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An International Court of Justice Advisory Opinion on the ICC Head of State Immunity Issue

Published on March 31, 2016        Author: 

Earlier this week, I wrote about the recent decision of the South African Supreme Court of Appeal holding that the South African government had violated its obligations in failing to arrest Sudanese President Bashir when he attended the African Union Summit in South Africa last June. That decision is just the latest in the ongong saga about whether serving heads of States, particularly heads of states not party to the Rome Statute of the International Criminal Court (ICC), have immunity when they are wanted by the ICC. The issue has been a particularly toxic one in the relations between the African Union (AU) and the ICC. The AU continues to insist that Bashir and all serving heads of states are immune from arrest and prosecution and Bashir has now travelled to numerous African (and other states) including a number of states that are party to the ICC Statute (see the Bashir Watch website – and also here – for information on the states that Bashir has travelled to, as well as those which have denied him access). The AU Assembly (of heads of states and governments) has made a number of proposals in an attempt to put an end to the prosecution of Bashir, including a proposal for deferral of the case under Article 16 of the Rome Statute ( see Assembly/AU/Dec.547(XXIV) (June 2015)). It has also encouraged African states to put forward amendments to the Rome Statute (see Ext/Assembly/AU/Dec.1(Oct.2013). Following that suggestion, Kenya proposed an amendment to Article 27 of the Rome Statute which would provide for immunity of heads of states and their deputies (see p. 16 of this report of the ICC Assembly of States Parties Working Group on Amendments). I am sure that everyone knows that the chances of success on such an amendment is precisely zero. For the amendment to come into force, seven-eights of the parties to the ICC Statute would have to ratify it (under Art. 121(4) of the Statute) and it is inconceivable that this will happen.

However, the AU has made one suggestion which I think ought to be taken up. This is the proposal (see p. 9-10 of this document) that the International Court of Justice be asked to render an advisory opinion on the immunity of heads of states or other senior officials of states not party to the ICC (for earlier discussion of this proposal see my posts here and here). Despite the fact that the ICC has ruled on the question of Bashir’s immunity on several occasions (including in cases regarding non-cooperation by Malawi and Chad, DRC and South Africa), there are, in my view, good reasons to try to have the ICJ address the issue. Some of those reasons are legal and others political. Read the rest of this entry…

 
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The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?

Published on March 29, 2016        Author: 

Earlier this month, the South African Supreme Court of Appeal decided unanimously (see the judgment here) that the South African government had breached its obligations under the South African domestic statute implementing the Rome Statute of the International Criminal Court (ICC), and under the Rome Statute, by failing to arrest and detain for surrender to the ICC Sudanese President Omar Al-Bashir. Bashir visited South African in June 2015 to attend the African Union summit held there. As will be explained below, although the decision was ultimately based on domestic law, it is potentially very far reaching in the effect that it will have in South Africa and possibly internationally. In summary, the Court held that under the South African Implementation of the Rome Statute of the ICC Act 2002, any head of State subject to an ICC arrest warrant may be arrested in South Africa and surrendered to the ICC. However, the Court also held that under the same Act international law immunities, including the immunity of heads of states, do not apply under South African law when a person is sought for domestic prosecution in South Africa for genocide, war crimes and crimes against humanity. This aspect of the decision is particularly remarkable given that the same South African Act provides for universal jurisdiction over those crimes, and the South African Constitutional Court held in 2014 that the South African Police Service may commence an investigation of these crimes even if the person is not present on South African territory. Although the aspect of the Bashir decision relating to domestic prosecution in South Africa, is in my view obiter and not part of the ratio decidendi of the decision, if it stands, it means that South Africa would be a very rare example of a State that claims the authority to prosecute serving heads of state for international crimes.

The lead judgment of the South African Supreme Court of Appeal was given by Wallis JA, with whom two judges concurred. A further two judges concurred in the result but agreed with the lead judgment only in in so far as it was based on South African ICC Implementation Act. Read the rest of this entry…

 

International Criminal Justice on the March?

Published on March 28, 2016        Author: 

March been a significant one for international criminal justice with a series of high profile judgments by the ICC and the ICTY. There has been the conviction of the former Vice President of the Democratic Republic of Congo, Jean-Pierre Bemba Gombo, on the basis of superior responsibility, for war crimes and crimes against humanity committed in the Central African Republic. Then we have had the conviction of Radovan Karadzic, including for genocide (see Marko’s commentary here). We also have the Seselj judgment due at the ICTY. In addition, last week saw two ICC cases in which charges were confirmed by the pre-trial chamber (see here and here). Confirmation of charges involves a lower standard than conviction, with the requirement at confirmation being that there “is sufficient evidence to establish substantial grounds to believe” that the accused committed the crimes charged (Art. 61(7) of the ICC Statute) as opposed to proof beyond a reasonable doubt. However, confirmation is still a significant development and in one of those cases,  Prosecutor v. Ahmad Al Faqi, it appears that the accused will plead guilty to those charges.

