One of the pleasures of the Christmas season in the UK is that it is also the pantomime season. I will confess to being a relatively recent admirer of the “panto”. However I would never have guessed that a panto could be accused of violating IHL. Not raising issues about the violation of IHL but itself violating IHL! But in this panto season the British Red Cross has accused a panto of doing precisely this. And they have a point too! How so? See the story in Scotland’s Daily Record: (more…)

It was reported last month that the Kenyan Parliament passed a motion calling on the government to withdraw from the International Criminal Court (see posts by Kevin Jon Heller at Opinio Juris – here and here  - and the discussion by Charles Jalloh at International Criminal Law Ferment – here and here). This move followed the ICC Prosecutor’s  successful application to the Pre-Trial Chamber for issuance of summons for six senior Kenyan officials accused of crimes against humanity in connection with the post election violence in that country (see previous EJIL:Talk discussion here). As Kevin Jon Heller noted in his second post (here ), that Parliamentary motion was then denounced by the Prime Minister. However, it has now been reported in the Kenyan Press that the Kenyan governments (or parts of it) are engaged in an effort to lobby other African governments to adopt a resolution at the African Union Summit at the end of January which would call for withdrawal by African States from the ICC.

On Tuesday 10 January, the Kenyan Weekly Standard reported that :

Kenya is laying ground for a motion to be tabled at the African Union Summit in Ethiopia that could trigger withdrawal of African states from the Rome Statute that founded the International Criminal Court.

Sources in Government told The Standard, the plot to instigate the pullout from International Criminal Court is being driven by a shuttle diplomacy by some ministers within African capitals ahead of the January 30-31 AU meeting in Addis Ababa. This meeting is expected to set the agenda for the main Summit attended by African leaders in July.

…The Government, it was further reported, has or is about to assign five ministers with the envoy role in this mission of lobbying African states …

The AU deal Kenya is pursuing entails backing a motion moved by a African Arab state that may see the Africa Union summit this July endorse a choreographed pull out from the manacle of the Rome Statute. Because of the indictment of al-Bashir, the use of an Arab state to float the motion would strategically be seen as taking Kenya out of the picture, and making her look like just part of the wave of Africa’s protests against alleged bias against the continent by ICC. (more…)

Happy New Year to all our readers! We haven’t written much on this blog over the holiday season but much has happened in the world over the last few weeks with some significance for international law. There has been the release of the US cables by Wikileaks, the governmental crisis in Ivory Coast and (can you believe it!) a third case added to the docket of the International Tribunal for the Law of the Sea (see previous post on ITLOS). We will try to catch up on some of these developments over the coming weeks.

We start the year with a couple of posts by Jean d’Aspremont, Associate Professor of International Law at the Amsterdam Centre for International Law. His first post analyses developments in the current crisis in Ivory Coast regarding who is the government of the country. He considers the significance of these developments for the claims by States that they do not recognise governments and also for the criteria by which international law and international organizations determine who is the government of a State. His second piece, to be posted on Thursday will examine the merits and dangers of legal blogging. EJIL:Talk! has just turned two years old and this is an opportune time to reflect on the value (if any) added by this relatively new form of legal commentary and scholarship. Many thanks to Prof. d’Aspremont. We welcome your thoughts on these issues!

Last week the Assembly of States Parties (ASP) to the ICC held its Ninth Session in New York. One of the issues on the agenda of the 9th ASP was discussion of amendments to the ICC Statute. Some States had proposed amendments just prior to the Kampala Review Conference which did not make it on to the agenda at Kampala. Consideration of those amendments had been deferred until the 9th ASP where they were to be discussed by a Working Group on Amendments. One of the amendments was pushed by the African Union and proposed that Article 16 of the ICC Statute be amended to allow the General Assembly, in addition to the Security Council, to defer proceedings before the ICC. [Recently, I co-authored a paper (with Charles Jalloh and Max du Plessis on this AU proposal) which was discussed here and here.]  There was not enough time to discuss the substance of the proposed amendments at last week’s ASP and much of the discussion in the Working Group on Amendments  focussed on the process by which the Working Group would consider the amendments. The Working Group decided that it would hold inter-sessional meetings to carry out further discussions of the amendments.

