To my shame, I’ve only just noticed that Ken Gallant in his excellent book The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2009) – recently reviewed in the JICJ here – addresses the difficult problem of applying the substantive law of the Rome Statute to situations in which the Court acquires jurisdiction over an individual only ex post facto, i.e. after the commission of the alleged crime, for example under a UNSC referral or on the basis of an Art. 12(3) declaration (pp. 337-343).  If, for instance, Gaddafi were to be put on trial before the ICC, and bearing in mind that Libya was never a party to the Rome Statute, can he be prosecuted for crimes or under theories of liability that are specific to the Rome Statute, such as indirect perpetration, which do not reflect customary law? I’ve written about this problem in my JICJ articles on whether the Rome Statute is binding on individuals and on aggression and legality. Ken argues (pp. 342-343), and I fully agree, that:

The possible retroactive application of non-customary international criminal law, especially after a Security Council referral, is not an imaginary problem. Many of the framers of the ICC Statute sought a progressive development of international criminal law and procedure. Therefore, they did not necessarily limit their drafting of the criminal law of the statute to that which was customary international law. It is not self-evident that all of the crimes listed in the statute are customary international law crimes.

Some respected commentators have suggested that all of the crimes set forth in the ICC Statute automatically apply when the Security Council has referred a situation to the ICC. This would be inconsistent with the legality analysis both of the statute and of international human rights law and with fundamental rules of treaty law.

Schabas, for example, claims that such an application would be permissible because it is “foreseeable” that the court would attempt to apply the statute to such people. The problem with this argument is that the states adopting the ICC Statute have no authority to prescribe new criminal law either for non-ICC states or for persons with no relevant connection to any ICC state. The ICC Statute can apply to a national of a non-ICC state who commits a criminal act in, or with effect in, an ICC state, as an instance of territorial jurisdiction. The states adopting the ICC Statute could not make law to apply to someone who is wholly unconnected with any ICC state party, and whose allegedly criminal acts are unconnected with such a state party, unless the crime were a customary international law crime over which there is universal jurisdiction (which, by hypothesis, the crime here is not). Foreseeability in the sense of legality can include a development in the law of a jurisdiction with legitimate authority over a person. It cannot mean foreseeability that an international organization will later attempt to impose its prescriptive jurisdiction on a person over whom it has no legitimate authority.

Schabas argues that the application of new, non-customary crimes in the ICC Statute to such persons is acceptable by pointing out that aggressive war was effectively a new crime at Nuremberg. The problem with this argument is that international human rights law has changed since that time. The claim by the Nuremberg Tribunal that nullum crimen sine lege was, in international law, merely a principle of justice was true then but is not so now. Now it is a rule of customary international law and perhaps a jus cogens rule at that.

Read Gallant!

International Law Weekend 2011 — the world-famous gathering of the flock of international lawyers for the fall season — begins on Thursday night, October 20, 2011, at the Association of the  Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. on Friday and Saturday, October 21-22, at Fordham Law School, at 140 West 62nd Street, NYC. This year’s theme is “International Law and National Politics.”

A blue ribbon opening panel at 6:30 p.m. on Thursday night at the City Bar will address whether international law has seen “The Death of Sovereignty?” in an era of debt downgrades, seccesionist conflicts, and covert military operations — and will be followed by a free wine and cheese reception.

Panels starting at 9 a.m. on Friday at Fordham will look at International Law and U.S. Grand Strategy, the Extraterritorial Reach of Anti-Bribery Legislation Libel Tourism, the UN Disabilities Convention, Sharia and U.S. Law, Developments in Commercial Arbitration, Access to Justice in the Middle East North Africa Region, Regulation of Private Military and Security Companeis, LGBT Rights in Africa, and the Impact of the European Union’s Lisbon Treaty on National Politics.  State Department Legal Adviser Harold Koh will give a keynote talk at 1:30 p.m. on Friday, after a free buffet lunch in the atrium, on “International Lawyering for the U.S. in an Age of Smart Power.”

Panels starting at 9 a.m. on Saturday include Civilian Casualties in Modern War, Corporate Social Responsibility and Human Rights Law – Emerging Risks for Corporate Counsel, Private Litigation against Alleged Terrorist Sponsors, Intellectual Property Law, the New International Investment Arbitration Lawyer, Current Challenges for the International Criminal Court, Tribunal Procedures and Ethical Dilemmas for the Guantanamo Bay Military Tribunals, and Promoting Independence for Human Rights Lawyers Worldwide.   Former Yugoslav Tribunal Prosecutor Richard Goldstone will give a keynote address at 4:15 p.m. on Saturday on “The Future of International Criminal Justice: The Crucial Role of the United States.”