What is significant about these cases is not so much the development of the law or jurisprudence but rather the sense that international criminal justice seems to be on the march in its task of speaking law/justice/truth to power. We have a judgment against a former Vice President of a state, against a leader of an entity claiming to be a state and the prosecution of parts of the leadership of non-state groups that have wreaked significant destruction and misery.

However, we have also had in March one domestic decision dealing with a serving head of state that both serves to remind those in power about the demands of international criminal justice but that also reminds us of the difficulties in the field. This is the decision of the South African Supreme Court of Appeal in the case relating to the failure of the South African government to arrest Sudanese President Bashir when he visited South Africa for the African Union Summit in June 2015 (see judgment here). Read the rest of this entry…

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Announcements: CfP Revisiting the Role of International Law in National Security; HRLC Summer School – The Rights of the Child; International Criminal Court Summer School; CfP Energy ReForum 2016; CfP International Law and Human Rights in Crisis; New Additions to the UN Audiovisual Library of International Law; ILA British Branch Spring Conference

Published on March 26, 2016        Author: 

1. Call for Papers: Revisiting the Role of International Law in National Security. Many conversations in the U.S. about situations of armed conflict center on “national security law,” often drawing primarily from domestic law and military perspectives. International law is sometimes set aside in these discussions. This workshop, on 19 May 2016 at Cardozo Law School, New York City, aims to draw the international legal aspects of armed conflicts to the forefront once again. The workshop, co-organized by the International Committee of the Red Cross’s Delegation in Washington, and faculty at Loyola Law School Los Angeles, Stanford Law School, and Cardozo School of Law, is for public international law scholars and practitioners. It aims to drive discussions of public international law, including international humanitarian law, international human rights law and international criminal law, into conversations, in the U.S. in particular, on national security issues and situations of armed conflict. The workshop will provide time to discuss scholarly articles that are in process, as well as other major issues of international legal concern regarding situations of armed conflict. We invite you to submit an abstract or draft of an article for discussion. A small number of papers will be selected for discussion at the workshop. The article does not need to be finished – an abstract or draft may be submitted. Submissions should be sent to Tracey Begley at trbegley {at} icrc(.)org, along with current affiliation and paper proposal by 8 April 2016.

2. HRLC Summer School – The Rights of the Child. The University of Nottingham Human Rights Law Centre Summer School on the Rights of the Child will run from 27 June to 1 July 2016. It will consider issues concerning the rights of the child that are a matter of current legal, political and societal attention, both internationally and comparatively: violence against children, refugee children, child participation, child poverty, business and children’s rights, and child rights monitoring and advocacy. Sessions will cover international and regional child rights law, including the work of the supra-national courts and treaty monitoring bodies. The Summer School is led by Prof Aoife Nolan and the faculty 2016 includes: Dr Benyam Dawit Mezmur (ACERWC and UN CRC), Patrick Geary (UNICEF); Prof. Matthew Happold (Luxembourg); Prof Laura Lundy (QUB); Dr Najat M’jid (former UN SR on the sale of children); Lisa Myers (consultant); Dr Jason Pobjoy (Blackstone Chambers); Prof Ralph Sandland (Nottingham); and, Veronica Yates (CRIN). See here for details.
3. International Criminal Court Summer School. The Irish Centre for Human Rights is hosting its annual International Criminal Court Summer School from 27 June to 1 July 2016 at NUI Galway. An early bird registration fee of €400 is available before 15 April 2016 (registration costs €450 after this date). To register and for more information, please see here

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ICTY Convicts Radovan Karadzic

Published on March 25, 2016        Author: 

Yesterday the ICTY Trial Chamber convicted Radovan Karadzic, the wartime political leader of the Bosnian Serbs, for numerous crimes committed during the conflict and sentenced him to 40 years imprisonment. The (mammoth) trial judgment is here, standing at 2615 pages that not even Karadzic’s lawyers will read as a whole; the more accessible summary is here.

The end result is basically as I predicted it will be a couple of days ago – Karadzic got acquitted for genocide in Bosnian municipalities other than Srebrenica, and got convicted for everything else, including the Srebrenica genocide. The sentence is effectively life; he could be eligible for provisional release after serving 2/3 of his sentence, which would (counting the 7 years and 8 months he already spent in detention) mean he would have to spend some 19 more years in prison – but if he lives into his nineties he may get provisionally released, assuming of course that the sentence is affirmed on appeal and that he does not eventually get released on compassionate grounds.

