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Incest in the European Court

Published on April 15, 2012        Author: 

A couple of days ago the European Court of Human Rights decided a strange case, Stübing v Germany (no. 43547/08), judgment. An adult brother and sister engaged in consensual sexual intercourse, a punishable criminal offense in Germany and about a half of other European countries. The brother, applicant in this case, got a prison sentence. The other half of European countries do not criminalize adult incest. The issue before the Court was whether such a criminalization was consistent with the right to private and family life in Article 8 ECHR. The Court said that it was. For analysis, see this excellent post by Daniel Sokol on the UK Human Rights Blog.

What’s so fascinating about this case is that it is ultimately hard to pinpoint the moral, and hence legal justification for punishing adult incest, other than for the ‘yuck’ factor, i.e. a basically emotional response to the violation of a taboo. And this raises the specter of the justification for pure morals legislation generally, as e.g. with regard to the Naked Rambler, about whom I’ve written a few weeks ago. In other words, while the basis for most modern theories of morality or ethics, be they Kantian or utilitarian or what have you, is that morality is essentially a rational process that can be subjected to analysis through human reason, cases like these point to morality as an intuitive, emotional response in human beings. As a legal matter, the question is whether the simple fact that the community finds a particular practice to be incredbily disgusting is in and of itself enough to punish that practice through the mechanisms of the state. If, in other words, it is not okay for a state to criminalize homosexual intercourse merely because the majority of the population finds  the practice to be disgusting (or found it such then) – see Dudgeon v. UK - how could it be okay to punish consensual adult incest merely because we find it to be disgusting?

In that regard, the European Court’s non-response to this question was quite predictable:

Read the rest of this entry…

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Two ICC Decisions (and one Article) on Libya’s Request to Postpone Surrender of Saif Gaddafi

Published on April 14, 2012        Author: 

Earlier this month, the Pre-Trial Chamber of the International Criminal Court dealing with the case against Saif Gaddafi released two decisions rejecting two requests of the Libyan Government that Libya be allowed to postpone the surrender, to the ICC, of Saif Gaddafi. The first decision was actually issued on 7 March, but was only released on April 4 at the same as the decision rejecting Libya’s second postponement request. As readers will recall, the ICC issued an arrest warrant and a request for surrender for Saif Gaddafi in June last year and Saif has been detained since November last year. However, Libya has insisted on prosecuting Saif Gaddafi in Libya and has refused to hand him over to the ICC. Readers may also recall that Kevin Jon Heller at Opinio Juris, Jens David Ohlin at LieberCode and I (here, here and here) have engaged in a discussion on whether Libya is entitled to surrender its obligation to surrender Saif to the ICC. Libya’s requests for postponement raise all the issues that Kevin, Jens and I covered in our discussion. While the decisions of the Pre-Trial Chamber answer some of the questions, the Pre-Trial Chamber has not yet answered the central question of whether the obligation of surrender can be postponed in the event of an admissibility challenge based on the principle of complementarity. Hopefully, the ICC will return to this issue soon.

In the meantime, I have written an article  setting out my thoughts on these issues. The article is titled “The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC” and will be published by the Journal of International Criminal Justice (in May). However, the article is now available for download on SSRN.

In Libya’s first request for postponment of surrender, it stated that it was investigating Saif for various crimes under national law. According to a Guardian article of earlier this week, some of the crimes for which Saif is being investigated include alleged failure to have licences for two camels and cleaning of fish farms!! (though this later Guardian article says the charges will be murder, rape and torture). Read the rest of this entry…

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The Perils of Publishing – Living Under a False Title

Published on April 12, 2012        Author: 

 In the spring of 2010 the late Antonio Cassese requested me to contribute an essay in a volume he was planning on “Realistic Utopias”. I knew that Nino was a great believer in the idea of the “international community” and appreciated his willingness to engage me in a discussion of something he knew I had little faith in. By the end of 2010 I had produced a slightly ironic text that used Sigmund Freud’s famous contemplations of the “oceanic feeling” in Civilization and its Discontents  as the platform over which to think about “international community”. I gave it the title “Projects of World Community”.

