Home Archive for category "Libya" (Page 2)

Protecting Europe or Irregular Migrants? The (Mis)use of Force in the Mediterranean

Published on May 15, 2015        Author: 

On Monday 11 May Federica Mogherini, the High Representative of the European Union for Foreign Affairs and Security Policy, officially briefed the UN Security Council on the current crisis in Europe. The crisis relates to the sharp increase of fatalities of individuals trying to cross the Mediterranean in order to reach European shores. The International Organization for Migration (IOM) reports 1.800 deaths since the beginning of 2015, more than 800 of them during a single incident in April. Deaths in the Mediterranean are an annually recurring tragedy triggering public outcry in spring that dwindles down as less individuals attempt the journey due to the harsher conditions at sea during the colder months. However, 2015 is likely to become the deadliest year. According to Peter Sutherland, Special Representative of the UN Secretary-General for International Migration, these numbers represent a 20-fold increase over the same period last year. The surge in fatalities is largely attributed to the discontinuation of the search and rescue operation Mare Nostrum by the Italian navy and its replacement by the smaller scale operation Triton. The latter is coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and focuses on border control and surveillance rather than search and rescue (see also here).

To be sure, this demands action. An ‘exceptional and coordinated response’ is required to deal with the ‘unprecedented situation’, Ms Mogherini told the Security Council. On 23 April the European leaders came together for an emergency summit to devise a plan of action to respond to the tragedy. The action plan, presented to the Security Council on Monday, promises a strengthened European presence at sea, announces increased efforts to prevent irregular migration and declares the fight against human traffickers a priority. To crack down on human traffickers Europe pledges to undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers. This course of action is not without obstacles. The vessels in question, prior to their use, are mostly situated in Libya, but surely outside Europe. Quite inconspicuous at first sight, Europe’s proposal therefore requires using military force on the territory of another state and touches upon a bedrock rule of international law: the prohibition of the use of force. Read the rest of this entry…

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The Extraterritorial Seizure of Individuals under International Law – The Case of al-Liby: Part I

Published on November 6, 2013        Author: 

Chris_Henderson_150x200Christian Henderson is Senior Lecturer in Law and Director of the Human Rights and International Law Unit at the University of Liverpool.

On 5th October 2013, the US Army’s Delta force entered Libyan territory and seized the alleged al-Qaida leader Nazih Abdul-Hamed al-Ruqai (pictured right), more commonly known by his alias Abu Anas al-Liby, who was wanted by the US for the 1998 bombings of the US embassies in Kenya and Tanzania. The incident recently made the news again as al-Liby came before a Federal Court in New York to plead not guilty to the offences with which he was charged.

Anas_al-LibyUnsurprisingly, the US has made a robust defence of both the raid to seize al-Liby, including apparent invocation of the Authorisation for Use of Military Force (AUMF) adopted under the Bush administration (for an analysis of the use of AUMF see the post by Marty Lederman on Just Security here), as well as its current jurisdiction over him in order to bring him to justice for the bombings (see here and here).

Regardless of whether the abduction was lawful under the domestic law of the United States (see here for an excellent post on this issue) the whole operation raises several key questions under international law. In particular, this incident raises the question of the permissibility of a state entering another to apprehend an individual so as to be able to try them for crimes committed against its nationals. It also raises questions in regards to the treatment of that individual by the apprehending state and the subsequent jurisdiction over them for the alleged offences. The purpose of this and a following post is to seek to set out the framework of applicable rights and obligations in regards to such operations, with a particular focus on the al-Liby seizure. Read the rest of this entry…

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ICC Pre-Trial Chamber Suspends Libya’s Obligation to Surrender Saif Gaddafi and Asserts Application of ICC Statute to Libya

Published on June 20, 2012        Author: 

