groups. Open-source videos, photos and geospatial information were used to demonstrate the destruction that took place in Timbuktu before ICC judges. This case is remarkable in the sense that it allowed the OTP to utilise OSI evidence that was sourced, authenticated and analysed in such a way that it allowed her to establish Al Mahdi’s guilt. However, in a large number of cases, the authentication or verification of the OSINT & its subsequent admissibility continues to remain a challenge. The Berkeley Protocol seeks to address this challenge. Chapter III of the Berkeley Protocol The introduction of the Berkeley protocol acknowledges the role played by technology and particularly social media in increasing the circulation of open-source data or evidence. Subsequently, it highlights the need for a comprehensive and universal guide for aiding international criminal and human rights investigators in their work. In other words, the protocol lays down a uniform set of standards for effective investigation of violation of international criminal law, international human rights law and international human rights law. This encompasses human rights violations and international criminal law violation such as war crimes, crimes against humanity, genocide etc. Chapter III of the protocol lays down the legal framework pertaining to the process of open-source investigation. This chapter seeks to make sure that open-source investigators are aware of the legal framework that is applicable to their investigation. The rationale behind this is that investigations can be more successful if knowledge regarding the substantial laws and procedural laws across different jurisdictions is available to the investigators. Up until now, using open-source information in legal proceedings has proved to be a challenge. However, if the investigation is conducted in accordance with the rules of evidence of the relevant jurisdiction, then there is the possibility of evidence being far more admissible. Part B of the chapter addresses the complex issue of jurisdiction and accountability. It stresses upon the importance of the investigator’s ability to identify the applicable jurisdiction and accountability mechanisms. It suggests that in case the OSI are unable to ascertain the jurisdiction and accountability mechanism, the evidence should be collected and safeguarded in such a manner that it can be used across a range of ‘potentially relevant jurisdictions’. Part D of the chapter deals with the rules of evidence and procedure. This section highlights the duty of the investigators to make sure that the collected Open-Source Evidence is “admissible, relevant, reliable and probative” before international courts or tribunals. In any international criminal investigation, the required standard of proof is higher as compared to other investigations. This is to safeguard the accused’s right to due process and fair trial. In such a scenario, the threshold for admissibility of evidence is high and significant importance is attributed to the method of collection of evidence. Therefore, it suggests that open-source investigators should focus on ascertaining the veracity of open source evidence so as to prevent any probability of misinformation. Part E of the chapter goes on to discuss the relevance of the right to privacy and data protection. The right to privacy is enshrined as a fundamental human right in various human rights conventions such as the European Convention on Human Rights, American Convention on Human Rights etc. In light of the same, the investigator should ensure that there is no infringement of right to privacy in the course of collecting open-source evidence. Article 69(7) of the Rome Statute lays down that “evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible”. This means that that the ICC can exclude the evidence if it is obtained through violation of right to privacy. Conclusion The comprehensive legal framework laid down by the Berkeley Protocol can be transformational for the way open-source investigators carry out their investigations. The relevance of open-source evidence will only increase with time. At present, it is being used in a number of conflict zones and inaccessible places such as the Xinjiang province of China. Had it not been for OSINT, the true reality of state sponsored re-educations camps that are being run for Uighur Muslims would have remained hidden for a long time. Therefore, OSINT should be utilised to the fullest extent possible for international criminal investigations. This article is authored by Aditya Sharma, a 5th year student of B.A. LL.B. (Hons.), at Sybmiosis Law School, Pune, India. The United Nations General Assembly (hereinafter ‘UNGA’) is the principal deliberative and policy-making organ of the United Nations (hereinafter ‘UN’). It constitutes of all the 193 members of the UN, and due to its operational scope, serves as its governing body. It is the only UN organ endowing equal representation to all member states, and is responsible for general coordination and supervision over the subsidiary bodies of the UN. Apart from these, the UNGA has also been instrumental in enabling and supervising the operations of the International Law Commission, UNHCR, UNDP, and UNICEF. It can also initiate studies and make recommendations to ensure resolution of conflicts and international peace, despite matters regarding threats to peace and security primarily being dealt with by the UNSC. In addition to these, the UNGA has also served as a very important forum for discussions pertaining to global disarmament. The resolutions of the UNGA are advisory in nature. However, they are binding on internal matters such as elections and the budget. In