The Story Behind the Treaty

This short film by the International Red Cross explains some of the background behind the Arms Trade Treaty signed last week by over 60 countries.

In the film Kathleen Lawand, Head of the Arms Unit at the International Committee of the Red Cross emphasised the importance of key aspects of the Treaty. She points out that the Treaty states that a country  “shall not authorise the transfer of weapons if it knows that these weapons would be used to commit genocide crimes against humanity or war crimes”

She adds that the Treaty also says “that even if a state does not know for sure that the weapons would be used to commit such crimes it must assess the risk that they could be used to commit serious violations of international humanitarian law or human rights law”.

This is particularly significant in terms of the legal context of the Treaty, as well as shifting responsibility of the consequences of arms exports onto the exporting states.

Arms Trade Treaty: First Step for International Justice

The Arms Trade Treaty (ATT),  which was signed by 67 states last week, offers a much needed response to the human suffering caused by the widespread availability of weapons. The new Treaty stipulates that states must not transfer weapons or ammunition, if they know that these would be used to commit certain war crimes.

The UN Secretary-General Ban Ki-moon’s stated:

“I wholeheartedly welcome the adoption, today, of a first-ever Arms Trade Treaty by the General Assembly. It is a historic diplomatic achievement — the culmination of long-held dreams and many years of effort.”

The Treaty signing event

The Treaty was adopted by vote by 154 members states on the 2nd of April 2013, with 23 abstentions and only three countries voting against – North Korea, Iran and Syria. Ban Ki Moon was optimistic about the impact this legislation will make in addressing human rights violations and armed conflict.

“It will be a powerful new tool in our efforts to prevent grave human rights abuses or violations of international humanitarian law. And it will provide much-needed momentum for other global disarmament and non-proliferation efforts.
I applaud states for their willingness to compromise on a number of complex issues, thus making it possible for us to have a balanced and robust Treaty text. I commend the members of civil society for the critical role they played from the inception of this process, through their expert contributions and enthusiastic support.”

The United States’ representative emphasised that “This Treaty sets a floor, not a ceiling” for the regulation of the international trade in conventional arms. Stating that when taken together, the Treaty’s articles provided a “robust and complementary” framework that would “ensure responsible behaviour” by state parties.

South Africa’s delegate added that the Treaty “filled a glaring gap” in the global conventional arms control system, by introducing high norms and criteria to which states would adhere when considering arms transfers. Under the Treaty state parties will be required to establish national transfer control legislation, as well as official administrative guidelines, national inspectorates, punitive and practical enforcement measures for transgressions.

Among those not in favour of the Treaty, Syria’s delegate pointed out that a number of states were supplying weapons to “terrorist groups” including those in Syria, and that this explained why they objected to a paragraph banning the supply of weapons to unauthorized non-State actors. “This is political hypocrisy, and a clear indication that the draft Treaty is greatly selective and, thus, cannot reach consensus.”

However, the representative of Colombia, Néstor Osorio, who was also speaking on behalf of a number of other countries (the Bahamas, Belize, Chile, El Salvador, Guatemala, Jamaica, Mexico, Peru, Trinidad and Tobago and Uruguay), said in the circumstances the resulting text was the best that could have been achieved. As it “created a common international regime to regulate the arms trade, and offered the chance to further develop a more robust control regime, notably through amendments to the Treaty and adjustments to implementation at the Conferences of States Parties”.

The delegate of Argentina signing the ATT, 67 states have signed the Treaty since it was opened for signature on the 3rd of June last week.

The ambassador of Australia, Peter Woolcott received praise for the transparent manner in which he conducted his presidency of the Final Conference that produced the final version of the text. Ambassador Roberto García Moritán of Argentina, was also recognised for his longstanding commitment and staunch leadership of the ATT process.

The adoption of this Treaty demonstrates the instrumental function of the United Nations in providing a platform through which governments and civil society can work together. Ban Ki Moon indicated that the adoption of the Treaty is only the first step and called upon “all Governments to join forces with civil society to ensure its full and effective implementation”.

German Courts Refuse to Bow to US Pressure in MegaUpload Case

A German court in Frankfurt (Beschl. v. 14.05.2012 – Az.: 5/28 Qs 15/12) has ruled that a request for mutual legal assistance from the United States regarding stripping assets belonging to Kim Dotcom, has no basis for legal action in Germany.

Mural of Kim Dotcom painted by Cart’1 courtesy of Thierry Ehrman – Abode of Chaos.

