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ICC Review Conference Opens; Professors Joanna Harrington and Darryl Robinson to Report from the Conference for EJIL:Talk!

Published on May 31, 2010        Author: 

The Conference to review the Statute of the International Criminal Court opens today in Kampala, Uganda. Article 123 of the Statute mandates that a review be convened seven years after the entry into force of the Statute and that this review shall consider any amendments to the Statute include any amendments to the list of crimes subject to the jurisdiction of the Court. Much of the discussion in the review conference will focus on proposed amendments to the Statute which seek to define the crime of aggression and seek to set out the conditions under which the Court can exercise jurisdiction over the crime of aggression. On the latter point, much of the discussion will focus on the relationship between the ICC and the Security Council. For previous discussion on EJIL:Talk! on  the proposals relating to aggression, see here, here and here. The review conference will also discuss other proposed amendments to the Statute, namely: a proposal to delete Article 124 of the Statute (on which see Bill Schabas) which is a transitional provision allowing a State to opt out for seven years from the provision dealing with war crimes; and another proposal to harmonise the provisions of Art. 8 dealing with prohibited weapons in international and non-international armed conflicts. There will also be an exercise in “stocktaking” of the progress of international criminal justice. The website of the review conference (available here) contains the relevant documents.

EJIL:Talk! is delighted to announce that Professors Joanna Harrington and Darryl Robinson will be providing reports and analysis from the Review Conference for readers of this blog. Both Professors Harrington and Robinson are attending the conference in Kampala and both of them have significant academic and practical experience of working on issues relating to the ICC. Professor Harrington is a previous contributor to the blog  (see here) and is Professor of Law at the University of Alberta, Canada where she has recently been appointed as Associate Dean for the Faculty of Graduate Studies and Research. From 2006 to 2008, she served as the Scholar-in-Residence with the Legal Affairs Bureau of the Canadian Department of Foreign Affairs and International Trade. In that role, she, among other things, provided advice on matters of international criminal law and practice and served as a member of Canada’s delegation to the United Nations General Assembly and the Assembly of States Parties to the Rome Statute of the International Criminal Court.

Professor Darryl Robinson is Assistant Professor of Law at Queen’s University in Canada. Prior to this he served as a Legal Officer at the Canadian Department of Foreign Affairs from 1997-2004, where he provided legal advice and engaged in international negotiations concerning international human rights, humanitarian and criminal law. His work in the creation of the International Criminal Court and in the development of Canada’s new war crimes legislation earned him a Minister’s Citation and a Minister’s Award for Foreign Policy Excellence. From 2004 to 2006, he served as an adviser to the Chief Prosecutor to the International Criminal Court where he helped shape the first policies and strategies of the ICC.

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The ICC and the Crime of Aggression: The Consent Problem and the Security Council Issue

Published on May 28, 2010        Author: 

The first conference to the review the Statute of the International Criminal Court opens next week in Kampala Uganda. The major proposal to be considered at the conference will be proposals to amend the Statute so as to define the crime of aggression and to set out the conditions under which the Court can exercise jurisdiction over the crime of aggression. There appears to be substantial (even overwhelming) agreement amongst ICC parties that the ICC should be allowed to prosecute the crime of aggression. There is also agreement on the definition of aggression. However, substantial disagreement  remains about the conditions which should exist before the ICC may exercise jurisdiction over aggression. In particular, the key question appears to be whether the ICC should be able to make independent determinations about whether aggression has been committed by a State or whether the ICC should only be able to prosecute where the Security Council has made a prior determination that a State has committed aggression. It has also been suggested that the ICC should be competent to proceed where either the General Assembly or the International Court of Justice has made a prior determination that aggression has been committed.

The issues raised by the proposals to amend the Statute with regard to aggression were discussed in the last EJIL issue of 2009 (Vol. 20, Issue 4). That issue contains four thoughtful papers by Andreas Paulus, Claus Kress, Roger Clark and Sean Murphy (two of whom have been intimately involved in the negotiations in the Special Working Group on the Crime of Aggression). I highly recommend this set of papers. That discussion in EJIL was preceded by discussion on this blog by Andreas Paulus and by me.

