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South African Withdrawal from the International Criminal Court – Does the ICC Statute Lead to Violations of Other International Obligations?

Published on October 22, 2016        Author: 

The relations between the International Criminal Court (ICC) and African States have come to a head once again this week with situation now at its lowest point. The government of South Africa has announced (see here) that it is withdrawing from the Statute of the ICC and that it has submitted its instrument of withdrawal to the UN Secretary General in accordance with Article 127(1) of the ICC Statute. Under that provision, the withdrawal shall take effect one year after the date of receipt of the notification of withdrawal (unless the state specifies a later date in the notification). South Africa, which had previously been a strong supporter of the Court, thus becomes the first state to withdraw from the ICC. To add to the sense of crisis, the South African withdrawal follows on from the decision over the past couple of weeks of the President and Parliament of Burundi to also withdraw from the ICC Statute. Although the Burundi Parliament has voted to do this and the President has signed a decree to this effect(see here and here), Burundi does not appear to have, as yet, notified the UN Secretary-General of its intention to withdraw to the ICC. There are fears that other African states will follow suit. [Lost in all of this was the news that, by contrast, another African country, Gabon, referred the situation in that country to the ICC less than4 weeks ago (see here for statement of ICC Prosecutor).]

South Africa’s Reasons for Withdrawal

The South African notification of withdrawal has not yet been released publicly but we have a detailed statement from the Minister of Justice regarding the reasons behind the withdrawal. One of the major grounds on which the South African government justifies its withdrawal is that:

“the Rome Statute [and the domestic Act implementing it] compel South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the court.”

The government claim is thus that complying with the ICC Statute will cause South Africa to breach its obligations to other states. The Minister suggests that resolving this conflict of obligations is important, because it undermines the ability of South Africa to work towards peaceful resolution of disputes and to promote the important objective of bringing conflicts to an end. The Minister went on to say that: “South Africa has had to do so [arrest people wanted by the ICC], even under circumstances where we are actively involved in promoting peace, stability and dialogue in those countries”. He stated further that:

“We wish to give effect to the rule of customary international law, which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent”.

Does the ICC Statute Require States to Violate the Customary International Law of Immunity?

I do not intend to address the broader peace vs justice debate in this post (Is South Africa right to seek to pursue peace over immediate claims to justice in particular situations?) Reasonable minds can disagree on this. However, I wish to question the claim by South Africa that the Rome Statute requires it to violate customary international law of immunity. Read the rest of this entry…


When Does the Use of Force Against a Non-State Armed Group trigger an International Armed Conflict and Why does this Matter?

Published on October 18, 2016        Author: 

Over at Just Security (see for example herehere and here) and also at Opinio Juris (see here and here) there has been a very interesting discussion on whether aspects of the conflict in Syria should be regarded as international armed conflicts (IACs) rather than simply non-international armed conflicts (NIACs). These discussions have followed on from the release of the ICRC’s revised Commentary to the First Geneva Convention (GCI) of 1949 in which the ICRC, in its commentary to Common Article 2 dealing with international armed conflicts (one between the High Contracting Parties to the GCs), states that where a state uses force against a non-state group on the territory of another state without the consent of the territorial state it would amount to an international armed conflict between the intervening state and the territorial state. So as Adil Haque pointed out on EJIL:Talk! in April, the ICRC position would mean that the US (and other states using force in Syria without the consent of the Syrian government) is involved in an IAC in Syria. Adil has explained his support for the ICRC position in posts on this issue on Just Security (see here and  here). Others like Terry Gill, Sean Watts and Kenneth Watkin have disagreed (see here, here, here, and here).

