Judges Independence at International and Regional Courts Essay

Introduction

The international community is more interconnected than it has ever been in the history of humanity. Trade is one of the factors that have made it necessary for different countries to engage at both regional and international levels. The unequal distribution of natural resources forces some nations to rely on others to meet their local needs. The United Kingdom needs oil from the Middle East to meet its energy needs.¹

On the other hand, countries in the Middle East such as the Kingdom of Saudi Arabia and the United Arab Emirates need cars and machinery from the United Kingdom. Tourism is another factor that brings countries together. When tourists from the United Kingdom visit France, the British government expects the French counterparts to offer the needed security to the visitors. Buchan says that the emerging international crime is another issue that forces nations to work as a unit.²

Terror organizations such as ISIS and Al Qaeda pose a serious threat to the international community. It is not possible for one state to fight them successfully. There is also the threat posed by global drug and human trafficking syndicates that can only be fought through a united force by all the countries involved.

The emergence of international and regional courts and tribunals has been considered a positive step in the fight against international crimes. These tribunals also play a critical role in arbitrating cases between two or more countries.³ When two states have economic or political conflicts, these courts can listen to the case and find a way of solving the dispute in a way that ensures that it does not escalate. The strategy is meant to ensure that the countries do not resort to the use of armed forces to address the differences.

These courts and tribunals are expected to be impartial and independent when making their decisions. Both parties should feel that facts were used when making the decisions and that the outcome makes sense from a legal standpoint. However, there is a merging concern about the independence of these judges. The fact that these top judges are appointed by member states, there is always the fear that they may remain loyal to their governments. Such loyalty may cloud their judgments when making critical decisions that have direct impact on their countries.⁴ Given the role of states in the appointment of judges to the international and regional courts, the paper will investigate whether these courts can be considered independent.

Appointment of Judges to the International Courts

The international and regional courts play a critical role of promoting global peace and fighting international crime. These institutions have varying mandate and jurisdiction based on different factors. Some of the prominent international and regional courts include the International Criminal Court, International Tribunal for the Law of the Sea, Caribbean Court of Justice, and European Court of Justice. Each of these courts has specific roles they have to play depending on the vision upon which they were created.

Judges in these courts must meet specific criteria before they can be allowed to serve. In this paper, the focus will be narrowed down to the International Criminal Court. This court plays a critical role in ensuring that there is global peace. It has been seen as the only institution that can bring to justice perpetrators of genocide and other acts of against humanity. It is important to understand how judges are appointed to this court.

The Requirements

The International Criminal Court has specific requirements that one must meet to be considered for the position of a judge. One of the fundamental requirements is that the applicant must be a national of a state that is party to the Rome Statute⁵. The second requirement is that the applicant should be a person of high morals, integrity, and impartiality⁶. It means that an individual who has been convicted of crimes such as rape, corruption, or human trafficking may not qualify to be a judge at the ICC.

The ICC requires the applicant to be fluent in both written and spoken English or French, which are the primary languages used by the court. The final requirement is that the applicant must have qualifications needed in the home country to serve in the highest judicial offices. It means that for a citizen of the United Kingdom to qualify as a judge in this court, he or she must have the following qualifications:

• The applicant should have held a high judicial office for a minimum of two years.⁷ A high judicial office in this case refers to the High Court or Court of Appeal of England, Wales, and Northern Ireland, and Court of Session⁸;
• In case the applicant is not a practicing judge, then he or she must meet the judicial appointment eligibility requirements.⁹ The applicant must have been a qualified practitioner for a minimum of 15 years;
• The applicant must satisfy the board that he or she has been gaining experience in law in the period preceding their application. Section 52(2) to (5) of the Tribunals and Enforcement Act 2007 defines what is meant by the phrase ‘gaining experience in law’.
• The applicant should be a citizen of the United Kingdom or a country that is a member state of the Common Wealth.

The United Kingdom has strict requirements for a person to qualify as a judge in the highest courts. However, the same may not apply in other countries around the world, especially in some of the developing states. It means that sometimes the applicant that may be presented may lack some of the academic qualifications and experience needed to execute their mandate as a judge of the International Criminal Court. According to Imoedemhe, a section of the human rights activists has complained that appointment of judges to this court is turning out to be political.¹⁰ The situation is so bad that some of the candidates proposed by the member states do not have law degrees.

