Home Archive for category "International Criminal Law" (Page 26)

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…

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The Genocide Convention and the Arrest Warrants Issued by the ICC

Published on January 31, 2011        Author: 

The Human Rights and International Criminal Law Online Forum of the  Sanela Diana Jenkins Human Rights Project at UCLA Law School is hosting an online debate on (i) the obligations of Contracting parties to the Genocide Convention to implement arrest warrants for genocide issued by the International Criminal Court and (ii) the obligations of African Union States Parties to implement ICC arrest warrants. The debate is, of course, inspired by the arrest warrant issued by the ICC for Sudanese President Omar Al Bashir, which has been discussed on this blog on many occasions (see post by Marko here, and by me and others here, herehere and here, here).  The UCLA Forum is supported by the Office of the Prosecutor of the ICC and I think the questions being debated have been posed by the ICC Prosecutor.

The “debate” on the Forum is initiated by opinion pieces written by five “invited experts”: Paola Gaeta (University of Geneva); Makau Mutua (Buffalo Law School); Bill Schabas (National University of Ireland, Galway); Goran Sluiter (Amsterdam Law Faculty) and me.  Most of us accept (following the decision of the International Court of Justice in the Bosnian Genocide Convention Case) that, in principle, the Genocide Convention provides an alternative basis on which to ground the obligation to execute arrest warrants issued by the International Criminal Court. I first discussed this possibility nearly two years ago in a post on this blog and also in a piece in the May 2009 issue of the Journal of International Criminal Justice. The point now seems to be accepted by others. However, there are still three points of contention relating to obligations under the Genocide Convention:

First of all, does the obligation to cooperate with the ICC which derives from the genocide convention apply only to States parties to the ICC or does it extend also to non-parties to the Rome Statute who are however parties to the Genocide Convention. Read the rest of this entry…

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ICC Prosecutor’s Inaccurate Statements about the Bashir Arrest Warrant Decision

Published on July 19, 2010        Author: 

In an article in the Guardian Newspaper last Friday, the ICC Prosecutor, Luis Moreno-Ocampo has called on the world to take action to arrest Sudanese President Bashir following the recent decision of the Pre-Trial Chamber (PTC) of the ICC to issue arrest warrants for him on charges of genocide (see earlier post). However, in his piece, the Prosecutor makes statements about the findings of the PTC which are not only inaccurate but are shocking in their inaccuracy. Read the rest of this entry…

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ICC Issues Warrant of Arrest for Bashir on charges of Genocide

Published on July 12, 2010        Author: 

The  Pre-Trial Chamber of the ICC has today issued a second warrant of arrest for Sudanese President Omar Al Bashir, this time on charges of Genocide. This decision is not unexpected and follows from the Appeals Chamber decision of February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Bashir with respect to the charge of genocide in Darfur. The Appeals Chamber held that the Pre-Trial Chamber (PTC) has applied the wrong test in considering whether there were “reasonable grounds” to believe that genocide had been committed under Art. 58(1) of the Rome Statute which deals with arrest warrants (see Marko’s comment on that test here). It remanded the decision back to the PTC which has now reached a new decision.

Once again, this decision fails to deal with questions regarding the possible immunity of Bashir. I continued to be amazed that the ICC chooses to ignore this issue. The point is not that I think Bashir has immunity as I have written elsewhere that I do not think he does have immunity from arrest in the territory of ICC parties (see here). The point is that the Court does not even consider the issue at all and that it will be issuing a request for surrender of Bashir without considering whether Article 98 of the Statute prevents it (the Court) from doing so. I considered this issue in an earlier post where I stated that:

 Art. 98 of the Statute says that “the Court may not proceed with the request for surrender” which would require the requested State to act inconsistently with its immunity obligations. This is a provision which the Court itself has an obligation to take up. The fact that it is not raised by the Prosecution should be irrelevant. There is a particular obligation on the Court in this sort of issue as requests for arrest warrants will usually come to the Court with just the prosecution being heard. In addition, Art. 98 is a provision which is designed not just for the benefit of the accused but for the benefit of the State of the accused and, as importantly, for the benefit of other States who may be put in the position of having inconsistent obligations were the matter not addressed. Thus, the Court ought to address this issue at the earliest opportunity. In fact a failure to address it and the issuance of a request for surrender (as the ICC has done in the Bashir case) may be a breach by the Court of its obligations under Art. 98 in circumstances where that provision would prevent such a request.

