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Zimbabwe and the Kimberley Process: Just how effective are Multi-stakeholder Initiatives?

Published on November 24, 2009        Author: 

Lucy Koechlin is a member of the Institute of Sociology/Centre of African Studies, University of Basel, Switzerland

Just a couple of weeks ago, against the explicit recommendations by its own review mission, the annual plenary of the Kimberley Process decided against suspending Zimbabwe as a member – in spite of documented violations of its minimal criteria, including the involvement of the government of Zimbabwe in illicit diamond trading and systematic human rights abuses in the diamond mine of Marange.

Not surprisingly, NGOs have sharply criticised the decision. According to a recent press release by Global Witness, the

“failure to suspend Zimbabwe points to fundamental weaknesses in the scheme’s procedures and to a serious lack of political will to take decisive action when countries are not implementing minimum standards. …  This undermines the scheme’s effectiveness and compromises those participants who implement the system in good faith. It also sends the message that there will be no serious consequences for those who break the rules.”

This incident is highly illustrative of several key questions surrounding the effectiveness and credibility of Multistakeholder Initiatives (MSI) in general. MSI are particularly suited to addressing complex governance issues that involve national and international actors across all sectors. Next to the Extractive Industry’s Transparency Initiative (EITI), the Kimberley Process may be the most well known of such international initiatives. Strictly speaking, the Kimberley Process is an intergovernmental initiative, as full participation can only be granted to states or regional governmental organisations (such as the EU). However, to all intents and purposes, the Kimberley Process is a classic multistakeholder initiative, with substantial influence and participation from both the diamond industry as well as international civil society. Indeed, the initiative itself emerged in the wake of influential reports by Global Witness and other international NGOs pinpointing the role of so-called ‘blood diamonds’ that fuelled violent conflicts in Angola, Sierra Leone or the Democratic Republic of Congo. The increased sensitisation led both the diamond industry as well as producing and trading countries to address the root causes of the illicit trading of rough diamonds. In November 2000, realising that the problem cannot be tackled by a single actor, concerned governments, companies and NGOs brought the Kimberley Process Certification Scheme (KPCS) to life. The objective of this voluntary, self-regulatory initiative is to flag the origins of internationally traded diamonds, to prevent the illicit mining and trading of rough diamonds, and thus to cut off illicit proceeds flowing into the financing of rebel groups.

 Given the complexities surrounding the mining and trading of rough diamonds, the Kimberley Process has accomplished much. Firstly, it has defined import/export control regimes for governments as well as control systems governing the private sector. Secondly, today, not least due to a unique diamond data base, it is possible to trace the trail of rough diamonds from mine to polished form. And most pertinently, thirdly, as a result of the KPCS only certified diamonds are permitted to enter international markets. Looking at the different governance functions that such MSI can fulfil (see Koechlin/Calland 2009), the KPCS ticks many boxes: in terms of moral standards, its very existence signifies a public acknowledgment that governments and the private sector bear an ethical responsibility with regard to the revenues of diamond trading. On a more practical level, the KPCS has provided a platform for dialogue and engagement amongst very different stakeholders; it has effectively set direly needed standards in a messy and unregulated area; it is supporting capacity-building of members with regard to the required control systems; and lastly, through ongoing peer reviews and regular meetings by the Plenary and Working Groups, best practices amongst members and knowledge exchange across sectors is encouraged.

So far so good. But the main problem facing multi-stakeholder initiatives is that they lack teeth. Read the rest of this entry…

 
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20th Anniversary of the UN Convention on the Rights of the Child

Published on November 20, 2009        Author: 

Today marks the 20th anniversary of the adoption by the UN General Assembly of the Convention on the Rights of the Child. The Convention has become the most widely ratified treaty after the Geneva Conventions of 1949 (which have 194 States Parties). There are now 193 States Parties to the Convention on the Rights of the Child, meaning it has more parties than to the Charter of the United Nations (which has 192). Only the United States and Somalia are not party to the Convention. Two Optional Protocols additional to the Convention were adopted in 2000. One on the involvement of children in armed conflict and the other on the sale of children, child prostitution and child pornography.