Kim Dotcom, the founder of the file-sharing MegaUpload site was arrested in Auckland, New Zealand in January of this year. He had been sought by the US authorities on copyright infringement charges relating to pirated content on his websites.

As a part of the criminal investigation against the file-sharing service Megaupload, certain assets were supposed to be removed. This request was issued by the American FBI when they called for legal assistance from the German authorities.

The Frankfurt judges have since rejected this request, because it contains insufficient evidence. The US legal team failed to demonstrate that a web hosting service for the illegal upload of copyrighted files, amounts to a  criminal offence.

According to the German ‘Telemediengesetz’ (communications legislation), a hosting service for foreign files will generally not be accountable unless the host had active knowledge of illegal activity. The judges also emphasised that the concept of knowledge is limited to positive knowledge. Therefore if the service provider believes that it is possible or likely that a specific piece of information is stored on their server, this is not sufficient evidence of knowledge of abuse.

According to the court ruling, there is no legal obligation to monitor the transmitted data or stored information or to search for any illegal activity.

Since the US legal team did not mention any other circumstances that could constitute a criminal offence in their request for mutual legal assistance, the German court concluded that their request for the recovery of assets is unfounded.

BBC Radio 4: Focus on International Child Abduction

The BBC Radio 4 Face the Facts programme gives an introduction to international child abduction cases affecting parents in the UK. It focuses on signatories to the Hague Convention and on the difficulties in dealing with non-Hague Convention countries. The programme features stories of individual parents as well as legal experts on international child abduction – Lord Justice Thorpe and barrister Jacqueline Renton.

A recording of the programme is available here.

Update on the Grin Case: Petition to the US Secretary of State

There have been new developments in relation to the Grin case. A petition has been launched addressing US Secretary of State Hillary Clinton, in an effort to help bring home four American children abducted by their non-custodial mother and illegally taken to Russia. The children were living in Florence, Italy with their custodial father before they were abducted by their mother, who lost custody a year earlier when she was found to be psychologically unfit to be a parent.

The family is now urging the US State Department to help by working with the Russian Foreign Minister to read the court documents and understand the severity of the situation and to get these children safely back home to Italy. This petition is a desperate attempt to accelerate the process of returning the children from Russia.

You can sign the petition here.

US Supreme Court Rejects Blackwater Appeal – What does this mean for the accountability of Private Military Firms?

There are serious legal and human rights concerns about private military companies providing “security services” in conflict areas. Where the strict hierarchical discipline of the military is avoided, you may wonder who these companies are accountable to.

The recent Supreme Court decision regarding Blackwater Worldwide the US private security firm that operated in Iraq has left the door open to the possibility of holding these private firms accountable for unlawful violence in war zones.

On September 16, 2007 heavy gunfire erupted at the busy Nisour Square junction, killing at least 14 civilians including a 9 year old boy and leaving dozens injured. The shots were fired from a convoy of four armoured vehicles manned by Blackwater guards, who maintain that they were acting in self-defence after being shot at by insurgents.

Witnesses claim that the contractors were never in any danger and shot at civilians mercilessly and unprovoked. The chief prosecutor Kenneth Kohl disclosed that other Blackwater guards who had been on the convoy involved in the Nisour Square shootings reported the incident to Blackwater management, one guard describing it as “murder in cold blood“. However it appears that the  management failed to report these statements to the State Department.

The case had previously been thrown out by federal judge Ricardo Urbina on December 31, 2009 who cited misuse of statements made by the defendants by investigators.  The state department had ordered the guards to explain the details of the incident to investigators under the threat of losing their jobs. Their lawyer argued that using these statements to charge the four men amounted to a violation of their  constitutional right against self-incrimination and were made under duress.

However the charges were reinstated in April 2011 when a federal appeals court reopened the case and ordered the review of evidence against each individual defendant. The US Supreme Court refused to dismiss the manslaughter and weapons charges against the four defendants Paul Slough, Evan Liberty, Dustin Heard and Donald Ball and has declined to comment.

This is a small victory in holding private firms accountable for their actions in war zones. The privatisation of war and the use of private military firms is becoming increasingly prevalent and raises serious concerns over accountability. While this is not an isolated incident and it is likely that many unlawful actions by such contractors can go unnoticed due to the nature of their work, it provides a step towards creating a framework in which these companies could be held responsible for their actions.

Due to the transnational nature of many private military firms it is increasingly difficult to hold these companies responsible for the actions of their employees. The fact that these firms work in states in which the government has collapsed or is unable to enforce the necessary laws due to the condition of the state the operations of these firms often go unnoticed even if they are largely acting outside of the law.

