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ICJ Judges Who Were Previously Ad Hoc Judges – The Answers

Published on December 21, 2011        Author: 

In a previous post, I asked:

Which judges of the ICJ had served as ad hoc judges at the ICJ prior to their election to the ICJ?

Wim Muller was very quick off the mark in noting that on the ICJ current bench, Bernardo Sepúlveda-Amor (Mexico) was an ad hoc judge in the Avena case (Mexico v. USA) before being elected to the Court. Thanks to Martin Cabrera for also noting that Judge Antônio  Cançado Trindade was also an ad hoc  judge in the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) case before his election to the Court. If one includes Gaja (who joins in February), five of the Judges on the current bench had previously served as ad hoc judges. Apart from Gaja, Antônio  Cançado Trindade and  Sepúlveda-Amor, the other two are:

-Judge Mohamed Benouna [Frontier Dispute (Benin/Niger]; and

Judge Yusuf in the Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)

What is interesting is that by my reckoning, apart from these  5 current judges, there had previously only been seven other judges who had served as ad hoc judges before they were elected to the Court. Thanks to Martin Cabrera for pointing out two of them: They are (1) Judge Roberto Ago (Italy) in the Arbitral Award (Honduras v. Spain) (2) Judge Federico de Castro in the Barcelona Traction case (I have to admit I missed him out on the list I had constructed). The others are (3) Judge Evensen (Norway) in Continental Shelf (Tunisia/Libya); (4) Judge Mosler (Germany)  in North Sea Continental Shelf cases; (5) Judge Nagendra Singh (India) in the ICAO Council Case (India v. Pakistan) ; (6) Judge Jean Spiropoulous (Greece) in the Ambatielos Case (Greece v. UK); and (7) Judge Muhammad Zafrulla Khan in the SouthWest African Cases and the Trial of Prisoners of War case (Pakistan v. India). Readers, have I missed any out?

It is interesting to note that it is now much more common than was previously the case  for ICJ judges not only to have previous experience on another international tribunal but also to have prior experience as an ad hoc Judge at the ICJ. Why might this be so? Read the rest of this entry…

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Six New Judges Elected to the ICC

Published on December 20, 2011        Author: 

Last week, the States Parties to the Rome Statute of the International Criminal Court, meeting at the Tenth Session of the Assembly of States Parties, elected six new judges to the International Criminal Court (see here). They also formally approved the election of Fatou Bensouda as the next ICC Prosecutor (on which see here). The new judges will make up a third of the judges of the ICC. The election procedure for electing judges to the ICC is even more complicated than the procedure for elections to the International Court of Justice. Like the ICJ, the ICC Statute provides (Art. 36(8)) that there should be representation of the principal legal systems of the world. However, that provision also specifies that there should be equitable geographical representation and a fair representation of female and male judges. In addition, there are separate lists of judges with competence in criminal law (list A) and of judges with competence in international law (list B) and a set proportion of judges of the court have to be from list A or B (see Art. 36(4)). Also, unlike the ICJ where candidates need an absolute majority of votes in the United Nations General Assembly and Scurity Council (on the meaning of this, see previous discussion in the comments to this post), candidates for the ICC need a two-thirds majority of States Parties present and voting. All of this means that someone needs to be keeping tabs to ensure that all of these rules are respected. See this document for the rather involved procedure for the elections held last week. In the elections just held there were 15 rounds of voting (see detailed results here) !!

One thing is that is absent at the ICC when compared with the ICJ is the convention that there is a judge from each of the permanent members of the UN Security Council. Of course, only two members of the Council are parties to the ICC Statute (the UK and France). Even so, there is no presumption that judges of that nationality will be elected. In the latest elections, the UK candidate was elected but the French candidate was not. He was outvoted in round 14 by the candidate from Nigeria and then withdrew. Read the rest of this entry…

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More International Law Trivia

Published on December 20, 2011        Author: 

Following my posts (here and here) about elections to the International Court of Justice of judges who had previously been on another international tribunal, I have another question for readers. Giorgio Gaja who was elected to the ICJ last month (see here) is currently an ad hoc  judge in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case. He had also been ad hoc judge in three previous ICJ cases. The question is:

Which judges of the ICJ had served as ad hoc judges at the ICJ prior to their election to the ICJ?