During 2011 I heard no more about the matter. As I then read about Nino’s passing away, I assumed that there would probably be no publication at all. Towards the end of the year, however, his collaborator, Professor Paola Gaeta contacted all the contributors, informing them that the project would go ahead, but in order to avoid delays the contributors would not see the proofs. I admit I was worried. Prior experience about publishing texts I did not proofread myself was not encouraging. But I did not react. How stupid of me.

Then in early 2012 the book Realizing Utopia. The Future of International Law came out from Oxford University Press. I was notified of this by email and – like I am sure all the other authors – went immediately and somewhat anxiously to the OUP website to see what it, and especially my essay, looked like. I was happy to notice that the book actually opened with my text. My text, yes, but not my title.  What had read “Projects of World Community” had become “The Subjective Danger of Projects of World Community”. I was stunned. Where had “Subjective Dangers” come from? And what on earth did they mean? I immediately contacted professor Gaeta and the OUP to return to my original title – but of course that was already too late. The book was out. I did receive very sympathetic reactions, however. It was clear that Nino himself had added those words – probably contemplating that he would suggest them to me during proofreading. But then fate intervened. Nino would not live to carry out that process.

And so I am now staring at a title to my essay that is not only incomprehensible but – more damagingly – points in a direction that is against everything I have written. Adding the words ” Subjective Dangers ” to my original “Projects of World Community” undermines the very point of the essay.  The point which both Freud and I are making is that the sense of an “objectively” existing world community is based on a “subjective” feeling about being one with humanity. It points to no “danger” at all. It suggests the usefulness of taking a psychoanalytical approach in trying to understand a phenomenon. Ever since From Apology to Utopia I have been making the point over and over again that the “subjective” and “objective” are so completely enmeshed in  each other that it is impossible, and in fact, ideologically dubious, to try to do separate them. We live in an era where we are often called upon to make “objective” points and to avoid “subjective” feelings. It is this demand that I have repeatedly attacked in my writings.  There is no “objective” point of view at all, though some of us may experience (“oceanic”) feelings that make them believe they are speaking for something larger than themselves. If there is “danger” anywhere, it is not in the subjective nature of our feelings, but our attempt to persuade others that they are based on something grander, or experience something others should feel, too.

But now I have to live with a title that has destroyed that message and has put me in the position that I am attacking. Oh well. In the grander scheme of things, this is a very minuscule problem.  The OUP has promised to insert a slip in the book, reading  “Correction: Readers are advised that the correct title of chapter 1 by Martti Koskenniemi is simply Projects of World Community and it should be cited as such”. I am grateful for this. It does not make the problem go away, however, and some readers will be puzzled over the present title, and some of them will draw the conclusion that I have simply gone crazy. But I suppose this is in the nature of the perils of publishing. After having written the present text, and having spread it out as widely as I can, I will soon forget the matter. I certainly do not want it to stain Nino’s memory in any way; he was cut in the middle of so many activities, of which this was one of the least important. But to draw some benefit out of the situation, perhaps the lesson could be drawn once more: always insist on seeing the proofs.

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Direct and Active Participation in Hostilities: The Unintended Consequences of the ICC’s decision in Lubanga.

Published on April 11, 2012        Author: 

Nicole Urban is the Research Fellow in International Humanitarian Law at the British Institute of International and Comparative Law and previously read for an MPhil in Public International Law at the University of Oxford.

Last month the ICC handed down the judgment in its first competed trial, the Lubanga Case. Thomas Lubanga was convicted of the war crime of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities in conflicts not of an international character, as set out in Article 8(2)(e)(vii) of the Rome Statute. One of the key issues arising out of the judgment is the Trial Chamber’s interpretation of the term ‘active participation in hostilities’. The question of the meaning of the term arose acutely in relation to whether or not sexual violence against children, in the form of sexual slavery and forced marriages of child soldiers, fell within the scope of “active participation in hostilities”. The majority failed to decide on this question and Judge Odio Benito, in her separate and dissenting judgment, expressed understandable disappointment regarding the majority’s inconclusiveness on this issue.

