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The Genocide Convention and the Arrest Warrants Issued by the ICC

Published on January 31, 2011        Author: 

The Human Rights and International Criminal Law Online Forum of the  Sanela Diana Jenkins Human Rights Project at UCLA Law School is hosting an online debate on (i) the obligations of Contracting parties to the Genocide Convention to implement arrest warrants for genocide issued by the International Criminal Court and (ii) the obligations of African Union States Parties to implement ICC arrest warrants. The debate is, of course, inspired by the arrest warrant issued by the ICC for Sudanese President Omar Al Bashir, which has been discussed on this blog on many occasions (see post by Marko here, and by me and others here, here, here and here, here).  The UCLA Forum is supported by the Office of the Prosecutor of the ICC and I think the questions being debated have been posed by the ICC Prosecutor.

The “debate” on the Forum is initiated by opinion pieces written by five “invited experts”: Paola Gaeta (University of Geneva); Makau Mutua (Buffalo Law School); Bill Schabas (National University of Ireland, Galway); Goran Sluiter (Amsterdam Law Faculty) and me.  Most of us accept (following the decision of the International Court of Justice in the Bosnian Genocide Convention Case) that, in principle, the Genocide Convention provides an alternative basis on which to ground the obligation to execute arrest warrants issued by the International Criminal Court. I first discussed this possibility nearly two years ago in a post on this blog and also in a piece in the May 2009 issue of the Journal of International Criminal Justice. The point now seems to be accepted by others. However, there are still three points of contention relating to obligations under the Genocide Convention:

First of all, does the obligation to cooperate with the ICC which derives from the genocide convention apply only to States parties to the ICC or does it extend also to non-parties to the Rome Statute who are however parties to the Genocide Convention. Read the rest of this entry…

Filed under: EJIL Analysis, Genocide, International Criminal Court
 

The Turkel Commission’s Flotilla Report (Part One): Some Critical Remarks

Published on January 28, 2011        Author: 

Dr Amichai Cohen is a Senior Lecturer at the Ono Academic College in Israel; Prof. Yuval Shany is the Hersch Lauterpacht Chair of Public International Law at the Hebrew University of Jerusalem. Both Dr Cohen and Prof. Shany are senior researchers at the Israel Democracy Institute. The authors thank Prof. David Kretzmer, Mr. Gil Limon and Mr. Rotem Giladi for their comments to a previous draft. The usual disclaimers apply

A. Introduction

On January 23, 2011 The Public Commission to Examine the Maritime Incident of May 31, 2010  – The Turkel Commission published its partial report on the Flotilla incident. This partial report deals with the two main issues raised in the aftermath of the Flotilla incident – the legality of the naval blockade on Gaza, and the tragic results that ensued from the raid by Israel Defense Forces (IDF) commandos of the flotilla ships, which tried to run the blockade – the killing of  9 passengers on board one of the flotilla ships – the Mavi Marmara.

The Turkel Commission was set up by the Israeli government on June 14th 2010, and was headed by a former Justice of the Supreme Court, Yaakov Turkel. Its members included a retired diplomat (Ambassador Reuven Merhav), a former army general (Amos Horev) and a civil law professor (Miguel Deutch). Shabtai Rossene, the fifth member of the Commission, a renowned international law expert, died during deliberations. The Commission also included two international observers, Nobel laureate, Lord David Trimble, and the former Judge Advocate General of the Canadian Forces, Brig. General Kenneth Watkins. The Commission was further assisted by two notable international law experts – Professor Michael Schmitt and Prof. Dr. Wolff Heintschel von Heinegg. The report, which covers 240 pages (the English version is almost 300 pages long), exonerated the IDF and the Israeli government from any violation of international law connected with the flotilla incident and declared that the nine deaths which occurred on board the Mavi Marmara were a tragic result of a conflict which Israel did not seek, plan or even foresee. This conclusion is supported by extensive fact finding and legal analysis. Although the Commission conceded that it could not verify the entire body of evidence for each and every case of shooting or other form of violence employed on the Mavi Marmara during the takeover (the Commission identified 133 such incidents), it did not find Israel’s action to violate any applicable international law standard.

