Home 2011 January (Page 2)

Is Kenya Pushing for a Mass African Withdrawal from the ICC?

Published on January 14, 2011        Author: 

It was reported last month that the Kenyan Parliament passed a motion calling on the government to withdraw from the International Criminal Court (see posts by Kevin Jon Heller at Opinio Juris – here and here  – and the discussion by Charles Jalloh at International Criminal Law Ferment – here and here). This move followed the ICC Prosecutor’s  successful application to the Pre-Trial Chamber for issuance of summons for six senior Kenyan officials accused of crimes against humanity in connection with the post election violence in that country (see previous EJIL:Talk discussion here). As Kevin Jon Heller noted in his second post (here ), that Parliamentary motion was then denounced by the Prime Minister. However, it has now been reported in the Kenyan Press that the Kenyan governments (or parts of it) are engaged in an effort to lobby other African governments to adopt a resolution at the African Union Summit at the end of January which would call for withdrawal by African States from the ICC.

On Tuesday 10 January, the Kenyan Weekly Standard reported that :

Kenya is laying ground for a motion to be tabled at the African Union Summit in Ethiopia that could trigger withdrawal of African states from the Rome Statute that founded the International Criminal Court.

Sources in Government told The Standard, the plot to instigate the pullout from International Criminal Court is being driven by a shuttle diplomacy by some ministers within African capitals ahead of the January 30-31 AU meeting in Addis Ababa. This meeting is expected to set the agenda for the main Summit attended by African leaders in July.

…The Government, it was further reported, has or is about to assign five ministers with the envoy role in this mission of lobbying African states …

The AU deal Kenya is pursuing entails backing a motion moved by a African Arab state that may see the Africa Union summit this July endorse a choreographed pull out from the manacle of the Rome Statute. Because of the indictment of al-Bashir, the use of an Arab state to float the motion would strategically be seen as taking Kenya out of the picture, and making her look like just part of the wave of Africa’s protests against alleged bias against the continent by ICC. Read the rest of this entry…


AW Brian Simpson

Published on January 12, 2011        Author: 

I am sad to report that Professor Brian Simpson has passed away yesterday, 10 January 2011, at his home in Sandwich, Kent. He was possessed of a truly unique erudition, coupled with a superb wit and sense of humour; his scholarship never failed to impress. It is in particular his work as a legal historian which was without peer, making an impact even on courts dealing with oh-so-modern issues like detention in the ‘war on terror’; his magisterial In the Highest Degree Odious: Detention Without Trial in Wartime Britain (Clarendon Press, 1992) was cited both by the House of Lords and the US Supreme Court. And even on this sad occasion the first two pages of his Human Rights and the End of Empire (OUP, 2004) cannot but make me laugh out loud. Brian and his laughter will be sorely missed; our condolences go to his family.

Filed under: EJIL, EJIL Reports

In Defense of the Hazardous Tool of Legal Blogging

Published on January 6, 2011        Author: 

On the occasion of my very first post on EJIL:Talk! – at the invitation of its editors – on the current duality of government in Côte d’Ivoire (see here), I have deemed it necessary to post a separate note on the “art” of legal blogging, for this topic has hardly been discussed on this experts’ blog in its first two years of existence (compare. with the debate held by the on-line platform of the Yale Law Journal). Moreover, the criticisms of which I have been the object for an earlier on-line opinion have also convinced me that some circles of our professional community have not yet completely assimilated the idea of blogging on issues of international law. While blogging on current (legal) developments undoubtedly remains a hazardous exercise which one should engage with the greatest care (if not with the greatest self-restraint), I would like to shed light on some of the virtues of blogging as well as the common misunderstandings at the heart of the objections still raised against legal blogging. I hope that these – inevitably cursory – considerations – which exclusively zero in on experts’ blogging – will help pursuing a healthy debate about the pro’s and con’s of bloggership.

1. Legal blogging and its detractors

In some strands of the international legal scholarship, many still resent blogging – and hence tend to despise those who engage in blogging – for two main reasons. First, legal blogging is scorned for the superficiality of the analyses and the half-baked ideas it disseminates. Second, it is berated for disinhibiting scholars and bolstering their disregard of the – unwritten – codes and hierarchies of the profession.

