South African Withdrawal from the International Criminal Court – Does the ICC Statute Lead to Violations of Other International Obligations?

Published on October 22, 2016        Author: 

The relations between the International Criminal Court (ICC) and African States have come to a head once again this week with situation now at its lowest point. The government of South Africa has announced (see here) that it is withdrawing from the Statute of the ICC and that it has submitted its instrument of withdrawal to the UN Secretary General in accordance with Article 127(1) of the ICC Statute. Under that provision, the withdrawal shall take effect one year after the date of receipt of the notification of withdrawal (unless the state specifies a later date in the notification). South Africa, which had previously been a strong supporter of the Court, thus becomes the first state to withdraw from the ICC. To add to the sense of crisis, the South African withdrawal follows on from the decision over the past couple of weeks of the President and Parliament of Burundi to also withdraw from the ICC Statute. Although the Burundi Parliament has voted to do this and the President has signed a decree to this effect(see here and here), Burundi does not appear to have, as yet, notified the UN Secretary-General of its intention to withdraw to the ICC. There are fears that other African states will follow suit. [Lost in all of this was the news that, by contrast, another African country, Gabon, referred the situation in that country to the ICC less than4 weeks ago (see here for statement of ICC Prosecutor).]

South Africa’s Reasons for Withdrawal

The South African notification of withdrawal has not yet been released publicly but we have a detailed statement from the Minister of Justice regarding the reasons behind the withdrawal. One of the major grounds on which the South African government justifies its withdrawal is that:

“the Rome Statute [and the domestic Act implementing it] compel South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the court.”

The government claim is thus that complying with the ICC Statute will cause South Africa to breach its obligations to other states. The Minister suggests that resolving this conflict of obligations is important, because it undermines the ability of South Africa to work towards peaceful resolution of disputes and to promote the important objective of bringing conflicts to an end. The Minister went on to say that: “South Africa has had to do so [arrest people wanted by the ICC], even under circumstances where we are actively involved in promoting peace, stability and dialogue in those countries”. He stated further that:

“We wish to give effect to the rule of customary international law, which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent”.

Does the ICC Statute Require States to Violate the Customary International Law of Immunity?

I do not intend to address the broader peace vs justice debate in this post (Is South Africa right to seek to pursue peace over immediate claims to justice in particular situations?) Reasonable minds can disagree on this. However, I wish to question the claim by South Africa that the Rome Statute requires it to violate customary international law of immunity. Read the rest of this entry…

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Announcements: United Nations University Vacancy; CfS Journal of International Criminal Justice; CfS Cambridge International Law Journal; CfP International Network on Transnational Legal and Political Theory

Published on October 23, 2016        Author: 

1. Organizational Unit: UNU Institute on Comparative Regional Integration Studies. The United Nations University (UNU) is searching for an entrepreneurial director for its Institute on Comparative Regional Integration Studies (UNU-CRIS) in Bruges, Belgium. The Institute undertakes solution-oriented, policy-relevant research on the impact of regional integration in policymaking across all levels of political organisation. The Institute will, from October 2017, be working in close partnership with the University of Ghent and the Free University of Brussels. For more information, see here.

2. Journal of International Criminal Justice Call for Submissions. To mark 15 years since the coming into force of the Statute of the ICC on 1 July 2002, the Journal of International Criminal Justice is pleased to announce a forthcoming symposium on The International Criminal Court’s Policies and Strategies’ to be published in July 2017. The Court and its various organs have continually issued a number of documents explaining the Court’s policies on numerous distinct issues as well as its strategies for the future. The Journal’s Editorial Committee believes that the time has come to take a closer and systematic look at these documents, looking at the choices made thus far, the level of transparency and consistency, as well as suggesting avenues to strengthen the overall effectiveness and credibility of ICC investigative and prosecutorial strategies. The Journal calls for submission of abstracts not exceeding 500 words by no later than 15 November 2016. The Editorial Committee will invite a number of contributors to submit full papers of no more than 8000 words (including an abstract and footnotes) by 28 February 2016. For more information about the call, see here or contact the Executive Editor at jicj {at} geneva-academy(.)ch. Read the rest of this entry…

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A Role for the Security Council on Defensive Force?