The purpose of this comment is to discuss some of the specific legal findings made by the Turkel Commission, which we believe to be problematic in nature.

Read the rest of this entry…

Filed under: EJIL Analysis, Israel, Law of the Sea
 

SIEL/CUP Prize for an Essay on International Economic Law

Published on January 27, 2011        Author: 

A prize has been established by the Society of International Economic Law (SIEL) and Cambridge University Press for the best essay submitted in the field of international economic law.  The competition is open to current students and those who have graduated within the last five years. The prize consists of £200, as well as £300 of Cambridge University Press book vouchers and a three year subscription to the World Trade Review. The winning essay will be submitted to the World Trade Review for publication. The closing date for submissions is 30 September 2011. For submission details and terms and conditions, please see www.sielnet.org/essayprize.

Filed under: EJIL Analysis, Study of International Law
 
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In the Dock, in Paris

Published on January 25, 2011        Author: 

My entire professional life has been in the law, but nothing had prepared me for this. I have been a tenured faculty member  at the finest institutions, most recently Harvard and NYU.  I have held visiting appointments from Florence to Singapore, from Melbourne to Jerusalem. I have acted as legal counsel to governments on four continents, handled cases before the highest jurisdictions and arbitrated the most complex disputes among economic ‘super powers.’

Last week, for the first  time I found myself  in the dock, as a criminal defendant. The French Republic v Weiler on a charge of Criminal Defamation. The setting could not have been grander.  As I entered the Tribunal de Grande Instance de Paris, the French Old Bailey, my lawyer whispered: ‘Emile Zola was tried here.’ Vive la difference: This was no Dreyfus Affair but the stakes for Academic Freedom and liberty of expression are huge.

As Editor-in-Chief of the European Journal of International Law and its associated Book Reviewing website, I commissioned and then published a review of a book on the International Criminal Court. It was not a particularly favorable review. You may see all details here.  The author of the book, claiming defamation, demanded I remove it. I examined carefully the claim and concluded that the accusation was fanciful. Unflattering? Yes. Defamatory, by no stretch of imagination. It was my ‘Voltairian’ moment. I refused the request. I did offer to publish a reply by the author. This offer was declined.

Three months later I was summoned to appear before an Examining Magistrate in Paris based on a complaint of criminal defamation lodged by the author. Why Paris you might ask? Indeed. The author of the book was an Israeli academic. The book was in English. The publisher was Dutch. The reviewer was a distinguished German professor. The review was published on a New York website.

Beyond doubt, once a text or image go online, they become available worldwide, including France. But should that alone give jurisdiction to French courts in circumstances such as this? Does the fact that the author of the book, it turned out, retained her French nationality before going to live and work in Israel make a difference? Libel tourism – libel terrorism to some — is typically associated with London, where notorious high legal fees and punitive damages coerce many to throw in the towel even before going to trial. Paris, as we would expect, is more egalitarian and less materialist. It is very plaintiff friendly. Read the rest of this entry…

Filed under: Editorials, EJIL Reports, Freedom of Expression
 

Let His People Go: Sudan’s Lesson for Secession

Published on January 24, 2011        Author: 

Timothy William Waters, a professor at Indiana University Maurer School of Law, is the author of numerous articles on self-determination.

DAYS before it began voting for independence, Africa’s soon-to-be newest country hosted a modern Pharaoh who, not long ago, sent armies to crush its bid for freedom. In a visit to South Sudan’s capital, Juba, just before the week-long referendum began, Sudan’s President Omar Hassan Al-Bashir vowed to respect the region’s right to form a new country: “We cannot deny the desire and the choice of the people of the south,” said Al-Bashir. “This is their right.”

