Day 8 of the Review Conference for the International Criminal Court saw the wrapping up of the work of the Working Group on the Crime of Aggression (WGCA), leaving the aggression negotiations to be conducted through “informal informals”, bilateral discussions, and plenary sessions. The move from working group to plenary will also be accompanied by a change of chair, with the President of the Assembly of States Parties, Ambassador Christian Wenaweser of Liechtenstein, taking over the reins from HRH Prince Zeid, the Chair of the WGCA (and a previous ASP President). Wenaweser is well aware of the positions and divisions among states, having previously chaired the Special Working Group on the Crime of Aggression (SWGCA) within which the aggression proposals were developed for the Review Conference. The question on the minds of many delegates is whether these negotiations will go late into the night on Friday in search of an acceptable text (and thus causing many of us to miss the first match of the much anticipated World Cup in South Africa). Read the rest of this entry…
Today the Grand Chamber of the European Court of Human Rights held joint hearings in Al-Skeini and others v. UK (no. 55721/07) and Al-Jedda v. UK (no. 27021/08) – webcast available here, statements of facts available here. It would be no exaggeration to say that these are some of the most important cases to come before the Court in recent years, with possibly wide-ranging implications, on matters ranging from the extraterritorial application of the ECHR and the use of force generally, to occupation and targeted killings, up to the responsibility of international organizations, the relationship between the ECHR regime and the UN Security Council under Article 103 of the Charter. The Court will probably deliver its judgments by the end of the year.
Let me now try to provide a preview of some of the most important issues – particularly threshold issues – that that the two cases raise, and of the possible ways in which the Court might rule.
(Again, apologies for a long post!)
We are now in Day 7 of the Review Conference for the International Criminal Court in Kampala, with yesterday evening being a very active period in the negotiations as evidenced by the release this morning of a revised Conference Room Paper on the Crime of Aggression (CRP Rev. 2) and a proposal by Canada to complement that already made by Argentina, Brazil and Switzerland (the ABS proposal). As predicted, much of Days 5 and 6 of the Review Conference were concerned with the setting out of initial positions on the crime of aggression, with only an hour being spent on the discussion of other amendments during Day 5. A slightly revised version of the proposed amendments to article 8 were adopted with ease on Friday, at least at the working group level, subject to the discussion concerning the correct amendment procedure, but division remains as to whether or not to delete article 124 from the Statute, with the coordinators of the Working Group on Other Amendments suggesting that further informal discussions are needed before action is taken. Several questions of treaty law have also attracted interest, with the Japanese delegation reminding delegates that the Review Conference is concerned with the negotiation of amendments to an existing treaty that has its own specific requirements and not the negotiation of policy issues upon a blank canvas. The role of non-states-parties and their potential influence on the future interpretation of these amendments, if adopted, also continues to be of interest. Read the rest of this entry…
As we have previously noted here, the inquiry established by the UK to examine the UK’s involvement in the Iraq War has spent some time taking evidence on the legal justification put forward by the UK for the invasion of Iraq in 2003, as well as on the manner in which legal advice on the issue was formulated and presented. [For EJIL:Talk coverage of events at the Inquiry, see here here here, and here]. The inquiry has now issued an invitation to public international lawyers to make submissions on the legal arguments relied on by the UK. The text of the inquiry’s invitation is as follows:
The legal basis for the military intervention in Iraq has been the subject of much comment. The Inquiry has heard evidence on this point from a number of witnesses, including Lord Goldsmith the former Attorney General and Sir Michael Wood the former Foreign Office Legal Adviser. Transcripts of such evidence can be found at: http://www.iraqinquiry.org.uk/. In addition, a number of government documents relating to the formulation of the legal advice have been declassified and published on the Inquiry’s website.
The Inquiry is being advised on public international law by Dame Rosalyn Higgins QC. In order further to inform the Committee’s considerations, the Inquiry would be pleased to receive from public international lawyers any legal analysis they may wish to offer of the legal arguments relied upon by the UK government as set out in: the Attorney General’s advice of 7 March 2003; his written answer to a question in the House of Lords on 17 March 2003; and the FCO Memorandum “Iraq: Legal Basis for the Use of Force” of the same date.
