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Home Articles posted by Douglas Guilfoyle

Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?

Published on May 8, 2019        Author: 
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The self-inflicted misfortunes of the International Criminal Court continue. The recent Pre-Trial Chamber decision not to authorise the opening of an investigation in Afghanistan has already generated considerable controversy (see here, here, here, here and here). The rather surprising news that Judge Ozaki would be allowed to continue to serve part time on the Court while becoming Japan’s ambassador to Estonia has also drawn criticism. And, of course, on Monday the Al Bashir immunity decision was handed down. Amidst the hubbub, one other development has gone relatively unremarked. The first four presidents of the ICC Assembly of States Parties (ASP) have released a joint op-ed through the Atlantic Council entitled “the International criminal court needs fixing”. For present purposes, it is enough to note several key points.

The op-ed calls for “an independent assessment of the court’s functioning by a small group of international experts”. This call appears triggered by the Afghanistan decision which they see as expressing “a lack of confidence that the Court could successfully carry out the job.” The rest of the piece pursues two central points – and a cluster of worrying claims. Read the rest of this entry…

 

Part III- This is not fine: The International Criminal Court in Trouble

Published on March 25, 2019        Author: 
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Editor’s note: This is the final post in a three-part series. Parts I and II are available here and here.

In this final reflection I would like to offer some concluding remarks based on my previous two posts. Those posts do not break any new ground for those who follow the International Criminal Court closely. However, they represent my attempt to step back and examine some of the Court’s troubles more holistically. Indeed, they barely scratch the surface of various matters one could explore in such a series.

The basic fact remains that in 20 years and almost two complete prosecutorial terms, the Court that ostensibly exists to fight impunity and prosecute those most responsible for the crimes of greatest concern to the international community has managed only three convictions for core international crimes. Of these one was a guilty plea (Al Mahdi), one controversially involved the Court’s judges saving a collapsing case by recharacterizing the mode of liability after the presentation of argument and evidence had concluded and without hearing further argument on point (Katanga), and one took six years to result in a single conviction for the recruitment of child soldiers (Lubanga).

This is not a record of success. The argument I have put forward is first that there are real questions as to whether the Court’s job is possible to do on the present conditions. In my first post I argued that many of the defences made of the Court are simply articulations of the structural requirements for success which are not present. In my second post, I argued that even given those structural limitations it is not obvious that the Court as presently constituted is up to the task. The OTP appears unable to consistently mount successful and convincing cases. While the first Prosecutor must certainly take much of the blame, the second does not appear to have had much success righting the ship. Just as worrying, however, appears to be the breakdown in trust between the OTP and Chambers. Beyond the examples given in my second post, the Pre-Trial Chamber has attempted to circumscribe prosecutorial discretion or direct the course of investigations both in relation to the Cormoros and Bangladesh situations. Further, there are very worrying signs of a breakdown in collegiality among the ICC judges which is damaging both the formal coherence of court decisions and its wider legitimacy. This is before we even touch on the Court’s unsightly history of internal employment litigation and pay disputes, and now reports that the ICC mismanaged property in the Bemba case frozen to provide for any reparation orders. The allegation is that over 10 years Mr Bemba’s property was “left to devalue, dissipate or simply rot.” From the outside, the picture is one of dysfunction.

What is to be done? As foreshadowed, I think the answer has to be found in a guiding ethic of modesty and collegiality. I will address this in terms of institutional design, investigations and evidence, and judicial culture. The temptation will be to double down and push harder in the present direction of travel. This would be a mistake. The Court is facing a legitimacy crisis. To survive as an institution, the court is going to need to start making some compromises with reality.

Institutional design

In retrospect, elements of the Court’s design were from the outset overambitious or over-complicated. 

Read the rest of this entry…

 

Part II- This is not fine: The International Criminal Court in Trouble

Published on March 22, 2019        Author: 
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Editor’s note: This is Part II of a three-part series. Part I is available here.