On the vast majority of issues the Trial Chamber was unanimous (I’ll come to points of dissent later on), and that is a very good thing. All in all the judgment is basically exactly what it should have been, although the political reactions in the region are also exactly what one might have expected – while many Bosniaks welcomed the conviction they also decried the acquittal for genocide outside Srebrenica, whereas the current Bosnian Serb president has decried the judgment as yet another example of the ICTY’s anti-Serb bias. So far so predictable. That said, I will spend the remainder of this post on looking at some of the more interesting parts of the judgment, based on a very quick skim read.

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New EJIL:Live! Joseph Weiler and Yishai Beer Discuss the Implications and Risks Involved in Revitalizing the Concept of Military Necessity

Published on March 23, 2016        Author: 

The latest EJIL: Live! episode features the Editor-in-Chief of the EJIL, Professor Joseph Weiler, speaking with Professor Yishai Beer, from the Radzyner School of Law in Israel, about his provocative and controversial article, “Humanity Considerations Cannot Reduce War’s Hazards Alone: Revitalizing the Concept of Military Necessity”, which appears in EJIL, Volume 26, Issue 4. Professor Beer argues that there is an artificial tension between military necessity and humanity in the law of armed conflict. Military professionalism, he maintains, can act as a constraint on the brutal use of force and can better help to achieve the objectives of humanitarian law. The conversation explores the implications and risks involved in Professor Beer’s proposal to revitalize the concept of military necessity.

The EJIL: Talk! blog welcomes comments and reactions to EJIL: Live!

 

New ICRC Commentary to the First Geneva Convention

Published on March 22, 2016        Author: 

The International Committee of the Red Cross has launched the first batch of its  new commentary to the Geneva Conventions, following up on the authoritative, but dated, commentaries edited by Jean Pictet. The commentary to GC I is available here; the commentaries are published electronically, side by side with the prior Pictet version, and are comprehensive, accessible and easy to use. An ICRC press release is available here. The commentaries to the other three Conventions will follow in due course, but a lot of the foundational work on the common articles will of course be the same across all of the treaties. All in all this is a major endeavour by the ICRC (which more academic commentary complements nicely), and I hope it will be prove to be as successful as the Pictet commentary and the customary law study.

 
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The Situation Concerning the Mavi Marmara at the ICC: What might the next move of the Prosecutor be?

Published on March 22, 2016        Author: 

In early summer 2010, around fifty people were seriously injured and ten Turkish nationals died on a vessel which was part of the ‘Freedom Flotilla’: the Mavi Marmara ship. The incident saw the establishment of a UN Human Rights Council fact-finding mission, a separate panel of inquiry appointed by the UN Secretary-General, a Turkish Commission and a Israeli Commission of Inquiry (aka “Turkel Commission”). The Israeli Defense Force (IDF)’s storming of the ‘Freedom Flotilla’, have subsequently been subject to judicial proceedings both domestically in Turkey, and internationally at the International Criminal Court (ICC).

In May 2014, four arrest warrants were released by Istanbul’s Seventh High Criminal Court against former IDF Chief of Staff Gabi Ashkenazi, former Navy Chief Eliezer Marom, former Military Intelligence Chief Amos Yadlin and former Naval Intelligence chief Avishai Levy. A year earlier, on 14 May 2013, a referral was received by the ICC Office of the Prosecutor (OTP) from the authorities of the Comoros, a State Party to the Rome Statute of the ICC, in relation to the Humanitarian Aid Flotilla’s incident (registered vessels situation). Six months after Turkey issued its arrest warrants, the OTP announced in its report under Article 53 (1) Rome Statute that it had decided not to investigate the registered vessels situation.

OTP’s decision not to investigate was based on the ‘gravity’ criteria of the Rome Statute. According to the OTP, ‘the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.’ In so doing, the OTP did not consider the other two criteria for declining to investigate, namely, complementarity and the interests of justice. As Kevin Jon Heller predicted, the Comoros ‘appealed’ the OTP’s decision and on 16 July 2015, the ICC Pre-Trial Chamber (PTC) requested the Prosecutor to reconsider its decision not to open an investigation. Acting under Article 53 (3) (a), the PTC took issue with several aspects of the OTP’s decision not to investigate (see comments here and here).

In this post, my aim is to analyze the OTP’s decision not to investigate on the basis of gravity and the PTC’s request to the OTP to reconsider its decision. I argue that OTP’s gravity assessment was hasty and came at the expense of assessing the potential complementarity of the Turkish proceedings. Read the rest of this entry…

 

ICTY Karadzic and Seselj Trial Judgments Due

Published on March 21, 2016        Author: 

This International Criminal Tribunal for the Former Yugoslavia is due to pronounce its trial judgments in two important cases, against Radovan Karadzic, the former political leader of the Bosnian Serbs, on Thursday 24 March, and against Vojislav Seselj, the ultra-nationalist leader of the Serbian Radical Party, on 31 March. The Karadzic case is of course more important by far than the Seselj one, with (since Milosevic’s passing) Karadzic being the highest-ranked defendant with respect to atrocities committed during the Bosnian war. For our earlier coverage of the two cases, see here and here.

