The United Nations Secretary General has recently submitted a report to the Security Council in which he sets out 7 options for dealing with piracy off the coast of Somalia. The incidence of piracy off the coast of Somalia continues to be very high.

“7. … The number of attacks off the coast of Somalia has steadily increased since 1991, and over the past two years has increased from 111 vessels attacked in 2008 to 217 vessels attacked in 2009. . .  There were 30 attacks during the first quarter of 2010. According to the United Nations Office on Drugs and Crime, the pirates operate from around 70 camps on beaches on the Somali coast, which is approximately 1,800 miles long. Their methods have become increasingly sophisticated, indicating greater planning, financing and organization. . . .

8. While the number of attacks remains high, increased naval patrols off the Horn of Africa and in the Gulf of Aden have effectively reduced the success rate of these attacks. In 2007, 63 per cent of attacks were successful; in 2008, 34 per cent were successful; in 2009, 21 per cent were successful; and the figure for 2010 is likely to be below 20 per cent.2 The decrease in success is attributable to the additional defensive measures put in place by merchant ships, their more cautious navigational routes, and effective naval operations. Nevertheless, as at 15 May 2010, some 450 mariners were being held hostage on vessels captured by pirates off the coast of Somalia. The involvement of naval vessels from more than 30 States represents one of the largest peacetime naval operations ever.”

In April of this year, the Security Council in resolution 1918 requested the Secretary-General to present a report exploring the options for prosecuting the persons responsible for piracy and armed robbery at sea off the coast of Somalia. In his report , the Secretary General has set out 7 options:

Option 1: The enhancement of United Nations assistance to build capacity of regional States to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia

Option 2: The establishment of a Somali court sitting in the territory of a third State in the region, either with or without United Nations participation

Option 3: The establishment of a special chamber within the national jurisdiction of a State or States in the region, without United Nations participation

Option 4: The establishment of a special chamber within the national jurisdiction of a State or States in the region, with United Nations participation

Option 5: The establishment of a regional tribunal on the basis of a multilateral agreement among regional States, with United Nations participation

Option 6: The establishment of an international tribunal on the basis of an agreement between a State in the region and the United Nations

Option 7: The establishment of an international tribunal by Security Council resolution under Chapter VII of the Charter of the United Nations

The Secretary General has dismissed as a viable option the extension of the jurisdiction of existing international courts to include prosecution of piracy. So proposals to allow the International Tribunal for the Law of the Sea, the International Criminal Court or the African Court of Human Rights to prosecute the crime of piracy have not been accepted by the Secretary General. However, it may well be that the option of allowing the African Court of Human Rights to prosecute pirates returns to the fore when the African Union discusses the extension of the jurisdiction of that Court to include prosecution of international crimes. That discussion, which is gathering steam, is primarily about attempts to create a regional African Court to prosecute ICC crimes but I would not be surprised to see piracy included in the jurisdiction of that Court, if the attempt succeeds.

The Secretary General’s Option 1 is already being pursued with the opening of a special anti-piracy court in Kenya. If there is sufficient assistance to States and  domestic courts to undertake these prosecutions it is not quite clear to me why an international (or even a regional) tribunal is needed, especially given the cost of establishing such tribunals. In the Security Council debate about the report, it appears that the UK and France were also not keen on establishing a new international tribunal.   

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…)

On August 17, a US District Court handed down a fascinating piece of statutory interpretation that apparently means that unless a Somali pirate succeeds in stealing something, he cannot be charged with piracy under US law.

There have been a number of national piracy trials taking place in Western States, notably in the US and the Netherlands. (I have written on piracy trials in Kenya elsewhere.) In the Netherlands a group of Somali pirates was sentenced to five years in prison. I have not seen either the judgement in Dutch or a summary of it in any other language yet. (If you have it, do let me know). In New York, the young Somali suspect pirate Abdiwali Abdiqadir Muse, sole survivor of the gang that attempted to hijack the Maersk Alabama, entered a guilty plea in a deal that removed piracy from the charges against him.

This leaves US v Said et al, the trial of 11 suspects before the US District Court in Norfolk, Virginia who were alleged to have (rather foolishly) attacked the naval vessel the USS Ashland, an amphibious landing craft transport, in April this year. The New York Times has helpful posted a copy of the interlocutory decision in this case which Justice Jackson struck out the charges of piracy against them. The decision finds that the alleged facts, which involve drawing alongside another vessel and starting a fire-fight with it, do not fall within the US statutory concept of “piracy as defined by the law of nations” (18 USC §1651). The reason for this is that the classic case, US v Smith 18 US 153 (1820), remains the governing authority and it held piracy to be “robbery at sea”. The alleged facts disclose no robbery, ergo no piracy.

