The Cambridge Journal of International and Comparative Law is a newly established double-blind peer reviewed, open-access journal which aims to publish high-end legal scholarship. It has a broad focus on international and comparative law and a particular focus on publishing work that examines the intersection of different international, domestic and transnational legal regimes. The Journal aims to become a platform for constructive and critical dialogue between the well-established academics and practitioners on the one side and the younger generations on the other. It will have two substantive issues per year and a annual special issue, which will critically examine the decisions of the UK Supreme Court from the preceding judicial year. The CJICL is the only journal to produce a full issue review of the previous three terms of the work of the UK Supreme Court.

In the past couple of months the ICJ has inserted a paragraph at the end of its press releases which seeks to make clear that the ICJ is different from the other newer international tribunals out there. The paragraph can be found at the end of the ICJ press release announcing the proceedings recently instituted proceedings by Nicaragua. It reads as follows:

“The ICJ, a civil court open only to States for contentious proceedings and to certain organs and institutions of the United Nations system for advisory proceedings, should not be confused with the other ⎯ mostly criminal ⎯ judicial institutions based in The Hague and adjacent areas, such as the International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the Security Council), the International Criminal Court (ICC, the first permanent international criminal court established by treaty, which does not belong to the United Nations system), the Special Tribunal for Lebanon (STL, an independent judicial institution composed of Lebanese and international judges, which is not a United Nations tribunal and does not form part of the Lebanese judicial system), or the Permanent Court of Arbitration (PCA), an institution founded in 1899, which is independent of the United Nations.”

This paragraph, which now appears at the bottom of each ICJ press release, was probably drawn up because the folk at the ICJ have become tired of people confusing that court with other international courts. I sympathise with them. I suspect that I am not the only one who gets frustrated with the media confusing the different international tribunals. All too often there is talk of people being prosecuted by the ICJ when what is meant is the ICC or perhaps the ad hoc tribunals. Or sometimes the confusion is the other way with references to the ICC when what is meant is an inter-State ICJ case. In December last year, I gave an interview in the Guardian newspaper on wikileaks revelation that the CIA had been spying on senior UN staff and permanent representatives of other Security Council members. In that interview, I spoke about possible violations of the UN – US Headquarters Agreement and the UN General Convention on Privileges and Immunities. I then made reference to the  provision in the latter which allows for binding advisory opinions from the ICJ in the event of dispute regarding the application of the convention.  I was dismayed when the article appeared and it stated that the US actions could lead to ”prosecution at the international criminal court”!

This confusion, of course, exists also in the mind of the general public. A few years ago, I was in the Hague and running late for a meeting at the Peace Palace (where the  ICJ is). I jumped into a taxi and told the driver I wanted to go to the ICJ. After a little while I realised that I did not recognise the route he was taken. When I asked him about the route, his response was something to the effect “but this is the quickest route to the ICC”.

Earlier this month, the  Prosecutor of the International Criminal Court requested a warrant for the arrest of the current Sudanese Defense Minister Abdelrahim Mohamed Hussein. He is alleged to have committed crimes against humanity and war crimes committed in Darfur from August 2003 to March 2004. In a press release announcing the request for the arrest warrant, the ICC stated that:

“The crimes were perpetrated during attacks upon the towns and villages of Kodoom, Bindisi, Mukjar and Arawala in the Wadi Salih and Mukjar Localities of West Darfur. The attacks followed a common pattern: the Government of Sudan forces surrounded the villages, the Air Force dropped bombs indiscriminately and foot soldiers, including Militia/Janjaweed, killed, raped and looted the entire village, forcing the displacement of 4 million inhabitants. Currently, 2.5 million remain in camps for Internally Displaced Persons.

In the “Prosecution v. Harun & Kushayb” case, Pre-Trial Chamber I ruled that Local Security Committees coordinated these attacks. They were supervised by State Security Committees which reported to Mr. Harun, who in turn, according to the evidence, reported to Mr. Hussein”

