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The Interests of Justice- where does that come from? Part I

Published on August 13, 2019        Author: 

There has been much debate about the decision issued by Pre-Trial Chamber II rejecting the request by the Office of the Prosecutor to open an investigation into the situation in Afghanistan because such an investigation would not serve “the interests of justice”.

Despite the recent surge in academic interest in this criterion, which appears in article 53 of the Rome Statute (the “Statute”) of the International Criminal Court (the “ICC” or “Court”), not much has been written about its origins (for an exception, see here). Yet, the drafting history of the “interests of justice” criterion is highly instructive for its application. Accordingly, this post is divided in two parts: the first part will trace the drafting history of the “interests of justice” criterion; the second part will provide an interpretation of this criterion as informed by its drafting history.

It is worth recalling that the negotiations on the Rome Statute started on the basis of a project which was developed and finally adopted in 1994 by the International Law Commission (“ILC”). This project was discussed first in the context of an ad hoc Committee established by the United Nations General Assembly, which convened in April and August 1995. Then, a Preparatory Committee was established by the same Assembly, which convened twice in 1996, three times in 1997 and once in 1998. It is the final report of that Committee in April 1998 which was the basis for the negotiations during the Rome Conference, which took place from 15 June until 17 July 1998. Those formal sessions were completed by intersessional meetings during which useful progress was made.

The Draft Statute of the International Law Commission

There was no mention of the criterion of “interests of justice” in the Draft Statute for an International Criminal Court adopted by the ILC (“ILC Draft Statute”) in July 1994. Article 26 (‘Investigation of alleged crimes’) of the Draft Statute did not require the Prosecutor to consider specific criteria in deciding whether to initiate an investigation. This provision simply stated that the “Prosecutor shall initiate an investigation unless the Prosecutor concludes that there is no possible basis for a prosecution under this Statute and decides not to initiate an investigation”, in which case the Prosecutor had to inform the Presidency accordingly Read the rest of this entry…

 
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A Disappointing End of the Road for the Mothers of Srebrenica Litigation in the Netherlands

Published on July 23, 2019        Author: 

On Friday, the Dutch Supreme Court issued its final decision in the Mothers of Srebrenica litigation regarding the acts and omissions of the Dutch battalion (Dutchbat) of U.N. peacekeepers at Srebrenica in July 1995 (English translation). I’ve written previously on these pages about a pair of earlier, narrower cases (Nuhanović and Mustafić-Mujić) related to the Netherlands’ responsibility for Dutchbat’s failures during the genocide  (see here, here,  and here). Friday’s ruling marks the end of an extraordinarily lengthy process regarding the more comprehensive litigation effort led by the Mothers of Srebrenica organization. The litigation went up to the European Court of Human Rights on the issue of U.N. immunity (which was upheld), before turning to the responsibility of the Netherlands.

In this post, I discuss four issues arising in the Supreme Court’s decision

  • the Court’s apportionment of responsibility to the Netherlands for Bosnian Serb forces’ killings of the 350 Bosnian Muslim men who had been in Dutchbat’s compound;
  • the theory of attribution adopted by the Court, and how it compares to the approach adopted in earlier Srebrenica cases;
  • the Court’s approach to Dutch responsibility for those outside the compound;
  • and the justiciability of the duty to prevent genocide.

The Percentage of Dutch Responsibility

The headlines have focused on the Netherlands’ share of liability. The Court of Appeal held the state liable for 30% of the damages associated with the killings of the 350 men whom Dutchbat had evicted from its Potočari compound and into the hands of the Bosnian Serb forces (VRS) (paras. 68-69.1). The Supreme Court reduced this share to 10% (para 4.7.9). Both courts appear to have applied a form of proportionate responsibility to Dutchbat with respect to the VRS killings, while applying joint and several responsibility to the Netherlands with respect to the actions of Dutchbat. In other words, the Netherlands is to be held fully responsible for the 10% apportioned to Dutchbat, even though Dutchbat’s conduct is potentially also attributable to the U.N. Read the rest of this entry…

 
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