Although the Article 16 amendment was first proposed in a meeting of African States parties to the Rome Statute, held in Nov. 2009, it was never quite clear how much support the proposal actually had among African States. It was therefore going to be interesting to see whether African States would continue to push for the amendment. Apparently, African States were not particularly vocal at the meeting. My co-author Charles Jalloh reports on his blog that

To begin with, for all the noise that the AU and some African States had been making about the proposal to amend Article 16 of the Rome Statute, none had come into that meeting prepared to raise the proposal. The South African delegation was present but was pretty silent, considering that it was the previous mover of the African proposal at the Eight ASP in The Hague.  In fact, throughout the first day of open ended discussions regarding the amendments, only one African State (South Africa) took the floor to weigh in on procedural matters – despite the apparent presence of a large contingent of delegates from the region at the Ninth ASP.

Charles suggests a number of possible reasons for this silence by African States, the first of which is that the

the silence may be a function of a lack of agreement by individual states with the position espoused by the political leadership of the African Union (AU) based in Addis. It may be that some African countries simply do not wish to join the anti-ICC bandwagon, especially when it comes to Bashir and the Sudan situation where, after all, thousands upon thousands of black Africans have been killed by state-sponsored militia supported, or at least, condoned by Khartoum.

This explanation would seem to be consistent with the position taken by African States with regard to the Bashir indictment. There seems to be heated discussions in Addis with strongly worded resolutions but then not much follow up on this apparently heated feeling elsewhere. This was precisely what happened with regard to the AU’s call for the Security Council to defer the Bashir proceedings. There does not appear to have been much follow up on this in New York by African States, despite the fact that there are always three African States on the Council. 

Some months ago we noted that the UK’s coalition government was planning to introduce legislation that would restrict the application of universal jurisdiction in the UK. The government was not proposing to restrict the scope of jurisdiction of UK courts over universal jurisdiction offences but to restrict the right of private persons to secure arrest warrants in respect of such offences. This was a matter of concern to some foreign governments most notably Israel after attempts to arrest a number of Israeli officials in the UK. As Ruvi Ziegler notes in a comment to my earlier post, the government has now put those proposals in the Police Reform and Social Responsibility Bill published last week. (more…)

The International Bar Association has published the latest issue of their magazine, Equality of Arm Review (EQ)  which is dedicated to the ICC Review Conference held in Kampala this past summer. The issue contains articles by 

ICC President Sang-Hyun Song, Convenor of the Coalition for the ICC Bill Pace, Ugandan Ambassador Mirjam Blaak, Director of Legal Affairs at the Commonwealth Secretariat in London Akbar Khan, and prominent academics William Schabas and [yours truly]

The BBC is reporting that Argentina and Uruguay have settled a seven year environmental dispute concerning a pulp mill. The dispute was submitted to the ICJ which rendered its judgment in April this year.   According to the BBC:

 Argentina and Uruguay both say they are happy after a deal was reached to end their long-running row over a pulp mill on the banks of their shared river.

The breakthrough came when their foreign ministers signed an accord setting out how the plant and the river would be environmentally monitored.

Argentina argued the mill polluted the river, while Uruguay said strict environmental codes were followed.

The dispute saw frequent protests on the Argentine side and strained ties.

“I’m very happy with the accord,” Uruguayan President Jose Mujica said, while Argentine Foreign Minister Hector Timerman used similar language, tweeting that “both governments are very satisfied”.

Mr Timerman and his Uruguayan counterpart, Luis Almagro, signed an accord late on Sunday, finessing an earlier agreement reached by the two countries in July.

The accord sets up a scientific committee composed of experts from both nations which will monitor the pollution levels in the River Uruguay and within the mill.

The process by which this dispute has been settled illustrates the role that the ICJ and international tribunals can play in dispute settlement. Those who view the international legal system by comparison with domestic legal systems will comment on the general absence of effective enforcement mechanisms in international law. However, this analogy is misleading in many respects. In the first place there are significant aspects of domestic law (particularly domestic constitutional and public law) where mechanisms of enforcing judicial decisions are similarly lacking. Secondly, a lack of enforcement mechanisms by no means indicates a failure of  judicial or arbitral dispute settlement . That view ignores the ways in which submission of disputes to adjudicative mechanisms can work to either get the parties to the negotiating table or can play a significant role within the negotiating process. (more…)

