Home 2011 February (Page 2)

George Bush Cancels Visit to Switzerland as Human Rights Groups Call for his Arrest

Published on February 6, 2011        Author: 

The media are reporting that former US President George W Bush has cancelled a planned visit to Geneva (see also comments by Jonas to previous post). There is some dispute about the reasons for the cancellation and the organizers of the event Bush was due to speak at have claimed that the cancellation was due to security concerns arising from planned protests. However AP reports that:

Several human rights groups, including Amnesty International and the New York-based Center for Constitutional Rights, had planned to ask Swiss prosecutors to open a criminal investigation against Bush over the admission that he personally authorized the waterboarding of terrorism suspects.

 “Whatever Bush or his hosts say, we have no doubt he canceled his trip to avoid our case,” the Center for Constitutional Rights and others said in a statement.

Legal experts say it is unlikely Swiss prosecutors would have had the time to examine any criminal complaint against Bush and take action, such as requesting him to respond to the allegations, before he left Switzerland again.

 Furthermore, an initial assessment by the Swiss Justice Ministry concluded that Bush would have enjoyed immunity from prosecution for any actions taken while in office, ministry spokesman Folco Galli told the AP.

Widney Brown, Amnesty’s senior director of international law and policy, said the group would continue to press for Bush’s prosecution the next time the former president travels to a country that has committed to prosecuting war crimes and where he could expect a fair trial.

 The claim by the Swiss Justice Ministry that, under international law, Bush would enjoy immunity from prosecution is a curious one and, of course, contrary to the decision of the English House of Lords in the Pinochet case the former Heads of State are not immune from prosecution for torture. Since Bush is no longer in office he is not entitled to the immunity ratione personae which international law grants to serving heads of State from arrest and prosecution by foreign States. That type of immunity (which was discussed by the ICJ in the Arrest Warrant case) attaches to the status of the head of State and comes to an end when he or she leaves office.

So the question that remains is whether Bush is entitled to the immunity which, under international law, attaches to official acts of those who act on behalf of a State and prevents foreign prosecutions for those acts . Read the rest of this entry…


The Obligation of African Union States to Implement ICC Arrest Warrants

Published on February 4, 2011        Author: 

Max Du Plessis is associate professor at the University of KwaZulu-Natal and Senior Research Associate at the International Crimes in Africa Programme of the Institute for Security Studies. Chris Gevers is a lecturer at the Faculty of Law at the University of KwaZulu-Natal.

Earlier this week, Dapo had a post dealing with the obligations of contracting parties to the Genocide Convention to implement ICC arrest warrants and pointing to the UCLA Online Forum debate on this topic. In what follows we hope to contribute to the discussion around point (ii) of the topics raised by Dapo’s post and the UCLA debate: the obligations of African Union States Parties to implement ICC arrest warrants.  Our contribution is drawn from our upcoming position paper for the Institute for Security Studies’ International Crime in Africa Programme. The paper provides an analysis of the various obligations Kenya and other States Parties must meet to the ICC in respect of both al-Bashir and the Court’s ongoing investigation into the post-election violence in Kenya, and which considers the nature of the obligations on African States Parties such as Kenya in respect of the AU decision, and in particular the demand for non-cooperation in respect of al-Bashir.  This paper builds on the ISS’s previous position paper – An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC, by Dapo Akande, Max du Plessis and Charles Jalloh, previously discussed on this blog (here and here) – and similarly the Institute plans to launch the paper internationally in due course.

