Yesterday the United Nations General Assembly and the Security Council elected Julia Sebutinde to be a Judge at the International Court of Justice (see UN press release). Readers may recall from an earlier post that the Security Council and General Assembly elected four judges to the ICJ last month but most unusually failed to agree on the fifth judge to be elected. The ICJ Statute requires that candidates obtain an absolute majority in both the Security Council and the General Assembly. After several rounds of voting Judge Abdul Koroma (Sierra Leone), who is the currently the longest serving judge at the ICJ, consistently obtained a majority in the Security Council but Judge Julia Sebutinde consistently got more votes in the General Assembly. As I reported in my previous post, the Statute provides a procedure that may be used to resolve this deadlock. However, both organs chose to postpone voting till a later date and yesterday Judge Sebutinde again won in the General Assembly but this time also won in the Security Council. Judge Sebutinde got 97 votes in the General Assembly to Judge Koroma’s 93 and she obtained 9 votes in the Security Council to Judge Koroma’s 6.

Judge Sebutinde was the candidate endorsed by the African Union, and her country Uganda had expected that she would receive the support of African countries. Indeed, it has been reported that Uganda and Sierra Leone had an agreement that Sierra Leone would withdraw the candidature of Judge Koroma. Sierra Leone did not do this and Judge Koroma proved to be a popular candidate when the elections came round.

Judge Sebutinde is third woman elected to the ICJ in the space of just 18 months (here and here), which is great news, especially as there had only been one female judge prior to this in the entire history of the ICJ and PCIJ (apart from a couple of female ad hoc judges). Judge Sebutinde is currently a Judge at the Special Court for Sierra Leone where she was Presiding Judge in the trial of former Liberian President Charles Taylor. Before this, she was a Judge in the Ugandan High Court.

It has now been announced by the International Criminal Court that Fatou Bensouda, the current ICC Deputy Prosecutor will be the sole candidate for election to be Prosecutor of the ICC. The decision to nominate her as the sole candidate This means that Fatou Bensouda will be the next ICC Prosecutor.  The elections will take place in December and she will take over from Luis Moreno-Ocampo in June next year. As I stated in a previous post of a couple of days ago the list of candidates has been whittled down from the four recommended by a search committee and there was a strong feeling that the next prosecutor should be African. For the reasons that I gave in that earlier post Fatou Bensouda seems to be an excellent choice and has been the front runner in this race for quite some time. She is from Gambia (though she studied law in Nigeria – in fact at the same University I went to)  and was the candidate endorsed by the African Union. However, she has also been vigorous in defending the  prosecution by the ICC of Africans. I had the pleasure of speaking with her at a workshop on the ICC held in Botswana (and also here) in July of this year . In her speech, “Does the ICC Target Africa: Is the ICC Selectively Prosecuting Cases?”   she said:

“Let me turn squarely to the question you would like answer today. All the persons accused by the ICC are African. That is true. Why? Because the Rome Statute says that we should select the gravest situations under the Court’s jurisdiction. There are also more than 5 million African victimes displaced, more than 40,000 African victims killed, hundreds of thousands of African children transformed into killers and rapists, thousands of African victims raped. In Northern Uganda, the LRA displaced more than a million people, and abducted boys and girls and forced them to kill. We cannot turn a blind eye to justice for 2.5 million people in Darfur, for 2 mllion victims in the DRC. The Ituri region in DRC is still plagued by militia killings, looting and raping. These African victims are calling for more ICC intervention, not less.”

She then went on to note that in six of the situations currently before the Court, African leaders had requested ICC intervention.

She is taking on a job with immense responsibilities but appears very well suited to the task. We wish her all the very best!

