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Home International Tribunals Archive for category "International Criminal Court"

ICC Issues New Decision on Al-Bashir’s Immunities ‒ But Gets the Law Wrong … Again

Published on April 18, 2014        Author: 

André de Hoogh.croppedAbel Knottnerus.croppedAndré de Hoogh (pictured left) is a Senior Lecturer in International Law in the Faculty of Law of the University of Groningen. Abel S. Knottnerus (pictured right) is a PhD Researcher at the Legal Theory Department of the University of Groningen.

Last week Pre-Trial Chamber II (PTC) issued a new decision on the obligation of ICC States Parties to arrest President Omar Al-Bashir irrespective of his immunities as Head of State (here). The PTC found that the Democratic Republic of the Congo (DRC) failed to cooperate with the Court by not arresting the Sudanese President during his visit to the country earlier this year and decided to refer the matter to the Assembly of States Parties and the Security Council.

This finding does not come as surprise. The PTC established in previous decisions that all States Parties have an obligation to arrest Al-Bashir and found that Chad and Malawi failed to comply with this obligation by welcoming Al-Bashir on their territory in 2011. However, the motivation underlying the Court’s latest decision is novel. In contrast to the much debated rulings on the non-cooperation of Malawi (here) and Chad (here), the PTC did not base its new decision on an exception existing under customary international law to the personal immunities of Heads of State when they face prosecution before an international criminal tribunal. Instead, the PTC held that Security Council Resolution 1593, which referred the situation in Darfur to the Court, “implicitly waived the immunities granted to Omar Al-Bashir under international law and attached to his position as a Head of State” (para. 29).

As readers might recall from previous posts (here), Dapo Akande has advised the PTC to follow a similar “route” on this issue. In his posts and publications (here, for other commentators see here and here), he has maintained that the Court could decide:

“[that the Security Council’s referral] has the consequence that Sudan (or Libya) is bound by the Statute (including Article 27)… [T]his would therefore mean that those States are to be regarded as in the same position as a State party to the Rome Statute” (here).

In this post, we want to make a number of provisional – but already quite critical – observations on the Chamber’s new decision. Most importantly, this post is meant to give a kick-start to the discussion on the Court’s remarkable change of heart. Read the rest of this entry…

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The AU’s Extraordinary Summit decisions on Africa-ICC Relationship

Published on October 28, 2013        Author: 

Dr Solomon Ayele Dersso is a senior researcher at the Institute for Security Studies, Addis Ababa and Adjunct Professor of Human Rights, College of Governance, Addis Ababa University.

Introduction

The African Union (AU) Assembly, the highest decision making body of the continental organization, took a decision on Africa’sAfrican Union relationship with the International Criminal Court (ICC) at its extraordinary summit held on 12 October 2013. In this commentary I wish to reflect on the details of the major points of the decision, their likely outcome and their implications with respect to a) the on-going Kenyan cases and b) immediate future of Africa-ICC relationship. (photo, African Union headquarters, credit)

As I will show below, the implication of the decision is that not only that Africa-ICC relationship is today worse than before the summit but also there is serious possibility that it would even get much worse.

Immediate context for the extraordinary summit

With the ascendance of Uhuru Kenyata and William Ruto to power in Kenya through generally free and fair elections taking advantage of the cases opened against them at the ICC, a clear case of tension between popular sovereignty (expressed through the ballot) and the demands of international justice arose. This issue predictably emerged on the agenda of the African Union when Uhuru Kenyata attended for the first time as President of Kenya the summit of the AU Assembly held in May 2013.

During the debate at the AU Assembly, many expressed the view that the continuation of the ICC cases against President Kenyata and his deputy Ruto undermines the sovereignty of the people of Kenya who expressed their will in a vote to represent them as their leaders and threatens the process of reconciliation in the country. The 21st summit of the AU Assembly accordingly adopted a decision (at p. 14) requesting the ICC to refer back to Kenya its cases against Kenyan President Kenyata and his deputy. Read the rest of this entry…

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Prosecution of Heads of States and Other Senior Officials at the ICC: Map of the Scholarship

Published on October 14, 2013        Author: 

MerelMerel Alstein is Commissioning Editor at Oxford University Press responsible for publishing in the area of international law.

