Earlier this week, Bill Schabas had a very interesting post considering whether the recent riots in the UK amounted to crimes against humanity. He reflects on the Rome Statute’s requirement for a “State or organizational policy”, on how complementarity would apply when persons are prosecuted for ordinary domestic crimes and on the gravity threshold applied by the ICC prosecutor. It is well worth a read.

Also worth a read is the response of the Iranian President Mahmoud Ahmadinejad to the riots in the UK. This response was published in the Guardian over a week ago. Here are some extracts.

Having already offered to send an expert team to investigate human rights abuses amid the riots, the Iranian regime has gone one step further and called on the UN security council to intervene over the British government’s handling of the unrest rocking the country.

Speaking to reporters after a cabinet meeting on Wednesday, Iran’s president, Mahmoud Ahmadinejad, condemned the British government for its “violent suppression” of the protesters and called for an end to what he described as the “killing and brutal beating” of “the opposition” angry with the government’s financial policies.

“The real opposition are the people who are beaten up and killed on the streets of London, those whose voices are not heard by anyone,” Iran’s Irna state news agency quoted Ahmadinejad as saying.

The foreign ministry, went so far as to issue a statement advising against any unnecessary travel to the UK.

On Tuesday night, conservative websites sympathetic to the Islamic regime called on the Iranian government to offer refuge in its embassy in London to “UK protesters in need of protection”.

In the aftermath of Iran’s disputed presidential election in 2009, some European embassies in Tehran opened their doors to opposition protesters.

Iranian officials infuriated by the UK’s condemnation of Iran’s human rights violations in recent years, have found a unique opportunity with recent events to get back at the British government by criticising the police force for “exercising violence”.

… Ahmadinejad criticised the UN security council for remaining silent over the riots in Britain. “What else should happen for the security council to react and condemn one of its own members?”

He accused the UK authorities of portraying its opposition as a group of “looters, rioters and drug dealers”, adding: “Does Britain have this extent of drug dealers? If this is the case, they should be tried and UN should build walls surrounding their country.”

… He asked Britain to listen to the demands of its people and criticised human rights organisations for remaining silent over the violence used against British protesters.

Wonderful isn’t it?

Michael Waibel is a British Academy Postdoctoral Fellow at the University of Cambridge.

After losing a disastrous war to the Ottoman Empire in 1898, Greece was unable to service its existing debt or to pay an indemnity. The major European powers, alongside private bondholders pushed for the establishment of an international commission of financial control. Greece reluctantly agreed. The commission, consisting of representatives appointed by Austria-Hungary, Italy, Germany, France, Russia, and Britain asserted direct control over the main sources of Greek public revenue to ensure their debt was serviced. They also imposed other limits on Greek fiscal autonomy such as control over public borrowing and the money supply.

Fast-forward 113 years. Greece is at the epicentre of yet another sovereign debt crisis. On May 2010, Eurozone governments and the International Monetary Fund, in Act I of the newest Greek debt crisis, devised a 110 billion € ad hoc assistance package to prevent a possible default by Greece, but it failed convince financial markets. By covering the Greek wound with one insufficient plaster after another for the past 18 months, the Eurozone doctors have allowed the contagion to spread to major Eurozone economies, such as Spain and Italy. Policymakers have been fighting a rearguard action to get ahead of an increasingly systemic debt crisis that threatens Europe’s decade-old single currency itself.

On 21 July 2011, in Act II of the Greek Debt crisis, the European Council proposed emergency measures to shore up financial stability in the Euro area. These measures include additional financing of more than 100 billion € for Greece, lengthening of maturities and reduction in interest rates to about 3.5 percent on existing programmes for Greece, Ireland and Portugal, plus technical assistance on measures to increase competitiveness and structural reforms designed to boost economic growth.

Eurozone leaders also called upon the private sector to contribute, on a voluntary and exceptional basis, to restoring Greek debt sustainability by swapping Greek bonds maturing between 2012 and 2020. Given the implicit threat of a Greek default, it is doubtful whether the exchange is free from elements of coercion – an important factor for the rating agencies assessing the country’s creditworthiness and for whether credit default swaps, essentially insurance against sovereign defaults, will be triggered. If they are, large payment obligations by banks, insurance companies and others could be an additional channel for contagion.