I am on record as being a supporter of the position that the ICRC has now come to. I wrote a piece (available here on SSRN) many years ago, which was part of a major study on Classification of Conflicts in which I say precisely what the ICRC has now said (and I’m delighted that the ICRC’s revised commentary cites that work). I am not going to repeat my arguments in this post and they can be found here. In summary, my view is that an international armed conflict is a conflict between states, and a conflict arises between states when one state uses force against another state. What does it mean for a use of force to be against another state? It means simply that the force is used on the territory of the other state without its consent. Note that this says nothing about whether that use of force is lawful or unlawful under the jus ad bellum. Such non-consensual uses of force may or may not be lawful under that body of law, and the application of IHL remains independent of the legality of the use of force under the jus ad bellum. It is also important to remember that saying that there an IAC between the two states says nothing about whether there is a NIAC between the state using force and the non-state group. There will, in many cases, be such a NIAC. This will raise questions about the relationship between the two conflicts: the IAC and the NIAC. However, the notion of mixed conflicts is by no means unusual or confined to this context. In the Nicaragua case the ICJ noted that it was addressing a situation where there was an IAC and a NIAC. The same was also true with regard to the conflicts in the former Yugoslavia or before that in Vietnam, which were also mixed.

In this post I wish to concentrate on why it might matter whether a use of force directed at a non-state actor on the territory of a non-consenting state is an IAC or a NIAC. What exactly would turn on this question. Here I provide a general response to that question rather than one directed particularly at answering the question (which has been the subject of some of the commentary on Just Security and Opinio Juris) of what would turn on whether the US is involved in an IAC in Syria. Some of the points below would be relevant for the US in that particular conflict, others might not be.

Here are a few reasons why it might make a difference whether a state using force on the territory of another without  the consent of the other is involved in an IAC (in addition to a NIAC, if one already exists). Read the rest of this entry…


Transatlantic Workshop on International Law and Armed Conflict: Introduction to a Joint Blog Series

Published on September 21, 2016        Author: 

In late July, a group of academic, military, and governmental experts from both sides of the Atlantic gathered at the University of Oxford for the fourth annual “Transatlantic Workshop on International Law and Armed Conflict”. The roundtable, held under the Chatham House Rule, and which this year included participants from Australia was held over two days and examined contemporary questions of international law relating to military operations.

This year’s event placed a particular emphasis not only on some substantive issues relating to the conduct of hostilities (such as targeting of “war sustaining” objects and the principle of proportionality), but on procedural obligations arising under the law of armed conflict. The procedural obligations discussed include the obligations of parties: to engage in review of the lawfulness of detentions in the armed conflict; to guarantee fair trials for those prosecuted for offences related to the conflict; and to investigate suspected violations of the law of armed conflict. Discussion of these procedural obligations focused on the content and scope of these obligations. The sessions also examined the extent to which these obligations apply to (and are capable of being fulfilled in) non-international armed conflicts and non-state armed groups. Inevitably, the sessions also considered the relationship between the procedural obligations imposed by international humanitarian law and those which may arise under international human rights law. To what extent should the latter inform the former?

Some of those who attended the workshop have agreed to participate in a series of blog posts focusing on specific topics that were addressed during the workshop. Three blogs, Intercross, EJIL:Talk!, and Lawfare, are coordinating the series, and will host the posts, outlined below. Each blog post represent’s the different authors’ perspectives, and not necessarily those of anyone else at the workshop, nor any of the institutions represented. The blogposts focus almost exclusively on procedural obligations in the law of armed conflict. In addition, there will be a post on the principle of proportionality under IHL. Although proportionality imposes a substantive obligation on parties not to cause damage or casualties which are excessive in relation to the anticipated military advantage, arguably, the attempts to achieve conformity with this obligation tend to be effected through particular processes and procedures . Read the rest of this entry…


Withdrawal from the United Nations: Would it have been Lawful for the Philippines?