Over the past few months, I have written a number of posts on whether Libya would be entitled to suspend (or postpone) its obligation to surrender Saif Gaddafi to the ICC in the event of Libya challenging the admissibility of ICC proceedings (see here, here, here , here and here). In what I thought was a great and really productive exchange of views,I debated the issue with Kevin Jon Heller at Opinio Juris and Jens David Ohlin at LieberCode. In April, the ICC Pre-Trial Chamber rejected Libya’s application to suspend the obligation to surrender Saif Gaddafi holding that although Libya had, at that stage, indicated its intention to challenge admissibility of the case, it had not actually done so. In May, Libya did file a challenge to the admissibility of the proceedings (which has been discussed here on EJIL:Talk!). Earlier this month, the Pre-Trial Chamber held that as a result of Libya’s admissibility challenge, Libya is entitled, under Article 95 of the ICC Statute to postpone its obligation to surrender Saif Gaddafi to the ICC. That suspension of the obligation of surrender will last until the ICC determines the validity of the admissibility challenge.

ICC’s Pre-Trial Chamber took the same position as I took in my blog posts on the issue and in my recent article in the Journal of International Criminal Justice. In fact, the chamber addressed the issue in pretty much the same way as I have, structuring their decision in a similar way to me and using similar arguments. In terms of the structure of the decision, the chamber first addressed the question of whether and how the ICC Statute applies to the obligation of cooperation in cases of a Security Council referral. Then the Chamber addressed the question whether Article 95 of the Statute applies to the obligation of surrender.

With regard to the application of the ICC Statute in case of UN Security Council referrals, the chamber reiterated its earlier decision that:

“the legal framework of the Statute applies in the situations referred by the Security Council in Libya and Darfur, Sudan, including its complementarity and cooperation regimes.” (para. 28)

Read the rest of this entry…

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The Immunity of the ICC Lawyers and Staff Detained in Libya

Published on June 18, 2012        Author: 

Readers will be aware that four staff of the International Criminal Court have been detained in Libya after meeting with Saif Gaddafi over a week ago. The visit to Saif Gaddafi was organized by the ICC’s Office of the Public Counsel for Defence which has been appointed to represent Saif Gaddafi in the ICC proceedings against him. One of the persons detained is Melinda Taylor, an Australian defence lawyer at the ICC. She has been accused of spying, and of passing on to Saif a letter from Saif’s former right hand man, Mohammed Ismaili, who is wanted by the Libyan authorities. Taylor and the other ICC staff were detained by a militia in Zintan, the town where Saif Gaddafi is being held.  Since their detention, they have been visited by an ICC delegation together with the Ambassadors of Australian, Russia, Lebanon and Spain. Thankfully, an ICC Press Release reports that the detained staff indicated that they are in good health and being well treated.

Since the incident first began, there have assertions that these ICC staff are entitled to immunity from arrest and detention in Libya. This claim has been made by the ICC President, Judge Sang-Hyun Song, by the Australian Foreign Minister, Bob Carr, by Mark Kersten on his  blog Justice in Conflict, and by Kevin Jon Heller on Opinio Juris. I agree with the view that these staff are immune and think it is useful, and interesting, to set out the basis on which that immunity exists.

The most straightforward argument for the immunity is that it is provided for in Article 48 of the ICC Statute and that this provision is binding on Libya as a result of UN Security Council Resolution 1970. Article 48 provides that:

“(3) The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in accordance with the agreement on the privileges and immunities of the Court.

(4) Counsel, experts, witnesses or any other person required to be present at the seat of the Court shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court.”

Before getting on to which immunities this provision grants to ICC staff, one ought to begin by explaining why Art. 48 is binding on Libya. Read the rest of this entry…

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The ICC must consider fair trial concerns in determining Libya’s application to prosecute Saif al-Islam Gaddafi nationally

Published on June 8, 2012        Author: 

Jonathan O’Donohue is a Legal Adviser for Amnesty International’s International Secretariat. He leads the Coalition for the International Criminal Court’s Budget and Finance Team.

Sophie Rigney is a PhD candidate at the University of Melbourne, examining the role of the rights of the accused in international criminal law. Between 2009-2011, she  worked at the International Criminal Tribunal for the Former Yugoslavia, including as Legal Assistant to the Stand-by Counsel in the case of Radovan Karadžić.