Published on October 21, 2016        Author: 

Last wMonica Hakimieek, Elena Chachko and Ashley Deeks posted a helpful resource at Lawfare: a compilation of states’ pronouncements on the use of defensive force against nonstate actors. Readers no doubt know that there is an ongoing debate about whether and, if so, under what circumstances a state may use force in self-defense against nonstate actors that operate from another state. The Lawfare post asserts that ten states have expressly endorsed the unable-or-unwilling standard, under which defensive force would be permissible if the “host” state is unable or unwilling to contain the violence. The post then characterizes three states as having implicitly endorsed the unable-or-unwilling standard; eighteen as ambiguous about that standard; and four as expressly objecting to it.

We disagree with some of those characterizations. A few of the “express” endorsements seem to us to be less definitive than Chachko and Deeks claim. Moreover, we don’t think the “implicit” or “ambiguous” endorsements are endorsements at all. In these cases, the acting states seem not to support the unable-or-unwilling standard but rather to articulate a narrower standard -one that is limited either to the host state’s affirmative support for the nonstate group or to that state’s loss of control over portions of its territory. (For a discussion of the various standards that might be in play, see this article.)

cogan-faculty-pageWe want to focus here on a more interesting phenomenon: in the current fight against the Islamic State, six states have invoked in their reports to the Security Council a combination of Resolution 2249 and Article 51 to justify their use of force in Syria. (The six states are Belgium, Denmark, Germany, the Netherlands, Norway, and the United Kingdom.) Resolution 2249 was adopted in November 2015. It “determin[ed]” that the Islamic State “constitutes a global and unprecedented threat to international peace and security” and “not[ed] the letters . . . from the Iraqi authorities which state that Da’esh has established a safe haven outside Iraq’s borders that is a direct threat to the security of the Iraqi people and territory.” The Council also:

“call[ed] upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, . . . to prevent and suppress terrorist acts. . . .”

This Resolution nowhere authorized the use of force. And even if it did, it would be unnecessary if Article 51 itself provided a basis for using force in Syria. The point of Article 51 is to permit unilateral force – that is, force without any Council action – in “true” cases of self-defense. As such, the Article 51 reports that reference 2249 are, at the very least, odd. Read the rest of this entry…

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International Law in the Early Days of Brexit’s Past

Published on October 20, 2016        Author: 

Editor’s Note: This post is an adapted version of a short-piece prepared by the author for a policy-report by the think-thank Britain in Europe based at Brunel University London. The report will be presented on the 25th October at a high-level meeting at the British Academy and commented upon by Dominic Grieve, former attorney general of the United Kingdom (2010-2014).

Echoing a widespread sense of almost existential malaise across the ‘invisible college’ of public international lawyers regarding ‘Brexit’, Judge James Crawford of the bench of the International Court of Justice (ICJ), and until very recently the Whewell Professor of International Law at the University of Cambridge, offered a de minimis definition of international law in times of crisis at the opening ceremony of the 12th Annual Conference of the European Society of International Law (ESIL). International law, Judge Crawford said with a fine sense of irony, is ‘all that remains’ when ‘Brexit’ happens, or when Donald Trump wins the U.S.’ Presidential elections.

Internationalists by training and vocation, public international lawyers have not, for their greatest part, been too fond (to put it lightly) of the outcome of the Brexit referendum. But, is this gremial intellectual ‘malaise’ really justified from the perspective of the strictly professional academic interests of the UK academically-based ‘invisible college’ of international lawyers? After all, most international law scholars based in academic institutions across the UK received the news of the outcome of the EU referendum with, at least, a pinch of ironical relief at not having made European Union Law their life’s profession. The awareness that the UK was to be in an even greater need of international legal expertise in the years to come may have added further reassurance to those concerned by their job security and perhaps, overall their life-project in a country which, worn out by years of austerity, had just turned its back on what for all its flaws remains on paper the most advanced value-based and peaceful historical experiment of legal and political integration that a History littered with projects of conquests and subjugation of peoples in the name of religion, imperialist designs and totalitarian ideologies had ever witnessed. International law is, at the end of the day, ‘all that remains’ to replace the law of the European Union as legal vernacular for this country to lay new foundations of its ‘global’ legal relationship with the rest of the world. But, can the UK truly count on some sense of academic loyalty on the part of non-British UK-based international lawyers, many of whom, moreover, feel particularly estranged amidst an extended public rhetoric of ultra-nationalist overtones as EU nationals in a country that will soon not be part of the ‘EU family of nations’? What might appear prima facie to be a question primarily addressed to interrogate the theoretical possibility that many non-British nationals (both EU and non-EU citizens alike) would be rethinking pursuing their academic careers in British universities in a post-Brexit scenario, has, however, gained an unexpected, and slightly disquieting added dimension in recent weeks. According to the British media, indeed:

