Readers may be interested in a 2002 EJIL Symposium containing a series of essays which evaluate Franck’s Fairness in International Law and International Institutions (1995)
The International Criminal Court has recently launched a new version of its Legal Tools site. The site contains an invaluable online library on international criminal law which will probably be the first port of call for those working in this field. According to the release announcing the launch:
The Legal Tools amount to a knowledge-transfer platform for international criminal and human rights law made freely available to the general public through the website of the ICC. The Legal Tools Database is the most comprehensive on international criminal law. It contains more than 40,000 documents, including decisions and indictments from all international or internationalised criminal tribunals, preparatory works of the ICC, case documents from the ICC, treaties, information about national legal systems, and relevant decisions from national courts. The service also contains a new knowledge-base on national legislation implementing the ICC Statute.
The Legal Tools were designed and developed in the Legal Advisory Section of the ICC Office of the Prosecutor by Morten Bergsmo and his team, while a network of outsourcing partners are collecting and registering the documents, metadata and keywords in the Legal Tools Database: the Norwegian Centre for Human Rights (University of Oslo), the Human Rights Law Centre (University of Nottingham), the International Research and Documentation Centre for War Crimes Trials (University of Marburg), the Institute of International Law and International Relations (University of Graz), the T.M.C. Asser Institute, the Hague Institute for the Internationalisation of Law and TRIAL (Track Impunity Always). The Nottingham Human Rights Law Centre has developed the knowledge-base on implementing legislation. The EEAR (European academy of eJustice) is responsible for technical implementation of the Legal Tools Database and Website.
Editors Note: This post was originally posted on EJIL:Talk! as a comment by Pål Wrange LLM, PhD (Stockholm) in response to last week’s discussion on Prof. Koskenniemi’s article. Mr Wrange, Principal Legal Advisor on public international law at the Swedish Ministry for Foreign Affairs, is currently on leave of absence and working as a consultant in Kampala
I have engaged with Martti’s work since 1989, when I first read From Apology to Utopia (for example, see my Impartial or Uninvolved? The Anatomy of 20th Century Doctrine on the Law of Neutrality (Visby: Dokumaten.se, 2007) 62-73) . An academic gone practitioner (the opposite career move to Martti’s, I have always felt at home in his texts – the mix of seriousness of purpose and irony of tone, the fealty to old-fashioned Bildung, the shared heritage of continental theory and Anglo-Saxon dominated practice. His theoretical theses, like indeterminacy, have been addressed by me at quite some length elsewhere - admiringly and critically (in the original sense of that world, of course). Instead of the usual extensive quotes and reverences, let me this time pay tribute to Martti by reflecting, from the floor as it were, on two themes which Martti puts up front in his blog contribution – his criticism of managerialism and, in particular, the fragmentation of international law.
I presently live in Uganda, and have since 2007 been involved in various aspects of the peace process between the Government and the Lord’s Resistance Army (LRA). As many readers of this blog will know, in 2005 the ICC handed down five arrest warrants against Joseph Kony and other commanders of the LRA. These arrest warrants were extremely controversial in this country, partly because they were said to derail the peace process, partly because they did not correspond with many people’s perception of justice, and partly because they were felt to constitute a heavy-handed intervention by ‘global governance’. While I believe that neither of these points is completely wrong, let me also say for the record that I think that the decisions to request and issue the arrest warrants were right (which is not to say that the ICC could not have done things different, and much more sensitively). Be that as it may, the important point in this context is that the ICC has been quite central to the peace debate in Uganda ever since the ‘self-referral’ by the Government to the ICC became public in 2004.
So, there is a peace-process, fledgling for sure, but still holding real prospects for peace. And then there is a threat to this peace-process, in the form of a prosecution by an international body. No one will lay down his arms if that means going to jail. Now, how do you think about this problem? A human rights issue? An international humanitarian law issue? An issue of the recently formed – and now fully established — field of international criminal law? An issue of conflict resolution? An issue of domestic law (criminal law or constitutional law)? Or perhaps an issue of transitional justice?