The ICC’s Pre-Trial Chamber is considering the Libyan government’s challenge to the admissibility of the case against Saif al-Islam Gaddafi. The request raises serious concerns as to whether he would receive a fair trial in Libya. The plain meaning of the rule of complementarity spelled out in Article 17 of the Rome Statute; the interpretative provisions in Article 21 (3); and a teleological approach confirm that, if the judges are not satisfied that the rights of the accused will be respected in national criminal proceedings, the case will be admissible and the application must be rejected.

Saif al-Islam Gaddafi was arrested in November 2011 and is being held in Zintan by militia who are refusing to hand him over to the central authorities. According to the Office of Public Counsel for Defence representing him at the ICC, he has been held in isolation in secret locations without access to national courts or effective access to a lawyer or facilities to communicate with his family.

More generally, the Libyan national justice system remains in a weak state. Thousands of suspected al-Gaddafi loyalists are currently being detained in Libya by armed militias outside the framework of the law. Only a small number have been presented before a court or charged with a recognisable criminal offence. Amnesty International has documented torture and other ill-treatment of these detainees, in some cases resulting in coerced confessions and death.

A new law enacted in May 2012 undermines freedom of expression by prescribing prison sentences for spreading false rumours, propaganda, or information with the aim of harming national defence, “terrorizing people”, or “weakening citizens’ morale” during war time. This could have specific consequences for those who may be prosecuted in Libya for criminal offences associated with the al-Gaddafi regime. Defence lawyers may be reluctant to represent them for fear of being prosecuted for statements they made in the defence of their clients. Defence witnesses may refuse to give evidence.

Another new law establishes selective justice by providing amnesty to anti-Gaddafi fighters if their actions –potentially including crimes under international law – served the “17 February Revolution.”

These fair trial concerns have prompted Amnesty International to call repeatedly on the Libyan authorities to surrender Saif al-Islam Gaddafi to the ICC and to focus on rebuilding the national justice system in order to be able to investigate and prosecute all other cases involving crimes committed by both sides in accordance with international standards.

However, some claim that the ICC cannot determine that a case is admissible because the national proceedings would be unfair.  In his article, The Shadow Side of Complementarity: the effect of Article 17 of the Rome Statute on national due process, Kevin Jon Heller contends that Article 17

permits the Court to find a State ‘unwilling or unable’ only if its legal proceedings are designed to make a defendant more difficult to convict. If its legal proceedings are designed to make the defendant easier to convict, the provision requires the Court to defer to the State no matter how unfair those proceedings may be.

Following Saif al-Islam Gaddafi’s capture, the ICC Prosecutor also appeared to question the relevance of fair trial concerns in the process stating in a press conference shown by Al-Jazeera: “[w]e are not a human rights Court. We are not checking the fairness of the proceedings. We are checking the genuineness of the proceedings.”

However, these interpretations are in the minority. Read the rest of this entry…

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Competing Views on Libya’s Obligation to Surrender Saif Gaddafi to the ICC

Published on May 16, 2012        Author: 

Over at Opinio Juris, Kevin Jon Heller notes that the debate which he, Jens David Ohlin and I have had regarding whether Libya can postpone it’s obligation to surrender Saif Gaddafi to the International Criminal Court is now being waged by organs of the ICC. As Kevin notes:

Two organs of the Court have now weighed in on the issue, with a rather ironic inversion: the Office of the Prosecutor takes the position that Libya is under no obligation to surrender Saif, while the Office of the Public Counsel for the Defence, which is representing Saif, argues that it does have such an obligation.

The motions are a study in contrasts.  The OTP’s motion is a mere six pages, noting that Article 95 refers to postponements of requests under Part IX of the Rome Statute, a part that applies to both requests for surrender and other forms of cooperation, and analogizing Article 95 to Article 89(2), which allows surrender to be postponed when a suspect brings a ne bis in idem challenge in a national court.  It’s a very underwhelming motion, and I don’t say that simply because I disagree with it.  Had the OTP relied much more heavily on Dapo and Jens’s arguments, the motion would have been much stronger.