Part I of these reflections focused upon the structural constraints faced by the International Criminal Court as a whole. Within this framework, I wish to focus upon the role of individuals and officeholders in the courts success or failure within those constraints, with a focus on the office of the prosecutor and the judges of the court (Chambers). This post thus sets out to address questions of the Court’s internal workings, practices and culture. In relation to the OTP, I will focus on questions of strategy and management; in respect of chambers, questions of collegiality and assessment of evidence. Space precludes an evaluation of the Registry’s contribution to the court’s present woes beyond my earlier allusion to the well-known, long and expensive series of employment law cases brought against it which followed from a previous registrar’s restructuring exercise. Again, little here will seem especially new to close observers of the Court, the point is to pull together a worrying cluster of issues for a broader audience. Warning: long post ahead.

The Office of the Prosecutor (OTP)

It is worth acknowledging both the enormous power of the role of an international prosecutor, and the very great difficulties in doing the job successfully. As Stahn notes, the Prosecutor is the engine of international criminal tribunal proceedings. He or she conducts investigations, selects defendants, brings cases to trial. In doing so, it is common for prosecutors to say that they are only following the law or evidence, but in practice they have substantial discretion in case and defendant selection. In addition, obtaining defendants and evidence requires, in practice, the cooperation of States. Thus, prosecutors’ work ‘is inherently linked to politics due to the political context of crimes, the politics behind institutional engagement and their large degree of choice.’ That said, international prosecutions are hard. Gathering evidence in conflict zones is hard. Operating in the face of government obstruction is hard. And the reality of selective justice at the international level means prosecutors will always be open to criticisms of partiality or lacking independence. It’s a challenging job. Much was going to depend on the ICC Assembly of State Party’s choice of prosecutor in 2003.

The first Prosecutor

The first Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, was during his tenure an Olympian figure; though the verdict of history on his achievements looks increasingly likely to be that of Ozymandias. 

Read the rest of this entry…

 
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Part I- This is not fine: The International Criminal Court in Trouble

Published on March 21, 2019        Author: 
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Editor’s note: This is Part I of a three-part series.

There is now a real sense that the International Criminal Court is in trouble. The questions are: how much, why and what is to be done?

The UK pulled no punches in its statement to the 17th International Criminal Court Assembly of State Parties:

The United Kingdom strongly supports the aims of the ICC and believes there is an essential role for an international institution like the Court in delivery of justice at the international level. But as an Assembly of States Parties to the Statute, we cannot bury our heads in the sand and pretend everything is fine when it isn’t. The statistics are sobering. After [nearly] 20 years, and 1.5 billion Euros spent we have only three core crime convictions. As others have said, and I quote “it is undeniable that the Rome project still falls short of the expectations of the participants at that ground-breaking conference in Rome”. The time has come for States to take a fundamental look at how the Court is operating. We need to work together to address the challenges, for the future health of the Court, a Court that we care about deeply.

The UK statement, delivered by Legal Director Andrew Murdoch,* ‘welcome[d] the steps taken by the Prosecutor to investigate the media allegations surrounding the former Prosecutor that surfaced twelve months ago’ and noted that the ‘Court is in danger of spending more money on internal litigation, including litigation on salaries, than on victims’.

Some will no doubt point to ongoing ICC investigations into the actions of UK personnel in Iraq, to impugn the UK’s motives in making these points. Its criticisms, however, are undeniably grounded in fact. Things are not fine. In April it will be 16 years since the Court’s first prosecutor was sworn in. A widespread sense among the ICC’s supporters that there is some soul-searching to be done about the future direction of the Court has only been heightened in the weeks since the Gbagbo acquittal.

Let’s be clear about the paucity of concrete results. There have been eight convictions, one overturned on appeal, one arising from a guilty plea and four relating to Article 70 administration of justice offences. The four convictions for offences against the administration of justice all arise out of the Central African Republic investigation and involve sentences of 6 months to 3 years. The other convictions may be summarised as:

  • Bemba (CAR) – sentenced to 18 years, overturned on appeal; an administration of justice case continues;
  • Katanga (DRC) – sentenced to 12 years, transferred back to DRC custody with ‘sentence served’ after 8 years;
  • Lubanga (DRC) – convicted to 14 years;
  • Al-Mahdi (Mali) – proceeded on a guilty plea and was sentenced to 9 years.