Now that the ICC has added a genocide charge to the case, I would also like to take the opportunity to revisit a question that I asked a year ago: would the addition of a genocide charge to the Bashir arrest warrant change the position on immunity? In that post I analysed the International Court of Justice’s 2007 merits judgment in the Bosnian Genocide Convention Case, where the Court held (at paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. Read the rest of this entry…

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More Thoughts on “What Exactly was Agreed in Kampala on the Crime of Aggression”

Published on July 2, 2010        Author: 

Astrid Reisinger Coracini is a Lecturer at the Institute of International Law and International Relations, University of Graz and Executive Director of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law. She was in Kampala as part of the delegation of Austria. Her publications include: ‘Amended Most Serious Crimes”: A New Category of Core Crimes Within the Jurisdiction but out of the Reach of the International Criminal Court?’, 21 Leiden Journal of International Law 2008, 699-718; ‘Defining the Crime of Aggression for the Rome Statute of the International Criminal Court’, in: Stahn & van den Herik (eds.), Future Perspectives on International Criminal Justice (2010) 425-49.

 In an earlier post Dapo Akande asked: “What Exactly was Agreed in Kampala on the Crime of Aggression?”, a question that indeed mandates some reflection. The Resolution on the Crime of Aggression is a sophisticated conglomerate of four documents of divergent legal value: an enabling Resolution, amendments to the ICC Statute that are subject to ratification or acceptance, amendments to the Elements of Crimes and “Understandings”. Let aside the complexity of these texts, legal interpretation is challenged by the fact that there was no plenary debate on the last three versions of the President’s non-paper and the Draft Resolution. The preparatory works are therefore of limited help with regard to the interpretation of some parts of the Resolution.

Inspired by the vivid online discussion on the crime of aggression, I would like to contribute some preliminary thoughts (which represent my personal views and do not necessarily reflect the views of the Austrian delegation) with a particular focus on aspects of the conditions under which the ICC may exercise its jurisdiction over the crime of aggression and the amendment procedure.

 1. Further delay for the Court’s exercise of jurisdiction over the crime of aggression

In 1998, when the crime of aggression was listed as one of the most serious crimes of concern to the international community as a whole for which the ICC has jurisdiction (Art. 5 (1) ICC Statute), the Court’s exercise of jurisdiction was delayed until a time when the Assembly of States Parties would adopt a provision defining the crime and setting out the conditions for the Court’s exercise of jurisdiction (Art. 5 (2) ICC Statute). The provision adopted in 2010 further postpones the ICC’s exercise of jurisdiction. “The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendment by thirty states parties” (common para. (2) of Art. 15bis and Art. 15ter). In addition, the jurisdictional regime requires activation by a decision to be taken after 1 January 2017 (common para. (3) of Art. 15bis and Art. 15ter). This further delay is unfortunate, but limited by an acceptable time-span. Any solution to adopt the definition and defer deliberations of the conditions (or parts of them) would have entailed the potential threat of infinite negotiations. In its final form, the package adopted in Kampala comprises all relevant substantive and procedural issues. The activating decision should be a merely formal act, if states parties stand behind the consensus adoption and, especially, if a significant number of states parties will have ratified the amendments by then.

 2. Who is bound and who is covered by the ICC’s exercise of jurisdiction over the crime of aggression?

Entry into force according to Art. 121 (5) Read the rest of this entry…

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What Exactly was Agreed in Kampala on the Crime of Aggression?

Published on June 21, 2010        Author: 

The ICC review conference held in Kampala earlier this month decided, by consensus, to amend the ICC Statute so that the ICC can exercise jurisdiction over the crime of aggression once the amendments come into force. The final text of the amendments to the ICC Statute on the Crime of  aggression are now available on the ICC website (see here). However, there seems to be some (significant) confusion as to what exactly was agreed on the crime  of aggression in Kampala. There is also room for argument as to whether some of the decisions made in Kampala will be legally effective, in other words it is possible that they will not have the legal effect the drafters sought to achieve. This post will examine briefly set out what was agreed and highlight those areas where there is significant ambiguity surrounding the agreement. In particular I want to discuss issues surrounding the definition of aggression, when the aggression amendments will become operational and most importantly who will be bound by the amendments.

