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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…

Filed under: EJIL Analysis
 

AJIL Unbound Symposium on the Crime of Aggression

Published on March 3, 2016        Author: 

In June 2010, parties to the Statute of the International Criminal Court (ICC) meeting in Kampala, Uganda agreed amendments to the ICC Statute which would allow the ICC to prosecute the crime of aggression. However, they also agreed that the Court would only be able to exercise jurisdiction with respect to the crime of aggression subject to a further decision to be taken after 1 January 2017 and only after the ratification or acceptance of the amendments by thirty States Parties [Arts. 15bis(2) & (3); Arts. 15ter(2) & (3), ICC Statute].  In 2010, this may have seemed a long delay before the Court would be able to exercise jurisdiction over the crime. However, with 26 ratifications or acceptances of the amendments and more seemingly to follow, ICC jurisdiction over aggression appears to be just round the corner. This is therefore a good time to give serious consideration to the implications that ICC jurisdiction over the crime of aggression will have both with regard to international law but also in international politics.

The American Journal of International Law’s online Companion AJIL Unbound has just published a symposium on the crime of aggression under the Statute of the International Criminal Court, which I had the pleasure of editing. The symposium publishes a number of responses to the lead article in the April 2015 issue of the American Journal of International Law by Harold Koh and Todd Buchwald: “The Crime of Aggression: The United States Perspective“, 109 AJIL 257, 292 (2015). In that piece, Harold Koh and Todd Buchwald, both of whom were leaders of the U.S. delegation at the Kampala review Conference, consider a range of issues raised by the impending activation of the ICC’s jurisdiction over the crime of aggression. They provide a critique of the definition of the crime of aggression provided for in the amendments to the ICC Statute agreed in Kampala, Uganda in 2010; examine issues relating to the jurisdiction of the Court and domestic courts over that crime; and consider the role of the Security Council with respect to aggression. One of the main focuses of their piece is a consideration of how best to prevent the new jurisdiction over the crime of aggression from chilling uses of force they consider legitimate, particularly humanitarian intervention that is not authorized by the Security Council. In the July 2015 issue of the American Journal of International Law, Alain Pellet and Bing Bing Jia respond to Koh and Buchwald. The AJIL Unbound symposium, in addition to an introduction by me, includes four pieces which provide further consideration of issues relating to the crime of aggression and some responses to the Koh & Buchwald article.   Read the rest of this entry…

 
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Provisional Measures and Joinder of Cases at the International Court of Justice – The Answers

Published on January 18, 2016        Author: 

Earlier this month I asked four trivia questions about the International Court of Justice’s (ICJ) practice on provisional measures and joinder of cases. The questions were prompted by the ICJ’s recent Judgment in the joined cases concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). I also stated that the first person to provide the most correct answers would win a year’s free subscription to the European Journal of International Law prize. Within minutes of my piece being posted, Niccolò Ridi (right, who is doctoral candidate at the Dickson Poon School of Law,  King’s College London and Research Assistant at the Graduate Institute of International and Development Studies in Geneva) had provided comprehensive answers to all four questions. His quickness off the mark hardly gave anybody else a chance! He later added to his answers with subsequent comments, and is very deserving of the prize!

My first question was “1) In what other case has the Court made a finding in the dispositif of a judgment that a party has breached a provisional measures order made by the Court?” Niccolò is absolutely right to note that the use of the singular – ‘case’ – in my formulation is incorrect. The Court has made such a finding in the dispositif of a judgment in a few cases. The first case in which the Court did so was the La Grand case (Germany v the US) 2001. That was the first case in which the Court held that provisional measures orders were legally binding, and it is only since that judgment that the Court has included declarations of non-compliance with provisional measures in the dispositifs of judgments. Massimo Lando and Niccolò are also right that the Request for Interpretation of the Avena Judgment (Mexico v US); the Armed Activities case (DRC v Uganda); and the Bosnia Genocide (Bosnia and Herzegovina v Serbia and Montenegro) case are other cases where the Court has found non-compliance with provisional measures. Indeed, it seems to be the case that, since LaGrand, in the majority of judgments dealing with cases where the Court has ordered provisional measures, it has subsequently made findings of violations of its interim orders. Two cases where the ICJ has not, in that time period since LaGrand, made such findings are the Land and Maritime Boundary (Cameroon v Nigeria) case (2002) and the Request for Interpretation of the Judgment in the Temple of Preah Vihear (Cambodia v. Thailand) case (2013). By my count that makes it 5 cases of findings of non-compliance with 2 cases of no such finding. These are not encouraging statistics regarding compliance with provisional measures!

