On August 30, 2011, a majority of the Appeals Chamber of the International Criminal Court (‘‘ICC’’) rejected the appeal of the Government of Kenya to the earlier admissibility decision of Pre-Trial Chamber II in the case of Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, one of two cases arising from the ICC’s investigations into crimes against humanity committed during the 2007 post-election violence in Kenya.

On May 25, 2021, the Grand Chamber of the European Court of Human Rights (ECtHR) issued a final judgment in Big Brother Watch and Others v. United Kingdom (BBW). The decision is the first Grand Chamber ruling on bulk interception in the post-Snowden era and charts the path forward for the use of tools and techniques of mass surveillance for national security purposes by Council of Europe member states. The decision was issued alongside a parallel ruling in Centrum för rättvisa v. Sweden (CFR). While CFR is “very much the companion case to BBW,” an analysis of it is outside the scope of this note. Suffice to say that, combined, both cases reaffirm the Court's position that the operation of foreign bulk interception regimes does not ipso facto violate the Convention, as such operations may be necessary in the investigation of national security threats and serious crime, including in the context of global terrorism, cyber-attacks, counter-espionage, election interferences, drug trafficking, and child pornography. In a rather complex and lengthy judgment, the Court elaborated on a procedural framework that incorporates “end-to-end safeguards” and is aimed at preventing power from being abused in the operation of these tools.

The North American Free Trade Agreement between Canada, Mexico, and the United States (NAFTA) entered into force on January 1, 1994. Chapter Eleven of NAFTA contains provisions governing investment protection and investor-state arbitration. In general, NAFTA provides investors of one of the parties protections for their investments in another NAFTA party, guaranteeing: treatment at least as good as that of host or third country investors (NAFTA articles 1102-1104); treatment in accordance with the minimum standards of customary international law (NAFTA article 1105); and compensation for expropriation (NAFTA article 1110). NAFTA article 1139 defines “investment” broadly but excludes contracts for the sale of goods or services. After meeting specified threshold requirements, such an investor has the right to international arbitration against the host state to vindicate these protections.

On July 11, 2013, in the case against Radovan Karadžić, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) held that the evidence presented against the accused, if taken at its highest, could lead a reasonable trier of fact to find that genocide against Bosnian Muslim and/or Bosnian Croat groups had occurred in Bosnia and Herzegovina in 1992. This decision overturned an earlier ruling by Trial Chamber III on the accused’s motion for acquittal pursuant to Rule 98bis of the Rules of Procedure and Evidence, which found that there was insufficient evidence to support a conviction for genocide in the seven municipalities of Bosnia and Herzegovina.2