The  Pre-Trial Chamber of the ICC has today issued a second warrant of arrest for Sudanese President Omar Al Bashir, this time on charges of Genocide. This decision is not unexpected and follows from the Appeals Chamber decision of February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Bashir with respect to the charge of genocide in Darfur. The Appeals Chamber held that the Pre-Trial Chamber (PTC) has applied the wrong test in considering whether there were “reasonable grounds” to believe that genocide had been committed under Art. 58(1) of the Rome Statute which deals with arrest warrants (see Marko’s comment on that test here). It remanded the decision back to the PTC which has now reached a new decision.

Once again, this decision fails to deal with questions regarding the possible immunity of Bashir. I continued to be amazed that the ICC chooses to ignore this issue. The point is not that I think Bashir has immunity as I have written elsewhere that I do not think he does have immunity from arrest in the territory of ICC parties (see here). The point is that the Court does not even consider the issue at all and that it will be issuing a request for surrender of Bashir without considering whether Article 98 of the Statute prevents it (the Court) from doing so. I considered this issue in an earlier post where I stated that:

 Art. 98 of the Statute says that “the Court may not proceed with the request for surrender” which would require the requested State to act inconsistently with its immunity obligations. This is a provision which the Court itself has an obligation to take up. The fact that it is not raised by the Prosecution should be irrelevant. There is a particular obligation on the Court in this sort of issue as requests for arrest warrants will usually come to the Court with just the prosecution being heard. In addition, Art. 98 is a provision which is designed not just for the benefit of the accused but for the benefit of the State of the accused and, as importantly, for the benefit of other States who may be put in the position of having inconsistent obligations were the matter not addressed. Thus, the Court ought to address this issue at the earliest opportunity. In fact a failure to address it and the issuance of a request for surrender (as the ICC has done in the Bashir case) may be a breach by the Court of its obligations under Art. 98 in circumstances where that provision would prevent such a request.

Now that the ICC has added a genocide charge to the case, I would also like to take the opportunity to revisit a question that I asked a year ago: would the addition of a genocide charge to the Bashir arrest warrant change the position on immunity? In that post I analysed the International Court of Justice’s 2007 merits judgment in the Bosnian Genocide Convention Case, where the Court held (at paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. Read the rest of this entry »

Over the next couple of weeks, we will be hosting an online symposium discussing the recent book by Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (OUP, 2009). This is one of series of recent books examining constitutionalism at the international level. Readers will remember that we held a discussion of another such book edited by Dunoff & Trachtmann, Ruling the World? Constitutionalism, International Law, and Global Governance in December 2009 (see here for posts on that book). The book by Klabbers, Peters and Ulfstein addresses conceptual concepts about constitutionalization (what is it?) and tackles whether the process is indeed taking place and what implications this has for interntional law. It asks: 

to what extent the international legal system has constitutional features comparable to what we find in national law. This question has become increasingly relevant in a time of globalization, where new international institutions and courts are established to address international issues. Constitutionalization beyond the nation state has for many years been discussed in relation to the European Union. This book asks whether we now see constitutionalization taking place also at the global level.

The book investigates what should be characterized as constitutional features of the current international order, in what way the challenges differ from those at the national level and what could be a proper interaction between different international arrangements as well as between the international and national constitutional level. Finally, it sketches the outlines of what a constitutionalized world order could and should imply. The book is a critical appraisal of constitutionalist ideas and of their critique. It argues that the reconstruction of the current evolution of international law as a process of constitutionalization -against a background of, and partly in competition with, the verticalization of substantive law and the deformalization and fragmentation of international law- has some explanatory power, permits new insights and allows for new arguments.

In addition to posts by the authors summarising the ideas in the book, we will have comments by Jeffrey Dunoff (Temple University), Joel Trachtman (Fletcher School, Tufts University); Dan Bodansky (Arizona State Unversity), Steven Wheatley (University of Leeds) and Jean L. Cohen (Columbia). As always readers are invited to add their own comments.

Editor’s Note: This post is part of series discussing the 2009 EJIL Article by Professor Kenneth Anderson: “The Rise of International Criminal Law: Intended and Unintended Consequences,” . Previous posts in this discussion were by Ken Anderson (see here, here here and here), Brad Roth and Amrita Kapur. You can read these posts by clicking on their names in the list on the right.

Update: This post was originally posted under the name of Dapo Akande. This was incorrect.