A few weeks ago, John Louth put together an index of discussions on the international law aspects of the Syria crisis, covering debates in blogs and newspaper articles. The idea behind it was that blog posts have become an important form of scholarly commentary and deserve to move away from their ephemeral status. A post that is widely read and appreciated when it publishes drops off the front page a few days later, but might still be hugely relevant to someone researching the topic months (or even years) later.

I have created a new map which looks at a number of issues surrounding the prosecution of heads of state and other senior officials at the ICC. Just like the Syria map, it sits on our Oxford Public International Law platform, together with OUP materials on the ICC that we have made freely available. Alongside topical questions like the impact of Kenya’s possible withdrawal from the Rome Statute and William Ruto’s request not to be continuously present at his trial, the map focuses on issues of immunity and third states’ obligations to arrest and surrender, which tend to come up time and time again. The map’s aim is to provide a quick overview of the relevant legal problems and controversies but also to create an archive of scholarship that can be referred back to when the ICC unseals a new arrest warrant for a head of state or when Bashir next threatens to visit another country.

Other issues relating to the ICC will be added to the map over time, just as the current sections will be expanded with new posts, articles and, eventually, books. I would very much welcome suggestions as to what is missing from the map and how it could be improved.

Our intention is to keep creating debate maps for important new developments or ongoing news stories that raise questions about international law. We would love to hear from you if you have an idea for a new map or if you would like to help us create one. You can send me an email at merel.alstein{at}oup(.)com.

 

 

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Can the United States Deny Sudanese President Bashir a Visa to Attend the UN General Assembly or Arrest Him?

Published on September 18, 2013        Author: 

The Sudanese Government has applied to the United States for a visa that will enable Sudanese President Omar Al-Bashir to attend the United Nations General Assembly session which starts this week (see BBC report here). The International Criminal Court issued an arrest warrant for Bashir in 2009 and whenever he has travelled abroad since then questions have arisen as to whether the host state ought to arrest him or not. The United States is, of course, not a party to the ICC Statute and therefore does not have an obligation to arrest Bashir. With respect to the US two questions arise. First, may the US deny Bashir entry to the US given that Bashir is seeking to attend the UN General Assembly as a representative of Sudan? Second, if Bashir were to be granted a visa and permitted entry, may the US arrest him whilst there for the GA session? I foreshadowed these very issues in the final section of a an article I wrote on Bashir’s Immunities, in the 2009 volume of the Journal of International Criminal Justice. In that piece, I argued that the despite the immunity that Heads of State are ordinarily entitled to under international law, the referral of the Sudan situation to the ICC implicitly made Article 27 of the ICC Statute (which removes the  immunity of state officials) applicable to Sudan. I also argued that “Given that the Statute operates in this case not as a treaty but by virtue of a Security Council resolution it may apply even to non-parties. [Non-parties to the ICC Statute] have no obligations under the Statute to arrest  . . . [h]owever, they have the right to deny immunity as a result of the Security Council’s implicit decision to adopt Article 27” (p. 348). However, I went on to state that:

“Despite the arguments above, there is one set of immunities that may not be removed by the Security Council. These are the immunities of representatives to the United Nations” (p. 351).

After discussing the obligation of the US to confer visas to those travelling to to the US to attend meetings of the General Assembly, I concluded that:

 “ . . . if Al Bashir were bold enough he would not only have the right to represent his state at UN meetings, he would be immune from arrest were he to do so” (p. 352).

The US Obligation to Grant a Visa

The US, as host State to the United Nations has an obligation to permit representatives of member States (and other persons invited to the UN) entry to the US for the purpose of attending meetings of the principal and subsidiary organs of the United Nations. This obligation is derived from three sources which are of increasing specificity in regulating the visa issue. Read the rest of this entry…

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Kenya Should Reconsider Proposed Withdrawal from the ICC

Published on September 18, 2013        Author: 

picture_2Charles C. Jalloh is currently a Visiting Associate Professor at the Florida International University College of Law and an Assistant Professor at the University of Pittsburgh, School of Law.