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The Journal of International Criminal Justice has recently published a very interesting article by Darryl Robinson titled “The Controversy over Territorial State Referrals and Reflections on ICL Discourse“. In the article, Darryl takes issue with those who criticise the practice by which the ICC Prosecutor has accepted referrals by States of situations occuring within that State. The first three situations before the ICC (the Democratic Rep. of Congo, Uganda and the Central African Republic) came to the Court in this way.  In particular Darryl disputes the account (for example by Bill Schabas) which suggests that this practice is an unforeseen invention developed after the Rome Statute came into force and perhaps even an undesirable perversion of Rome Statute. An undesirable perversion in that it allows States to manipulate the Court, wrongly focusses attention on non-State actors (rather than State agents) and allows States to foist on the ICC their obligations to prosecute international crimes. The abstract of his article is as follows:

“This article examines some of the prominent critiques concerning territorial state referrals to the ICC (also known as ‘self-referrals’), in order to test and refine the arguments. Despite wide acceptance of the drafting history claim that such referrals were not contemplated in the negotiation of the Statute, the records expressly show the opposite. Critiques about the potential for political manipulation are significant, but reflect a tension inherent to all international criminal justice efforts, regardless of trigger mechanism. The concern about ‘selective externalization’ of prosecutions is compelling; however, the legal and normative implications are more subtle and multi-faceted than is commonly assumed. The article also ventures some preliminary observations about international criminal law (ICL) discourse in general. One observation is that although discourse focuses on points of disagreement, the interpretive community also implicitly absorbs assumptions that limit and shape legal debate. For example, the widespread but incorrect assumption that territorial state referrals were ‘not contemplated’ by the drafters has eclipsed the actual drafting history, and has framed the present legal debate concerning the supposed ‘innovation’. A related observation concerns the prospect of assuming a single vision or model of the Court and allowing that model to dictate interpretation. Multiple plausible models are compatible with the Statute, and open-minded assessment of the merits and implications of each is needed. Such models of the Court may include, for example, an ‘antagonistic’ model, a ‘catalyst’ model, a ‘reverse cooperation’ model and a ‘facility’ model.”

Darryl is a Canadian academic who has been intimately involved in the creation of the ICC, first as a Legal Officer in the Canadian Department of Foreign Affairs where he took part in the negotiations of the Rome Statute , and then as adviser to the ICC Prosecutor. He is also a friend of EJIL:Talk! and dia a great job blogging for us a the ICC Review Conference in Kampala in the summer of 2010 (see here). Given his background, Darryl is in as good a position to know, as anyone, whether self referrals were contemplated during the drafting of the Statute. I must say that I find his account to be compelling. Read the rest of this entry »

Yesterday the Guardian published a top secret policy in place for the UK intelligence service since 2002 in several versions, dealing with their obtaining intelligence from detainees in the custody of foreign services who may be subject to mistreatment. The document is entitled ‘Agency Policy on Liason with Overseas Security and Intelligence Services in Relation to Detainees Who May Be Subject to Mistreatment,’ and is available with a few redactions here. The policy is sure to be prove controversial; as readers are aware, an inquiry is underway in the UK regarding complicity of UK services in overseas torture, while a judicial review case has recently been brought before the High Court (see Dapo’s recent post). The policy has been replacedy a more anodyne and public version in 2010 by the new coalition government.

Note that there is at least one more prior policy that is yet to be disclosed, which covered circumstances in which UK agents were ‘directly involved’ in the questioning of a detainee in the custody of a foreign intelligence service (see para. 2 of this policy). That other document may prove to be at least as interesting.

One may find a number of things morally objectionable upon reading the policy – and it’s precisely these parts of the document that caught the eyes of the press, e.g. the explicit reference to negative publicity for the UK as a factor in a balancing exercise in deciding whether or not to give permission for UK agents to provide information to the overseas agency even when there is a risk of mistreatment. But what I found striking about the old policy was how legalistic it was, i.e. how legal advice was used to put limits (or not) on UK participation in overseas interrogation. The new 2010 policy is very different – it seemingly quite deliberately omits any substantial legal discussion.