This is to set aside the very considerable disquiet expressed regarding the Katanga conviction, involving the dismissal of charges against his alleged co-perpetrator and judicial recharacterization of the relevant mode of liability after the close of proceedings. There is also now the very public embarrassment of both the collapse of the Kenya situation prosecutions and now the entry of acquittals on a “no case to answer” motion by the Trial Chamber in Gbagbo. As Labuda notes, if the Gbagbo acquittal is upheld on appeal, the ICC will be in the ‘rather awkward’ position of having acquitted more alleged international criminal than it has convicted. Indeed, as Dürr points out, to have more acquittals and terminated proceedings than convictions is unique among international criminal tribunals.

There are certainly more complex, and arguably more important, metrics by which to judge the success or failure of an international criminal tribunal than the number of its convictions. Indeed, we would rightly be sceptical of the fairness of proceedings that only resulted in conviction. However, to the extent that the Court is meant to serve expressivist goals, fight impunity, or deter atrocity – it must present some credible threat to those who should fear accountability. It is often argued that the simple possibility of ICC accountability may deter atrocity and that the existence of institutions may change behaviour. As lawyers we know that behaviour changes in the ‘shadow of the court’, but that court must first cast a shadow.

In a series of reflections, I will argue that we should now be very worried about the extent to which the Court is casting much of a shadow at all. In exploring who and what is to blame for this situation, I will pursue two themes: conditions and culture. Read the rest of this entry…

 
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Canute’s Kingdoms: Can small island states legislate against their own disappearance?

Published on February 20, 2019        Author: 
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It was recently drawn to my attention that Tuvalu and Kiribati have in recent years passed legislation, following a relatively common scheme, that removes reference to the low tide line as the baseline for measuring maritime zones and replaces it with a system of fixed geographic coordinates. (The Marshall Islands has taken a somewhat similar approach.) On its face, this may constitute a claim that their maritime baselines are permanently fixed. That is, they will not retreat or be redrawn with rising sea levels.

This might seem a small matter in the range of legal issues implicated by climate change – it is not.

As every public international lawyer probably recalls, at least after the South China Sea arbitration, an island (within the meaning of article 121 of the UN Convention on the Law of the Sea) generates a full suite of maritime zones but must be more than a mere rock incapable of sustaining human habitation or a maritime feature which is only above water at low tide. Imagine your national territory is composed of a series of islands, some of them quite small but generating extensive maritime zones. Long before you risk becoming completely “de-territorialised” by rising sea levels you might lose much of your national livelihood if islands previously generating exclusive economic zones become mere low tide elevations.

So the question becomes, can a state freeze the baselines from which its maritime zones are projected? Read the rest of this entry…

 
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Taking the party line on the South China Sea Arbitration

Published on May 28, 2018        Author: 
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I recently posted here on the extraordinary 500-page “Critical Study” of the Awards in the South China Sea Arbitration published by the Chinese Society of International Law (CSIL) in Oxford University Press’ Chinese Journal of International Law.

The piece drew a number of interesting comments, the most interesting from Professor Bing Ling of the University of Sydney:

This Critical Study is not some spontaneous work by individual academics, but clearly a government-orchestrated project produced in the name of a learned society. The Working Report of the Board of CSIL (2013-18) reports that the work of CSIL, including the Critical Study, was carried out “under the supervision and leadership of the Foreign Ministry” (https://mp.weixin.qq.com/s/Xv8Kij_bDuqMETULvUfMqg).

