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Home Articles posted by Dapo Akande

Court between A Rock and a Hard Place: Comoros Refers Israel’s Raid on Gaza Flotilla to the ICC

Published on May 15, 2013        Author: 

Comoros has referred the action of Israeli troops in boarding the flotilla headed to Gaza on 31 May 2010 to the International Criminal Court. The ICC Prosecutor has announced that she is opening a preliminary examination of the situation and it now remains to be seen whether this will lead to a proper investigation and perhaps even charges being brought by the ICC against Israeli troops or officials. Israel, of course, is not a party to the Statute of the ICC, but this does not itself mean that the ICC cannot exercise jurisdiction over Israeli nationals or officials (see my 2003 article on this issue). Comoros is a party to the Statute and the main vessel on which the Israeli actions took place, the Mavi Marmara, was registered in Comoros. Under Article 12(2) of the ICC Statute, the Court may exercise jurisdiction not only to nationals of State’s party to the ICC statute but also, crucially, where:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft [is a party to the Statute];

Since the Israeli action took place on a vessel that is registered in a State party to the ICC Statute, the action is within the jurisdiction of the ICC. Comoros also points out that a second of the six vessels in the Gaza flotilla boarded on 31 May 2010 – the M.V. Eleflheri Mesogios or Sofia - is registered in Greece which is also a party to the ICC. In addition, Comoros says that a further vessel boarded by Israel a week later – the MV Rachel Corrie- is registered in Cambodia, which is also an ICC State party. It must also be taken as referring the incident regarding those other vessels to the ICC (assuming there were any incidents committed on board those vessels that would amount to crimes within the jurisdiction of the ICC). It is worth noting that a State party is entitled to refer any situation involving crimes within the jurisdiction of the Court to the prosecutor. Thus Comoros is entitled to refer a matter that did not occur within its territory to the ICC.

Israel’s actions with regard to the flotilla have already been the subject of investigations by Israel, Turkey and by two UN bodies. The allegations that actions on board the vessels were contrary to international law finds support in the reports by the UN commissions  (see Yuval Shany’s discussion of Human Rights Council’s Fact Finding Commission here,  and Douglas Guilfoyle , Tamar Feldman and Marko’s discussion of the Palmer Report here, here here). However Israel’s Turkel Report comes to the opposite conclusion (see discussion by Amichai Cohen and Yuval Shany here). It is to be noted that the referral by Comoros comes just days after it was announced that Israel and Turkey were close to reaching an agreement on compensation for the Turkish victims of the incident.

The referral by Comoros is significant for the ICC for a number of reasons and as outlined below is likely to test political support for the Court. While action by the Court against Israel is likely to prove unpopular in some circles, failure by the Court to act in a situation involving Israel, and perhaps more importantly failure to act on a referral by an African State against a non-African State, will perhaps prove even more unpopular in a constituency crucial to the ICC.

Read the rest of this entry…

Filed under: EJIL Analysis
 

Calls for Papers: Irish Yearbook of International Law; Hellenic Branch of the ILA

Published on May 11, 2013        Author: 

1) The editors of the Irish Yearbook of International Law welcome submissions for publication in the next volume of the Yearbook. Articles should not be published or under consideration for publication elsewhere. An annual, peer reviewed publication, the Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer pieces will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words. Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Siobhán Mullally (s.mullally {at} ucc(.)ie) and Fiona de Londras (fiona.de-londras {at} durham.ac(.)uk) by 21 June 2013. Anyone wishing to review a particular title in the Yearbook’s book review section are also invited to contact the editors. Further information on the Yearbook (including style guide) is available at the IYIL website.

2) The Hellenic Branch of the ILA is holding a regional conference in Cape Sounion, Athens, on 29-31 August 2013. A call for papers has been circulated and is available here along with registration details and other information.

Filed under: EJIL Reports
 

Stepping Up the Pace of Ratifications of the ICC Amendments on the Crime of Aggression : Where do we stand now?

Published on May 1, 2013        Author: 

President Khama of Botswana (right), Dr Athaliah Molokomme, Attorney General of Botswana (left), Mr Khama, Minister of Defence of Botswana (centre).