It is obvious that the mere choice of field from which to analyse situation does not answer any questions. Read the rest of this entry…
Professor Iain Scobbie, is the Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London
The burden of Professor Koskenniemi’s article appears to bear an uncanny likeness to St Teresa of Avila’s aphorism that answered prayers cause more tears than those that remain unanswered. His article is both a restatement and development of the concerns he addressed twenty years ago in “The Politics of International Law”, namely that law is inevitably indeterminate and must always defer to contested political assumptions (or discretion) in order to impose a decision and that, consequently, international lawyers must be reflective and take responsibility for their actions in both the practice and doctrinal development of the discipline. He has consistently argued that a failure to examine one’s actions contributes to the perpetuation of the problems that international law claims to alleviate. There is merit in this argument: as Colin Warbrick pointed out, a refusal to think about what one is doing may amount to a “latent theory” which rests content with the status quo and seeks neither to question nor justify either the substance or practice of international law (see Warbrick C, “The theory of international law: is there an English contribution?”, in Allott P et al, Theory and international law: an introduction (BIICL: London: 1991).
But to speak of the “discipline” of international law is perhaps to impose a falsely monolothic character on the enterprise. As Professor Koskenniemi argues, one of the characteristics of contemporary international legal practice is specialisation, where discrete sets of substantive issues are packaged into categories such as humans right law or trade law or environmental law, each of which have attendant specialised vocabularies that intellectually structure the possibilities and limits of the given field. Special regimes have thereby been created “that cater for special audiences with special interests and special ethos”. Each of these embody structural biases in the form of dominant expectations about the values, actors and solutions appropriate to that specialisation, which thus affect affect practical outcomes . These expectations differ from specialisation to specialisation. Participants conceptualise issues in ways which locate them within a particular specialisation in order to pull on the biases encoded within that specialisation. In doing so they highlight some elements of a situation while disregarding others. This act of classification is often seen as natural or neutral, rather that one which chooses between contested categories which emphasise conflicting values and thus determine the range of possible or permissible outcomes. Consequently international lawyers should examine the implications of their classification of an issue. Professor Koskenniemi agrees with David Kennedy’s observation that international lawyers often have recourse to using specialised vocabularies and institutions without reflecting on their effect in the real world, but continues that if his indeterminancy thesis is correct, then these vocabularies and institutions must themselves be sites of controversy and compromise. Thus an agreement on broad objectives may lead to disagreement on how these are to be achieved, and different political approaches may be adopted to the same given issue—“One needs to know whose understanding of ‘human rights’ or which notion of security ought to be preferred and, once that preference is fixed, what type of action will best support it”. This requires detachment–“strategic sensitivity and the pursuit of critical distance”—from the institution chosen and the objectives it pursues in order that one is not blinded by, but rather may apprehend, its particular structural bias.
Professor Koskenniemi’s indeterminacy thesis may be seen to have affinities with one of the principal strands of American legal realism, rule scepticism, which argued that uncertainty lies in the very formulation of rules, and thus judicial decisions cannot not lay claim to being simply the inexorable application of the law to the issue in question. Read the rest of this entry…
Dr Jason Beckett is a Lecturer in Law at the University of Leicester (UK). His publications include The End of Customary Internaitonal Law: A Purposive Analyis of Structural Indeterminacy (2008) as well as a couple of articles in the European Journal of International Law (in 2001 (here) and 2005) dealing with international law theory.
It is a privilege, as well as a pleasure, to be given the opportunity to comment (once more) on the works of Martti Koskenniemi. To be asked to do so in tandem with Iain Scobbie brings a symmetry to that pleasure. Both are scholars I have long admired, and men I am honoured to consider friends. But the symmetry runs deeper than this, as whilst Iain wrote the best review essay of the first edition of Koskenniemi’s book: From Apology to Utopia (FATU), it is my claim to fame to have written (by far I suspect) the longest review of the second (see here). Martti’s thought has evolved in those twenty years, as has my response to it. Yet his has retained a consistency which mine has not. Iain’s, I believe, comes somewhere in between. I suspect he remains opposed to the central strands of Koskenniemi’s thinking, yet he has learned from them, softening his stance in some regards. But what constitutes Koskenniemi’s thought? What, if anything, is its central tenet?
