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The Assembly of State Parties to the International Criminal Court Decides to Delete Article 124 of the Rome Statute

Published on April 12, 2016        Author: 

A little noticed but still significant event during last year’s Assembly of State Parties of the International Criminal Court (ICC) was the decision to delete article 124 of the Rome Statute. Article 124, titled “Transitional Provision”, reads as follows:

Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

The gist of article 124 was to allow State Parties, upon becoming Party to the Rome Statute, to preclude the Court from exercising jurisdiction over war crimes (article 8) for a period of seven years. Only France and Colombia ever made use of article 124, and each country did so for very particular reasons, which I will not elaborate further here. Suffice it to note that France withdrew its declaration under article 124 in 2008 and that the Columbian declaration made in 2002 expired in 2009. Still, for a court that prides itself on permitting no reservations, no statute of limitations, and no immunities from prosecution, even for heads of state, many have considered article 124 as an inappropriate exemption from the Court’s quintessential principle that there shall be no impunity for any of the crimes under its jurisdiction.

The deletion of article 124 is important not only in its own right, but also because of how it occurred. State Parties deliberated extensively about whether to adhere to the standard amendment procedure outlined in article 121 or if a simple decision by the Assembly would suffice. The result of this debate can be indicative of how States will approach procedural questions of a similar nature in the future, not least when the Assembly in 2017 moves to activating the crime of aggression (on which see this post). Read the rest of this entry…

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Understanding the ICTY’s Impact in the Former Yugoslavia

Published on April 11, 2016        Author: 

As a follow-up to the ICTY extravaganza we’ve had on the blog in the past few weeks, I wanted to post about two companion articles I recently put on SSRN that readers might find of interest. The first is ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Post-Mortem’, and it is forthcoming in the American Journal of International Law; the second is ‘Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences,’ and it will be published in the Georgetown Journal of International Law.

The AJIL piece looks at whether the ICTY managed to persuade target populations that the findings in its judgments are true. To answer that question, foundational for transitional justice processes, the article discusses the findings of a series of public opinion surveys in Serbia, Croatia, Bosnia (designed by the Belgrade Centre for Human Rights, sponsored by the OSCE and conducted by Ipsos – detailed charts, mostly in Serbo-Croatian but some in English, are available here) and Kosovo (sponsored by the UNDP and conducted by a local polling agency, here and here).

The detail and amount of data obtained through these surveys provide an unprecedented level of insight into the reception of factual determinations by international criminal tribunals by target audiences. The surveys show that denialism and revisionism are rampant in the former Yugoslavia. For example, twenty years on, barely one-fifth of the Bosnian Serb population believe that any crime (let alone genocide) happened in Srebrenica, while two-fifths say that they never even heard of any such crime. The acceptance levels for many other serious crimes are in the single digits. They also demonstrate a strong relationship between the respondents’ ethnicity, their perception of the ICTY’s bias against members of their own group, and their distrust in the ICTY and in its findings, which increases the more the ICTY challenges the group’s dominant internal narratives.

Survey findings

This is, for example, how divided realities look like in today’s Bosnia (BiH Muslim/Croat Federation results on top; Republika Srpska at the bottom) – note that these are some of the most serious crimes committed in the Bosnian conflict, all of them addressed in major ICTY cases:

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Read the rest of this entry…

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Announcements: Maastricht Prize for International Law; Making Technology Work for Human Rights Professionals Summer School; CfA – The Impact of the Law of Armed Conflict on General International Law; Third Edition of the International Disaster Law Course; Public Health and Human Rights Seminar; CfP for Fourth Annual International Criminal Law Workshop; New Additions to the UN Audiovisual Library of International Law.

Published on April 9, 2016        Author: 

1. The Maastricht Prize for International Law 2016 Call For Nominations. The Faculty of Law of Maastricht University has taken over The Hague Prize for International which was established in 2002. Maastricht University will collaborate with the Municipality of Maastricht. The main Prize will be awarded every five years to individuals who have made – through publications or achievements in the practice of law – a special contribution to the development of public international law or private international law or the advancement of the rule of law in the world. The Prize consists of a diploma, a monetary award of €10,000 and a drawing. The prize will be awarded for the first time in Maastricht on 8 December 2016. In the intervening years when the main Prize is not awarded, a Junior Prize will be awarded to promising younger academics in the field of human rights. The Junior prize will be awarded for the first time in 2018 and will carry a financial award of €3,000. Reasoned nominations are now invited and should be sent to Prof. Jure Vidmar, Secretary of the Nominating Committee, Maastricht University, Department of International and European Law, P.O. Box 616 Maastricht, The Netherlands, or by email to law-maastrichtprize {at} maastrichtuniversity(.)nl by 1 August 2016. See here or further information.

