The BBC reports that a number of European Union States have summoned Kenyan Ambassadors asking them to explain why Kenya failed to arrest Sudanese President Bashir when he visited Kenya last week. The International Criminal Court has issued two warrants for the arrest of President Bashir.

“They emphasized that the UK expects the government of Kenya to stand by its obligations under the Rome Statute, and as a UN member state,” a statement from the British High Commission in Nairobi said.

Should this be regarded as practice relevant for the interpretation of the relevant parts of the Statute of the International Criminal Court (Rome Statute)? Art. 31(3)a of the Vienna Convention on the Law of Treaties provides that in the interpretation of a treaty the interpreter shall take into account “subsequent practice in the application of the treaty”. Is the act of European countries with regard to Kenya and Bashir subsequent practice indicating the lack of immunity of Bashir though he is a sitting head of State? I think it is but one would have to set against it the practice of African States which seems to be the opposite. For subsequent practice to count under Art. 31 it must “establish the agreement of the parties regarding [the treaty's] interpretation.”

Sudanese President Omar Bashir visited Kenya yesterday to take part in the celebration of the new Kenyan Constitution. As readers will know, the International Criminal Court (ICC) has issued two arrest warrants for President Bashir in connnection with charges of war crimes, crimes against humanity and genocide. President Bashir’s visit to Kenya is his second visit to an ICC State party. Last month Bashir visited Chad which is also a party to the ICC Statute. Both Kenya and Chad invited Bashir and both refused to comply with the ICC arrest warrants which request State parties to arrest and surrender Bashir. ICC Pre Trial Chamber I, which issued the arrest warrants, issued decisions (see here and here)  yesterday informing the United Nations Security Council and the ICC Assembly of State Parties of the visits by Bashir “in order for them to take any measure they may deem appropriate”. In the ICC decision regarding Kenya, the Chamber stated that:

“the Republic of Kenya has a clear obligation to cooperate with the Court in relation to the enforcement of such warrants of arrest, which stems both from the United Nations Security Council Resolution 1593(2005), whereby the United Nations Security Council “urge[d] all States and concerned regional and other international organizations to cooperate fully” with the Court, and from article 87 of the Statute of the Court, to which the Republic of Kenya is a State Party” [The decision with respect to Chad has a similar paragraph except that, interestingly, that decision only states that Chad has an obligation to cooperate - with the word "clear" being omitted from the first line of the paragraph.]

ICC judges have to take a large share of the blame for this situation. Despite the assertion that Kenya has a clear obligation to arrest President Bashir, the matter is by no means clear. As is well known, a decent argument can be made that Bashir, being a serving head of State is immune from arrest in other States (see the article by Professor Paola Gaeta which makes this case). I have argued the opposite in an article I wrote last year (see this post which refers to both articles). Despite very reasonable doubts and despite the importance of the issue, ICC judges in the Appeals and Pre-trial Chamber have refused to address the immunity question and to clarify matters (see previous post). (more…)

Last week (Aug 12) was the 61st anniversary of the adoption of the 1949 Geneva Conventions on the protection of victims of armed conflict. The Geneva Conventions are the most widely ratified treaties with 194 parties to each of the four conventions. The next most widely ratified treaty is the Convention on the Rights of the Child with 193 States parties and then comes the UN Charter with 192 parties. This summer I taught a course on “International Law and Armed Conflict” as part of the Oxford Masters in International Human Rights Law. I mentioned the statistics above in class and one student asked who are the two States that are parties to the Geneva Convention but not members of the UN. I thought long and hard (not too long though as the class had to go on) but couldn’t come up with an answer. The next day one student came up with one of the States but I still wasn’t able to think of the other State. So I’m now throwing the question out to readers: Which States are parties to the Geneva Conventions of 1949 but not members of the UN?

The UK government has announced recently that it plans to introduce legislation which would somewhat restrict the application of universal jurisdiction in the UK. The proposed rules do not restrict the scope of universal jurisdiction in the UK but will affect the possibility of private persons obtaining an arrest warrant in relation to universal jurisdiction crimes. The statement released by the government is as follows:

“Our commitment to our international obligations and to ensuring that there is no impunity for those accused of crimes of universal jurisdiction is unwavering.

It is important, however, that universal jurisdiction cases should be proceeded with in this country only on the basis of solid evidence that is likely to lead to a successful prosecution – otherwise there is a risk of damaging our ability to help in conflict resolution or to pursue a coherent foreign policy.

The Government has concluded, after careful consideration, that it would be appropriate to require the consent of the Director of Public Prosecutions before an arrest warrant can be issued to a private prosecutor in respect of an offence of universal jurisdiction.”