Indeterminacy, contingency, false necessity, critique, and perhaps pessimism (or, from another perspective, an unjustifiable utopian optimism) seem obvious candidates; but I would reject them all, not outright, but as epiphenomenal. To my mind, the central thrust of Martti’s work is a demand for responsibility, a demand that we recognise and accept our implications in both the project of Public International Law (PIL), and its “effects in the world of outcomes”; (p. 12 – unless otherwise indicated, all page references are Koskenniemi’s latest EJIL article) a demand that we take responsibility for our choices.
But this demand is coupled to a resigned acceptance of the historical irony of (modern?) international law. In Koskenniemi’s narrative, PIL is (always) a normative project. Its best proponents, those who pursued their progressive politics through PIL. “International law was born from a move to defend a liberal-internationalist project in a time of danger and opportunity.” (p. 18) But international law was also a professional technique; indeed it adopted a technique of technicalisation and professionalisation precisely as the best way to pursue its (then) progressive mission.
The irony, of course, is that the means became an end. PIL bought into its own rhetoric of technical expertise, and the pursuit of politics became the effacement of politics. From a political project, PIL grew into a demand for the anti-political, the technical, the correct, the necessary. In this evolution, political responsibility was lost, replaced by technical expertise and false necessity. It was against this loss and this delusion that Koskenniemi’s own project – nothing less than the rebirth of a (cosmopolitan?) PIL – was initiated. That project has not changed, but in some ways, its target ‘mainstream PIL’ has.
PIL it is a Changin’:
The Politics of International Law sought to demonstrate the linguistic and structural indeterminacy of a PIL perceived – and perceiving itself – as unitary, an attempt (albeit doomed) to “make the scales fall from the eyes of the professionals”. (p. 8 ) Perhaps with a wider, though never to my knowledge explicitly articulated, ambition to unmask PIL publically; to demonstrate that the Emperor wore no clothes. An attempt to fracture the legitimatory ideology of PIL. Certainly, this was the effect it would have on me, but then, I belonged always to that most naïve class of international lawyer, the professional academic. Read the rest of this entry…
The essay (see here) examines some of the changes in my own thinking about the politics of engaging in international law since the original publication of the article (see here) that opened the first issue of EJIL in 1990. The essay points to the change of focus from indeterminacy (to which I am as committed as ever) of legal arguments to the structural biases of international institutions. I still think the study of language must remain an important part of the critical project. That study must now focus on the idiolect of the particular technical fields have occupied the centre of the discipline. In fact, the emergence of numerous specialised fields of international law, suggests that the centre of the discipline may have completely collapsed. Much of this has to do with the politics of definition, that is to say, the strategic practice of defining international situations and problems in new expert languages so as to gain control over them. There are two distinct approaches to this internal power-struggle. One, persuaded by the regimes which are bold in ambition and able to rely on the support of some powerful sector of the political world aims at changing the general bias of the law by bringing it closer to its own. Another, more modest in its ambitions but not necessarily less effective, aims at establishing patterned exceptions to the well established classical concepts, seemingly without intercepting the application of these old biases on a general level. This approach does not establish new rules, but new exceptions to the old rules owing to new emerging “challenges”.
With this, the politics of international law has taken the form of struggles for jurisdiction. Because each specialist vocabulary claims to be applicable to everything, this conflict cannot be managed by comparing them against each other. Each is applicable and the question of whom to empower can only be answered after the prior question “which bias do you prefer” has received a response.