As always, admission is free for all students, all faculty, lawyers, and staff from co-sponsoring institutions, as well as all members of the American Branch of the International Law Association, the International Law Students Association, and the Association of the Bar of the City of New York.  Staff members of the United Nations and Permanent Missions to the United Nations can also attend for free.  The registration fee remains a modest $75 for the two days combined for all other practicing lawyers and members of the public.

We have a record number of co-sponsors this year, whose generous contributions makes the event possible. New sponsors include the International Bar Association, and law faculties from as far north as Maine and as far south as Virgina.    Further information and registration is available at www.ila-americanbranch.org or www.ilsa.org, or at the door

The official application submitted by Palestine for UN membership is now available here, UN Doc. S/2011/592 (h/t Diane Marie Amann). It is of interest not the least because it has been carefully drafted and with the benefit of substantial legal advice. Note, first, how Mahmoud Abbas is not titled President of the Palestinian National Authority, but as President of the State of Palestine (he was appointed as such some years ago by the PLO). Note also how for good reason the letter does not say when exactly Palestine became a state, nor does it declare Palestine’s independence anew; rather, it refers to the 15 November 1988 DoI.

Two recent challenges to the jurisdiction of the International Criminal Court in the Kenya situation bring out exciting questions of the essence of crimes against humanity. Defence counsel have challenged jurisdiction on the grounds that the violence in Kenya, which involved over one thousand killings and hundreds of rapes, did not constitute a crime against humanity (see: challenge, challenge and prosecution response).  This issue has divided the Pre-Trial Chamber in past proceedings.  As this is a jurisdictional challenge, the outcome can and almost certainly will be appealed to the Appeals Chamber.  The case raises extraordinarily difficult questions about the demarcation line between crimes against humanity and ‘ordinary’ crimes, and thus the role and scope of international criminal law.

Previously, in the decision to authorize the investigation, the Pre-Trial Chamber divided on this issue, with both the majority and the dissent providing compelling arguments. The ICC Statute requires a “State or organization” behind the crime against humanity; Judge Kaul in dissent argued for a more stringent standard of a “State-like” organizations, whereas Judges Trendafilova and Tarfusser adopted a more flexible “capacity” test for an organization.

The more stringent approach advanced by Judge Kaul has attracted support in thoughtful and well-reasoned recent scholarship.  My aim in this comment is simply to add that a convincing theoretical account can also be advanced on behalf of the majority’s broader approach.  I do not seek to point to any flaws in the reasoning of the dissent or the scholars favouring the more stringent approach, as their reasoning is perfectly sound and impeccable.  Indeed, I acknowledge that the “state-like” theory is internally coherent, reconcilable with limited doctrinal authorities and consistent with a sound theory of crimes against humanity.  My aim is modestly to lay alongside that theory another plausible theory, which is also internally coherent, consistent with the authorities and consistent with a sound theory of crimes against humanity. Read the rest of this entry »

Given the promised September UN move by the Palestinian Authority it is of interest to recall some of the circumstances surrounding the birth of Israel. There are some interesting historical parallels and some differences. In public opinion and Hollywood movies, Israel was born with a UN midwife: UNGA Resolution 181, the famous Partition Resolution of 29 November 1947

The Resolution called for, inter alia, the creation of two states, the internationalization of Jerusalem and … wait for it … an economic Union within the whole territory! ‘De Facto Solidarity’ was not, apparently, invented with the Schuman Declaration.

Arab states spoke forcefully against the Resolution and, obviously, voted against it en bloc.  Not only did they not recognize Israel in the sense of declining diplomatic relations – they argued the very illegitimacy of Israel as a state. In furtherance of this position, in the lawfare (only the term is new, not the praxis) that immediately erupted, Arab scholars spent much ink on dismissing any legal significance to that Resolution – essentially arguing the general non-binding nature of General Assembly resolutions. (You don’t see that argument about UNGA Resolution 181 being made too often today by the Arab protagonists in the ongoing lawfare.)