In the summer of 2010, the Assembly of States Parties to the Statute of the International Criminal Court, meeting in Kampala, Uganda, adopted amendments to the ICC Statute which define the crime of aggression and provide for the jurisdiction of the ICC over aggression. Under those amendments, the ICC will only be able to exercise jurisdiction over the crime of aggression once 30 States have ratified or accepted the amendments. Furthermore, the Court may not exercise jurisdiction over aggression until 1 January 2017. The amendment provides that there will also be the need for a further decision of the Assembly of States Parties to the ICC Statute to activate the jurisdiction of the Court over aggression. Unlike the Rome Statute of the ICC, ratifications of the Kampala amendments seemed to be going slowly with only 3 states (Liechtenstein, Samoa and Trinidad & Tobago) ratifying the amendments by the end of 2012. However, the pace of ratifications seems set to pick up in 2013. Luxembourg ratified the aggression amendment in January and Estonia did the same in March. In addition, two states - Germany and Botswana - have now completed their domestic processes for ratification and at least one other (Uruguay) is well on the way. The German parliament adopted its Act of Ratification of the Kampala Amendments at the end of February and should deposit its instrument of ratification soon. On April 15, the President of Botswana signed Botswana’s instrument of ratification of the Kampala amendment at a workshop held in Botswana that I was speaking at. He signed the instrument of ratification at a dramatic opening session of a workshop held for African governments on ratification and implementation of the crime of aggression. [On a personal note, I had never seen an instrument of ratification being signed before and I still have not as I arrived at the workshop after the opening session! The workshop was organized by the Government of Liechtenstein and the Global Institute for the Prevention of the Crime of Aggression which has a great website that contains many resources on the crime of aggression.] On April 10, one house of the Uruguayan Parliament (the Chamber of Deputies) approved the bill on ratification of the Kampala Amendments unanimously and the bill is set to go to Uruguayan Senate in the coming weeks (see this report by the Parliamentarians for Global Action).

For the court to be able to exercise jurisdiction over aggression by the beginning of 2017, there will actually need to be 30 ratifications by the beginning of 2016 as the amendments only take effect for each State party one year after the instrument of ratification is deposited. There seems to be a possibility that this number will be reached but that is not so clear. Read the rest of this entry…

Filed under: EJIL Analysis, International Criminal Court, Use of Force
 

Conference Announcements: ‘Interpetation and International Law’

Published on May 1, 2013        Author: 

Abstract submissions are sought for a conference on ‘Interpretation and International Law’, to be held at the University of Cambridge on 27 August 2013. The deadline for submission of abstracts has been extended to 8 May 2013. Abstracts, along with a resume, can be submitted via cambridgeinterpretation {at} gmail(.)com. For more information, visit here.

Filed under: EJIL Analysis
 

Does Use of Chemical Weapons Justify Intervention in Syria?

Published on April 27, 2013        Author: 

Over the last few days, various media outlets have reported that the US, UK and other countries believe that the Syrian government has used chemical weapons in the Syrian conflict (see BBC report). Apparently, there is not yet conclusive evidence of this and the US and others are investigating the matter. However, US President Obama has stated that use of chemical weapons would be a “game changer.”

“Horrific as it is when mortars are being fired on civilians and people are being indiscriminately killed, to use potential weapons of mass destruction on civilian populations crosses another line with respect to international norms and international law.

“All of us, not just the United States, but around the world, have to recognise how we cannot stand by and permit the systematic use of weapons like chemical weapons on civilian populations,” he said

So, the question is whether, as a matter of international law, the use of chemical weapons would justify intervention in Syria. Military intervention in Syria either directly (by the armed forces of other States) or indirectly (by providing arms to the Syrian opposition) would, in principle, be contrary to Article 2(4) of the United Nations Charter. The issue is whether there are any arguments that may be used to get round the prohibition of the use of force in that provision. In previous posts I have considered the legality of arming the opposition in Syria  (and also here) and after examining the different arguments that may be used, concluded that none of them has a strong basis in international law. It does not seem to me that the use of chemical weapons changes the position as a matter of international law.