Kevin goes on to note that the OPCD motion makes arguments similar to his arguments in his Opinio Juris points on the issue and indeed cites his posts. In addition to the filings by these two organs of the ICC, there is a third motion on this question, which was recently filed before the ICC. This is the request by the National Transitional Council of Libya for the ICC to postpone or suspend the obligation to surrender Saif Gaddafi. Libya’s previous requests for postponement of the surrender obligation were rejected by the ICC (see my earlier post). Those requests were made at a time when Libya had not contested the admissibility of the ICC proceedings. However, Libya has now challenged the admissibility of the proceedings against Saif Gaddafi. Libya asserts that the case against Saif and Al Sanussi are inadmissible because Libya’s “national judicial system is actively investigating Mr Gaddafi and Mr Al-Senussi for their alleged criminal responsibility for multiple acts  . . .  amounting to crimes against humanity.” Libya’s admissibility challenge changes the picture significantly as it is now entitled to rely on Article 95 of the ICC statute which explicitly applies where admissibility has been challenged.

The question that arises is whether Article 95, which permits postponement of a State’s obligation to cooperate with the ICC extends to the obligation of surrender. Libya (and the OTP) argue that Art. 95 does. Libya argues that interpreting Article 95 as permitting postponement of the obligation of surrender upholds the principle of complementarity. This is a point that I made in my previous EJIL:Talk! post and which I develop more fully in my recent article on this issue published earlier this month in the Journal of International Criminal Justice. Indeed, Libya cites and rely on both my post and on my article. Read the rest of this entry…

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Two ICC Decisions (and one Article) on Libya’s Request to Postpone Surrender of Saif Gaddafi

Published on April 14, 2012        Author: 

Earlier this month, the Pre-Trial Chamber of the International Criminal Court dealing with the case against Saif Gaddafi released two decisions rejecting two requests of the Libyan Government that Libya be allowed to postpone the surrender, to the ICC, of Saif Gaddafi. The first decision was actually issued on 7 March, but was only released on April 4 at the same as the decision rejecting Libya’s second postponement request. As readers will recall, the ICC issued an arrest warrant and a request for surrender for Saif Gaddafi in June last year and Saif has been detained since November last year. However, Libya has insisted on prosecuting Saif Gaddafi in Libya and has refused to hand him over to the ICC. Readers may also recall that Kevin Jon Heller at Opinio Juris, Jens David Ohlin at LieberCode and I (here, here and here) have engaged in a discussion on whether Libya is entitled to surrender its obligation to surrender Saif to the ICC. Libya’s requests for postponement raise all the issues that Kevin, Jens and I covered in our discussion. While the decisions of the Pre-Trial Chamber answer some of the questions, the Pre-Trial Chamber has not yet answered the central question of whether the obligation of surrender can be postponed in the event of an admissibility challenge based on the principle of complementarity. Hopefully, the ICC will return to this issue soon.

In the meantime, I have written an article  setting out my thoughts on these issues. The article is titled “The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC” and will be published by the Journal of International Criminal Justice (in May). However, the article is now available for download on SSRN.

In Libya’s first request for postponment of surrender, it stated that it was investigating Saif for various crimes under national law. According to a Guardian article of earlier this week, some of the crimes for which Saif is being investigated include alleged failure to have licences for two camels and cleaning of fish farms!! (though this later Guardian article says the charges will be murder, rape and torture). Read the rest of this entry…

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International Commissions of Inquiry: A New Form of Adjudication?

Published on April 6, 2012        Author: 

Dr Hannah Tonkin is a Legal Officer in the Appeals Chamber of the Special Court for Sierra Leone. She previously worked at the ICTR and ICTY and taught international law at the University of Oxford. She is the author of State Control over Private Military and Security Companies in Armed Conflict, 2011 (ISBN 9781107008014)