I would like to thank Brad Roth and Kenneth Anderson for their thoughtful engagement (see here and here) with my previous contribution to this discussion (see here).  Given the time that has elapsed since our discussion, I will restrict this response to a number of discrete issues raised by both.

 Firstly, despite taking issue with my approach, Roth nonetheless reaffirms a number of propositions already contained in my earlier contributions, including on the possibility of ‘false positive’ cases of intervention, the procedural flaws of criminal prosecution, and the difficulties in prosecuting those most responsible.  He correctly challenges the feasibility of ‘an authoritative condemnation of perpetrators’ when the ‘use of ruthless methods by …. non-pathological’ actors gives rise to a too-large pool of potential ICL defendants and consequently, prosecutorial selectivity.  My complete agreement with these sentiments is reflected in my previous post, which criticizes the criminal prosecutorial process as a method by which justice is achieved because of its inherent procedural flaws. 

I neither expect prosecutions to necessarily achieve an ‘authoritative’ condemnation of all perpetrators, nor do I believe they are essential to, intended to, or in fact, reaffirm the dignity of the victims: criminal trials have never revolved around victims, who are treated merely as witnesses for the ‘wronged’ state.  In both my EJIL article (which responds to Ken Anderson’s original article) and my post, I embrace a broader notion of justice which includes mechanisms such as truth commissions, reparations, lustration and memorialization efforts as part of a multi-faceted response to systematic or widespread violations of human rights (also termed transitional justice).  It is these non-prosecutorial initiatives that specifically seek to recognize victims and promote possibilities for peace, reconciliation and democracy. Read the rest of this entry »

On June 24, Chatham House held an event in London to review the recently held Review Conference of the International Criminal Court. The discussion was moderated by Elizabeth Wilmhurst who heads the International Law Programme at Chatham House. The four speakers at the event were Chris Whomersley, Deputy Legal Adviser at the UK’s Foreign & Commonwealth Office and head of the UK’s delegation to the ICC Review Conference, Akbar Khan, Legal Director at the Commonwealth Secretariat, Chris Hall, Senior Legal Adviser at Amnesty International and me. The discussion ranged across the various issues discussed in Kampala: stocktaking of international criminal justice, including peace and justice, complementarity and cooperation with the ICC; the crime of aggression and the other proposed amendments to the ICC statute. The summary of the meeting is now available at the Chatham House website (see here).

The discussion on aggression covered many of the matters previously discussed on this blog (see here and here) and over at Opinio Juris (see here, here and here). There was much interest in the conditions under which the ICC will exercise jurisdiction over aggression, particularly the question of whether the amendments would create jurisdiction over all ICC state parties or only over those who accept the amendments. Surprisingly, there was not much discussion on whether the definition of aggression was satisfactory, though there was discussion on the effect of the understandings (for Opinio Juris discussion, see here , here and here). According to the summary:

 A participant raised the question as to whether the understandings were legally binding. It was noted that the US had proposed changing the definition itself but there was no support; they fairly quickly accepted the concept of understandings. Definition of terms forms part of the context of a treaty to assist in its interpretation. The Vienna Convention on the Law of Treaties allows the context to be considered when the wording of a provision is unclear, as well as agreements reached by the parties. It was considered by the discussion participants that understandings had a higher status than just context; on the other hand they could not be considered as part of the treaty amendments (similar to an Annex, for example): no special ratification process had been decided upon for them and in any case not all States Parties were present at Kampala to ratify their inclusion. But a similar approach had been used for the Convention on Jurisdictional Immunities.

Astrid Reisinger Coracini is a Lecturer at the Institute of International Law and International Relations, University of Graz and Executive Director of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law. She was in Kampala as part of the delegation of Austria. Her publications include: ‘Amended Most Serious Crimes”: A New Category of Core Crimes Within the Jurisdiction but out of the Reach of the International Criminal Court?’, 21 Leiden Journal of International Law 2008, 699-718; ‘Defining the Crime of Aggression for the Rome Statute of the International Criminal Court’, in: Stahn & van den Herik (eds.), Future Perspectives on International Criminal Justice (2010) 425-49.

 In an earlier post Dapo Akande asked: “What Exactly was Agreed in Kampala on the Crime of Aggression?”, a question that indeed mandates some reflection. The Resolution on the Crime of Aggression is a sophisticated conglomerate of four documents of divergent legal value: an enabling Resolution, amendments to the ICC Statute that are subject to ratification or acceptance, amendments to the Elements of Crimes and “Understandings”. Let aside the complexity of these texts, legal interpretation is challenged by the fact that there was no plenary debate on the last three versions of the President’s non-paper and the Draft Resolution. The preparatory works are therefore of limited help with regard to the interpretation of some parts of the Resolution.