On September 6, 2013, a majority of Kenya’s National Assembly voted in favor of a motion, introduced by the Leader of the Majority Party, Aden Duale, urging the government to “urgently undertake measures to immediately withdraw” the influential East African nation from the Rome Statute which established the International Criminal Court (ICC). The motion claimed that there has been a “fundamental change in the circumstances relating to the governance” of the country given that President Uhuru Kenyatta and Vice-President William Ruto, both of whom are under indictment by the ICC for alleged involvement with crimes against humanity, were “lawfully elected” under the Constitution of Kenya [PDF] on March 4, 2013.

The motion, which also resolved to soon table a law that would repeal the country’s International Crimes Act, which domesticated the Rome Statute, raises several important issues at the intersection of law and politics. I argue that there are compelling legal reasons why the Kenyan government should not heed what the opposition party has described as an “ill considered” recommendation urging the executive branch to make Kenya the first and only country to withdraw from the ICC.

I submit that the reputational and other costs of withdrawing from the ICC regime for Kenya far outweigh the largely symbolic political benefits that might be gained from any such withdrawal. This is all the more so because such a move will have no legal effect on the ongoing cases against the three Kenyans indicted by the Court.

Read the rest of this entry…

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The Course Catalogue of The Hague Academy as a Timeline of International Law

Published on August 26, 2013        Author: 

Sadie BlanchardSadie Blanchard is a Research Fellow at the Max Planck Institute for International, European and Regulatory Procedural Law.

The Hague Academy of International Law (logo, below right, credit) has offered annual courses in public and private international law for eighty-five years as part of its founding objective of promoting “peace through law.” This year’s courses on public international law ended in July and the private international law courses ended this month. Each year the public international law course attracts students from up to eighty countries worldwide, with this year’s hosting a record number of nearly 350 students. The 2013 General Course on Public International Law was delivered by Professor James Crawford (Cambridge) and was titled “The Course of International Law. Practice and Process of the Law of Nations”. Other courses in 2013 included a course by Professor Eyal Benvenisti (Tel Aviv), “The International Law of Global Governance”; a course by Professor Robert Kolb (Geneva) on “Article 103 of the United Nations Charter;” and a course by Professor Anna Wyrozumska (Lodz)  on “The Role of Domestic Judges in the Development of International Law“.

The form and content of Academy courses over the years reflect the evolution of international law and the unfolding of global affairs, and at times Academy courses have even been harbingers of things to come. This post highlights a few examples.

After over forty years of holding courses only in French—then the language of diplomacy—Hague Academywhen the Academy reconvened in 1947 after a hiatus during World War II, it offered its first courses in English, reflecting the rise of U.S. global power after the war. That same year, as the UN General Assembly drafted and considered the Universal Declaration of Human Rights, Hersch Lauterpacht taught The International Protection of Human Rights. The Universal Declaration was adopted the following year.

Interestingly, while among States human rights did not gather steam as an international legal doctrine until after World War II, the courses of The Hague Academy remind us that international law scholars were laying its foundation well before then. Read the rest of this entry…

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Can the ICC Prosecute for Use of Chemical Weapons in Syria?

Published on August 23, 2013        Author: 

Recent reports regarding the possible use of chemical weapons in Syria are very disturbing indeed. If it turns out that there is concrete evidence that chemical weapons have been used, many will hope this will (finally) provoke action by the Security Council. There will inevitably be calls for accountability of those responsible and hopes that the Syrian situation will be referred to the International Criminal Court (ICC). But even if the Syrian situation is referred to the ICC, can the Court prosecute for use of chemical weapons in Syria.

As Syria is not a party to the Statute of the International Criminal Court, the ICC will only have jurisdiction over events in Syria if there is a Security Council referral (Arts 12 & 13, ICC Statute). If the Council were to refer the situation in Syria, it is possible that attacks involving the use of chemical weapons may be prosecuted as part of a charge of crimes against humanity or as part of the war crime of intentionally directing attacks against a civilian population. In such a case, the use of chemical weapons would not form part of the core of the charge but would simply be the means by which the attack has taken place. Proving use of chemical weapons would not be necessary to sustain either charge. However, it is interesting to consider whether the use of chemical weapons would itself be a crime under the ICC Statute in the Syrian situation. I think the answer is yes, but, perhaps surprisingly, the answer is not as straightforward as one might have thought or would have hoped.

Does the ICC Statute Specifically Prohibit the Use of Chemical Weapons?