These statements regarding the prior Prosecutor v Harun & Kushayb case are simply inaccurate. Moreover, the Office of the Prosecutor at the ICC must know or should know that they are inaccurate. The statement in the press release referring to that earlier decision is to a decision of the Pre-Trial Chamber on a request for an arrest warrant. Those decisions are made ex parte and on the basis of the prosecutor’s application. No detailed arguments are heard and no alternative evidence is led. In these decisions, the Pre- Trial chamber does not (or at least, it should not) make any definitive rulings. The standard that is required under Art. 58 of the ICC Statute for such a decision is that there are “reasonable grounds to believe” that the crime has been committed. This is a  low standard.  It is lower than the “substantial grounds to believe” that the crime has been committed which is required for a confirmation of charges and lower than the standard of “beyond reasonable doubt” which is required for a conviction (see the ICC Appeals Chamber decision in Prosecutor v. Bashir, (Arrest Warrant Appeal), 2010, para 30). Even after the Pre-Trial Chamber has issued an arrest warrant on the basis of reasonable grounds to believe that an accused has commited crimes, it may then later decide in confirmation of charges proceedings that there are no substantial grounds to believe what it had earlier held there were reasonable grounds to believe. This happened just this month in the Mbarushimana case. And of course, even if it confirms charges it may actually decide to acquit.

It really is quite shocking that the ICC will suggest that a decision for an arrest warrant is a ruling that certain things happened. But this is not the first time this has happened. The ICC Prosecutor, Luis Moreno-Ocampo wrote an article in the Guardian Newspaper last year saying that the ICC found Sudanese President Bashir and his forces responsible for atrocities in Darfur (see my earlier post here). Of course, all the ICC Chamber had done was to issue a request for a warrant applyng the reasonable gronds to believe standard.

These inaccurate statements about what the ICC has found are troubling because they are issued to the press with the intent that they be disseminated around the world. Issuing false statements about what the Court has held is clearly prejudicial to the accused. A judicial institution should do better than that. The statements are also troubling because they appear to suggest that either those who write these press statements are not knowledgeable about the Court’s own procedure or they are wilfully misrepresenting the facts. I very much doubt that it could be the latter. However, I would call on the ICC to issue a press release correcting their earlier press release. If they don’t want to be regarded as wilfully issuing false information which prejudices defendants, they should  issue a correction which is disseminated as widely as the original misleading press release. (more…)

I have yet another question about ICJ Judges. Perhaps this is quite an easy one.

Which ICJ Judges or ICJ ad hoc judge have been the child of an ICJ Judge or ICJ ad hoc Judge?

To clarify, both the parent and the child have sat on the ICJ bench as either a judge or an ad hoc judge. Answers in the comments box below please!

UPDATE : Thanks for the responses. Yes the answers are indeed the Lauterpachts (Sir Hersch and Sir Eli) and Jules Basdevant and Suzanne Bastid. Jules Basdevant was Judge (and President) of the ICJ (I don’t think he was on the PCIJ) and his daughter Suzanne Bastid was indeed the first woman to sit on the ICJ as an ad hoc judge.

Neither René-Jean Dupuy nor Pierre-Marie Dupuy have sat as ad hoc judges at the ICJ.

If readers are still interested in this theme, I would like to know which children of ICJ Judges have gone on to careers as public international lawyers. (more…)

In a previous post, I asked:

Which judges of the ICJ had served as ad hoc judges at the ICJ prior to their election to the ICJ?

Wim Muller was very quick off the mark in noting that on the ICJ current bench, Bernardo Sepúlveda-Amor (Mexico) was an ad hoc judge in the Avena case (Mexico v. USA) before being elected to the Court. Thanks to Martin Cabrera for also noting that Judge Antônio  Cançado Trindade was also an ad hoc  judge in the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) case before his election to the Court. If one includes Gaja (who joins in February), five of the Judges on the current bench had previously served as ad hoc judges. Apart from Gaja, Antônio  Cançado Trindade and  Sepúlveda-Amor, the other two are:

-Judge Mohamed Benouna [Frontier Dispute (Benin/Niger]; and

Judge Yusuf in the Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)

What is interesting is that by my reckoning, apart from these  5 current judges, there had previously only been seven other judges who had served as ad hoc judges before they were elected to the Court. Thanks to Martin Cabrera for pointing out two of them: They are (1) Judge Roberto Ago (Italy) in the Arbitral Award (Honduras v. Spain) (2) Judge Federico de Castro in the Barcelona Traction case (I have to admit I missed him out on the list I had constructed). The others are (3) Judge Evensen (Norway) in Continental Shelf (Tunisia/Libya); (4) Judge Mosler (Germany)  in North Sea Continental Shelf cases; (5) Judge Nagendra Singh (India) in the ICAO Council Case (India v. Pakistan) ; (6) Judge Jean Spiropoulous (Greece) in the Ambatielos Case (Greece v. UK); and (7) Judge Muhammad Zafrulla Khan in the SouthWest African Cases and the Trial of Prisoners of War case (Pakistan v. India). Readers, have I missed any out?