They are political scientists who may have a master’s degree in fields related to law. It is not possible to trust such individuals to execute their mandates with the highest level of competency expected. The candidates are often classified into two groups. List A has applicants who have demonstrated competence in criminal law and procedure.¹¹ List B has applicants who have demonstrated competence in other areas of international law.¹² Some scholars believe that List B offers room for individuals with limited legal background to find their way into the bench in the highest court in the world.

Procedures for Appointing Judges to International Courts

Once a state has proposed a candidate that meets the set criteria, the name should be communicated to the United Nations’ Secretary General within the stipulated time. A list of applicant with then be prepared by this office and sent to the relevant organs responsible for voting in the judges. The United Nations General Assembly and the Security Council have the responsibility of voting in the applicants. The voting often takes place in the United Nations’ Headquarters in New York, the United States.

The two organs are expected to vote simultaneously but separately on whether the candidates meet the set criteria to serve as judges of the International Criminal Court. Imoedemhe explains that a candidate will only be considered for the post if he or she gets the absolute majority of votes in both organs of the United Nations.¹³ The elections are often conducted after every three years. Once elected, one will serve a non-renewable term of 9 years.

The process of electing a judge to the International Criminal Court is highly political. First, the political heads of government in various member states have the responsibility of proposing names of individuals they feel should serve in these courts. As Schabas observes, it is normal for a political leader to propose the names of individuals who can serve their interest.¹⁴ Once the name has been presented to the United Nations, the same political leaders are required to approve the list.

Voting in the United Nations’ General Assembly is often marred by intense lobbying. It is not always about selecting the most appropriate of the options presented. Instead, member states use it to achieve specific gains. For instance, China may want the United States to lower its tariffs on Chinese goods entering the United Market. In such a case, China would decide to support the United States in the voting because of the promises given, not because voting in that pattern would benefit the world.

Independence of Judges in the International Courts

The International Criminal Court or any other international and regional court such as International Tribunal for the Law of the Sea, Caribbean Court of Justice, and European Court of Justice are expected to be impartial and competent enough to decide cases that will be considered fair and able to promote justice. It is not possible to promote global peace when there is no justice.¹⁵ People who feel oppressed will always find ways of gaining their freedom.

In most of the cases, violence is the viable option that they feel will grant them the freedom they desire. The regional and international courts are viewed as the best platforms through which such individuals and aggrieved states can get justice. The fact that these institutions are not under the jurisdiction of a single state makes it easy to be impartial and to find solutions to conflicts in a way that benefits everyone involved.

However, some scholars and human rights activists have questioned the independence of the judges in these courts.¹⁶ It is important to look at specific issues that make it difficult for these courts to be independent in their operations. This section will also discuss factors that may help promote independence of the judges when making their decisions.

Factors Limiting the Independence of Judges in the International Courts

It is in the interest of the international community for the international courts to be independent. The reason why they were created in the first place was to have institutions that can arbitrate and decide cases without being influenced by a single state. However, it is unfortunate that these institutions sometimes fail to make independent decisions. Such decision may have serious impact on a section of the society. When those who trust the system see it fail to offer justice because of political interference, they may give up on it. They may be convinced that they need to consider other ways of getting the justice they need. The following are the specific factors that are widely believed to affect the independence of the international courts.

The Political Class as the Appointing Authority

The political environment is one of the main factors that affect the independence of the judges in the international courts. As discussed above, the political leaders are responsible for proposing the names and approving judges to these courts. It is the first step of giving them power to control the decisions they make. The complex nature of the global political environment makes it highly undesirable for political leaders to be directly involved in the selection of judges to the International Court of Justice.

Some of these political leaders are involved in human rights abuse. The Syrian President, Bashar Hafez al-Assad and his Sudanese counterpart Omar al-Bashir have been accused of crimes against humanity and human rights activists expect the two to be taken to the ICC. If they participated in electing judges of these courts, it may not be easy for the institution to punish them as would be required. A good example is the Kenyan case that was presented to the court.

