In the opening days of the Review Conference, one often heard references to the Review Conference as an “historic event” and a “second constitutional moment”.  With the significant exception of the possible adoption of the crime of aggression, which would indeed be a profound development, there is reason to ask whether the Conference is more a “constitutional moment” or just “another day at the office”.

My first blog highlighted the potential value of the stocktaking exercise.  Amending attitudes and understandings could prove as important, or more important, than amending the Statute.  I remain positive about the idea of stock-taking, the topics selected, the format adopted and the prominent panelists invited to open discussions. 

However, given that the venue is a Review Conference, and given that the stocktaking is in part a substitute for actual amendments to the Statute, one might have hoped that the delegates would at least tackle a few issues of comparable difficulty and significance and take some meaningful decisions about their vision for international justice.  Instead, the discussions among States have adhered quite closely to safe, well-worn and self-congratulatory scripts.

Thus, for example, in the discussions on peace and justice, most States intervened to deliver an essentially similar message:  Peace is good.  Justice is good.  Peace and justice are not contradictory.  Except perhaps sometimes when they at least seem so, and such situations require careful thought and handling.  The last point is typically made in a knowledgeable tone hinting that the speaker has a few deep insights into how this is done (and giving the sense that different delegations might handle the balancing in very different ways).  Repeat 40 times in different voices and languages, with no real delving into controversies or solutions. Read the rest of this entry »

In this post I simply want to direct readers to places where they can read about the legal issues raised by the Israeli blockade of Gaza and about Israel’s attempt to enforce that blockade earlier this week. I am sure we will return to these matters on EJIL:Talk! in the next few days. Douglas Guilfoyle, who has written several posts on this blog on issues relating to maritime interdiction has a piece in the Times (of London) in which he states that:

International law tells us that states may create and enforce blockades during an armed conflict, but it also tells us that those blockades must meet humanitarian standards to be lawful.    . . .

The law or armed conflict requires that blockading states allow aid through to the civilian population; however, the blockading state may control the channel through which aid is delivered, and that is what Israel has been doing. The authority to intercept vessels and control aid deliveries, however, is available only in a lawful blockade. To be lawful, a blockade must not be implemented where the damage to the civilian population is excessive in relation to the concrete and direct military advantage anticipated from the blockade, and this is where Israel’s legal position is open to question.

He then goes on to examine the legality of the operation to enforce the blockade and considers whether the Israeli soldiers acted lawfully in self-defence – a matter which may prove to be as important  and worthy of analysis as the legality of the blockade. Douglas then turns to and categorically rejects the charge that the operation was an act of piracy, as does Julian Ku at Opinio Juris.  Douglas has also given two interviews on the BBC which are worth listening to. See here and also here (around the 19 min mark). Afua Hirsch, Legal Correspondent at the Guardian also has a piece considering the legal issues here.

Also at Opinio Juris, Kevin Jon Heller has an excellent post in which he suggests that the legality of the blockade depends on the type of armed conflict is Israel is involved in in Gaza. He accepts that if Israel is involved in an international armed conflict (IAC) in Gaza then it has the right to blockade Gaza. However, he questions whether blockades are lawful in non-international armed conflicts. So:

Israel’s defense of the blockade thus appears to create a serious dilemma for it.  Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas.  And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza.  Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas.  But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention. Read the rest of this entry »

At long last, I have arrived in Kampala, after my original flight booking was affected – twice – by the British Airways strike. Much of today was a continuation of yesterday’s general plenary, wherein the states parties representatives read out pre-prepared statements of a polite but general nature, and diplomats and NGO delegates go hunting for extra copies. For many, the statements of interest today were those of the Observer States, including the statement of the United States.

A Plea of Caution, Care and Regard for the Court

The US statement was delivered by Stephen Rapp, US Ambassador-at-Large for War Crimes, and the former prosecutor at the Special Court for Sierra Leone. Evoking a general theme of “caution, care and regard for the Court”, and attributing support for this theme to prominent groups within civil society, Ambassador Rapp spoke of the challenges facing delegates, using a series of questions about the success of the ICC’s efforts in situation countries to connect with the four themes of the upcoming stocktaking exercise. Mention was also made of US co-sponsorship, along with Norway and the DRC, of a side-event on “positive complementarity”, drawing a link to the “frontlines of justice, national courts”.

But the larger, and more immediate, challenge facing the Conference, as identified by Ambassador Rapp, are the proposed amendments concerning the crime of aggression. Despite years of discussion, key issues remain without a consensus resolution, with Rapp identifying the conditions for the exercise of jurisdiction and how the aggression amendments will enter into force as being “elemental”, and “not of marginal significance”. Rapp also identified problems with the definitional aspect of the aggression amendment project, albeit that many view the definition aspect as easier to resolve than the conditions for the exercise of jurisdiction. (English School IR scholars and R2P watchers may be interested in Rapp’s reference to “the use of force that is undertaken to end the very crimes the ICC is now charged with prosecuting” in discussing the uncertainties of the proposed definition.)