What is even more striking is how the policy concludes that human rights law as such does not apply to the issues at hand, although it then proceeds to import some human rights standards in the rules it sets out. Crucially, as Dapo pointed out in his earlier post and as I mentioned in a post from a couple of years ago, the key question here is the extraterritorial application of human rights treaties. Do, say, detainees in Pakistani custody questioned by a Pakistani intelligence officer who are being fed questions or information by UK agents have rights vis-a-vis the UK under the human rights treaties to which it is a party, or is it only Pakistan which has obligations in this situation?

In para. 21, the policy answers that question in the negative:

Under section 6 of the Human Rights Act 1998 it is unlawful for a public authority to commit torture , or to inflict inhuman or degrading treatment, as this would be incompatible with a Convention right [Article 3 ECHR]. However, in order for the Act to apply to a detainee held overseas, the UK would need to have “effective control” of the area in which the detainee is located, as the primary jurisdiction of the Act is territorial. The Act is therefore unlikely to apply in situations covered by this policy.

 

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Last summer, I wrote a piece on this blog noting that the International Tribunal for the Law of the Sea (ITLOS), which had been underutilised for some years, was finally getting some substative cases to decide. Although ITLOS had decided a number of cases dealing with provisional release of vessels, and had handled requests for provisional measures in cases where the merits had been submitted to an arbitral tribunal, ITLOS had only decided one case on the merits before 2010. But in a 6 month period before the summer of 2010, 2 cases were submitted to ITLOS: one a maritime delimitation case between Bangladesh and Myanmar  and the other a request for an advisory opinion. Not a lot of activity but nonethess signifcant. Nearly one year on, the Court has had two further cases submitted to it!! Last month, Panama and Guinea Bissau agreed to submit a dispute to ITLOS relating to the detention of a vessel (see press release). In November last year, Saint Vincent and the Grenadines initiated a case against Spain at ITLOS also relating to detention of a vessel. Neither of these cases are provisional release cases (see here). That means four new cases in just over 18 months!

It is worth taking a moment to reflect on this new found confidence in ITLOS. In two of the new cases (the Bangladesh/Myanmar and the Panama/Guinea Bissau cases), the parties have agreed to refer to ITLOS, disputes which ordinarily were within the jurisdiction of arbitral tribunals under the dispute settlement system of the United Nations Convention on the Law of the Sea. In other words, rather than going to an arbitral tribunal with compulsory jurisdiction over the dispute, the parties have instead agreed to go to ITLOS.  This raises questions as to whyStates might choose a standing court over an arbitral tribunal and why the new found confidence in ITLOS (since the ICJ would also have been an option for these States). One might argue that there are a number of advantages of arbitration over judicial proceedings. For example, the parties have more influence over the composition of the tribunal, the tribunal will be much smaller - usually 5 arbitrators - than ITLOS which has 21 judges. Both these points perhaps make ITLOS’ decisions less predictable for parties. But are there advantages to resorting to ITLOS (or other standing judicial bodies) over arbitration? Clearly these four State think so.  I can think of two possible advantages. Decisions of judicial bodies may be regarded as carrying greater (political rather than legal) authority than that of arbitral tribunals. While this may be true of the ICJ, I wonder about ITLOS. Also, developing countries may get financial assistance for using ITLOS. Are there other advantages?  Also, are there advantages of using ITLOS over the ICJ? I would be interested in readers’ comments on these issues.

Today Anne Orford of the University of Melbourne Law School, JHH Weiler of the NYU School of Law, and Dino Kritsiotis of the University of Nottingham School of Law launched the Annual Junior Faculty Forum for International Law. The Forum is designed to assist junior faculty, i.e. those within the first six years of their academic careers, with their research by staging an annual competition in which six to nine individuals will be selected and asked to make presentations to the Forum in a given year: these presentations will then be paired with senior international legal scholars, who will comment on each of the presentations given to the Forum, so that the papers are eventually worked up and prepared for publication. The Forum will be an annual event on the international law calendar, and the inaugural Forum will be hosted in New York City by the Jean Monnet Center for International and Regional Economic Law & Justice; it will occur in May 2012.

