Medverkan i SR ekot om attacked via personsökare

 Jag har medverkar i SR Ekot 18 september 2024 nder rubriken "Misstänka attackerna i Libanon är ett brott mot folkrätten säger professor i folkrätt". Både jag och Said Mahmoudi var intervjuade, jag var inte lika säker på att det var en överträdelse av protokol II till CCW-konventionen som Mahmoudi var.

Här är två inlägg som drar åt olika håll: Milanovic och Talmon. 

What does the ICJ say about actual commission of genocide in the South Africa v Israel order on provisional measures?

The ICJ order on provisional measures announced January 26th 2024 ended up in a manner that several legal commentators predicted (for my prognosis, see this post from January 9th 2024). The order's meaning is still contested, to some extent driven by what view one has on the underlying conflict. It reminds me of the aftermath of general election debates where each side want to cast their side as the "winner". Having said that, I would argue that already by having an other state filing a complaint for genocide against oneself (Israel) there is a loss for that state. At this stage, the issuance of provisional measures, neither side got entirely what they wanted from the ICJ. 

There is a debate whether the ICJ ruled in its January 26th-order that Israel commits genocide. Going back to South Africa's application, it requested that Israel should "cease" and "desist from the commission" of genocidal acts (paras. 111 and 144). 

In its order the ICJ doesn't use any of the words "desist", "cease" or "stop". Instead the ICJ explains that "the decision given in the present proceedings in no way prejudges ... the merits themselves" (paras. 30 and 84) and it uses the phrase "prevent the commisson" (para. 86). 

The ICJ also states the following.

In the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. (para. 54)

This vagueness in language (and opaqueness, a word such as "existence" or "risk" appears missing)  could be explained that even among the 15 judges who voted in favor of all the measures in the order, they may have different views on which rights are at risk.  

Further, the Genocide convention is not only about sanctioning violations that have already occurred, article 1 of the convention provides that the states have an obligation "to prevent and punish". While "punish" is something retrospective, "prevent" concerns potential risks in the future. This obligation of prevention is not only in relation to acts of the state itself, but also in relation to individuals who are at risk of deviating from state policy or groups pursuing their own (genocidal) policies. 

Considering that the ICJ has abstained from using words such as  "desist", "cease" or "stop" and instead uses the word "prevent" the reasonable conclusion is that the operative paragraphs of the ICJ order are concerned with the future. That is also the main purpose of provisional measures as distinct from a judgment on merits. 

This should be read together with ICJ order that Israel should "submit a report to the Court on all measures taken to give effect to this Order within one month as from the date of this Order."

As I see it, ICJ has put Israel at notice that its actions are monitored by the ICJ. As Itamar Mann has suggested one could call this "counter-genocidal governance", a suitable description of ICJ's order.

Permission and instructions to students on how to use Chat GPT

In a previous blogpost I made the argument that we as teachers "should encourage the students to use services such as ChatGPT, in their method sections they must explain which question they entered into services such as ChatGPT, how they then processed and developed the material, what analysis they did, etc". 

I have now discussed the matter with my supervisor, the head of the law department at Stockholm University. He has approved that I test this approach in my course in International Criminal Law that starts 16th January 2023 (tomorrow). We will evaluate this and the department will consider the results from my course when adopting a department-wide policy on ChatGPT. Below you will find the instructions that I am giving my students. You are free to copy and modify my instructions, please provide a credit to me by linking to this blog post.

From the course guide, International Criminal Law Spring 2023.

3.1.2.9 CHAT GPT and AI tools 

During this course we permit you to use CHAT GPT and similar search/AI tools provided that you follow all of the instructions below. We believe this to some extent already is or will become a tool used by practicing lawyers. Ideally it will lead to more time for analysis and discussion by the author/user(s). During this course it is relevant for the a) tutorial memos, b) moot court motions, and c) the individual essay. You will find the service here: https://openai.com/blog/chatgpt/ What is written below in relation to CHAT GPT is applicable to all AI tools with similar functionality. 

You have to follow the instructions below. 

 1. You have to provide a printout of the question(s) you used and the full text provided by CHAT GPT. This should be copied into a word document and uploaded via Athena.

a. You can either use the question that you have been given by us (the teachers) or the question as modified by you. This includes the possibility to add several subordinate questions in order to answer an overarching question. Our experience is that it is very important which question you use in CHAT GPT, small differences may generate very different quality in the answers provided by CHAT GPT. Thus you need to analyse the answer CHAT GPT provides and adjust the question(s) if necessary, in other words an iterative process.

b. You have to highlight in yellow in this printout what parts you have used in your own document, regardless if the text is used verbatim or modified (tutorial memo, moot court motion or individual essay).

2. You have to provide an explanation on how you have used CHAT GPT.
 a. In relation to the tutorial memos this explanation is to be provided at the end of the memo uploaded via Athena. ¼ page is enough.

b. In relation to the moot court motions, this explanation is to be provided in a separate word document uploaded via Athena. The explanation should be ½ - 1 page.

c. In relation to the individual essay, you should provide this in the introductory chapter in the section on method. The explanation should be ½ - 1 page.

d. This explanation should contain the following components:

i. Which question(s) did you use? Was it the same question as provided by the teacher or did you create your own questions? You need to motivate your choice and course of action.

 ii. How did you use the answer provided?