Despite attempts to include a provision that would have specifically and expressly criminalised the use of chemical weapons, the ICC Statute adopted in Rome 1998 did not mention chemical weapons by name (see Bill Schabas’ post here). However, Article 8(2)(b) of the Statute dealing with war crimes includes 3 provisions that might be interpreted as applying to chemical weapons. Art. 8(2)(b)xvii makes it a war crime to employ “poison or poisoned weapons”. Para. xvii refers to “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices. Para. xx makes it a war crime to employ “weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. . . .” However, that last provision only prohibits those weapons if they are subject to a comprehensive prohibition and included in an annex to the Statute. Unfortunately, no annex to this provision has been agreed so no one can (yet) be prosecuted under para xx.

An argument has been made that the provisions of the ICC Statute listed above do not cover chemical and biological weapons Read the rest of this entry…

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The Security Council and the ICC

Published on July 3, 2013        Author: 

The University of California Irvine Law School’s International Justice Clinic recently issued an important report examining the relationship between the UN Security Council and the International Criminal Court.   The report, authored by UCI Irvine Prof David Kaye, is the culmination of a project on the Council and the Court run by UC Irvine, in collaboration with the University of California Los Angeles (UCLA) Burkle Center for International Relations.  The purpose of the project was to examine the relationship between the Security Council and the ICC and to seek concrete ways in which the Council can improve its support to the ICC. At the end of November last year, I attended a closed workshop, held as part of the project, which was attended by a small but diverse and impressive group of scholars and practitioners. Participants included academics, members of civil society, current or former officials from governments, including each of the P5, as well as representatives from the ICC bench, office of the prosecutor and the registry. Over two days, we discussed a number of stumbling blocks in the relationship between the Council and the Court, in particular the difficulties in securing referrals by the Council to the Court, problems regarding the framing of referrals, issues of funding and cooperation etc.

The report makes a couple of institutional or structural recommendations for improving the dialogue between the Council and the Court and for building support within the Council for the work of the Court. It also makes a number of specific policy recommendations regarding matters which should be addressed in Council resolutions relating to the ICC. The recommendations are as follows:

1. Extension of the obligations of cooperation with the Court to all states, not just the situation countries themselves, especially in referral situations but also possibly in those circumstances where the Council has expressed support for the work of the Court in non-referral situations;

 2. Provision of timely substantive responses to Court findings of non-cooperation that are communicated to the Council, as the Court has done on several occasions;

3. Extension of key Rome Statute protections of privileges and immunities in referral and other situations, thereby allowing Court officials to conduct their work safely and without interference from local actors;

4. Regular and streamlined imposition of financial, travel, and diplomatic sanctions on those accused by the ICC, helping to dry up the accused’s resources and highlight the importance of state cooperation in transferring such individuals to ICC custody;

 5. Promotion of UN and outside funding in referral situations, eliminating the language from referral resolutions purporting to disallow UN funding;

 6. Elimination of jurisdictional restrictions related to non-parties in referral resolutions, enabling the Court to exercise independence in identifying those most responsible for the most serious crimes in situation countries; and

7. Initiation of a transparent conversation about the factors relevant to Council referral of situations to the Court, recognizing that the Council is highly unlikely to identify specific criteria to guide future referrals.

It seemed to me, from the discussions at the workshop, that recommendations 5 and 6 are achievable in the short term. The relevant provisions in Council referral resolutions are added in order to meet the concerns of the US. Read the rest of this entry…

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Germany and Botswana ratify the Kampala Amendments on the Crime of Aggression: 7 ratifications, 23 more ratifications to go!

Published on June 10, 2013        Author: 

meagan_wongMeagan Wong, PhD Candidate, Leiden University. She is currently a Visiting Scholar at the Lauterpacht Centre for International Law, University of Cambridge. She was accredited as an advisor to the Liechtenstein delegation at the most recent Assembly of States Parties to the Rome Statute of the International Criminal Court (Nov 2012).