Published on September 19, 2016        Author: 

50 years ago today (on 19 September 1966), the Ambassador of Indonesia to the United States sent a telegram to the UN Secretary-General stating that “my Government has decided to resume full co-operation with the United Nations and to resume participation in its activities . . .” That marked the beginning of the end of the only case where a UN member has purported to withdraw from the organization. Last month, Rodrigo Duterte, President of Indonesia’s neighbour, the Philippines, threatened that the country would withdraw from the United Nations because of criticism by two UN Special Rapporteurs (see here). As has been widely reported, and as pointed out by Marko a couple of weeks ago, hundreds of (or on some accounts up to 3000) suspected drug dealers or users have been killed since the Duterte took over in Philippines.  On 18 August, the UN Special Rapporteurs on Summary Executions and on the Right to Health issued a statement “urging the Government of the Philippines to put an end to the current wave of extrajudicial executions and killings in the context of an intensified anti-crime and anti-drug campaign targeting drug dealers and users.” In response, Philippines President Duterte stated that “maybe we’ll just have to decide to separate from the United Nations” (see here and here). The Philippines Foreign Minister later stated that the country had no plans to leave the UN, and Duterte himself subsequently stated that his threat was just a joke.

However, the threat to withdraw does raise the question of whether UN members may legally withdraw from the Organization. Although the circumstances are very different, and there are clear treaty provisions to provide guidance, British withdrawal from the European Union also provides cause to ponder more generally about how and when states may withdraw from international organizations. Would the Philippines have been entitled to withdraw from the UN? Unlike the position with the European Union, and it’s now well-known Article 50 of the Treaty on European Union), the UN Charter does not make explicit provision for withdrawal. This post explores whether despite the absence of specific provision,  a UN member is legally entitled to withdraw from the organization. Read the rest of this entry…


New Blog: Foreign States in English Courts

Published on July 1, 2016        Author: 

Over the past couple of decades there has been a significant increase in the number of cases in the English courts raising questions of international law. Many of those cases involve proceedings by or against foreign states, or occasionally raising issues involving foreign states even when not a party to the proceedings. I would like to draw the attention of our readers to a new blog Foreign States in English Courts which has been established by my colleague Professor Dan Sarooshi (also of Essex Court Chambers) and Robert Volterra (senior partner of Volterra Fietta) which will assist in keeping on top of this burgeoning case law. The blog is intended to provide concise, informative case summaries of recent and important English court decisions involving foreign States as litigants.  As they say:

This blog aims to highlight the latest, most important case law involving foreign States in the English courts. Our aim is not to provide a complete account of the factual matrix and law decided by each case, but rather to provide the busy practitioner with a quick reference to the most important cases as they emerge.

I am sure the blog will also be of interest to academics and students.

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Honour for Professor Colin Warbrick

Published on June 11, 2016        Author: 

I am delighted to note that Professor Colin Warbrick, Emeritus Professor at the University of Birmingham and longtime Professor of International Law at the University of Durham has been appointed in the Queen’s Birthday Honours list as “Companion of the Most Distinguished Order of St Michael and St George” (see here). So from now he is Professor Colin Warbrick CMG.Prof-Colin-Warbrick

For all who know Colin and who know his work, this appointment will immediately be recognised as a well deserved honour. Awards in the Most Distinguished Order of St Michael and St George are for service rendered internationally or in a foreign country and in Colin’s case, he is appointed CMG “for services to international law”. Those services to international law are indeed considerable. He has written on a wide range of areas of international law with some of his best known and most influential work dealing with issues of statehood and recognition, the application of international law in domestic law, and human rights law. He is a co-author of Harris, O’Boyle and Warbrick, The Law of the European Convention on Human Rights (OUP) now in its 3rd edition. For many years he was editor of the “Current Developments: Public International Law” section of the International and Comparative Law Quarterly, contributing many insightful pieces himself to that section.  He is also a member of the editorial committee of the British Yearbook of International Law and has had joint responsibility for the “United Kingdom Materials on International Law 2013” section of the Yearbook for quite some years. In those roles in the ICLQ and the BYIL Colin has done more than most to bring to light the reality of how international law works and develops, as well as to subject the big issues of the day to powerful international legal analysis. In addition to his scholarship, Colin has also acted as a consultant to international organizations like the Council of Europe and the Organization for Security and Cooperation in Europe, and was a specialist adviser to the Select Committee on the Constitution of the House of Lords. Read the rest of this entry…

Filed under: Announcements and Events

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…


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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