I want to express my deep and sincere appreciation to Joanna Harrington and Darry Robinson for their excellent posts from the ICC Review Conference in Kampala. Their posts kept us all informed about developments in Kampala and I felt like I was close to the negotiating process. We know from Julian Ku’s posts at Opinio Juris (see here and here) that others were relying on these posts too.

The pictures in Joanna’s post were a new thing for us on the blog and I think a great addition to the blog!

As we have previously noted here, the inquiry established by the UK to examine the UK’s involvement in the Iraq War has spent some time taking evidence on the legal justification put forward by the UK for the invasion of Iraq in 2003, as well as on the manner in which legal advice on the issue was formulated and presented. [For EJIL:Talk coverage of events at the Inquiry, see here here here, and here]. The inquiry has now issued an invitation to public international lawyers to make submissions on the legal arguments relied on by the UK. The text of the inquiry’s invitation is as follows:

The legal basis for the military intervention in Iraq has been the subject of much comment.  The Inquiry has heard evidence on this point from a number of witnesses, including Lord Goldsmith the former Attorney General and Sir Michael Wood the former Foreign Office Legal Adviser.  Transcripts of such evidence can be found at: http://www.iraqinquiry.org.uk/.  In addition, a number of government documents relating to the formulation of the legal advice have been declassified and published on the Inquiry’s website. 

The Inquiry is being advised on public international law by Dame Rosalyn Higgins QC.  In order further to inform the Committee’s considerations, the Inquiry would be pleased to receive from public international lawyers any legal analysis they may wish to offer of the legal arguments relied upon by the UK government as set out in: the Attorney General’s advice of 7 March 2003; his written answer to a question in the House of Lords on 17 March 2003; and the FCO Memorandum “Iraq: Legal Basis for the Use of Force” of the same date. 

The inquiry does not wish to focus on grounds relied on by other states. Respondents are, therefore, invited to comment on the issues of law arising from the grounds on which the government relied for the legal basis for military action, as set out in the substantive elements of the evidence given to the Inquiry and published documents. That might include:

• the legal effect of Operative Paragraphs 1, 4, 11 and 12 of UNSCR 1441;
• the significance of the phrase “consider” in Operative Paragraph 12 of SCR 1441;
• whether by virtue of UN Security Council Resolutions 678, 687 and 1441, the elements were in place for a properly authorised use of force;
• the interpretation and effect of the statements made by the Permanent Members of the Security Council following the unanimous vote on UNSCR 1441;
• the correct approach to the interpretation of Security Council Resolutions;
• Lord Goldsmith’s evidence that the precedent was that a reasonable case was a sufficient lawful basis for taking military action.

I’m not quite sure what to make of this invitation. It has been my suspicion since the inquiry was set up that the committeee would consider in its final report the manner in which legal advice was formulated and presented in the lead up to the war but that it would not offer its own conclusions as to the legality of the war. (more…)

In this post I simply want to direct readers to places where they can read about the legal issues raised by the Israeli blockade of Gaza and about Israel’s attempt to enforce that blockade earlier this week. I am sure we will return to these matters on EJIL:Talk! in the next few days. Douglas Guilfoyle, who has written several posts on this blog on issues relating to maritime interdiction has a piece in the Times (of London) in which he states that:

International law tells us that states may create and enforce blockades during an armed conflict, but it also tells us that those blockades must meet humanitarian standards to be lawful.    . . .

The law or armed conflict requires that blockading states allow aid through to the civilian population; however, the blockading state may control the channel through which aid is delivered, and that is what Israel has been doing. The authority to intercept vessels and control aid deliveries, however, is available only in a lawful blockade. To be lawful, a blockade must not be implemented where the damage to the civilian population is excessive in relation to the concrete and direct military advantage anticipated from the blockade, and this is where Israel’s legal position is open to question.