In March the International Commission of Inquiry on Libya, created by the United Nations Human Rights Council (HRC), presented its report, finding that “international crimes, specifically crimes against humanity and war crimes, were committed by Qadhafi forces.” The report found that “acts of murder, enforced disappearance, and torture were perpetrated within the context of a widespread or systematic attack against a civilian population.” The report further found that anti-Qadhafi forces also “committed serious violations, including war crimes and breaches of international human rights law.” The Libya Report followed the delivery to the HRC in February of a report by the International Commission of Inquiry on Syria. That Commission found that Syrian government forces “committed widespread, systematic and gross human rights violations, amounting to crimes against humanity, with the apparent knowledge and consent of the highest levels of the State.” [para 126]

The Commissions on Libya and Syria are just the latest in a series of high-profile international fact-finding missions and commissions of inquiry in recent years. These include the 2004 International Commission of Inquiry on Darfur, the 2009 UN Fact Finding Mission on the Gaza Conflict (the Goldstone Report), the 2009 Fact Finding Mission on the Georgian Conflict (discussed here, here and here on EJIL:Talk), the 2010 and 2011 UN Fact Finding Mission and Committee inquiring into the Israeli blockade on Gaza (the HRC Fact Finding Mission and the Palmer Report) (see previous posts here), the 2011 Panel of Experts on Accountability in Sri Lanka (see previous EJIL:Talk! Post here) and the 2011 Bahrain Independent Commission of Inquiry. Most of these commissions had terms of reference that called on them to investigate alleged violations of human rights and international humanitarian law, though others, like the Georgia Commission, have been called to decide on other inter-State issues, such as the use of force.

These commissions of inquiry appear to have become a new mechanism for determining the responsibility of both states and individuals for violations of human rights and IHL. In the absence of universal compulsory jurisdiction by international judicial bodies, these commissions of inquiry are a way in which the international community can obtain an authoritative determination of whether these violations have taken place and who is responsible. These commissions have not replaced, and are not replacing, adjudication. In fact, they will often enhance adjudicative mechanisms where those exist. However, these commissions do seem to be an additional form of resolving, and obtaining authoritative pronouncements on, contested facts and issues of international law.

While many of these commissions are termed “fact-finding missions” or given the mandate to engage in fact-finding, in reality they tend to do much more than this and will often make quite detailed determinations on points of international law. Read the rest of this entry…

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Libya’s Obligation to Surrender Saif Gaddafi to the ICC: A Follow Up

Published on February 20, 2012        Author: 

After the capture of Saif Gaddafi (who is wanted by the International Criminal Court) in November last year, Libya’s National Transitional Council stated that it would seek to prosecute Saif in Libya and that the NTC did not intend to turn him over to the ICC (see document filed by ICC Prosecutor). This prompted discussion here and elsewhere as to whether Libya was under an obligation to surrender Saif Gaddafi to the ICC pending the determination of where he would be tried. Kevin Jon Heller at Opinio Juris, Jens David Ohlin at LieberCode and I (here and here) had a discussion about the relevant provisions of the ICC Statute and whether those provisions permit a State to suspend its obligation to surrender an accused person, pending the determination of an admissibility challenge by the ICC. Kevin thought the answer was yes, David and I thought it was no. Well, nearly two months on, Libya has not only failed to surrender Saif but it has not made an admissibility challenge either! It did write a letter to the ICC on 23 November stating that:

“The National Transitional Council wishes to affirm that, in accordance with the Rome Statute, the Libyan judiciary has primary jurisdiction to try Saif al‐Islam Gaddafi and that the Libyan State is willing and able to try him in accordance with Libyan law”

However, no specific reference was made in that letter to the provisions of the Statute dealing with complementarity or admissibility, nor was there an explicit statement that the case should be regarded by the ICC as inadmissible.