 - It is allowed to copy-paste parts of the text from CHAT GPT into your text if you find and add sources into footnotes with the same standard as normally used. You should write in the footnote: “text generated by CHAT GPT by use of the question ….”

- It is also allowed to modify parts of the text from CHAT GPT and paste into your text if you find and add sources into footnotes with the same standard as normally used. You should write in the footnote: “text generated by CHAT GPT by use of the question …., subsequently modified”

iii. If you find that the answer from CHAT GPT is of poor quality and you have not used it at all, please state that and explain how you came to the conclusion that it was of such bad quality. This could example be an explanation that based on your research you found that the answer CHAT GPT is wrong and/or inaccurate. 

3. Plagiarism and Impact on Grading 
a. The use of text from CHAT GPT without mentioning it in your text or the explanation (section 2 above) that you have used this tool is considered to be plagiarism and will immediately result into a formal complaint with Stockholm University. 

b. The use of text from CHAT GPT where you mention in your text or the explanation (section 2 above) that you have used this tool but without adding other sources is considered to be bad quality which may lead to a lower grade, including a fail. 

 c. CHAT GPT may in some cases help you to identify rules, arguments and conclusions in an expedient manner. However, you have to conduct your own research and add your own analysis. The grading will consider to what extent you have done that.

The use of ChatGPT in student work at Law Faculties

The teachers at my Law Faculty are having a discussion on how we should deal with the scenario that students use services such as ChatGPT to answer home exams, essays and thesis work. This is what I wrote to my colleagues today (translated from Swedish to English via Google Translate for my convenience).

I tried entering one of my research questions from my PhD thesis into ChatGPT.

I tested two variations on the same question. 

I found that the answer to the first variant of the question lacks references, the conceptual apparatus is correct but the content is completely wrong, repetitive and in essence BS. See text below where ChatGPT tries to answer my question regarding evaluation of evidence at ICC. It mainly resonates around rules on admissibility evidence when my question concerns the evaluation of evidence, which means that when it finally purports to talk about the evaluation of evidence, it reproduces an order reminiscent of legal evidence theory (which was used in the Middle Ages). As teachers, we must be able to immediately identify and sanction such practices. 

The answer to the second variant of the question also lacks source references (obviously) but has fewer errors, it no longer argues about admissibility of evidence, is nevertheless superficial. Still gives a better picture of what this legal issue concerns. So you have to ask the question in the right way. 

In the short term (ie from Spring 2023) we need to require references and citations in all submissions, including home exams. This defeats ChatGPT in the short term. 

If we think further ahead. 

I can imagine that this type of service will relatively soon be able to learn to handle and insert citations in the near future. Then we can't have home exams at all.

The services will probably also learn to find my PhD thesis and relevant work by colleagues. At that point services like ChatGPT can provide reasoning that is of the same or better quality than what some students perform today and get passed in their degree essays. How should we deal with it? It is not a given that universities will be able to develop instruments that can detect the use of AI, we teachers will not be able to do so with sufficiently high reliability either. An alternative is that we instead welcome this development. We should encourage the students to use services such as ChatGPT, in their method sections they must explain which question they entered into services such as ChatGPT, how they then processed and developed the material, what analysis they did, etc. They can attach the text proposal that ChatGPT produced, so we as a teachers can compare and evaluate what the students themselves contributed, not least through which question they asked. This is probably how the work for lawyers will look like in the future and we have to relate to it. 

Version 1

Question in ChatGPT

Explain how the International Criminal Court (the ICC) evaluates evidence with a doctrinal approach (3000 words)

Answer

The International Criminal Court (ICC) is an independent international organization that investigates and prosecutes individuals for the most serious crimes of concern to the international community, including genocide, crimes against humanity, and war crimes. In evaluating evidence, the ICC follows a number of legal principles and procedures that are designed to ensure that the evidence presented in court is reliable, relevant, and admissible.

One key principle that the ICC follows in evaluating evidence is the principle of admissibility. This principle requires that evidence be relevant to the case, meaning that it tends to prove or disprove an issue in the case, and that it be reliable, meaning that it is credible and trustworthy. In order to determine whether evidence is admissible, the ICC may consider a number of factors, including the nature of the evidence, the credibility of the witness or source of the evidence, and the relevance of the evidence to the case.

Another principle that the ICC follows in evaluating evidence is the principle of impartiality. This principle requires that the ICC be unbiased and impartial in its consideration of evidence, and that it not be influenced by any outside factors. In order to ensure impartiality, the ICC has established a number of procedures to safeguard against outside influence, including the use of independent experts and the exclusion of evidence that may be biased or unreliable.

The ICC also follows the principle of due process, which requires that individuals accused of crimes be given a fair and impartial trial. This includes the right to be informed of the charges against them, the right to present a defense, and the right to confront and cross-examine witnesses. In order to ensure due process, the ICC has established a number of procedures and safeguards, including the appointment of independent counsel and the use of interpreters to ensure that all parties have a fair opportunity to present their case.