This new political intervention in international law, the politics of re-definition, is based on fragmentation. It involves strategic definitions of situations by reference to a technical idiom so as to secure the application of the expertise related to that idiom with all its structural biases. The ultimate goal of the politics of definition is to upgrade a particular idiom to the level of universality, securing to its methods (and ultimately its outcomes) the character of neutrality or, even better, of “reality” itself. The consequences of such approaches, which conceal the application of structural biases behind the application of “objective reasons”, calls for taking a highly critical attitude toward the increasing managerialism in the field.
Committing to one of these institutions (or to that end even the prevalence of one over the others) does not resolve any of the problems of indeterminacy, since every particular field has its own controversies and compromises. Read the rest of this entry…
Editors Note: This is an updated featured post. More recent posts appear below
This week, we host an online discussion (see below) of the Special Anniversary Article by Prof. Martti Koskennimi which opens the current issue of EJIL. The full text of the article – “The Politics of International Law – 20 Years Later” – is available here. On Monday, Professor Koskenniemi opens with a post which summarises his article and sets out some of his thinking on the topic. On Tuesday and Wednesday we will have responses by Professor Iain Scobbie (School of Oriental and African Studies, London) and Dr Jason Beckett (University of Leicester).
Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School. His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.
Former Vice-President Dick Cheney is chatting about his role in assuring approval and use of manifestly unlawful interrogation tactics such as waterboarding during the eight-year Bush Administration. According to Cheney, he has “[n]o regrets” that he was directly involved in the approval of severe interrogation methods, including waterboarding, and he has admitted that he was involved in helping to get the process cleared by President Bush. “[T]his was a presidential decision,” Cheney said, “and the decision went to the President. He signed off on it.” (see here)
On September 16, 2001, Cheney publicly declared that “[a] lot of what needs to be done … [“on the dark side”] will have to be done quietly, … using … methods that are available to our intelligence agencies … to use any means at our disposal, basically, to achieve our objective.” He added: “we” “have the kind of treatment of these individuals that we believe they deserve.” For the next two years, many of his preferences were effectuated by his top lawyer, David Addington. Moreover, it has been reported that Cheney attended meetings of the National Security Council’s Principals Committee in the White House Situation Room during 2002 and 2003, at which specific tactics such as waterboarding and the “cold cell” were addressed and expressly and/or tacitly approved and abetted. It has also been reported that during this time there was “live feed” or “real time” viewing of parts of actual interrogations, including that of al Qahtani at Guantanamo Bay, Cuba.
According to the Center for Constitutional Rights (CCR), SERE tactics were being used against detainees at Guantanamo in September 2002 and that, during October 2002, military intelligence interrogators “used military dogs in an aggressive manner to intimidate” al Qahtani. In November 2002, FBI Deputy Assistant Director Harrington reported that al Qahtani had exhibited symptoms of “extreme psychological trauma.” Around the third week in November, he was subjected to what was known as the “First Special Interrogation Plan,” a plan to use tactics later detailed in an 84-page log describing their use during a six-week period. CCR reported that among several tactics used were: threats against his family, forced nudity and sexual humiliation, threats and attacks by dogs, beatings, and exposure to low temperatures for prolonged times. Each of these tactics is patently illegal under the laws of war, human rights law, and the Convention Against Torture, among other relevant international legal proscriptions and requirements. As my article The Absolute Prohibition of Torture [forthcoming in 43 Valparaiso Law Review 1535 (2009)] documents, death threats, use of dogs to create intense fear, beatings, the cold cell or a related inducement of hypothermia, and waterboarding are each manifest forms of “torture” that are absolutely prohibited under all circumstances and regardless of the status of the victim. If they were not torture, they would also be absolutely prohibited as cruel, inhuman or degrading treatment, along with the other tactics mentioned.
Cheney’s direct involvement is evidence of complicity in international crime. Read the rest of this entry…
Consider the following scenario: the United Kingdom, together with the United States and other allies, invaded Iraq in 2003. From that point on, there was an international armed conflict between the UK and Iraq. Further, as it obtained effective control over certain parts of Iraqi territory, the UK became the occupying power of these territories. Under Art. 21 of the Third Geneva Convention, and Arts. 41-43 of the Fourth Geneva Convention, the UK had legal authority to subject enemy POWs and civilians to internment.