Note that I am asking for ICJ judges who were appointed ad hoc judges before they became full time judges on the ICJ. I am excluding those ad hoc judges who were appointed as such after they had been ICJ judges. There are many in the latter category. Gilbert Guillaume, former ICJ president is currently an ad hoc judges in three cases now before the Court. Read the rest of this entry…

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Palestine, Statehood and the Challenges of Representation

Published on December 19, 2011        Author: 

Guy Goodwin-Gill is a Senior Research Fellow at All Souls College, Oxford and Professor of International Refugee Law, University of Oxford. Previously, he was Professor of Asylum Law at the University of Amsterdam and Legal Adviser in the Office of United Nations High Commissioner for Refugees from 1976-1988. He practises as a Barrister from Blackstone Chambers, London.[i]

The bid by Palestine for full UN membership in September last has generated controversy, discussion, reflection, and doubt, all now helped along by UNESCO’s recent decision to admit Palestine as a State of full capacity.

The questions arising here, of course, are not just sterile, academic ones about the incidents and criteria of statehood. Rather, we are at an intensely political moment, and what we are seeing is deep-seated frustration on the part, not only of Palestinians, but also once again, of substantial numbers of the world community who see justice for the people of Palestine endlessly obstructed by the intransigence of the Israeli Government.

In this highly contested context, and from a limited international law perspective, Palestinian ‘statehood’ can only seem indeterminate and uncertain, considered against traditional, Montevideo Convention criteria – a fluctuating and hitherto uncounted population, borders at the mercy of realignment by superior force, daily restrictions on the capacity to govern itself. And yet, as many have said, the conception of the Palestinian State may still have its uses, and offer the potential for Palestinians to put their complaints, their disputes, their rights and their claims on a higher plane, and to access more directly a variety of international mechanisms to assist their cause, bringing about or bringing closer that goal of a State in international law, a national home for the people of Palestine which has been the stated aim of the international community for over sixty years.

 Today, however, I do not want to look so much at the issue of Palestinian statehood, but rather at that the ‘Ur-question’ – the question behind the question, the question that we can and should ask of every State, actual and potential. And that question is about who represents the State in its relations with other States, and by what right or claim, and about whether this is a matter of international legal concern.

Read the rest of this entry…

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Christopher Hitchens RIP

Published on December 16, 2011        Author: 

Sadly, the great polemicist died yesterday from cancer. While he had a strong opinion about everything, including issues of international law, and thus not infrequently came across as a dilettante, he was still an unparalled debater and public speaker with a superb sense of humor. He was also utterly fearless – think only of his Missionary Position book challenging the myth of mother Theresa. His last article in Vanity Fair, written only a few weeks before his passing, is above all a very human look at the imminent prospect of death. And he’s left us with gems like these:

UPDATE: And in the humor department the On the Limits of Self-Improvement series (here, here and here) can hardly be topped.

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Prior International Judicial Experience and Election to the ICJ – The Answers

Published on December 16, 2011        Author: 

In my post of yesterday I tried to come up with a bit of international law trivia. I asked readers to come with names of ICJ Judges who had been on international tribunals prior to their election to the ICJ. You can see the answers readers came up with in the comments to that post. Many thanks to Martin for noting that Judge Buergenthal was at the ICTY previously. Thanks also Wim Muller for pointing out that Mohamed Bennouna, also currently on the ICJ, also had prior experience of another international tribunal before election to the ICJ. This means that when Judge Sebutinde takes up her position at the Court, there will be three ICJ judges (together with Judge Antonio Cancado Trindade) serving on the bench at the same time who had earlier been judges at other international tribunals. This compares with around 5 previous ICJ judges who had served on international tribunals prior to election to the ICJ.

Thanks also to Tobias and Markos for the names of Lord McNair and Judge Mbaye. However, as Tobias and Markos note, these are examples of Judges going on to international tribunals after they left the ICJ.

The names of other ICJ judges with prior international judicial experience are Sir Humphrey Waldock, who was a Judge and President of the European Court of Human Rights prior to going to the ICJ and President Guerrero who was the first President of the ICJ. The last one is particularly tricky as Judge Guerrero was the last President of the Permanent Court of International Justice. Judge Guerrero was also Vice President of both the PCIJ and the ICJ. Though the ICJ was the continuation of the PCIJ they were technically separate courts so he counts as one who was another international tribunal prior to election to the ICJ.

Other Judges with experience of international judicial or quasi-judicial tribunals prior to going to the ICJ would be Judge Petren (Sweden) who had been a member (and President) of the European Commission of Human Rights and a Judge at the United Nations Administrative Tribunal. Incidentally, Waldock had also been member and President of the European Commission of Human Rights before going to the ECtHR and the ICJ. Judge Higgins had also been a member of the Human Rights Committee before election to the ICJ. I don’t count judges who had served on international arbitral tribunals or conciliation commissions as they were not standing courts or tribunals.

It is interesting to see that most of the British Judges at the ICJ have either had prior international judicial experience or gone to an international tribunal after leaving the ICJ. The exceptions are Hersch Lauterpacht (who sadly died while at the ICJ) and Robert Jennings.