In 2007 general election in Kenya, more than 1000 people were executed by the police and other organized criminal groups coordinated and funded by the political class. More than 500,000 others were displaced.¹⁷ After the violence, the ICC was invited to investigate and prosecute the politicians, government officials, and journalists who were directly involved in the crime. Led by Luis Gabriel Moreno Ocampo, the ICC investigation team gathered facts and identified six individuals who were believed to have played significant roles in the post-election violence.¹⁸

The case was presented to the court in 2009. Unfortunately, the charges of each of the suspects were dropped, one by one, and in the end, no one was held accountable for the crimes. Many people died, others were seriously wounded, while many others were left homeless.¹⁹ The crimes were committed, but the court was unable to prosecute even a single individual for the crimes. During the case, there was an intense inter-governmental lobbying across Africa. It even reached a moment when a section of African countries threatened to withdraw their membership from the ICC if the cases against the high profile Kenyan politicians would not be dropped. Justice to the victims was forgotten and the politicians were keen on protecting their colleagues.

Some human rights activities believe that the intense pressure by most of the African countries forced the court to dismiss the case. Justice was denied to the victims. In fact, two of those who were accused as the masterminds of the violence are currently serving as the country’s president and deputy president. It is a clear demonstration to the victims that justice can only be served at the interest of the rich and the powerful.

Given the fact that politicians appoint these judges, their countries can directly influence their decisions. It should be noted that at the time when these cases were dismissed, one of the judges at the court was a Kenyan Joyce Aluoch. Although she was not involved with the case, her presence and position as the First Vice President of the ICC may have influence in the decisions made by her colleagues.

Allegiance to One’s Country

The allegiance that an individual has to his or her country also compromises the independence of judges when making critical decisions. Currently, there is a major border dispute in South China Sea pitting China against Japan, the Philippines, Malaysia, Indonesia, Taiwan, and Brunei.²⁰ Some of these nations have called upon international and regional courts and tribunals to mediate the case. One of the current judges at ICC is Raul Cano Pangalangan, a Philippine.²¹

It is a standard practices that in such cases; he may not be one of the judges making the decision about the dispute. However, the constant interaction with the other judges may influence their decision. It may be in his personal interest to ensure that the decision is made in favor of his country. Such conflicts are common, even though they are not widely discussed as issues that may influence judgments made in these international courts. The moment an individual feels more loyal to his or her country than to the rule of law, justice will always be elusive. Edelson argue that sometimes the decision of judges in the regional and international courts is influenced by favoritism and corruption.²² The rich and powerful nations always have their way at the expense of the developing nations.

Dependence on Member States to Make Arrests

The International Criminal Court and any other international and regional court rely on the member states to implement its directives. It lacks the capacity to make arrest once the order has been made. Materu identifies the case of Omar al-Bashir, the President of Sudan.²³ President Omar has been accused of crimes against humanity when he ordered his troops to quell resistance that emerged in Southern part of the country. The government troops targeted women and children who were defenseless in the region. Many of them were raped while others were executed although they were not directly involved in the war.

The fact that the direct order came from the President made him necessary for him to bear the responsibility of the actions of the soldiers. The court ordered for his arrest and extradition to The Hague to face the charges. As the head of the Sudanese government, it was not possible to expect his country to make the arrest. However, there was a direct request made by the court for other governments to arrest him in case he visited them. Materu says that President Omar has since visited Kenya, South Africa, Ethiopia, and many other countries but he has never been arrested as requested by the ICC.²⁴

Joseph Kony, a Ugandan rebel leader of the Lord Resistance Army (LRA), has been accused of mass murders, rape, and other crimes against humanity. The General Assembly reports that LRA has been abducting young boys and turning them into child soldiers.²⁵ Young women are abducted and turned into sax slaves in the forests where the military operates. The court issued a court order for the rebel to be arrested and taken to the ICC to face charges.

However, nothing has happened since then. Kony is still a free commander of a rebel group that is responsible for various crimes. The fact that the court lacks the capacity to make arrests is a sign of weakness. Judges feel inadequate when making their rulings and that may affect their independence. It creates a perception in their mind that decisions that they make is subject to approval by other entities. Such a perception may force them to make rulings in a way that they feel would get support from the relevant authorities, such as the Security Council.

Accusations That the Court is Biased against Africans

The independence of the court and the rulings of its judges are often affected by the political narratives in the international community. One of the narratives, which may have a serious impact on the decisions that judges make is the claim that the court was instituted to control African politics. According to Jalloh and Bantekas, the ICC has never prosecuted powerful leaders from the West and other powerful nations ever since it was created.²⁶

The war in West Bank and Gaza strip has claimed lives of thousands of people, most of who are women and children who are not engaged in the combat. The ICC is yet to prosecute any high-ranking officials from the two warring parties. The Russian government has been supplying sophisticated weapons to rebels in eastern Ukraine.