The main argument that could be used to justify intervention if it is established that chemical weapons have been used would be humanitarian intervention. However, to my knowledge, the United States has never relied on this as a legal basis for intervention (I would be grateful for clarification if I am wrong on this). More importantly, most States reject the view that international law permits States to use force in other States for humanitarian reasons. Perhaps views on this are changing – for example it is not clear whether French and Arab support for arming the Syrian opposition are based on a humanitarian intervention type argument. Perhaps a use of chemical weapons might change the views of others such that we see the law changing. Read the rest of this entry…

Filed under: EJIL Analysis, Self Defence, Syria, Use of Force
 

Conference Announcements: BIICL/SLS conference on Sanctions & Embargoes’; CJICL 2nd Annual Conference

Published on April 21, 2013        Author: 

1) On 29 April, the Society of Legal Scholars international law section and the British Institute of International and Comparative Law are holding their 22nd annual joint conference on the subject of ‘Sanctions and Embargoes: International Law and Contemporary Practice’. Bringing together experts from both academia and practice, the conference will provide both an overview of recent developments in sanctions by the UN, regional organizations and individual States,and an analysis of the problems that they have engendered. Panels will examine the contemporary practice of the various actors, and the legality (or otherwise) of their activities. Issues considered will include the human rights of persons targeted, and the mechanisms established to challenge listing; as well as the rights of third States and their nationals.  Further details (including and list of speakers and instructions how to register can be found at the conference website.

2) On 18-19 May 2013, the Cambridge Journal of International and Comparative Law (CJICL) will hold its Second Annual Conference under the theme “Legal Tradition in a Diverse World”. Highlights include a keynote address by Judge Yusuf (ICJ); a keynote debate between Prof Alain Pellet (Paris Ouest) and Prof James Crawford (Cambridge), moderated by Prof Catherine Redgwell (UCL); a guest lecture by Prof Patrick Glenn (McGill); a conference dinner address by Prof Philippe Sands (UCL); and more than 50 presentations in over a dozen panels.
For registration and the full conference programme, visit the conference website. Places are limited and filling up quickly, so make sure to register soon.

Filed under: EJIL Analysis
 

What is the Meaning of “Consensus” in International Decision Making?

Published on April 8, 2013        Author: 

On 28 March, the negotiators at the Final UN Diplomatic Conference on the Arms Trade Treaty failed to adopt the Arms Trade Treaty (see BBC report here) by consensus.  A few days later the Arms Trade Treaty was adopted by the United Nations General Assembly (by a vote of 154 in favour, three against and 23 abstentions – for a really useful account of the negotiations see the Arms Trade Treaty Legal Blog). At the Diplomatic Conference, the rules of procedure required that the treaty be adopted by “consensus”. However, at the end of that conference, Syria, Iran and North Korea objected to the text. According to the bloggers at the ATT Legal Blog there then ensued a discussion of whether the objection by these three States could stand in the way of the adoption of the treaty by consensus, with some States taking the view that acceptance of the text by the overwhelming majority of States was sufficient to establish consensus despite the expressed opposition of three States. However, the President of the Conference ruled that there was no consensus and that the treaty could not be adopted.

The wranglings about the meaning of “consensus” have a broad importance for decision-making with regard to treaties and in other international conferences. Since the 1970s it has become standard practice in many important diplomatic conferences that decisions are taken, where possible, by consensus. Although this procedural device is ubiquitous, as well as being important for the way in which international law is made, the arguments at the ATT conference lay bare the ambiguity that lies at the heart of this concept. There is no consensus on the meaning of “consensus”. The consensus procedure is an important device for achieving broad based agreement on international treaties. It is therefore important to have some clarity on what it means. Lack of clarity on the procedure might well have an adverse impact on the process by which treaties and other international decisions are reached with the result that the substantive outcomes might be less desirable.

