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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The Durban Climate Conference: Prospects for a Legally Binding Agreement Post 2012

Published on December 8, 2011        Author: 

Lavanya Rajamani is a Professor at the Centre for Policy Research, New Delhi, India. She was previously University Lecturer in Environmental Law, University of Cambridge and Fellow & Director of Studies in Law at Queen’s College, Cambridge. She is co-editor of  ‘Promoting Compliance in an Evolving Climate Regime’ (CUP, 2011), and ‘Climate Change Liability: Transnational Law and Practice’ (CUP, 2011). She has worked as a consultant to the UN Framework Convention on Climate Change (UNFCCC) Secretariat, the Danish Ministry of Climate Change and Energy, the UNDP, the World Bank, the Alliance of Small Island States, and the International Institute of Sustainable Development. She has worked on and followed the climate negotiations since 1997, in different capacities, including as a negotiator for the Alliance of Small Island States during the negotiations for the Marrakech Accords, and as a legal advisor to the Chair of the Ad Hoc Working Group on Long term Cooperative Action under the FCCC – the inter-governmental group tasked with arriving at an agreed outcome on climate change post-2012 – in the lead up to the Copenhagen Climate Conference, 2009.

Ever since the Bali Action Plan, 2007, launched the current phase of negotiations under the Framework Convention on Climate Change (FCCC), parties have been dithering over the legal form that the “agreed outcome” to these negotiations should take. The options range from protocols and amendments that are legally binding and can deliver the benefits of consistent application, certainty, predictability and accountability, to soft law options such as decisions taken by the Conference of Parties (COP), which, while operationally significant, are not, save in the exception, legally binding. This divisive issue has taken centre-stage at the ongoing Durban Climate Change Conference.

Many countries, including the host country, South Africa (part of the BASIC group of Brazil, South Africa, India and China) have coalesced in favour of a legally binding instrument to crystallise mitigation and other commitments that will chart the world through to a 2°C or even 1.5°C world. The Alliance of Small Island States and other vulnerable countries on the frontlines of climate impact believe that anything short of a legally binding instrument would be an affront to their grave existential crisis. The EU has indicated that they will offer the Kyoto Protocol a lifeline to ensure its survival for a transitional commitment period, conditional on the adoption at Durban of a deadline-driven roadmap towards a “global and comprehensive legally binding agreement” under the FCCC. This agreement, applicable to all, is intended to take effect post-2020.

Brazil, China and India argue that extending Kyoto is a legal obligation, not a bargaining tool to wrench further concessions from developing countries. These countries are, if at all, only willing to consider a mandate for a new legally binding instrument after the completion of the review of the long-term global goal of 2°C slated for 2015. The United States, nervous about the gathering momentum in favour of a Durban mandate, has indicated that any new legally binding instrument, if and when it becomes necessary, must incorporate symmetrical mitigation commitments, at least in form, for all significant emitters. In this they are joined by the Australia, Japan, New Zealand, and others. Needless to say, the BASIC countries will find such symmetry unpalatable.

Whatever the merits of these positions, it is worth stepping back from the ever-dire politics of the blame game, and exploring what legally binding instruments do that COP decisions cannot; why, if at all, we need such an instrument; and why developing countries, may have little to fear and much to gain from a legally binding instrument. Read the rest of this entry…

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Legality of Veto to NATO Accession: Comment on the ICJ’s Decision in the Dispute between fYR Macedonia and Greece

Published on December 7, 2011        Author: 

Antonios Tzanakopoulos is Lecturer in International Law at UCL Laws and the University of Glasgow.

On Monday, the International Court of Justice delivered its judgment in the curious case between ‘the former Yugoslav Republic of Macedonia’ (hereinafter: ‘fYR Macedonia’) and the ‘Hellenic Republic’ (hereinafter: ‘Greece’). In this case, fYR Macedonia (appearing before the ICJ for the first time) complained that Greece, in objecting to fYR Macedonia being invited to join NATO in 2008, had violated its obligation under the Interim Accord of 13 September 1995 ‘not to object’ to fYR Macedonia joining any international organizations, as long as it applied under its ‘provisional designation’ provided for in Security Council Resolution 817 (1993). The judgment brings up many interesting questions. Apart from matters of jurisdiction and admissibility, perhaps the most interesting issues in the Court’s judgment are (i) its approach to treaty conflicts; (ii) the relationship between the grounds for termination of treaties under the law of treaties and defences available under the law of state responsibility; and (iii) its elucidation of the obligation to negotiate in good faith. Some of these points are taken up after a brief introduction to the dispute.

