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Home International Organisations Archive for category "Security Council"

A Prudential, Policy-Based Approach to the Investigation of Nationals of Non-States Parties

Published on May 30, 2018        Author:  and
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On 22 May, Palestinian Foreign Minister Riyad al-Maliki submitted a referral to the International Criminal Court (ICC) regarding the situation in Palestine since 13 June 2014, with no end date.  This follows the Prosecutor’s statements on 8 April and 14 May responding to the situation on the Gaza border (which were themselves unusual, if not unique, examples of OTP practice).  As with the proposed investigation of US nationals in the Situation in Afghanistan, the Myanmar and Bangladesh issue that is under consideration and the investigation of Russian conduct in Georgia and Ukraine, the question of whether, and if so how, the ICC may exercise jurisdiction over nationals of non-state parties absent a Security Council referral is pressing once again.

By proceeding with investigation of Russian conduct in Georgia and Ukraine, Israeli conduct in Gaza and the West Bank, and American conduct in Afghanistan, legal issues which arise upon exercise of the Court’s enforcement jurisdiction will foreseeably give rise to challenges both before the ICC, as well as in national jurisdictions during surrender proceedings. This contribution suggests that a prudential, even cautious, policy-based approach to the investigation of nationals of non-states parties may help the OTP avoid pitfalls resulting from proceeding without sufficient regard to non-states parties’ jurisdictional objections. Read the rest of this entry…

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Prolonged Occupation or Illegal Occupant?  

Published on May 16, 2018        Author: 
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An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. Read the rest of this entry…

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The Security Council and Climate Change – Too Hot to Handle?

Published on April 26, 2018        Author: 
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Introduction

The Security Council, the only body of the United Nations that can adopt binding coercive measures, has so far been reluctant to train its sight at climate change. As the consequences of climate change become ever more severe, an important question is therefore whether the Security Council will address the security implications of climate change.

Article 24 of the UN Charter gives the Security Council primary responsibility for the maintenance of international peace and security. The Council’s classic domain has been interstate armed conflict. Starting in the early 90s, the Council began to show a greater willingness to prescribe measures also in internal situations of humanitarian emergency, thereby articulating a new approach to what constitutes a threat to international peace and security (clearly described in Presidential Statement S/23500, 31 January 1992).

The purpose of this post is to examine whether we can expect a similar evolution when it comes to climate change. In doing so, we must distinguish between three different ways in which the Council can address climate change.

First, the Council can address climate change as part of its general response to conflict situations. Ongoing hostilities in Libya, South Sudan, Yemen and Syria were all catalyzed by extraordinary droughts, storms and extreme flooding, which caused economic and political turmoil and instability. Yet, all these conflicts are recurring items on the Security Council’s agenda. Seen this way, the Council has already shown its aptitude to deal with the immediate security implications of climate change as part of its conflict management agenda.

Second, the Council can proscribe targeted measures to prevent climate change as an independent driver of conflict. This is arguably very different than merely tackling the violent effects of climate change without addressing climate directly. Third, the Council can address security implications of climate change occurring outside of conflict. This is an especially acute problem for most of the so-called Small Island Developing States (SIDS), whose very existence are threatened by sea-level rise, hurricanes and dwindling natural resources. Their remote geographical location and small populations suggest that the situation in those states could gradually deteriorate without causing much conflict or international instability.

The focus of the remainder of the post will be on the Council’s ability to address climate change directly, both as an independent driver of or unrelated to conflict. Read the rest of this entry…

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Unlawful Reprisals to the Rescue against Chemical Attacks?

Published on April 12, 2018        Author: 
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Donald Trump has threatened Syria with a ‘big price to pay’ for an alleged chemical attack on 7 April in a Damascus suburb. Last year, in similar circumstances, Trump authorized an attack of 59 Tomahawk missiles that reportedly killed 9, including 4 children. The French and German governments responded with a joint press release finding it a ‘just and proportionate’ response. They did not say ‘lawful’–nor could they.

Armed reprisals are uses of military force that follow an incident, usually to punish or in retaliation or revenge and which do not fit the exception to the prohibition on the use of force for self-defence. See the same conclusion here  and here. Reprisals need Security Council authorization to be lawful. The Security Council has never authorized a reprisal and will not in the case of Syria.

In 1970, the General Assembly stated clearly in its Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States that among the fundamental rights and duties of states, is the ‘duty to refrain from acts of reprisal involving the use of force’ against other States. The International Court of Justice found in its 1994 advisory opinion on the Legality of Threat or Use of Nuclear Weapons that ‘armed reprisals in time of peace […] are considered to be unlawful.’ In the Oil Platforms case, it further held that US attacks on Iranian sites were not lawful acts of self-defense because of their retaliatory nature.

