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Announcement: Book Discussion on Guy Fiti Sinclair’s “To Reform the World”

Published on January 9, 2019        Author: 
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The blog is happy to announce that over the next week, we will host a discussion of Guy Fiti Sinclair’s book, To Reform the World: International Organizations and the Making of Modern States. Guy Fiti Sinclair  is a Senior Lecturer at Victoria University of Wellington Law School. His principal area of research and teaching is public international law, with a focus on international organisations law, the history and theory of international law, and international economic law. 

Guy will open the discussion this morning with an introduction to the text. This will be followed by posts from Jan Klabbers,  Megan Donaldson, Devika Hovell and Edouard Fromageau. Guy will close the symposium with a reply to the discussants.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in – comments will of course be open on all posts.

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The Decentralisation of International Crimes: A shift from the central criminal apparatus at the ICC?

Published on December 27, 2018        Author: 
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In her statement to the UN Security Council on November 2018, Fatou Bensouda vowed to search ‘outside of Libya’ for accountability of global actors in the migration context. This is one of the many moves by the Office of the Prosecutor (OTP) in their prosecutorial trajectory towards a more holistic approach. Such an approach widens the accountability net to capture crimes and potentially responsible actors, which would otherwise fall outside the geographical scope of the ICC’s “situations”.

In this post, I argue that this new approach, which has largely passed under the radar, is both desirable and justified. In what follows, I make three propositions. First, the ICC has by far adopted, in practice, a localised approach stressing system criminality. Second, in light of the globalisation of international crimes, this orthodox approach may be obsolete by failing to reflect and assert accountability comprehensively. The proliferation of cross-border transactions and the enhanced risk of transnational harms would require no less than modernising current prosecutorial strategies to properly respond to the changing faces of international crimes. The last proposition suggests that this new approach is justified and imminent out of practicality to fulfil the Court’s mandate.

The Orthodox Approach

Since the first case in Lubanga, it has been the customary practice of the ICC to localise liabilities. This means the Court would ordinarily zoom in on a particular (non-)State structural apparatus of power, and build a case theory upon it. The natural task of the Prosecution would be to identify and re-construct in abstracto the hierarchical structure that sustained the commission of crimes, and to translate it into respective responsibilities of criminal participants in concreto. Terms such as ‘organised apparatus’ and ‘hierarchical criminal network’ are common languages replete in the work of the Prosecution and Chambers. Read the rest of this entry…

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The Global Compact for Migration: to sign or not to sign?

Published on November 21, 2018        Author: 
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The Global Compact for Safe, Orderly and Regular Migration (final draft of 13 July 2018) is scheduled for adoption at an intergovernmental conference in Marrakesh in December 2018. But in the run-up to this conference, several states, beginning with the United States already in 2017, now followed by Austria, Hungary, the Czech Republic, and others, have announced that they will  not sign the text. Will refusal to sign be relevant in terms of international law? What is the juridical quality of the Compact, which legal consequences does it have, and which normative “ripples” might it deploy in the future? The controversy over the Compact sheds light on the legitimacy of international law-making processes and on the precarious normative power of international law.

A Brief Glance at the Contents

The Compact consists of four parts. Following the preamble, the first part contains, “Vision and Guiding Principles”. The second part, “Objectives and Commitments” contains 23 objectives, proceeded by a part on “Implementation” and the final section “Follow-up and Review”. The Compact purports to set out “a common understanding, shared responsibilities and unity of purpose regarding migration” (para. 9). The purpose is mainly to secure that migration “works for all” (para. 13).