He then goes on to examine the legality of the operation to enforce the blockade and considers whether the Israeli soldiers acted lawfully in self-defence – a matter which may prove to be as important  and worthy of analysis as the legality of the blockade. Douglas then turns to and categorically rejects the charge that the operation was an act of piracy, as does Julian Ku at Opinio Juris.  Douglas has also given two interviews on the BBC which are worth listening to. See here and also here (around the 19 min mark). Afua Hirsch, Legal Correspondent at the Guardian also has a piece considering the legal issues here.

Also at Opinio Juris, Kevin Jon Heller has an excellent post in which he suggests that the legality of the blockade depends on the type of armed conflict is Israel is involved in in Gaza. He accepts that if Israel is involved in an international armed conflict (IAC) in Gaza then it has the right to blockade Gaza. However, he questions whether blockades are lawful in non-international armed conflicts. So:

Israel’s defense of the blockade thus appears to create a serious dilemma for it.  Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas.  And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza.  Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas.  But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention. (more…)

The Conference to review the Statute of the International Criminal Court opens today in Kampala, Uganda. Article 123 of the Statute mandates that a review be convened seven years after the entry into force of the Statute and that this review shall consider any amendments to the Statute include any amendments to the list of crimes subject to the jurisdiction of the Court. Much of the discussion in the review conference will focus on proposed amendments to the Statute which seek to define the crime of aggression and seek to set out the conditions under which the Court can exercise jurisdiction over the crime of aggression. On the latter point, much of the discussion will focus on the relationship between the ICC and the Security Council. For previous discussion on EJIL:Talk! on  the proposals relating to aggression, see here, here and here. The review conference will also discuss other proposed amendments to the Statute, namely: a proposal to delete Article 124 of the Statute (on which see Bill Schabas) which is a transitional provision allowing a State to opt out for seven years from the provision dealing with war crimes; and another proposal to harmonise the provisions of Art. 8 dealing with prohibited weapons in international and non-international armed conflicts. There will also be an exercise in “stocktaking” of the progress of international criminal justice. The website of the review conference (available here) contains the relevant documents.

EJIL:Talk! is delighted to announce that Professors Joanna Harrington and Darryl Robinson will be providing reports and analysis from the Review Conference for readers of this blog. Both Professors Harrington and Robinson are attending the conference in Kampala and both of them have significant academic and practical experience of working on issues relating to the ICC. Professor Harrington is a previous contributor to the blog  (see here) and is Professor of Law at the University of Alberta, Canada where she has recently been appointed as Associate Dean for the Faculty of Graduate Studies and Research. From 2006 to 2008, she served as the Scholar-in-Residence with the Legal Affairs Bureau of the Canadian Department of Foreign Affairs and International Trade. In that role, she, among other things, provided advice on matters of international criminal law and practice and served as a member of Canada’s delegation to the United Nations General Assembly and the Assembly of States Parties to the Rome Statute of the International Criminal Court.

Professor Darryl Robinson is Assistant Professor of Law at Queen’s University in Canada. Prior to this he served as a Legal Officer at the Canadian Department of Foreign Affairs from 1997-2004, where he provided legal advice and engaged in international negotiations concerning international human rights, humanitarian and criminal law. His work in the creation of the International Criminal Court and in the development of Canada’s new war crimes legislation earned him a Minister’s Citation and a Minister’s Award for Foreign Policy Excellence. From 2004 to 2006, he served as an adviser to the Chief Prosecutor to the International Criminal Court where he helped shape the first policies and strategies of the ICC.

The first conference to the review the Statute of the International Criminal Court opens next week in Kampala Uganda. The major proposal to be considered at the conference will be proposals to amend the Statute so as to define the crime of aggression and to set out the conditions under which the Court can exercise jurisdiction over the crime of aggression. There appears to be substantial (even overwhelming) agreement amongst ICC parties that the ICC should be allowed to prosecute the crime of aggression. There is also agreement on the definition of aggression. However, substantial disagreement  remains about the conditions which should exist before the ICC may exercise jurisdiction over aggression. In particular, the key question appears to be whether the ICC should be able to make independent determinations about whether aggression has been committed by a State or whether the ICC should only be able to prosecute where the Security Council has made a prior determination that a State has committed aggression. It has also been suggested that the ICC should be competent to proceed where either the General Assembly or the International Court of Justice has made a prior determination that aggression has been committed.