The discontinuance of the Certain Criminal Proceedings in France (Republic of the Congo v. France) (ICJ Press Release) which Marko blogged about yesterday is rather strange indeed given the other news that has emerged recently regarding possible criminal proceedings in France against the Congolese Head of State. As the ICJ Press Release relating to the discontinuance of the case notes, the case brought by Congo against France before the ICJ:

seek[s] the annulment of the investigation and prosecution measures taken by the French judicial authorities further to a complaint for crimes against humanity and torture filed by various associations against the President of the Republic of the Congo, Denis Sassou Nguesso, the Congolese Minister of the Interior, Pierre Oba, and other individuals including General Norbert Dabira, Inspector-General of the Congolese Armed Forces.

Ordinarily, one would have thought that a discontinuance of the proceedings indicates that the dispute underlying the proceedings has been solved. However, just last week it was announced that the Cour de Cassation in France has decided that NGO’s, including Transparency International, may launch criminal proceedings in France in relation to allegations of corruption (and human rights violations) by three foreign heads of State, nameley Denis Sassou Nguesso (Rep. of Congo); Oman Bongo (formerly head of State of Gabon, now deceased and Obiang Mba sogo (Equitorial Guinea).  See on these developments, the post over at IntLawGrrls. So the underlying dispute with regard to the use of French courts to pursue cases against Congolese leaders is by no means resolved. (more…)

Professor Bill Schabas has written on his blog  (see his post here) about the recent paper co-authored by Charles Jalloh, Max du Plessis and me on the African Union’s (AU) proposal to amend Article 16 of the ICC Statute (see earlier post on this paper here). Prof. Schabas was a member of the expert group convened by the Institute for Security Studies to provide advice and reflection on the paper and it was a pleasure to engage with him on the issue. As readers will see from his post, he is concerned about the tension that has arisen between African States and the ICC. He is also concerned that this tension arises out of what he would consider to be the misguided view that decisions regarding ICC prosecutions should be taken without reference to broader political considerations and in particular without reference to the effect of those prosecutions on stability and peace. He says:

Africa’s declining enthusiasm for the Court has been manifested in a number of ways, including the refusal of certain ICC member states to comply with the Al Bashir arrest warrant. Africa’s tension with the Court is profoundly troubling.
This report, written by three Africans, addresses the African concerns with great understanding and sympathy. It concludes that the legal obstacles to the proposed amendment to article 16 are actually not so serious. The real problem is political. The report suggests there will not be sufficient support among members of the Court. I think that getting general support within the United Nations, or within the States Parties to the Court, is probably not such an obstacle. After all, article 16 was not exactly a careful, balanced attempt to address the relationship between peace and justice. Rather, it was a nasty compromise with the five permanent members of the Security Council, who thought (and probably still think) that in any case the Security Council has the power to stop the Court at any time, even permanently. The real problem with amending article 16 is the permanent five.
It is often said that involving the General Assembly in deferral of prosecution would only ‘further politicise’ the Court. But it is already politicised. I don’t see why making the politicisation of the Court more democratic, by involving the General Assembly, aggravates a problem. In that sense, the African Union proposal makes fine sense. The heart of the matter, I think, is that there is indeed a role for political considerations in the identification of situations for prosecution before the Court, and in decisions to defer prosecution. It is problematic that these decisions are essentially the remit of a single individual, the Prosecutor of the Court. Leaving the Security Council as the only body able to bring such political considerations to bear is also unacceptable, for obvious reasons.
The African Union has probably not found the answer to this conundrum, but its amendment helps in the discussion about how to relate political considerations to choices about prosecution. The current mantra that suggests the Prosecutor is ‘independent’ and indifferent to political matters doesn’t make sense and doesn’t correspond to reality. Like all of us, he has his own views about the world and they are reflected in the determinations that he makes. But many continue to promote the fiction that the Prosecutor is guided only by judicial criteria, such as the mysterious, enigmatic concept of ‘gravity’.

There is a section in the report about impunity in Sudan. It seems accurate enough, except I tend to think it is beside the point. We can all agree that impunity in Sudan needs to be addressed, yet we must also bear in mind the importance of ending existing conflicts and preventing new ones in that unhappy country. African political leaders seem in broad agreement that prosecuting Al Bashir at this sensitive point, with a referendum on the breakup of the country only weeks away, will do more harm than good. Their views are largely dismissed by what I will call the ‘international justice community’. Personally, I am inclined to think that the views of African political leaders are extremely important. I would trade a prosecution of Al Bashir for the promise of peace in Sudan in a heartbeat.