The majority of the Trial Chamber raised, but did not reach a conclusion on, the legal meaning of term “active participation in hostilities”, as used in Article 8(2)(e)(vii). However, the majority found that ‘active participation’, under this provision of the ICC Statute, is a concept distinct from, and broader than, ‘direct participation in hostilities.’ The Court stated

‘The use of the expression “to participate actively in hostilities”, as opposed to the expression “direct participation” (as found in Additional Protocol I to the Geneva Conventions) was clearly intended to import a wide interpretation to the activities and roles that are covered by the offence…’[para. 627]

This finding is contrary to the position under international humanitarian law [IHL], which treats the terms as synonymous.  The consequences of the majority’s conclusions on this issue are, at this stage, unclear but potentially damaging to the mutually reinforcing relationship between IHL and international criminal law. By setting out this distinction between ‘direct’ and ‘active’, the Majority failed to consider the unintended consequences of its attempt to formulate a broad protection with the regard to the crime of conscripting and enlisting for the protections afforded by Common Article 3 of the Geneva Conventions (1949) and Article 8(c) of the Rome Statute, to those taking no ‘active’ part in hostilities. Equally dangerous is the ambiguous consequences of this ICC decision for the IHL concept of ‘direct’ participation in hostilities and the impact of the decision on those parts of the Rome Statute that incorporate this IHL concept by criminalising attacks on civilians that do not take a “direct” part in hostilities (Articles 8(b)(i) and (e)(i), ICC Statute). This post will set out the position on these issues under both IHL and the Lubanga Case and then consider each of the consequences outlined above.

Read the rest of this entry…

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International Commissions of Inquiry: A New Form of Adjudication?

Published on April 6, 2012        Author: 

Dr Hannah Tonkin is a Legal Officer in the Appeals Chamber of the Special Court for Sierra Leone. She previously worked at the ICTR and ICTY and taught international law at the University of Oxford. She is the author of State Control over Private Military and Security Companies in Armed Conflict, 2011 (ISBN 9781107008014)

In March the International Commission of Inquiry on Libya, created by the United Nations Human Rights Council (HRC), presented its report, finding that “international crimes, specifically crimes against humanity and war crimes, were committed by Qadhafi forces.” The report found that “acts of murder, enforced disappearance, and torture were perpetrated within the context of a widespread or systematic attack against a civilian population.” The report further found that anti-Qadhafi forces also “committed serious violations, including war crimes and breaches of international human rights law.” The Libya Report followed the delivery to the HRC in February of a report by the International Commission of Inquiry on Syria. That Commission found that Syrian government forces “committed widespread, systematic and gross human rights violations, amounting to crimes against humanity, with the apparent knowledge and consent of the highest levels of the State.” [para 126]

The Commissions on Libya and Syria are just the latest in a series of high-profile international fact-finding missions and commissions of inquiry in recent years. These include the 2004 International Commission of Inquiry on Darfur, the 2009 UN Fact Finding Mission on the Gaza Conflict (the Goldstone Report), the 2009 Fact Finding Mission on the Georgian Conflict (discussed here, here and here on EJIL:Talk), the 2010 and 2011 UN Fact Finding Mission and Committee inquiring into the Israeli blockade on Gaza (the HRC Fact Finding Mission and the Palmer Report) (see previous posts here), the 2011 Panel of Experts on Accountability in Sri Lanka (see previous EJIL:Talk! Post here) and the 2011 Bahrain Independent Commission of Inquiry. Most of these commissions had terms of reference that called on them to investigate alleged violations of human rights and international humanitarian law, though others, like the Georgia Commission, have been called to decide on other inter-State issues, such as the use of force.

These commissions of inquiry appear to have become a new mechanism for determining the responsibility of both states and individuals for violations of human rights and IHL. In the absence of universal compulsory jurisdiction by international judicial bodies, these commissions of inquiry are a way in which the international community can obtain an authoritative determination of whether these violations have taken place and who is responsible. These commissions have not replaced, and are not replacing, adjudication. In fact, they will often enhance adjudicative mechanisms where those exist. However, these commissions do seem to be an additional form of resolving, and obtaining authoritative pronouncements on, contested facts and issues of international law.