The International Criminal Court has announced that the list of candidates for election to be the next Prosecutor of the ICC has been narrowed to two. The elections will be held at the Tenth Session of the Assembly of States Parties to the Statute of the ICC which will take place in December in New York. The ICC issued a statement yesterday in which it announced that:

After informal consultations among States Parties, it was decided to narrow the list to two candidates: Ms. Fatou Bensouda (Gambia) and Mr. Mohamed Chande Othman (United Republic of Tanzania). At the 1 December informal consultations, to be held in New York, States Parties will see if there is consensus on one candidate.

The process of searching for a prosecutor to replace Luis Moreno Ocampo has been ongoing for a while. A while ago the Assembly of States Parties (ASP) decided that  “every effort shall be made to elect the Prosecutor by consensus.” (ICC-ASP/3/Res.6). In order to facilitate the process, the Assembly appointed a search committee which reported in October and put forward four candidates for electon as prosecutor. In addition to Fatou Bensouda and Mohamed Othman, the other two candidates on the search committee’s list were Andrew T. Cayley (United Kingdom) and Robert Petit (Canada). After the report was issued, a process of consultation led by Ambassador Christian Wenaweser of Liechtenstein (President of the ICC ASP) has resulted in the two non-African candidates being knocked out from further consideration. That process of consultation was described by Amb. Wenaweser this this statement issued last week. Part of that statement makes clear, what has been suspected for a while. ICC Parties are keen that the next Prosecutor be African. Amb Wenaweser stated:

Second, there is a pervasive sentiment that the next Prosecutor should come from Africa. While this view has been put forward in very different ways and some of you have expressed explicit support for candidates from other parts of the world, we feel nevertheless safe to conclude that a consensus will only be possible if indeed we focus on the two names from the African region. Since last Friday, the consultations held have therefore focused on the two potential African candidates. Our consultations since have indicated that this is indeed the right direction and that there is general acceptance of this approach.

As readers know, all the situations currently being investigated by the ICC and where prosecutions have arisen are from Africa. Also as  we have covered on this blog several times there has been intense criticisim by the African Union (and some Afrian States) of the ICC with there being an accusation of bias against Africa. It is all of this that has led to the feeling that next Prosecutor should come from Africa. It is also worth noting that African Union criticism of the ICC has included personal criticism of the current prosecutor Luis Moreno Ocampo.

The election of an African prosecutor should help to deflect some of this criticism and should help to reduce the tensions between Africa and the ICC. I do think that countering the perception that the ICC is not an anti-African court is very important. It is also important for African and indeed the world to see that the court is not an instrument by others against Africa but that Africa and Africans also stand against the international crimes that the Court was set up to prosecute.

However, it is also important that whoever is elected is not seen as elected simply because he or she is African. The two candidates left are two very qualified candidates. Fatou Bensouda has been Deputy Prosecutor at the ICC for several years and before that was senior legal adviser at the International Criminal Tribunal for Rwanda. She has also been Attorney General in Gambia. Her CV is not only distinguished but I think those who have met her and spent time with her, as I have had the pleasure of doing, know that she is impressive and very capable. I don’t know Mohamed Othman but his CV is also very distinguished. He is Chief Justice in Tanzania and before this was Prosecutor General at the Special Panels for Serious Crimes established by the UN in East Timor. He was previously Chief of Prosecutions at the ICTR.

Consultations are ongoing in New York in an attempt to narrow the field to one and to arrive at a consensus candidate. We might know by tomorrow who that one is. Fatou Bensouda is the candidate endorsed by the African Union and seems very much to be the front runner for the position. 

In a previous post, I dealt with the question whether Libya has an obligation to surrender Saif Al Islam Gaddafi pending any admissibility challenges it may choose to make. To put the question in other terms, if Libya does make an admissibility challenge may it hold on to Saif for the duration of the time it takes for that challenge to be determined by the ICC. The discussion that has taken place on this issue thus far has focussed on the interpretation of the relevant provisions of the Rome Statute.  My previous post also focussed exclusively on the Rome Statute. However, thus far commentators on this question have simply taken it for granted that the Rome Statute provides the applicable law and regime regarding the obligation of Libya to cooperate. The assumption has also been that if the Rome Statute provides a basis on which Libya may suspend its obligation to cooperate with the ICC then Libya is entitled to rely on the Statute’s provisions allowing such suspension. Although this may well be right, it cannot simply be assumed. There is a question as to whether in the case of a Security Council referral, the obligation of cooperation is one which is determined by the Statute or whether that obligation is determined instead by the Security Council’s resolution that makes the referral. In short, can the Security Council modify the obligation of the State to cooperate such that the State has a more (or less) extensive obligation than is provided for in the Rome Statute?