In addition to specific rights the Convention lays down the basic principle that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration

Filed under: EJIL Reports, Human Rights
 
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Denmark Invites Sudanese President Bashir to Climate Change Conference

Published on November 19, 2009        Author: 

As readers will probably know, there will be a United Nations Conference on Climate Change to be held in Copenhagen, Denmark in December (see conference website here). Participation in the conference is open to parties to the United Nations Framework Convention on Climate Change as well as Observer States, organizations within the United Nations System and observer organizations admitted by the Conference of the Parties. A Danish newspaper has recently reported (see here) that Sudanese President Bashir has been invited to attend the conference:

[Danish Prime Minister] Lars Løkke Rasmussen has invited world leaders to [the] climate meeting, including one subject to an ICC arrest warrant.  . . . World leaders from 191 countries received the official invitation from Prime Minister Lars Løkke Rasmussen yesterday to attend the UN Climate Change Conference in Copenhagen (COP15) this December.

. . . one of those invited is Sudanese president Omar al-Bashir, who is currently subject to an arrest warrant issued by the International Criminal Court for crimes against humanity.

Thomas Winkler, head of the Foreign Ministry’s legal department, said that as the climate conference is a UN event, Denmark is obliged to invite all heads of government without exception.

‘But at the same time we would point out that Denmark is also obliged to comply with the Security Council’s resolution regarding Darfur,’ Winkler said to Berlingske.dk.

The security council resolution states that Sudan, like all countries, must cooperate with the International Criminal Court, and Denmark would be obliged to honour the ICC arrest warrant should al-Bashir arrive in the country.

The issue of President Bashir’s immunity has been discussed extensively on this blog (see here, herehere, here, and here). I have argued on the blog and in the Journal of International Criminal Justice that the effect of the Security Council referral of the Darfur situation to the ICC is that Sudan is to be treated as if it were a party to the ICC Statute and is thus bound by Article 27 of the ICC Statute which removes immunity.

However, I am not sure that the Danish Legal Adviser is right that Denmark would be bound to honour the ICC Arrest Warrant. The reason for this is Article IV, Section II of the Convention on the Privileges and Immunities of the United Nations (1946), which provides:

“SECTION 11. Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privileges and immunities:

(a) Immunity from personal arrest or detention  . . .”

It seems to me that there is good argument to be made that this obligation prevails over any other inconsistent obligation as a result of Article 103 of the UN Charter. Although the UN Immunities Convention is a treaty, it is a treaty that elaborates on Article 105 of the UN Charter. That article provides that:

“(2) Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.

(3) The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.”

In short, the obligation to accord immunity is a Charter obligation. As such it would prevail over any inconsistent obligations. Even if the Security Council were to explicitly provide that Bashir should be arrested at the conference, that would be contrary to the Charter.

 

ICC Prosecutor Seeks Permission to Investigate Kenyan Crimes Against Humanity

Published on November 17, 2009        Author: 

Lionel Nichols is a research student in the Faculty of Law, University of Oxford. He is an executive member of the Oxford Transitional Justice Research Group and has prevously interned at the International Criminal Tribunal for the Former Yugoslavia and the Special Court for Sierra Leone.

Earlier this month, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo announced that he will seek permission in December from the ICC’s Pre-Trial Chamber to initiate an investigation into crimes alleged to have been committed during the 2007 post-election violence in Kenya. The announcement signalled that Ocampo’s patience in relation to the situation in Kenya had finally expired.  Ocampo has waited over a year for Kenya’s Grand Coalition Government to establish a Special Tribunal for Kenya to try those suspected of being responsible for the 2007 post-electoral violence. Now, for the first time, he is using his powers under Article 15 of the ICC Statute to initiate proceedings in the ICC propio motu (on his own motion).

The investigations into the Kenya situation will build upon the work of the Commission of Inquiry on Post Election Violence (Waki Commission), which issued its report on 15 October 2008 (see here).  The Waki Commission found that, in the violence that followed Mwai Kibaki’s claim to have won the December 2007 presidential elections, at least 1,133 people were killed and more than 300,000 were left homeless.  Assuming paramount importance amongst the list of recommendations made by the Waki Commission was the establishment of a Special Tribunal for Kenya to try those persons suspected of being responsible for the violence.  To coerce the Grand Coalition Government into adopting the recommendation, the names of at least 10 persons believed to have been responsible for orchestrating the violence were placed into a sealed envelope and threatened to be handed over to Ocampo should the Government fail to establish a Special Tribunal by January 2009. Read the rest of this entry…

 

The Conviction by an Italian Court of CIA Agents for Abduction – Some Issues Concerning Immunity

Published on November 7, 2009        Author: 

