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Home Posts tagged "ASP"

Time to fix the Rome Statute and add the crime of starvation in non-international armed conflicts!

Published on December 3, 2019        Author: 

This week the Assembly of State Parties to the Rome Statute of the International Criminal Court (ASP) meets in The Hague for its 18th session. On the agenda is the Swiss proposal to amend Article 8 (“War crimes”) of the Rome Statute by adding a non-international armed conflict version of the war crime of starvation of civilians as a method of warfare. The present post discusses the Swiss proposal and explains why it is high time to amend the Rome Statute as per the Swiss proposal, and that in fact the drafting history of the Statute shows that the omission to include this crime into Article 8(2)(e) was accidental, making it even more important to now fix this mistake.

In 1998, the States negotiating the Rome Statute included the war crime of “[i]ntentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions” in Article 8(2)(c), a paragraph that lists “serious violations of the laws and customs applicable in international armed conflict”, “[o]ther” than the grave breaches of the 1949 Geneva Conventions included in the first paragraph, which also concern international armed conflict (IAC). As readers will know, the question whether the Rome Statute should include war crimes committed in times of non-international armed conflict (NIAC) was hotly debated by the delegates in Rome. Fortunately, with the ICTY’s case law and the scope of the ICTR Statute having paved the way, the States reached consensus to include NIAC war crimes. Violations of Common Article 3 to the 1949 Geneva Conventions were listed in Article 8(2)(c), and a large number of the ‘other serious violations of the laws and customs applicable in times of international armed conflict’, listed in Article 8(2)(b) of the ICC Statute, were reproduced in Article 8(2)(e), which relates to NIAC. However, among the crimes that were not reproduced was the war crime of starvation and impeding humanitarian access.

The failure to do so has been criticised for good reason (e.g., Werle, Kress, and more recently, Bartels, and D’Alessandra and Gillett). In addition to the war crimes related to prohibited weapons (addressed below), the only other violations not included for NIAC are the conduct of hostilities crimes Article 8(2)(c)(ii), intentionally directing attacks at civilian objects, Article 8(2)(b)(iv), the crime of causing excessive collateral damage, and Articles 8(2)(viii), (xiv), and (xv). The last three provisions deal with occupation and “nationals of the hostile party”, and therefore obviously do not have a NIAC equivalent. The Additional Protocol I general prohibition to attack civilian objects and the prohibition to launch attacks that may be expected to cause incidental damage that would be excessive in relation to the concrete and direct military advantage anticipated, which both apply during IACs, do not appear in Additional Protocol II relating to NIACs. As a result, it was hard in 1998 for the proponents of a more extensive set of NIAC crimes to argue that these prohibitions constituted customary IHL also in time of NIAC, and no NIAC versions of these war crimes were included in Article 8 (see Bartels, pp 292-293). However, the foregoing makes the omission of a NIAC crime of starvation all the more puzzling, because Additional Protocol II does explicitly prohibit the starvation of the civilian population.

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Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?

Published on May 8, 2019        Author: 

The self-inflicted misfortunes of the International Criminal Court continue. The recent Pre-Trial Chamber decision not to authorise the opening of an investigation in Afghanistan has already generated considerable controversy (see here, here, here, here and here). The rather surprising news that Judge Ozaki would be allowed to continue to serve part time on the Court while becoming Japan’s ambassador to Estonia has also drawn criticism. And, of course, on Monday the Al Bashir immunity decision was handed down. Amidst the hubbub, one other development has gone relatively unremarked. The first four presidents of the ICC Assembly of States Parties (ASP) have released a joint op-ed through the Atlantic Council entitled “the International criminal court needs fixing”. For present purposes, it is enough to note several key points.

The op-ed calls for “an independent assessment of the court’s functioning by a small group of international experts”. This call appears triggered by the Afghanistan decision which they see as expressing “a lack of confidence that the Court could successfully carry out the job.” The rest of the piece pursues two central points – and a cluster of worrying claims. Read the rest of this entry…

 

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

Published on March 23, 2018        Author: 

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…

 

Negotiating Justice at the ASP: From Crisis to Constructive Dialogue

Published on November 29, 2016        Author: 

During the past two weeks, the world came together in The Hague for the Assembly of States Parties (ASP), the annual diplomatic meeting on the International Criminal Court (ICC). It was clear that this session would be crucial for the ICC’s future and its place in the geopolitical constellation. The weeks before had thrown the Court in somewhat of an existential crisis: Burundi, South Africa and Gambia announced their withdrawal from the ICC. Several other states, such as Uganda and the Philippines, announced that they might leave too. Russia withdrew their signature from the ICC a day after the Court called the Crimea situation an international armed conflict and occupation. And US mobilization against the ICC is anticipated following the Court’s announcement that it may soon open full investigation into Afghanistan, including US conduct. Not surprisingly therefore, the main theme of this year’s ASP was (African) critique, cooperation and complementarity (i.e. the relationship between national prosecutions and the ICC as a court of last resort). However, observers of this year’s ASP also noticed a remarkable turn of attitude, language, tone and body language by representatives of the ICC and most state delegations. Like Darryl Robinson pointed out in his post, the discussion on the critique of the ICC during this ASP session could be described as “groundbreaking” – open, respecting and mature – while “constructive”, “dialogue” and “common ground” became this year’s sound-bites.

How the ICC and the project of international criminal justice will affect and be affected by this shifting geopolitical landscape remains to be seen. However, more than merely a technocratic meeting between states on the management and budget of the institution, the ASP functions as an annual diplomatic ritual where stakeholders reconstitute and renegotiate the ICC, and the international criminal justice field more broadly. It is a site of continuous (re)negotiation and political proxy battles on the law and politics, practice and development of international criminal justice. As such, the ASP offers an ethnographic prism for understanding how consensus and contestation in global deliberation processes forms part of the identity project of international criminal justice.

Lost amid polarization

This year was decidedly different from previous years, when polarization grew increasingly tense. Read the rest of this entry…

 
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