I had hoped to write my final post on the ICC Review Conference sooner, but the British Airways strike resulted in a longer, more roundabout route back to Western Canada. Plus there’s the jet lag. (My apologies Julian Ku).

The key issue with respect to the aggression amendments was always going to be the conditions for the exercise of jurisdiction, albeit that mid-way through the Review Conference, the jurisdiction issue merged with an entry into force discussion, resulting in some confusion among delegates at several points during the negotiations, and a final result that merges the two. (more…)

The President of the Assembly of States Parties (PASP) has, as of mid-day on the second to last day of the ICC Review Conference, released his own “non-paper” containing proposals for the crime of aggression amendments at the 2010 Review Conference for the International Criminal Court. The non-paper complements the rev. 2 version of the Conference Room Paper circulated by HRH Prince Zeid, and picks up on ideas and proposals in circulation among delegates. A copy is not available on the ICC’s Review Conference website, but it can be found here. (more…)

Day 8 of the Review Conference for the International Criminal Court saw the wrapping up of the work of the Working Group on the Crime of Aggression (WGCA), leaving the aggression negotiations to be conducted through “informal informals”, bilateral discussions, and plenary sessions. The move from working group to plenary will also be accompanied by a change of chair, with the President of the Assembly of States Parties, Ambassador Christian Wenaweser of Liechtenstein, taking over the reins from HRH Prince Zeid, the Chair of the WGCA (and a previous ASP President). Wenaweser is well aware of the positions and divisions among states, having previously chaired the Special Working Group on the Crime of Aggression (SWGCA) within which the aggression proposals were developed for the Review Conference. The question on the minds of many delegates is whether these negotiations will go late into the night on Friday in search of an acceptable text (and thus causing many of us to miss the first match of the much anticipated World Cup in South Africa). (more…)

We are now in Day 7 of the Review Conference for the International Criminal Court in Kampala, with yesterday evening being a very active period in the negotiations as evidenced by the release this morning of a revised Conference Room Paper on the Crime of Aggression (CRP Rev. 2) and a proposal by Canada to complement that already made by Argentina, Brazil and Switzerland (the ABS proposal). As predicted, much of Days 5 and 6 of the Review Conference were concerned with the setting out of initial positions on the crime of aggression, with only an hour being spent on the discussion of other amendments during Day 5. A slightly revised version of the proposed amendments to article 8 were adopted with ease on Friday, at least at the working group level, subject to the discussion concerning the correct amendment procedure, but division remains as to whether or not to delete article 124 from the Statute, with the coordinators of the Working Group on Other Amendments suggesting that further informal discussions are needed before action is taken. Several questions of treaty law have also attracted interest, with the Japanese delegation reminding delegates that the Review Conference is concerned with the negotiation of amendments to an existing treaty that has its own specific requirements and not the negotiation of policy issues upon a blank canvas. The role of non-states-parties and their potential influence on the future interpretation of these amendments, if adopted, also continues to be of interest. (more…)

We continue with our coverage of the Review Conference for the International Criminal Court, (see here, here and here), taking place at a resort on the shores of Lake Victoria, outside Kampala, Uganda (and well-insulated from the hustle and bustle of everyday life). Readers may be interested in comments on the stocktaking exercise that has occupied the formal agenda of the conference for the past two days. Of course, the real action is taking place informally, as the stocktaking exercise has allowed state delegations to engage in behind-the-scenes bilateral consultations and small group discussions to determine possible areas of agreement for the crime of aggression deliberations (which is clearly the main event at this conference) and to get a sense of each others’ bottom lines and end result objectives. As indicated in the conference Journal, state representatives have also been meeting, one after another, with Jordan’s Prince Zeid, the Chair of the Working Group on the Crime of Aggression, who will likely have inquired as to their current and possible positions in advance of Friday’s scheduled discussions. (more…)

At long last, I have arrived in Kampala, after my original flight booking was affected – twice – by the British Airways strike. Much of today was a continuation of yesterday’s general plenary, wherein the states parties representatives read out pre-prepared statements of a polite but general nature, and diplomats and NGO delegates go hunting for extra copies. For many, the statements of interest today were those of the Observer States, including the statement of the United States.

A Plea of Caution, Care and Regard for the Court

The US statement was delivered by Stephen Rapp, US Ambassador-at-Large for War Crimes, and the former prosecutor at the Special Court for Sierra Leone. Evoking a general theme of “caution, care and regard for the Court”, and attributing support for this theme to prominent groups within civil society, Ambassador Rapp spoke of the challenges facing delegates, using a series of questions about the success of the ICC’s efforts in situation countries to connect with the four themes of the upcoming stocktaking exercise. Mention was also made of US co-sponsorship, along with Norway and the DRC, of a side-event on “positive complementarity”, drawing a link to the “frontlines of justice, national courts”.

But the larger, and more immediate, challenge facing the Conference, as identified by Ambassador Rapp, are the proposed amendments concerning the crime of aggression. Despite years of discussion, key issues remain without a consensus resolution, with Rapp identifying the conditions for the exercise of jurisdiction and how the aggression amendments will enter into force as being “elemental”, and “not of marginal significance”. Rapp also identified problems with the definitional aspect of the aggression amendment project, albeit that many view the definition aspect as easier to resolve than the conditions for the exercise of jurisdiction. (English School IR scholars and R2P watchers may be interested in Rapp’s reference to “the use of force that is undertaken to end the very crimes the ICC is now charged with prosecuting” in discussing the uncertainties of the proposed definition.)

