ICC Review Conference Opens in Kampala; Features Intriguing Hybrid Character

Published on May 31, 2010        Author: 

The International Criminal Court Review Conference opened today, May 31, 2010 in Kampala, Uganda.   The Conference has drawn thousands of participants, including heads of state, ministers, diplomats and other State officials, NGOs, parliamentarians, academics, media and officials from international courts and from the United Nations (including the current Secretary General and his predecessor).  The conference is hosted by Uganda, the first State Party to refer a situation to the Court and a site of the Court’s earliest investigations.

 The Review Conference marks the first opportunity to consider amendments to the Rome Statute, which was adopted at a Diplomatic Conference in 1998.  The centre of attention on the agenda is the crime of aggression, which has brought to the fore contrasting visions of the role of the ICC and its relationship with other international institutions.  Other proposed amendments include war crimes and the ‘transitional provision’ (discussed below).  The scope of the Review Conference has expanded beyond discussion of amendments; participants have seized the opportunity for a deeper discussion on the future shape of international criminal justice.  Thus, a “stock-taking” exercise is taking place to discuss complementarity, cooperation, peace and justice, and the impact on victims and affected communities.


 The crime of aggression presents by far the most controversial, the most complex and most profound questions.  Read the rest of this entry…

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ICC Review Conference Opens; Professors Joanna Harrington and Darryl Robinson to Report from the Conference for EJIL:Talk!

Published on May 31, 2010        Author: 

The Conference to review the Statute of the International Criminal Court opens today in Kampala, Uganda. Article 123 of the Statute mandates that a review be convened seven years after the entry into force of the Statute and that this review shall consider any amendments to the Statute include any amendments to the list of crimes subject to the jurisdiction of the Court. Much of the discussion in the review conference will focus on proposed amendments to the Statute which seek to define the crime of aggression and seek to set out the conditions under which the Court can exercise jurisdiction over the crime of aggression. On the latter point, much of the discussion will focus on the relationship between the ICC and the Security Council. For previous discussion on EJIL:Talk! on  the proposals relating to aggression, see here, here and here. The review conference will also discuss other proposed amendments to the Statute, namely: a proposal to delete Article 124 of the Statute (on which see Bill Schabas) which is a transitional provision allowing a State to opt out for seven years from the provision dealing with war crimes; and another proposal to harmonise the provisions of Art. 8 dealing with prohibited weapons in international and non-international armed conflicts. There will also be an exercise in “stocktaking” of the progress of international criminal justice. The website of the review conference (available here) contains the relevant documents.

EJIL:Talk! is delighted to announce that Professors Joanna Harrington and Darryl Robinson will be providing reports and analysis from the Review Conference for readers of this blog. Both Professors Harrington and Robinson are attending the conference in Kampala and both of them have significant academic and practical experience of working on issues relating to the ICC. Professor Harrington is a previous contributor to the blog  (see here) and is Professor of Law at the University of Alberta, Canada where she has recently been appointed as Associate Dean for the Faculty of Graduate Studies and Research. From 2006 to 2008, she served as the Scholar-in-Residence with the Legal Affairs Bureau of the Canadian Department of Foreign Affairs and International Trade. In that role, she, among other things, provided advice on matters of international criminal law and practice and served as a member of Canada’s delegation to the United Nations General Assembly and the Assembly of States Parties to the Rome Statute of the International Criminal Court.

Professor Darryl Robinson is Assistant Professor of Law at Queen’s University in Canada. Prior to this he served as a Legal Officer at the Canadian Department of Foreign Affairs from 1997-2004, where he provided legal advice and engaged in international negotiations concerning international human rights, humanitarian and criminal law. His work in the creation of the International Criminal Court and in the development of Canada’s new war crimes legislation earned him a Minister’s Citation and a Minister’s Award for Foreign Policy Excellence. From 2004 to 2006, he served as an adviser to the Chief Prosecutor to the International Criminal Court where he helped shape the first policies and strategies of the ICC.