The decision raises a host of issues. I will concentrate more here on points of methodology and issues of national prosecutions of international crimes. I have discussed the international law framework surrounding piracy in a previous post on this blog and will attempt not to repeat matters covered there. Nonetheless, I cannot resist the obvious quote from the Privy Council in Re Piracy Jure Gentium [1934] AC 586, which responded to the suggestion that robbery is a necessary ingredient of piracy by saying:

“[when confronted with the argument that] armed men, sailing the seas on board a vessel without any commission from any state, could attack and kill everybody on board another vessel … without committing the crime of piracy unless they stole, say, an article worth sixpence, … [one is] almost tempted to say that a little common sense is a valuable quality in the interpretation of international law.” (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?

Sahib Singh is a  member of the international litigation and arbitration group at Skadden and a visiting lecturer at the University of Vienna. This note was prepared before the Enron v. Argentina annulment decision became available at the beginning of August. A note on that case is forthcoming on EJIL: Talk!

On 29 June 2010, the ad hoc ICSID Annulment Committee annulled the initial award in Sempra Energy International v. Argentina, finding that the initial tribunal had exercised a manifest excess of powers. The decision is central to our understanding of necessity in international investment law, and particularly the relationship between necessity under Article XI of the Argentina-US BIT of 1991 and under customary international law. Unfortunately, the committee’s decision leaves much to be desired in terms of its interpretive methodology. The central critique of this post, is the degree of relevance the committee’s decision gives to necessity under customary international law when interpreting Article XI. It also questions the presumptive relevance of necessity under custom as an interpretive tool, when the latter can only apply if the investor does not hold substantive or procedural rights under the BIT.

Background

The investor-state arbitration awards concerning Argentina are, for the most part, centred on the Argentine financial crisis that hit the country in late 2001. As a consequence of the crisis, Argentina undertook specific regulatory measures which liquidated the value of foreign investments (the factual matrix is far more complex, but shall not be entered into here). In the spade of investment arbitrations brought by foreign investors, Argentina has argued that it is not liable under a range of BITs due to the defence of necessity. In regards to US investors, such arguments have fallen under both customary international law and Article XI of the Argentina-US BIT. The latter reads as follows:

‘This Treaty shall not preclude the application by either Party of measures necessary for the maintenance of public order, the fulfilment of its obligations with respect to the maintenance or restoration of international peace and security, or the protection of its own essential security interests.’

Thus far six rulings have been made on the operation of necessity under Article XI and custom. (more…)

Francesco Messineo will join Kent Law School (Canterbury) as a Lecturer in Law in October 2010. He is currently a PhD candidate at the University of Cambridge.  Between 2004 and 2006, he was the Refugee Coordinator of the Italian Section of Amnesty International. His most recent publications include an aritcle in the Journal of International Criminal Justice  on the Abu Omar Case

Doves and hawks?

Judgments delivered by the Fourth Criminal Section of the Tribunal of Milan, in Italy, do not generally make compelling reading for admirers of John Le Carré or Ian Fleming. Nevertheless, the one delivered in February 2010 by Dr Oscar Magi is a remarkable exception, for it contains a graphically detailed account of how the CIA and the Italian secret services conducted their ‘anti-terrorism’ operations in 2003 – down to the mobile phone numbers they used, the Internet map services they employed, and the type of private jets they chartered.[1] Above all, however, a rather chaotic state of affairs emerges from all this. Those CIA agents whose job was to abduct people in the ‘extraordinary renditions’ program probably believed that they were welcome to act as they pleased in Italy, and that they would be allowed to do so irrespective of Italian law.[2] Judge Magi strongly affirmed that they were not – and long prison sentences were imposed on many of them. One does not very often see CIA agents convicted by the courts of a friendly state. This may explain why the CIA committed one of its worst strategic mistakes in the last decade and overlooked both the constitutional independence of the Italian judicial system and the strong institutional tensions between different branches of the Italian government. In practice, because all the convicted Americans were tried in absentia, this simply means that they will not be able to travel to Europe for quite some time – or will have to do so under different identities, which presumably should not be an insurmountable problem for them. Yet, this case is quite remarkable because it is the only ‘renditions’ trial that reached the verdict stage. As such, it had quite some impact in the multifaceted relationship between Italy and the United States (see here and here for the ‘concerns’ and ‘disappointment’ of the State Department). In addition, it highlighted the untenability of some aspects of the fight against terrorism: not surprisingly, Human Rights Watch declared that this case ‘put the war on terror on trial’. Because it would be inappropriate for an international lawyer to comment on the former aspects (Italo-American relationships are best left to those who know more about them), I will focus on the latter issues – why renditions are untenable as a matter of law and policy. To do so, I will start by describing the evident conflict of power arising from the outset in this particular case. (more…)

