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Home Archive for category "International Criminal Law"

Whither the Aspirational ICC, Welcome the ‘Practical’ Court?

Published on May 22, 2019        Author: 
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What is the promise of the International Criminal Court (ICC)? What do we, as observers, scholars, and constructive critics of the Court, believe that the ICC should do in a world of populism, altered balances of power, and persistent atrocity? Why has the Court been able to achieve so little and what would be required, in terms of new strategies and reforms, to build a better ICC? What do we believe that the institution should look like in the future? What is our vision of the ICC?

Over the past few weeks, EJIL:Talk! has hosted a number of thoughtful and thought-provoking essays seeking to answer some of these questions. With this piece, I want to ask admittedly less than legal questions: is the ICC becoming a less aspirational institution and can we balance the aspirations of ICC justice with the need to deliver meaningful accountability?

The Shadow of Expectations

It is now conventional wisdom that, for the majority of its existence, the ICC and its backers promised too much to too many. As is often pointed out, the Court and its most fervent champions set expectations that the ICC could never meet. They insisted that the Court would end impunity for international crimes, put victims front and center in all of its work, transcend global power relations, deter mass atrocities, hold the most powerful to account, promote reconciliation… you name it. It’s a laundry list of things that the ICC didn’t achieve because it couldn’t achieve them. It should never have been asked to.

The ICC hasn’t been a panacea for political ills such as violent political conflict or social challenges such as reconciliation. Unmet expectations have thus left many proponents privately regretful of having espoused unrealistic expectations about the Court and worrying about the disappointment that ensued. Now, the aim of many – both inside and outside of the ICC – is to focus on being realistic and on what the Court can realistically achieve. But there may be a cost to bending too far towards practicality: the loss of an institution that is meaningfully aspirational. The goal must be to strike a balance practicality and aspiration. Read the rest of this entry…

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An Unforeseen Pandora’s Box? Absolute Non-Refoulement Obligations under Article 5 of the ILC Draft Articles on Crimes Against Humanity

Published on May 20, 2019        Author: 
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Introduction

In 2013, the International Law Commission (ILC) added to its long-term work programme the topic of a convention on the prevention and punishment of crimes against humanity. This proposed convention is meant to join sibling conventions addressing genocide and war crimes and would stand in the tradition of other conventions addressing serious crimes, such as torture and enforced disappearance. So far, the ILC has adopted 15 Draft Articles which include a wide range of obligations for future State parties regarding the prevention of crimes against humanity, as well as on measures relating to domestic criminalization, mutual legal assistance and extradition. This blog post, however, focusses on Draft Article 5, which includes an absolute non-refoulement obligation with regard to crimes against humanity:

Article 5 Non-refoulement 

  1. No State shall expel, return (refouler), surrender or extradite a person to territory under the jurisdiction of another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity.
  2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the territory under the jurisdiction of the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.

While the commentary on the Draft Articles argues that most States consider Article 5 to be a mere codification exercise and consistent with existing obligations under international human rights law (IHRL), some states such as the USA, UK and Jordan have expressed their concern that Draft Article 5 constitutes a progressive development of the law and introduces new, mandatory standards of non-refoulement protection. This post makes three main claims. First, that Draft Article 5 does indeed constitute a progressive development of the law and would supersede the current non-refoulement regime under both refugee and human rights law. Second, that although the proposed new regime would increase the protection of individuals from refoulement, it does so in a rather arbitrary fashion. Lastly, that this new regime will further restrict the ability of states to expel or return unwanted individuals who have committed serious crimes or constitute a danger to their community and could therefore trigger a significant political backlash once the Draft Articles reach the level of political decision makers in the future member states of the Convention. Read the rest of this entry…

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Symposium on the Genocide Convention: Is the Duty to Prevent Genocide an Obligation of Result or an Obligation of Conduct according to the ICJ?