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The ICC and the Crime of Aggression: The Consent Problem and the Security Council Issue

Published on May 28, 2010        Author: 

The first conference to the review the Statute of the International Criminal Court opens next week in Kampala Uganda. The major proposal to be considered at the conference will be proposals to amend the Statute so as to define the crime of aggression and to set out the conditions under which the Court can exercise jurisdiction over the crime of aggression. There appears to be substantial (even overwhelming) agreement amongst ICC parties that the ICC should be allowed to prosecute the crime of aggression. There is also agreement on the definition of aggression. However, substantial disagreement  remains about the conditions which should exist before the ICC may exercise jurisdiction over aggression. In particular, the key question appears to be whether the ICC should be able to make independent determinations about whether aggression has been committed by a State or whether the ICC should only be able to prosecute where the Security Council has made a prior determination that a State has committed aggression. It has also been suggested that the ICC should be competent to proceed where either the General Assembly or the International Court of Justice has made a prior determination that aggression has been committed.

The issues raised by the proposals to amend the Statute with regard to aggression were discussed in the last EJIL issue of 2009 (Vol. 20, Issue 4). That issue contains four thoughtful papers by Andreas Paulus, Claus Kress, Roger Clark and Sean Murphy (two of whom have been intimately involved in the negotiations in the Special Working Group on the Crime of Aggression). I highly recommend this set of papers. That discussion in EJIL was preceded by discussion on this blog by Andreas Paulus and by me.

I would like to draw readers attention to a paper (see here) I have just completed which focuses on a fundamental problem with the aggression proposal which appears not to have been considered at all by the negotiators and which I hope will be addressed in Kampala next week. This is the issue of whether the aggression amendment, if accepted, should permit the ICC to prosecute leaders of States which are not party to the Rome Statute or have not accepted the aggression amendment. The problem arises because the Statute of the ICC (Art. 12) permits the Court to exercise jurisdiction over individuals where they are nationals of State parties or have committed a crime within the territory of a State party. It has thus far been assumed that this normal jurisdictional rule of the ICC will also apply to aggression, if the aggression amendment is approved. This would mean that the leaders of  non-party States (or of States Parties that don’t accept the aggression amendment) would be subject to the jurisdiction of the ICC, where the alleged victim has accepted the aggression amendment. In 2003, Iargued (in this paper) that it was legitimate for the ICC to exercise jurisdiction over nationals of non-parties. However, I noted then that aggression was different. In my recent paper (posted as a Working Paper on the site of the Oxford Institute for Ethics, Law and Armed Conflict), I set out why aggression is different. I also argue that limiting to the jurisdiction of the ICC to situations referred by the Security Council (in addition to jurisdiction over aggression committed by consenting States) is not a limitation of a competence which the Court would otherwise have but rather an expansion of the Court’s jurisdiction to areas whether it would otherwise lack competence.  The abstract of this recent paper is below: Read the rest of this entry…

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The Place of International Criminal Justice within the International Legal Order: A Rejoinder

Published on May 27, 2010        Author: 

Amrita Kapur’s posted reply to Ken Anderson’s “The Rise of International Criminal Law” and myself makes a series of nuanced points, many of which I appreciate.  I am unsure how deep our disagreements actually run, but because some of her language indicates an affinity for views of which I am critical, I will take the opportunity to expose some areas of sharp disagreement – if not actually between myself and Kapur, then surely between myself and others who highly tout the project of international criminal justice.

Kapur’s post acknowledges that “trials are inherently flawed as a process to achieve the noble purposes ascribed to the ICJ project.”  She nonetheless insists that justice “must surely include, if not focus on, justice for the wronged parties, the victims, and the society that must build peace and reconciliation.”  This statement is open to varying interpretations, but to sharpen the discussion, I will provisionally interpret it to make two typical assertions with which I take issue:  first, that an authoritative condemnation of perpetrators is an essential element of post-conflict efforts to reaffirm the dignity of victims; and second, that peace and reconciliation are necessarily predicated on – and therefore, perhaps, should be held hostage to – the authoritative triumph of a particular moral judgment about the acts of conflict participants.