Which Cases have been Joined?

Question 2 asked “In which proceedings have cases before the International Court been joined?” Niccolò was correct in referring to the South West Africa cases (Liberia & Ethiopia v South Africa) and the North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands). Those were indeed the two cases where the ICJ has formally joined proceedings (I later realized that I had made a gaffe in my earlier post in referring to this press release as the answer to the question was made plain there).  Read the rest of this entry…

 

Trivia Competition: Provisional Measures and Joinder of Cases at the International Court of Justice

Published on January 8, 2016        Author: 

A few years ago I began the practice of asking on this blog – every now and again – trivia question relating to international law, with the questions focusing mainly on the practice of the International Court of Justice (ICJ) and other international tribunals. Unfortunately, I have not done this in quite a while. You can find previous questions (and answers) here or by viewing the EJIL:Trivia category in the list of categories on the right hand column of the blog. Last month, the International Court of Justice delivered its Judgment in the joined cases concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). This judgment and the cases provide me with an opportunity to ask a set of trivia questions relating to the ICJ.

On this occasion, we will offer a prize to one respondent. The person who provides the most correct answers will win a free subscription to the European Journal of International Law for 2016. In the case of a tie, the first person to provide their answers will be the winner.

In the Costa Rica v. Nicaragua case, the Court found that “Nicaragua has breached the obligations incumbent upon it under the Order indicating provisional measures issued by the Court on 8 March 2011”. This is a relatively rare finding by the Court that a party has breached a provisional measures Order indicated by the Court earlier in that case. This finding was not merely made in passing but was recorded in the dispositif of the judgment. My first question is a perhaps an easy one:

1) In what other case has the Court made a finding in the dispositif of a judgment that a party has breached a provisional measures order made by the Court?

The rest of my questions relate to joinder of cases at the ICJ. The Costa Rica v Nicaragua and Nicaragua v Costa Rica cases began as separate proceedings which were joined together by the Court in 2013 (see this press release). Under Article 47 of the Rules of the ICJ,

The Court may at any time direct that the proceedings in two or more cases be joined. It may also direct that the written or oral proceedings, including the calling of witnesses, be in common;  or the Court may, without effecting any formal joinder, direct common action in any of these respects.”

There are not too many cases that have been joined by the Court and my second question is this:

2) In which proceedings have cases before the International Court been joined?

Read the rest of this entry…

 

Happy New Year & Most Read Posts of 2015

Published on December 31, 2015        Author: 

As 2015 comes to an end and we enter into 2016, I would like to wish our readers a Happy New Year! I also take the opportunity to provide you with a list of the 20 most read posts for 2015. The information used in compiling the list is from Google Analytics, which tell us which gives us information about the number of times pages on the blog are viewed. The posts listed below were not all written in 2015 but were the ones accessed most frequently in 2015. In fact, nearly half of the posts in the list below were not written in 2015. It is encouraging to see that readers come to blog not just to access current material but that pieces are regarded as having some enduring value.  We strive to cover a range of areas of international law on the blog, and the list below, contains pieces with diverse subject matter. However, it is noticeable that right at the top of this list of most read posts, there is a concentration on pieces that touch on the use of force and armed conflict. The list below is reverse order, with the top 10 posts below the fold:

20) On the Entirely Predictable Outcome of Croatia v. Serbia, Marko Milanovic

19) Kadi Showdown: Substantive Review of (UN) Sanctions by the ECJ, Antonios Tzanakopoulos (2013)

18) Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups, Marc Weller

17) European Hypocrisy: TTIP and ISDS, Joseph Weiler

16) Double Duty at the ICC, Daphné Richemond-Barak

15) The Grand Chamber Judgment in Hassan v UK, Lawrence Hill-Cawthorne (2014)

14) The new enemy of mankind: The Jurisdiction of the ICC over members of “Islamic State”  Kai Ambos

13) European Court Decides Al-Skeini and Al-Jedda Marko Milanovic (2011)

12) Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 2) Arman Sarvarian & Rudy Baker