fact, approval of budget of the UN has been regarded as the most concrete role of the UNGA. Further, by virtue of Article 10 of the UN Charter, it is empowered to pass non-binding resolutions on any matter under the purview of the UN. As most resolutions passed by the UNGA are not binding on the member states, it is pertinent to study the effects of a select few UNGA resolutions and their impact on global polity. This will provide us a qualitative insight into the efficacy of the UNGA and its resolutions. This piece principally deals with the divergent positions in the voting patterns of the members of the UNGA vis-à-vis the permanent members of the UNSC over the period between 2018 and 2020 to highlight the contrasts between the same, and strives to propose suggestions to strengthen the UNGA. Operational Effects of UNGA and its Resolutions The UNGA, by embodying the principle of ‘sovereign equality’ provided under Article 2 of the UN Charter, has played a tremendous role in gauging and consolidating collective consensus on a global scale. The formulation of the Universal Declaration of Human Rights and the Millenium Declaration of 2000 are successful products of such a global consensus garnered by the UNGA. Even the Declaration on the Granting of Independence to Colonial Countries and Peoples, which characterised foreign rule to be a violation of human rights, is a milestone in the efforts towards decolonisation. Additionally, one of the greatest successes of the UNGA has been the adoption of the 2030 Sustainable Development Goals, a set of seventeen actionable and trackable global goals to be achieved by the year 2030 for a sustainable future. Another resolution of significance is the Uniting for Peace Resolution, which enables the UNGA to propose collective measures for restoration of international peace and security in cases where the UNSC fails to discharge its duty owing to a political deadlock. This, in theory, provides the UNGA an alternative course of action to counteract the vetoes of the permanent members of the UNSC. Further, any resolution to this regard would require a two-thirds majority of the UNGA, thus holding greater moralistic legitimacy vis-à-vis the concerned UNSC position, as this would reflect the consensus of the entire global community. Statistical Analysis of Voting Pattern at the UNGA The operational effects of the UNGA, as summarized in the preceding section, have been largely driven by majorities secured over cross-regional coalitions of member states across the ‘North-South’ divide. The multipolar fluidity that has emerged at the present level of international political discourse has encouraged an increasing number of member states to challenge the shortcomings of the UNSC. A striking example of this shift in momentum can be observed from the discussions of the seventy-first session, where various members of the UNGA scathingly criticized the UNSC for its inaction in dealing with the Aleppo Crisis – a humanitarian crisis accentuated by the Russian involvement. Not only in this case, but also in several other instances, the political priorities of the permanent members of the UNSC, and the other members of the UNGA have a marked discordance. This is especially true when the former’s tendency to maintain status-quo of their near-hegemonic powers is juxtaposed with the growing aspirations of the developing member-states. To academically discern how divergence in the policy resolutions of the five permanent members of the UNSC vis-à-vis the other members of the UNGA plays out at the UNGA, it is pertinent to quantitatively evaluate the voting pattern of the member states with respect to UNGA resolutions. This review of the voting pattern is conducted by using the United Nations Digital Library database. The search criterion for this review are as follows: The members whose voting patterns were evaluated are as follows: The data so derived from the search criterion, is as follows: To ensure standardization, the data presented in Table 3 has been converted into percentage, which is as follows: To deduce a bloc-wise vote distribution, the statistical mean of the members constituting the bloc has to be derived from Table 4. This distribution is as follows: To ascertain the existence of a voting pattern, it is pertinent to check the year-wise deviation of the bloc-wise vote distribution presented in Table 5. In other words, the difference in the vote distribution over the years has to be calculated. This deviation is as follows: From Table 6, it can be ascertained that the deviation in bloc-wise vote distribution has only reached a maximum of three percent, thus reasonably establishing the existence of a probable voting pattern. This enables us to calculate the three-year statistical mean of the bloc-wise vote distribution presented in Table 5 to finally derive the voting pattern of the blocs. This voting pattern is as follows: From a conjoined reading of Tables 3 through 7, the following inferences can be drawn:
Closing Remarks The UNGA serves as the open conscience of the world. As already seen, its multilateral forum shapes the global policy of the UN and contributes to the progress of the modernization of international law and policy. Its supervision over the various facets of the UN has endowed moralistic legitimacy to the organization’s functioning. However, its abstruse and often divergent positions vis-à-vis the UNSC, led by its five permanent members, has hampered the execution of its policies, and by extension, its potential as the world’s leading representative assembly. In light of these inferences, the following suggestions serve as the closing remarks:
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