Inspired by the vivid online discussion on the crime of aggression, I would like to contribute some preliminary thoughts (which represent my personal views and do not necessarily reflect the views of the Austrian delegation) with a particular focus on aspects of the conditions under which the ICC may exercise its jurisdiction over the crime of aggression and the amendment procedure.

 1. Further delay for the Court’s exercise of jurisdiction over the crime of aggression

In 1998, when the crime of aggression was listed as one of the most serious crimes of concern to the international community as a whole for which the ICC has jurisdiction (Art. 5 (1) ICC Statute), the Court’s exercise of jurisdiction was delayed until a time when the Assembly of States Parties would adopt a provision defining the crime and setting out the conditions for the Court’s exercise of jurisdiction (Art. 5 (2) ICC Statute). The provision adopted in 2010 further postpones the ICC’s exercise of jurisdiction. “The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendment by thirty states parties” (common para. (2) of Art. 15bis and Art. 15ter). In addition, the jurisdictional regime requires activation by a decision to be taken after 1 January 2017 (common para. (3) of Art. 15bis and Art. 15ter). This further delay is unfortunate, but limited by an acceptable time-span. Any solution to adopt the definition and defer deliberations of the conditions (or parts of them) would have entailed the potential threat of infinite negotiations. In its final form, the package adopted in Kampala comprises all relevant substantive and procedural issues. The activating decision should be a merely formal act, if states parties stand behind the consensus adoption and, especially, if a significant number of states parties will have ratified the amendments by then.

 2. Who is bound and who is covered by the ICC’s exercise of jurisdiction over the crime of aggression?

Entry into force according to Art. 121 (5) Read the rest of this entry »

Today the UK Supreme Court decided R (Smith) v Secretary of State for Defence [2010] UKSC 29 (press summary), yet another fascinating addition to the unfolding saga on the extraterritorial application of human rights treaties.

The plaintiff was the mother of a UK soldier stationed in Iraq who died there from a severe heatstroke. She demanded an inquiry into her son’s death that would be compliant with Article 2 ECHR, that would be able to expose what in her view were systemic faults in the UK’s provision of equipment and facilities to its soldiers in Iraq which ultimately led to her son’s death. In other words, the case is a mirror-image of Al-Skeini, which also dealt with Art. 2 procedural obligations in Iraq, but that time with respect to inquiries into the deaths of Iraqi nationals at the hands of UK troops. As the readers are aware, the Grand Chamber of the European Court held hearings in Al-Skeini just a few weeks ago (see my old post for more background).

With regard to extraterritoriality, the issue before the Supreme Court in Smith was this: does a UK soldier in Iraq enjoy the protection of the ECHR while stationed in an area not under the UK’s effective control? Incidentally, on the facts of the case, Private Smith actually died on a UK military base. Per the UK government’s concession in Al-Skeini, the House of Lords’ quite dubious analogy between a military prison or base and an embassy, and the European Court’s recent admissibility decision in Al-Saadoon, that fact alone would have brought Private Smith within the UK’s jurisdiction. Readers will recall that in Al-Saadoon the European Court brought the spatial model of Art. 1 jurisdiction as state effective overall control of a geographical area to its extreme, but saying that a military prison or base qualified as an ‘area’ susceptible to such jurisdiction and control.

In other words, under the spatial model Private Smith would have been within the UK’s jurisdiction, and therefore entitled to protection under Art. 2 ECHR. However, issue was raised in the lower courts as to whether he would have been within the UK’s jurisdiction even if he did NOT die on the base, but in essentially the same circumstances. Like the lower courts, therefore, the Supreme Court was now faced with a set of questions in a quasi-advisory posture – something that several judges openly lamented. The Court nonetheless decided to rule on the matter, because it is one of great practical relevance of UK military operations abroad; Private Smith is obviously not the only UK soldier to have died in Iraq or Afghanistan, and many soldiers lost their lives outside areas under UK effective control.

The lower courts applied to Private Smith a variant of the personal model of Art. 1 jurisdiction, as state authority and control over individuals, finding that he indeed fell within the scope of Art. 1. In their view, simply by virtue of being a part of the UK military, Private Smith was within the UK’s authority and control, and accordingly within its jurisdiction.

Today the Supreme Court disagreed. By a majority of 6 to 3 (Lady Hale and Lords Mance and Kerr dissenting), the justices found that mere membership in the armed forces was insufficient to establish a jurisdictional link for the purposes of Art. 1 ECHR.