On his blog, Bill Schabas raises a fascinating issue regarding the territorial scope of application of the Rome Statute of the ICC:

On 11 March 2010, the United Kingdom informed the Secretary-General that it wished that its ratification of the Rome Statute of the International Criminal Court ‘be extended to the following territories for whose international relations the United Kingdom is responsible: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, St Helena, Ascension and Tristan da Cunha, Sovereign Base Areas of Akrotiri and Dhekelia, Turks and Caicos Islands’. The declaration added that the United Kingdom ‘considers the extension of the aforesaid Statute … to take effect from the date of deposit of this notification…’

The Argentine government then quite quickly objected to the UK declaration, because of their long-standing dispute over the Falklands/Malvinas. This has been the Argentine practice for quite some time (see, e..g, the similar UK and Argentine declarations with regard to the ICCPR (at the very end of the page)). But more interesting, as Bill notes, is the issue of the territorial scope of UK obligations:

Did the United Kingdom leave anything out of its declaration? What about Diego Garcia, which is part of the Chagos Archipelago in the British Indian Ocean Territory. After expelling the inhabitants of the islands, the British then essentially handed over the base to the United States, which uses it as a kind of a fixed aircraft carrier. Is the Diego Garcia military base subject to the Rome Statute because it forms part of the ‘territory’ of the United Kingdom? Or does the recent declaration attempt to confirm that it is not subject to the jurisdiction of the Court, because the United Kingdom has not made a declaration to that effect?
Aside from jurisdiction over territory, there is also the issue of responsibility for arrest and other cooperation obligations under the Rome Statute. By its declaration, was the United Kingdom suggesting that it was not previously responsible for cooperation with the Court with respect to the territories listed in the declaration?

The formulation of the UK’s declaration certainly indicated that hitherto it considered itself bound by the Rome Statute only with respect to its metropolitan territory. But was this indeed the case? Or did the UK have all of the Rome Statute obligations conditioned by territory with regard to, say, Bermuda, from the moment of ratification? And what of the territorial jurisdiction of the ICC?

Up until the end of its empire after the Second World War the UK had a rather stringent policy of including so-called colonial clauses in the multilateral treaties to which it was a party. Thus, for example, it had the negotiating power to have such clauses included in the ECHR and the Genocide Convention. The UK was motivated in this partially by a policy desire to avoid assuming burdensome obligations for territories in which it did not want to apply them, and partially by a constitutional convention that it needed the assent of its dependencies for the extension of treaties to them. The UK’s efforts were resisted, however, in respect of other treaties, such as the ICCPR. With regard to those treaties, the UK employed the practice of filing a declaration that would specify the territories to which the the treaty would apply – as with the ICCPR, and now the Rome Statute.

(For general background on all of this (and some fantastic scholarship), see Brian Simpson’s Human Rights and the End of Empire (OUP, 2004), as well as L. Moor and AWB Simpson, ‘Ghosts of Colonialism in the European Convention on Human Rights’, (2006) 76 BYBIL 121.)

Now, the big question is whether such declarations have any effect – and in particular, whether the UK’s declaration with regard to the Rome Statute has such an effect. What these declarations try to do is to avoid the application of Article 29 VCLT, which reads ‘unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.’

As explained by the ILC in its Draft Articles on the Law of Treaties, the ‘entire territory’ bit encompasses all territories over which a state has title, and not just its metropolitan territory. Art. 29 thus creates a rebuttable presumption that a treaty applies to all of the territories that belong to a state party.

Now, Art. 29 doesn’t explicitly deal with declarations of territorial scope as those routinely used by the UK. The Draft Articles do say, however, that:

One Government [I imagine the UK, but I haven't checked] proposed that a second paragraph should be added to the article providing specifically that a State, which is composed of distinct autonomous parts, should have the right to declare to which of the constituent parts of the State a treaty is to apply. Under this proposal the declaration was not to be considered a reservation but a limitation of the consent to certain parts only of the State. The Commission was of the opinion that such a provision, however formulated, might raise as many problems as it would solve. It further considered that the words “unless a different intention appears from the treaty or is otherwise established” in the text now proposed give the necessary flexibility to the rule to cover all legitimate requirements in regard to the application of treaties to territory.

So what are then we to do with the UK’s declarations? First, it does not regard them as reservations, but as ‘limitations on its consent’ only to parts of its territory. But isn’t a reservation precisely a limitation on state consent? A mere interpretative declaration cannot as such have direct effect on state obligations, as this territorial declaration purports to. Second, Art. 120 of the Rome Statute explicitly forbids any reservations. Third, whatever their nature, they might reflect the UK’s intention, but they certainly do not reflect that of the other parties, which is the Art. 29 VCLT criterion. Finally, and quite oddly, unless I am mistaken from my quick skim of the UN treaty collection, the UK made the ICC declaration only some 12 years after it ratified the Statute. How can this affect the consent that it had already given? It is only if a general rule existed to the effect that states can vary the territorial scope of their obligations via declarations – but as we have seen the ILC was quite explicitly opposed to such a rule, and the instability it potentially brings seems very much undesirable, and unsupported by state practice.