It is interesting to note that it is now much more common than was previously the case  for ICJ judges not only to have previous experience on another international tribunal but also to have prior experience as an ad hoc Judge at the ICJ. Why might this be so? (more…)

Last week, the States Parties to the Rome Statute of the International Criminal Court, meeting at the Tenth Session of the Assembly of States Parties, elected six new judges to the International Criminal Court (see here). They also formally approved the election of Fatou Bensouda as the next ICC Prosecutor (on which see here). The new judges will make up a third of the judges of the ICC. The election procedure for electing judges to the ICC is even more complicated than the procedure for elections to the International Court of Justice. Like the ICJ, the ICC Statute provides (Art. 36(8)) that there should be representation of the principal legal systems of the world. However, that provision also specifies that there should be equitable geographical representation and a fair representation of female and male judges. In addition, there are separate lists of judges with competence in criminal law (list A) and of judges with competence in international law (list B) and a set proportion of judges of the court have to be from list A or B (see Art. 36(4)). Also, unlike the ICJ where candidates need an absolute majority of votes in the United Nations General Assembly and Scurity Council (on the meaning of this, see previous discussion in the comments to this post), candidates for the ICC need a two-thirds majority of States Parties present and voting. All of this means that someone needs to be keeping tabs to ensure that all of these rules are respected. See this document for the rather involved procedure for the elections held last week. In the elections just held there were 15 rounds of voting (see detailed results here) !!

One thing is that is absent at the ICC when compared with the ICJ is the convention that there is a judge from each of the permanent members of the UN Security Council. Of course, only two members of the Council are parties to the ICC Statute (the UK and France). Even so, there is no presumption that judges of that nationality will be elected. In the latest elections, the UK candidate was elected but the French candidate was not. He was outvoted in round 14 by the candidate from Nigeria and then withdrew. (more…)

Following my posts (here and here) about elections to the International Court of Justice of judges who had previously been on another international tribunal, I have another question for readers. Giorgio Gaja who was elected to the ICJ last month (see here) is currently an ad hoc  judge in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case. He had also been ad hoc judge in three previous ICJ cases. The question is:

Which judges of the ICJ had served as ad hoc judges at the ICJ prior to their election to the ICJ?

Note that I am asking for ICJ judges who were appointed ad hoc judges before they became full time judges on the ICJ. I am excluding those ad hoc judges who were appointed as such after they had been ICJ judges. There are many in the latter category. Gilbert Guillaume, former ICJ president is currently an ad hoc judges in three cases now before the Court. (more…)

In my post of yesterday I tried to come up with a bit of international law trivia. I asked readers to come with names of ICJ Judges who had been on international tribunals prior to their election to the ICJ. You can see the answers readers came up with in the comments to that post. Many thanks to Martin for noting that Judge Buergenthal was at the ICTY previously. Thanks also Wim Muller for pointing out that Mohamed Bennouna, also currently on the ICJ, also had prior experience of another international tribunal before election to the ICJ. This means that when Judge Sebutinde takes up her position at the Court, there will be three ICJ judges (together with Judge Antonio Cancado Trindade) serving on the bench at the same time who had earlier been judges at other international tribunals. This compares with around 5 previous ICJ judges who had served on international tribunals prior to election to the ICJ.

Thanks also to Tobias and Markos for the names of Lord McNair and Judge Mbaye. However, as Tobias and Markos note, these are examples of Judges going on to international tribunals after they left the ICJ.

The names of other ICJ judges with prior international judicial experience are Sir Humphrey Waldock, who was a Judge and President of the European Court of Human Rights prior to going to the ICJ and President Guerrero who was the first President of the ICJ. The last one is particularly tricky as Judge Guerrero was the last President of the Permanent Court of International Justice. Judge Guerrero was also Vice President of both the PCIJ and the ICJ. Though the ICJ was the continuation of the PCIJ they were technically separate courts so he counts as one who was another international tribunal prior to election to the ICJ.

Other Judges with experience of international judicial or quasi-judicial tribunals prior to going to the ICJ would be Judge Petren (Sweden) who had been a member (and President) of the European Commission of Human Rights and a Judge at the United Nations Administrative Tribunal. Incidentally, Waldock had also been member and President of the European Commission of Human Rights before going to the ECtHR and the ICJ. Judge Higgins had also been a member of the Human Rights Committee before election to the ICJ. I don’t count judges who had served on international arbitral tribunals or conciliation commissions as they were not standing courts or tribunals.