Is this part of the demise of universal jurisdiction? I think not. The change is only a very slight restriction on how universal jurisdiction legislation will be applied given that the consent of the UK Attorney General was always required for prosecutions under such legislation. Also, it is worth pointing out that just last year the UK extended UK jurisdiction with respect to crimes under the UK’s International Criminal Court Act. (more…)

The International Court of Justice has held that the declaration of independence by Kosovo is not in violation of international law.  Despite what is likely to be said in the media, this opinion is rather narrow. The Court has not ruled that Kosovo is (or is not a State) nor has it ruled that it is lawful (or unlawful) for States to recognise the independence of Kosovo. All that the Court has said is that international law does not prohibit the people of Kosovo (or their representatives) from declaring independence. I suppose this is of some relevance to other people aspiring for independence as it indicates that international law does not prevent a minority from trying to achieve independence - by means of a verbal declaration. I doubt that this is in any way controversial but just to have the ICJ say this gives a political boost to those aspiring for independence. So in this sense, the opinion is a victory for Kosovo.  As Marko stated in his excellent preview (which is still worth reading as it captures really well the issues before the Court and the options that it had before it), one of the key issues before the Court was the “question question”: what was the scope of the question before the Court? According to the Court:

“The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. Accordingly, the Court does not consider that it is necessary to address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of recognition in order to answer the question put by the General Assembly.” (para. 51)

Furthermore in answering the narrow question as to whether or not the declaration was in accordance with internationa law, the Court took the view that all it had to do was decide whether or not the declaration was prohibited by international law. In its view, it was not called upon to decide whether Kosovo had a right or entitlement to declare independence. This mean that issues to do with self-determination and whether there was a right of minorities to “remedial seccession” were not addressed by the Court . (more…)

In an article in the Guardian Newspaper last Friday, the ICC Prosecutor, Luis Moreno-Ocampo has called on the world to take action to arrest Sudanese President Bashir following the recent decision of the Pre-Trial Chamber (PTC) of the ICC to issue arrest warrants for him on charges of genocide (see earlier post). However, in his piece, the Prosecutor makes statements about the findings of the PTC which are not only inaccurate but are shocking in their inaccuracy. (more…)

The  Pre-Trial Chamber of the ICC has today issued a second warrant of arrest for Sudanese President Omar Al Bashir, this time on charges of Genocide. This decision is not unexpected and follows from the Appeals Chamber decision of February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Bashir with respect to the charge of genocide in Darfur. The Appeals Chamber held that the Pre-Trial Chamber (PTC) has applied the wrong test in considering whether there were “reasonable grounds” to believe that genocide had been committed under Art. 58(1) of the Rome Statute which deals with arrest warrants (see Marko’s comment on that test here). It remanded the decision back to the PTC which has now reached a new decision.

Once again, this decision fails to deal with questions regarding the possible immunity of Bashir. I continued to be amazed that the ICC chooses to ignore this issue. The point is not that I think Bashir has immunity as I have written elsewhere that I do not think he does have immunity from arrest in the territory of ICC parties (see here). The point is that the Court does not even consider the issue at all and that it will be issuing a request for surrender of Bashir without considering whether Article 98 of the Statute prevents it (the Court) from doing so. I considered this issue in an earlier post where I stated that:

 Art. 98 of the Statute says that “the Court may not proceed with the request for surrender” which would require the requested State to act inconsistently with its immunity obligations. This is a provision which the Court itself has an obligation to take up. The fact that it is not raised by the Prosecution should be irrelevant. There is a particular obligation on the Court in this sort of issue as requests for arrest warrants will usually come to the Court with just the prosecution being heard. In addition, Art. 98 is a provision which is designed not just for the benefit of the accused but for the benefit of the State of the accused and, as importantly, for the benefit of other States who may be put in the position of having inconsistent obligations were the matter not addressed. Thus, the Court ought to address this issue at the earliest opportunity. In fact a failure to address it and the issuance of a request for surrender (as the ICC has done in the Bashir case) may be a breach by the Court of its obligations under Art. 98 in circumstances where that provision would prevent such a request.

Now that the ICC has added a genocide charge to the case, I would also like to take the opportunity to revisit a question that I asked a year ago: would the addition of a genocide charge to the Bashir arrest warrant change the position on immunity? In that post I analysed the International Court of Justice’s 2007 merits judgment in the Bosnian Genocide Convention Case, where the Court held (at paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. (more…)

Over the next couple of weeks, we will be hosting an online symposium discussing the recent book by Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (OUP, 2009). This is one of series of recent books examining constitutionalism at the international level. Readers will remember that we held a discussion of another such book edited by Dunoff & Trachtmann, Ruling the World? Constitutionalism, International Law, and Global Governance in December 2009 (see here for posts on that book). The book by Klabbers, Peters and Ulfstein addresses conceptual concepts about constitutionalization (what is it?) and tackles whether the process is indeed taking place and what implications this has for interntional law. It asks: 

to what extent the international legal system has constitutional features comparable to what we find in national law. This question has become increasingly relevant in a time of globalization, where new international institutions and courts are established to address international issues. Constitutionalization beyond the nation state has for many years been discussed in relation to the European Union. This book asks whether we now see constitutionalization taking place also at the global level.