While many of these commissions are termed “fact-finding missions” or given the mandate to engage in fact-finding, in reality they tend to do much more than this and will often make quite detailed determinations on points of international law. Read the rest of this entry…

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“Jus – Post – Bellum”: Mapping the normative foundations

Published on April 6, 2012        Author: 

The Jus Post Bellum project is proud to host its launch conference, “‘Jus – Post – Bellum’: Mapping the normative foundations”, May 31 – June 1, 2012.  It will be held at the Peace Palace.  The first of several project seminars, this conference will seek to clarify the meaning and content of the concept (including, e.g., its relationship to and distinction from the field of transitional justice), including contemporary understandings and criticisms of the concept, and historical and modern approaches towards the definitions of key notions, such as “jus”, “post” and “bellum”.

The launch conference will include five panels: Situating the Concept, Mapping the Normative Framework(s), the Politics and Practice of Jus Post Bellum, Temporal Dimensions of Jus Post Bellum, and The ‘Jus’ in ‘Jus Post Bellum.’  There will also be a roundtable discussion on ‘At War’s End,’ by Larry May.

Conference speakers and participants include Freya Baetens, Rogier Bartels, Christine Bell, Eric de Brabandere, Robert Cryer, Jennifer Easterday, Mark Evans, Dieter Fleck, Gregory Fox, James Gallen, Terry Gill, Jens Iverson, Dov Jacobs, Jann Kleffner, Claus Kress, Randall Lesaffer, Larry May, Larry May, Jens Meierhenrich, Nneka Okechukwu, Inger Osterdahl, Cymie Payne, Yael Ronen, Aurel Sari, Matthew Saul, Carsten Stahn, Astri Suhrke, Ruti Teitel, Roxana Vatanparast, Martin Wahlisch, and Dominik Zaum.

Please fill out the linked form to apply to attend the Jus Post Bellum Project launch conference.
For more information, please see the draft programme and the call for papers.

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ICC Prosecutor Decides that He Can’t Decide on the Statehood of Palestine. Is He Right?

Published on April 5, 2012        Author: 

On Tuesday, the Office of the Prosecutor at the International Criminal Court issued a statement denying the Prosecutor’s competence to decide on Palestine’s acceptance of ICC jurisdiction. The ICC Prosecutor indicated in his statement that he could not take any action as a result of the declaration made by the Palestinian National Authority in January 2009, accepting the jurisdiction of the ICC over crimes committed on the territory of Palestine. The declaration by the Palestinian Authority was made under Article 12(3) of the ICC Statute. That provision allows States that are not party to the ICC Statute to accept the jurisdiction of the Court over crimes committed on the territory of that State or by its nationals. If the Palestinian declaration were accepted as a basis for ICC jurisdiction, it would grant the ICC jurisdiction over all ICC crimes (genocide, war crimes and crimes against humanity) committed on Palestinian territory since July 2002. Crucially, the declaration would give the Court jurisdiction not only over acts of Palestinians but also over acts by Israeli officials and nationals in Gaza and the West Bank. The key question with regard to the Palestinian declaration is whether Palestine is a State, since only States may make declarations under Article 12(3) of the ICC Statute. In his one and a half page statement, the Prosecutor has decided that:

“competence  for  determining  the  term  “State”  within  the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt,  will  defer  to  the  guidance  of  General Assembly. The  Assembly  of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.”

In short, it has taken the Prosecutor over three years to decide that it is not up to him to decide the question of the statehood of Palestine. The Prosecutor’s decision that it is up to the organs of the UN or to the Assembly of State Parties to the ICC Statute to decide on the statehood of Palestine, even in the context of decisions relating to the ICC is reasonable, both from the political and legal points of view. To the extent that the Prosecutor is asking throwing this explosive decision back to States, the Prosecutor is seeking to safeguard himself and his office from allegations that he is taking political decisions. However, there are questions as to whether this reasonable decision is legally correct. Oddly, an important factor, ignored by the Prosecutor is Palestine’s admission to UNESCO (see previous EJIL:Talk! post on that issue here). At first glance, the admission of Palestine to UNESCO seems most unrelated to questions to do with the jurisdiction of the ICC. However, as explained below, and by Bill Schabas on his blog last year, UNESCO’s decision may be highly relevant.