Published on May 16, 2019        Author: 
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Editor’s note: This is the final post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the other posts in this symposium here and here.

This post questions the findings of the International Court of Justice (ICJ) in the 2007 Bosnia v. Serbia case, according to which the duty to prevent a genocide is an obligation of conduct that can be assessed only after the occurrence of a genocide. The post first briefly explores the distinction between obligations of conduct and obligations of result on the basis of the International Law Commission (ILC)’s works and judicial practice. The post moves on to emphasise some inconsistencies in the ICJ’s reasoning in relation to the occurrence of a genocide as a prerequisite for the violation of the duty to prevent genocide. Finally, the post advances some possible explanations of the role of the event ‘genocide’ in relation to the duty to prevent genocide.

The 2007 ICJ’s Decision

In the 2007 Bosnia v. Serbia case, the Court for the first time declared that an autonomous obligation of diligent conduct to prevent genocide exists under Article I of the 1948 Genocide Convention (see my reflections here). According to the Court:

It is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance. (para 430, emphasis added)

The Court went on to affirm that a breach of the duty to prevent genocide can be assessed only after a genocide has occurred. The Court took the view that:

a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs. […] If neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen. (para 431, emphasis added)

However, the view that a genocide must occur before a State’s compliance with the duty to prevent genocide can be assessed ignores the fact that this duty is a due diligence obligation of conduct. This conclusion is supported by the analysis of the evolution of the notion of obligations of conduct. Read the rest of this entry…

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Symposium on the Genocide Convention: Reflecting on the Genocide Convention at 70: How genocide became a crime subject to universal jurisdiction

Published on May 16, 2019        Author: 
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Editor’s note: This is the second post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the first post here.

The 9th of December 2018 marked the 70th anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 by the United Nations General Assembly. Article 6 of the Convention expressly grants adjudicatory jurisdiction to the territorial State (the State where the crime occurred) and to an international penal tribunal with the acceptance of the Contracting Parties. However, the textual content of the Article has not prevented the application of extraterritorial jurisdiction to the crime, including universal criminal jurisdiction. Reflecting on the Genocide Convention at 70, this post briefly analyses the development of universal jurisdiction over the crime of genocide. It explains how Article 6 has led to the application of the universality principle to the crime, and considers what can be learned from this phenomenon in the context of the legacy of the Genocide Convention.

The origins of the application of universal jurisdiction to genocide began decades before the drafting of the Genocide Convention in 1947. Read the rest of this entry…

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Symposium on the Genocide Convention: Codification of the Crime of Genocide – a Blessing or a Curse?

Published on May 15, 2019        Author: 
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Editor’s note: This is the first post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. 

Codification of the crime of genocide

A lot has been written about the origins of the crime of genocide that need not be repeated here. It is well known that Lemkin originally saw genocide as a broad concept, i.e. as different acts aimed at destroying the culture and livelihood of groups (Axis Rule in Occupied Power, pp. 79-82). Along the same lines, the 1946 UN General Assembly Resolution 96 described genocide as the denial of the right of existence of entire human groups – including political ones. However, the scope of the definition adopted in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide was significantly narrower. Cultural destruction and forcible population transfer were not included in the final text, protected groups were restricted, and jurisdictional reach limited. Yet, the Convention must be understood in the context of time. Indeed, having in mind the historical background, it is quite remarkable that the Convention was adopted at all – and broad support was generated by making concessions and imposing more stringent requirements.