As I’ve recently explained elsewhere, the outcome of the Karadzic case is hardly in doubt – he will be convicted. The only question is what exactly for. He will also get a very long sentence, which will because of his age be tantamount to life imprisonment even if he doesn’t get that formally. Karadzic’s legal advisor, the excellent Peter Robinson (whom we’ve had in Nottingham last week for a seminar), is quite open about getting ready for an appeal (see Guardian report here). There is, in other words, not all that much suspense about what’s going to happen come Thursday, and the political reactions to the conviction in the former Yugoslavia are also equally predictable.

That said, what are the points to watch for in the judgment which may be of some genuine novelty? First, unlike with the crime base, which was already clarified in numerous ICTY judgments, it will be interesting to see what the Trial Chamber finds with respect to Karadzic’s individual guilt – what did he exactly know and when, what did he intend, and what specific joint criminal enterprise (JCE) was he a part of? This will be of particular relevance to the 1995 Srebrenica genocide – Karadzic certainly didn’t do anything to punish the perpetrators after the fact, but it’s important to see (or what the prosecution was able to prove about) what he knew  before the genocide started and while it was underway.

Second, Karadzic is charged with genocide not only in Srebrenica, but also in several other Bosnian municipalities, as is the Bosnian Serb general, Ratko Mladic, whose trial is still underway. In other cases the ICTY could find genocide ‘only’ in Srebrenica, with atrocities elsewhere being qualified as war crimes or crimes against humanity. This Trial Chamber has actually already found that the prosecution wasn’t able to meet the burden of proving genocide outside Srebrenica after a rule 98bis ‘no case to answer’ motion upon the conclusion of the prosecution’s case. This decision was later reversed on appeal, but it seems unlikely that the same Trial Chamber will find genocide to have now been proven to the higher beyond a reasonable doubt standard, except in Srebrenica. The Chamber’s finding will however be of great political relevance in the region, because of the particular corrosive potency of the word genocide and its impact on the competitive victimhood of the various groups, and will also be of relevance for the Mladic case. While I therefore expect acquittal for genocide in non-Srebrenica municipalities, it remains to be seen whether that will survive an appeal before the Mechanism, where the whole thing will be revisited.

Finally, as for Seselj the outcome there is far less certain, but expecting a conviction that would cover the time he already spent in detention would not be unreasonable. That case is more notable for its disastrous mismanagement and the consequent public relations nightmare than for anything else. Seselj is now in Serbia and has refused to go back to the Hague for the pronouncement of the judgment. The Serbian authorities (led by his erstwhile party comrades) similarly refused (if with a bit more diplomatic obfuscation) to arrest him and send him to the ICTY, because of the damage this could cause them in an election year. Three of Seselj’s advisers have been charged with contempt by the ICTY and they too have not been sent to the Hague, for the same basic reason. The Serbian authorities are essentially exploiting the ICTY’s impending closure and betting (probably correctly) that this lack of cooperation will not cause them significant political problems internationally.

An interesting couple of weeks ahead for the Tribunal – we will have more coverage as the events unfold.

 
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Announcements: Martens Summer School on International Law; Smart Mixes in relation to Transboundary Environmental Harm; CfP Asian Society of International Law Regional Conference

Published on March 20, 2016        Author: 

1. 5th Martens Summer School on International Law. The 5th Martens Summer School on International Law will take place in the Estonian resort town Pärnu on 24-29 July 2016 and is organized by the School of Law of the University of Tartu. The summer school has been named after the famous Russian/Baltic international lawyer Friedrich Martens (1845-1909) who was born in Pärnu. The application deadline is 31 May 2016 and the participation fee is only 50 EUR; the costs of the travel and the stay in Pärnu will be covered by the participants themselves. The lecturers in 2016 will be Judge Bruno Simma (The Hague), Jarna Petman (Helsinki), Vladislav Starzhenetskyi (Moscow), David P. Stewart (Washington, DC), and René Värk (Tartu). See here for details.

2. Smart Mixes in relation to Transboundary Environmental Harm Conference. The Amsterdam Center for International Law, the Erasmus University of Rotterdam and Maastricht University will hold a Conference, entitled ‘Smart Mixes in relation to Transboundary Environmental Harm’, in Rotterdam on 15 April 2016. The Conference forms part of a wider research project, which aims to provide insight into the way international environmental treaties are, and can be, supplemented with private and hybrid governance instruments, with a view to achieving a more effective regulation of the causes of transboundary environmental harm. The Conference will seek to showcase innovative research into various aspects of global, multilevel environmental governance. Registration is open to both academics and practitioners. More information on the Conference and registration process can be found here. Read the rest of this entry…

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