The issues raised by the proposals to amend the Statute with regard to aggression were discussed in the last EJIL issue of 2009 (Vol. 20, Issue 4). That issue contains four thoughtful papers by Andreas Paulus, Claus Kress, Roger Clark and Sean Murphy (two of whom have been intimately involved in the negotiations in the Special Working Group on the Crime of Aggression). I highly recommend this set of papers. That discussion in EJIL was preceded by discussion on this blog by Andreas Paulus and by me.

I would like to draw readers attention to a paper (see here) I have just completed which focuses on a fundamental problem with the aggression proposal which appears not to have been considered at all by the negotiators and which I hope will be addressed in Kampala next week. This is the issue of whether the aggression amendment, if accepted, should permit the ICC to prosecute leaders of States which are not party to the Rome Statute or have not accepted the aggression amendment. The problem arises because the Statute of the ICC (Art. 12) permits the Court to exercise jurisdiction over individuals where they are nationals of State parties or have committed a crime within the territory of a State party. It has thus far been assumed that this normal jurisdictional rule of the ICC will also apply to aggression, if the aggression amendment is approved. This would mean that the leaders of  non-party States (or of States Parties that don’t accept the aggression amendment) would be subject to the jurisdiction of the ICC, where the alleged victim has accepted the aggression amendment. In 2003, Iargued (in this paper) that it was legitimate for the ICC to exercise jurisdiction over nationals of non-parties. However, I noted then that aggression was different. In my recent paper (posted as a Working Paper on the site of the Oxford Institute for Ethics, Law and Armed Conflict), I set out why aggression is different. I also argue that limiting to the jurisdiction of the ICC to situations referred by the Security Council (in addition to jurisdiction over aggression committed by consenting States) is not a limitation of a competence which the Court would otherwise have but rather an expansion of the Court’s jurisdiction to areas whether it would otherwise lack competence.  The abstract of this recent paper is below: (more…)

Over the next few days we will be discussing the article published by Prof. Ken Anderson “The Rise of International Criminal Law: Intended and Unintended Consequences” in EJIL’s 20th Anniversary Symposium (last year) on the Use of Force. In the abstract to the article, Prof. Anderson states that:

The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even ‘crowded’ other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.

Below is a response to by Prof. Brad Roth. In his post Prof. Roth responds not only to Ken Anderson’s article but also engages with the response to that article by Amrita Kapur, published in issue 4 of the 2009 vol. of EJIL.

As readers will know the UK will hold a general election on the 6th of May. This evening, as a part of a unprecedented three part series of debates, the leaders of the three main UK parties (Labour, Conservatives and Liberal Democrats) will hold a debate on foreign affairs. I thought it would be useful to highlight, brieftly, the position of those three parties on some issues of international law. The BBC website has a useful summary of the position of these parties on Europe and Foreign Affairs, which you can find here. However, some of the positions attributed to the parties by the BBC do not appear in their manifesto and don’ t seem to be on the parties website either. Unlike the position in the United States in recent years, and with the exception of their position on relations with the European Union, there is no radical difference between the parties on questions of foreign affairs. I don’t intend to say much on Europe, but it is worth pointing out, in brief, that the Conservatives hold the most sceptical position, including, for example, a commitment never to join the single european currency – the Euro; and amending UK law to ensure that any future transfers of powers to the EU must be approved by referendum. The Liberal Democrats , by contrast hold the most Euro friendly position (both with respect to the single currency and Europe more generally) with Labour being somewhere in the middle. On another matter related to Europe, the Conservatives have promised to replace the Human Rights Act (which incorporates the European Convention of Human Rights into UK law) with a UK Bill of Rights. I will leave it to others more knowledgeable about that issue to comment on it.