 Sudan’s leader didn’t always talk this way. His new magnanimity follows decades of grinding, wasting struggle pitting the Arab Muslim-dominated government against Christian and animist southerners, in a bid to control their oil-rich land and impose Islamic law onthem. Millions died; thousands were enslaved.  (Al-Bashir has also been indicted for genocide in Darfur.) Pressure from the United States produced the 2005 agreement that gave the South autonomy and led to this week’s referendum. There have been some violent incidents, but nothing like the slaughter of the past. Mostly voters have calming registered their overwhelming desire for independence. Yet only months ago, experts still feared a return to full-scale war if Sudan’s rulers again hardened their hearts.

 Instead there was Al-Bashir, saying these extraordinary things. Though the causes are complex, Khartoum’s acquiescence has made the difference between war and peace. The diplomatic pressure from the US and African states has all been focused on ensuring Sudan’s government allows the vote to proceed and respects the outcome, rather than reverting to war. This holds an important lesson about the sources of violent conflict within states, and shows that the world needs a radically new approach to secession.

Although Al-Bashir acknowledged southerners’ right to secede, it’s a right most peoples don’t have. Since the Second World War, territorial integrity has been a pillar of our international order: states’ borders can’t be changed without their consent. Even the creative diplomacy leading to the 2005 agreement needed Sudan’s signature.

The problem is all the states that aren’t willing. Preventing interstate wars of conquest is clearly positive, but the belief that fixed frontiers reduce internal violence is more assumed than proven. Challenging borders is thought to open Pandora’s box – but what if borders are the problem? Read the rest of this entry…

Filed under: EJIL Analysis, State Succession, States and Statehood
 

Turkel Committee Publishes Mavi Marmara Report

Published on January 23, 2011        Author: 

Today an Israeli inquiry, the Turkel Committee, published the first part of its report on the Mavi Marmara incident and the lawfulness of the Gaza blockade generally, finding that Israel acted in accordance with international law (full report; summary; BBC News article). An earlier UN inquiry reached the opposite conclusion – for a critique see Yuval Shany’s post; for previous coverage see this post by Dapo.  I have not had the time to read the report, let alone digest it, but on a quick skim I saw, inter alia, that the report qualified the Israel/Hamas conflict as an international armed conflict, thus enabling the creation of a blockade, without however articulating a clear theory in that regard. The report also somewhat more controversially alleges that a blockade would be permissible even if the conflict was non-international in nature (see paras. 37-44).

Filed under: EJIL Reports, Israel, Law of the Sea
 

OUP Yearbooks Available Online

Published on January 19, 2011        Author: 

Our friends at Oxford University Press have let us know that their yearbooks  are now available online, which will make them much more accessible and easier to use. The OUP notice is reproduced below, coupled with an offer of free access to all of the content for a limited time.

Law Yearbooks from Oxford – Free Online Access until February 28th

Since the start of January 2011 the law yearbooks from Oxford University Press, previously available only in print, have become available online as well. This includes all volumes since 1996 but not the most recent ones which only published in December 2010.

To launch this initiative we are making all of this content freely available until the end of February 2011. To view, browse, download and search the material click on these links:

British Year Book of International Law

Yearbook of International Environmental Law

Yearbook of European Law

Current Legal Problems

The latest volume of each will become available to subscribers from April 2011. New content for future volumes will become available online to subscribers as it is processed thus dramatically reducing the time taken before an author’s work is publicly available.

For access after the end of February you will need a subscription. Please contact your librarian if you are not sure whether your institution has taken up a subscription.

Filed under: EJIL Reports, Journals
 

Australian Government Settles Habib Claim arising out of Rendition and Torture and Orders Inquiry

Published on January 18, 2011        Author: 

Ben Batros is Legal Officer at the Open Society Justice Initiative and a former Senior Legal Officer, International Crime Branch, Australian Attorney-General’s Department. Philippa Webb is Visiting Assistant Professor at Leiden University and former Special Assistant to President of the International Court of Justice.