2. Human Rights Centre, University of Essex, Summer School on Making Technology Work for Human Rights Professionals. The Human Rights Centre, University of Essex, will run this Summer School on 4 – 5 July 2016. The module is very practically focused and addresses how technology can be used to assist and improve human rights work. Emphasis is placed on the use of accessible technology (including social media) to monitor, document and report on human rights violations, and to improve human rights workers’ digital security. It mixes lectures – focused on exploring relevant issues, analysing the context in which this work takes place, and examining pertinent case studies – and practical sessions – where participants will learn how to put the issues discussed in lectures into practice, in an interactive and supported environment. It is designed to teach practical skills, that will be of direct use to individuals either working, or intending to work, in the field of human rights or humanitarian response. This year’s teaching team includes Tanya O’Carroll, Adviser on Technology & Human Rights at Amnesty International, Sam Dubberley, co-founder of Eyewitness Media Hub, Rory Byrne, co-founder of Security First, Dr.Daragh Murray, Lecturer and Director of the University of Essex Human Rights Centre Clinic, and a representative of Forensic Architecture, a research agency based in Goldsmiths. Details are available here. Contact hrcsummerschool {at} essex.ac(.)uk with questions. Read the rest of this entry…

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The United States is at War with Syria (according to the ICRC’s New Geneva Convention Commentary)

Published on April 8, 2016        Author: 

The United States is currently engaged in an armed conflict with an organized armed group operating from the territory of two foreign states. Is this armed conflict an international armed conflict (IAC), a non-international armed conflict (NIAC), both, or neither? The question matters because the answer determines which international legal rules apply to the conflict and regulate its conduct.

In his recent speech to the American Society of International Law, U.S. State Department Legal Adviser Brian Egan noted that “some of our foreign partners have asked us how we classify the conflict with ISIL and thus what set of rules applies. Because we are engaged in an armed conflict against a non-State actor, our war against ISIL is a non-international armed conflict, or NIAC.”

So far, so good. Few would deny that the United States is in a NIAC with ISIL. However, Egan continues: “Therefore, the applicable international legal regime governing our military operations is the law of armed conflict covering NIACs.”

Not so fast. In its recently released Commentary on the 1949 Geneva Conventions, the International Committee of the Red Cross writes that “an international armed conflict arises between the territorial State and the intervening State when force is used on the former’s territory without its consent.” If the territorial state consents to the use of force on its territory—including force directed at an organized armed group—then there is no international armed conflict between the two states. Since Iraq has consented to the United States using force against ISIL on its territory, there is no international armed conflict between the United States and Iraq. It follows that only the law of armed conflict covering NIACs governs U.S. military operations in Iraq.

Again, so far, so good. But what about U.S. military operations in Syria? According to the ICRC, if the territorial state does not consent to the use of force on its territory—even force directed exclusively at an organized armed group—then an international armed conflict arises between the two states. Importantly, “[t]his does not exclude the existence of a parallel non-international armed conflict between the intervening State and the armed group.”

It seems to follow that, according to the ICRC’s approach, the United States is both in a NIAC with ISIL and in an IAC with Syria. Accordingly, both the law of armed conflict covering NIACs and the law of armed conflict covering IACs govern U.S. military operations in Syria. Read the rest of this entry…

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A New Theory for Enforcing ICJ Judgments? The World Court’s 17 March 2016 Judgments on Preliminary Objections in Nicaragua v. Colombia

Published on April 6, 2016        Author: 

The International Court of Justice simultaneously issued two intriguing judgments on 17 March 2016, both involving applications filed by Nicaragua against Colombia, and both of which have some nexus to the Court’s 19 November 2012 Judgment in Territorial and Maritime Dispute (Nicaragua v. Colombia). To recall, the Court in its 2012 Judgment had affirmed Colombia’s sovereignty over seven islands, drawn a single maritime boundary delimiting the continental shelf and exclusive economic zones of Nicaragua and Colombia, and rejected Nicaragua’s request to have Colombia declared in breach of international law for allegedly denying Nicaragua’s access to natural resources to the east of the 82nd meridian. (2012 Judgment, dispositif, para. 251)