‘foreign academics from the LSE acting as expert advisers to the UK government were told they would not be asked to contribute to government work and analysis on Brexit because they are not British nationals’

Read the rest of this entry…

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Ecuador Turns Off Julian Assange’s Internet Access

Published on October 19, 2016        Author: 

The world is an awful, terrible place. But sometimes it gives us a nugget so glorious that it really has to be savoured and appreciated. One such nugget is today’s news item that Ecuador had made a ‘sovereign decision’ to restrict the Internet access of Julian Assange, for many years a guest in its London embassy (Guardian and BBC reports here; our previous coverage of various legal issues regarding Assange here). Note the reason Ecuador gave for restricting Assange’s Internet access (which I imagine they are paying for, in any event): respect for the principle of non-intervention. Here’s the Ecuadorian government’s official communique (via Twitter):

In recent weeks, WikiLeaks has published a wealth of documents, impacting on the U.S. election campaign. This decision was taken exclusively by that organization.

The Government of Ecuador respects the principle of non-intervention in the internal affairs of other states. It does not interfere in external electoral processes, nor does it favor any particular candidate.

Accordingly, Ecuador has exercised its sovereign right to temporarily restrict access to some of its private communications network within its Embassy in the United Kingdom. This temporary restriction does not prevent the WikiLeaks organization from carrying out its journalistic activities.

Just consider, for a moment, how Assange, as a champion of the freedom of speech on the Internet, has found himself in cahoots with (likely) Russia – by any measure not the freest of societies – in actively influencing the forthcoming American elections, and how he is maintaining this activity from UK sovereign soil, protected by Ecuador’s unlawful grant of asylum. And then ponder the delicious irony of a state like Ecuador which, on the one hand, violated the principle of non-intervention vis-a-vis the UK by granting asylum to a fugitive from criminal justice, only to then invoke that very same principle vis-a-vis the United States in order to effectively limit Assange’s freedom of expression. Remarkable, isn’t it?

On a purely legal level, it is particularly noteworthy that a state has essentially expressed its opinio juris to the effect that the customary principle of non-intervention requires it to prevent a private actor operating from a place within its jurisdiction from interfering with the electoral process of a third state by leaking the content of a campaign official’s private emails. I, at least, am not aware that the principle of non-intervention has ever been invoked by an (arguably) intervening state against itself in this particular way, and indeed as part of justifying the interference with an individual’s human rights. But this is an excellent example of how an old legal principle can keep evolving in different circumstances.

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The Airstrike Killing Members of the Syrian Armed Forces was not an International Crime

Published on October 19, 2016        Author: 

The US coalition formed to combat the Islamic State was recently involved in a drone strike in Syria which mistakenly killed at least 62 Syrian government troops. The air strike involved US, British, Danish and Australian forces. An investigation into how the incident occurred is currently underway.

The attack was described by Syria’s president Bashar al-Assad as ‘flagrant aggression’ and led to the Russians calling an emergency meeting of the UN Security Council. Suggestions have since been made by some that at least the British nationals involved in the attack could face the possibility of an International Criminal Court (ICC) investigation.

The purpose of this post is not to explore the likelihood or unlikelihood of an ICC investigation. Rather, it is to consider whether an international crime has been committed in attacking and killing the Syrian soldiers.

There are three possibilities: firstly, that the act was a war crime; secondly, that it was a crime against humanity committed during an armed conflict; and thirdly, that it was a crime against humanity committed during peacetime. Read the rest of this entry…

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When Does the Use of Force Against a Non-State Armed Group trigger an International Armed Conflict and Why does this Matter?

