Two recent challenges to the jurisdiction of the International Criminal Court in the Kenya situation bring out exciting questions of the essence of crimes against humanity. Defence counsel have challenged jurisdiction on the grounds that the violence in Kenya, which involved over one thousand killings and hundreds of rapes, did not constitute a crime against humanity (see: challenge, challenge and prosecution response).  This issue has divided the Pre-Trial Chamber in past proceedings.  As this is a jurisdictional challenge, the outcome can and almost certainly will be appealed to the Appeals Chamber.  The case raises extraordinarily difficult questions about the demarcation line between crimes against humanity and ‘ordinary’ crimes, and thus the role and scope of international criminal law.

Previously, in the decision to authorize the investigation, the Pre-Trial Chamber divided on this issue, with both the majority and the dissent providing compelling arguments. The ICC Statute requires a “State or organization” behind the crime against humanity; Judge Kaul in dissent argued for a more stringent standard of a “State-like” organizations, whereas Judges Trendafilova and Tarfusser adopted a more flexible “capacity” test for an organization.

The more stringent approach advanced by Judge Kaul has attracted support in thoughtful and well-reasoned recent scholarship.  My aim in this comment is simply to add that a convincing theoretical account can also be advanced on behalf of the majority’s broader approach.  I do not seek to point to any flaws in the reasoning of the dissent or the scholars favouring the more stringent approach, as their reasoning is perfectly sound and impeccable.  Indeed, I acknowledge that the “state-like” theory is internally coherent, reconcilable with limited doctrinal authorities and consistent with a sound theory of crimes against humanity.  My aim is modestly to lay alongside that theory another plausible theory, which is also internally coherent, consistent with the authorities and consistent with a sound theory of crimes against humanity. (more…)

Tamar Feldman is an attorney and director of the Legal Department at Gisha – Legal Center for Freedom of Movement. She would like to convey her deepest gratitude to Sari Bashi and Yoni Eshpar for their insightful comments on an earlier version of this note and to Leora Garton for her excellent and timely edits.

On September 1, 2011, after months of repeated postponements, the Palmer Report was leaked to the media, obliging the UN Secretary-General to present the report officially the following day. The publication of the report was intended to calm the row surrounding its conclusions, but paradoxically served only to exacerbate the diplomatic crisis between Israel and Turkey. The bout of political arm wrestling that followed may one day be studied in faculties of international relations and conflict resolution as a classic example of bad diplomacy.

This wrangling is not only foolish, it is also dangerous. The principal danger is that it could lead to a regional conflagration that would certainly be of no benefit to the residents of Gaza, who are supposedly the subject of the dispute. However the row is also dangerous since it prevents serious discussion of the contents and conclusions of the Palmer Report.

As the committee itself notes at the beginning of the report, its recommendations are not legally binding and it is clear that the committee’s main goal was to resolve the diplomatic crisis between Israel and Turkey, rather than to draw conclusions on weighty legal issues. Nevertheless, of the five committees that have examined the events surrounding the Gaza Flotilla (the Eiland Committee, the Turkel Committee, the Turkish committee, the Committee of the UN Human Rights Council, and the Committee of the UN Secretary-General), the Palmer Committee is the most senior, and also the most balanced in its composition, since its members include representatives of both Israel and Turkey.

The comprehensive report submitted by the committee presents legal determinations, as well as detailed recommendations based on these determinations. A significant portion of the report (26 pages out of a total of 105) is devoted to a description of the legal framework applied by the committee in examining the legality of the naval blockade and the flotilla incident of May 31, 2010. Accordingly, the report’s conclusions and recommendations merit more serious examination. The present essay does not claim to provide a full analysis of the report, but rather to offer some comments and to highlight a number of aspects that have been sidelined by the power struggle waged by Israel and Turkey since the flotilla.

(more…)

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.

Chris Stephen is an associate at Volterra Fietta practising public international law. He previously worked as judicial assistant to Lord Hope of Craighead and Lord Mance in the House of Lords (now the UK Supreme Court).

It is trite to state that the jurisdiction of the International Criminal Court (“ICC” or the “Court”) is complementary to the criminal jurisdiction of national courts. Due to both reasons of respect for State sovereignty and the practical constraint of limited resources, it is first and foremost the duty of national courts to effectively investigate, prosecute and punish the perpetrators of the most serious crimes of international concern. Thus it is only when a State fails in that duty, either through an inability or unwillingness to fulfil it, that the ICC may seek to step into the shoes of that State and assert jurisdiction. This is the principle of complementarity.

However, what of the precise content of that principle? When are the investigations or prosecutions conducted by a State deemed sufficient to demonstrate willingness and render a case before the ICC inadmissable? Is this a high threshold to satisfy?

A recent decision of the ICC assists in answering those questions and adds some welcome flesh to the bones of this oft-cited principle. On 30 August 2011, in The Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (ICC-01/09-02/11 OA) a majority of the Appeals Chamber (Judge Anita Ušacka dissenting) adopted a judgment dismissing an appeal brought by the Republic of Kenya challenging the admissibility of the case in light of national investigations.  (more…)

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.

Overall, the Palmer Report is of high quality and merits close attention. I would strongly urge those interested to read, at the least, the very concise summary of its findings at pages 1-6, where the conduct of Israel, the Mavi Marmara protestors and Turkey all come in for criticism.  Israel in particular is found to have used “excessive and unreasonable” measures in boarding the Mavi Marmara resulting in “unacceptable” loss of life; and to have subsequently engaged in “significant mistreatment” of those detained (pages 4-5). There is also an excellent summary of the essential steps in the legal logic of both the Turkish and Israeli national inquiry reports (at paras. 23 and paras. 46-47). The Palmer Report itself, however, concludes the blockade of Gaza to be legal. On this essential point, I consider there to be serious gaps in the Report’s logic. Before turning to this, a few points should be noted.