Blackwater later changed their name to Xe Services, and after being unable to shake their bad reputation decided on a further name change now calling themselves Academi.

Children In A Legal Vacuum: International Child Abduction

Many of us take on work or studies in a foreign country, and some of us end up having a family with someone of a different nationality. All great for international understanding? Well usually. But if the relationship breaks down, this type of globally mobile lifestyle brings new challenges for the family courts. Where do you file for a divorce? What about custody and visitation? What if the custody battle turns acrimonious?

With the increase in transnational marriages, international parental child abduction has become a serious problem that affects both individual states and the international community.  Parents who feel unfairly treated by the family courts may  “forum shop” taking the kids into a new legal jurisdiction that will be more likely to rule in their favour, thus sparking a re-run of their custody case. The Hague Convention on International Child Abduction is designed specifically to prevent this border-hopping between nations; signatory countries agree to accept decisions already made in another jurisdiction and to promptly return abducted children to their place of habitual residence.

The UN Convention on the Rights of the Child also obliges states to ensure that national borders are not used to prevent children from having contact with their family. Signatory states commit to ensuring the continuity of a child’s life when a substantial part of it resides in another country.

Yet it is one thing to accept that is in the child’s best interests to maintain contact with their family and promptly return home; it is another to actually carry this out.

While international legal conventions are designed to regulate cross-border disputes and harmonise legal proceedings, these are not always enforced with appropriate urgency and are frequently evaded or blatantly disregarded. Although parental abduction has been defined as amounting to child abuse, the rights of the child are sadly often ignored in international abduction cases, with nationalistic posturing taking precedence.

Families living abroad are away from the steadying influences of friends and extended family, and may also slip through society’s safety nets of schools, doctors, social workers and counsellors. Who is going to follow up on a family that has moved abroad? Who will bother to find out the background of a family newly arrived in a country? If you don’t speak the language, how can you seek advice and counselling? National laws governing family issues must be adapted to the changing international culture and to reflect the ease of international travel and the transnational nature of many modern families.

US-Italy-Russia

The recent case of the Grin/McIlwrath children highlights the numerous failings of the Russian authorities to work together with their Italian counterparts to protect the children involved. Grin, a Russian-born US citizen who was living in Italy, abducted her four children from their American custodial father in Florence. She travelled to Russia with the children despite Italian court rulings which removed her custody rights and indicated that the children were at risk if they remained with her. Her children have since been placed in Chabad-Lubavitch institutes/orphanages in St Petersburg at her request “for their own safety”.

The plight of the children, who are fluent in both English and Italian, has not even been acknowledged by the Russian authorities. It appears that the obligation of the state to ensure their safety and well being, and contact with their family and friends in Italy in the US, has been completely overlooked since they have been moved into a new jurisdiction, despite the fact that Italy, the US and Russia are all signatories to the Hague Convention.

Russian authorities have similarly done nothing to end the children’s isolation from family and friends, nor ensured they are safe from the risks identified in the Italian court proceedings.

Canada-Poland

In a parallel case two Canadian boys, Alexander and Christopher Watkins, were abducted by their Polish mother after her custody was revoked due to child-neglect. The boys were taken via the US and into Germany where the trail went cold. The Canadian authorities voiced serious concerns about the safety of the children and the ability of the mother to care for them, an Interpol red notice was issued and the mother was put on Canada’s most wanted list. When the children were finally located in Poland, the father immediately applied to have the boys returned home. At the December hearing in Poland the judge ruled that the children are now settled in Poland and should not be returned to Canada. This is despite the boys’ school in Poland independently suing the mother for child neglect. The appeal will be heard on May 16th 2012.

Leaving the children in the care of a demonstrably neglectful and potentially abusive parent is a clear breach of the Convention on the Rights of the Child. Refusing to return the children to the custodial parent is a violation of the Hague Convention. That Poland as an EU member state is not being held accountable for the misapplication of these laws and agreements as well as blatantly ignoring Interpol red and yellow notices raises concerns for the quality of European law.

Although both cases have a non European element they both involve EU borders. The issues of cross-border problems arising from divorce or family problems should be tackled more effectively within the EU. While there is often talk of the unification of laws in the EU there is a clear lack of co-operation when it comes to family law. In a region in which members of EU states can move freely between and within numerous jurisdictions the legal tools must exist to deal with the resulting problems of this freedom of movement.