It was reported late last week that the Australian government has settled a claim brought against it by one of its citizens, Mahmoud Habib, arising out of his detention, rendition and torture by US and other foreign authorities (link).  The government will not disclose how much it paid Mr. Habib. Over a three-and-a-half year period, Mr. Habib had been detained by Pakistani authorities, then transferred by the US to Egypt, to a military base in Afghanistan, and finally on to Guantanamo Bay where he was detained until his release (without charge) in January 2005.  Mr Habib alleges that he suffered a range of mistreatments amounting to torture and inhumane treatment.  Instead of suing the foreign agents directly responsible for the alleged abuses or pursuing a criminal prosecution, Mr. Habib brought a civil action against the Australian government for the acts of Australian officials who he claims knew of and aided in his mistreatment.  On 25 February 2010, the Full Court of the Australian Federal Court ruled that Mr. Habib’s claim could proceed, as it was not barred by the act of state doctrine (see our previous post and article on the case and that ruling)

The Australian’s government’s settlement of the case follows the British government’s decision to settle similar cases brought by 16 British citizens or residents claiming that MI5 and MI6 had colluded with the CIA in their rendition and detention at Guantanamo Bay (links here, here and here).  It’s tempting in a case like this to assume that the case was settled because the government recognised that the allegations were true, and because it did not want damaging facts to be proven in Court regarding the conduct of its officials.  And that may well be the case – before the ink was dry on the settlement deal, the Australian Prime Minister requested the  Inspector-General of Intelligence and Security to open an inquiry into the Habib case (link) in the light of witness statements that Australian authorities knew of Mr. Habib’s rendition to Egypt and were even present during interrogations there. This new evidence apparently precipitated the settlement deal (link). Read the rest of this entry…

Filed under: EJIL Analysis, Human Rights, State Responsibility, Torture
 

The Distomo Case: Greece to Intervene in the Sovereign Immunity Dispute between Germany and Italy before the ICJ

Published on January 17, 2011        Author: 

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow.

On 12 January 2011, the Greek Government announced its decision to apply to the International Court of Justice for permission to intervene in the sovereign immunity dispute brought by Germany against Italy (see here for Dapo’s comment when the case was first brought). The Greek decision to intervene has received some coverage in the Greek and German media, but has gone relatively unnoticed in the English-speaking world. Even though the Government had been under some pressure, both by opposition parties and by public opinion (see eg here [in Greek]), to intervene in the dispute, its decision does come as a relative surprise. Greece is already engaged in one case before the ICJ, where fYR Macedonia has complained of the alleged breach of the 1995 Interim Accord between the two States with reference to Greece’s conduct in response to fYR Macedonia’s bid to join NATO (see here for brief comment), and is also in dire economic straits. Still, the Greek Government elected to open a new front, primarily, it seems, for ‘symbolic’ reasons (see the Greek PM’s statement reported here [in Greek]). Needless to say, Germany was less than impressed by the Greek decision (see the comments by Foreign Minister Westerwelle here; the standard AP report as relayed by the Jerusalem Post here; and the German press here and here [in German]; but see also here for a German position in favour of Athens’s intervention, which however confuses individual criminal responsibility with state responsibility [in German]).

Read the rest of this entry…

Filed under: EJIL Analysis, EJIL Reports, International Court of Justice
 

Pantomime violates International Humanitarian Law!

Published on January 17, 2011        Author: 

One of the pleasures of the Christmas season in the UK is that it is also the pantomime season. I will confess to being a relatively recent admirer of the “panto”. However I would never have guessed that a panto could be accused of violating IHL. Not raising issues about the violation of IHL but itself violating IHL! But in this panto season the British Red Cross has accused a panto of doing precisely this. And they have a point too! How so? See the story in Scotland’s Daily Record: Read the rest of this entry…

Filed under: EJIL Analysis, International Humanitarian Law
 
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