On general international law issues there is actually broad agreement among the parties on a range of issues. Let me start by pointing out the position of the parties on a number of international treaties – both exisiting treaties and those possible future treaties that the parties commit themselves to support. Labour and the Conservatives commit themselves in their manifesto to reform of the UN Security Council (which presumably means amendment of the UN Charter). (more…)

The sexual abuse scandal surrounding the Catholic Church has taken a new turn in recent weeks with calls for the Pope to be prosecuted  for crimes against humanity. The Pope is due to visit the UK in September this year and some prominent campaigners and lawyers have argued that he should be arrested in the UK  and prosecuted for his role in the cover up of sexual abuse. Alternatively, these campaigners and lawyers say they will seek an arrest warrant by the International Criminal Court  on charges of crimes against humanity. The leaders of this campaign are eminent people and include Richard Dawkins, the well known Oxford Professor and, shall we say, atheist campaigner, Christopher Hitchens, another promiment atheist author and Geoffrey Robertson QC, a prominent British barrister who was a judge at the Special Court for Sierra Leone (see reports here and here  and an article by Richard Dawkins here).

 However, this attempt to get the Pope arrested and prosecuted in the UK has no chance of success as such an arrest would be in violation of international law. Likewise, the proposed prosecution by the International Criminal Court is most unlikely to get off the ground and similarly flawed as a matter of international law. However, these proposals raise some interesting issues of international law surrounding the status of the Pope, the Vatican and the Holy See.

The  reason the Pope cannot be arrested and prosecuted in the UK is because he is entitled to Head of State immunity.  Dawkins and Hitchens are not unaware of this problem.  Apparently they have enlisted Geoffrey Robertson QC to provide an opinion stating that the pope is not a head of State and therefore not entitled to head of State immunity. Robertson elaborates on this point in a recent article in the Guardian. Robertson argues that the Pope is not entitled head of State immunity as a matter of international law because the Vatican is not a State.  His arguments are simply incorrect. The Vatican has a tiny territory and a tiny population but it does fulfill the criteria for Statehood. As James Crawford puts it, in his authoritative work The Creation of States in International Law (2^nd ed, 2006), p. 225, after detailed analysis: “it is clear that the Vatican City is a State in international law, despite its size and special circumstances.” The size of population or territory are irrelevant for the purposes of Statehood.  What is important is that the entity possesses those criteria as well as the two other criteria for Statehood – which are: a government in effective control of the territory and independence (or what is called “capacity to enter into legal relations” in the words of the Montevideo Convention on the Rights and Duties of States 1935). The Vatican as a territorial entity does have a government: the Holy See which is headed by the Pope. As Crawford’s analysis makes clear, the Holy See has its own independent legal personality (about which more later on) and that personality predates the Statehood of the Vatican. However, the Holy See is also the government of the Vatican City State. More imporantly, the Vatican is independent of any other State. Its independence from Italy which is the State that could have had claims to control that territory is recognised in the Lateran Treaty of 1929. (more…)

The European Journal of International Law has introduced a new online submission system to cope with the  the large number of submissions that the journal receives. Since we expect that a manuscript submitted to EJIL is not submitted elsewhere, we have an obligation to handle the review process as expeditiously as possible. After much soul-searching, research and experiment, the Journal has decided to automate the mechanics of  manuscript processing. Thus, a new era begins for EJIL with the introduction of its ScholarOne Manuscript Management system. All submissions to our Journal will now be made online using this efficient and streamlined system. Authors, please read the instructions carefully (see here). The online submission page can be found here.

Authors, and readers, should rest assured that behind this new electronic front, our editorial staff will continue to provide the personal and individualized attention to journal production for which EJIL is well known and respected.

A prize has been established by the Society of International Economic Law (SIEL) and Cambridge University Press for the best essay submitted on any topic in any field of international economic law. The competition is open to all current undergraduate and graduate students and those who have graduated no earlier than five years before the submission deadline. Members of the SIEL Executive Council may not submit entries. The essay may not have been previously published.

 The prize consists of £200, as well as £300 of Cambridge University Press book vouchers and a three year subscription to the World Trade Review. The winning essay will be submitted to the World Trade Review for publication. The deadline for submission is 30 September 2010. For terms and conditions please see www.sielnet.org/essayprize