The possible impact of aggression amendments on national jurisdiction was also highlighted as an area of uncertainty, with Rapp drawing a link to a conference non-paper circulated by the chairman of the Special Working Group on the Crime of Aggression, H.R.H. Prince Zeid of Jordan, available at: http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-WGCA-2-ENG.pdf

Rapp then focused on the “plea for caution, care and regard for the Court” promulgated by some civil society organizations, and clearly supported by the US, which has emphasized a need for a genuine consensus with respect to the definitions of crimes for the ICC. (more…)

Joanna Harrington is an Associate Professor with the Faculty of Law at the University of Alberta in Canada, where she teaches constitutional law, international law, and international criminal law. Her scholarship often examines the interplay between international human rights law and criminal law, and international law and constitutional law in general. She has written previously on matters of interim measures, arguing for the application of the ICJ’s jurisprudence to requests arising within the context of communications before the international human rights treaty monitoring bodies: see “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48 McGill LJ 55.

 I wish to thank Dapo Akande, the editor of EJIL Talk!, for the invitation to express my initial (and perhaps hasty) thoughts on yesterday’s decision by the International Court of Justice (see here) concerning Belgium’s request for the indication of provisional measures in the proceedings lodged against Senegal concerning the “obligation to prosecute or extradite” Hissène Habré, the former President of Chad (1982-1990), for the commission of serious international crimes, including crimes of torture and crimes against humanity.[1] Habré has been living in Senegal since he was overthrown in 1990; however, in light of recent statements made by the Senegalese head of state intimating that Habré may be allowed to leave the territory,[2] Belgium sought an order from the ICJ requiring Senegal to ensure that such a departure did not occur. Senegal opposed Belgium’s request, challenging Belgium’s interpretation of the statements made by its President as well as the general admissibility of Belgium’s case, while also arguing that such an order was not needed given the existing controls concerning Habré. By 13 votes to one, the Court declined to make the requested order, finding that:

“the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.”[3]

 A key factor contributing to the Court’s decision were the solemn assurances provided by Senegal, both on its own initiative and in response to a direct question put by a Member of the Court during the hearings, that it will not allow Habré to leave its territory before the Court has given its final decision.[4] Credit goes to Judge Greenwood, a recent appointment to the Court, for asking Senegal at the end of the first round of the oral observations whether it would be prepared to give a solemn assurance to the Court that it will not allow Habré to leave while this case is pending.[5] Although Senegal had said as much in its submissions, the question prompted Senegal to solemnly confirm in its closing statement to the Court that:

“Senegal will not allow Mr. Habré to leave Senegal while the present case is pending before the Court. Senegal has not the intention to allow Mr. Habré to leave the territory while the present case is pending before the Court.”[6]

 With this solemn declaration, the denial of Belgium’s request for the indication of provisional measures was a likely result, notwithstanding Belgium’s efforts to suggest that a “clear and unconditional” assurance “could be sufficient” but the need for certain “clarifications” made an order from the Court preferable.[7] The ICJ’s decision may thus be viewed as a non-result in terms of the actual request that was put before the Court, and the fact that the parties were generally in agreement as to the law governing the indication of provisional measures. Nevertheless, the reasoning behind the Court’s order is worth consideration, as are the issues raised in the relatively lengthy dissent of Judge Cançado Trindade, another new appointment to the Court.

 The Existence of a Dispute and the Involvement of the African Union

In addressing a request for the indication of provisional measures, the Court must first satisfy itself that it has prime facie jurisdiction as regards the merits of the case. (more…)

Joanna Harrington is Associate Professor of Law, University of Alberta, Canada. Her Phd obtained from the University of Cambridge dealt with extradition and human rights. From 2006-2008, she was on secondment to the Legal Affairs Bureau of the Canadian Department of Foreign Affairs and International Trade. In that capacity, she, among other things, was a member of the Canadian delegation to the UN General Assembly for meetings of the Sixth (Legal) Committee dealing with the work of the International Law Commission.

Dapo’s post on the case in the ICJ between Belgium and Senegal highlights the real issue in the case, which is this question of whether international law “obliges” prosecution.

One aspect of the ILC’s recent work on “Extradite or prosecute” that has attracted my own interest is the Special Rapporteur’s description of this obligation as a choice, an “either/or” option for States, thus equating “extradite or prosecute” with “prosecute or extradite” (the latter being the “obligation” now invoked by Belgium).

In the very treaties that the Special Rapporteur has cited in his reports, the actual wording of the treaty provisions imposes an obligation to extradite, and IF that does not occur, THEN an obligation arises to submit the case for prosecution. In other words, there is a condition within the treaty-based provision, which the shorthand reference to “extradite or prosecute” does not convey, and which does not mean that we can look to these treaty obligations on “extradite or prosecute” to substantiate a customary obligation to “prosecute or extradite”. We can’t just flip the phrase. This is especially so where the obligation to extradite or prosecute applies to crimes for which one of the state parties to the extradition treaty would not have jurisdiction to prosecute. This happens in extradition treaties between common law and civil law countries, when the latter may invoke the nationality exception to extradition, and in return, is subject to an obligation to submit the case for consideration for national prosecution. The common law country would not be in the same position if it refused to extradite all nationals for all crimes given the territorial nature of much of common law criminal law.

(more…)