Further particulars of the process are now available on www.annualjuniorfacultyforumIL.org . Selected presentations from the inaugural forum will be published in a special issue of the EJIL.

Earlier this week, the UK Foreign Secretary, William Hague announced that the UK now recognises the Libyan National Transitional Council (the rebels fighting Colonel Gaddafi’s forces) as the sole governmental authority in Libya. This was an implementation of the decision reached in the context of the Libya Contact Group meeting which I spoke about last week (see here). As part of the UK’s decision, the UK has expelled those Libyan diplomats in the UK appointed by Gaddafi and has invited the Libyan NTC to appoint a new diplomatic envoy to the UK. As indicated in my previous post, one of the consequences of the recognition decision (and perhaps one of the drivers of the decision) is that the UK is willing to release some Libyan assets in the UK for use by the NTC. In particular, the UK is unfreezing £91 million belonging to a Libyan oil company which is controlled by the NTC. However, the vast majority of the Libyan State’s assets in the UK remain frozen.

In response to all of this the Libyan Deputy Foreign Minister (by which I mean the Gaddafi govt’s Deputy Foreign Minister) declared that these moves by the UK are illegal and that Libya will sue the UK in the International Court of Justice and in British domestic courts. Libya has been involved in quite a few cases before the ICJ – recall the maritime delimitation cases with Tunisia and with Malta in the 1980s, the Lockerbie cases against the UK and the US in the 1990s - so it is perhaps no surprise to hear that they are considering another suit at the ICJ. But are there jurisdictional grounds for such a suit and what exactly might such a claim involve? Read the rest of this entry »

The Commonwealth has recently revised and updated its Model Law on the Implementation of the Rome Statute of the International Criminal Court.  The Commonwealth is an organization of 54 States that were, in the main, formerly part of the British empire. 35 of those States are parties to the Rome Statute. The Model Law provides a template that Commonwealth member States may use (and have used) in drafting their own national ICC Statutes.The Revised Model Law of 2011, updates the Commonwealth Model Law of 2004. The revision was called for by a high level expert meeting held in October 2010 (chaired by Akbhar Khan, Commonwealth Legal Director) in order to take account of the experience since the Rome Statute came into force. An expert group, consisting of representatives from States and civil Society was set up to undertake the revision. This group was chaired by Professor Charles Garraway and I had the pleasure and honour of taking part in the group. The revised Model Law and the report of the Group were adopted on July 14 by the Commonwealth Law Ministers meeting in Sydney Australia. The full text of the revised Model Law can be found here on the website of the Commonwealth Secretariat.

A summary of the key revisions can be see in the Chair’s Report to the Commonwealth Law Ministers. The group took account of developments in the Kampala Review Conference and

considered whether to include provisions on the crime of aggression in the Commonwealth model law at the present time. After considerable discussion, it was decided by the majority of the Group that further work is required and inclusion would be premature. It considered that the issue should be revisited before 2017.

One area where a change was made to the Model Law was the provision dealing with immunity. The Bashir and Gaddafi cases have highlighted the importance of clarifying the position on immunity in situations referred to the ICC by the Security Council. Section 25 of the previous Commonwealth Model Law stated that any immunity by reason of a connection with a State Party to the Rome Statute does not prevent domestic action taken in support of ICC proceedings (such as arrest and surrender to the ICC).  This provision is reflected in the domestic law of a number of commonwealth States (including the UK). However, this provision has now been extended in the revised Commonwealth Model Law, to exclude application of  immunity attaching by reason of a State with respect to which the United Nations Security Council has made a referral to the ICC or a State which, whilst not a State Party has accepted the jurisdiction of the ICC. That provision would now explicitly deal with the Bashir and Gaddafi cases.

In addition to the revised Model Law, the Commonwealth signed a Memorandum of Understanding with the International Criminal Court (see here and here).  The agreement is intended to enhance cooperation between the two organizations in particular in supporting domestic implemention of international criminal law.