If one has in one’s mind’s eye morally unambiguous conflicts, where one side used atrocious means in the service of a manifestly evil end, both of these assertions seem plausible.  Insofar as the ICL project limits its ambitions to such circumstances – and there are enough of these to keep us busy – it has my full support.  But many armed conflicts involve, on one or both sides, informed persons of good faith and sound reason who endorse the use of ruthless methods for what they regard as an indispensable greater good.  Ruthless acts have often been committed, not because of a “culture of impunity,” but because actors (and their constituencies) believed, non-pathologically, that presumptively wrongful acts were justified in the effort to avert what they regarded as a morally worse overall outcome.  (I regard the Israeli-Palestinian conflict as quintessential in this regard, but even the question of which conflicts fall into this category turns on one’s political attitudes.)

 Among the conclusions that follow from this observation is that the potential target list for the ICL project is too rich.  The problem is not simply the danger that the typically-hoped-for expansion of domestic-court invocation of universal jurisdiction will produce frivolous prosecutions or legally unjustified convictions.  Fully sound cases could, in principle, be brought against a very wide range of actors, and yet in practice, prosecutions will almost always be reserved for the politically unpopular and strategically uninfluential.  Read the rest of this entry…

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Fragmenting Communities of Interpretation and Authority

Published on May 25, 2010        Author: 

Editor’s Note: This is the third of a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . The earlier posts in the series can be found here and here.

Buried toward the end of The Rise of International Criminal Law is a discussion of communities of authority and interpretation in international law and ICL.  Neither Kapur nor Roth raises it, for the very good reason that it is buried toward the end in a couple of paragraphs.  As time has gone on since publication of the article, however, I have gradually become convinced that a central, unavoidable question in all this is one I have posed before in the context of IHL – “Who owns international law?”  Who has interpretive authority over it?

It’s contested, and always has been.  That is a historical constant, and so in writing the original article I mentioned it but did not follow it up.  But as I consider ICL and its social claims more deeply, I’m convinced that the growth of the tribunal structure internationally and the deeper involvement of national tribunals through various forms of universal jurisdiction – from Garzon to the ATS, as it were – has in fact introduced a new dynamic in the otherwise perennial argument over interpretive authority in international law.  It is a dynamic of fragmentation.

The reason, I think, is the nature of tribunals and judgments as they become widespread enough to become a real source of authority and interpretation.  The nature of courts, and judgments, is that they gain in legitimacy and authority, on their own terms, by asserting themselves and their authority.  But they do that in part by doing self-referentially – a sort of bootstrapping of legitimacy.  Read the rest of this entry…

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The Rise of International Criminal Law: Roth’s Radicalism

Published on May 24, 2010        Author: 

Editor’s Note: This is the second in a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . The first posts in the series can be found here.

From where I sit, The Rise of International Criminal Law is firmly within the traditional line of American centrist views of international law.  Your results may differ, of course.  But if this article is not liberal internationalism, of the kind that still so animates the academy; neither is it skepticism as to the very category.  It is pragmatic, cautious, state-centric, and sees the category as both important but deeply fragile.  Fragile, that is, precisely because it proposes to be “law” – yet without being embedded in a social structure which would offer a society, and from there an embedded politics, and from there an embedded judiciary.  It is the universal – but the universal alone, and so weak, fragile, naked, and exposed to the world – simultaneously, however, pontificating on its own universal glory and goodness and future-world-ordering authority.  Universal international law gains independent authority and normative force, paradoxically, only when it is firmly embedded within other structures of politics, society, and authority – that which is found today only in sovereign states.

 It – international law – stands in deep need of shelter by powerful states through their politics.  But protection from what, exactly?  From threatening political winds from outside it?  Yes, certainly.  But not just that – it also needs protection from itself.  Left to its own devices, the “society” of international law, such as it is, believes its own press releases, communiqués, court opinions, and views of publicists, and so threatens to drive itself off a cliff.  International law unchecked tends toward uncontrollable positive feedback cycles, driven these days by its “values” mechanisms, whipped forward by the human rights community, itself driven forward by an uncontrollable positive feedback mechanism of self-reinforcing religious belief, on the one hand, and utter instrumentalizing of international law to those religious ends, on the other. Read the rest of this entry…

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The Rise of International Criminal Law: A Response to Brad Roth and Amrita Kapur

Published on May 21, 2010        Author: 