Thereafter, Nicaragua instituted two Applications on matters appearing to flow from, but alleged to be extraneous to, the Court’s 2012 maritime delimitation Judgment. In its 2013 Application in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) [hereafter, “Application on Sovereign Rights and Maritime Spaces Violations”], Nicaragua alleged, among others, that Colombia violated Nicaragua’s rights pertaining to maritime zones defined under the Court’s 2012 maritime delimitation Judgment and that Colombia had also breached the obligation not to use or threaten to use force. On the other hand, in its 2013 Application in Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) [hereafter, “Continental Shelf beyond 200 NM Application”], Nicaragua requested the Court to declare “the precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to them beyond the boundaries determined by the Court in its Judgment of 19 November 2012” [hereafter, “first Request”], as well as “the principles and rules of international law that determine the rights and duties of the two States in relation to the area of overlapping continental shelf claims and the use of its resources, pending the delimitation of the boundary between them beyond 200 nautical miles from Nicaragua’s coast.” [hereafter, “second Request”] (Continental Shelf beyond 200 NM Application, para. 12).

At the core of Colombia’s preliminary objections in both cases was the argument that the Court had already resolved the alleged matters in the 2012 Judgment, and accordingly, incidents related to these matters thereafter ought to be enforced under the canonical rule in Article 94(2) of the UN Charter (“[i]f any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”). Nicaragua’s theory was essentially based on the characterization of fresh disputes with Colombia that may have some factual/legal nexus with the 2012 Judgment, but were, ultimately, left undetermined or outside the purview of the 2012 Judgment. It is highly interesting to see how this theory mainly prevailed in the Court’s 17 March 2016 Judgment on Preliminary Objections in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) [hereafter, “Sovereign Rights and Maritime Spaces Violations Judgment on Preliminary Objections”] and its 17 March 2016 Judgment on Preliminary Objections in the Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) [hereafter, “Continental Shelf beyond 200 NM Judgment on Preliminary Objections”]. The Court’s unprecedented acceptance of jurisdiction for certain claims in both of these Nicaraguan applications certainly provoke new lines of inquiry on lines of demarcation between issues of enforcement of the Court’s judgments, and related but separate claims that could be instituted fresh with the Court, without triggering the rule on enforcing ICJ judgments through the more political forum of the Security Council. How was the Court able to assume jurisdiction in these cases, and what do these decisions bode for the settled rule on the finality of the Court’s judgments?

Read the rest of this entry…

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Palestine at the Gates of the Peace Palace: The long and windy road towards Palestinian membership in the Permanent Court of Arbitration

Published on April 5, 2016        Author: 

To Be or not to be a Party …

It took two lengthy sessions of the Administrative Council of the Permanent Court of Arbitration (‘PCA’ ) before it decided, on March 14, 2016, to confirm that the ‘State of Palestine’ is a contracting party to the 1907 Hague Convention for the Pacific Settlement of International Disputes (‘1907 Convention’) and hence also a member of the PCA. The decision was made by vote, for the first time in the long history of the PCA, with 54 states voting in favor and 25 abstentions. Notably, the parallel accession of Kosovo is still ‘under review’. This development raises a whole set of legal issues ranging from the role of the depositary in situations of contested statehood, to issues of treaty interpretation, as well as finally the legal consequences of Palestine now having become a member of the PCA.

In order to understand the legal implications of the decision, it is necessary to recall some of the most important steps that led to its adoption. Both Palestine and Kosovo, had within a short space of time (namely on 30 October 2015 (Palestine) and on 6 November 2015 (Kosovo)), submitted their accessions to the 1907 Convention. These accessions were acknowledged by the depositary, the Dutch government, on 17 November 2015 on its depositary website. The website also indicated that the said Convention would enter into force for Palestine on 29 December 2015 and for Kosovo on 5 January 2016, a move that was (somewhat prematurely, as we will see) welcomed by the Kosovo Ministry of Foreign Affairs. Upon the request of Serbia, the Administrative Council of the PCA then met on January 4, 2016, i.e. just one day before the Kosovar accession was supposed to become effective, and decided to keep the situations of Kosovo and Palestine ‘under review’, which in turn led the Depositary to ‘strike out’ the accessions of Palestine and Kosovo, with both of them then listed in the following manner:

“Parties (5 January 2016):

Party                            Ratification                  Entry into force

Kosovo                        06-11-2015 (T)           05-01-2016                

Palestine                       30-10-2015 (T)           29-12-2015 

This in turn then led to a request by a group of Arab States for yet another urgent meeting of the Administrative Council of the PCA. This meeting was supposed to deal with the status of Palestine vis-à-vis the 1907 Convention, given that by the time the above-mentioned decision of January 4, 2016 had been made to keep the situations of Kosovo and Palestine ‘under review’, Palestine had already become a contracting party of the Convention with effect from December 29, 2015. Hence, the action by the depositary had amounted, as far as Palestine was concerned, to a de facto suspension of a pre-existing treaty membership. Read the rest of this entry…

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The Sorry Acquittal of Vojislav Seselj

Published on April 4, 2016        Author: 

Last week a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia acquitted Vojislav Seselj, an ultra-nationalist Serb politician, for crimes committed in Croatia, Bosnia and even Serbia itself. It did so by 2 votes to 1. Readers will already be familiar with the disaster that was the Seselj trial, which is now further compounded by the judicial fiasco that is the trial judgment. Fiasco is in fact the word used by the presiding French judge, Jean-Claude Antonetti, to describe the case in the conclusion of his profoundly dilettantish 500-page concurring opinion. This concurrence is a perfect sequel to his equally unreadable 600-page doozy in the Prlic case, and he uses it to blame everybody but himself for everything that went wrong in the case which is, well, everything. The judgment (in French) is here, as is the dissenting opinion of Judge Lattanzi (‘dissenting’ is not a strong enough word, as she herself says); the summaries of the judgment and the dissent in English are here and here.

Corax, Danas 4.4.2016.

There are so many problems with this judgment that it’s hard to know where to start, so let me paint you the big picture. The main issue is not with the acquittal, which may or may not be the appropriate result, but with how that result was reached. The entire judgment is a reductionist dismissal of the case presented by the prosecution, which is always taken as ungenerously as is humanly possible, while at the same time castigating the prosecution (without any hint of self-irony) for presenting a reductionist version of the complex reality of the wars of the dissolution of the former Yugoslavia.

Read the rest of this entry…

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Karadzic’s Genocidal Intent as the “Only Reasonable Inference”?

Published on April 1, 2016        Author: 

As a follow-up to Marko Milanovic’s excellent post, I have some further comments on the recent Karadzic judgment, especially on the Trial Chamber’s bifurcated approach to the two genocide charges (acquittal re the municipalities joint criminal enterprise [JCE] and conviction re the Srebrencia JCE, see paras. 2571 et seq. and 5655 et seq. respectively). Before turning to the concrete points, I must present a caveat and a general commentary on the evidentiary standard.

The caveat refers to the quite delicate position of an academic commentator when analysing a trial judgment. Being myself a trial judge (albeit only in my second profession as the majority of my time is dedicated to my academic work) in a procedural system where the actual trial, governed by the principles of orality and immediacy, is considered the height of the proceedings, I am aware that nothing can substitute the direct impressions taken from the actual trial hearings, especially regarding the oral and immediate presentation of evidence. The academic commentator is more in the position of a judge at the appeal stage, in the sense of the French cassation or the German Revision, where the ensuing legal review of the trial court’s sentence is essentially based on the critical legal analysis of this court’s written judgment. Thus, my comments are the mere product of a critical reading of the respective parts of the Karadzic trial judgment, further limited by the natural margin of deference to be given to any trial court, and the restrictive ‘reasonable trier of fact’ appeal standard of international criminal proceedings.

This brings me to the evidentiary standard with regard to the proof of the subjective element (mens rea) of criminal law offences captured in the old Roman maxim, dolus ex re, i.e. the intent (mental element) (is to be) inferred from the external circumstances of the objective act (actus reus). This is nothing other than the modern indirect or circumstantial evidence which has taken centre stage in international criminal proceedings, especially as regards the proof of the special intent to destroy a protected group in the crime of genocide (paras. 550, 5825). Indeed, the whole genocidal case against Karadzic is based on circumstantial evidence, defined by the Chamber, referring to settled case law, as “evidence of a number of different circumstances surrounding an event from which a fact at issue may be reasonably inferred” (para. 14) and, in addition, requiring a highly demanding ‘only reasonable inference’ standard (paras. 10, 14). In concrete terms, this entails a double evidentiary test as the trial chamber must first be convinced that a certain inference is the only reasonable one and second, that all reasonable inferences taken together – as the totality of (indirect) evidence – prove beyond reasonable doubt the respective mental element and thus, ultimately, the guilt of the accused.