Many Israeli scholars readily conceded the point. Indeed, they argued, it was not within the power of the General Assembly as such legally to sanction the creation of a new state, though, of course, the Resolution was politically very important. Israelcame into being, it was argued, when it declared independence on 15 May 1948 upon termination of the British Mandate over Palestine. The birth of the new state under international law was the result, it was claimed, of the widespread and representative recognition of it by the states of the world community. On this reading, Israel came into being not on the morrow of the November 1947 Partition Resolution, but in May 1948. Read the rest of this entry »

Junior Faculty Forum for International Law

An Annual Junior Faculty Forum for International Law is a new and much needed venture in the international law calendar to be convened by Dino Kritsiotis, Professor of Public International Law at the Universityof Nottingham, Anne Orford, Michael D. Kirby Professor of International Law at the Universityof Melbourne, and myself. The Forum is designed as an annual event to allow international legal scholars, in the first six years of their academic career, an opportunity to discuss a working paper, idea or set of arguments, by being paired with a senior scholar in the field of international law who will be assigned to comment on the paper when it is presented to the Forum. The inaugural Forum will be hosted by the Jean Monnet Center for International and Regional Economic Law & Justice at NYU. It will take place in New York City in May 2012, and, to mark the importance of this initiative, selected presentations from the inaugural Forum will be invited to appear in EJIL.  Full details and application procedures may be found at www.annualjuniorfacultyforumil.org

The Last Page and Roaming Charges

We have had nice reactions (not by everyone) to The Last Pages and Roaming Charges. I would like to remind those of our readers who also dabble in poetry or photography not to hesitate and submit their work for consideration. Kindly email: ejil{at}eui.eu.

Eric Stein RIP

It is with infinite sadness that we mark the passing of Eric Stein, my friend and mentor of many years. As a scholar Eric made signal contributions to the fields of International, comparative and European law. His career spanned the vital moments of  the 20th century: a Jewish escapee  fromCzechoslovakiato theUSAhe served with the American Army inEurope, was involved with both the nascent UN and then, prophetically, with the nascent project of European Integration. As a human being, his life, alongside his wife Virginia, was rich and marked by an uncommon generosity of spirit and endless intellectual curiosity and energy. He died a young 98 years old. In our Last Page we publish a Poem written by Eric Stein.

We begin this issue with four articles which, each in their own way, return to the foundations of international law. The first two contributions challenge the traditional statist paradigm informing our contemporary understanding and conceptualization of international law. While Rafael Domingo, based on a careful analysis of the Roman and Enlightenment roots of international law, advocates for the creation of a new global cosmopolitan paradigm, Monique Chemillier-Gendreau, by revisiting the theoretical contribution of the French Reims Doctrine, calls for the reactivation of a critical approach to international law. The following two contributions focus on specific regimes of international law and shift the compass more to the South. Solomon Ebobrah analyses the positive contribution that complementarity can have towards fruitful inter-institutional relationships and the effectiveness of the African human rights system. Then Juan Marchetti and Petros Mavroidis offer a geology of the GATS negotiations and aim to shed light on its rationale through careful examination of the interaction between developed and developing countries before and during the Uruguay Round. This is a foundational piece.

In our occasional series, The European Tradition in International Law, orchestrated for this issue by Christian Tams, tribute is paid to the singular life and work of the international scholar and political activist: Walther Schücking. Following Christian Tam’s Introduction, Frank Bodendiek, Mónica García Salmones, Ole Spiermann and Jost Delbrück depict a vibrant portrait of Schücking’s multi-faceted life: the scholar, the idealist, the judge, in other words: the intellectuel engagé.

To follow, we invite you to pause for a moment and contemplate Roaming Charges: Moments of Dignity – Polish Youth on Warsaw’s Pilsudski Square.

Our journey in international law continues with two occasional series: Critical Review of International Governance and Critical Review of International Governance and Jurisprudence. The first features an article by Ronagh McQuigg, who seeks to answer the ever-green question: ‘How Effective is the United Nations Committee Against Torture?’ In the second, Stefano Piedimonte Bodini examines the legal implications of anti-piracy operations within the framework of the European Convention on Human Rights.

In this issue’s EJIL: Debate!, Alexander Orakhelashvili replies to Dapo Akande and Sangeeta Shah’s objection – which they formulated within the framework of a symposium on sovereign immunity published in EJIL issue 21:4 (2010) – to his position that a state engaging in violations of jus cogens has no entitlement under international law to claim immunity before foreign courts. The rejoinder offered by Dapo Akande and Sangeeta Shah shows that the conceptualization of state immunity, beyond the question of primacy of jus cogens over state immunity, is in itself an issue open to debate that EJIL is happy to host. This, in our view, is one of those occasions where we are reassured that the debate format can yield results which otherwise would be hard to come by.