The possible impact of aggression amendments on national jurisdiction was also highlighted as an area of uncertainty, with Rapp drawing a link to a conference non-paper circulated by the chairman of the Special Working Group on the Crime of Aggression, H.R.H. Prince Zeid of Jordan, available at: http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-WGCA-2-ENG.pdf

Rapp then focused on the “plea for caution, care and regard for the Court” promulgated by some civil society organizations, and clearly supported by the US, which has emphasized a need for a genuine consensus with respect to the definitions of crimes for the ICC. Read the rest of this entry »

There are few legal issues which still manage to evoke civic passion in the wider population. Increasingly, and sometimes for the wrong reasons, the place of religion in our public spaces has become one of them. In the age of the internet and Google we can safely assume that all readers of this Journal will have either read the Lautsi decision of the European Court of Human Rights or have read about it, thus obviating the need for the usual preliminaries. As is known, a Chamber of the Court held that the displaying in Italian public schools of the crucifix was a violation of the European Convention on Human Rights.

Independently of one’s view of the substantive result, the decision of the Second Chamber of the ECtHR is an embarrassment. There are few long-term issues on the European agenda that are more urgent, more complex and more delicate than the way we deal with the challenging problems of State and Church, religious minorities, the questions of collective identities of Europe and within Europe, and the parameters of uniformity and diversity of our states and within our states. All these issues are encapsulated in Lautsi. All are disposed of, Oracle like, in 11 impatient and apodictic paragraphs. Compare this to the 90 pages of the Supreme Court of the UK in the recent JFS Case, to give but one example.[1]

The European Court of Human Rights is not an Oracle. It is a dialogical partner with the Member States Parties to the Convention, and the legitimacy and persuasiveness of its decisions resides both in their quality and communicative power. The ECtHR is simultaneously reflective and constitutive of the European constitutional practices and norms. When there is a diverse constitutional practice among the Convention States – and there certainly is in this area – the Court needs to listen, not only preach, and to be seen to be listening. In this decision not only does it not engage with the rich jurisprudence, doctrine and practice to be found in many of the Member States, while blithely citing mostly its own decisions, it does not even address some of the issues raised by the defendant state. Read the rest of this entry »

We begin this issue with a symposium to honour one of our Founding Editors, Professor Antonio Cassese, who recently celebrated his 70th birthday. Many happy returns.  We publish five short pieces on the role that public international law plays and can play in the protection of individuals, a topic of abiding concern to Nino. From a variety of perspective our writers, Giorgio Gaja, Christian Tomuschat, Andrew Clapham, Luigi Condorelli and Francesco Francioni each provide tribute by providing insight in this particular area of international law.  We extend warm thanks to Paola Gaeta, an EJIL Editorial Board member, for Guest Editing this symposium.

In our articles section you will find a trenchant piece by B.S. Chimni – ‘Prolegomena to a Class Approach to International Law’ –with a distinct and challenging theoretical voice.  Next, we have an article by Mario Mendez entitled, ‘The Legal Effect of Community Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques’, which suggests that a ‘twin-track’ approach to treaty enforcement is developing in the European Community.  We turn then to two pieces which engage with fresh questions concerning international humanitarian law.  We hope you will read these articles by Katherine Del Mar and Carlo Focarelli as logical extensions of the symposium in this issue.  Our final article by Roozbeh Baker addresses an ever fresh topic: ‘Customary International Law in the 21st Century: Old Challenges and New Debates’.

As part of our occasional series – Critical Review of International Governance – we publish a piece by Milagros Álvarez-Verdugo  which investigates the relationship between climate change and the Non-Proliferation Treaty. Life continues even after the Copenhagen farce.

In an earlier editorial, we encouraged review essays which cover a variety of texts on a single topic.  In this issue we include a good example of an insightful review essay by Lindsey Cameron and Rebecca Everly on territorial administration. 

The Last Page features a poem by Laura Coyne entitled ‘Market Fictions’ – food for the soul.

The International Criminal Court Review Conference opened today, May 31, 2010 in Kampala, Uganda.   The Conference has drawn thousands of participants, including heads of state, ministers, diplomats and other State officials, NGOs, parliamentarians, academics, media and officials from international courts and from the United Nations (including the current Secretary General and his predecessor).  The conference is hosted by Uganda, the first State Party to refer a situation to the Court and a site of the Court’s earliest investigations. 