That CSIL Working Report makes for interesting reading in Google Translate. It opens with:

In the past five years, under the guidance of the socialist ideology with Chinese characteristics in the new era of Xi Jinping, the current council has united and led the members to work together under the leadership of the Ministry of Foreign Affairs to earnestly implement the spirit of the 18th and 19th National Party Congress and the Party Central Committee … [including through] adherence to the correct political direction …

In terms of the five years of work the first heading is “Serving the State’s Foreign Affairs and Foreign Affairs Bureau to Promote the International Influence of the Society” and achievement (A)(II) is listed as:

Actively respond to the “Southern Gulf [sic] arbitration case proposed by the Philippines”. From 2016 to 2018 , the Society made a multi-level, multi-channel and multi-perspective speech by organizing domestic and international seminars, writing reports, publishing series of articles, publishing special issues, receiving television interviews, and writing criticism reports. They refuted and exposed the Philippine arbitral tribunal for the South China Sea arbitration case to expand powers, ultra vires, and abuse of power. … Including: 1. Organization of domestic experts and scholars, organized the “Philippine South China Sea Arbitration” academic seminar. 2. Organize domestic experts and scholars to write a report on the “Arbitral Tribunal of the South China Sea Arbitration Court has no legal effect” report and publish it in both Chinese and English; 3. Organize domestic experts and scholars to write a “Critique of the South China Sea Arbitration Award” report in both Chinese and English publishing.  … (Emphasis added.)

A further important piece of context is the following passage:

… [W]e always adhere to the overall situation of serving the country’s diplomacy and foreign affairs. Diplomatic foreign affairs work is an important part of the overall work guilof the party and the country. The work of international law teaching research and associations is also an important component of foreign affairs. In the past five years, the Institute has guided the Chinese international law community to focus on the research direction of the focus of diplomatic work. It closely identifies the actual needs of diplomatic work when organizing various academic conferences to determine the theme of the conference, and effectively plays a role as a bridge between the theoretical and practical world of international law. Under the leadership of the Ministry of Foreign Affairs, the Society has always adhered to the mission of the National Foreign Affairs and Foreign Affairs Center, paid close attention to the evolution of the international situation, strengthened theoretical and empirical studies of international law in related fields, and scored a series of important achievements. In particular, in 2016, the Society mobilized the academic community to cooperate with the overall deployment of diplomacy to carry out the juridical struggle and actively responded to the “Philippine South China Sea Arbitration Case” in various ways, effectively refuting and exposing the unlawful practices of the temporary arbitration tribunal. (Emphasis added.)

Allowing for the vagaries of Google Translate, this five year Working Report raises a number of interesting questions including:

  • Given the close association of the CSIL and the Chinese Foreign Ministry – and the apparent integration of the CSIL into the diplomatic effort on this issue – should Foreign Ministry “leadership” of the Critical Study have been acknowledged in a first footnote?
  • Did the CSIL’s self-professed “mobiliz[ation of] the academic community” have any impact (directly or indirectly) on the peer review process for the Critical Study?
  • OUP lists the Chinese Journal of International Law as “An independent, peer-reviewed research journal edited primarily by scholars from mainland China, and published in association with the Chinese Society of International Law, Beijing, and Wuhan University Institute of International Law, Wuhan …” Should that description make some acknowledgement of the seemingly close links between the CSIL and the Foreign Ministry?

In addition, the editorial board includes a substantial number of distinguished scholars who are resident outside China. It would be interesting to know how many of them were involved in the editorial decision-making and peer review process which has resulted in what could potentially be seen as a 500 page government-commissioned or -vetted report being published in a scholarly journal.

If anyone would wish to correct auto-translated passages, please let me know.

 

A new twist in the South China Sea Arbitration: The Chinese Society of International Law’s Critical Study

Published on May 25, 2018        Author: 
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On Monday 14 May 2018 the Chinese Journal of International Law, an Oxford University Press journal, published an extraordinary 500 page “Critical Study” of the Awards on jurisdiction and the merits in the South China Sea Arbitration between the Philippines and China. Readers will recall the case was brought under the UN Convention on the Law of the Sea (UNCLOS) by the Philippines against China and that there was an awards on jurisdiction in 2015 and a final award on the merits in 2016 (discussed in many places including here, here, here, here and here). The Critical Study was produced by the joint efforts of some 70 scholars and is listed as having been authored by the Chinese Society of International Law (CSIL). It examines almost every issue raised in the case – and several that weren’t – and concludes the Tribunal was catastrophically wrong on every single point, right down to how many times the Philippines was allowed to amend its pleadings.