In addition to these general principles, the ICC has also established a number of specific rules and procedures for evaluating evidence. These rules and procedures are set forth in the Rome Statute, the treaty that established the ICC, as well as in the ICC's Rules of Procedure and Evidence.

For example, the Rome Statute requires that the ICC only admit evidence that is "relevant to the determination of the truth" and that "it is reasonably believed to be reliable." The Statute also requires that the ICC consider the probative value of the evidence, meaning the extent to which it tends to prove or disprove an issue in the case, as well as the danger of unfair prejudice, meaning the extent to which the evidence may unfairly influence the outcome of the case.

In addition, the ICC's Rules of Procedure and Evidence set forth a number of specific rules for the admission of evidence in court. These rules include provisions on the types of evidence that may be admitted, such as oral testimony, documents, and physical evidence, as well as rules on the admissibility of hearsay evidence, meaning evidence that is based on the statements of others rather than firsthand knowledge.

In evaluating evidence, the ICC may also rely on the testimony of experts, who are individuals with specialized knowledge or experience in a particular field. Experts may be called to testify on a variety of issues, including technical matters, scientific evidence, or historical or cultural context. The ICC's Rules of Procedure and Evidence set forth rules on the qualifications and appointment of experts, as well as the scope and limitations of their testimony.

The ICC may also rely on the testimony of victims and witnesses in evaluating evidence. The Rome Statute requires that the ICC take into account the rights of victims and witnesses, and the ICC's Rules of Procedure and Evidence contain provisions on the protection of victims and witnesses, including measures to safeguard their privacy and security.

Version 2

Question in ChatGPT

Explain how the International Criminal Court (the ICC) evaluates evidence when it determines the guilt of a defendant. (3000 words)

Answer

The International Criminal Court (ICC) is a permanent international tribunal established to prosecute individuals for the most serious international crimes, including genocide, crimes against humanity, and war crimes. The ICC evaluates evidence in order to determine the guilt of a defendant in the same way that other criminal courts do.

The process of evaluating evidence at the ICC begins with the Office of the Prosecutor (OTP) collecting and analyzing evidence to determine whether there is sufficient evidence to establish probable cause to believe that a crime within the jurisdiction of the ICC has been committed and that the defendant is responsible for that crime. If the OTP determines that there is sufficient evidence, it will initiate an investigation and file a request with the Pre-Trial Chamber for authorization to open a case.

Once a case has been opened, the OTP will continue to collect and analyze evidence in order to build a case against the defendant. This may include gathering witness statements, collecting physical evidence, and obtaining documents and other records. The OTP will also review any evidence that the defense may have in order to ensure that all relevant evidence is taken into consideration.

Once the OTP has gathered and analyzed all of the available evidence, it will present its case to the Pre-Trial Chamber. The Pre-Trial Chamber will then review the evidence and determine whether there is sufficient evidence to establish probable cause to believe that the defendant is responsible for the crimes charged. If the Pre-Trial Chamber determines that there is sufficient evidence, it will confirm the charges and the case will proceed to trial.

During the trial, the OTP will present its case against the defendant, including all of the evidence that it has gathered and analyzed. The defense will have the opportunity to cross-examine witnesses, present its own evidence, and challenge the OTP's case. The judges will review all of the evidence presented by both sides and will make a determination based on the evidence as to whether the defendant is guilty or not guilty of the crimes charged.

In order to determine the guilt of a defendant, the ICC applies the principles of criminal law that are set out in the Rome Statute, the treaty that established the ICC. These principles include the requirement that the prosecution prove the guilt of the defendant beyond a reasonable doubt. This means that the prosecution must present evidence that is so strong that there is no reasonable doubt in the mind of a reasonable person that the defendant is guilty.

In evaluating the evidence presented at trial, the judges will consider the credibility and reliability of the evidence, as well as its probative value. Credibility refers to the believability of the witness or the reliability of the evidence. Probative value refers to the relevance and importance of the evidence in proving the case against the defendant.

The ICC also follows the principle of "in dubio pro reo," which means that in cases of doubt, the benefit should be given to the accused. This means that if there is any doubt as to the guilt of the defendant, the judges must find the defendant not guilty.

In addition to considering the evidence presented at trial, the judges may also consider other factors in determining the guilt of a defendant, such as the defendant's motive and any patterns of behavior that may be relevant to the case.

Once the trial is completed and all of the evidence has been presented, the judges will make a determination as to the guilt or innocence of the defendant. If the defendant is found guilty, the judges will then determine the appropriate sentence, taking into account the gravity of the crimes and any mitigating or aggravating circumstances.

In summary, the ICC evaluates evidence in order to determine the guilt of a defendant by collecting and analyzing all relevant evidence, applying the principles of criminal law set out in the [Rome Statute?]