Read the rest of this entry…

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An end to war through a court of law? Perhaps — and in time

Published on June 14, 2010        Author: 

I had hoped to write my final post on the ICC Review Conference sooner, but the British Airways strike resulted in a longer, more roundabout route back to Western Canada. Plus there’s the jet lag. (My apologies Julian Ku).

The key issue with respect to the aggression amendments was always going to be the conditions for the exercise of jurisdiction, albeit that mid-way through the Review Conference, the jurisdiction issue merged with an entry into force discussion, resulting in some confusion among delegates at several points during the negotiations, and a final result that merges the two. Read the rest of this entry…

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Waiting for a confirmed development in the ICC aggression negotiations

Published on June 10, 2010        Author: 

Day 8 of the Review Conference for the International Criminal Court saw the wrapping up of the work of the Working Group on the Crime of Aggression (WGCA), leaving the aggression negotiations to be conducted through “informal informals”, bilateral discussions, and plenary sessions. The move from working group to plenary will also be accompanied by a change of chair, with the President of the Assembly of States Parties, Ambassador Christian Wenaweser of Liechtenstein, taking over the reins from HRH Prince Zeid, the Chair of the WGCA (and a previous ASP President). Wenaweser is well aware of the positions and divisions among states, having previously chaired the Special Working Group on the Crime of Aggression (SWGCA) within which the aggression proposals were developed for the Review Conference. The question on the minds of many delegates is whether these negotiations will go late into the night on Friday in search of an acceptable text (and thus causing many of us to miss the first match of the much anticipated World Cup in South Africa). Read the rest of this entry…

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The Aggression Negotiations at the ICC Review Conference

Published on June 8, 2010        Author: 

We are now in Day 7 of the Review Conference for the International Criminal Court in Kampala, with yesterday evening being a very active period in the negotiations as evidenced by the release this morning of a revised Conference Room Paper on the Crime of Aggression (CRP Rev. 2) and a proposal by Canada to complement that already made by Argentina, Brazil and Switzerland (the ABS proposal). As predicted, much of Days 5 and 6 of the Review Conference were concerned with the setting out of initial positions on the crime of aggression, with only an hour being spent on the discussion of other amendments during Day 5. A slightly revised version of the proposed amendments to article 8 were adopted with ease on Friday, at least at the working group level, subject to the discussion concerning the correct amendment procedure, but division remains as to whether or not to delete article 124 from the Statute, with the coordinators of the Working Group on Other Amendments suggesting that further informal discussions are needed before action is taken. Several questions of treaty law have also attracted interest, with the Japanese delegation reminding delegates that the Review Conference is concerned with the negotiation of amendments to an existing treaty that has its own specific requirements and not the negotiation of policy issues upon a blank canvas. The role of non-states-parties and their potential influence on the future interpretation of these amendments, if adopted, also continues to be of interest. Read the rest of this entry…

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The End of Stocktaking and on to the Main Event

Published on June 3, 2010        Author: 

We continue with our coverage of the Review Conference for the International Criminal Court, (see here, here and here), taking place at a resort on the shores of Lake Victoria, outside Kampala, Uganda (and well-insulated from the hustle and bustle of everyday life). Readers may be interested in comments on the stocktaking exercise that has occupied the formal agenda of the conference for the past two days. Of course, the real action is taking place informally, as the stocktaking exercise has allowed state delegations to engage in behind-the-scenes bilateral consultations and small group discussions to determine possible areas of agreement for the crime of aggression deliberations (which is clearly the main event at this conference) and to get a sense of each others’ bottom lines and end result objectives. As indicated in the conference Journal, state representatives have also been meeting, one after another, with Jordan’s Prince Zeid, the Chair of the Working Group on the Crime of Aggression, who will likely have inquired as to their current and possible positions in advance of Friday’s scheduled discussions. Read the rest of this entry…

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