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ICC Issues Detailed Decision on Bashir’s Immunity (. . . At long Last . . . ) But Gets the Law Wrong

Published on December 15, 2011        Author: 

This week the ICC issued two decisions regarding whether Sudanese President Omar Al Bashir is immune from arrest in ICC parties (see here and here). The decisions were issued in the context of proceedings considering whether Malawi and Chad had breached their obligations of cooperation under the Rome Statute by failing to arrest Bashir when he visited those countries in late 2011. The Malawi decision, issued a day before the Chad decision, is the first detailed decision regarding the immunity of Bashir. In summary, the Pre-Trial Chamber held that:

“Chamber finds that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes. There is no conflict between Malawi’s obligations towards the Court and its obligations under customary international law; therefore, article 98(1) of the Statute does not apply.” (para. 43)

The Chamber therefore held that Malawi (and Chad) by failing to arrest and surrender Bashir had failed to comply with their obligations to cooperate with the ICC. Moreover, the Chamber held that it has “the sole authority” to decide whether immunities are applicable in a particular case (para. 11) and that by failing to bring the issue of immunity to the ICC for determination there had been a further breach of the obligation of cooperation.

As readers will surmise from my previous posts on the issue (here, herehere, and here), I agree with the result reached by the Pre-Trial Chamber (that Bashir is not immune from arrest) but I disagree with the reasoning. In particular, I think the Court is wrong to suggest that there is a general exception to Head of State immunity in prosecutions before international courts. Also, even if that were true, as Paola Gaeta has demonstrated, it would not follow that as a matter of international law national authorities were then free to depart from the immunity which customary international law grants to heads of States from arrest by national authorities.

Better Late than Never

Before I get to the substance of the decision, I would like to say that it has taken far too long for the ICC to issue a detailed decision on the immunity issue. The decisions of this week come nearly three years after the ICC Pre-Trial Chamber first issued an arrest warrant for Bashir in March 2009 and after the ICC has on several occasions reported States to the UN Security Council for failing to cooperate with regard to Bashir’ arrest and surrender (see previous post here). In previous posts (see here and here) over the last couple of years I have argued that it was most unfortunate that the ICC judges had chosen to avoid dealing with the immunity issue since: there was a reasonable argument that Bashir was immune from arrest as a head of State of a non-party; the African Union (AU) had made this precise argument in issuing several decisions calling on AU members States not to cooperate with the Court; the resulting tension with African States was proving somewhat damaging to the Court; and most importantly Article 98 of the Court’s Statute requires the Court to deal with the issue of immunity. In the decision of the Pre-Trial Chamber on Bashir’s arrest warrant (and in the decision regarding the Gaddafi Arrest Warrant), the Chamber had stated that:

“the current position of Omar Al Bashir as Head of a state which is not a party  to the Statute, has no effect on the Court’s jurisdiction over the present case.” Para.  41

So it had addressed the question of the position of heads of State but it had failed to deal head on with the customary international law of immunity and the interplay between Articles 27 and 98 of the ICC Statute which both deal with immunity and appear, at first glance, to be contradictory. Better late than never. But getting there late is not really good enough. Ignoring this sensitive issues has itself contributed to the tensions with African States and to the feeling that the position of those States is just being ignored. Read the rest of this entry…

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Prior International Judicial Experience and Election to the ICJ

Published on December 15, 2011        Author: 

In my previous post on the election of Julia Sebutinde I noted that she is currently a judge at the Special Court of Sierra Leone. This got me thinking about whether there were other judges elected to the ICJ having previously served on another international tribunal. It is not uncommon for persons who have served as senior national judges to be elected to the ICJ. Julia Sebutinde is one having been a high court judge in Uganda. On the current ICJ bench, Sir Kenneth Keith (New Zealand) and Ronny Abrahams (France) have also had national judicial experience at the highest levels. There have also been cases of ICJ judges then going on to serve in other international tribunals after leaving the ICJ. Mohammed Shahabuddeen went to the ICTY after leaving the ICJ. Sir Gerald Fitzmaurice went on to become a judge at the European Court of Human Rights after leaving the ICJ. Also judges have moved from the ad hoc international criminal tribunals to the ICC.

On the current ICJ bench there is one judge that had served on an international tribunal prior to election to the ICJ. This is Antônio  Cançado Trindade who had been President of the Inter-American Court of Human Rights? But have there been others? One suspects that with the proliferation of international tribunals we will see more cases of ICJ judges having prior experience of working as an international judge. In the past, with few international tribunals, the opportunities were limited. Having said this Judges Cancado Trinidade and Sebutinde are not the first ICJ judges to have been judges on other international tribunals before going to the ICJ. Read the rest of this entry…

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Decoding the Durban Platform

Published on December 14, 2011        Author: 

Lavanya Rajamani is a Professor of International Law at the Centre for Policy Research, New Delhi, India.