ICC's lack of jurisdiction over Russia's aggression on Ukraine and the establishment of a special tribunal

Worthy reminder on ICC lack of jurisdiction over Russia's aggression on Ukraine. When the inclusion of the crime of aggression into the jurisdiction of the ICC was debated and agreed upon 2010 in Kampala some states did not want to accept the jurisdiction at all over its citizens: China, the U.S. and Russia. Even states that were and are parties to the ICC statute such as France and UK opposed proposals that would extend the ICCs jurisdiction for the crime of aggression beyond the small groups of states that ratified the changes. This means that France and UK dont even accept the ICC s jurisdiction for the crime if committed by their nationals. If one would accept the position of France and UK, the ICC would only have jurisdiction if countries such as Iceland, Germany, Sweden, San Marino or Switzerland would start a war against each other. Now France (and other states) wants to create a special tribunal for the crime of aggression in relation to Russia. I dont have a major problem that Sweden - which has accepted the jurisdiction of the court over the crime of aggression - is pushing for this, but France? Is it realistic that the West can convince a substantial part of the rest of the world to vote in the UN general assembly to establish a special tribunal for the crime of aggression?

I do think that Russia's leaders - if they somehow are brought from power - should be held accountable for the crime of aggression, the better option would be through a hybrid tribunal supported by the EU and/or the CoE grounded in Ukrainian law and Ukrainian jurisdiction which already prohibits the crime of aggression. Don't go the UN general assembly route, I dont think there will be support enough. Last time there was a vote in UN General Assembly on the Russo-Ukrainian war (concerning damages to be paid by Russia) the voting numbers were 94 for, 14 against and 73 abstentions. I think voting numbers would get worse and thus also the legitimacy of such a court would diminish if there is a vote on a special tribunal for aggression, and I have not started to discuss the problems with immunity.

Decision on universal jurisdiction in the Lundin case

The Supreme Court of Sweden has today, 10th November 2022, issued its decision on universal jurisdiction in the Lundin case

This is a brief comment on the decision. You can read more on the other aspects of the Lundin case in my article Prosecuting Corporate Executives for War Crimes in Sudan, New York University Journal of International Law and Policy, volume 54, number 3, 2022, 887-939, available here. A summary of the same background information is provided below. 

Summary: the key question and findings of the Supreme Court of Sweden
The defence essentially argued that the prosecution needs to show that their is a permissive rule in public international law allowing the exercise of universal jurisdiction and the defence argued there is no such rule. This is similar to the argument made by France in the Lotus case (p. 18). The prosecution made the exact counterargument, namely that the defence needs to show that their is prohibition for states under public international law to extend their jurisdiction and the prosecution argued there is no such prohibition. The later argument is similar to the one made by Turkey in the Lotus case (p. 18) and which was accepted in the judgment 7 September 1927 by the the Permanent Court of International Justice - PCIJ (pp. 18-19).

The Supreme Court phrased the key question as follows in its decision: whether a Swedish court has jurisdiction to try an indictment concerning crime against international law (war crimes) committed outside of a Sweden in the context of a non-international armed conflict, when the defendant neither is a Swedish citizen or is present in Sweden (para. 8).

The Supreme Court found in the preparatory works that the legislator (the Swedish parliament) intended that universal jurisdiction should only be exercised when there is clear and legitimate interest for prosecution in Sweden (para. 24). In this particular case there was such an interest in view of the fact that the prosecution claims that defendant Schneiter has committed the acts as an agent of a Swedish business group, either alone or together with a Swedish citizen. This is enough in order to justify a Swedish interest for prosecution (para. 41).

When the court has found that there is jurisdiction under Swedish law it shall also ascertain that there is no obstacle for prosecution under public international law. Such an obstacle only exists if there is a rule of public international law that limits the court's jurisdiction in the case at hand. There is no requirement for positive legal basis under public international law in order to exercise jurisdiction when the prosecution is consistent with Swedish law (paras. 14 and 27). The Supreme Court's ruling arguably supports the same principle as the PCIJ applied in the Lotus case. The Supreme Court found no obstacle in public international law (para. 33), not even when the defendant is residing outside of Sweden and lacks Swedish citizenship (para. 39 and 44). Swedish court may thus exercise universal jurisdiction (para. 46).

The indictment
Prosecutor v. Ian Lundin and Alex Schneiter (hereinafter “Lundin”), is an ongoing Swedish case concerning an indictment lodged 11 November 2021 in the district court of Stockholm against chairman of the board of Lundin Energy, Ian Lundin, and former CEO Alex Schneiter for Lundin Energy’s complicity in alleged war crimes committed from 1999-2003 in southern Sudan (now South Sudan).

Background to the case: Oil Exploration during the Civil War in southern Sudan 

The region that became South Sudan experienced two civil wars before gaining independence in 2011. The conflicts arose between the predominantly African Christian and animist south, seeking self-determination, and the predominantly Muslim Arab central government in the north.

The first civil war lasted from 1955 to 1972, and was followed by the second, from 1983 to 2005. Sudan began exporting oil in 1999. The majority of the country’s oil reserves are located in the south or in the north-south border region. Lundin Energy is an oil and gas company, stemming from the International Petroleum Corporation (IPC), founded 1981 by the Lundin Family. What is now Lundin Energy has previously operated with a variety of different names and subsidiaries, including IPC, Sands Petroleum AB, Lundin Oil AB and Lundin Petroleum AB. The company operated in southern Sudan through another subsidiary, Sudan Ltd (also called IPC Sudan Ltd and Lundin Sudan Ltd), from 1997 to 2003.