11) Espionage & Good Faith in Treaty Negotiations: East Timor v Australia Dapo Akande & Kate Mitchell (2014) Read the rest of this entry…

Filed under: EJIL Analysis
 
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A Preview of a Prequel: Roger O’Keefe’s Inaugural Lecture

Published on December 30, 2015        Author: 

Early in the New Year, we will have the pleasure of posting Roger O’Keefe’s inaugural lecture,roger-okeefe delivered earlier month, at University College London. In the lecture, “Curriculum Vitae. A Prequel“,  Roger:

 “tease[s] out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet”.

animal-reptile-salamander-north-american-salamander-610x340The lecture is very much in the vein of Roger’s masterful piece: “Once upon a time there was a gap” from about 5 years ago. It is a wonderfully written piece that will have you laughing out loud. Watch out for the cameo appearances made by real life academics (departed and still living – including editors of blogs) as well as judges. The genius of the piece lies in the fact that as much as it is a humorous piece, it is also a most thoughtful piece about international law theory and methodology. It should cause readers to reflect on issues like the role and function of international law (and indeed of international lawyers). Those of you who enjoyed “Once upon A time there was a gap” will surely enjoy this new piece. I would encourage you to re-read the earlier piece to whet the appetite. Those who have not enjoyed the previous piece, well, that can only be because you have not yet read it. So you should also read that earlier piece and look out for the tale about D. H. G. H.-G. Salamander!

 
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UK Parliamentary Inquiry into UK Policy on the Use of Drones for Targeted Killing

Published on December 23, 2015        Author: 

In August this year, the United Kingdom carried out a drone strike in Syria for the purpose of targeting a member of ISIS (see previous discussion on this blog here and here). At the end of October, the Joint Committee on Human Rights of the UK’s Parliament launched an inquiry into the UK government’s policy on the use of drones for targeted killing. Unlike the US, which has published a white paper setting out the legal framework for the US of lethal force against US citizens who are senior members of Al Qaeda, the UK had not previously set out its policy for the use of lethal force in areas outside of active hostilities.  The inquiry by the Joint Committee (joint because its membership is drawn both from the House of Commons and the House of Lords) is not particularly directed at the drone strikes that occurred this past summer but has a more general focus. It is intended to tease out the following issues:

  • clarification of the Government’s policy and its legal basis
  • the decision-making process that precedes the Government’s use of drones for targeted killing, including the safeguards to ensure the sufficiency of evidence
  • accountability for actions taken pursuant to the policy (what independent checks exist before and/or after a strike; should there be independent scrutiny and, if so, who should carry it out?)

The Joint Committee invited the submission of written evidence as part of its inquiry and you can find the evidence submitted to the Committee here. That evidence came from a range of sources, including academics and civil society.  Christof Heyns (the UN Special Rapporteur on Extrajudicial, Arbitrary and Summary Executions), Lawrence Hill-Cawthorne, Thompson Chengeta and I put in a written submission which is essentially an article that we are writing on “The Right to Life and the International Law Framework Regulating the Use of Armed Drones” – but which starts with a 7 page summary of the article. That article is a much expanded version of the Report that Christof presented to the UN General Assembly on 25 October 2013, (UN Doc, A/68/30532).

UK Memo to the Committee

The UK Government submitted a 4 page memo to the Joint Committee setting out its response to the issues raised by the Committee. That memo sets out very briefly the UK’s policy on the use of lethal force. Much of what is says is very familiar and simply restates the position of the UK government on a number of important issues regarding the use of force: Read the rest of this entry…

 
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Discussion of Stefan Talmon’s “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion”

Published on November 27, 2015        Author: 

I am delighted to announce that, over the next few days, we will be hosting a discussion of Professor Stefan Talmon’s (University of Bonn) recent article – “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion” – which was published a few months ago in (2015) EJIL Issue no. 2 . As he explains in the abstract:

This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law.

Commenting on the article will be Sir Michael Wood, who is the International Law Commission’s Special Rapporteur on “The Identification of Customary International Law”, writing together with Omri Sender (of the World Bank); Harlan Grant Cohen (University of Georgia); and Fernando Lusa Bordin (University of Cambridge). They have all previously written brilliantly on customary international law. We are grateful to each of them for taking part in this discussion. As usual, comments by readers are welcome. Stefan’s article is freely available on the EJIL and OUP websites so do take a look at it in advance of the discussion.

 
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