Thus, unauthorized reprisals are always unlawful Read the rest of this entry…

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African Union v International Criminal Court: episode MLXIII (?)

Published on March 23, 2018        Author: 
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It never gets boring. At the latest African Union (AU) summit, which wrapped up recently in Addis Ababa, the AU-ICC controversy went into its next round; this time, however, with a rather constructive proposal for easing the tensions that had built up over the past decade or so as a result of the uneven application of international criminal justice. In this post I will reflect upon the implications of the recent summit decision for the future of international criminal justice, including the debate about immunities, the consequences of potential arrest warrants for high-ranking Burundian officials, as well as the debate about an African mass withdrawal. 

Previous AU responses to what was being perceived as neo-colonial interference on the part of the International Criminal Court had not been very constructive – ranging from issuing shrill statements calling the Court “a political instrument targeting Africa and Africans“, threatening mass withdrawal, blocking the opening of the ICC Liaison Office in Addis, and announcing non-cooperation in the arrest of suspects. This time, by contrast, the AU opted for a more constructive, de-escalatory approach, using the tools of international law – instead of international politics – to make its voice heard: It announced that it would seek, through the UN General Assembly, an advisory opinion from the International Court of Justice (ICJ) on the question of immunity. The AU also decided that it would seek an interpretative declaration from the Assembly of States Parties (ASP) on how Article 27 of the Rome Statute of the ICC, which removes immunity for state officials, and Article 98, which addresses cooperation with respect to a waiver of immunity and consent to surrender relate to one another, and the related question of how a Security Council referral affects the enjoyment of immunities of officials of non-state parties. The proposal to seek an advisory opinion from the ICJ was first made several years ago. It is not clear why this proposal was shelved in the meantime. Perhaps the AU feared the ICJ would find in favor of the ICC’s position. Read the rest of this entry…

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Security Council Resolutions as Evidence of Customary International Law

Published on March 1, 2018        Author: 
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In 2012 the International Law Commission began to address one of the last major uncodified areas of public international law: how norms of customary law (CIL) are to be identified.  The exercise at the ILC has not been an easy one.  States commenting in 2016 on the Commission’s “draft conclusions” expressed concerns on a variety of issues.  One of the most contentious was the role of international organizations (IOs) in the creation of custom. 

The topic has been the subject of academic conferences at the University of Manchester, the University of Michigan and elsewhere, as well as a growing volume of law review commentary (see here, here, here, here and here).  And in early January, the United States submitted comments on the draft conclusions that were, to put it mildly, opposed to any role for IOs.  Closer to home, Kristen Boon, Isaac Jenkins and I have just published an article on the role of the Security Council in generating evidence of custom related to non-international armed conflicts (NIACs), an area of intense Council involvement. In this post I’ll describe the ILC’s view of IOs, the United States’ response, and then our affirmative arguments specific to the Security Council. Read the rest of this entry…

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The Immunity of al-Bashir: The Latest Turn in the Jurisprudence of the ICC

Published on November 15, 2017        Author: 
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On 6 July 2017, the Pre-Trial Chamber of the ICC issued a new decision in the case of Omar al-Bashir. The Chamber ruled that South Africa failed to comply with its obligation to arrest the President of Sudan by welcoming him for a summit of the African Union two years earlier. This decision did not come as a surprise because the Court had repeatedly ruled before that al-Bashir does not enjoy immunity from arrest and that all states parties have an obligation to arrest him. What makes the decision curious, however, is that the Chamber again adopted a new position on the immunity of al-Bashir:

  • In 2011, the Chamber found that al-Bashir does not enjoy immunity because of an exception under customary international law for the prosecution of international crimes by an international court like the ICC. According to the Chad and Malawi decisions, no sitting Head of State could ever claim immunity before the ICC (for reactions see: here and here).
  • In 2014, the Chamber revised its position and concluded that the Security Council implicitly waived his immunity in Resolution 1593. Al-Bashir would not enjoy immunity because the Council issued a binding decision under Chapter VII of the UN Charter obliging Sudan ‘to cooperate fully with … the Court’ (for reactions to the DRC decision see: here and here).
  • In it most recent decision of 6 July 2017, the Chamber found that al-Bashir does not enjoy immunity because the Security Council’s referral placed Sudan in a similar position as a state party. Al-Bashir would not possess immunity from arrest because of Article 27(2) of the Statute which provides that immunities ‘… shall not bar the Court from exercising its jurisdiction’.

