Home 2013 July (Page 2)

Democracy, Peoples’ Uprising and Unconstitutional Change of Government in Egypt: The African Union Principles and Responses

Published on July 8, 2013        Author: 

ZY12012Zeray Yihdego is Senior Lecturer in International Law at the University of Aberdeen. He is a Fellow of the Higher Education Academy and a member of the UN Expert Group on the Firearms Protocol, which supplements the UN Convention against Transnational Organised Crime 2000. In addition to serving as an expert, Dr Yihdego also acts as a consultant for the Vienna based UN Office on Drugs and Crime.

Democratically elected Egyptian President Mohamed Morsi (photo credit) was ousted by theMohamed_Morsi-05-2013 Egyptian military on July 2, 2013. The former President is under house arrest, while members of his presidential team are in custody. The Army argues that it responded to the peoples’ demands and will, while the former President and his supporters called the action as a military coup. The situation challenges the notions of democracy (as understood to mean a rule by majority), self-determination (as understood to mean peoples’ right to decide on their political, socio-economic and other fates as a unit). The coup also raises important questions about Egypt’s adherence to one of the African Union’s (AU) principles: the rejection of unconstitutional change of government. Perhaps more importantly, the situation poses real challenges for the AU in how it implements the principle prohibiting such unconstitutional changes of government. Read the rest of this entry…


Event: Symposium on Unilateral Sanctions

Published on July 6, 2013        Author: 

The Hague Center for Law and Arbitration and the Doshisha University Graduate School of Global Studies announce a Symposium on Unilateral Sanctions and International Law: Views on Legitimacy and Consequences, 11 July 2013 at the Asser Institute in The Hague. Details here.

Filed under: Announcements and Events

Piracy on dry land (now with added case law)

Published on July 5, 2013        Author: 

Flag_of_Edward_England.svgIt’s nice when a court agrees with you, or comes to the same conclusion at least. In a previous post on US v Ali (here) a spirited debate broke out in the comments as to whether Article 110(c) of UNCLOS on intentionally facilitating piracy was restricted to the high seas or could apply on dry land. (credit for image, Flag of Edward England)

We now have an appeal decision holding the defendant in US v Ali can be charged with aiding and abetting piracy on the basis of acts committed within Somali territory without this being contrary to international law.

There is a potential wrinkle here, in that the logic appears to be that the US law on aiding and abetting piracy (i.e. as an accessory) can extend to acts ashore as international law allows States criminal jurisdiction over such acts as piracy (i.e., commission of the offence in Art. 110(c) means you have committed piracy as a principal). Thus Art. 110(c) creates a form of piracy per se that US law can only charge as aiding and abetting (a different form of) piracy.

I don’t think anything turns on this. If universal jurisdiction over piracy is permissive, it is up to States to work out how best (or whether) to criminalize the offences under their national law. The point is that national law not exceed the limits of that jurisdiction.

On other points, the reasoning in the decision sets aside most of the historical material commonly relied upon in these debates in favour of a plain words interpretation (an issue I’ve discussed over here).

I doubt this will be the last case on point, so it will be interesting to see what other courts and other jurisdictions make of this.


The Security Council and the ICC

Published on July 3, 2013        Author: 

The University of California Irvine Law School’s International Justice Clinic recently issued an important report examining the relationship between the UN Security Council and the International Criminal Court.   The report, authored by UCI Irvine Prof David Kaye, is the culmination of a project on the Council and the Court run by UC Irvine, in collaboration with the University of California Los Angeles (UCLA) Burkle Center for International Relations.  The purpose of the project was to examine the relationship between the Security Council and the ICC and to seek concrete ways in which the Council can improve its support to the ICC. At the end of November last year, I attended a closed workshop, held as part of the project, which was attended by a small but diverse and impressive group of scholars and practitioners. Participants included academics, members of civil society, current or former officials from governments, including each of the P5, as well as representatives from the ICC bench, office of the prosecutor and the registry. Over two days, we discussed a number of stumbling blocks in the relationship between the Council and the Court, in particular the difficulties in securing referrals by the Council to the Court, problems regarding the framing of referrals, issues of funding and cooperation etc.

The report makes a couple of institutional or structural recommendations for improving the dialogue between the Council and the Court and for building support within the Council for the work of the Court. It also makes a number of specific policy recommendations regarding matters which should be addressed in Council resolutions relating to the ICC. The recommendations are as follows:

1. Extension of the obligations of cooperation with the Court to all states, not just the situation countries themselves, especially in referral situations but also possibly in those circumstances where the Council has expressed support for the work of the Court in non-referral situations;

 2. Provision of timely substantive responses to Court findings of non-cooperation that are communicated to the Council, as the Court has done on several occasions;

3. Extension of key Rome Statute protections of privileges and immunities in referral and other situations, thereby allowing Court officials to conduct their work safely and without interference from local actors;

4. Regular and streamlined imposition of financial, travel, and diplomatic sanctions on those accused by the ICC, helping to dry up the accused’s resources and highlight the importance of state cooperation in transferring such individuals to ICC custody;

 5. Promotion of UN and outside funding in referral situations, eliminating the language from referral resolutions purporting to disallow UN funding;

 6. Elimination of jurisdictional restrictions related to non-parties in referral resolutions, enabling the Court to exercise independence in identifying those most responsible for the most serious crimes in situation countries; and

7. Initiation of a transparent conversation about the factors relevant to Council referral of situations to the Court, recognizing that the Council is highly unlikely to identify specific criteria to guide future referrals.

It seemed to me, from the discussions at the workshop, that recommendations 5 and 6 are achievable in the short term. The relevant provisions in Council referral resolutions are added in order to meet the concerns of the US. Read the rest of this entry…