Home 2011 September

Essence of Crimes against Humanity Raised by Challenges at ICC

Published on September 27, 2011        Author: 

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…


The Birth of Israel and Palestine – The Ifs of History, Then and Now

Published on September 26, 2011        Author: 

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; The Last Page and Roaming Charges; Eric Stein RIP

Published on September 26, 2011        Author: 

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

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}

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.

Filed under: Conference, Editorials
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EJIL Vol 22 Issue 3: In this Issue

Published on September 26, 2011        Author: 

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

Filed under: Editorials, EJIL, Journals
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A Tale of Two Closures: Comments on the Palmer Report Concerning the May 2010 Flotilla Incident

Published on September 20, 2011        Author: 

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…


The Russian Ambassador in Belgrade

Published on September 15, 2011        Author: 

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.


Filed under: EJIL Analysis, Kosovo

Clarifying the Principle of Complementarity: the ICC Confirms Admissibility of Case Despite Investigation by Kenya

Published on September 14, 2011        Author: 

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…


Aggression and Legality

Published on September 13, 2011        Author: 

I’ve just posted on SSRN a pre-print draft of my article Aggression and Legality: Custom in Kampala, forthcoming in a special issue on aggression of the Journal of International Criminal Justice. It is more or less a follow-up to my earlier JICJ piece on whether the Rome Statute is binding on individuals. The abstract is below, and as always comments are most welcome.

This article tests the Kampala compromise on the aggression amendments to the Rome Statute of the International Criminal Court against the principle of legality, nullum crimen sine lege, requiring criminal law to be reasonably clear and prohibiting its retrospective application. It outlines three possible legality-based challenges to incriminating aggression: the supposed indeterminacy of the jus ad bellum and the lack of an incrimination under customary international law; the vagueness of the definition of the crime of aggression introduced in Article 8 bis; and the uncertainty regarding the application of this definition to situations in which the ICC’s jurisdiction over a particular individual arises only ex post facto. The article argues that it is the last of these three challenges, based on retroactivity rather than vagueness, that is the most serious one.

A fundamental ambiguity about the legal nature of the Rome Statute has direct bearing on this issue: it is either substantive in nature, directly creating the crimes it defines, or jurisdictional in nature, in that it merely sets out the subject-matter jurisdiction of the Court over offenses which are substantively defined elsewhere, in customary international law. The main practical consequence of this distinction is in the further question whether defendants charged before the Court have the right to challenge the legality of the charges against them on the basis that they do not comport with customary law. The article argues that this ambiguity about the nature of the Rome Statute was if anything only exacerbated in Kampala, discusses the substantive scope of application of Article 8 bis as well as the intricate jurisdictional regime introduced by the aggression amendments, and finally briefly turns to the question whether the definition of aggression adopted in Kampala departed from custom.


The Palmer Report on the Mavi Marmara Incident and the Legality of Israel’s Blockade of the Gaza Strip

Published on September 6, 2011        Author: 

Overall, the Palmer Report is of high quality and merits close attention. I would strongly urge those interested to read, at the least, the very concise summary of its findings at pages 1-6, where the conduct of Israel, the Mavi Marmara protestors and Turkey all come in for criticism.  Israel in particular is found to have used “excessive and unreasonable” measures in boarding the Mavi Marmara resulting in “unacceptable” loss of life; and to have subsequently engaged in “significant mistreatment” of those detained (pages 4-5). There is also an excellent summary of the essential steps in the legal logic of both the Turkish and Israeli national inquiry reports (at paras. 23 and paras. 46-47). The Palmer Report itself, however, concludes the blockade of Gaza to be legal. On this essential point, I consider there to be serious gaps in the Report’s logic. Before turning to this, a few points should be noted.

First, the inquiry had no direct mandate to examine legal issues or render an opinion on the applicable law (as the report notes inter alia at paras 3, 5, 6, 14 and 15). Its task was to review the reports and findings of two widely divergent national inquiries into the incident, and to: “(a) examine and identify the facts, circumstances and context of the incident; and (b) consider and recommend ways of avoiding similar incidents in the future.” It was not asked, for example, to render an opinion on the applicable law to the Secretary-General. The key legal analysis is thus contained in an appendix and represents only the views of the Chairman and Vice-Chairman; indeed, the whole report predominantly reflects the conclusion of the Chairman and Vice-Chairman, with the Israeli and Turkish panel members appending a partial concurrence and a dissent, respectively.

My own analysis of the blockade is available in the current pre-publication British Yearbook of International Law. I only sketch the path of my analysis here, but to my mind these are the questions that any balanced assessment of the legality of the blockade must address. Starting from the proposition that blockade is ordinarily only available in an international armed conflict (IAC), the relevant questions are:

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Should the Geneva Conventions Apply to the “War on Terror”

Published on September 5, 2011        Author: 

Last week I took part in a BBC radio programme (“Iconoclasts”) debating whether the Geneva Conventions should apply to the war against terrorism. The programme (which can be heard by clicking here) addressed three issues:

– Do the Geneva Conventions apply to ‘the war on terror’?
– What is the difference between ‘tough interrogation’ and torture?
– If the Geneva Conventions needs updating or replacing, what should the new rules be?

The Iconoclast in the programme was Charlie Wolf, an American radio presenter and commentator based in the UK. He was formerly communications director of Republicans Abroad UK. In the programme, he took a similar position to that  first taken by the Bush Administration after September 11, i.e. that the”war on terror” was not within the contemplation of the drafters of the Geneva Convention and that the terrorists did not deserve the protections of the Geneva Convention as they did not respect them. These issues were addressed by the US Supreme Court in 2006, in Hamdan v. Rumsfeld when it ruled that at least one provision of the Geneva Conventions, namely Common Article 3, applies to the US conflict with Al Qaeda. After that case, the Bush Administration changed its position and argued that it was engaged in a non-international armed conflict with Al Qaeda to which the rules of international humanitarian law applicable in non-international conflicts applied.  Of course, there is a broader question as to whether it can be properly argued that there is a global war on terror or even a global war with Al Qaeda which qualifies as an armed conflict under international law.

My co-panelists in the programme, in addition to Charlie Wolf, were Richard Norton-Taylor, the Guardian Newspaper’s Security Editor and Robert Barnidge Jr who teaches international law at the University of Reading in the UK.