Read the rest of this entry »

Four very different articles flesh out this second issue of our 21st volume. First is an article by Christopher Macleod on Crimes against Humanity. The Editors believe that our readers will enjoy this valuable philosophical account of the subject. Next is a detailed article by Marco Dani entitled, ‘Remedying European Legal Pluralism: The FIAMM and Fedon Litigation and the Judicial Protection of International Trade Bystanders’. Our third article by Monica Hakimi, ‘State Bystander Responsibility’, provides a fresh take on a much-discussed topic – offering a new generalized framework for conceptualizing the responsibilities of states for protecting persons from third party abuses. We have published several articles on this theme and will continue to do so for some time. It reflects our belief that we are in the midst of an important shift in the concept of State Responsibility. A shift from from primarily negative to positive obligations, from State Responsibility to the Responsibility of States. Neither state practice, nor the theoretical and conceptual contours of this shift have been sorted out. But EJIL is one place where the ‘basic science’ is taking shape. Hakimi’s paper suggests, inter alia, an important analogy between state bystander responsibility and our expectation that states respond to gender-based private acts of violence, an analogy we consider pertinent and illuminating. Last, we have an article by Santiago Villalpando which tackles the ever-important question of how we might conceive of an ‘international community’ and its status under international law.

International governance is another of our commitments rooted in the belief that it provides a more potent tool both analytically to understand and normatively to critique a host of international phenomena. Under this iteration of our occasional series, Critical Review of International Governance, we include pieces by colleagues in Ethiopia, China and Malaysia. First is a piece by Dereje Zeleke Mekonnen on the Nile Basin Cooperative Framework Agreement negotiations and the adoption of a ‘Water Security’ paradigm. Second is an article by Kong Lingjie on data protection and transborder data flow in the European and global context. Last, we have a piece by Gurdial Singh Nijar entitled, ‘Incorporating Traditional Knowledge in an International Regime on Access to Genetic Resources and Benefit Sharing: Problems and Prospects’. We expect that you will find each piece both unique and also valuable to broader discussions on international governance.

Book Reviewing and Academic Freedom

My deep thanks for the hundreds of letters of support and indignation. All letters of support, including the many we received from editors of learned journals, have been translated into French and will be submitted to the Court. The Trial takes place on 25 June. I will report to our readers here on this blog.

Editor’s note: The hearing of the case has been postponed, for technical reasons, to January 20, 2011.

The Last Page 

In ‘The Last Page’, EJIL’s reminder that there is more to life than law, you will find a poem by Jake Marmer, entitled ‘When an Immigrant’.

The first wave, in the 1950s and ‘60s, was all about Community Rights and that new legal order. In the 1970s and ‘80s it was, ex nihilo, Individual Human Rights. And in the 1990s and this last decade it has been Citizenship Rights, destined, according to the European Court of Justice in case after case, to become the ‘fundamental’ status of European Citizens. (Have you ever wondered, as I have, about the epistemic status of this most recent mantra of the ECJ? Is it a legal realist prediction? A political desideratum? A statement of judicial intent? A revolutionary manifesto – seeing that it flatly contradicts the express provisions of the Treaty which clearly assigns to European Citizenship a mere supplementary or complementary supportive role in the Citizenship arena?) Be that as it may, there can be little argument that The Individual and his or her Rights are the most common, oft cited, self-celebratory clichés in the vocabulary of European legal discourse. In celebrating the Union’s 50th birthday Angela Merkel, speaking for most of us, veritably gushed about Europe’s success in positioning The Individual in the centre of its construct. And so it has. Likewise, if we look for a currency which is impervious to all market vicissitudes, to derivatives, to toxic bundling, it is the currency of Rights – in all three denominations, European, Human and/or Citizenship. It is the ever ready dividend which the Union’s Board of Directors is generous in showering on an ever apathetic citizenry (as evidenced by the demoralizing decline in voter turn out for Euro-Parliament elections) and which is evoked whenever a pep-talk is called for.

Given history, it is not surprising why, say, Germany (the initiator of the Charter), German Institutions (e.g. the Constitutional Court of ‘So long as’ rhetorical fame) and Germans (viz. Merkel who has a double reason) are so fond of Rightspeak, whereas, say, the British are more pragmatic and matter-of-fact on the issue. And whilst it is important to remain ever vigilant blah blah blah, the truth is that in Europe The Individual does not suffer from a deficit of rights protection – certainly not of human rights protection. The never-ending rhetoric is all too often a mask for a veritable political deficit of individual empowerment in European democracy. Rights and Circus may be the apposite motto for the Turn-of-Millennium Europe: smother them with rights – which they don’t exactly need – and keep them quiet.