I would like to draw readers attention to a paper (see here) I have just completed which focuses on a fundamental problem with the aggression proposal which appears not to have been considered at all by the negotiators and which I hope will be addressed in Kampala next week. This is the issue of whether the aggression amendment, if accepted, should permit the ICC to prosecute leaders of States which are not party to the Rome Statute or have not accepted the aggression amendment. The problem arises because the Statute of the ICC (Art. 12) permits the Court to exercise jurisdiction over individuals where they are nationals of State parties or have committed a crime within the territory of a State party. It has thus far been assumed that this normal jurisdictional rule of the ICC will also apply to aggression, if the aggression amendment is approved. This would mean that the leaders of  non-party States (or of States Parties that don’t accept the aggression amendment) would be subject to the jurisdiction of the ICC, where the alleged victim has accepted the aggression amendment. In 2003, Iargued (in this paper) that it was legitimate for the ICC to exercise jurisdiction over nationals of non-parties. However, I noted then that aggression was different. In my recent paper (posted as a Working Paper on the site of the Oxford Institute for Ethics, Law and Armed Conflict), I set out why aggression is different. I also argue that limiting to the jurisdiction of the ICC to situations referred by the Security Council (in addition to jurisdiction over aggression committed by consenting States) is not a limitation of a competence which the Court would otherwise have but rather an expansion of the Court’s jurisdiction to areas whether it would otherwise lack competence.  The abstract of this recent paper is below: Read the rest of this entry…

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The Place of International Criminal Justice within the International Legal Order: A Rejoinder

Published on May 27, 2010        Author: 

Amrita Kapur’s posted reply to Ken Anderson’s “The Rise of International Criminal Law” and myself makes a series of nuanced points, many of which I appreciate.  I am unsure how deep our disagreements actually run, but because some of her language indicates an affinity for views of which I am critical, I will take the opportunity to expose some areas of sharp disagreement – if not actually between myself and Kapur, then surely between myself and others who highly tout the project of international criminal justice.

Kapur’s post acknowledges that “trials are inherently flawed as a process to achieve the noble purposes ascribed to the ICJ project.”  She nonetheless insists that justice “must surely include, if not focus on, justice for the wronged parties, the victims, and the society that must build peace and reconciliation.”  This statement is open to varying interpretations, but to sharpen the discussion, I will provisionally interpret it to make two typical assertions with which I take issue:  first, that an authoritative condemnation of perpetrators is an essential element of post-conflict efforts to reaffirm the dignity of victims; and second, that peace and reconciliation are necessarily predicated on – and therefore, perhaps, should be held hostage to – the authoritative triumph of a particular moral judgment about the acts of conflict participants.

If one has in one’s mind’s eye morally unambiguous conflicts, where one side used atrocious means in the service of a manifestly evil end, both of these assertions seem plausible.  Insofar as the ICL project limits its ambitions to such circumstances – and there are enough of these to keep us busy – it has my full support.  But many armed conflicts involve, on one or both sides, informed persons of good faith and sound reason who endorse the use of ruthless methods for what they regard as an indispensable greater good.  Ruthless acts have often been committed, not because of a “culture of impunity,” but because actors (and their constituencies) believed, non-pathologically, that presumptively wrongful acts were justified in the effort to avert what they regarded as a morally worse overall outcome.  (I regard the Israeli-Palestinian conflict as quintessential in this regard, but even the question of which conflicts fall into this category turns on one’s political attitudes.)

 Among the conclusions that follow from this observation is that the potential target list for the ICL project is too rich.  The problem is not simply the danger that the typically-hoped-for expansion of domestic-court invocation of universal jurisdiction will produce frivolous prosecutions or legally unjustified convictions.  Fully sound cases could, in principle, be brought against a very wide range of actors, and yet in practice, prosecutions will almost always be reserved for the politically unpopular and strategically uninfluential.  Read the rest of this entry…

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Was Nuremberg a Violation of the Principle of Legality?

Published on May 18, 2010        Author: 

This is, remarkably, the question raised by yesterday’s judgment of the Grand Chamber of the European Court of Human Rights in Kononov v. Latvia, App. No. 36376/04. In short, the applicant was a former Soviet partisan convicted by a Latvian court for war crimes, because during World War II he and the unit under his command killed a group of Latvian villagers who collaborated with the Germans. The case raised many issues of the law of armed conflict/IHL, such as combatant and civilian status – but importantly, how the law applied inter-temporally, i.e. what the law was in 1944, when the alleged crime was committed.

The Chamber 4:3 judgment in favour of Kononov was much criticized for various methodological reasons, and not just for its ultimate result. The Grand Chamber reversed the Chamber’s judgment, finding in favour of Latvia by 14:3, and is technically of significantly better quality. The ultimate result of the case and some nitpicking I would have with certain elements of the Grand Chamber’s reasoning aside, what interests me the most is its basic approach, and the broader implications that it might have.