The Rome Statute provides an obligation for States parties to cooperate with the ICC but also provides many exceptions to that general obligation to cooperate, some of which I referred to in my earlier post on Saif Gadaffi. However, in the two cases when the Security Council has referred situations to the ICC, the Council has decided that the relevant States (Sudan and Libya):

 “shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” [see para 5 of Security Council Resolution 1970, by which the Security Council referred the Libya to the ICC, the Council].

Does the obligation to “cooperate fully” mean an obligation to cooperate fully as required by, and only in circumstances required by the Statute or does it mean something else? In the particular context of the obligation to surrender Saif Gaddafi, I have argued that the Rome Statute permits a suspension of this obligation where a challenge to admissibility is made. However, it might be argued that what the full cooperation provided for SC Res 1970 requires is that Libya surrender Saif to the Court, as the Court has requested. Libya is not a party to the Rome Statute, and is therefore not bound by that treaty (qua treaty). It also does not have rights as such under the treaty. Any obligations that Libya has with regard to the International Criminal Court must be derived from the Security Council resolution which refers the Libyan situation to the ICC.

The question whether the Security Council may modify the cooperation obligations provided for in the Statute was raised by Goran Sluiter, in 2008, shortly after the Sudan referral in an article entitled “Obtaining Cooperation from Sudan – Where is the Law?” In that article, Professor Sluiter noted that the way in which the Security Council had framed Sudan’s obligation of cooperation with the ICC left it unclear whether Sudan could invoke grounds for refusing cooperation which were provided for in the Statute.

The first question here is whether, in the context of an ICC referral, the Council can impose obligations on States which go beyond what the Rome Statute has imposed. It seems clear to me that the Council can do this. The powers of the Council are not limited by the Rome Statute. The Council’s powers are determined by the Charter and not by the Rome Statute. (more…)

Since the capture of Saif Al Islam Gaddafi last week there have been questions asked about whether he ought to be tried in Libya or by the International Court Criminal which issued an arrest warrant for him in June. The Rome Statute of the ICC includes the principle of complementarity which means that the ICC must defer to genuine national proceedings. If the Libyan authorities are serious about conducting domestic proceedings against Saif they would be entitled to challenge the admissibility of the ICC proceedings under Article 19 of the ICC Statute.

 This week there has been a very interesting discussion of whether the Libyan authorities are entitled to hold Saif while they challenge admissibility or does Libya have an obligation to surrender  Saif Al Islam Gaddafi to the ICC pending the determination of any admissibility challenges. For a really good exchange of views, see posts by Kevin Jon Heller at Opinio Juris and by the equally excellent Jens David Ohlin (who teaches at Cornell Law School) at his new blog Lieber Code. Kevin takes the view that Libya has a continuing obligation to surrender Saif even if it challenges admissibility whereas  Jens takes the view that Libya’s surrender obligations will be suspended if it challenges admissibility. The discussion has focussed on the ambiguity in the Rome Statute regarding  surrender obligations in case of challenges to jurisdiction and admissibility. My own thinking on this issue is more in line with Jens. In this post, I set out my line of reasoning regarding the interpretation of the key provisions of the Rome Statute but would very much welcome comments on the arguments.n