It’s not clear why the Hague Convention is largely ignored in many states, possibly it is percieved by the national judiciary as meddling from outside, maybe it’s just a sign of the general distrust of and reluctance to co-operate with another country’s legal systems, or it could just be plain nationalism: siding with the parent of the same nationality.

If the unification of laws in the corporate sector is moving ahead, why are the laws governing our private lives being left behind? The creation of networks such as Interpol, Europol and various UN initiatives have offered little assistance in addressing problems arising from transnational familial relationships, especially those involving children. While numerous national and international legal measures have been created to uphold the rights of the child, their application has been limited. The enforcement of existing laws and international agreements has not been enough to protect children from the dangers of international child abduction.

Immediate action is essential in cases of child abduction because of the age and vulnerability of the children compounded by the volatility of a parent who is putting their own child through the trauma of abduction. Yet both Poland and Russia have failed to act on these cases, posing a serious risk to the children involved. The person posing the greatest danger to an abducted child is the abductor.

This article is also available on the Huffington Post.

Nationalism and International Child Abduction: Russian Court Rejects Forum Shopping

There have been further developments in the case of Marianne Grin, previously reported here. On April 12, 2012 the Russian court in St. Petersburg , rejected an application by Grin to initiate proceedings which would allow her to have the children living with her in Russia.  The court ruled that the Italian court retains the proper jurisdiction to determine the issues that Grin was still in the process of litigating, when she abducted the four children from their custodial father in Italy last year.

The recent decision is already being hailed as evidence of the increasing sophistication and independence of the Russian judiciary. This goes against the stereotypical view that Russian courts will seize jurisdiction in international cases in order to favour Russian citizens in disputes.  See, for example, the comment by Dimitry Litvinski, a Russo-Franco practitioner in Paris: http://blog.pravo.ru/blog/3421.html  Litvinksi observes that the Russian judge showed proper regard to international legal norms, the competence of a foreign court to decide issues that were before it, and little tolerance for opportunistic forum shopping.

The decision may also may be motivated primarily with the interests of Russian citizens in mind.  In international child abduction cases, Russian courts are known to favour Russian parties.  Theoretically this would allow the few Russian parents who manage to abduct their children, to be successful in keeping them in Russia once they arrive, regardless of any foreign rulings.

International abduction cases are relatively rare, as they involve illegal conduct of the abducting parent.  Thus, for every foreign parent who is unable to secure the return of a child because of the nationalistic reputation of Russian courts, there are many more law-abiding Russians who are divorcing in foreign countries and who suffer as a consequence.

Given the absence of an effective means to secure the return, foreign courts will often prevent Russian parents from taking a child to visit their grandparents.  Thus, the Grin decision actually helps Russian parents living abroad, as they may cite it as evidence that a foreign decree regarding children will be honoured.  Unfortunately, the grounds on which Grin’s application was rejected were narrower than the court might have ruled.

In many child abduction cases the issue of “forum shopping” is becoming more prevalent in a world where travel and access to information is at our fingertips. The abducting parent may “forum shop” for the country most likely to favour/allow their illegal actions concerning their child e.g. failing to apply the Hague Convention. The evident forum shopping by Grin did not escape the court’s attention.  She was simultaneously participating in proceedings in Italy, where she had been filing the same charges against the father since 2009.  After receiving an adverse interim determination, Grin submitted her application to the Russian court in 2012. The court observed, perhaps with a smile, that Grin had not even registered the children at a Russian address until February 2012, just weeks before the judgment was issued.  The court noted that none of the children had previously lived in Russia.

In rejecting Grin’s application, the court rightly noted the danger of potentially inconsistent determinations between the same parties on the same issues in two different countries. So the earlier proceeding must go first.  But in reaching this conclusion, the court relied on a bilateral convention between the countries for the recognition and enforcement of judgments in civil cases.  While the existence of the convention no doubt reinforced the grounds for rejecting Grin’s claim, it would have been better had the judge simply adopted the view that earlier-filed proceedings on the same issues between the same parties should always be given precedence.

Consequently, Russian citizens going through a divorce in a foreign country may claim reliance on this ruling only where they can point to the existence of a similar bilateral agreement. Without such an agreement, a foreign court would – and should – remain skeptical as to whether a Russian court would enforce a foreign ruling.

As for the Grin case itself, the real outcome may spoil the good news in court.  The decision has still not led to the return of the children to Italy and neither the father or the remaining family have been able to communicate with them.  Due to other concerns expressed about her state of mind, it is not surprising to learn that Grin, having broken the laws of Italy, has now started ignoring the laws of Russia as well.