These two objections are surely not ill-founded. Indeed, posts on legal blogs often are quickly written notes on current legal developments without much critical distance and replete with unfinished thoughts. Likewise, posts on legal blogs allow direct confrontations between legal scholars at odds with the traditional non-confrontational debates conducted by the intermediary of international law journals. Yet, these criticisms rest on a misunderstanding of what legal blogging is all about and, more fundamentally, a negation of the cultural evolution witnessed in the international legal scholarship over the last two decades. Read the rest of this entry…


Duality of government in Côte d’Ivoire

Published on January 4, 2011        Author: 

 Dr. Jean d’Aspremont is Associate Professor of International Law and Senior Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam. He is  also Guest Professor of International Humanitarian Law at the University of Louvain in Belgium and Senior Editor of the Leiden Journal of International Law.

The current distressful situation in Côte d’Ivoire is pitting two warring factions against one another, each of them claiming to be the legitimate authority entitled to act and speak on behalf of the State. Such a duality of government is, regrettably, far from being unprecedented and raises some legal issues which are not unknown to international lawyers.

A sketch of the facts

The eligibility of Alassane Ouattara – President of the Rally of the Republicans (RDR) whose popular support lies mainly in the north of the country, former Prime Minister of Côte d’Ivoire and a former IMF managing director – to run for office has been a bone of contention in the political scene in Côte d’Ivoire for more than a decade. Indeed, several key political figures began, in the mid-nineties, to make use of the loaded argument of ‘Ivoirité’, especially following the 1995 electoral code barring candidates from taking part in the national elections if either of their parents were of a foreign nationality and if they had not lived in Côte d’Ivoire for the preceding five years – a stipulation which had been perceived by many as meant to exclude the popular Ouattara who was said to be of Burkinabé (i.e. Burkina Faso) origin. After a coup d’Etat in 1999, a new Constitution in 2000, a civil war between a government-controlled south and a rebel-held north, a painstaking peace process between the insurgency led by Guillaume Soro and Laurent Gbagbo in power in Abidjan, a unity government and several postponements of the last round of elections in which Ouattara had eventually been allowed to participate, the severe tensions that had beset the country over the last decade came again to a head in the aftermath of the 28 November second round of the presidential elections. Indeed, on 2 December 2010, the Independent Electoral Commission (hereafter CEI) announced the provisional results according to which Ouattara had won the election with 54% of the vote. Gbagbo claimed that the elections had been rigged by the former rebels and the results were invalidated by the President of the Constitutional Council which declared Gbagbo the winner.

Recognition of Ouattara as the legitimate head of Côte d’Ivoire

The international community was very prompt to endorse the position of the CEI and recognize Ouattara as the legitimate leader of Côte d’Ivoire. Although many States still profess that they do not officially recognize governments, it has long been demonstrated that such a political claim has never entailed an actual abandonment of the practice of recognition of governments but rather a toning down of the solemnity with which new governments are recognized. Situations of duality of government, as that in Côte d’Ivoire, makes this claim even less sustainable, for States around the world, and especially those having strong relations with – and interest in – the country, inevitably need to determine whom they will speak to and thus who they see as being in charge. Read the rest of this entry…


Happy New Year!

Published on January 4, 2011        Author: 

Happy New Year to all our readers! We haven’t written much on this blog over the holiday season but much has happened in the world over the last few weeks with some significance for international law. There has been the release of the US cables by Wikileaks, the governmental crisis in Ivory Coast and (can you believe it!) a third case added to the docket of the International Tribunal for the Law of the Sea (see previous post on ITLOS). We will try to catch up on some of these developments over the coming weeks.

We start the year with a couple of posts by Jean d’Aspremont, Associate Professor of International Law at the Amsterdam Centre for International Law. His first post analyses developments in the current crisis in Ivory Coast regarding who is the government of the country. He considers the significance of these developments for the claims by States that they do not recognise governments and also for the criteria by which international law and international organizations determine who is the government of a State. His second piece, to be posted on Thursday will examine the merits and dangers of legal blogging. EJIL:Talk! has just turned two years old and this is an opportune time to reflect on the value (if any) added by this relatively new form of legal commentary and scholarship. Many thanks to Prof. d’Aspremont. We welcome your thoughts on these issues!

Filed under: EJIL, EJIL Analysis
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