The principal positive effect of the combination of Rights and The Individual in the European legal order has not been the defence of the individual against some Barbarians intent on abusing his or her human rights. It has, instead, been that unprecedented strengthening of the Rule of Law among the Member States, a signal achievement worthy of celebration. Read the rest of this entry »

Sylvia Ngane is a doctoral candidate and Graduate Teaching Assistant at the School of Law, University of Leeds, UK. Her article “Witnesses Before the International Criminal Court” is published in (2009) 8 Law and Practice of International Courts and Tribunals 431-457.

Editor’s Note: In a decision issued on the same day this piece was posted, the Special Court for Sierra Leone upheld the Prosecution’s request and directed the Prosecutor to call Naomi Campbell as a witness.

In May of this year, the trial of Charles Taylor at the Special Court for Sierra Leone (SCSL) took a dramatic twist, when prosecutors requested the judges, to issue a subpoena to supermodel Naomi Campbell requiring her appearance before the Chambers. On the same day, the SCSL Prosecutors made an application that they be allowed to reopen their case, which was closed in February 2009, or bring evidence in rebuttal against Taylor by calling three additional witnesses, Campbell, Carole White and Mia Farrow. Campbell is required to testify as a witness about a diamond gift she allegedly received from Taylor in South Africa in 1997. Rule 54 of the SCSL Rules of Procedure and Evidence which is the applicable statutory provision for granting subpoenas, provides that: ‘At the request of either party or of its own motion, a judge or a Trial Chamber may issue such orders, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial’

The judges will grant a subpoena if it is ‘necessary’ to bring to court an unwilling but important witness. In the Taylor case, the Prosecution submits that Campbell’s testimony is necessary as it concerns a central issue in the case, the Accused possession of rough diamonds. They argue that her evidence is highly probative and material to the Indictment since it is direct evidence of the Accused’s possession of rough diamonds from a witness unrelated to the Liberian or Sierra Leone conflicts. According to the Prosecution, this corroborates Prosecution evidence that the Accused received diamonds from the Armed Forces Revolutionary Council (AFRC), the military junta, which in partnership with Revolutionary United Front (RUF) rebels,  ruled Sierra Leone in 1997 during the Indictment period. In addition, Campbell’s anticipated evidence supports the Prosecution allegations that the Accused used rough diamonds for personal enrichment and arms purchases for Sierra Leone, particularly during the AFRC/RUF period. Read the rest of this entry »

An article published in the 2008 volume (Issue 4) of the European Journal of International Law by Thomas Schultz has been awarded the 2010 Jubilee Prize of the Swiss Academy of Humanities and the Social Sciences (see here as well). The Jubilee Prize is awarded each year to the best article, across the humanities and social sciences, published by a young swiss researcher. The prize winning article is titled “Carving up the Internet: Jurisdiction, Legal Orders, and the Private/Public International Law Interface”. In the article Thomas Schulz argues that:

The Internet is caught between old forces of local territorialism and new forces characteristic of global economies. As a result, this article maintains that it may end up being carved or fragmented into discrete legal spheres. This development contradicts with the hitherto traditional vision of the Internet as a paradigmatic example of a borderless world of global transnationalism. This fragmentation is taking two forms: one vertical which reflects concerns of public policy and the protection of local values, the other horizontal which is driven by the rationale of commercial efficiency. The former (vertical), if not understood and handled properly, may lead to an informational impoverishment of the Internet. One response to this risk resides in new configurations of the appropriate jurisdictional bases for assertions of state power. I argue in favour of a double standard of jurisdiction for the regulation of Internet content: one, based on the principle of targeting, used to sanction behaviour, the other, an incarnation of the effects doctrine, used to prevent actions and fulfil the cathartic function of law. The latter (horizontal) form of fragmentation should lead us to rethink certain aspects of the concept of law, in particular with regard to legal pluralism, and to discover new places where law is to be found.

Our congratulations to Thomas Shultz who is currently Senior Lecturer and Researcher at the Department of Private International Law, Faculty of Law, Univeristy of Geneva. He is also the Executive Director of the Geneva Masters in International Dispute Settlement, organized jointly by the Graduate Institute of International and Development Studies and Development and the University of Geneva.