The Compact’s “guiding principles” are, inter alia, people-centeredness, international cooperation, national sovereignty, rule of law and due process, and sustainable development (para. 15). These are well-established and to a large extent also legally entrenched principles. The 23 “objectives” are partly generally recognised such as saving lives (objective 8), respond to smuggling (objective 9), or eradicate trafficking (objective 10). Some mainly correspond to interests of states of origin (such as promoting transfer of remittances, objective 20), others basically satisfy interests of receiving states (such as facilitating return and readmission (objective 21). In substance, the Compact partly repeats international law as it stands or refers to existing instruments (see notably preamble para. 2), partly contains platitudes, and partly contains novel ideas. Read the rest of this entry…

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Lost in Space? Gaps in the International Space Object Registration Regime

Published on November 19, 2018        Author: 
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Despite having been operational for over 15 years, the satellites NSS-6 and NSS-7 are missing from the United Nations Register of Objects Launched into Outer Space (‘International Register’). Just as we do not accept unregistered cars on our roads, we should not accept unregistered space objects in orbit. Registration ensures that the state responsible for a specific space object can be readily identified, and, if necessary, presented with a claim under the Convention on International Liability for Damage Caused by Space Objects.

For this reason, under the international space object registration regime, all space objects must be registered by a state. So which state is shirking their duty to submit NSS-6 and NSS-7 to the International Register?

The two satellites were built by Lockheed Martin Commercial Space Systems (‘Lockheed Martin’), a United States-based corporation, for New Skies International NV (‘New Skies’), a Dutch corporation. Launch services were provided by Arianespace SA (‘Arianespace’), a French corporation. Both launches took place from French territory. Once in orbit, ownership of the satellites was transferred from Lockheed Martin to New Skies. So at least three states are involved – and the question is which of these states should register NSS-6 and NSS-7 (spoiler alert: I think it’s the Netherlands). This episode is used as a case study to illustrate the ambiguities and gaps that exist in the international space object registration regime. I conclude the post by making a proposal which seeks to find a way to close these gaps. Read the rest of this entry…

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Looking for Middle Ground on the Immunity of Al-Bashir? Take the Third ‘Security Council Route’

Published on October 23, 2018        Author: 
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On 10-14 September, the Appeals Chamber (AC) of the International Criminal Court (ICC) held hearings in the appeal of Jordan against the decision of Pre-Trial Chamber (PTC) II entitled ‘Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender o[f] Omar Al-Bashir’ of 11 December 2017’. As Talita De Souza Dias aptly showed in her recent post, one of the most debated issues during the hearings was whether the Security Council (SC) can implicitly waive the immunities of non-party States’ high-ranking officials when it refers a situation to the ICC. I agree with Talita’s findings on the permissibility of implicit derogations from immunities but I will argue that it is not Article 27(2) that renders the immunity of Al-Bashir inapplicable at the domestic level. Rather, it is the effect of Article 89 (1) on ‘Surrender of persons to the Court’ that makes his immunity of no avail before a domestic jurisdiction enforcing the ICC arrest warrant. In making this argument, I will propose a variant of the ‘Security Council Route’ that is different from those hitherto recognised in the literature or by the ICC.

Readers will recall that there are two main theories regarding the (in)applicability of immunities in domestic proceedings for arrest and surrender to the ICC of a state official ordinarily entitled to international law immunities. First, there is the theory that there is a customary exception to the immunity of heads of States for ‘proceedings before certain international criminal courts’. Read the rest of this entry…

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The Spectre of Trexit: Proposal to Reintroduce the Death Penalty in Turkey

Published on October 10, 2018        Author: 
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On 1 October 2018, just ten days before the European and World Day against the Death Penalty, the only elected member of parliament of the BBP – a Turkish ultra nationalist party – submitted a draft legislation proposal to Parliament asking for the reintroduction of the death penalty in Turkey. The proposal reintroduces the death penalty for the murder of children and women through sexual means and for killings carried out as part of individual or organised acts of terrorism.

In its justification for the proposal, Burhan Ekinci, the MP in question, highlights the need to restore justice for victims of these hideous crimes, and the need to enhance the trust of the Turkish public in the fairness of the Turkish criminal justice system.  In his proposal, Ekinci argues there is no death penalty in Turkey because of ‘international agreements’ (in quotation marks) and what he labels ‘domestic dynamics’. Ekinci also expresses his disgust for the dishonesty of so-called humanism which, he claims, puts the rights of perpetrators above those of the victims of the most serious crimes. 