Published on October 18, 2016        Author: 

Over at Just Security (see for example herehere and here) and also at Opinio Juris (see here and here) there has been a very interesting discussion on whether aspects of the conflict in Syria should be regarded as international armed conflicts (IACs) rather than simply non-international armed conflicts (NIACs). These discussions have followed on from the release of the ICRC’s revised Commentary to the First Geneva Convention (GCI) of 1949 in which the ICRC, in its commentary to Common Article 2 dealing with international armed conflicts (one between the High Contracting Parties to the GCs), states that where a state uses force against a non-state group on the territory of another state without the consent of the territorial state it would amount to an international armed conflict between the intervening state and the territorial state. So as Adil Haque pointed out on EJIL:Talk! in April, the ICRC position would mean that the US (and other states using force in Syria without the consent of the Syrian government) is involved in an IAC in Syria. Adil has explained his support for the ICRC position in posts on this issue on Just Security (see here and  here). Others like Terry Gill, Sean Watts and Kenneth Watkin have disagreed (see here, here, here, and here).

I am on record as being a supporter of the position that the ICRC has now come to. I wrote a piece (available here on SSRN) many years ago, which was part of a major study on Classification of Conflicts in which I say precisely what the ICRC has now said (and I’m delighted that the ICRC’s revised commentary cites that work). I am not going to repeat my arguments in this post and they can be found here. In summary, my view is that an international armed conflict is a conflict between states, and a conflict arises between states when one state uses force against another state. What does it mean for a use of force to be against another state? It means simply that the force is used on the territory of the other state without its consent. Note that this says nothing about whether that use of force is lawful or unlawful under the jus ad bellum. Such non-consensual uses of force may or may not be lawful under that body of law, and the application of IHL remains independent of the legality of the use of force under the jus ad bellum. It is also important to remember that saying that there an IAC between the two states says nothing about whether there is a NIAC between the state using force and the non-state group. There will, in many cases, be such a NIAC. This will raise questions about the relationship between the two conflicts: the IAC and the NIAC. However, the notion of mixed conflicts is by no means unusual or confined to this context. In the Nicaragua case the ICJ noted that it was addressing a situation where there was an IAC and a NIAC. The same was also true with regard to the conflicts in the former Yugoslavia or before that in Vietnam, which were also mixed.

In this post I wish to concentrate on why it might matter whether a use of force directed at a non-state actor on the territory of a non-consenting state is an IAC or a NIAC. What exactly would turn on this question. Here I provide a general response to that question rather than one directed particularly at answering the question (which has been the subject of some of the commentary on Just Security and Opinio Juris) of what would turn on whether the US is involved in an IAC in Syria. Some of the points below would be relevant for the US in that particular conflict, others might not be.

Here are a few reasons why it might make a difference whether a state using force on the territory of another without  the consent of the other is involved in an IAC (in addition to a NIAC, if one already exists). Read the rest of this entry…

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Slovenia v. Croatia: The First EU Inter-State Case before the ECtHR

Published on October 17, 2016        Author: 

On 15 September 2016 the Government of Slovenia lodged an inter-State application against the Republic of Croatia before the European Court of Human Rights (ECtHR), related to the claims of Ljubljanska banka towards Croatian companies. Pursuant to Article 33 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), the Republic of Slovenia informed the Court that the Republic of Croatia had violated the provisions of the Convention when the latter’s judicial and executive authorities systematically undertook actions to unlawfully deny Ljubljanska banka the right to property. For a period of 25 years the bank has not been able to recover its claims from Croatian companies. The application states that this has allowed the debtors of Ljubljanska banka in Croatia to avoid repaying their debt – currently estimated to be 360 million Euro. This amount is very similar to the one Slovenian taxpayers were requested to pay after the Grand Chamber delivered its decision in Ališić two years ago, one of the largest cases in ECtHR’s history considering its massive financial implications for Slovenia’s two million population. Although one might say that the Slovenian government timed its application so as for the recent Croatian elections to pass, the date of the application was in fact more closely related to the latest decision of the Croatian Constitutional Court on the subject-matter which was adopted in March this year.

A wider legal audience, which may otherwise not be interested in Yugoslav succession issues, might nevertheless show an interest in the present case since it presents the first inter-State case before the ECtHR between two EU Member States, and also because it raises the question of potential concurrence of jurisdiction between the ECtHR and the CJEU (a topic much debated under the EU’s accession to the ECHR negotiations). Although current EU Member States have in the past been involved in mutual disputes before the ECtHR,  both contracting parties have never been EU Member States at the time of those proceedings (application by Austria v. Italy was lodged in 1960 (No. 788/60); Denmark and Sweden filed an application against Greece in 1967 (No. 3321/67 and 3323/67); while two cases of Ireland v. UK date back to 1971 and 1972 (No. 5310/71 and 5451/72)).