The ATT Legal Blog reports that:

“Mexico said that the overwhelming majority of States were in a position to adopt the treaty text. Mexico suggested to proceed to the adoption of the text as there is no established definition of the term “consensus” in the United Nations. Nigeria supported Mexico. Japan also supported Mexico. Costa Rica then supported Mexico’s statement. Chile then supported Mexico’s statement. Colombia “resolutely” supported Mexico. Read the rest of this entry…

Filed under: Arms Control, EJIL Analysis, Treaty Law, United Nations
 

Announcements

Published on April 7, 2013        Author: 

On 11/12 April, the Schools of Law of the University of Glasgow and Queen Mary, University of London, together with the Ministry of Foreign Affairs of Poland, are hosting a workshop entitled ‘Structural Challenges Facing International Organisations: Re-Assessing the League of Nations’ (Lincoln’s Inn Fields, London). The workshop will discuss key challenges facing international organisations, such as the tension between coherence and wide membership and the balance to be struck between stability and reform. It does so by looking at the example of the League of Nations as the first attempt at ‘world organisation’. The keynote address on ‘Lessons from the League of Nations’ will be by Mr Stephen Mathias, UN Assistant Secretary-General for Legal Affairs (New York). To attend, please register here or email Christian J. Tams at christian.tams {at} glasgow.ac(.)uk

Filed under: EJIL Analysis
 

The Latest Issue of EJIL To be Published Next Week: Vol. 24 No. 1

Published on April 2, 2013        Author: 

The latest issue of the European Journal of International Law will be published in the next week. Over the course of this week, we will have a series of post by Joseph Weiler – Editor in Chief of EJIL – which will then appear in the Editorial in the issue of the journal that will be published the following week. Here is the Table of Contents of the next issue of EJIL:

Editorial: Differentiated Statehood? ‘Pre-States’? Palestine@the UN; EJIL and EJIL: Talk!; The Strange Case of Dr. Ivana Radačić; Looking Back at EJIL 2012 – The Stats; Changes in the Masthead – Our Scientific Advisory Board; In this Issue

 Just and Unjust Warriors:

Marking the 35th Anniversary of Walzer’s Just and Unjust Wars

 Symposium Editors: Professor Gabriella Blum (Harvard Law School)
and JHH Weiler (Editor-in-Chief, EJIL)

Gabriella Blum and JHH Weiler, Preface

Robert Howse, Thucydides and Just War:  How to Begin to Read Walzer’s Just and Unjust Wars

JHH Weiler and Abby Deshman, Far be it from Thee to Slay the Righteous with the Wicked: An Historical and Historiographical Sketch of the Bellicose Debate Concerning the Distinction between Jus ad Bellum and Jus in Bello

Marko Milanovic, A Non-Response to Weiler and Deshman

Terry Nardin, From Right to Intervene to Duty to Protect: Michael Walzer on Humanitarian Intervention

Anne Orford, Moral Internationalism and the Responsibility to Protect

Michael Glennon, Pre-empting Proliferation: International Law, Morality, and Nuclear Weapons

Jack Goldsmith, How Cyber Changes the Laws of War

Dino Kritsiotis, Enforced Equations

Matthew C. Waxman, Regulating Resort to Force: Form and Substance of the UN Charter Regime

Olivier Corten, Regulating Resort to Force: A Response to Matthew Waxman from a ‘Bright-Liner’ Read the rest of this entry…

Filed under: EJIL
 

Are the two Koreas Now at War?

Published on April 1, 2013        Author: 

In recent days the tensions on the Korean peninsula have risen. On 11 March, North Korea claimed  that it had terminated the armistice agreement that ended the Korean War of the 1950s and on 30 March stated that:

“From this time on, the North-South relations will be entering the state of war and all issues raised between the North and the South will be handled accordingly. The long-standing situation of the Korean peninsula being neither at peace nor at war is finally over.” (see this BBC article for a useful timeline of recent events”

But does this statement mean that the two Koreas are back at war, despite the absence of hostilities at this point in time? And why might a state of war be important legally, if there are no hostilities? Also has North Korea validly terminated the armistice agreement and what would the legal implications of this be? We examined all of these issues here on EJIL:Talk! back in July 2009, in two posts written during a previous Korean crisis. One post “The Korean War has Resumed !! (Or so we are told)” was written by me. The other – Has North Korea Terminated the Korean Armistice Agreemennt?  -  was by my former student, Seunghyun Sally Nam, who was, at the time of writing, an official in the Korean Peninsula Peace Regime Division at the South Korean Ministry of Foreign Affairs (but writing in her personal capacity). The issues we covered then are perhaps more relevant now and I invite readers to revisit those posts. They are also in the “From the Archives” box to the right.

Read the rest of this entry…

Filed under: Armed Conflict, EJIL Analysis, Use of Force