The Durban climate conference, marked by tension, high drama and sleepless nights, arrived 36 hours after the scheduled end of the conference, at a set of historic decisions. These include decisions to implement the Cancun Agreements, operationalize the Green Climate Fund, extend the Kyoto Protocol for a second commitment period, and launch a new process to negotiate a future climate regime. This was a ‘package deal’ in that without an agreement to negotiate a future climate regime, the EU would not have agreed to a Kyoto second commitment period.

Parties launched a process titled the Durban Platform on Enhanced Action (see here) to negotiate ‘a Protocol, another legal instrument or agreed outcome with legal force under the Convention applicable to all.’ This instrument is scheduled to be adopted in 2015, and implemented from 2020. Although the media has interpreted this decision to mean that all ‘major emitters,’ developed and developing alike, will be legally bound to GHG emissions cuts from 2020, the tortured language used in this decision masks a vast terrain of contestations.

In the lead up to Durban several developing countries were reluctant to endorse a legally binding instrument (see previous post), however India alone held out till the last hours of the conference. India insisted that agreeing to a legally binding instrument was a Cabinet-mandated red line that it could not cross. It could agree at best to launch a process towards a ‘legal outcome’  – which would leave the precise legal form of the instrument open. A ‘legal outcome’ could encompass legally binding instruments as well as Conference of Parties decisions, which although operationally significant, are not, save in the exception, legally binding. This formulation lacked the clarity and ambition that the EU, the Alliance of Small Island States, the Least Developed Countries, many Latin American countries, and even India’s BASIC allies, Brazil and South Africa, were seeking. Critically, this was not sufficient for the EU to endorse a second commitment period. After a fast and furious ‘huddle’ in the final hours of the conference, India agreed to substitute the term ‘legal outcome’ with a marginally less ambiguous term, ‘agreed outcome with legal force,’ thus triggering the acceptance of a Kyoto second commitment period by the EU and its allies. Much of the details on Kyoto will be worked out in 2012, but Durban did give it a new lease of life.

Unlike the terms ‘Protocol’ and ‘another legal instrument’ the term, ‘agreed outcome with legal force’ does not reflexively signal a legally binding instrument. Nevertheless the overwhelming implication of these formulations as well as the political machinations surrounding it is that we are moving towards a legally binding regime. And, one in which the nature and extent of differentiation in favor of developing countries will shift considerably from the existing regime that is rooted in the principle of common but differentiated responsibilities and respective capabilities.

The Durban Platform decision does not contain a reference to ‘equity’ or ‘common but differentiated responsibilities.’ This is no benign oversight.  Read the rest of this entry…

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Uganda’s Julia Sebutinde Elected to the International Court of Justice

Published on December 14, 2011        Author: 

Yesterday the United Nations General Assembly and the Security Council elected Julia Sebutinde to be a Judge at the International Court of Justice (see UN press release). Readers may recall from an earlier post that the Security Council and General Assembly elected four judges to the ICJ last month but most unusually failed to agree on the fifth judge to be elected. The ICJ Statute requires that candidates obtain an absolute majority in both the Security Council and the General Assembly. After several rounds of voting Judge Abdul Koroma (Sierra Leone), who is the currently the longest serving judge at the ICJ, consistently obtained a majority in the Security Council but Judge Julia Sebutinde consistently got more votes in the General Assembly. As I reported in my previous post, the Statute provides a procedure that may be used to resolve this deadlock. However, both organs chose to postpone voting till a later date and yesterday Judge Sebutinde again won in the General Assembly but this time also won in the Security Council. Judge Sebutinde got 97 votes in the General Assembly to Judge Koroma’s 93 and she obtained 9 votes in the Security Council to Judge Koroma’s 6.

Judge Sebutinde was the candidate endorsed by the African Union, and her country Uganda had expected that she would receive the support of African countries. Indeed, it has been reported that Uganda and Sierra Leone had an agreement that Sierra Leone would withdraw the candidature of Judge Koroma. Sierra Leone did not do this and Judge Koroma proved to be a popular candidate when the elections came round.

Judge Sebutinde is third woman elected to the ICJ in the space of just 18 months (here and here), which is great news, especially as there had only been one female judge prior to this in the entire history of the ICJ and PCIJ (apart from a couple of female ad hoc judges). Judge Sebutinde is currently a Judge at the Special Court for Sierra Leone where she was Presiding Judge in the trial of former Liberian President Charles Taylor. Before this, she was a Judge in the Ugandan High Court.

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