The reports indicate that the Russian government has even sent its troops to support the rebels. In 2014, the rebels, using weapons obtained from Russia, shot down Malaysian Airlines Flight 17, killing all the 298 (283 passengers and 15 crewmembers) on board.²⁷ The ICC has not attempted to bring justice to the victims. Malaysia cannot prosecute the Russian soldiers or Ukrainian rebels. The only institution that can bring justice by punishing the highest authorities responsible for such crimes is the ICC. The number of people who have lost their lives in Syrian War is estimated to be over 500,000, majority of who were killed by government forces.²⁸

The Syrian government has even used poisonous gas to kills people in rebel-held areas indiscriminately. Over 13 million others have been forced out of their homes because of the war. The Syrian government has been receiving direct support from Russia. There is a close relationship between President Putin and President Assad. On the other hand, the United States has been supporting the rebels. The two nations have the most powerful military in the world.²⁹

It means that if interested, they can easily stop the two factions from engaging in the wanton killings. Their deliberate decision to support each of the opposing sides has escalated the war. It worsened the already bad situation. However, the ICC has not come up to blame two countries and hold their leaders criminally responsible for the deaths.

One of the people who have been successfully prosecuted in the ICC for crimes against humanity was Thomas Lubanga Dyilo.³⁰ The case of Germain Katanga was another prominent ICC preceding that attracted the attention of international community.³¹ The trial of Jean-Pierre Bemba of the Democratic Republic of Congo was another major case.³² Other prominent cases include Laurent Gbagbo of Côte d’Ivoire whose case is still in active in court; and Ahmad al-Mahdi of Mali. The complaint by African leaders that they are targeted affects the independence of the court. It is so easy to convince the international community that Africans are unfairly targeted because of the unwillingness or inability of the court to prosecute war criminals from other parts of the world.

Jalloh and Bantekas argue that even when a genuine case is presented before the court, such as the mass murders, rape, and displacement of people that happened in Kenya in 2008 following the country’s general election, the suspects can easily play to the narrative that the court is prosecuting them because they are Africans. The fact that some of these judges are also Africans; they can easily be influenced by the narratives. They are aware that similar crimes have been witnessed all over the world, but the court has not made any effort to prosecute the perpetrators. Their desire to protect people from their own continent from the court may influence their decisions. Instead of giving justice to the victims, they will be influenced by the desire to give justice to Africa that is seen as targeted by the court.

The fact that some of the most powerful nations in the world such as the United States and China are not members of the ICC only worsens the situation. It validates the claim that the court was created for the developing economies, especially the African states, to ensure that they can easily be controlled by the powerful nations. Materu observes that it makes the court to be viewed as a tool used by the West to promote neo-colonization of Africa.³³ ICC faces these challenges as it tries to promote the rule of law, justice, and responsible leadership across the world.

Cyber-Based Threats

The cyberspace is another platform that may make it possible for individuals and entities to influence the rulings made by the judges in regional and international criminal courts. The ability of a judge to execute his duties effectively depends on many factors. One of them is the threat they constantly face in their daily duties. When a judge receives a threat, he or she may be influenced to act in a given way.

The cyber space makes it possible for suspects or their partners to reach out to the judges despite the possible geographic barrier.³⁴ They can use the social media platforms such as Facebook, Instagram, WhatsApp, LinkedIn, MySpace, or Twitter. Through these platforms, they can communicate with the judges and either issue a threat or offer a benefit if they are willing to act in a given way. Depending on the severity of the threat and the perceived ability of the issuer to follow through with it, the judge may act in a way that is in the interest of the suspect. The desire to be safe often surpasses the need for an individual to act in an ethical way.

The cyberspace also affects the decision made by the judges because of public opinion. Traditionally, judges would warn media stations against focusing on a case in a given manner if it is believed doing so may have direct effect on the case. However, such rules do not apply when dealing with the social media. Sometimes such cases are decided in the court of public opinion through the social media.³⁵ Judges’ perception about the case may be influenced by information they get from these platforms. Given that the information is often unverifiable, it is easy to believe in a rumor at a time when facts are critical in serving justice. When a judge is influenced by the court of public opinion, the presentation made in court by the prosecution or defense team may not be meaningful.