Read the rest of this entry…

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ICC Pre-Trial Chamber Gives Ocampo the Green Light in Kenya

Published on April 15, 2010        Author: 

In an historic decision, a majority of the Pre-Trial Chamber of the International Criminal Court has given the Prosecutor the benefit of the doubt and has authorised him to conduct official investigations into crimes against humanity believed to have been committed in Kenya.  Kenyan hopes for an end to impunity now rest with Ocampo as he seeks to secure the cooperation of the Kenyan Government, to ensure that all witnesses remain protected, and to secure convictions prior to the commencement of the 2012 elections.

In a previous post, I discussed the legal issues likely to be raised by the Prosecutor’s application.  This piece provides an analysis of the most significant aspects of the Pre-Trial Chamber’s lengthy 163-page decision.  In particular, it considers:

(1)    The Pre-Trial Chamber’s definition of “reasonable basis” in Article 15;

(2)    The distinction the Chamber makes made between a “situation” and a “case”;

(3)    The Chamber’s extension of the meaning of “organisational policy” in the definition of crimes against humanity;

(4)    The lack of guidance provided for the test of complementarity in Article 17;

(5)    The criteria provided for assessing “gravity” in Article 17; and

(6)    The Chamber’s interpretation of the “interests of justice” test in Article 53(1)(c).

1. What is a “Reasonable Basis”?

Article 15 of the Rome Statute provides that the Prosecutor’s determination that there is a “reasonable basis” to proceed with an investigation shall be reviewable by the Pre-Trial Chamber.  In the decision, the Pre-Trial Chamber begins by stating that the “reasonable basis” standard of proof is even lower than that provided under Article 58 of the Statute concerning the issuance of arrest warrants.  It then provides further guidance by stating that Article 15 requires the Pre-Trial Chamber to satisfy itself that there is a “sensible or reasonable justification” for the Prosecutor to conduct an investigation.

Whilst concurring with this interpretation of Article 15, the dissenting opinion of Judge Kaul cautions against the Pre-Trial Chamber’s review function becoming summary in nature whereby any information may satisfy this low standard.  Judge Kaul expresses his concern that if the standard were to be set so low that the Court becomes a mere “rubber stamp” for the Prosecutor, it may result in the Court commencing investigations without the Court having jurisdiction. Read the rest of this entry…

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Negotiations Underway on the Withdrawal of the Croatian Genocide Case before the ICJ

Published on April 13, 2010        Author: 

Since the election of Ivo Josipovic as President of Croatia in January this year, feelers have been sent by both Serbian and Croatian politicians on the possible mutual withdrawal of claims in the Croatian Genocide case pending before the ICJ, and they have intensified. The Belgrade daily Politika has reported (article in Serbian) that Ivo Josipovic and his Serbian counterpart Boris Tadic are meeting today in Mostar in Bosnia and Herzegovina, and that their main topic of discussion is precisely some form of settlement of the case out of court.

The ICJ litigation is a significant burden on any further development of the relations between Serbia and Croatia, and a joint decision to withdraw the case would be laudable – and not just from the standpoint of good neighborly relations. From its initiation, the case itself has served no other purpose but to buttress the nationalistic narrative of both parties regarding the events of the war in Croatia in the 1990s.

The Court’s jurisdiction rests solely on Article IX of the Genocide Convention, and it can examine no other violation of international law except genocide. In the general public of both Croatia and Serbia, however, the case has for years been presented as about being about the war as a whole, and about reparations for any damages caused by the conflict. Thus, much as with the Bosnian Genocide case, Croatian elites have used the case to further their narrative of a just, defensive war against the Serbian aggression, while Serbian elites emphasized Croatian wrongs against Serbs, from World War II up to the massive expulsion of Croatian Serbs in the 1995 Operation Storm. Whatever their merits objectively, both cases have been politically distorted (see here for more background).

Legally speaking, however, the Croatian case is about genocide and genocide alone – and there was no genocide in Croatia in the 1990s, whether against Serbs or against Croats. None of the atrocities committed there by either party have been qualified by the ICTY as genocide, nor has the ICTY ever come close to doing so, but has generally regarded them ‘merely’ as war crimes or crimes against humanity. And as a soon as a particular crime is not qualified as genocide, the ICJ loses subject-matter jurisdiction to examine state responsibility for this act.

In other words, everybody knows what the ICJ’s judgment would be if it were to decide the case the merits – that there has been no genocide on either side, and that any other internationally wrongful acts are outside its jurisdiction. Rationally speaking, therefore, neither Croatia nor Serbia have anything to gain from continuing the litigation. There is a precisely zero chance of any other result, no matter how able their counsel and advocates. Both Croatia and Serbia are, however, still to a large extent steeped in nationalism, and it is the perception of the case by the general public which remains at odds with the objective reality. The distinction between genocide and other international crimes is lost on most regular citizens, many of whom believe that only the word ‘genocide’ can fully encapsulate the wrongs done against them, whether perceived or real.