I. Background to the Dispute

The background to the case before the ICJ is a much older, long-running dispute between the two States as to fYR Macedonia’s name. It is a dispute in which national(istic) sentiment runs high on both sides, and this has caused it to be blown out of all proportion and to have lingered for way too long. ‘Macedonia’ is the name of a historical and geographical region that extends mainly between Greece, Bulgaria, and fYR Macedonia (the precise percentages, if there can be such a thing, depend on who you ask—historical Macedonia was never precisely delimited, as one would no doubt expect). It is also the name of an administrative region in northern Greece, and it was the name of a constituent republic of the Socialist Federal Republic of Yugoslavia, which, upon the SFRY’s dissolution, hoped to continue using the name it had as a constituent entity.

Greece took exception to the use of the name of one of its administrative regions and the irredentist claims made in the fYR Macedonian constitution and by the fYR Macedonian authorities in an attempt to galvanize national solidarity in the midst of a civil war. It responded with several forceful (if non-forcible) measures on the international level, blocking the small country’s accession to international organizations and imposing economic sanctions (for more details see here). Attempts were made to normalize the relationship between the two States in the autumn of 1995, with the adoption of an Interim Accord. The 1995 Interim Accord, besides its unique language (it refers to Greece and fYR Macedonia as the ‘party of the first part’ and the ‘party of second part’ respectively, following which the Court refers to the two States as the ‘respondent’ and ‘applicant’ throughout the judgment), established a number of obligations for the two States: fYR Macedonia had to cease using a symbol that Greece considered part of its cultural patrimony, for example, and undertook that nothing in its constitution could be interpreted as an irredentist claim (Arts 7(2) and 6); both parties had to cease any propaganda, etc, and to negotiate in good faith as to fYR Macedonia’s definitive name (Arts 7(1) and 5(1)); and Greece, for its part, agreed not to object to fYR Macedonia’s applications to join international organizations, as long as the latter applied under the provisional designation stated in para 2 of Security Council Resolution 817 (1993), namely as ‘the former Yugoslav Republic of Macedonia’ (Art 11(1)). The ‘artist formerly known as Prince’, who also changed his name in 1993, did not bother commenting on this development—as an aside it is worth noting that Prince did resolve the issues with himself about his name in 2000.

It is this last provision that led to fYR Macedonia’s application to the ICJ. fYR Macedonia had been hoping to be invited to accede to NATO during the 2008 Bucharest Summit—under its provisional designation (fYR Macedonia) as envisaged in the Interim Accord, just as it had joined a number of other international organizations previously. Such invitation was not extended, however, and fYR Macedonia accused Greece of objecting to its accession to NATO. It filed an application with the ICJ, alleging that Greece had violated its obligation not to object under Art 11(1) of the Interim Accord, given that fYR Macedonia had sought to accede to NATO under its provisional designation. Read the rest of this entry…

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Notice from the Hague Academy of International Law

Published on December 7, 2011        Author: 

Programme : Centre for Studies and Research in International Law and International Relations

The Centre is designed to bring together young international lawyers of a high standard from all over the world, to undertake original research on a common general theme which is determined each year by the Academy. The research work undertaken at the Centre may be included in a collective work published by the Academy.

There are between 20 and 24 participants, half in the English-speaking section and half in the French-speaking section.

Organisation : The Hague Academy of International Law

Topic: Criminal Acts at Sea

Period: 20 August – 7 September, 2012

Venue : Peace Palace, The Hague Netherlands

Directors of Studies:

French-speaking section: Dr. Kimberley N. TRAPP, Lecturer at Newnham College, University of Cambridge

English-speaking section: Dr. Douglas GUILFOYLE, Lecturer at University College London

Fee : free of charge, each participant receives a daily allowance of 35 euros according to the length of the stay and the reimbursement of half of the travel expenses, up to a maximum of 910 euros.

Application : online registration form, deadline to register : April 1st 2012

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Reply to Shany, Lowe and Papanicolopulu

Published on December 5, 2011        Author: 

My thanks go out to Yuval Shany, Vaughan Lowe and Irini Papanicolopulu for their comments on my book. It is truly a pleasure and a privilege to engage them in this discussion. Let me begin by responding to some of the points made by Vaughan. I fully agree that the rights set out in human rights treaties could perhaps be reconceptualised as pledges within the framework given by Lea Brilmayer in her BYBIL article; they are not simply reciprocal bargains between states. And I certainly agree that the treaties could – like domestic constitutions – be seen as limiting the powers of governments on the basis of fundamental principles. But that reconceptualization does not necessarily entail that these principles are territorially unbound. After all, issues that mirror the extraterritorial application of human rights treaties have also arisen with respect to the extraterritorial application of domestic bills of rights. In the final analysis, the scope of all these instruments depends on underlying ideological or value judgments – e.g. should citizenship matter in determining whether a state could take an individual’s life or deprive him of liberty on a preventive basis, a debate of great relevance in the United States today.