Factors Promoting the Independence of Judges in the International Courts

Judges in the regional and international courts and tribunals are influenced by many factors that limit their independence when making their rulings. However, Brown and Keira admit that in many cases they have demonstrated impartiality and commitment to deliver justice.³⁶ The ICC has punished war criminals from different parts of the world. Such actions remind those in power that they will always be held accountable for their actions. It is important to look at factors that make it possible for the judges of the international courts to act impartially when making their decisions.

Reduced Influence of Political Leaders

The United Nations created and is currently supporting the ICC. Every member state of the United Nation has committed to support the normal operations of the court and to protect its employees.³⁷ It is an assurance to the leaders that they will always get the necessary support when making their rulings. The Security Council, which is the military wing of the United Nations, pledges its support to the court. It means that chances that judges can be arbitrarily arrested by a given state because of the decisions they make are rare. In February 2018, President Abdulla Yameen of Maldives arrested two top judges in a move that was viewed as an attempt to influence the court rulings.

Soon after the arrests, the Supreme Court reinstated the conviction of political prisoners in line with the desires of the president. Such incidences are common in different parts of the world. The fact that these judges are appointed by the political leaders of their respective countries, they must act in line with the directives they get from top government officials³⁸. Such high level of political interference is not common in most of the international courts and tribunals. The fact that different states have the opportunity to assert their influence in such cases, an individual such as the president of a given country, may not dictate the activities of judges. It means that some consultations have to be made and reason may prevail.

Improved Security for the Judges

Judges often face serious threat to their lives and that of their family members. Their decision may lead to long-term prison sentence to the accused. Some of these people may want to revenge against these judges. In other cases, victims who feel that a suspect was freed because of corrupt dealings in court may attack the presiding judge. In 2016, a judge who ruled in the case of Joaquin El Chapo Guzman was short and died soon after the incident.³⁹ He had ruled that the suspect should be extradited to the United States to face charges relating to drug trafficking. Such incidences may create fear in a judge, making them to subvert justice to protect their lives and that of their loved ones.

In ICC, most of the suspects and victims of these crimes are non-residents of the city of Hague. It possible to organize an attack on these ICC judges but the risk is significantly reduced. There is a sense of security, which makes it easy for the judges to make decisions based on the law and evidence presented before them. In most of the cases, the suspects presented before these judges are nationals of other countries. Chances that the judge and the victim would meet after the case is decided are significantly low.

Conclusion

The regional and international courts and tribunals have a major role to play in enhancing peace, security, and respect to the rule of law. The global society relies on these institutions to decide cases that cannot be tried by courts of a given nation. The European Court of Justice was founded to try cases where local courts would be considered biased. The same is the case with the other courts and tribunals.

As shown in the analysis above, one of the leading principles that must guide the decisions made by these courts is impartiality. The primary reason why they were set up is the fact that local courts may want to favor individuals or institutions of the country. As such, the independence of these courts is paramount. Unfortunately, the study reveals that judges of these courts can be influenced to make a decision that is not based on the law or the principle of fairness.

The fact that judges at Criminal Court of Justice, and other similar tribunals, are proposed and approved by political leaders is one of the leading factors that limit the independence of these courts. It means that these judges are employees of the political leaders. There is always a feeling that they owe their position to the appointing authority. The situation is worsened by the fact that these judges may need to be re-elected after every three years.

It means they have to demonstrate their allegiance to the political leaders to get their approval after serving the first or the second term. The president of a given country can easily influence the decision made by a judge of the ICC who is from his country through a simple phone call. Despite these challenges, the ICC and other similar tribunals are needed to address disputes at the international level. The following recommendations should be considered to help address these challenges:

• Judges at the regional and international courts and tribunals should serve for one term of seven to ten years. The need to renew their terms has been identified as a major factor that increases their dependence on political leaders.
• The International Bar Association and International Judges Association should be assigned the role of proposing names of judges to the United Nations. The move will help promote the independence of these judges.
• Judges at these courts should be offered proper security during, and when they retire from the ICC. Increased security will enhance their confidence to act independently based on facts presented before them and the spirit of the law.

Bibliography

Brown G and Keira P, ‘The Customary International Law of Cyberspace’ (2012) 6 Strategic Studies Quarterly 126.