 The Review Conference marks the first opportunity to consider amendments to the Rome Statute, which was adopted at a Diplomatic Conference in 1998.  The centre of attention on the agenda is the crime of aggression, which has brought to the fore contrasting visions of the role of the ICC and its relationship with other international institutions.  Other proposed amendments include war crimes and the ‘transitional provision’ (discussed below).  The scope of the Review Conference has expanded beyond discussion of amendments; participants have seized the opportunity for a deeper discussion on the future shape of international criminal justice.  Thus, a “stock-taking” exercise is taking place to discuss complementarity, cooperation, peace and justice, and the impact on victims and affected communities. 

 AGGRESSION

 The crime of aggression presents by far the most controversial, the most complex and most profound questions.  Read the rest of this entry »

The Conference to review the Statute of the International Criminal Court opens today in Kampala, Uganda. Article 123 of the Statute mandates that a review be convened seven years after the entry into force of the Statute and that this review shall consider any amendments to the Statute include any amendments to the list of crimes subject to the jurisdiction of the Court. Much of the discussion in the review conference will focus on proposed amendments to the Statute which seek to define the crime of aggression and seek to set out the conditions under which the Court can exercise jurisdiction over the crime of aggression. On the latter point, much of the discussion will focus on the relationship between the ICC and the Security Council. For previous discussion on EJIL:Talk! on  the proposals relating to aggression, see here, here and here. The review conference will also discuss other proposed amendments to the Statute, namely: a proposal to delete Article 124 of the Statute (on which see Bill Schabas) which is a transitional provision allowing a State to opt out for seven years from the provision dealing with war crimes; and another proposal to harmonise the provisions of Art. 8 dealing with prohibited weapons in international and non-international armed conflicts. There will also be an exercise in “stocktaking” of the progress of international criminal justice. The website of the review conference (available here) contains the relevant documents.

EJIL:Talk! is delighted to announce that Professors Joanna Harrington and Darryl Robinson will be providing reports and analysis from the Review Conference for readers of this blog. Both Professors Harrington and Robinson are attending the conference in Kampala and both of them have significant academic and practical experience of working on issues relating to the ICC. Professor Harrington is a previous contributor to the blog  (see here) and is Professor of Law at the University of Alberta, Canada where she has recently been appointed as Associate Dean for the Faculty of Graduate Studies and Research. From 2006 to 2008, she served as the Scholar-in-Residence with the Legal Affairs Bureau of the Canadian Department of Foreign Affairs and International Trade. In that role, she, among other things, provided advice on matters of international criminal law and practice and served as a member of Canada’s delegation to the United Nations General Assembly and the Assembly of States Parties to the Rome Statute of the International Criminal Court.

Professor Darryl Robinson is Assistant Professor of Law at Queen’s University in Canada. Prior to this he served as a Legal Officer at the Canadian Department of Foreign Affairs from 1997-2004, where he provided legal advice and engaged in international negotiations concerning international human rights, humanitarian and criminal law. His work in the creation of the International Criminal Court and in the development of Canada’s new war crimes legislation earned him a Minister’s Citation and a Minister’s Award for Foreign Policy Excellence. From 2004 to 2006, he served as an adviser to the Chief Prosecutor to the International Criminal Court where he helped shape the first policies and strategies of the ICC.

The first conference to the review the Statute of the International Criminal Court opens next week in Kampala Uganda. The major proposal to be considered at the conference will be proposals to amend the Statute so as to define the crime of aggression and to set out the conditions under which the Court can exercise jurisdiction over the crime of aggression. There appears to be substantial (even overwhelming) agreement amongst ICC parties that the ICC should be allowed to prosecute the crime of aggression. There is also agreement on the definition of aggression. However, substantial disagreement  remains about the conditions which should exist before the ICC may exercise jurisdiction over aggression. In particular, the key question appears to be whether the ICC should be able to make independent determinations about whether aggression has been committed by a State or whether the ICC should only be able to prosecute where the Security Council has made a prior determination that a State has committed aggression. It has also been suggested that the ICC should be competent to proceed where either the General Assembly or the International Court of Justice has made a prior determination that aggression has been committed.

The issues raised by the proposals to amend the Statute with regard to aggression were discussed in the last EJIL issue of 2009 (Vol. 20, Issue 4). That issue contains four thoughtful papers by Andreas Paulus, Claus Kress, Roger Clark and Sean Murphy (two of whom have been intimately involved in the negotiations in the Special Working Group on the Crime of Aggression). I highly recommend this set of papers. That discussion in EJIL was preceded by discussion on this blog by Andreas Paulus and by me.