In our discussions with the expert group one of the most contentious issues was the proper meaning to be given to Article 53 of the Rome Statute, which speaks of “interests of justice” as a factor to be taken into account in decision-making about ICC prosecutions. (more…)

One of the aspects of the stand-off between the African Union (AU) and the International Criminal Court (ICC) regarding the proceedings against Sudanese President Omar Al Bashir is the call by AU for the United Nations Security Council to invoke Article 16 of the ICC Statute and request a deferral of the ICC prosecution of Bashir. The organs of the AU have made this call several times in the past 18 months but the Security Council has not acceded to this request. This has led to a feeling on the part of some African States that African concerns are being marginalised and that the structure of the UN Security Council does not take sufficient account of their interests. At a Ministerial meeting of African parties to the ICC Statute, held last November, African States recommended that Article 16 of the ICC Statute be amended to allow the UN General Assembly to make requests for deferrals of ICC investigations and prosecutions. The obvious aim of the proposal was to dilute the power of the SC with regard to ICC prosecutions. The proposed amendment reads as follows:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

A State with jurisdiction over a situation before the Court may request the UN Security Council to defer a matter before the Court as provided for … above.

Where the UN Security Council fails to decide on the request by the state concerned within six (6) months of receipt of the request, the requesting Party may request the UN General Assembly to assume the Security Council’s responsibility under para 1 consistent with Resolution 377(v) of the UN General Assembly.

Although the proposal was made in the lead up to the Kampala review conference which considered some amendments to the ICC Statute, it was made too late to be on the agenda for that conference. The recommendation was made just days before the 8th session of the meeting of the Assembly of States Parties (ASP) to the ICC Statute. The proposal was put forward at that 8th session and again at the resumed 8th session of the ICC ASP in March 2010 but it was decided not to consider the proposal in Kampala in June 2010 but to defer it to the 9th ASP. The 9th ASP will take place in December this year and it is likely that the AU will be pushing its proposal at that meeting since it was reiterated by the AU Assembly of Heads of State earlier this year.

So what should the ASP do with the AU’s proposal? The proposal raises issues not only with regard to the ICC but also raises questions about the division of competence between the UN Security Council and the UN General Assembly. Is the proposed amendment not merely an amendment to the ICC Statute but also an indirect way of amending the UN Charter? For example, would the amendment be compatible with Article 12 of the UN Charter which states that the Gen. Assembly may not make recommendations with regard to situations or dispute in respect of which the SC is exercising its functions?  What are the prospects for success for this amendment? Furthermore, quite apart from the specifics of Article 16, how should the concerns of some African States regarding the operation of the ICC be addressed? Are those concerns valid and can they be addressed without amendment to the ICC Statute?

In a recent paper produced for the South African based Institute for Security Studies, Max du Plessis (University of KwaZulu Natal), Charles Jalloh (University of Pittsburgh) and I address these issues concerning the AU concerns about the ICC.

This African expert study on the African Union’s (AU) concerns about article 16 of the Rome Statute of the International Criminal Court (ICC) seeks to articulate a clearer picture of the law and politics of article 16 deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC) to invoke article 16 to suspend the processes initiated by the ICC against President Omar al-Bashir of Sudan. The lack of a formal reply by the UNSC to the AU request has resulted in AU member states deciding to withhold cooperation from the ICC in respect of the arrest and surrender of Bashir. In light of the AU’s continued concerns, questions have arisen about the UNSC’s exercise of the controversial deferral power contained in article 16. This culminated in the AU proposing that article 16 be amended to empower the UN General Assembly to act should the UNSC fail to decide on a deferral request after six months.

Although states parties to the Rome Statute have shown little support for the AU’s proposed amendment to article 16, the merits of the AU proposal must be considered. A failure to engage with African government concerns about the deferral provision could further damage the ICC’s credibility in Africa. Constructive suggestions about the ‘article 16 problem’ must be developed in order to contribute towards resolving the negative stance that some African countries have taken towards the ICC. The challenge is to devise both legally sound and politically palatable options. (more…)