The Lundin prosecution claims that while as of 1997 the area comprising Block 5A had been relatively unimpacted by the second civil war, which had been ongoing on for several years, by 2003 it became one of the worst affected areas. In fact from 1997 onwards, disputed control over future oil exploitation prospecting areas became a central feature of the conflict. In May 1999, the Sudanese Government initiated offensive military operations in and around to Block 5A in order to obtain control over areas for oil prospecting and create the necessary preconditions for Sudan Ltd’s exploration. This led to violence that, with short interruptions, persisted until Sudan Ltd left the area in 2003.

During this period, on several occasions Sudan Ltd. requested security assistance from the Sudanese government and military, allegedly aware that this would require control of Block 5A via military force. The company entered into an agreement with the government to establish a road in the region, and at various point of time called on the government to direct the military and allied militias to take measures against the rebel forces, according the prosecution documents from the case.

The Lundin prosecution argues that the defendants were complicit in war crimes in part because “they made these demands despite understanding, or, in any case being indifferent” to the fact that calls for security and action against rebel forces would likely result in government and allied forces carrying out violence using methods that violate international humanitarian law.

 The alleged war crimes committed by the Sudanese Government and allied militia – to which Lundin and Schneiter are allegedly complicit through their request for protection – include violations of the principle of distinction, principle of proportionality, killing civilians, destruction of civilian objects, unlawful confinement, pillage and degrading treatment. Such acts are all prohibited under international humanitarian law (IHL) and thus also criminalized under the Swedish war crimes provision at the time (Swedish Criminal Code, chapter 22 section 6 in its wording before 1 July 2014).

Universal Jurisdiction: Bringing Corporate Oil Executives to Stockholm District Court
The authority to prosecute in Lundin is derived from universal jurisdiction (Swedish Criminal Code, chapter 2 Section 3(6)(a), known domestically as Brottsbalken, hereinafter BrB (before 1 January 2022, this provision was found at 2:3(6)) and is crucial because Schneiter is neither a resident nor a citizen of Sweden. Lundin, meanwhile, is a Swedish citizen and so can be prosecuted under the active nationality principle. Schneiter has challenged that the district court can exercise jurisdiction under the universal jurisdiction principle. This challenge has been denied by the district court of Stockholm, the Svea Court of Appeal and the matter has now been decided by the Supreme Court of Sweden.

Challenge before the Stockholm District Court

On the same day as the prosecution in Lundin submitted its indictment (11 November 2021), Schneiter submitted a written motion challenging the Stockholm district court’s jurisdiction. The basis of the challenge was that Swedish courts cannot exercise universal jurisdiction for war crimes allegedly committed in a non-international armed conflict (NIAC) by a non-Swedish citizen who is not residing in Sweden. The challenge relies in part on a joint opinion written by Professors William Schabas and Guénaël Mettraux and an opinion by Professor Eric Bylander. Schneiter had to distinguish his case from prior cases before Swedish courts, where the prosecution relied on universal jurisdiction in relation to war crimes committed in a NIAC resulting in convictions. Among them was the Saeed case (5th May 2021), where the defendant was convicted of the war crime of humiliating or degrading treatment during his involvement in the conflict against IS/DAESH in Iraq. The conviction was upheld by the Supreme Court of Sweden. But unlike Saeed, Schneiter is not a Swedish resident or citizen, a distinction Schneiter’s defense pointed out.

The Stockholm district court asserts universal jurisdiction
The district court dismissed on 20th December 2021 Schneiter’s submission, relying on several sources to rule that it had jurisdiction. First, it made reference to statutory law, namely BrB Chapter 2, Section 3(6) which provides for universal jurisdiction for certain crimes, including war crimes. Next, it referenced rule 157 of the ICRC’s study on customary international humanitarian law, published in 2005 (henceforth the ICRC 2005 Study) which states that “[s]tates have the right to vest universal jurisdiction in their national courts over war crimes.” The 2005 ICRC Study, commenced in 1995, contains a survey of state practice and other sources in order to determine the content of customary international humanitarian law. The 2005 ICRC study is important since the relevant Swedish statutory law on war crimes explicitly references customary international humanitarian law, and in doing so determines the scope of criminalized behavior under Swedish law. The district court also relied on an assessment made by an expert inquiry commissioned by the Swedish government on the status of Customary International Law (CIL), and preparatory works drafted by the government preceding its 2014 amendment of a law on international crimes that authorizes the exercise of universal jurisdiction in relation to crimes committed in an NIAC. Preparatory works like these are themselves a source of law in Sweden. It also noted doctrinal comments made by Ove Bring, et al. (p. 304), that universal jurisdiction may be relied upon by a state in relation to persons residing outside its territory. Finally, it took into accounts that the Swedish government had authorized prosecutions where it had considered, among other factors, potential conflicts of jurisdiction with other countries.  The “government” in this context refers to the national cabinet of ministers headed by he Prime Minister. Notably, subject to the Swedish approach to separation of powers, the Prosecutor-General and all other prosecutors are independent from the government, meaning that the Minister of Justice is prohibited from instructing the Prosecutor-General, or any prosecutor, on whether to initiate or how to manage a case. This applies, inter alia, to prosecution of crimes committed within Swedish territory. The requirement for authorization of prosecution in relation crimes committed outside of Sweden represents an exception from this constitutional principle, in the sense that the government may become more involved than in typical domestic cases. 