Since the Genocide Convention defined and codified the crime of genocide as an independent crime, the definition of genocide has remained firmly settled in international law. Perhaps prematurely, the ICJ had already proclaimed its customary status in 1951, which was subsequently fortified by the verbatim reproduction of Article II of the Genocide Convention in the statutes of international ad hoc tribunals (here and here) as well as the Rome Statute of the ICC. This surely contributed to legal certainty and, from this perspective, codification can be viewed as a blessing for the relatively consistent application of the definition of genocide at the international level. Yet, simultaneously, it was a curse, preventing the crime from undergoing a development similar to that of crimes against humanity and even war crimes. This downside of the early codification could have been at least partially addressed through teleological and evolutive interpretation of the offence. The international tribunals, however, failed to realize the potential of the definition and thus contributed to frustrations surrounding prosecutions of genocide as well as to claims that genocide today is a redundant crime. Read the rest of this entry…

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Introducing Upcoming Blog Symposium on the Genocide Convention

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Editor’s note: Starting this afternoon, the blog will host a symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention.

On 9 December 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide in response to the Holocaust. It was designed to prevent and punish ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group’. At present, 150 states have ratified this treaty in the hope that current and future generations would not have to experience such heinous atrocities as committed during the Second World War.

Over the past seventy years, the legal concept of genocide has had time to evolve and mature. States and the international community have been given the impetus to prevent, prosecute and punish genocide to deliver on their historic promise that it would happen ‘never again’. The recent 70th anniversary of the Genocide Convention inspires reflection on its development and critical assessment of its legacy.

The Nottingham International Law and Security Centre, co-directed by Professors Mary Footer and Nigel White, organised and sponsored an interdisciplinary conference to mark the ‘70th Anniversary of the Genocide Convention’ in November 2018. In three panels, the participants focused on the conceptualisation of genocide, jurisdictional matters and universality, and responsibility. Three of the best papers, one for each panel, were then selected for this small blog symposium on EJIL: Talk!. Read the rest of this entry…

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To be a Party or not to be a Party: Malaysia’s envisaged ‘withdrawal’ from its (pending) accession to the Rome Statute

Published on May 14, 2019        Author:  and
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As inter alia confirmed by its recent judgments concerning the Afghanistan situation and the Al Bashir case, the ICC currently finds itself in truly turbulent times. What is more, is that the Rome Statute has turned out to be a real treasure trove when it comes to the international law of treaties. This includes, inter alia, the ratification of the Rome Statute by Palestine and the ensuing question as to whether the accession by Palestine ought to be counted towards the quorum of 30 ratifications of the Kampala Amendment so as to provide for its entry into force (see here), as well as other intriguing questions of treaty law raised by the Kampala compromise on the crime of aggression and the way in which to eventually amend the Rome Statute (see here). The withdrawals by Gambia and South Africa, which both later, albeit for different reasons, ‘withdrew from their respective withdrawals’ before they even became effective (see here and here), as well as Burundi’s withdrawal in October 2017 (see here), and most recently that by the Phillipines, again raised various issues of treaty law. 

Yet another question of treaty law relating to the Rome Statute is emerging. After having submitted its instrument of accession to the UN Secretary General on 4 March 2019 (see here), which in accordance with Art. 126 (2) of the Rome Statute means that Malaysia would have formally become a State Party on 1 June 2019, the Malaysian Prime Minister announced on 5 April 2019 the Malaysian government’s decision to, as he put it, ‘rescind its membership of the Statute’. Read the rest of this entry…

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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…

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ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals

Published on May 6, 2019        Author: 
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The Appeals Chamber of the International Criminal Court (ICC) has, this morning, issued what seems to be an extremely controversial decision on Head of State Immunity. At the time of writing, the full written judgment is not yet available in the appeal by Jordan against the decision of the Pre-Trial Chamber referring that state to the UN Security Council for failing to arrest then President of Sudan, Omar Al Bashir when he attended an Arab League Summit in March 2017.  However, in the oral and written summary of the judgment, delivered this morning by the President of the Court, Judge Chile Eboe-Osuji, the Appeals Chamber appears to have held that under customary international law, heads of state have no immunity from criminal prosecution international criminal courts. The provision in Article 27(2) of the ICC Statute that “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person” , according to the summary of the judgment:

“represents more than a stipulation in treaty law. The provision also reflects the status of customary international law, as it concerns the jurisdiction that an international criminal court is properly entitled to exercise.”