The extent to which the Critical Study manages to strike a temperate and balanced tone towards the Awards made by the arbitral tribunal is summed up in the introduction:

“These awards are not conducive to solving the dispute between China and the Philippines in the South China Sea; instead, they have complicated the related issues. They have impaired the integrity and authority of [UNCLOS], threaten to undermine the international maritime legal order, run counter to the basic requirements of the international rule of law, and also imperilled the interests of the whole international community” [para 5].

Like pirates, the Tribunal members it seems are close to hostes humani generis and their award a threat to international legal order. The other blow to any semblance of academic neutrality in the book-length Critical Study is the one issue it studiously chooses not to address: China’s refusal to participate in proceedings. The Critical Study, while challenging almost every other paragraph of the award is entirely silent as to the Tribunal’s plainly correct finding that China – even if it disputed jurisdiction – was bound by its voluntary membership of UNCLOS to participate in proceedings. Further, UNCLOS makes clear China was bound by the result of such proceedings, even in the event of non-appearance. Indeed, this is why in UNCLOS cases where the UK and France disputed jurisdiction, for example, they have nonetheless shown up to make the argument.

In any event, the Critical Study raises a number of very interesting questions both in terms of the legal arguments it makes and in the simple fact of its existence. In the remainder of this (unfortunately long) post I would like to offer some brief and necessarily initial observations on following issues:

  • First, what is the significance of the critical study as an intervention in the debates about the South China Sea award, and what does it tell us about Chinese approaches to international law?
  • Second, is there any merit to the substantive legal arguments advanced by the Critical Study? (And what do these arguments tell us about Chinese approaches to international law?) I will put aside here the issues of both jurisdiction and the legal definition of islands capable of generating significant maritime zones (on which reasonable minds have differed) and focus on arguments regarding Chinese historic rights in the South China Sea and whether the Spratley Islands can be considered an archipelago.

  Read the rest of this entry…

 

Philippines v China: first thoughts on the Award in the South China Seas Case

Published on July 12, 2016        Author: 
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Any international lawyer looking at a news site in the last few hours will have seen that the final award has been handed down at the Permanent Court of Arbitration in the Philippines v China dispute brought under the UN Convention on the Law Sea Annex VII procedure. The arbitral tribunal’s decision is simply historic. While Philippines has lost on a number of smaller points, the scale of its win overall is much greater than most commentators were expecting.

What follows is a very preliminary comment – and I stress that faced with a 500 page decision I may well revise my views later. It is also more in the nature of an explainer than a deep dive on any of the many legal questions already highlighted below. (This is also an excessively long post, for which I apologise.) However, on a first, quite brief, examination the tribunal has attempted to be meticulously fair to China and has applied the UN Convention on the Law of the Sea strictly and thoroughly. It has delivered a result which was, by and large, predictable.

James Kraska of the US Naval College has summarised the key holdings as:

  • the nine dash line has no basis in law,
  • there are no islands in the disputed area within the meaning of Article 123, UNCLOS,
  • China has interfered in the Philippines’ EEZ; and
  • China’s actions have aggravated the dispute.

I would add to this list three matters. First, the Tribunal has concluded that Mischief Reef is a low tide elevation over which no State can claim sovereignty or possession. This means it is simply a maritime feature within the Philippines exclusive economic zone (EEZ). Chinese island-building activities there are thus not merely without legal effect but are in violation of the sovereign rights of the Philippines.

Second, it has found that China has breached various obligations under UNCLOS regarding the protection and preservation of the marine environment by having caused severe and irreparable harm to coral reef ecosystems in its construction of artificial islands in the South China Seas.