Since November, there have been some proceedings at the ICC where the Pre-Trial Chamber has sought Libya’s views on the matter. For reasons which are entirely unclear to me, Libya’s submission to the PTC, made on the 23rd of January, were made on a confidential basis and all that is public is a report by the ICC Registry indicating that the observations were made. If anyone knows why the observations are confidential, I would be delighted to know. The Prosecutor’s response, which was due on the 2nd of February is also absent from the ICC website. The NTC letter of 23 November, though it is the most innocuous letter, and contains nothing at all that is remotely sensitive, was also originally classified as confidential. There, is on the website, a response to Libya’s observations filed by the ICC’s Office of Public Counsel for Defence (OPCD) but parts of that document are redacted. It all seems rather mysterious to me. In any case, the OPCD response gives some indication of the arguments relied on by Libya. It appears that Libya is relying solely on Article 94 of the ICC Statute as justification for its failure to hand over Saif Gaddafi (see para. 36, OPCD submission and NTC letter of 23 Nov). In the previous discussion here (and here), at Opinio Juris, and at LieberCode of whether the obligation to surrender is suspended where there is an admissibility challenge, we focussed on Article 19, 89(2) and 95 – all of which deal with the effect of admissibility challenges. We did not discuss Article 94.  As I discuss below, I think Libya’s reliance on Art. 94 is misguided. Given that it has a much stronger claim under Art. 95, it is not clear to me why they are relying on Art. 94. Art. 94(1) provides that:

Read the rest of this entry…

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Is Libya Under an Obligation to Surrender Saif Gaddafi to the ICC? (Part II) Has the UN Security Council Imposed Different Obligations of Cooperation from the Rome Statute?

Published on November 29, 2011        Author: 

In a previous post, I dealt with the question whether Libya has an obligation to surrender Saif Al Islam Gaddafi pending any admissibility challenges it may choose to make. To put the question in other terms, if Libya does make an admissibility challenge may it hold on to Saif for the duration of the time it takes for that challenge to be determined by the ICC. The discussion that has taken place on this issue thus far has focussed on the interpretation of the relevant provisions of the Rome Statute.  My previous post also focussed exclusively on the Rome Statute. However, thus far commentators on this question have simply taken it for granted that the Rome Statute provides the applicable law and regime regarding the obligation of Libya to cooperate. The assumption has also been that if the Rome Statute provides a basis on which Libya may suspend its obligation to cooperate with the ICC then Libya is entitled to rely on the Statute’s provisions allowing such suspension. Although this may well be right, it cannot simply be assumed. There is a question as to whether in the case of a Security Council referral, the obligation of cooperation is one which is determined by the Statute or whether that obligation is determined instead by the Security Council’s resolution that makes the referral. In short, can the Security Council modify the obligation of the State to cooperate such that the State has a more (or less) extensive obligation than is provided for in the Rome Statute?

The Rome Statute provides an obligation for States parties to cooperate with the ICC but also provides many exceptions to that general obligation to cooperate, some of which I referred to in my earlier post on Saif Gadaffi. However, in the two cases when the Security Council has referred situations to the ICC, the Council has decided that the relevant States (Sudan and Libya):

 “shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” [see para 5 of Security Council Resolution 1970, by which the Security Council referred the Libya to the ICC, the Council].

Does the obligation to “cooperate fully” mean an obligation to cooperate fully as required by, and only in circumstances required by the Statute or does it mean something else? In the particular context of the obligation to surrender Saif Gaddafi, I have argued that the Rome Statute permits a suspension of this obligation where a challenge to admissibility is made. However, it might be argued that what the full cooperation provided for SC Res 1970 requires is that Libya surrender Saif to the Court, as the Court has requested. Libya is not a party to the Rome Statute, and is therefore not bound by that treaty (qua treaty). It also does not have rights as such under the treaty. Any obligations that Libya has with regard to the International Criminal Court must be derived from the Security Council resolution which refers the Libyan situation to the ICC.

The question whether the Security Council may modify the cooperation obligations provided for in the Statute was raised by Goran Sluiter, in 2008, shortly after the Sudan referral in an article entitled “Obtaining Cooperation from Sudan – Where is the Law?” In that article, Professor Sluiter noted that the way in which the Security Council had framed Sudan’s obligation of cooperation with the ICC left it unclear whether Sudan could invoke grounds for refusing cooperation which were provided for in the Statute.

The first question here is whether, in the context of an ICC referral, the Council can impose obligations on States which go beyond what the Rome Statute has imposed. It seems clear to me that the Council can do this. The powers of the Council are not limited by the Rome Statute. The Council’s powers are determined by the Charter and not by the Rome Statute. Read the rest of this entry…

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