I am cautiously optimistic that the Croatian and the Serbian presidents will be able to reach some sort of accommodation – though they each also have to persuade their own elites, and be prepared to take the risk that the withdrawal of the case might politically harm them domestically. This is I think particularly the case with Croatia. We shall see what happens soon enough, but an agreement will not be easy to reach, no matter how irrational that might seem from the outside.

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Ronen and Pellet on the ICC and Gaza

Published on March 11, 2010        Author: 

I’d like to commend to our readers’ attention an excellent article by Yael Ronen in the most recent issue of the JICJ on the declaration lodged by Palestine accepting the jurisdiction of the ICC with respect to Gaza, raising the issue whether Palestine qualifies as a state in the sense of the Article 12(3) of the Rome Statute – final version here, SSRN draft here. Here’s an abstract:

On 21 January the Palestinian Minister of Justice lodged with the ICC Registrar a ‘Declaration Recognizing the Jurisdiction of the International Criminal Court’ over acts committed on the territory of Palestine since 2002. This article concerns three issues regarding the admissibility of this declaration, all of which are linked to the question of statehood. It first argues that the ICC Prosecutor may not assume the existence of a Palestinian state because the Palestinians themselves do not make a claim to that effect. It then examines whether under a purposive interpretation of Article 12(3), declarations should also be admitted from quasi-states. It argues that there is no justification for such a purposive interpretation, as the ICC Statute already contains an adequate mechanism to deal with exceptional situations such as that of the Gaza Strip. Finally, the article examines the consequences of the ICC Prosecutor engaging in questions concerning statehood and recognition. It argues that taking on the Palestine case would open up a Pandora’s Box and risk turning the ICC into a political playing field for aspirant entities in search of international status.

For what it’s worth, I am personally in broad agreement with Yael’s argument, even if I don’t think that it is in principle objectionable for the ICC or for its prosecutor to address issues of statehood purely as preliminary questions. For a different take than Yael’s, Alain Pellet has prepared a legal opinion arguing that the term ‘state’ in Article 12(3) should be interpreted purposefully so as to allow the Palestinian declaration, even if Palestine is not a state as a matter of general international law – see more here on Bill Schabas’ blog. We’ll see, of course, what the Court ultimately makes of the whole thing.

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Al-Saadoon and Mufdhi Merits Judgment

Published on March 2, 2010        Author: 

The Al-Saadoon and Mufdhi v. United Kingdom (no. 61498/08) judgment by a Chamber of the European Court of Human Rights is now out (HUDOC). For our previous coverage, with links and background, see here and here. The shortest possible summary – the applicants won, and the Chamber judgment is a valuable contribution to human rights jurisprudence. Now for more detail.

Readers will recall that the basic question raised by the case is whether the transfer by the UK of the applicants who were in the custody of UK troops in Iraq to Iraqi authorities for trial violated the applicants ECHR rights, specifically the non-refoulement principle established by the Court in Soering v. UK, inter alia because there was serious risk of them being subjected to the death penalty. In Soering itself the issue was the surrender of the applicant to the US, where there was serious risk of him being subjected to the death penalty. However, the death penalty was at the time still not outlawed with respect to the UK by Protocols 6 and 13, and so the actual issue was inhuman treatment that the applicant would suffer as a consequence of the death row phenomenon. Likewise, without the two protocols, Article 2(1) ECHR specifically contemplates the death penalty, and it as such could not be held to be contrary to other provisions of the Convention, namely Article 3 prohibiting all forms of ill-treatment.

Now in Al-Saadoon we have the first merits judgment dealing specifically only with the death penalty and non-refoulement. The Court started its analysis by considering the developments in both treaty action and in its case law with regard to the death penalty since Soering:

Read the rest of this entry…

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ECtHR Al-Saadoon Judgment Forthcoming on 2 March

Published on February 27, 2010        Author: 

A Chamber of the European Court will deliver its merits judgment in Al-Saadoon and Mufdhi v. United Kingdom (no. 61498/08), the case dealing with detention and non-refoulement in Iraq, on Tuesday 2 March (press release here). For our previous coverage, see here and here. For more in-depth analysis of the various issues in Al-Saadoon, such as norm conflict and the UK government’s decision to disregard interim measures ordered by Strasbourg, see here. See also this article by Nehal in the JICJ, and this note in the ICLQ by Sarah Williams and Matthew Cross.