In this post I examine the Chamber’s most recent decision on the case of al-Bashir and make a number of critical observations. Read the rest of this entry…

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Repressing Migrant Smuggling by the UN Security Council and EU Naval Military Operation Sophia: Some Reflections on Jurisdiction and Human Rights

Published on November 3, 2017        Author: 
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On 5 October 2017, the UN Security Council through S/RES/2380 (2017) renewed for the second time the enforcement powers that S/RES/2240 (2015) granted to states in order to fight migrant smuggling and human trafficking off the coast of Libya.

In a previous blog post that I wrote here in October 2015, I concluded by wondering what the effects will be of S/RES/2240 (2015) and by questioning, from several standpoints, the use of military action against migrant smugglers and human traffickers and in the overall management of the migrant crisis.

These UN Security Council resolutions provide the legal basis for the EU naval operation mandated with the task of disrupting the business model of migrant smugglers and human traffickers in the Southern Central Mediterranean: EU NAVFOR MED Operation Sophia. Established in 2015 by Council Decision (CFSP) 2015/778, its mandate has been renewed until 31 December 2018.

Criticisms of Operation Sophia are widespread and concerns over its failure to meet its objectives and its human rights implications are no secret (see among others Meijers Committee and Not so Humanitarian after All). On the occasion of the second renewal of the S/RES/2240 (2015), it’s time to take a closer look at Operation Sophia’s results, at the legal shortcomings of the web of legal instruments regulating its actions, and the various consequences these have had. Read the rest of this entry…

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Extradition: English Court refuses to extradite alleged génocidaires to Rwanda–will a domestic prosecution follow?

Published on October 2, 2017        Author: 
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The Divisional Court of England and Wales has dismissed the appeal of the Government of Rwanda in the high-profile extradition proceedings against five alleged génocidaires in the case of Rwanda v Nteziryayo and ors. The men will not be extradited to Rwanda to stand trial for genocide and it now appears that, if they are to be tried at all, it must be in the UK.

The judgment of the Divisional Court affirmed the decision of District Judge Emma Arbuthnot on 22 December 2015 to discharge the extradition requests on two grounds: double jeopardy–one of the requested persons had been tried in a domestic ‘Gacaca’ court—and article 6 of the European Convention on Human Rights. The Judge accepted the evidence of the requested persons that there was a real risk they might suffer a flagrant breach of their rights to a fair trial if extradited to Rwanda.

The background to this latest decision reveals the evolving measures employed by the international community to promote justice and end impunity for international crimes. 

Following the genocide in Rwanda in 1994, the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) which was intended to bring to trial those most responsible for the genocide and other serious violations of law perpetrated in Rwanda. Security Council Resolution 1824, passed on July 2008, called for the completion of the work of the ICTR by 2010. Read the rest of this entry…

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Why the ICC won’t get it right – The Legal Nature of UN Security Council Referrals and Al-Bashir Immunities

Published on July 24, 2017        Author: 
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As readers of this blog probably know, the issue of personal immunities of Sudanese President Al-Bashir is highly controversial (see here, here, here, here, here, here, here and here). In particular, previous rulings by the ICC’s Pre-Trial Chambers have been criticized for their incorrect, inadequate and/or inconsistent reasoning for concluding that personal immunities do not apply in case of Sudanese President Omar Al Bashir.

On 6 July 2017, the Pre-Trial Chamber II issued yet another set of arguments for the same conclusion (here), while Judge Marc Perrin de Brichambaut issued a minority opinion disagreeing with the majority’s reasoning (here). In essence, the PTC II, by majority, held that

because the rights and obligations as provided for in the Statute, including article 27(2), are applicable to Sudan (by imposition of the Security Council acting under Chapter VII of the UN Charter), the immunities of Omar Al-Bashir as Head of State do not bar States Parties to the Rome Statute from executing the Court’s request of his arrest and surrender (para 107)

Disagreeing with the majority decision, Judge Brichambaut found that “the current state of the law does not allow a definite answer to be reached in relation to the question of whether this resolution removes the immunities of Omar Al Bashir” (para 83). However, Judge Brichambaut finds that

The combined effect of a literal and contextual interpretation of article IV of the Genocide Convention, in conjunction with an assessment of the object and purpose of this treaty, lead to the conclusion that Omar Al-Bashir does not enjoy personal immunity, having been “charged” with genocide within the meaning of article VI of the Genocide Convention. (para 100)

In this blog post, I am not addressing the decision or the minority opinion specifically (as I am sure others will do so shortly). Rather, I wish to present a theory of the legal nature of SC referrals, without which, the ICC will not get the issues surrounding Bashir’s immunities right. Read the rest of this entry…

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