Then again, Denmark also made a similar declaration with respect to the Faroe Islands and Greenland, which it later withdrew, as did the Netherlands. No state objected to such declarations in principle, which might be taken as a inference that they are permissible, and would thus serve to rebut the Art. 29 VCLT presumption. This is, in short, quite a vexing little problem – and one that I doubt the Court will ever have the opportunity to resolve.

Professor Jan Klabbers is Professor of International Law at the University of Helsinki, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. His previous post introducing the book by Klabbers, Peters & Ulfstein The Constitutionalization of International Law   is available here

So far, the blogging concerning The Constitutionalization of International Law  The  has been fairly sedate. Of course, it is summertime; of course, there was a soccer tournament to focus on; of course, the ICJ’s opinion on Kosovo occupies the international legal community; and perhaps there is a certain idleness and lethargy to be associated with constitutionalism these days, as Jeff Dunoff and Joel Trachtman merrily suggest. But it may also be the case that the approach we espouse gives rise to some unease on the part of readers and therewith elicits few responses, for our approach is difficult to pigeonhole. The kind and generous comments published on EJIL: Talk! suggest as much: they display a certain puzzlement at what it is we aim to do, and some seem to have difficulties in identifying the genre we work in.

That is not surprising, as our genre is indeed uncommon. We do not aim to engage in descriptive sociology – ours is not an enterprise to establish that constitutionalism exists, in some real sense and as a matter of positive international law. Nor do we engage in idealist normative theory pur sang: we do not aim to suggest that constitutionalism is, as a way of organizing the globe, superior to alternatives. Likewise, ours is not a conceptual study in any strict sense of the term: we do not aim to establish the (or, more modestly, a) concept of global constitutional law. We do not aspire to make an argument de lege ferenda about constitutionalization.  And emphatically, we never set out to study the causes of constitutionalism, no matter how much Dunoff and Trachtman might have expected us to. (more…)

Ruth Wedgwood is Edward B. Burling Professor of International Law and Diplomacy; and Director of the International Law and Organizations Program at the Paul H. Nitze School of Advanced International Studies, John Hopkins University, Washington DC. She is also a  visiting fellow at the Hoover Institution and a member of the UN Human Rights Committee.

If you’re a betting person, here’s a safe bet: On August 9, the balloting in the east African state of Rwanda will give world-famous military leader Paul Kagame yet another seven-year term as president. The astonishing margin of victory will impress even the modern grand viziers of Central Asia. The outcome is quite easy to predict, when no other candidates are allowed to campaign.

Given this and much else besides, it’s time Washington began to create some distance from a man who has earned his reputation as a de facto despot who terrorizes critics and does not shrink from political violence.

Kagame revels in his fame as the strategist who led a Tutsi invasion force from Uganda in 1994, pushing back the Hutu army and Hutu militia, though not before they perpetrated a shocking genocidal slaughter of hundreds of thousands of the country’s Tutsi minority, as well as moderate Hutu. Washington, reeling from Somalia and fearing another Black Hawk Down, refused to intervene. Madeline Albright was directed to inform the U.N. Security Council that, no, we would not reconstitute the U.N. peacekeeping force in Rwanda, and, further, the United States would veto any resolution that authorized other countries to do so. It was the season of peacekeeping misadventures, and the Clinton White House decided, as one former National Security Council official recalls, that it could not afford to intervene both in Haiti and Rwanda. Presidential Decision Directive 25, drafted by Richard Clarke as a white paper for peacekeeping, morphed into an excuse to “just say no.”

For the last 15 years, Kagame has at every turn invoked these memories to shoehorn the West into a nearly reflexive support for his government. Even Bill Clinton came back to apologize. Kagame has become a fixture at the United Nations in New York, regaling delegations in the Indonesian Lounge, extolling his vision of benevolent autocracy, claiming to admire Singapore as his model for economic growth and insisting that he and only he can keep Rwanda’s torn society knitted together.

In truth, the Rwandan leader presides over nothing more than hollow democracy. He has attacked and exiled any and all viable political opponents. The local press, as well as international journalists, have been bludgeoned and harassed. The regime uses the Stalinist crime of “divisionism” as a pretext to silence and prosecute any critic who dares question its policies or the state sanctioned version of the 1994 conflict. (more…)