Buchan R, International Law and the Construction of the Liberal Peace (Hart Publishing 2013).

Edelson C, Power Without Constraint: The Post-9/11 Presidency and National Security (The University of Wisconsin Press 2016).

The General Assembly, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts, 2000, United Nations, Treaty Series, vol. 54, p. 1.

Imoedemhe, C, The Complementarity Regime of the International Criminal Court: National Implementation in Africa (Springer International Publishing 2017).

Jalloh, C and Bantekas, I (eds), The International Criminal Court and Africa (Oxford University Press 2017).

Materu, F, The post-election violence in Kenya: Domestic and international legal responses (Asser Press 2015).

The Prosecutor v. Germain Katanga [2014] The International Criminal Court Trial Chamber I 7-3436 [2014] ICC 2.

The Prosecutor v. Jean-Pierre Bemba Gombo [2018] The International Criminal Court Trial Chamber III 8-3343, [2016] ICC 3.

The Prosecutor v. Thomas Lubanga Dyilo [2015] The International Criminal Court Trial Chamber I 6-2842, [2012] ICC 1.

Schabas, A, The International Criminal Court: A commentary on the Rome Statute (Oxford University Press 2016).

Schmitt NM and Liis V (eds), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Cambridge University Press 2017).

Shany, Y, Assessing the Effectiveness of International Courts (Oxford University Press 2013).

Smith C, Judges and Democratization: Judicial Independence in New Democracies (Routledge 2018).

United Nations, Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, 23August 2016, United Nations Charter.

United Nations, Vienna Convention on the Law of Treaties, 1969, United Nations, Treaty Series, vol. 1155, p. 331.

Yannakogeorgos AP, ‘Internet Governance and National Security’ (2012) 6 Strategic Studies Quarterly 102.

Footnotes

1. Buchan Russel, International Law and the Construction of the Liberal Peace (Hart Publishing 2013) 54.
2. Ibid [67].
3. Ibid [78].
4. United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.
5. Smith Charles, Judges and Democratization: Judicial Independence in New Democracies (Routledge 2018) 78.
6. Ibid [82].
7. Shany Yuval, Assessing the Effectiveness of International Courts (Oxford University Press 2013) 48.
8. Ibid [58].
9. Ibid [61].
10. Imoedemhe Catherine, The Complementarity Regime of the International Criminal Court: National Implementation in Africa (Springer International Publishing 2017) 65.
11. Ibid [68].
12. Ibid [71].
13. Ibid [73].
14. Schabas William, The International Criminal Court: A commentary on the Rome Statute (Oxford University Press 2016) 61.
15. Ibid [68].
16. Ibid [69].
17. Materu, Francis, The post-election violence in Kenya: Domestic and international legal responses (Asser Press 2015) 29.
18. Ibid [55].
19. Ibid [64].
20. Edelson Chris, Power Without Constraint: The Post-9/11 Presidency and National Security (The University of Wisconsin Press 2016) 86.
21. Ibid [89].
22. Ibid [91]
23. Materu [81].
24. Ibid [101].
25. The General Assembly, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts, 25 May 2000, United Nations, Treaty Series, vol. 54, p. 1.
26. Jalloh, Charles and Bantekas, Ilias (eds), The International Criminal Court and Africa (Oxford University Press 2017) 42.
27. Ibid [49].
28. Ibid [52].
29. Ibid [57].
30. The Prosecutor v. Thomas Lubanga Dyilo [2015] The International Criminal Court Trial Chamber I 6-2842, [2012] ICC 1.
31. The Prosecutor v. Germain Katanga [2014] The International Criminal Court Trial Chamber I 7-3436 [2014] ICC 2.
32. The Prosecutor v. Jean-Pierre Bemba Gombo [2018] The International Criminal Court Trial Chamber III 8-3343, [2016] ICC 3.
33. Materu [78].
34. Schmitt N Michael and Vihul Liis (eds), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Cambridge University Press 2017) 19.
35. Ibid [72].
36. Brown Garry and Keira Poellet, ‘The Customary International Law of Cyberspace’ (2012) 6 Strategic Studies Quarterly 126.
37. United Nations, Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, 23August 2016, United Nations Charter.
38. Yannakogeorgos Panayotis, ‘Internet Governance and National Security’ (2012) 6 Strategic Studies Quarterly 102, 1.
39. Edelson [56].