Turning now to Yuval’s comments, he and I are in basic agreement as to the causes of the confusion and conflicts in the case law, founded as they are in the underlying tension between universality and effectiveness. But even if he agrees with the diagnosis, Yuval takes issue with my prescription – the model with distinguishes between positive and negative obligations, and applies a territorial control requirement to the former but not to the latter, which it treats as territorially unlimited. Yuval argues – quite persuasively – that my model would also lead to some arbitrary results, as in the Ecuador v. Colombia example, where Colombia would under my model not have the duty to ensure the human rights of the people of Ecuador endangered by transboundary harm emanating from the activities of private persons operating from Colombian territory. He opts instead for a ‘a single concept of jurisdiction, applicable both to negative and positive obligations, which centers on the strength of the governmental power that is being applied or can be applied vis-à-vis the individuals in question’, a flexible, functional criterion which would in essence mean that the state would have a particular obligation as soon as it gained the ability to comply with it or violate it. (Note, of course, how in the Colombia example Colombia may have some power over the private perpetrators of human rights violations, but has not exerted any power over their victims – and it’s the victims who have to be subject to its jurisdiction).

Read the rest of this entry…

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A Response to Milanovic on Extraterritorial Application of Human Treaties: The Significance of International Law Concepts of Jurisdiction

Published on December 4, 2011        Author: 

Irini Papanicolopulu is Marie Curie Fellow, Faculty of Law, University of Oxford and a Senior Researcher in international law at the University of Milano-Bicocca (on leave).

In his book, Marko Milanovic addresses the fascinating topic of the extraterritorial application of human rights treaties. The strengths of this book are numerous. In a style that is clear, well-structured and captivating, the author engages in an in-depth analysis of the relevant provisions of the main human rights treaties as well as an analysis of the case-law produced by international courts and quasi-judiciary bodies in applying these provisions. The examination does not shy away from sensitive, complex, or dangerous topics, such as the policy considerations which often underlie treaty making and treaty interpretation or the unwelcome consequences of excessively broadening the scope of application of human rights treaties.  Marko Milanovic is not only aware of these and other problematic aspects, but honestly acknowledges them and bravely engages in their discussion. He is not afraid of acknowledging the inconsistencies, drawbacks or limitations of the different approaches – even his own! But this is not all; he also goes further and proposes an alternative model for the determination of the scope of human rights treaties, intended to ensure that considerations of effectiveness do not curtail excessively the aspiration to universality.

One of the greatest merits of this book is that it finally provides order where there was confusion, especially at the time when it was written but also, to some extent, after the European Court of Human Rights decisions in the Al-Skeini and Al-Jedda cases. The extensive and attentive discussion and evaluation of the territorial and personal concepts and their constituent elements is one such example. The taxonomy of the different meanings that the word ‘jurisdiction’ may assume in the human rights context is another. With respect to the latter point, the author rightly distinguishes between the meanings of jurisdiction under general international law and the notion of the same term in the context of determining the applicability of human rights treaties. Attribution of the power to legislate, enforce, or judge, indeed, is different from the actual exercise of the legislative, enforcement or judicial function by a state. Similarly relevant is the distinction between positive and negative obligations pending on States. The consequence is that negative obligations bind states whenever their agents act, irrespectively of the place and person addressed, while positive obligations require that there should be jurisdiction by the state. While the means used for reaching this result may benefit from further elaboration, in particular with respect to the textual analysis, the   conclusion itself appears unassailable.

The one point with which I have some difficulties is however the inference that the author draws from the distinction between different notions of jurisdiction, in combination with his distinction between positive and negative obligations of states. As the author poses it, there is jurisdiction when a state exercises power and:

‘This power is a question of fact, of actual authority and control. Despite its name, it is not a legal competence, and it has absolutely nothing to do with that other notion of jurisdiction in international law which delimits the municipal legal systems of states’. (p. 53).

The conclusion is that one should completely disregard the ‘legal’ notion of jurisdiction, in favour of a purely factual one and that the application of human rights treaties ‘should never depend on naked title over a territory, but on actual power exercised over it’ (p. 61).

This thesis however brings with it some problems that do not seem to be sufficiently addressed. Read the rest of this entry…

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Vaughan Lowe on Marko Milanovic’s Book

Published on December 2, 2011        Author: 

Vaughan Lowe is Chichele Professor of International Law at the University of Oxford and Fellow of All Souls College, Oxford

In his perceptive and incisive analysis, Dr Milanovic argues that the concept of jurisdiction in the European Convention on Human Rights is not the same as the concept of jurisdiction in general international law. Specifically, he argues that the State obligation to respect human rights is not limited territorially but that the obligation to secure or ensure human rights is limited to those areas that are under a State’s effective overall control. The analysis is convincing, and the approach gives a robust and powerful tool for determining the scope of human rights obligations.  Applauding that achievement, I wonder if there is not also room for an equally fundamental challenge, arguing that the concept of ‘rights’ in human rights conventions is not the same as the concept of ‘rights’ in general international law.

