We are sad to report the passing of Antonio Cassese, one of the greatest international lawyers of his generation and one of the EJIL’s founders. Nino worked tirelessly despite his illness almost until the end, having resigned as president of the STL just a few weeks ago. Few scholars have had as much impact, or were so gracious towards others. He will be missed.

The European Society of International Law has announced a call for papers for the Valencia conference in September 2012 (note that there has been a slight change of dates with regard to what was previously advertised). The PDF of the call for papers with all off the relevant deadlines and information is here: CfP English.

To my shame, I’ve only just noticed that Ken Gallant in his excellent book The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2009) – recently reviewed in the JICJ here – addresses the difficult problem of applying the substantive law of the Rome Statute to situations in which the Court acquires jurisdiction over an individual only ex post facto, i.e. after the commission of the alleged crime, for example under a UNSC referral or on the basis of an Art. 12(3) declaration (pp. 337-343).  If, for instance, Gaddafi were to be put on trial before the ICC, and bearing in mind that Libya was never a party to the Rome Statute, can he be prosecuted for crimes or under theories of liability that are specific to the Rome Statute, such as indirect perpetration, which do not reflect customary law? I’ve written about this problem in my JICJ articles on whether the Rome Statute is binding on individuals and on aggression and legality. Ken argues (pp. 342-343), and I fully agree, that:

The possible retroactive application of non-customary international criminal law, especially after a Security Council referral, is not an imaginary problem. Many of the framers of the ICC Statute sought a progressive development of international criminal law and procedure. Therefore, they did not necessarily limit their drafting of the criminal law of the statute to that which was customary international law. It is not self-evident that all of the crimes listed in the statute are customary international law crimes.

Some respected commentators have suggested that all of the crimes set forth in the ICC Statute automatically apply when the Security Council has referred a situation to the ICC. This would be inconsistent with the legality analysis both of the statute and of international human rights law and with fundamental rules of treaty law.

Schabas, for example, claims that such an application would be permissible because it is “foreseeable” that the court would attempt to apply the statute to such people. The problem with this argument is that the states adopting the ICC Statute have no authority to prescribe new criminal law either for non-ICC states or for persons with no relevant connection to any ICC state. The ICC Statute can apply to a national of a non-ICC state who commits a criminal act in, or with effect in, an ICC state, as an instance of territorial jurisdiction. The states adopting the ICC Statute could not make law to apply to someone who is wholly unconnected with any ICC state party, and whose allegedly criminal acts are unconnected with such a state party, unless the crime were a customary international law crime over which there is universal jurisdiction (which, by hypothesis, the crime here is not). Foreseeability in the sense of legality can include a development in the law of a jurisdiction with legitimate authority over a person. It cannot mean foreseeability that an international organization will later attempt to impose its prescriptive jurisdiction on a person over whom it has no legitimate authority.

Schabas argues that the application of new, non-customary crimes in the ICC Statute to such persons is acceptable by pointing out that aggressive war was effectively a new crime at Nuremberg. The problem with this argument is that international human rights law has changed since that time. The claim by the Nuremberg Tribunal that nullum crimen sine lege was, in international law, merely a principle of justice was true then but is not so now. Now it is a rule of customary international law and perhaps a jus cogens rule at that.

Read Gallant!

The official application submitted by Palestine for UN membership is now available here, UN Doc. S/2011/592 (h/t Diane Marie Amann). It is of interest not the least because it has been carefully drafted and with the benefit of substantial legal advice. Note, first, how Mahmoud Abbas is not titled President of the Palestinian National Authority, but as President of the State of Palestine (he was appointed as such some years ago by the PLO). Note also how for good reason the letter does not say when exactly Palestine became a state, nor does it declare Palestine’s independence anew; rather, it refers to the 15 November 1988 DoI.

Tomorrow (Friday) will probably prove to be a day of high tension in Serbia and Kosovo, with yet another round of nationalistic rigmarole regarding control over customs in northern Kosovo. Consultations are underway in the UN Security Council, NATO forces have been deployed, and the situation can turn very ugly, very fast. I really have nothing useful to add on the matter, so I won’t. I would however like to draw our reader’s attention to today’s rather remarkable performance of the Russian ambassador in Belgrade, Aleksandr Konuzin, at an international conference, the Belgrade Security Forum. I have honestly never seen a diplomat, certainly not a diplomat of a great power, not only repeatedly insult his hosts but also openly stoke Serbian nationalism at such a precipitous moment. The videos below are certainly instructive. Regrettably, I doubt a PNG will be forthcoming.

I’ve just posted on SSRN a pre-print draft of my article Aggression and Legality: Custom in Kampala, forthcoming in a special issue on aggression of the Journal of International Criminal Justice. It is more or less a follow-up to my earlier JICJ piece on whether the Rome Statute is binding on individuals. The abstract is below, and as always comments are most welcome.

This article tests the Kampala compromise on the aggression amendments to the Rome Statute of the International Criminal Court against the principle of legality, nullum crimen sine lege, requiring criminal law to be reasonably clear and prohibiting its retrospective application. It outlines three possible legality-based challenges to incriminating aggression: the supposed indeterminacy of the jus ad bellum and the lack of an incrimination under customary international law; the vagueness of the definition of the crime of aggression introduced in Article 8 bis; and the uncertainty regarding the application of this definition to situations in which the ICC’s jurisdiction over a particular individual arises only ex post facto. The article argues that it is the last of these three challenges, based on retroactivity rather than vagueness, that is the most serious one.