Last month Dapo posted on this blog about where States Parties to the Statute of the International Criminal Court stand in the process of ratifying the Kampala Amendments on the Crime of Aggression. This is a follow-up to his post noting some recent developments with regard to the Kampala Amendments. Last week – on the 3 June 2013 – Germany’s Foreign Minister Guido Westerwelle deposited Germany’s instrument of ratification of the Kampala Amendments with the United Nations, thus making Germany the sixth ICC State Party to ratify the Amendments on the Crime of Aggression and the Amendments on War Crimes adopted in Kampala in 2010. One day later, Botswana ratified the Kampala Amendments see here. The significance of the ratification by these two States Parties is that Germany not only represents the first NATO member to ratify but was the first State whose leaders were convicted of crimes against peace. Botswana is the first African state to ratify. On 8 May 2013, Liechtenstein became the first country for which the amendments have entered into force, as Liechtenstein ratified the amendments a year previously (8 May 2012). Other countries that have ratified are: Samoa (25th September 2012) here; Trinidad & Tobago (13th November 2012) here; Luxembourg 15th January 2013 here ; and Estonia (27th March 2013) here.

As Article 15 bis (3) of the Kampala Amendments stipulates that at least 30 ratifications are needed by 2017 to activate the ICC’s jurisdiction over the crime of aggression, 23 more ratifications are needed. The Global Campaign for the Ratification and Implementation of the Kampala Amendments (“the Global Campaign”), initiated by the Permanent Mission to the UN in New York, in conjunction with the Global Institute for the Prevention of the Crime of Aggression, is leading efforts to ensure that the jurisdiction of the ICC over aggression is brought into effect as soon as possible.

One of the many marvels of the Kampala Amendments is that it demonstrates how small states can play an influential and significant role in shaping international law. It is widely acknowledged that the crime of aggression amendments would not have been adopted without the leadership of Liechtenstein. The ambassador of Liechtenstein to the United Nations (NY), H.E. Christian Wenaweser, was the President of the 2010 Review Conference and had steered the negotiation process ever since 2003, assisted by his legal advisor and Deputy Stefan Barriga. Read the rest of this entry…

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Stepping Up the Pace of Ratifications of the ICC Amendments on the Crime of Aggression : Where do we stand now?

Published on May 1, 2013        Author: 

President Khama of Botswana (right), Dr Athaliah Molokomme, Attorney General of Botswana (left), Mr Khama, Minister of Defence of Botswana (centre).

In the summer of 2010, the Assembly of States Parties to the Statute of the International Criminal Court, meeting in Kampala, Uganda, adopted amendments to the ICC Statute which define the crime of aggression and provide for the jurisdiction of the ICC over aggression. Under those amendments, the ICC will only be able to exercise jurisdiction over the crime of aggression once 30 States have ratified or accepted the amendments. Furthermore, the Court may not exercise jurisdiction over aggression until 1 January 2017. The amendment provides that there will also be the need for a further decision of the Assembly of States Parties to the ICC Statute to activate the jurisdiction of the Court over aggression. Unlike the Rome Statute of the ICC, ratifications of the Kampala amendments seemed to be going slowly with only 3 states (Liechtenstein, Samoa and Trinidad & Tobago) ratifying the amendments by the end of 2012. However, the pace of ratifications seems set to pick up in 2013. Luxembourg ratified the aggression amendment in January and Estonia did the same in March. In addition, two states - Germany and Botswana - have now completed their domestic processes for ratification and at least one other (Uruguay) is well on the way. The German parliament adopted its Act of Ratification of the Kampala Amendments at the end of February and should deposit its instrument of ratification soon. On April 15, the President of Botswana signed Botswana’s instrument of ratification of the Kampala amendment at a workshop held in Botswana that I was speaking at. He signed the instrument of ratification at a dramatic opening session of a workshop held for African governments on ratification and implementation of the crime of aggression. [On a personal note, I had never seen an instrument of ratification being signed before and I still have not as I arrived at the workshop after the opening session! The workshop was organized by the Government of Liechtenstein and the Global Institute for the Prevention of the Crime of Aggression which has a great website that contains many resources on the crime of aggression.] On April 10, one house of the Uruguayan Parliament (the Chamber of Deputies) approved the bill on ratification of the Kampala Amendments unanimously and the bill is set to go to Uruguayan Senate in the coming weeks (see this report by the Parliamentarians for Global Action).

For the court to be able to exercise jurisdiction over aggression by the beginning of 2017, there will actually need to be 30 ratifications by the beginning of 2016 as the amendments only take effect for each State party one year after the instrument of ratification is deposited. There seems to be a possibility that this number will be reached but that is not so clear. Read the rest of this entry…

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