Editor’s Note: This is the first in a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . Professor Kenneth Anderson is Professor of Law at the Washington College of Law, American University and Research Fellow at the Hoover Institution on War, Revolution and Peace at Stanford University

I am grateful, first, to Brad Roth and Amrita Kapur for their eloquent and carefully considered responses to my EJIL essay, The Rise of International Criminal Law.  It is rare to receive such close reading, on the one hand, and at the same time two such strikingly different comments.  Each succeeds in framing the grand issue in legal, policy, and political terms quite as large as the original article.  Second, my thanks to the EJILTalk! editors for their patient willingness to continue this discussion beyond the article.  My response below is as free-ranging as the original, and goes to places where neither the original article nor the responses run, but which I think provide some context for the article’s observations.  I have broken my response into three separate posts for convenience.

I) A (Thin) Politics, Not a Society

Roth observes that The Rise of International Criminal Law does not adopt a frontal assault on the institutions of ICL.  In this, and in his further observation that the article is one of “unease,” he is entirely correct.   The unease has to do, as Kapur likewise observes, with misgivings about the centrality that ICL has assumed within the whole conception of international justice and, I would emphasize, the whole of what we loosely call the international system.  This unease rests on a still deeper ground of skepticism.  It is one that I have raised in many different settings, but left aside in my article.  It perhaps bears stating now, although I realize it carries the discussion different directions from the original article.

It is that international law, at least in its liberal internationalist incarnation, and particularly ICL as an especially intense version of it, takes as its ground the legitimacy that attaches to domestic systems of justice in settled domestic societies.  ICL lacks this legitimacy, because the international system is not a society in the sense of the legitimacy that attaches to a social system and which gives a society’s mechanisms of law and courts and criminal justice their ability to become internalized in Weber’s classic sense.  At most this international system is a politics, not a society, and only a thin politics at that.  The sense that ICL is the system of criminal law, whether conceived as for that global  “society” or for the rest of the world beyond that “society” of transnational elites that staff it is even more tenuous.

The customary retort is that the crimes at issue are so horrific and so universally reviled that no “thicker” international society is needed for their prosecution and punishment.  We can all agree on genocide, at least.  We do not need a “society” in which to embed and legitimate a legal system if we are talking about those kinds of crimes; universality can be vested in the purely international and transnational, at least for those limited, universally despised crimes.  I have always found this reply singularly unpersuasive.  Read the rest of this entry…

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Was Nuremberg a Violation of the Principle of Legality?

Published on May 18, 2010        Author: 

This is, remarkably, the question raised by yesterday’s judgment of the Grand Chamber of the European Court of Human Rights in Kononov v. Latvia, App. No. 36376/04. In short, the applicant was a former Soviet partisan convicted by a Latvian court for war crimes, because during World War II he and the unit under his command killed a group of Latvian villagers who collaborated with the Germans. The case raised many issues of the law of armed conflict/IHL, such as combatant and civilian status – but importantly, how the law applied inter-temporally, i.e. what the law was in 1944, when the alleged crime was committed.

The Chamber 4:3 judgment in favour of Kononov was much criticized for various methodological reasons, and not just for its ultimate result. The Grand Chamber reversed the Chamber’s judgment, finding in favour of Latvia by 14:3, and is technically of significantly better quality. The ultimate result of the case and some nitpicking I would have with certain elements of the Grand Chamber’s reasoning aside, what interests me the most is its basic approach, and the broader implications that it might have.

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Conceptual distinctions between the ICJ project and its constituent processes: A Reply to Brad Roth and Ken Anderson

Published on May 11, 2010        Author: 

 Amrita Kapur is a Consultant with the International Development Law Organization, and recently appointed as the International Advisor to the Women’s Justice Unit of the Judicial System Monitoring Programme in Dili, East Timor.  She has previously worked at the International Center for Transitional Justice, the International Criminal Court, and as a domestic prosecutor and Legal Aid criminal defence lawyer. In this post she responds to the article by Ken Anderson “The Rise of International Criminal Law: Intended and Unintended Consequences” and a recent post by Brad Roth

Professors Anderson and Roth accurately characterize the disparity between international criminal law (ICL) rhetoric and the continuing tolerance of impunity as hypocrisy with the worst kind of consequences.  However, their predictive speculations overlook important distinctions between ICL and humanitarian intervention, including historical context and the underlying catalysts for their continuing evolution. Roth’s response highlights the confluence of the two, but ultimately seeks to conflate their objectives and neglects emerging trends: in so doing, he fails to address the inherent shortcomings of the international criminal process as a tool to further the international criminal justice (ICJ) project.  This reply addresses humanitarian intervention and ICL as constituents of the ICJ project, referring to both Roth and Anderson for conceptual completeness.