This proposal, of course, may not find support in the Turkish Parliament and fade away. Evidence, however, shows that the proposal should not be taken lightly. If it does succeed, it can be Turkey’s Trexit, ending Turkey’s long standing relationship with European institutions.

Read the rest of this entry…

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Palestine Sues the United States in the ICJ re Jerusalem Embassy

Published on September 30, 2018        Author: 
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On Friday Palestine instituted proceedings against the United States of America before the International Court of Justice, claiming that the US violated the Vienna Convention on Diplomatic Relations by moving its embassy to Israel from Tel Aviv to Jerusalem. The application is here, the ICJ’s press release here; this is how the press release summarizes Palestine’s claim:

It is recalled in the Application that, on 6 December 2017, the President of the United States recognized Jerusalem as the capital of Israel and announced the relocation of the American Embassy in Israel from Tel Aviv to Jerusalem. The American Embassy in Jerusalem was then inaugurated on 14 May 2018.

Palestine contends that it flows from the Vienna Convention that the diplomatic mission of a sending State must be established on the territory of the receiving State. According to Palestine, in view of the special status of Jerusalem, “[t]he relocation of the United States Embassy in Israel to . . . Jerusalem constitutes a breach of the Vienna Convention”.

As basis for the Court’s jurisdiction, the Applicant invokes Article 1 of the Optional Protocol to the Vienna Convention concerning the Compulsory Settlement of Disputes. It notes that Palestine acceded to the Vienna Convention on 2 April 2014 and to the Optional Protocol on 22 March 2018, whereas the United States of America is a party to both these instruments since 13 November 1972.

In brief, Palestine argues that various articles of the VCDR, especially Article 3 thereof, require that the functions of the diplomatic mission be performed ‘in the receiving state,’ which means that the mission must be established in the receiving state. Jerusalem is not Israeli territory, and therefore moving the embassy there meant that it was not established in the receiving state. Ergo, there was a violation of the VCDR.

This case raises numerous issues, some obvious, some not. There are many objections that the US could raise, and will inevitably raise.

Read the rest of this entry…

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Painful Relations between the Council of Europe and Russia

Published on September 28, 2018        Author:  and
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During the forthcoming October part-session of the Parliamentary Assembly of the Council of Europe (PACE), it will vote on amending its rules of procedure. Normally such technical changes do not attract much public interest but this vote certainly will. Due to inappropriate pressure, considered by many as blackmail, the Russian (parliamentary) authorities have suggested that the Assembly’s rules ought not to permit the exclusion of national delegations from the Assembly. In other words, the Assembly should take away from itself its ultimate sanction, namely excluding a parliamentary delegation of the state that refuses to comply with Council of Europe’s fundamental values: human rights, the rule of law and pluralistic democracy. This can only be done once attempts to admonish or reprimand a state which breaches the rules of the democratic club have failed.

That said, the Committee of Ministers, the other statutory body of the Council of Europe, can suspend or expel a state which seriously violates the club’s rules. Expulsion is however a politically complex exercise. Article 8 of the Organisation’s Statute specifies that if a member state seriously violates founding principles of the rule of law and human rights, the Committee of Ministers can so decide. Read the rest of this entry…

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The ‘Security Council Route’ to the Derogation from Personal Head of State Immunity in the Al-Bashir Case: How Explicit must Security Council Resolutions be?