The application of Slovenia’s Government against Croatia is also of importance as it is an unusual case in the sense that Article 33 ECHR is being applied for the protection of interests of a legal, rather than a natural, person (e.g. the case of Georgia v. Russia (I) (No. 13255/07) concerned the alleged collective expulsion of Georgian nationals from the Russian Federation). The general public of Slovenia has for this reason responded to the news of the application with doubts as to whether legal persons could in fact be considered to have “human” rights. However, despite the fact that only Article 1 of the First Protocol to the ECHR on the protection of property expressly recognizes legal persons as recipients of fundamental rights, several other human rights in the ECHR are also granted to them. Apart from the recent application of Ukraine v. Russia, which partly attempts to protect the rights of legal persons, all other inter-State actions before the ECtHR have concerned natural persons.

As the long journey towards ECtHR’s decision in the case at hand has only just begun, this post shortly describes the background of the case.

Read the rest of this entry…

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Announcements: International Law Lectures; 2017 ESIL Annual Conference Call for Papers

Published on October 16, 2016        Author: 

International Law Lectures. The European Society of International Law are happy to introduce a new project – International Law Lectures. The project takes off in Russia where it will take place in cooperation with leading Russian universities. The Higher School of Economics (Moscow) has sponsored and co-organized the first lecture of the series, with Prof. Martti Koskenniemi. Anne Orford, Laurence Boisson de Chazournes, Philippe Sands, Anthea Roberts, Marko Milanovic and other top international law scholars and practitioners are among the first to confirm their visit to Russia with lectures and seminars during the 2016/17 and 2017/18 academic years. This is the first ever initiative of this kind and at such a scale in Russia. The organizers are constantly working on the composition of the programme. Please contact Maria Issaeva (maria.issaeva {at} threefold(.)ru) if you would like to contribute to this important project as speaker, sponsor or otherwise.

2017 ESIL Annual Conference Call for Papers. The 13th Annual Conference of the European Society of International Law will take place in Naples, Italy, on 7-9 September 2017. The conference will be hosted by the University of Naples Federico II. The theme of the conference is ”Global Public Goods, Global Commons and Fundamental Values: The Responses of International Law”. The Call for Papers can be found here. The deadline for submission of abstracts is 31 January 2017. Further details of the programme and the registration process will be available in early 2017. The opening session of the conference will be held in the Teatrino di Corte, the King’s private opera theatre inside the Royal Palace, and the main conference will be held in the Castel dell’Ovo, a magnificent medieval building which is the oldest standing fortification in Naples. Pre-conference ESIL Interest Group events will be held at the historical premises of the School of Law of the university.  

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The Doctrine of Indispensable Issues: Mauritius v. United Kingdom, Philippines v. China, Ukraine v. Russia, and Beyond

Published on October 14, 2016        Author: 

On 14 September 2016, Ukraine instituted proceedings against Russia under the United Nations Convention on the Law of the Sea (UNCLOS). Ukraine is requesting that an UNCLOS tribunal declare, inter alia, that Russia has violated the Convention by interfering with Ukraine’s rights in maritime zones adjacent to Crimea.

At first, there appears to be no jurisdictional problem. Aside from the exceptions laid out in Part XV of UNCLOS, the tribunal has jurisdiction over “any dispute concerning the interpretation or application of [the] Convention” (Art. 288(1) UNCLOS), which would permit a declaration that Russia has violated the Convention. Nevertheless, such a declaration would necessarily require a preliminary determination that Ukraine still has sovereignty over Crimea (under the “land dominates the sea” principle), and the tribunal does not have jurisdiction over territorial sovereignty disputes. Therefore, the tribunal must decide whether it may still exercise jurisdiction over the dispute concerning Russia’s violation of the Convention.

Ukraine v. Russia presents what one may call the “implicated issue problem.” Generally speaking, the implicated issue problem arises when an international court or tribunal has jurisdiction over a dispute, but the exercise of such jurisdiction would implicate an issue over which the court or tribunal does not have jurisdiction ratione materiae. The court or tribunal must therefore determine whether it may still exercise jurisdiction over the dispute. Read the rest of this entry…

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