Yet, on the other hand, the UK is a state party to the European Convention on Human Rights. In some circumstances, the ECHR applies extraterritorially. What those circumstances are is an (overly) complex question, but the UK has conceded in the Al-Skeini case before its domestic courts that the ECHR applies to extraterritorial detention.
Unlike Article 9 ICCPR, which sets a standard by prohibiting arbitrary arrest and detention, Article 5 ECHR contains a categorical prohibition of detention, except on a limited number of grounds. Preventive detention or internment on security grounds is not one of them. Further, Article 5(4) ECHR requires judicial review of any detention, while Art. 5 GC III only provides for status tribunals if POW status is doubt, and Art. 43 GC IV expressly permits review of detention by mere administrative boards.
So, on one hand we have IHL treaties expressly authorizing preventive detention or internment. On the other we have the ECHR expressly prohibiting such detention. No amount of interpretation can bring the two rules into harmony – they are in a state of genuine norm conflict. That norm conflict could have been avoided had the UK made a derogation under Art. 15 ECHR, but it did not do so (and there is a further question whether it could have actually done so, which needs ti be clarified in the future, though in my view the answer is clearly in the affirmative).
Some Remarks on the Legal Implications of Foreign Visits by Sudanese President Omar Al Bashir After the ICC Arrest Warrant
Materneau Chrispin is currently a PhD Candidate in International Law at the University of Lausanne, Switzerland
On March 4, 2009, Pre-Trial Chamber I of the International Criminal Court (ICC) issued an Arrest Warrant against Omar Al Bashir (see here), the current Head of State of Sudan. That warrant was the latest step taken against Al Bashir in the criminal proceedings that have been initiated against him as indirect perpetrator or indirect co-perpetrator of various counts of crimes against humanity and war crimes, which fall under ICC jurisdiction.
Al Bashir’s reaction to the issuance of that arrest warrant has been the rejection of such warrant, open mockery and defiance of the ICC. Moreover, Sudanese authorities have also expelled many foreign NGOs providing assistance to the victims of the conflict in Darfur, especially refugees. The move by the ICC has been criticized by many as being untimely and somewhat unhelpful in view of all the political considerations to be taken into account relative to the ongoing conflict in Darfur. Somehow, that controversy falls within the purview of the more general debate on Justice vs. Peace in international law. Nonetheless, the ICC warrant remains a valid act issued by that international tribunal on the basis of the referral of the Darfur situation to the ICC by the United Nations Security Council.
Such a referral was made by UN Security Council Resolution 1593 (2005). It fully gave the ICC jurisdiction over the crimes committed in Darfur. Indeed Article 13 (b) ICC Statute establishes the referral mechanism as the mean for the ICC to exercise its jurisdiction over crimes in a State that is not a party to the Rome Statute, which is the case of Sudan. That article that deals with exercise of jurisdiction by the Court reads as follows:
A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;
In the light of that referral, how should we assess, as a matter of international law, the behaviour of the States that have not only criticized the warrant, but welcomed President Al Bashir on their territories after the arrest warrant had been issued against him by the ICC?
Any analysis of the issue should start with the Security Council resolution that introduced the case to the ICC. That resolution was adopted under Chapter VII of the UN Charter. It is therefore binding on all member States of the UN per article 25 of that Charter which provides that “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. On the basis of article 103 of the same Charter, obligations of Member States flowing from resolutions adopted by the Security Council prevail over any other obligations that they would be bound by.
Security Council Resolution 1593 (2005) does not contain strong language that would create a compelling legal obligation for UN member States to cooperate with the ICC in all the steps that it would take in the Darfur situation. However, paragraph 2 of its operative part formulates obligations not only for Sudan, but also for all member States that are urged by the Council to fully cooperate with the Court in the Darfur case. Indeed that paragraph indicates that the Security Council Read the rest of this entry…