1.  Nurturing a culture of humanitarian intervention

The central position occupied by ICL in the international legal order is claimed to give rise to two extreme situations: the guarantee that genocide will occur without intervention (Anderson) and/or the unchecked illegal use of force by powerful states (Roth).  As briefly addressed in my previous reply to Anderson (at 1031), framing ICL as a policy alternative that reduces the pressure to intervene presupposes intervention is an established and otherwise “morally inevitable” practice: this is simply not the case.

Humanitarian intervention is a very recent politically and militarily significant extension to the principles espoused by ICL.  Rather than being opposing or counter-balancing trends, humanitarian intervention and international criminal accountability are concurrently developing: while they are not entirely independent of one another, they are at different stages of ‘maturation’ and given the contrasting commitment in resources and political capital, inevitably developing at different paces.  Numerous humanitarian crises have elicited a peacekeeping force from the Security Council (Sierra Leone, East Timor, Bangladesh, Cambodia and the DRC are just a few), but always with mandates falling short of ensuring the protection of human rights and cessation of international crimes.  A fair evaluation of the trend towards humanitarian intervention must be anchored in an appreciation of the previously impermeable norm of non-intervention.  Read the rest of this entry…

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What Exactly Internationalizes an Internal Armed Conflict?

Published on May 7, 2010        Author: 

I’d like to turn our readers’ attention to the comment thread of Constantin’s post, which has raised a fascinating issue – when does an internal armed conflict become internationalized? I’d like to add a few thoughts of my own, first on some matters of definition.

We first need to agree on what the ‘internationalization’ of an internal armed conflict actually means. To my mind, that concept is only legally useful if it denotes the transformation of a prima facie non-international armed conflict into an international one, thereby rendering applicable to the said conflict the more comprehensive IAC legal regime. As is well known, there has been a long-standing trend – promoted, for example, by the case law of the ICTY and the ICRC customary law study – of arguing that most of IAC rules now apply to NIACs as well.

Crucially, however, at least one distinction between the two legal regimes remains. In IACs, the parties to the conflict are (at least) two equal sovereigns. Lawful participants in the hostilities who in effect represent those sovereigns thereby have combatant status, and enjoy the privilege of belligerency. They cannot be prosecuted by the other party for their mere participation in the hostilities, but solely for violations of IHL. In NIACs, however, the parties are fundamentally different – most commonly a government and a rebellious non-state actor. Because governments have every right to suppress rebellions against them, no combatant status or privilege exists in NIACs. A rebel can be prosecuted for the mere fact that he is a rebel, even if he has been completely observant of the rules of IHL. Thus, for example, the government of Afghanistan has every right to imprison a Taliban soldier, even if that soldier committed no war crime.

Note that this distinction is based on party structure to the conflict and is therefore here to stay. Note also that because the distinction between IACs and NIACs is based on party structure, one cannot logically first ask the question (as Federico does in the comments) whether there is an armed conflict simpliciter, and the ask further whether that conflict is international or non-international. Rather, IACs and NIACs are separate legal categories, neither of which is residual in nature, as it is impossible to establish either without making an inquiry into party structure. In other words, an ‘armed conflict’ exists when there is an IAC or a NIAC, not the other way around.

Per Common Article 2 of the Geneva Conventions, IACs are defined as conflicts between states. There are thus two basic ways of ‘internationalizing’ a NIAC: (1) for treaties and/or custom to exceptionally expand the definition of an IAC to include as parties some sufficiently state-like entities, or (2) for the non-state actor which is a party to a NIAC with a state to be considered as acting on behalf of a third state.

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