This as hot a case as it gets, and we’ll see what the Chamber does with it. It certainly moved very quickly, since it pronounced on admissibility only in July last year. Whatever the outcome, it is likely that the case will also be referred to the Grand Chamber. Analysis and commentary will follow!

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Why the Falklands Dispute Will (Probably) Never Go to Court

Published on February 25, 2010        Author: 

Our readers are surely aware of the reemergence of the Falklands dispute on the international stage, provoked by the UK’s decision to allow oil exploration in the waters of the Islands, and the possibility that the oil deposits may be quite significant. Over at Opinio Juris, Julian Ku suggests that the UK and Argentina might well take this dispute to court, either the ICJ or the ITLOS.

In my view, this will simply not happen. Ever. I might well eventually be proven wrong, of course, but it seems to me that the Falklands dispute is, as a political matter, almost singularly unsuitable for judicial resolution. Here’s why:

First, the current oil exploration dispute cannot judicially be resolved on its own, since it legally entirely depends on who was title over the islands – the UK or Argentina. If it was Argentina who was the Islands’ proper owner, it would be perfectly within its rights to oppose the UK’s implementation of oil exploration by any non-forcible means. If, on the other hand, it was the UK who had title, then it is clear under the UNCLOS and other applicable law that it has every right to drill away, come what may.

Second, as for title, the issue is extremely complicated. To brutally simplify it, Argentina claims title either through succession from Spain, or by having occupied the Islands on its own shortly after gaining independence. The UK relies on prior discovery, effective occupation since 1833, and prescription. It also relies on the Islanders’ right to self-determination, which they’ve freely exercised by choosing to remain a part of the UK. This is, for example, how the UK’s Ambassador to the UN has just stated the UK’s position:

As British Ministers have made clear, the UK has no doubt about its sovereignty over the Falkland Islands, South Georgia and the Sandwich Islands. This position is underpinned by the principle of self-determination as set out in the UN Charter. We are also clear that the Falkland Islands Government is entitled to develop a hydrocarbons industry within its waters, and we support this legitimate business in Falklands’ territory.

Third, to be blunt, the British statement that they have ‘no doubt’ about their title over the Falklands is total rubbish. Privately (of course) they have every reason to doubt it. In fact, I think it would be fair to say that despite the UK’s de facto control for all these years, it is indeed Argentina that has a somewhat superior title over the Islands. Likewise, the Islanders’ claim to self-determination is dubious for various reasons, and UN practice with regard to the Falklands does not support it. For reasons of space and time I will not venture into this further, but there are two recent exhaustive treatments of the subject which are helpful: R. Laver, The Falklands/Malvinas Case (Nijhoff, 2001); R. Dolzer, The territorial status of the Falkland Islands (Malvinas): past and present (Oceana, 1993).

Fourth, following from three above, the UK knows full well not only that there would be a chance, but that there would be a good chance that it might lose a judicial dispute over the Falklands.

Fifth, the UK has invested an enormous amount of political capital in preserving its sovereignty claim over the Falklands, both internally and externally. It has fought a war over them, which still has a place in the national psyche. It has guaranteed to the population (if perhaps not the ‘people’) of the Falklands the right to determine their own fate. For the foreseeable future, it is politically inconceivable that the UK would be willing to renounce this claim, which it would have to be prepared to do if it submits the case to judicial resolution. Not to mention the fact that an oil bonanza would only render such an option less likely.

Sixth, as a matter of fact, the UK’s hold over the Falklands is strong. It’s military position today is far superior to what it was back in the day when the Argentine junta decided on its little adventure. Argentina has no practical way of forcing the issue.

In sum, because of (1)-(6), it is unlikely in the extreme that the UK would be willing to submit this case to a court. It would of course do so if Argentina would be willing to accept arguendo the UK’s title over the Islands, and thus narrow the dispute down to the current oil exploration issues. Yet Argentina has no interest in doing so, because it also knows that it would lose this dispute if title were out of the picture.

So, the only way forward are negotiations. Such negotiations could probably only be successful if title was kept out of the picture, in exchange for a deal on oil rights and a share of profits. The UK and Argentina had such an agreement in 1995, but Argentina repudiated it in 2007. Whether a new deal on those lines is possible today depends on various political considerations that I know nothing about. I am convinced, however, that little else is practically possible.

Anyway, those desperately wanting to see the Falklands dispute (or a simulacrum thereof) argued in court may wish to come to Washington, DC, from 20-27 March, for the international rounds of this year’s Jessup moot court competition

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