However, I should note that the analysis that follows deals only with the Rome Statute. In the discussion between Kevin and Jens there is an assumption that it is the Rome Statute that is determinative of this matter. However, there is the possibility that the matter is actually to be determined by the Security Council resolution which refers the Libyan situation to the ICC. In short, is it possible that the Security Council may have imposed obligations on Libya which are different from (more extensive than) those contained in the Statute? I will deal with this in a later post. (more…)

At the end of October,  I had the pleasure of spending a few days at the UN in New York where I was invited to speak to the annual meeting of the Legal Advisers of Foreign Ministers of Member States of the UN. The annual meeting of Legal Advisers is held during what has come to be known as International Law Week at the UN. The meeting takes place during the period in which the International Law Commission’s report is being debated in the Sixth (Legal) Committee of the General Assembly and around the time the President of the International Court of Justice delivers its annual report to the UN. In the period I was there the President of the International Criminal Court also spoke to the General Assembly. It was also an interesting time to be there because this was the time in which candidates for elections to the various UN legal bodies show up in New York to “campaign” (if that is not too ugly a word). There are also a number of receptions held in the evenings by State’s missions to the UN to promote their candidates. There are quite a number of elections to legal bodies this year so there was a lot of this sort of promotional activity. This year there are elections to the ICJ (see here), elections to the International Law Commission (which were held yesterday), elections for ICC Prosecutor and for a number of ICC judges.

The annual meeting of the Legal Advisers was a 2 day affair and I was invited to speak on a panel on the Contribution of the International Court of Justice to the Development of International Law. My co-panellists were President Hisashi Owada of the ICJ and UN Under-Secretary General Patricia O’Brien (the UN’s Legal Counsel). The panel was chaired by Ambassador Anders Ronquist who is the Director General for Legal Affairs at the Swedish Ministry for Foreign Affairs (and sitting to my right was Alan Kessel the Legal Adviser of the Canadian Dept of Foreign Affairs who was one of the co-ordinators of the Meeting of Legal Advisers).

President Owada spoke about the contribution made by the ICJ through it’s advisory jurisdiction. Patricia O’Brien spoke about the contribution of the ICJ to the development of the law relating to the UN touching in particular on questions of personality and immunity. I spoke about the contribution of the ICJ to the development of the law relating to the use of force. My speech is below. There was an interesting question and answer session following our session and I got lots of good questions about issues I covered as well as questions about issues I did not cover (eg about cyberwarfare).

(more…)

Last week the United Nations General Assembly and Security Council conducted  elections to elect judges to the International Court of Justice (ICJ) (see UN Press Releases here and here). Under Articles 4 and 8 of the Statute of the ICJ, ICJ judges are elected by an absolute majority of General Assembly and the Security Council which are to meet separately. Five judges are elected to the Court every 3 years with each judge being elected to a 9 year term. The usual procedure for the elections is that both the GA and the SC meet separately, but concurrently. Once five judges have obtained an absolute majority in one organ the President of that organ will notify the President of the other organ of the names that candidate. In the election held last week, four candidates received an absolute majority in each organ and were elected to the Court. Three of those were judges were reelected to the Court, namely: President Hisashi Owada (Japan), Vice President Peter Tomka (Slovakia) and Xue Hanqin (China) who was elected to the Court for the first time last year (see previous post here). In addition, one new judge Professor Giorgio Gaja (Italy) was elected. Professor Gaja is a member of the International Law Commission and was special rapporteur on the recently adopted articles on the responsibility of international organizations (see posts here and here). When he takes up his position, Professor Gaja will effectively replace Judge Bruno Simma on the Court. These four judges were elected in the first round of balloting in the General Assembly and the Security Council.