The Svea Court of Appeals confirmed the district court's assertion of universal jurisdiction

Schneiter appealed the jurisdictional issue, arguing that the district court had not considered the Schabas and Mettraux opinion cited in his initial challenge. On 28 January 2022, the Svea Court of Appeals accepted the district court’s reasoning and dismissed the appeal.

My analysis after the Appeals Court decision, prior to the Supreme Court decision (published in this article with some additions below)

The district court (and thus also the Court of Appeals) relied mainly on traditional Swedish sources of law, while ignoring the international case law invoked by Schneiter as presented in the Schabas and Mettraux opinion, warranting some further discussion of the defendant’s argument here. In other words, the district court adopted a doctrinal approach, accepted by the Appeals Court, that restricted itself to traditional Swedish, internal sources of law, while omitting references to leading international and foreign precedents on the exercise of universal jurisdiction in a domestic context – namely, the Lotus case (7 September 1927) from the Permanent Court of International Justice (PCIJ), the Eichmann case (29 May 1962) from Israel, and the Arrest Warrant case (14 February 2002) at the International Court of Justice (ICJ).

Considering that Sweden normally adopts a dualist approach, i.e. treats the international and domestic systems of law as separate and independent from each other, one may ask why international precedents. Would it not be enough to consider internal sources of law? Chapter 2 of Criminal Code on jurisdiction also contains section 12 (previously section 7) which provides that "[t]he limitations to the jurisdiction of Swedish courts and applicability of Swedish law that follow from public international law or from any international agreement that is binding on Sweden must be observed." Thus, there is a need to consider whether there are limitations on jurisdiction that follow from public international law, this is what the defence relies upon in their appeal.

The Schabas and Mettraux opinion builds in part on separate and dissenting opinions in the 2002 Arrest Warrant case at the ICJ. The case concerned an international arrest warrant issued by Belgian authorities, based on universal jurisdiction, against Abdoulaye Yerodia Ndombasi, Minister of Foreign Affairs of the Democratic Republic of the Congo (DRC), for alleged war crimes and crimes against humanity in the DRC. At the ICJ, the Democratic Republic of the Congo brought suit against Belgium, initially arguing that Belgium’s reliance on universal jurisdiction was in conflict with international law, but later withdrew that claim (paras. 17 and 42). As a result, the ICJ stated that the Court did not “rule, in the operative part of its Judgment, on the question whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his purported universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts.” (para. 43) In the absence of a definitive ICJ opinion on universal jurisdiction, other historical precedents may appear useful and more relevant. Lotus, a 1927 case at the PCIJ, emphasizes the need to distinguish between the exercise of enforcement (executive) jurisdiction on the one hand, and both prescriptive (legislative) jurisdiction and adjudicative (judicial) jurisdiction on the other (pp. 18-19). It provides that international law leaves states “a wide measure of discretion” to extend the application of their laws through prescriptive and adjudicative jurisdiction, “which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.” (p. 19) Further, the PCIJ asserted that “[r]estrictions upon the independence of states cannot therefore be presumed,” (p. 18) which means that what is not explicitly prohibited under public international law is permitted for states. The Supreme Court of Israel explicitly referenced Lotus when it made a similar finding in Eichmann, stating that “every state may exercise a wide discretion as to the application of its laws and the jurisdiction of its courts in respect of acts committed outside the state; and that only insofar as it is possible to point to a specific rule prohibiting the exercise of this discretion—a rule agreed upon by international treaty—is a state prevented from exercising it.” (para. 9) In comparison with the Arrest Warrant case, Lotus and Eichmann are arguably more persuasive, as each actually ruled on whether a domestic court could exercise jurisdiction on an extraterritorial basis, something absent in the Arrest Warrant case. A similar argument to that from Lotus and Eichmann can be made in Lundin, as the indictment initially involves the exercise of adjudicative jurisdiction, and if Swedish authorities seek to enforce the summons that would be an exercise of enforcement jurisdiction. Sweden would only violate international law if it seeks to enforce the summons on an extraterritorial basis without the consent of the state concerned. The upshot is that the Stockholm district court should be able to assert jurisdiction, declare the case admissible, and issue a summons to Schneiter to appear, provided the consent of his host state (Switzerland), following the rationale given in the Lotus case and the Eichmann case.