First, the inquiry had no direct mandate to examine legal issues or render an opinion on the applicable law (as the report notes inter alia at paras 3, 5, 6, 14 and 15). Its task was to review the reports and findings of two widely divergent national inquiries into the incident, and to: “(a) examine and identify the facts, circumstances and context of the incident; and (b) consider and recommend ways of avoiding similar incidents in the future.” It was not asked, for example, to render an opinion on the applicable law to the Secretary-General. The key legal analysis is thus contained in an appendix and represents only the views of the Chairman and Vice-Chairman; indeed, the whole report predominantly reflects the conclusion of the Chairman and Vice-Chairman, with the Israeli and Turkish panel members appending a partial concurrence and a dissent, respectively.

My own analysis of the blockade is available in the current pre-publication British Yearbook of International Law. I only sketch the path of my analysis here, but to my mind these are the questions that any balanced assessment of the legality of the blockade must address. Starting from the proposition that blockade is ordinarily only available in an international armed conflict (IAC), the relevant questions are:

(more…)

Last week I took part in a BBC radio programme (“Iconoclasts”) debating whether the Geneva Conventions should apply to the war against terrorism. The programme (which can be heard by clicking here) addressed three issues:

- Do the Geneva Conventions apply to ‘the war on terror’?

- What is the difference between ‘tough interrogation’ and torture?

- If the Geneva Conventions needs updating or replacing, what should the new rules be?

The Iconoclast in the programme was Charlie Wolf, an American radio presenter and commentator based in the UK. He was formerly communications director of Republicans Abroad UK. In the programme, he took a similar position to that  first taken by the Bush Administration after September 11, i.e. that the”war on terror” was not within the contemplation of the drafters of the Geneva Convention and that the terrorists did not deserve the protections of the Geneva Convention as they did not respect them. These issues were addressed by the US Supreme Court in 2006, in Hamdan v. Rumsfeld when it ruled that at least one provision of the Geneva Conventions, namely Common Article 3, applies to the US conflict with Al Qaeda. After that case, the Bush Administration changed its position and argued that it was engaged in a non-international armed conflict with Al Qaeda to which the rules of international humanitarian law applicable in non-international conflicts applied.  Of course, there is a broader question as to whether it can be properly argued that there is a global war on terror or even a global war with Al Qaeda which qualifies as an armed conflict under international law.

My co-panelists in the programme, in addition to Charlie Wolf, were Richard Norton-Taylor, the Guardian Newspaper’s Security Editor and Robert Barnidge Jr who teaches international law at the University of Reading in the UK.

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.

(more…)

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.

* * *

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.

(more…)

As the conflict in Libya appears to be drawing to a close, more allegations are surfacing that war crimes have been committed, and fears have been expressed that reprisals may occur.  The allegations made against the Qadhafi forces of torture and wilful killing (see here and here) are grave, but a Human Rights Watch report that alleges that Libyan dissident forces have unjustifiably damaged property, beaten individuals, and looted hospitals, homes and shops, is also disconcerting. 

These allegations are at odds with the declared policy of the Libyan National Transitional Council (NTC) which, on March 24 stated, in relation to the treatment of detainees and prisoners, that “its policies strictly adhere to the ‘Geneva Convention relative to the Treatment of Prisoners of War’ as well as with the ethical and moral values of the Libyan society”.  This statement continued:

“1.        Any Libyan caught whether they be military personnel or citizens recruited to cause sabotage and spread chaos, should not be titled as ‘Prisoner’ but as a Libyan brother (or sister) who has been deceived.

2.         All prisoners and detainees will be provided with food, water and necessary medical assistance and will be treated humanely, without the use of aggression in any form. The NTC will vow to punish those who violate this code and will allow local and international human rights organizations to freely visit and talk to the detainees and prisoners at any time.”

Further, on May 19 the NTC launched a frontline manual on the fundamental rules of armed conflict (see here for the Manual). This has been distributed in various forms, including sending extracts as text messages on mobile phones.  This manual was intended to demonstrate its commitment to do its best to ensure that its forces would adhere to the principles of international humanitarian law, and thus minimize harm to the Libyan people.  In its press release no.21 (which is not on its website), the NTC stated:

 “We recognise that many of those men and women who have taken up arms in opposition to the Qadhafi regime are not combatants who have been formerly trained in the laws of armed conflict. As such, these guidelines were requested in order to help instruct them, as rapidly as possible, in the fundamental rules which they must respect, in particular those relating to the humane treatment of detainees and to targeting in an armed conflict.”

Shortly after the outbreak of conflict in Libya, some expatriate lawyers established a group, Lawyers for Justice in Libya (LFJL) which has the aim of promoting human rights in Libya and, in particular, investigating and documenting possible crimes against humanity committed by the Qadhafi regime since 15 February 2011, and also human rights abuses committed since that regime came to power 42 years ago.

As the group organising Libyan dissident forces, the NTC did not want to “act like Qadhafi and his forces”, it asked LFJL to advise on the applicable rules of the law of armed conflict.  Through personal contacts, LFJL assembled a small group based in the School of Oriental and African Studies, University of London, to draw up basic guidelines for use in the field. We were asked to focus on two areas: guidelines for the detention of captured Qadhafi forces, and guidelines on targeting. Our brief was to provide concise guidance which would set out basic legal standards with the aim of advising how the dissident forces could avoid breaching the law of armed conflict or, for that matter, expose themselves to liability under international criminal law.

Accordingly, these guidelines have two functions: to set out basic standards of behaviour, but also to provide standards of accountability. (more…)