In this issue we publish a Review Essay by Reut Yael Paz that touches on a son’s captivating account of the life of his father, both being eminent international lawyers: Elihu Lauterpacht’s The Life of Sir Hersch Lauterpacht. Furthermore, for the first time, we publish a more comprehensive Literature Review Essay by Stephan W. Schill on the literature and sociology of international investment law.

The  issue concludes with the poem The Poplars of East and West by the late Eric Stein

Tamar Feldman is an attorney and director of the Legal Department at Gisha – Legal Center for Freedom of Movement. She would like to convey her deepest gratitude to Sari Bashi and Yoni Eshpar for their insightful comments on an earlier version of this note and to Leora Garton for her excellent and timely edits.

On September 1, 2011, after months of repeated postponements, the Palmer Report was leaked to the media, obliging the UN Secretary-General to present the report officially the following day. The publication of the report was intended to calm the row surrounding its conclusions, but paradoxically served only to exacerbate the diplomatic crisis between Israel and Turkey. The bout of political arm wrestling that followed may one day be studied in faculties of international relations and conflict resolution as a classic example of bad diplomacy.

This wrangling is not only foolish, it is also dangerous. The principal danger is that it could lead to a regional conflagration that would certainly be of no benefit to the residents of Gaza, who are supposedly the subject of the dispute. However the row is also dangerous since it prevents serious discussion of the contents and conclusions of the Palmer Report.

As the committee itself notes at the beginning of the report, its recommendations are not legally binding and it is clear that the committee’s main goal was to resolve the diplomatic crisis between Israel and Turkey, rather than to draw conclusions on weighty legal issues. Nevertheless, of the five committees that have examined the events surrounding the Gaza Flotilla (the Eiland Committee, the Turkel Committee, the Turkish committee, the Committee of the UN Human Rights Council, and the Committee of the UN Secretary-General), the Palmer Committee is the most senior, and also the most balanced in its composition, since its members include representatives of both Israel and Turkey.

The comprehensive report submitted by the committee presents legal determinations, as well as detailed recommendations based on these determinations. A significant portion of the report (26 pages out of a total of 105) is devoted to a description of the legal framework applied by the committee in examining the legality of the naval blockade and the flotilla incident of May 31, 2010. Accordingly, the report’s conclusions and recommendations merit more serious examination. The present essay does not claim to provide a full analysis of the report, but rather to offer some comments and to highlight a number of aspects that have been sidelined by the power struggle waged by Israel and Turkey since the flotilla.

Read the rest of this entry »

Tomorrow (Friday) will probably prove to be a day of high tension in Serbia and Kosovo, with yet another round of nationalistic rigmarole regarding control over customs in northern Kosovo. Consultations are underway in the UN Security Council, NATO forces have been deployed, and the situation can turn very ugly, very fast. I really have nothing useful to add on the matter, so I won’t. I would however like to draw our reader’s attention to today’s rather remarkable performance of the Russian ambassador in Belgrade, Aleksandr Konuzin, at an international conference, the Belgrade Security Forum. I have honestly never seen a diplomat, certainly not a diplomat of a great power, not only repeatedly insult his hosts but also openly stoke Serbian nationalism at such a precipitous moment. The videos below are certainly instructive. Regrettably, I doubt a PNG will be forthcoming.

Chris Stephen is an associate at Volterra Fietta practising public international law. He previously worked as judicial assistant to Lord Hope of Craighead and Lord Mance in the House of Lords (now the UK Supreme Court).

It is trite to state that the jurisdiction of the International Criminal Court (“ICC” or the “Court”) is complementary to the criminal jurisdiction of national courts. Due to both reasons of respect for State sovereignty and the practical constraint of limited resources, it is first and foremost the duty of national courts to effectively investigate, prosecute and punish the perpetrators of the most serious crimes of international concern. Thus it is only when a State fails in that duty, either through an inability or unwillingness to fulfil it, that the ICC may seek to step into the shoes of that State and assert jurisdiction. This is the principle of complementarity.

However, what of the precise content of that principle? When are the investigations or prosecutions conducted by a State deemed sufficient to demonstrate willingness and render a case before the ICC inadmissable? Is this a high threshold to satisfy?

A recent decision of the ICC assists in answering those questions and adds some welcome flesh to the bones of this oft-cited principle. On 30 August 2011, in The Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (ICC-01/09-02/11 OA) a majority of the Appeals Chamber (Judge Anita Ušacka dissenting) adopted a judgment dismissing an appeal brought by the Republic of Kenya challenging the admissibility of the case in light of national investigations.  Read the rest of this entry »