As Marko reported in an earlier post, an Italian Court has convicted 23 American agents (including the former head of the CIA in Milan) and 2 Italian intelligence agents for their part in the abduction and rendition of a muslim cleric Abu Omar. Abu Omar was taken from the streets of Milan to Egypt where he claimed to have been tortured. It was alleged that this act of “extraordinary rendition”  was carried out by a team of CIA agents with the collaboration of Italian intelligence agency (for media report, see here, here, here and here). This case is of interest because it appears to be the first conviction of government agents alleged to be involved in the extraordinary rendition programme. It is also of interest because what we have is a conviction by the courts of one country of persons who are officials or agents of another government. The case therefore raises issues as to the immunity which State officials are entitled to, under international law, from the criminal jurisdiction of foreign States. Why is it that in this case Italy was able to exercise criminal jurisdiction over US agents? Or has the Italian court acted contrary to international law in proceeding with the case and not according immunity to the US officials agents. There are at least three types of immunity at issue here. First of all, the case raises issue as to the scope of diplomatic immunity. Secondly, the case raises issues as to the scope of consular immunity and highlights how this type of immunity differs from diplomatic immunity. The third type of immunity at issue is the immunity ratione materiae which all those who act on behalf of a foreign government are entitled to. This doctrine provides immunity from foreign criminal jurisdiction to a person where the act they have performed is essentially the act of a foreign government. Here the immunity attaches to the act itself and not so much to the official with the effect that this immunity is also available to former officials.

Issues relating to the first two types of immunity arise because some of the American defendants were US diplomatic and consular agents in Italy. It has been reported that three Americans were acquitted on grounds of diplomatic immunity. Presumably, those granted diplomatic immunity by the Italian court were members of the diplomatic staff of the US mission to Italy, which simply means they are members of staff with diplomatic rank (Art. 1 (d) of the Vienna Convention on Diplomatic Relations 1961). It would not be unusual for intelligence agents to be granted such status and the head of the CIA in Italy was one of those granted immunity in the case. However, it is also reported that the Italian Court convicted at least one person (Sabrina de Sousa) who was a US consular officer at the time of the rendition. I do not know whether the US claimed diplomatic immunity in case of those for whom immunity was granted. However, the US government did not claim consular immunity in the case of Sabrina de Sousa who then sued the US State Department in an attempt to force the US government to make such a claim (see the report in the New York Times and here for her court claim).  Although this might appear to be contradictory, there are differences in the relevant provisions of the two Vienna Conventions on Diplomatic and Consular Immunity  which might justify the difference. Both conventions provide for immunity for diplomatic agents and consular officers. Art. 43(1) of the Consular Convention provides for immunity from the jurisdiction of the receiving State “in respect of acts performed in the exercise of consular functions.” Art. 39(2) of the Diplomatic Convention provides that former diplomatic agents will continue to be immune even after they leave office, “with respect to acts performed by such a person in the exercise of his functions as a member of the mission.” It is much easier to argue that acts (even acts which may be illegal) come within the exercise of a person’s function as a member of a mission than it is to argue that acts come within the exercise of consular functions. Art. 3 of the Diplomatic Convention provides a broad definition of the functions of a diplomatic mission. These functions include: representing the interests of the sending state within the receiving state and negotiating with the government of the receiving State. Since the purpose of immunity is preclude a court from making a determination whether an act is lawful or not, it cannot be a limitation to the immunity with respect to these functions to say that they cannot extend to unlawful conduct. However, Art. 5 of the Consular Convention provides a much more specific and narrow definition of consular functions. It is difficult to argue that arranging for the abduction of a person would be an exercise of consular functions. The question here is not that such acts are unlawful but rather that they just don’t fall within the ordinary understanding of the scope of consular functions as defined in Article 5. Read the rest of this entry…

 
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Abu Omar Rendition Conviction

Published on November 4, 2009        Author: 

Major news outlets have reported the (perhaps somewhat surprising) conviction of 23 American and 2 Italian intelligence agents by an Italian court for the 2003 ‘extraordinary rendition’ of Abu Omar (for coverage, see here, here, here) and here. This is I believe the first such conviction in any Western country – the decision itself was announced orally, while the written reasons will follow eventually. Our readers might be interested in a topical article (available on SSRN) on the Abu Omar case by Francesco Messineo, which is due to be published shortly in the JICJ, and which I’ve had the opportunity to read in draft.