Motions by the parties before the Supreme Court

At the Supreme Court, the Prosecutor-General's office represents the Prosecution. The case was previously carried out by a senior public prosecutor before the district court and the Svea Appeals Court, the senior public prosecutor normally assists the Prosecutor-General's assigned agent when the case is pursued at the Supreme Court. The prosecution argued (motions 20 May 2020 and 14 September 2022) that the defence has phrased the question wrong by asking "Does international law provide for universal jurisdiction over war crimes committed in non-international armed conflicts (NIAC)". The Prosecution elaborated in its motion to the Supreme Court on the matter by invoking the Lotus case, referenced a judgement 26 June 2020 from the Norwegian Supreme Court that had also relied upon the Lotus case (paras. 42-43), arguing that correct question pursuant to Swedish law and public international law is whether there is a prohibition against the exercise of universal jurisdiction and concluded there is no such prohibition. The defence responded 21 September 2022 to this by relying on select separate opinions in the Arrest Warrant case and that the Lotus case has not influence Swedish legislation since it was never mentioned in the preparatory works that preceded the introduction of the of the new law on international crimes in 2014 and changes 2022 in chapter 2 of the Criminal Code on jurisdictional principles. The reasoning of the parties had this stage arguably clarified the key issue as described in the beginning of this blog post and made their strongest arguments. 

The Supreme Court decision
The Supreme Court phrased the matter of the decision as follows: whether a Swedish court has jurisdiction to try an indictment concerning crime against international law (war crimes) committed outside of a Sweden in the context of a non-international armed conflict, when the defendant neither is a Swedish citizen nor is present in Sweden (para. 8).

The Supreme Court found in the preparatory works that the legislator (the Swedish parliament) intended that universal jurisdiction should only be exercised when there is clear and legitimate interest for prosecution in Sweden (para. 24). In this particular case there was such an interest in view of the fact that the prosecution claims that defendant Schneiter has committed the acts as an agent of a Swedish business group, either alone or together with a Swedish citizen. This is enough in order to justify a Swedish interest for prosecution (para. 41).

When the court has found that there is jurisdiction under Swedish law it shall also ascertain that there is no obstacle for prosecution under public international law. Such an obstacle only exists if there is a rule of public international law that limits the court's jurisdiction in the case at hand. There is no requirement for positive legal basis under public international law in order to exercise jurisdiction when the prosecution is consistent with Swedish law (paras. 14 and 27). The Supreme Court found no obstacle in public international law (para. 33), not even when the defendant is residing outside of Sweden and lacks Swedish citizenship (para. 39 and 44). Swedish court may thus exercise universal jurisdiction (para. 46).

My preliminary analysis of the Supreme Court decision and its consequences
Comment: the Supreme Court's ruling supports the same principle as the PCIJ applied in the Lotus case. The case may have consequences for similar cases in Sweden and other countries. Of immediate interest is the Noury case which concerns mass executions in Iran 1988. The conviction from 14 July 2022 from the Stockholm district court is subject to appeal at the Svea Court of Appeals. The Svea Court of Appeals is present considering a challenge from the Noury defence concerning the exewricse of universal jurisdiction. The prosecution may in the Noury case argue that the Supreme Court in Lundin has confirmed the wide scope of universal jurisdiction available under Swedish law. On the other hand, the Noury defence may argue that the Supreme Court has introduced a requirement that there must clear and legitimate interest for prosecution in Sweden. The defence may argue that the interest that existed in the Lundin case is not present in the Noury case. It remains to be seen what the  Svea Court of Appeals rules on this matter. Beyond Sweden, the Lundin case may have consequences in the sense that it has adopted the same the principles as established by the PCIJ in the Lotus case.

Updated analysis

We had during our weekly BBL discussion today (10 November 2022) at the law department a discussion about the case, it involved the normal crowd plus three retired distinguished PIL scholars and practitioners (Hans Corell, Ove Bring and Said Mahmoudi). The BBL started with me summarizing the problem and the Supreme Court decision, after that we had a discussion. Our discussions focused very much on the new threshold that the Supreme Court seems to have introduced that there has to be a Swedish interest in prosecution. That is already expressed in other jurisdictional principles such as the active nationality principle (Criminal Code 2:3(2) and 5), passive nationality principle (Criminal Code 2:3(3) and 5), protective principle, attacks against Swedish public interest (Criminal Code 2:3(4)), this part of the Supreme Court ruling muddles the universal jurisdiction principle. Such a threshold rather goes to policy concerns or is an expression of judicial law-making. My view is that policy concerns are matters to be decided either by the prosecution, the Prosecutor-General or the Government (via the authorization of extraterritorial jurisdiction procedure in the Criminal Code, section 2:7-8), not by courts. This resembles the discussion at the ICC and the Afghanistan situation, where there has been a struggle between the pre-trial judges and the prosecution on who should be investigated and prosecuted, where the Appeals Chamber has stated that policy concerns are matters for the prosecution, see judgment 5 March 2000, paras. 6, 26, 30-32, and 47-50. Prosecution and policy concerns at the ICC may obviously also be a matter for the UN Security Council, via articles 13(b) and 16 of the Rome Statute, and again the Security Council is a whole different beast than a panel of judges. 

Det vet vi om misstänkta sabotaget mot Nord Stream

Har medverkat i SR 28 september 2022 under rubriken "Det vet vi om misstänkta sabotaget mot Nord Stream".

Medverkat i SVT Aktuellt

Har medverkat i SVT Aktuellt 23 september angående arrangerade folkomröstningar av Ryssland i temporärt ockuperade områden i Ukraina. 