Let us now turn to my concrete queries. Read the rest of this entry…

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An International Court of Justice Advisory Opinion on the ICC Head of State Immunity Issue

Published on March 31, 2016        Author: 

Earlier this week, I wrote about the recent decision of the South African Supreme Court of Appeal holding that the South African government had violated its obligations in failing to arrest Sudanese President Bashir when he attended the African Union Summit in South Africa last June. That decision is just the latest in the ongong saga about whether serving heads of States, particularly heads of states not party to the Rome Statute of the International Criminal Court (ICC), have immunity when they are wanted by the ICC. The issue has been a particularly toxic one in the relations between the African Union (AU) and the ICC. The AU continues to insist that Bashir and all serving heads of states are immune from arrest and prosecution and Bashir has now travelled to numerous African (and other states) including a number of states that are party to the ICC Statute (see the Bashir Watch website – and also here – for information on the states that Bashir has travelled to, as well as those which have denied him access). The AU Assembly (of heads of states and governments) has made a number of proposals in an attempt to put an end to the prosecution of Bashir, including a proposal for deferral of the case under Article 16 of the Rome Statute ( see Assembly/AU/Dec.547(XXIV) (June 2015)). It has also encouraged African states to put forward amendments to the Rome Statute (see Ext/Assembly/AU/Dec.1(Oct.2013). Following that suggestion, Kenya proposed an amendment to Article 27 of the Rome Statute which would provide for immunity of heads of states and their deputies (see p. 16 of this report of the ICC Assembly of States Parties Working Group on Amendments). I am sure that everyone knows that the chances of success on such an amendment is precisely zero. For the amendment to come into force, seven-eights of the parties to the ICC Statute would have to ratify it (under Art. 121(4) of the Statute) and it is inconceivable that this will happen.

However, the AU has made one suggestion which I think ought to be taken up. This is the proposal (see p. 9-10 of this document) that the International Court of Justice be asked to render an advisory opinion on the immunity of heads of states or other senior officials of states not party to the ICC (for earlier discussion of this proposal see my posts here and here). Despite the fact that the ICC has ruled on the question of Bashir’s immunity on several occasions (including in cases regarding non-cooperation by Malawi and Chad, DRC and South Africa), there are, in my view, good reasons to try to have the ICJ address the issue. Some of those reasons are legal and others political. Read the rest of this entry…

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The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?

Published on March 29, 2016        Author: 

Earlier this month, the South African Supreme Court of Appeal decided unanimously (see the judgment here) that the South African government had breached its obligations under the South African domestic statute implementing the Rome Statute of the International Criminal Court (ICC), and under the Rome Statute, by failing to arrest and detain for surrender to the ICC Sudanese President Omar Al-Bashir. Bashir visited South African in June 2015 to attend the African Union summit held there. As will be explained below, although the decision was ultimately based on domestic law, it is potentially very far reaching in the effect that it will have in South Africa and possibly internationally. In summary, the Court held that under the South African Implementation of the Rome Statute of the ICC Act 2002, any head of State subject to an ICC arrest warrant may be arrested in South Africa and surrendered to the ICC. However, the Court also held that under the same Act international law immunities, including the immunity of heads of states, do not apply under South African law when a person is sought for domestic prosecution in South Africa for genocide, war crimes and crimes against humanity. This aspect of the decision is particularly remarkable given that the same South African Act provides for universal jurisdiction over those crimes, and the South African Constitutional Court held in 2014 that the South African Police Service may commence an investigation of these crimes even if the person is not present on South African territory. Although the aspect of the Bashir decision relating to domestic prosecution in South Africa, is in my view obiter and not part of the ratio decidendi of the decision, if it stands, it means that South Africa would be a very rare example of a State that claims the authority to prosecute serving heads of state for international crimes.

The lead judgment of the South African Supreme Court of Appeal was given by Wallis JA, with whom two judges concurred. A further two judges concurred in the result but agreed with the lead judgment only in in so far as it was based on South African ICC Implementation Act. Read the rest of this entry…

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