In so holding, the Appeals Chamber, once again changes the basis on which the ICC has held that the Sudanese (now former) President was not immune from the arrest in ICC states parties that he visited (for a quick overview of the Court’s previous inconsistent decisions, see this AJIL Unbound piece). Indeed the Appeals Chamber appears to explicitly endorse the much criticised decision of Pre-Trial chamber I in the Malawi Decision. The Summary states that:

“39. In this regard, the Appeals Chamber is fully satisfied that the pronouncements made by the Pre-Trial Chamber I in the Malawi Referral Decision — and those made by the Appeals Chamber of the Special Court for Sierra Leone in the case of Charles Taylor (who was indicted before that international court when he was the sitting President of Liberia) — have adequately and correctly confirmed the absence of a rule of customary international law recognising Head of State immunity before international courts in the exercise of proper jurisdiction. 
40. The effect of absence of a rule of customary law recognising Head of State immunity, in relation to international courts, is not readily avoided through the backdoor: by asserting immunity that operates in the horizontal relationship between States, in a manner that would effectively bar an international court from exercising its jurisdiction over the person whose arrest and surrender it has requested. The law does not readily condone something to be done through the backdoor, if the law has forbidden the thing to be done through the front door.”

This is stunning and appears to be deeply misguided. It is also, in my opinion, a very dangerous and unwise move for the Court to make. This reasoning appears to assert that parties to the Rome Statute, have, by creating the Court, taken away the rights of non-party states under international law. Dangerous because this reasoning is likely to stiffen opposition to the Court by non-parties. The John Bolton’s of this world and many people far more reasonable will point to this ruling to set out precisely why it is important to oppose this court and other international criminal courts. As I stated here many years ago, the Malawi decision was a terrible one.  It was very poorly reasoned and roundly criticised by others as well (see Bill Schabas and Dov Jacobs). It is extremely disappointing to see it resurrected. Not least because the issue of the immunity of heads of state before international criminal courts is not what is at issue in these cases. What was is at issue is the immunity of heads of states from arrest by other states acting at the request of an international criminal court. That the head of state may not have immunity before the international criminal court does not, without more, say anything about whether he or she may have immunity before a foreign state.

Read the rest of this entry…

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Afghanistan and the ‘interests of justice’; an unwise exercise?

Published on April 26, 2019        Author: 
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It has been more than a week now that a reference to the ‘interests of justice’ has highjacked the international criminal law blogosphere. The recent decision by the International Criminal Court’s Pre-Trial Chamber (PTC) to reject the Office of the Prosecutor (OTP)’s request for authorization to open an investigation in the Afghanistan situation, solely on the basis of interests of justice, not only has triggered ‘outcry’, but it has also united various scholars and experts from very different backgrounds. Characteristically enough, this decision has been described as problematic for the legitimacy of the Court, especially in a period in which the Court needs a credibility boosting (see Vasiliev), as legally wrong, either due to the PTC’s review without prior invocation of interests of justice by the Prosecutor (see Jacobs ) or due to its de novo review (see Heller ), and as dangerous for the entire feasibility of the project, given the message it conveys in cases of no cooperation. In simple words, there is a striking consensus that this is a very bad decision (see De Vos and Kersten).

Several legal aspects of the decision have been already addressed by a series of commentators (see Jacobs and Akande and Labuda) and in the interests of  justice for the readers, I will refrain from repeating them. I have also suggested in the past the revision of the very narrow OTP policy paper (see JICJ) and recommended the consideration of the interests of justice via the angle of a fairness based theory of prosecutorial legitimacy (see EJIL). However, for the purposes of this very short intervention I would like solely to question the judicial wisdom, or mainly the lack thereof, to utilize this controversial tool in this particular moment of time.  In other words, was the invocation by the judges of this concept for the very first time a wise exercise of their judgment or not?  

Read the rest of this entry…

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