Third, international tribunals normally bend over backwards to avoid findings of bad faith against a state. That is, one cannot act in bad faith without violating some other substantive right. So most tribunals consider it sufficient to stop at determining that a right or duty has been violated. This tribunal has found China violated Article 300 of UNCLOS: the duty to act in good faith. This is an extraordinary rebuke and a clear indication that the law of the sea dispute resolution system will not be cowed by the posturing of the superpower. As a matter of principle, it takes a principled stand on the supremacy of the rule of law. As a matter of pragmatism, it flies in the face of the conventional wisdom that angering China over this dispute could jeopardise the stability of the law of the sea system.
Read the rest of this entry…

 

China, the Philippines and Oil Rig HD-981: A New Flashpoint in the South China Sea Dispute

Published on May 23, 2014        Author: 
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South_China_Sea_vector.svgTensions between China and Vietnam over the disputed Paracel islands erupted into anti-Chinese riots this week in Vietnam. The immediate cause is the positioning of a deep sea exploratory oil rig, the HD-9H1, 17 nautical miles from Triton Island, the south-western most feature of the Paracel group. It is also within 200 nautical miles of the Vietnamese coastline and therefore potentially within the EEZ of Vietnam. (The map at left shows China’s claims in the South China sea as well as each country’s 200-mile exclusive economic zone. Click to enlarge. Credit.)

The underlying dispute is of course whether Vietnam or China has sovereignty over these maritime features. If they do belong to China, any maritime zone they generate would be opposable to Vietnam and a maritime delimitation would be needed to sort out the respective boundaries. Is recourse to international dispute resolution – if not by consent, then initiated by Vietnam – likely in such a case?

The situation obviously has some parallels with the Philippines v China arbitration initiated under the UN Convention on the Law of the Sea (UNCLOS). Indeed, such Annexe VII arbitrations under Part 15 of UNCLOS are undergoing something of a renaissance at present. Other than the Philippines v China case, there is also obviously the pending arbitration in the case of the MV Arctic Sunrise (Netherlands v Russia) – both cases in which a major power has threatened nonappearance. More positively, hearings under the auspices of the Permanent Court of Arbitration recently concluded between Mauritius and United Kingdom concerning the dispute which followed the UK’s pronouncement of a marine protected area around the Chagos archipelago. The attraction of UNCLOS arbitration is that dispute resolution under the Convention is, in principle, compulsory; the downside is that it is riddled with complex exceptions. (As I have noted in a previous post.)

Could this be the next case to go to an Annexe VII Tribunal? The problems with relying on this mechanism to resolve maritime boundary disputes, or disputes concerning the underlying title to an island, are well known. Read the rest of this entry…

 

“The City and the City” and Public International Law

Published on October 16, 2013        Author: 
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City and CityThe City and the City. It is, at its core, a novel about jurisdiction, and its setting is one of Miéville’s most fascinating creations. Miéville himself is no stranger to international law, being the author of Between Equal Rights: A Marxist Theory of International Law (2005). His novel demonstrates an unsurprising interest with the possibilities of law and its relationship to society and culture.

Superficially, The City and the City is a police procedural. In Besźel, a declining city-state somewhere in Eastern Europe, inspector Tyador Borlú finds a murdered woman. The suspicion is she was murdered in the neighbouring city-state of Ul Qoma. The extraordinary part of the novel is the relationship between these two cities. They are legally separate sovereign nations occupying the same physical space. While some “total” streets or districts belong entirely to one nation or the other, many are “crosshatched”. In these areas the two cities physically coexist alongside each other but legally their citizens may not interact, nor in any manner acknowledge each other’s existence, nor respond to events occurring in the “other” city. This difficulty is managed by the cultural practice of “unseeing” those things one is not legally entitled to see. (Given a moment’s thought this is less implausible than many speculative or weird fiction premises. Most of us unsee things of greater and lesser importance in our urban environment we find inconvenient to acknowledge: the homeless, the mentally disturbed, those collecting for charity, tedious acquaintances, etc.) Read the rest of this entry…