It is interesting to see that most of the British Judges at the ICJ have either had prior international judicial experience or gone to an international tribunal after leaving the ICJ. The exceptions are Hersch Lauterpacht (who sadly died while at the ICJ) and Robert Jennings.

This week the ICC issued two decisions regarding whether Sudanese President Omar Al Bashir is immune from arrest in ICC parties (see here and here). The decisions were issued in the context of proceedings considering whether Malawi and Chad had breached their obligations o f cooperation under the Rome Statute by failing to arrest Bashir when he visited those countries in late 2011. The Malawi decision, issued a day before the Chad decision, is the first detailed decision regarding the immunity of Bashir. In summary, the Pre-Trial Chamber held that:

“Chamber finds that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes. There is no conflict between Malawi’s obligations towards the Court and its obligations under customary international law; therefore, article 98(1) of the Statute does not apply.” (para. 43)

The Chamber therefore held that Malawi (and Chad) by failing to arrest and surrender Bashir had failed to comply with their obligations to cooperate with the ICC. Moreover, the Chamber held that it has “the sole authority” to decide whether immunities are applicable in a particular case (para. 11) and that by failing to bring the issue of immunity to the ICC for determination there had been a further breach of the obligation of cooperation.

As readers will surmise from my previous posts on the issue (here, here, here, and here), I agree with the result reached by the Pre-Trial Chamber (that Bashir is not immune from arrest) but I disagree with the reasoning. In particular, I think the Court is wrong to suggest that there is a general exception to Head of State immunity in prosecutions before international courts. Also, even if that were true, as Paola Gaeta has demonstrated, it would not follow that as a matter of international law national authorities were then free to depart from the immunity which customary international law grants to heads of States from arrest by national authorities.

Better Late than Never

Before I get to the substance of the decision, I would like to say that it has taken far too long for the ICC to issue a detailed decision on the immunity issue. The decisions of this week come nearly three years after the ICC Pre-Trial Chamber first issued an arrest warrant for Bashir in March 2009 and after the ICC has on several occasions reported States to the UN Security Council for failing to cooperate with regard to Bashir’ arrest and surrender (see previous post here). In previous posts (see here and here) over the last couple of years I have argued that it was most unfortunate that the ICC judges had chosen to avoid dealing with the immunity issue since: there was a reasonable argument that Bashir was immune from arrest as a head of State of a non-party; the African Union (AU) had made this precise argument in issuing several decisions calling on AU members States not to cooperate with the Court; the resulting tension with African States was proving somewhat damaging to the Court; and most importantly Article 98 of the Court’s Statute requires the Court to deal with the issue of immunity. In the decision of the Pre-Trial Chamber on Bashir’s arrest warrant (and in the decision regarding the Gaddafi Arrest Warrant), the Chamber had stated that:

“the current position of Omar Al Bashir as Head of a state which is not a party  to the Statute, has no effect on the Court’s jurisdiction over the present case.” Para.  41

So it had addressed the question of the position of heads of State but it had failed to deal head on with the customary international law of immunity and the interplay between Articles 27 and 98 of the ICC Statute which both deal with immunity and appear, at first glance, to be contradictory. Better late than never. But getting there late is not really good enough. Ignoring this sensitive issues has itself contributed to the tensions with African States and to the feeling that the position of those States is just being ignored. (more…)

In my previous post on the election of Julia Sebutinde I noted that she is currently a judge at the Special Court of Sierra Leone. This got me thinking about whether there were other judges elected to the ICJ having previously served on another international tribunal. It is not uncommon for persons who have served as senior national judges to be elected to the ICJ. Julia Sebutinde is one having been a high court judge in Uganda. On the current ICJ bench, Sir Kenneth Keith (New Zealand) and Ronny Abrahams (France) have also had national judicial experience at the highest levels. There have also been cases of ICJ judges then going on to serve in other international tribunals after leaving the ICJ. Mohammed Shahabuddeen went to the ICTY after leaving the ICJ. Sir Gerald Fitzmaurice went on to become a judge at the European Court of Human Rights after leaving the ICJ. Also judges have moved from the ad hoc international criminal tribunals to the ICC.

On the current ICJ bench there is one judge that had served on an international tribunal prior to election to the ICJ. This is Antônio  Cançado Trindade who had been President of the Inter-American Court of Human Rights? But have there been others? One suspects that with the proliferation of international tribunals we will see more cases of ICJ judges having prior experience of working as an international judge. In the past, with few international tribunals, the opportunities were limited. Having said this Judges Cancado Trinidade and Sebutinde are not the first ICJ judges to have been judges on other international tribunals before going to the ICJ. (more…)