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On Security Council Reform

Published on April 4, 2012        Author: 

Dapo and Marko both know that I must be one of the worst blog editors ever.  I don’t know how to blog, because I can’t (yet) conceive of something written without shedloads of research and footnotes.   Nor do I know how to post posts, despite it being explained to me, patiently, slowly, and using simple words.  If either of them says a child of four could do it, then all I can do is echo Groucho Marx and ask that someone find me a child of four.  If you are reading this, then one of them has done the computer magic.

Tonight I am in Manhattan, and have just returned to my hotel after eating too many mussels in a rather pleasant bistro.  But as it is New York, and a “boutique” hotel, it is virulently non-smoking, and so I am writing this without benefit of cigars.  There is a small balcony outside my room window but, of course, the window is fixed fast  shut for fear that an open window might interfere with the air conditioning.  It is late March for pete’s sake—who would want air conditioning now?  And who wants to sit in a fridge anyway?

Alan Rickman is appearing in a play a few blocks away.  As I wandered back from the bistro, I was somewhat surprised to see crush barriers and a reasonable crowd outside the stage door.  Never mind a career as a distinguished classical and character actor, as well  the campest Sheriff of Nottingham ever, or even a thoughtful if bleak debut as a film director (The winter guest released in 1997 in case you are wondering—is that nearly a footnote, or merely an aside?), simply play a witch in a blockbuster movie or three and the world is your lobster.

Much as I admire his work, I am not here to collect Alan Rickman’s signature.  I have not read any of the Hairy Potter books nor seen the films.  I was so not part of the demographic awaiting him, clutching autograph books, at the end of his performance.   I am here to participate in a retreat called by the President of the General Assembly, to discuss what seems to be the never-ending search for Security Council reform.

And jeez, I desire to do some inhalation exercises with a cigar.

INTERMISSION (CIGAR)

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AfricLAW Blog

Published on April 3, 2012        Author: 

Our friend Erika de Wet sends the following notice: AfricLAW — the new blog on advancing the rule and role of law in Africa — is up and running. Find it at www.africlaw.com.

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Integration Through Fear

Published on April 3, 2012        Author: 

Quos Deus vult perdere prius dementat! The manner in which Europe is addressing its grave crisis seems to be validating this piece of wisdom attributed to Euripides, Seneca and others.

One manifestation is an argument which has become prevalent. In his very first speech as Premier elect to the Italian Senate, Mario Monti warned that ‘the end of the Euro would unravel the single market, its rules, its institutions, and would take us back to where we were in the 1950s’. The same nonsensical scare tactics – if the Euro fails, so does Europe as a whole – have been used by all major European leaders, from Barroso and van Rompuy to the Merkozy twins.  

The argument is, of course, simply false. The Single Market, the most singular and enduring economic achievement of Europe, operates today across the Euro divide. Ten of the 27 Member States do not belong to the Euro and in some of these countries their currency is not even pegged to the Euro. Sure, fixed exchange rates facilitate the functioning of the market. And a break up of the Euro will be incredibly messy and wreak havoc within that market. But unless one turns this into a self-fulfilling wish, and that is rapidly becoming the case, the actual existence of the Single Market never was, and still is not, dependent on some or all of its Members having a single currency.

Why is this nonsense peddled? Linking the fate of the Euro to the very existence of the Union offers a powerful tool with which to bludgeon one’s opponents and public opinion as a whole. Thus, each of its proponents uses it to advance positions and policies which at times are even at odds with each other.  

Beyond its falsity, it is a reckless tactic, a Faustian compact, deeply injurious, and one which will return to haunt us regardless of the fate of the Euro. Read the rest of this entry…

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