Unusually, the GA and SC were unable to fill the fifth vacancy on the Court as both organs failed to agree on a candidate for that vacancy. That vacancy was effectively reserved for an African candidate and was contested by Judge Abdul Koroma (Sierra Leone) who is the most senior judge at the ICJ, having already served on the Court for 18 years, and Judge Julia Sebutinde (Uganda) who is the Presiding Judge in the Trial Chamber of the Special Court for Sierra Leone hearing the Charles Taylor case. Judge Koroma obtained a majority in each of the five rounds of balloting held in the Security Council. However, though the General Assembly had seven rounds of balloting, Judge Koroma failed to obtain a majority in that organ and it was Judge Sebutinde who obtained a majority in five of those rounds. In the last four rounds of balloting in the GA the votes were extremely close with there being a difference of no more than four votes (out of 193) between the two candidates in each of those rounds. In fact in the 7^th round, Judge Sebutinde only just obtained an absolute majority of votes (97) and Judge Koroma obtained just one vote less (96).

So what happens next? Both organs decided to adjourn and to continue the voting on a date to be announced later (see UN Press Releases here and here). However, the Statute of the ICJ appears to suggest an alternative course of action in the case of disagreement between the two electing organs. (more…)

From time to time we have had discussions on this blog about the classification of extraterritorial or transnational conflicts between States and non-State groups. In other words, when States use force abroad against non-State groups, does this lead to an armed conflict between the State and the non-State group? If so, what law applies to that armed conflict, the law of international armed conflict or that of non-international armed conflicts. In most cases, when we’ve had this discussion the focus has been the situation between the US and Al Qaeda.  Earlier discussions of this issue can be found in comments to Marko’s post of May 2010 on What Exactly Internationalizes an Internal Armed Conflict?; to Constantin von der Groeben’s post of April 2010 and to my post of March 2009 on the Obama’s Administrations Interpretation of the Authority to Detain At Guantanamo: Some Areas of Progress. As readers will have seen there was renewed discussion of this issue in the comments on Alon Margalit’s recent post on the killing of Bin Laden .

I have given quite a lot of thought to this issue and have recently set out my thoughts on the issue as part of a chapter I am writing on the classification of armed conflicts. The chapter is part of a project on Classification of Conflicts being undertaken under the auspices of the International Law Programme at Chatham House. The project is led by Elizabeth Wilmhurst and includes distinguished academics and practitioners of  international humanitarian law (mainly on this side of the Atlantic). Members of the group include Michael Schmitt (now at the US Naval War College), Jelena Pejic at the ICRC, Professor Francoise Hampson (Essex University), Professor Iain Scobbie (SOAS) and Dr Noam Lubell (now also at Essex). I am a member of the group. Each of us is tasked with writing a chapter and most chapters deal with issues relating to the classification of particular conflicts (eg Iraq, Afghanistan, Gaza, Lebanon, Colombia, DRC, Al Qaeda). However, some of the chapters deal with general conceptual issues. We have had several delightful meetings at Chatham House to discuss and revise our chapters. Earlier this year, we also held a weekend workshop in Oxford (hosted by the Oxford Institute for Ethics, Law and Armed Conflict).  My own chapter seeks to provide a general overview of the legal concepts relevant to classification. The chapter (and indeed the result of the entire project) are not yet published but should be soon. We expect the essays to be collected in a book on Classification of Conflicts. In my chapter, I deal with the history of the distinction between international and non-international armed  conflict, the consequences of the distinction and whether it still has validity.  The chapter then discusses legal concepts relevant to the two categories, including the differences between a non-international conflict and other  violence and conflicts in which UN ‘blue helmets’ are engaged. I conclude with a discussion of extraterritorial conflicts between States and non-State groups.

Those who have read our earlier discussions will know that my view is that where a State uses force against a non-State group on the territory of another State, without the consent of that latter State, the State using force is bound by the law applicable in international armed conflicts. In summary, the use of force by one State on the territory of another, without the consent of the latter leads to an international armd conflict between the two States. Also that conflict is inextricably linked with any conflict with the non-State actor such that the State using force will have to follow the law applicable in international armed conflicts. In my draft, I provide a sustained defence of this position and how it accords with international practice. I also show how the position has the support of most international tribunals. The relevant section of my draft chapter now follows. I invite your comments. (more…)

Last week I took part in a BBC radio programme (“Iconoclasts”) debating whether the Geneva Conventions should apply to the war against terrorism. The programme (which can be heard by clicking here) addressed three issues:

- Do the Geneva Conventions apply to ‘the war on terror’?