The book investigates what should be characterized as constitutional features of the current international order, in what way the challenges differ from those at the national level and what could be a proper interaction between different international arrangements as well as between the international and national constitutional level. Finally, it sketches the outlines of what a constitutionalized world order could and should imply. The book is a critical appraisal of constitutionalist ideas and of their critique. It argues that the reconstruction of the current evolution of international law as a process of constitutionalization -against a background of, and partly in competition with, the verticalization of substantive law and the deformalization and fragmentation of international law- has some explanatory power, permits new insights and allows for new arguments.

In addition to posts by the authors summarising the ideas in the book, we will have comments by Jeffrey Dunoff (Temple University), Joel Trachtman (Fletcher School, Tufts University); Dan Bodansky (Arizona State Unversity), Steven Wheatley (University of Leeds) and Jean L. Cohen (Columbia). As always readers are invited to add their own comments.

On June 24, Chatham House held an event in London to review the recently held Review Conference of the International Criminal Court. The discussion was moderated by Elizabeth Wilmhurst who heads the International Law Programme at Chatham House. The four speakers at the event were Chris Whomersley, Deputy Legal Adviser at the UK’s Foreign & Commonwealth Office and head of the UK’s delegation to the ICC Review Conference, Akbar Khan, Legal Director at the Commonwealth Secretariat, Chris Hall, Senior Legal Adviser at Amnesty International and me. The discussion ranged across the various issues discussed in Kampala: stocktaking of international criminal justice, including peace and justice, complementarity and cooperation with the ICC; the crime of aggression and the other proposed amendments to the ICC statute. The summary of the meeting is now available at the Chatham House website (see here).

The discussion on aggression covered many of the matters previously discussed on this blog (see here and here) and over at Opinio Juris (see here, here and here). There was much interest in the conditions under which the ICC will exercise jurisdiction over aggression, particularly the question of whether the amendments would create jurisdiction over all ICC state parties or only over those who accept the amendments. Surprisingly, there was not much discussion on whether the definition of aggression was satisfactory, though there was discussion on the effect of the understandings (for Opinio Juris discussion, see here , here and here). According to the summary:

 A participant raised the question as to whether the understandings were legally binding. It was noted that the US had proposed changing the definition itself but there was no support; they fairly quickly accepted the concept of understandings. Definition of terms forms part of the context of a treaty to assist in its interpretation. The Vienna Convention on the Law of Treaties allows the context to be considered when the wording of a provision is unclear, as well as agreements reached by the parties. It was considered by the discussion participants that understandings had a higher status than just context; on the other hand they could not be considered as part of the treaty amendments (similar to an Annex, for example): no special ratification process had been decided upon for them and in any case not all States Parties were present at Kampala to ratify their inclusion. But a similar approach had been used for the Convention on Jurisdictional Immunities.

An article published in the 2008 volume (Issue 4) of the European Journal of International Law by Thomas Schultz has been awarded the 2010 Jubilee Prize of the Swiss Academy of Humanities and the Social Sciences (see here as well). The Jubilee Prize is awarded each year to the best article, across the humanities and social sciences, published by a young swiss researcher. The prize winning article is titled “Carving up the Internet: Jurisdiction, Legal Orders, and the Private/Public International Law Interface”. In the article Thomas Schulz argues that:

The Internet is caught between old forces of local territorialism and new forces characteristic of global economies. As a result, this article maintains that it may end up being carved or fragmented into discrete legal spheres. This development contradicts with the hitherto traditional vision of the Internet as a paradigmatic example of a borderless world of global transnationalism. This fragmentation is taking two forms: one vertical which reflects concerns of public policy and the protection of local values, the other horizontal which is driven by the rationale of commercial efficiency. The former (vertical), if not understood and handled properly, may lead to an informational impoverishment of the Internet. One response to this risk resides in new configurations of the appropriate jurisdictional bases for assertions of state power. I argue in favour of a double standard of jurisdiction for the regulation of Internet content: one, based on the principle of targeting, used to sanction behaviour, the other, an incarnation of the effects doctrine, used to prevent actions and fulfil the cathartic function of law. The latter (horizontal) form of fragmentation should lead us to rethink certain aspects of the concept of law, in particular with regard to legal pluralism, and to discover new places where law is to be found.

Our congratulations to Thomas Shultz who is currently Senior Lecturer and Researcher at the Department of Private International Law, Faculty of Law, Univeristy of Geneva. He is also the Executive Director of the Geneva Masters in International Dispute Settlement, organized jointly by the Graduate Institute of International and Development Studies and Development and the University of Geneva.