Published on September 19, 2018        Author: 
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Last week, the Appeals Court of the International Criminal Court (ICC, the Court) held hearings in relation to Jordan’s Appeal from a decision of Pre-Trial Chamber (PTC) II holding that it has failed to cooperate with the Court in the arrest and surrender of Sudan’s President, Omar Al-Bashir. As is well known, Al-Bashir is presently subject to an ICC Arrest Warrant for committing war crimes, crimes against humanity and genocide in Darfur, following the referral of the situation by the Security Council (SC) to the Court. He has made a series official visits to Jordan and other states parties to the ICC Statute (the Rome Statute). However, none of those states has dared to arrest him to date. Their principal argument is that Al-Bashir enjoys personal immunities from foreign domestic jurisdiction under treaties and customary international law, that these are not covered by the removal of immunity in Art. 27(2) of the Rome Statute, and are thereby safeguarded by Art. 98 of the Statute.

The hearings, together with the Appeals Chamber’s decisions leading to them, represent a unique moment in the history of international criminal law for two main reasons. First, this is the first time in which the ICC has invited, accepted and heard submissions from leading international law scholars as amici curiae, as well as engaged in direct (and sometimes heated!) oral discussions with them. Secondly, some of the legal and policy issues discussed in the hearings are of fundamental importance to international criminal law and public international law in general. They include questions such as the extent of the SC’s powers, a possible customary international law exception to personal immunities before international criminal tribunals, and the practical importance of preserving such immunities for international peace and security. Thus, watching the hearings online has certainly kept some of us entranced during the entire week.

However, aside from the special role attached to academic commentary and from the systemic issues discussed in the hearings and in the written observations, one question seems to have been at the heart of the debates on Al-Bashir’s immunities. This question is whether the SC can implicitly derogate from personal immunities otherwise applicable under treaties or customary international law, or whether it must do so explicitly. Indeed, all parties and participants seem to agree that the SC has the power to displace personal immunities and other rules of treaty or general international law, except for jus cogens norms. Yet they disagree as to how clear the Council must be in order to do so. Read the rest of this entry…

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The Bolton Speech: The Legality of US Retaliatory Action Against Judges and Officials of the International Criminal Court?

Published on September 14, 2018        Author: 
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The speech given on Monday by John Bolton, US National Security Adviser, threatening action by the US against the International Criminal Court (ICC) in response to potential ICC investigation of US personnel with regard to the situation in Afghanistan has generated a lot of interest (see herehere, here and here). There are a plethora of policy and political issues raised by the looming clash between the ICC and the US which have been set out on other blogs in recent days (here and here). In terms of the legal issues, we are back to the old debate about whether the ICC is entitled to exercise jurisdiction over nationals of non-party states, in the absence of a referral by the UN Security Council (on which see this 2003 article of mine and this recent post in response). This post addresses whether the actions that Bolton says the US will take against Judges and ICC officials would be lawful under international law. Bolton says that the US:

“… will respond against the ICC and its personnel to the extent permitted by U.S. law.  We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”

In particular, I wish to focus on whether the US would violate international law by banning ICC judges and officials from entering the US. Even if the US were to seek to prosecute ICC personnel, it is unlikely that it would obtain custody over them (unless other states cooperate with the US). The primary effect of such attempted prosecutions would be to prevent those people from entering the US, in fear of being arrested.

Barring ICC personnel from entry into the US is a significant issue because (i) the meetings of the ICC Assembly of States Parties are held at the United Nations Headquarters in New York every other year; (ii) the ICC Prosecutor goes to the Security Council, at its request, to report to the Council on the situations referred to the Court by the Council; and (iii) the President of the ICC presents a report, on the work of the Court, to the UN General Assembly annually. All of these activities and visits will have to stop if the threat by John Bolton (either to prosecute or to ban ICC judges and officials) were to be carried out.

Does the US have International Legal Obligations Preventing  it from taking Retaliatory Action  Against ICC Personnel?

To the extent that US retaliatory actions against ICC personnel  take place within the US, the starting position would be the US can control entry into the US, prosecute people who in its view threaten US security (probably based on the protective principle of jurisdiction) and sanction funds in the US unless such acts are inconsistent with contrary obligations under international law.

Read the rest of this entry…

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