The inquiry does not wish to focus on grounds relied on by other states. Respondents are, therefore, invited to comment on the issues of law arising from the grounds on which the government relied for the legal basis for military action, as set out in the substantive elements of the evidence given to the Inquiry and published documents. That might include:
- the legal effect of Operative Paragraphs 1, 4, 11 and 12 of UNSCR 1441;
- the significance of the phrase “consider” in Operative Paragraph 12 of SCR 1441;
- whether by virtue of UN Security Council Resolutions 678, 687 and 1441, the elements were in place for a properly authorised use of force;
- the interpretation and effect of the statements made by the Permanent Members of the Security Council following the unanimous vote on UNSCR 1441;
- the correct approach to the interpretation of Security Council Resolutions;
- Lord Goldsmith’s evidence that the precedent was that a reasonable case was a sufficient lawful basis for taking military action.
I’m not quite sure what to make of this invitation. It has been my suspicion since the inquiry was set up that the committeee would consider in its final report the manner in which legal advice was formulated and presented in the lead up to the war but that it would not offer its own conclusions as to the legality of the war. Read the rest of this entry…
First off, some personal news – I am very happy to report that I will be taking up a lectureship at the University of Nottingham School of Law starting this September. It’s a truly excellent school, with some wonderful colleagues, and I do look forward to working there. Now, on to business:
The whole Gaza flotilla affair has occupied so much public attention and legal commentary that there has been little response so far to the publication of Prof. Philip Alston’s report to the Human Rights Council on targeted killings. The report is on any view a valuable contribution to the debate. Over at Opinio Juris, Ken Anderson has published a short ‘not-yet-response’ to the report, and I’d like to add a few thoughts of my own, mostly with regard to the relevance of self-defense.
The independent self-defense justification for targeted killings
As readers are aware, Ken has in the past argued for self-defense as an independent justification for (some) targeted killings. He has done so (and I am in full agreement with him on that point) because the justification offered by the Bush administration at the time, that it is engaged in some amorphous, global armed conflict with Al Qaeda and that it can kill combatants in that conflict, cannot justify the whole of the US targeted killings policy even if stretched to its utmost limit. In other words, even if we accept that there is such a thing as a global non-international armed conflict, the US has killed people, and thinks it needs to kill people, who have no connection whatsoever to that conflict. And there, says Ken, self-defense comes in.
Today, of course, Ken is not alone in so arguing – recently, at the last ASIL meeting, the legal adviser of the State Department, Prof. Harold Koh, has offered the same justification.
In a prior post, I argued that it is doubtful that self-defense can do all that Ken wants it to do. In particular, I argued that if the person being targeted has rights under human rights law, self-defense cannot preclude the wrongfulness of the killing. Rather, the killing would have to be justified within the human rights framework. If, on the other hand, human rights treaties did not apply, then there would be little need for self-defense.
Ken has responded to my critique by saying the following:
Meaning, Marko starts from two points – one is extraterritorial application of the ICCPR. I don’t buy that, the US doesn’t buy it – and I don’t think its position unprincipled or ungrounded. If one disagrees not just as to the view, but also as to whether it is a principled position or not, it seems hard to have traction in the rest of the discussion, with all admiration and respect to Marko. Marko’s second point (really the first) went to self-defense as being about the state whose sovereignty is being violated, not the terrorists. I truly think we – and the US – and Marko are on different, irreconcilable pages here; I can’t imagine the US thinking that the act of self-defense is anything other than aimed at the terrorists, and the violation of sovereignty of the local state is collateral to that. It is a violation of that state’s sovereignty, but territorial integrity is not everything, as Sofaer said in his 1989 speech and Koh essentially reiterated. But I think I must not understand Marko well, because I couldn’t understand how he meant self-defense.
Now I’d like to offer a rejoinder – in part because of a real disagreement between us, and in part to clarify what I think is, or may be, a misunderstanding, either linguistic or semantic, or perhaps legal and conceptual.
(Warning! long post — but hopefully not a boring one!)
We continue with our coverage of the Review Conference for the International Criminal Court, (see here, here and here), taking place at a resort on the shores of Lake Victoria, outside Kampala, Uganda (and well-insulated from the hustle and bustle of everyday life). Readers may be interested in comments on the stocktaking exercise that has occupied the formal agenda of the conference for the past two days. Of course, the real action is taking place informally, as the stocktaking exercise has allowed state delegations to engage in behind-the-scenes bilateral consultations and small group discussions to determine possible areas of agreement for the crime of aggression deliberations (which is clearly the main event at this conference) and to get a sense of each others’ bottom lines and end result objectives. As indicated in the conference Journal, state representatives have also been meeting, one after another, with Jordan’s Prince Zeid, the Chair of the Working Group on the Crime of Aggression, who will likely have inquired as to their current and possible positions in advance of Friday’s scheduled discussions. Read the rest of this entry…
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.
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…