The government of Colonel Gaddafi has recently issued a decree abolishing all charges in Libya’s ports in an interesting attempt to avoid the effect of sanctions imposed by the United Nations Security Council. The Security Council by Resolution 1970 and 1973 has imposed targetted sanctions on certain Libyan individuals and entities (including travel bans and asset freezes). In particular, under, para. 19 of SC Res 1973 the Council decided that:

that all States shall ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, to or for the benefit of the Libyan authorities, as designated by the Committee, or individuals or entities acting on their behalf or at their direction, or entities owned or controlled by them . . .

Clearly, this provision was not intended to impose a comprehensive trade ban with Libya as it does not expressly prevent the export of goods to Libyan territory in general (nor importation from Libyan territory in general). The provision is intended to prevent transfers of funds or assets to the Libyan authorities (meaning the government of Colonel Gaddafi).  However, if exporters to Libya (or those wishing to export from Libya) are required to pay charges to the Libyan government when their vessels and goods are at a Libyan port, they will be caught by this provision as they will then be making funds available to the Libyan authorities. So some smart lawyer must have told the Libyan government that in order to avoid what will in effect be a comprehensive ban on trade with Gaddafi controlled Libya they need to avoid the port charges.

In the latest summit meeting of the African Union (AU) held in Malabo, Equitorial Guinea, the AU Assembly of Heads of States and Governments has reiterated its opposition to a number of prosecutions at the International Criminal Court (ICC). Readers will recall that all the situations under investigation and prosecution at the ICC relate to African countries. While half of these situations were referred to the ICC by the African States themselves (Democratic Republic of Congo,Uganda, Central African Republic), the AU objected to the decision of the ICC to prosecute Sudanese President Omar Al Bashir. It has called on the UN Security Council to act under Article 16 of the Rome Statute and defer proceedings against Bashir. It has also decided that African States should not comply with the ICC with regard to the Bashir case, including a call for non-compliance with the arrest warrant for Bashir (see previous posts here). In addition, the AU has also called on the UN Security Council to defer the investigations and prosecutions in the Kenya situation (see posts by Max du Plessis and Chris Govers here and here). At the latest AU summit, the AU Assembly has reiterated these calls with regard to the Bashir case and the Kenyan situation. It has now also also called on the Security Council to defer the investigations in Libya and called on AU members not to cooperate with the ICC with regard to the recent arrest warrant for Gaddafi, his son and the Libyan intelligence chief (on which see this post).

So the tension between the AU and the ICC still seems relatively high and is worrying given the fact that the African regional group is the largest grouping among ICC States parties. However, the picture is mixed and all is not doom and gloom. Despite these AU decisions there are still positive signs of support by African States for the ICC. Firstly, one should recall that those African States that have “self-referred” matters to the ICC continue to support ICC prosecutions and to cooperate with the Court. Indeed, the AU itself has not called for non-cooperation with regard to those situations. Secondly, African States have continued to ratify the Rome Statute, the latest of which is Tunisia. Also Cote d’Ivoire as a non party has recently reconfirmed its acceptance of ICC jurisdiction over events in that country. Thirdly, even with regard to Sudan, the AU has not called for deferral of prosecutions in (or non-cooperation with the ICC with regard to) the entire situation. It has only singled out the Bashir case which is only one of the prosecutions with respect to Darfur. Fourth, the position of African States is not solidly in support of the AU position with regard to the cases where it has called for non-cooperation. Some African States have taken a different view and consistently done so. Botswana has probably been the most vocal against the AU decisions on these issues. Just days after the recent AU decision, the Goverment of Botswana issued a statement where it rejects the AU Assembly position, “reiterates her position in support of the [ICC] warrant of arrest and  ”calls on fellow members of the AU to support the ICC in carrying out its mandate to apprehend the Libyan leader, as a critical step towards alleviating the plights of the Libyan people, and paving the way for a new democratic dispensation in that country.”

There have been some questions as to whether AU Assembly decisions on this issue impose obligations on AU Members.  Read the rest of this entry »