- What is the difference between ‘tough interrogation’ and torture?

- If the Geneva Conventions needs updating or replacing, what should the new rules be?

The Iconoclast in the programme was Charlie Wolf, an American radio presenter and commentator based in the UK. He was formerly communications director of Republicans Abroad UK. In the programme, he took a similar position to that  first taken by the Bush Administration after September 11, i.e. that the”war on terror” was not within the contemplation of the drafters of the Geneva Convention and that the terrorists did not deserve the protections of the Geneva Convention as they did not respect them. These issues were addressed by the US Supreme Court in 2006, in Hamdan v. Rumsfeld when it ruled that at least one provision of the Geneva Conventions, namely Common Article 3, applies to the US conflict with Al Qaeda. After that case, the Bush Administration changed its position and argued that it was engaged in a non-international armed conflict with Al Qaeda to which the rules of international humanitarian law applicable in non-international conflicts applied.  Of course, there is a broader question as to whether it can be properly argued that there is a global war on terror or even a global war with Al Qaeda which qualifies as an armed conflict under international law.

My co-panelists in the programme, in addition to Charlie Wolf, were Richard Norton-Taylor, the Guardian Newspaper’s Security Editor and Robert Barnidge Jr who teaches international law at the University of Reading in the UK.

Earlier this month, US President Barrack Obama directed the National Security Advisor to create an Atrocities Prevention Board which will be tasked with co-ordinating the US government’s policies on the prevention of mass atrocities and genocide. In addition, the President also launced a US interagency review which will, inter alia, develop the membership, mandate and structure of the Atrocities Prevention Board but which will also identify:

steps toward creating a comprehensive policy framework for preventing mass atrocities, including but not limited to:  conducting an inventory of existing tools and authorities across the Government that can be drawn upon to prevent atrocities; identifying new tools or capabilities that may be required; identifying how we can better support and train our foreign and armed services, development professionals, and build the capacity of key regional allies and partners, in order to be better prepared to prevent and respond to mass atrocities or genocide.

In a Presidential Study Directive on Mass Atrocities, issued on 4 August, the President stated that:

Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.

Our security is affected when masses of civilians are slaughtered, refugees flow across borders, and murderers wreak havoc on regional stability and livelihoods.  America’s reputation suffers, and our ability to bring about change is constrained, when we are perceived as idle in the face of mass atrocities and genocide.  Unfortunately, history has taught us that our pursuit of a world where states do not systematically slaughter civilians will not come to fruition without concerted and coordinated effort.

Governmental engagement on atrocities and genocide too often arrives too late, when opportunities for prevention or low-cost, low-risk action have been missed.  By the time these issues have commanded the attention of senior policy makers, the menu of options has shrunk considerably and the costs of action have risen.

In the face of a potential mass atrocity, our options are never limited to either sending in the military or standing by and doing nothing.  The actions that can be taken are many    they range from economic to diplomatic interventions, and from non combat military actions to outright intervention.  But ensuring that the full range of options is available requires a level of governmental organization that matches the methodical organization characteristic of mass killings.

Sixty six years since the Holocaust and 17 years after Rwanda, the United States still lacks a comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide.  This has left us ill prepared to engage early, proactively, and decisively to prevent threats from evolving into large scale civilian atrocities.

The work of this Review and Board will be of great interest to those academics working on prevention of genocide and other international crimes. In recent years, there has been renewed focus on the question of prevention of mass atrocity. Indeed, the Oxford Institute for Ethics, Law and Armed Conflict (of which I am Co-Director) is engaged in a project on “Prevention and Responsibility to Protect” which is looking at these very questions. The project is led by my colleague, Prof. Jennifer Welsh.