A fundamental ambiguity about the legal nature of the Rome Statute has direct bearing on this issue: it is either substantive in nature, directly creating the crimes it defines, or jurisdictional in nature, in that it merely sets out the subject-matter jurisdiction of the Court over offenses which are substantively defined elsewhere, in customary international law. The main practical consequence of this distinction is in the further question whether defendants charged before the Court have the right to challenge the legality of the charges against them on the basis that they do not comport with customary law. The article argues that this ambiguity about the nature of the Rome Statute was if anything only exacerbated in Kampala, discusses the substantive scope of application of Article 8 bis as well as the intricate jurisdictional regime introduced by the aggression amendments, and finally briefly turns to the question whether the definition of aggression adopted in Kampala departed from custom.

Yesterday the report of the UN Palmer Committee on the Mavi Marmara incident was leaded to the New York Times - the whole thing is available here. We hope to have more commentary on the report in the coming days; on the whole, it seems more favourable to Israel than the earlier Human Rights Council report. For now, however, I want to make two quick comments, and refer readers for background to Douglas Guilfoyle’s excellent recent piece in the British Yearbook.

First, although a very important finding in the report – a finding that Israel appreciates – is that the blockade of Gaza was legal as a matter of international law, that finding is based on a prior one that Israel most certainly will not like. Namely, as readers will recall, we discussed both on this blog and extensively in these two posts by Kevin Heller at OJ and the comments thereto that Israel’s blockade runs into a fundamental difficulty – that a maritime blockade, which involves the interdiction of the shipping on third states on the high seas, can only be effected in an IAC; it traditionally took place only in wars, and it necessarily involves a relinquishment by third states of their rights to the belligerents.

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A colleague and I are currently working on an article on the qualification or classification of armed conflicts in modern IHL. The ongoing developments in Libya bring out a specific difficulty in the process of qualification which we see as problems of state representation. An excerpt from the draft is provided below, and it is very much work in progress; footnotes are omitted, while comments are welcome. For some relevant links, see yesterday’s post by Iain, this post on recognition by Dapo, and this post of mine on what exactly internationalizes a non-international armed conflict, i.e. turns a NIAC into an IAC.

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It may be easy to say that IACs are fought between states and statehood may be uncontested in a given case, but who gets to represent the state may turn out to be a very difficult issue. Not only is this question important for the initial qualification of a conflict, but it may also prove to be crucial for its requalification or transition from one type to another.

Consider, first, the invasion of Afghanistan by US-led coalition forces in 2001. The first representational difficulty we encounter in qualifying the conflict is that the Taliban regime was not recognized as the lawful government of Afghanistan by the states that launched the invasion or by the international community generally. That difficulty is however reasonably easy to deal with. It is precisely because historically the recognition of states and governments was a way to avoid the application of the law of war that the position in modern IHL is that it is de facto government and not recognition that matters. While they never controlled all of Afghanistan, at the time the Taliban were in effective power in most of the country, including the capital Kabul, and they had established institutions of government. Accordingly, there was an IAC between the US and other coalition states on one side and the state of Afghanistan, represented de facto by the Taliban regime, on the other, while there was also a NIAC running in parallel between the Taliban and the forces of the Northern Alliance.

But then the Taliban were defeated; their institutional rule over Afghanistan could not survive the joint coalition-Northern Alliance assault. Today we of course know that the defeat of the Taliban was far from complete, but it is still true to say that they lost the territorial control of the kind that denotes a government rather than simply an armed group. That vacuum was filled through a long transitional process, lasting from the end of 2001 up until 2003, which was approved by the UN Security Council and ultimately resulted in the establishment of a new Afghan government. The new government not only consented to the presence of international forces in Afghanistan, but together with the international forces continued to fight the growing Taliban insurgency. The question thus is whether and at what point the conflict transitioned from a mixed IAC/NIAC to a NIAC pure and simple, i.e. at what point the Taliban lost the capacity to represent the state of Afghanistan, and accordingly lost belligerent rights vis-à-vis third states intervening in Afghanistan.

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I’ve posted on SSRN an article which will be published in the EJIL next year on Al-Skeini and Al-Jedda before the European Court of Human Rights. The pre-print draft will be available on SSRN until the article comes out in the Journal. The abstract is below, and comments are welcome, as always.

The article analyses the European Court of Human Rights’ recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.

Consider the following hypo:

Let’s say I accept the request from a journal to review a particular book. I know the author, I might consider him a friend, but he is hardly an intimate (I would say there is/should be an absolute ban at least on reviewing books by one’s close personal friends and one’s departmental colleagues; this hypothetical person is neither). Having read the book, however, I think it’s positively awful, with few if any redeeming qualities. If I write the review, be polite but honest and say what I mean it is likely that I will lose or offend a friend. If I blunt my remarks and write something anodyne, I will have kept the friend but I will have failed my professional duty to give the audience my full and honest opinion.

Would it then be ethical for me to tell the journal that I’ve decided not to write the review at all, and renege on my previous commitment? In other words, is it right to have a policy whereby I refuse point-blank to write a review when there is a real conflict of interest, but at the same time write reviews, but only (honest) positive/mildly critical reviews, for people who I’m on friendly terms with? Or should I simply have a policy not to write reviews at all for books by people who I’m friends with – a commitment which obviously gets harder as one’s circle of colleagues expands?

Comments by readers most welcome.