Firstly, decisions of the AU Assembly are potentially binding on member states. Although there is no express provision in the AU’s Constitutive Act conferring this power, it is clear from article 23 – which sets out the consequences for failing to abide by such decisions – as well as a thorough contextual reading of the Constitutive Act that the Assembly is empowered to do so. Even if the text of the AU Constitutive Act is considered insufficient or equivocal in this regard, given the considerable mandate the body has been given by its member states, those advocating for the binding nature of Assembly decisions could rely on the doctrine of implied powers to support their position. Further, as Bill  Schabas notes in his piece on the UCLA Law Forum, the AU Commission clearly views the AU’s Bashir Decision as binding on its members. Read the rest of this entry…


In this Issue: Vol. 21/4 [EJIL Editorial]

Published on February 2, 2011        Author: 

We begin this fourth and final issue of EJIL’s Volume 21 with a mini-symposium on sovereign immunity, which includes two papers. The first, by Dapo Akande and Sangeeta Shah, distinguishes the various categories of immunities conferred under international law. The second paper by Jasper Finke examines competing conceptions of immunity before arguing that it is best understood as a binding principle. It is our hope that these papers will spark new discussions on this fundamental topic of international law.

Four articles follow our mini-symposium. The first is a piece by Annie Bird on Third State Responsibility for human rights violations, a piece which we find follows well from our short symposium. Next we publish a detailed investigation into the role of atypical acts in EU external trade and intellectual property policy. This piece by Henning Grosse Ruse-Khan, Thomas Jaeger and Robert Kordic is sure to be a useful contribution for both practitioners and theorists working in this particular field. Weaving once again into topics raised by our mini-symposium authors, we publish a piece by Sarah M. H. Nouwen and Wouter G. Werner, which focuses on the explicitly political effects that the jurisprudence of the International Criminal Court is having in Uganda and the Sudan. The authors offer an innovative lens, examining the jurisprudence and also its use by political actors through the friend-enemy distinction. Last, we believe our readers will enjoy the piece by Mehrdad Payandeh on the concept of international law in the jurisprudence of H. L. A. Hart

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Filed under: Editorials, EJIL, Journals
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Snippets from the Mailbox of the Editor: Poaching and Masthead Changes[EJIL Editorial]

Published on February 2, 2011        Author: 

Our publisher, OUP, forwarded to me a complaint from another journal of international law. Apparently, an author who submitted an article to that journal and subsequently accepted to publish it therein, withdrew his piece at the last minute since, he explained to the justly irritated editors, another, ‘more prestigious’ journal published by OUP to which he had simultaneously submitted his piece, had now accepted it for publication. It is worthwhile mentioning from the outset that authors submitting a manuscript to EJIL are asked to confirm that it has not been published, submitted or accepted elsewhere.

Here is a composite edit of my correspondence with the author in question. It picks up in the middle of the correspondence.

It would seem that your article was submitted by you to the xxxx Journal of International Law for publication … [and] it would seem that you had accepted to publish with them…. They are, absent some convincing explanation by you, justifiably upset and frustrated….

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Filed under: Editorials, EJIL

Dispatch from the Euro Titanic: And the Orchestra Played On [EJIL Editorial]

Published on February 2, 2011        Author: 

These are challenging times for the European Union. Internally, important, even fundamental, decisions are on the agenda as the Union struggles with the Euro crisis and its underlying economic fissures. (Mercifully, the scapegoating of the USA as an escape from facing Europe’s very own breathtaking governmental and private-sector financial and fiscal irresponsibility has all but disappeared – mercifully, since facing reality unflinchingly is a necessary condition for dealing with it effectively.) What is subprime in Europe is the decisional structure of the Union: the European Politburo – President of the Commission, newly-minted President of the Council, tired-old-more-senseless-than-ever rotating Member State Presidency, recycled High Representative answerable to two bosses and thus to none – has proven at best irrelevant to the real actors in you know where (Berlin, Paris, the formidable Merkel, the erratic Sarkozy), at worst distracting – was the able President of the Council’s productive moves really helped by the forced tango with his opposite number at the Commission? About a year after the entry into force of the Treaty of Lisbon, it is clear that at least some of the principal objectives intended by the new decisional structure at the top are turning out to be as ineffective (some claim laughable) as critics anticipated.

Externally, the world sans-Amerique (or at least with a terribly weakened America) is not waiting for Europe either. Here, the non-handshake of Catherine Ashton and Saeed Jalili, Iran’s representative to the resumed talks, was an image emblematic at many levels of the depth of the international challenges and Europe’s worrying circumstance. Read the rest of this entry…

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