In an article in the 2006 British Yearbook of International Law, Lea Brilmayer argued that human rights treaties should be seen as pledges rather than contracts, so that analyses based upon reciprocal rights and obligations, of the kind that characterise the traditional discussions of treaties, should not be thought to be necessarily appropriate to discussions of human rights treaties. A comparable shift in perspective would see the commitments in human rights treaties not as reciprocal agreements between States Parties or even as agreements to confer rights upon individuals, but rather as limitations upon the legal power (or at least upon the authority) of governments. There would, in short, be some things that States bind themselves not to do, anywhere.

 Those limitations would limit the power of governments and constrain its exercise, no matter what the particular geographical destination of the government action might be. States Parties to human rights treaties would not be seen as agreeing between themselves that they will not arbitrarily deprive human beings of liberty; rather, governments would commit themselves to the principle that no State has the legal power or authority arbitrarily to deprive a human being of liberty, and would agree that in all circumstances in which a determination of the legality of their action is in question their conduct should be appraised by reference to that and other principles set out in human rights treaties.

On this basis, it would not matter where the act had occurred: the question would be simply whether conduct attributable to the State was or was not consistent with the principles which the State had committed itself to observe. That, surely, is more in harmony with the notion of human rights as intransgressible norms than is the view that one has to be standing in a particular place in order to benefit from human rights.

This is the result that Dr Milanovic achieves by his distinction between the obligation to respect human rights and the obligation to secure or ensure them. But the route to that result is slightly different. Concentration on ‘human rights as pledges’ would enable arguments to be built upon a wider range of materials than treaties that have entered into force with the State concerned; and on some accounts of the principle of good faith (such as that in Bin Cheng’s enduring classic, General Principles of International Law) would also entail legal constraints upon the abandonment of the pledge. It would also attach the obligation firmly to the substantive rule governing State behaviour, and avoid any temptation to confine the obligation to a particular system for the handling of complaints that the State has violated its duties.

The questions would not, of course, end there. It would be necessary to go on to ask what consequences flow from conduct that is not consistent with the applicable principles of human rights law. But that approach may itself carry benefits. Action by a victim of a human rights violation would follow the forms of action in national law – actions for assault or trespass to the person or whatever. The point would be that the State lacks the legal power to authorize the injurious conduct.

Marko Milanovic has described a powerful and innovative approach to the conceptualisation of human rights norms, and it is a project which deserves not only the closest attention but also the most vigorous pursuit.

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Fatou Bensouda to be Next ICC Prosecutor

Published on December 2, 2011        Author: 

It has now been announced by the International Criminal Court that Fatou Bensouda, the current ICC Deputy Prosecutor will be the sole candidate for election to be Prosecutor of the ICC. The decision to nominate her as the sole candidate This means that Fatou Bensouda will be the next ICC Prosecutor.  The elections will take place in December and she will take over from Luis Moreno-Ocampo in June next year. As I stated in a previous post of a couple of days ago the list of candidates has been whittled down from the four recommended by a search committee and there was a strong feeling that the next prosecutor should be African. For the reasons that I gave in that earlier post Fatou Bensouda seems to be an excellent choice and has been the front runner in this race for quite some time. She is from Gambia (though she studied law in Nigeria – in fact at the same University I went to)  and was the candidate endorsed by the African Union. However, she has also been vigorous in defending the  prosecution by the ICC of Africans. I had the pleasure of speaking with her at a workshop on the ICC held in Botswana (and also here) in July of this year . In her speech, “Does the ICC Target Africa: Is the ICC Selectively Prosecuting Cases?”   she said:

“Let me turn squarely to the question you would like answer today. All the persons accused by the ICC are African. That is true. Why? Because the Rome Statute says that we should select the gravest situations under the Court’s jurisdiction. There are also more than 5 million African victimes displaced, more than 40,000 African victims killed, hundreds of thousands of African children transformed into killers and rapists, thousands of African victims raped. In Northern Uganda, the LRA displaced more than a million people, and abducted boys and girls and forced them to kill. We cannot turn a blind eye to justice for 2.5 million people in Darfur, for 2 mllion victims in the DRC. The Ituri region in DRC is still plagued by militia killings, looting and raping. These African victims are calling for more ICC intervention, not less.”

She then went on to note that in six of the situations currently before the Court, African leaders had requested ICC intervention.

She is taking on a job with immense responsibilities but appears very well suited to the task. We wish her all the very best!

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