Fråga från elever - Begrepp inom folkrätt: Deklaration, Konvention, Fördrag och Protokoll

Jag har fått en fråga från elever/lärare på gymnasieskola som jag besvarat. Eftersom jag lagt ner tid på svaret och tror det är av allmänintresse lägger jag upp korrespondensen här (anonymiserat lärare och skola). 

Fråga 

Hej Mark!

Jag undervisar i kursen Internationella relationer på ... gymnasium och nu arbetar vi med folkrätt. Mina elever är förvirrade över att det finns så många begrepp inom traktaträtten som betyder ungefär samma sak. Skulle du kunna hjälpa oss och förklara skillnaderna mellan följande begrepp:

• Deklaration

• Konvention

• Fördrag

• Protokoll

Stort tack på förhand!

Med vänlig hälsning,

...

Leg. lärare i samhällskunskap och religionskunskap 

Mentor ...

... gymnasium 

Svar

Hej ...,

Du får gärna vidarebeordra nedanstående till dina elever.

Först en allmän förklaring. I folkrätten finns det två former av bindande regler (rättskällor): 1) traktat och 2) internationell sedvanerätt.

Traktat ska normalt först undertecknas (t.ex. på en konferens) och därefter ratificeras (normalt av alla berörda staters parlament). Därefter binder den rättsligt en stat. Traktat kan kallas olika saker, t.ex. överenskommelse, stadga, protokoll, fördrag, konvention, ”kärt barn har många namn”. Det finns inga hårda regler vad man ska kalla ett traktat, det spelar ingen roll rättsligt. Men jag kan ändå ge lite tumregler, nedan. 

Först måste vi reda ut vad internationell sedvanerätt – det är statspraxis som uppleves som bindande av staterna, för att förklara på ett förenklat sätt: statspraxis är vad många stater gör på ett liknande sätt under en längre tidsperiod (på latin: usus). Om de samtidigt säger att de gör på detta sätt för att de upplever att de är rättsligt skyldiga att göra (på latin: opinio juris) så uppstår en regel som utgör internationell sedvanerätt. Det krävs både usus och opinio juris för att det ska uppstå en bindande sedvanerättslig regel. Så funkar det även i svensk rätt i vissa delar, föreställ er att alla företag inom en viss bransch (t.ex. bilförsäljare) gör på ett visst sätt under en lång tid och det accepteras av alla så kan det - även utan lag i riksdagen - skapa rättsregler som kan åberopas i en svensk domstol. Tänk även hur det var under vikingatiden i Sverige före vi fick en allmän landslag – det var sedvanerätt som gav reglerna för hur olika vikingastammar skulle interagera med varandra. Det var inte totalt kaos, bara ett annat sätt att organisera och styra samhället. 

Konvention jämfört med överenskommelse

Ett traktat kan binda två eller flera stater. En konvention är ett traktat som binder 3 eller fler stater (dvs om det bara är två stater så brukar det inte kallas konvention, då är det vanligare att kalla det en överenskommelse). Exempel på konvention: Europakonventionen om mänskliga rättigheter.

Protokoll

Ett protokoll är ett traktat som ofta bygger vidare, kompletterar ett tidigare traktat. T.ex. det finns fyra Genevekonventioner om krigets lagar från 1949. Dessa kompletteras 1977 av två stycken tilläggsprotokoll. 

Fördrag

Fördrag är ett traktat som används för att skapa en mer varaktig eller permanent internationell organisation med tillhörande regler. T.ex. EU grundades 1993 genom Maastrichtfördraget som ingicks 1992 i staden Maastricht (dessförinnan kallades organisation EG).

Stadga

Ordet stadga används på ungefär på samma sätt som fördrag: ett traktat som används för att skapa en mer varaktig eller permanent internationell domstol med tillhörande regler. T.ex. Internationella brottmålsdomstolen (ICC) skapades 2002 som en följd av Romstadgan som ingicks 1998 i staden Rom.

Deklaration

En deklaration är ett icke-bindande dokument som anger en politisk viljeinriktning. De är inte bindande i sig. Men, om det som står i deklarationen återspeglas i statspraxis så kan det utgöra internationell sedvanerätt. Hur vet man om det är fallet? Då behöver man slå upp böcker, detta är typiskt frågor som först behöver utredas av någon som mig (dvs en professor i folkrätt), en domstol eller genom en doktorsavhandling. Exempel: FNs allmänna förklaring om mänskliga rättigheter från 1948 är inte bindande i sig då det är en deklaration (den är ej undertecknad eller ratificerad av någon stat – vanligt fel i media är när journalister säger att alla stater har undertecknat den allmänna förklaringen om mänskliga rättigheter och därigenom binder stater, det är alltså ett felaktigt påstående på åtminstone två punkter). Men stora delar av FNs allmänna förklaring om mänskliga rättigheter återfinns i bindande konventioner och internationell sedvanerätt, på så sätt kan innehållet i förklaringen likväl vara bindande genom att de har stöd i andra bindande rättskällor. 

Jag hoppas detta har besvarat era frågor.

Vänligen Mark

Intervju hos TV4: Frisläppta men fortsatt misstänkta för krigsförbrytelser

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