I would like to draw readers attention to a paper (see here) I have just completed which focuses on a fundamental problem with the aggression proposal which appears not to have been considered at all by the negotiators and which I hope will be addressed in Kampala next week. This is the issue of whether the aggression amendment, if accepted, should permit the ICC to prosecute leaders of States which are not party to the Rome Statute or have not accepted the aggression amendment. The problem arises because the Statute of the ICC (Art. 12) permits the Court to exercise jurisdiction over individuals where they are nationals of State parties or have committed a crime within the territory of a State party. It has thus far been assumed that this normal jurisdictional rule of the ICC will also apply to aggression, if the aggression amendment is approved. This would mean that the leaders of  non-party States (or of States Parties that don’t accept the aggression amendment) would be subject to the jurisdiction of the ICC, where the alleged victim has accepted the aggression amendment. In 2003, Iargued (in this paper) that it was legitimate for the ICC to exercise jurisdiction over nationals of non-parties. However, I noted then that aggression was different. In my recent paper (posted as a Working Paper on the site of the Oxford Institute for Ethics, Law and Armed Conflict), I set out why aggression is different. I also argue that limiting to the jurisdiction of the ICC to situations referred by the Security Council (in addition to jurisdiction over aggression committed by consenting States) is not a limitation of a competence which the Court would otherwise have but rather an expansion of the Court’s jurisdiction to areas whether it would otherwise lack competence.  The abstract of this recent paper is below: Read the rest of this entry »

Amrita Kapur’s posted reply to Ken Anderson’s “The Rise of International Criminal Law” and myself makes a series of nuanced points, many of which I appreciate.  I am unsure how deep our disagreements actually run, but because some of her language indicates an affinity for views of which I am critical, I will take the opportunity to expose some areas of sharp disagreement – if not actually between myself and Kapur, then surely between myself and others who highly tout the project of international criminal justice. 

Kapur’s post acknowledges that “trials are inherently flawed as a process to achieve the noble purposes ascribed to the ICJ project.”  She nonetheless insists that justice “must surely include, if not focus on, justice for the wronged parties, the victims, and the society that must build peace and reconciliation.”  This statement is open to varying interpretations, but to sharpen the discussion, I will provisionally interpret it to make two typical assertions with which I take issue:  first, that an authoritative condemnation of perpetrators is an essential element of post-conflict efforts to reaffirm the dignity of victims; and second, that peace and reconciliation are necessarily predicated on – and therefore, perhaps, should be held hostage to – the authoritative triumph of a particular moral judgment about the acts of conflict participants. 

If one has in one’s mind’s eye morally unambiguous conflicts, where one side used atrocious means in the service of a manifestly evil end, both of these assertions seem plausible.  Insofar as the ICL project limits its ambitions to such circumstances – and there are enough of these to keep us busy – it has my full support.  But many armed conflicts involve, on one or both sides, informed persons of good faith and sound reason who endorse the use of ruthless methods for what they regard as an indispensable greater good.  Ruthless acts have often been committed, not because of a “culture of impunity,” but because actors (and their constituencies) believed, non-pathologically, that presumptively wrongful acts were justified in the effort to avert what they regarded as a morally worse overall outcome.  (I regard the Israeli-Palestinian conflict as quintessential in this regard, but even the question of which conflicts fall into this category turns on one’s political attitudes.)

 Among the conclusions that follow from this observation is that the potential target list for the ICL project is too rich.  The problem is not simply the danger that the typically-hoped-for expansion of domestic-court invocation of universal jurisdiction will produce frivolous prosecutions or legally unjustified convictions.  Fully sound cases could, in principle, be brought against a very wide range of actors, and yet in practice, prosecutions will almost always be reserved for the politically unpopular and strategically uninfluential.  Read the rest of this entry »

Editor’s Note: This is the third of a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . The earlier posts in the series can be found here and here.

Buried toward the end of The Rise of International Criminal Law is a discussion of communities of authority and interpretation in international law and ICL.  Neither Kapur nor Roth raises it, for the very good reason that it is buried toward the end in a couple of paragraphs.  As time has gone on since publication of the article, however, I have gradually become convinced that a central, unavoidable question in all this is one I have posed before in the context of IHL – “Who owns international law?”  Who has interpretive authority over it?

It’s contested, and always has been.  That is a historical constant, and so in writing the original article I mentioned it but did not follow it up.  But as I consider ICL and its social claims more deeply, I’m convinced that the growth of the tribunal structure internationally and the deeper involvement of national tribunals through various forms of universal jurisdiction – from Garzon to the ATS, as it were – has in fact introduced a new dynamic in the otherwise perennial argument over interpretive authority in international law.  It is a dynamic of fragmentation. 

The reason, I think, is the nature of tribunals and judgments as they become widespread enough to become a real source of authority and interpretation.  The nature of courts, and judgments, is that they gain in legitimacy and authority, on their own terms, by asserting themselves and their authority.  But they do that in part by doing self-referentially – a sort of bootstrapping of legitimacy.  Read the rest of this entry »