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Guest Post: A Complementarity Challenge Gone Awry– The ICC and the Libya Warrants

by Jennifer Trahan

[Jennifer Trahan is an Associate Professor, NYU, Global Affairs Program and Chair, American Branch of the International Law Association, International Criminal Court Committee.]

On July 28, 2015, a domestic court in Libya announced death sentences against Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, and Abdullah al Senussi, who served as intelligence chief. In total, 32 former Gaddafi-era officials were convicted, including 9 who were sentenced to death. Yet, observer accounts suggest the trials were deeply flawed, lacking key fair trial protections. The possibility that Libya will carry out the death sentences is clearly of huge concern to the defendants, but should also be of concern at the International Criminal Court.

On February 26, 2011, the UN Security Council referred the situation in Libya to the International Criminal Court. The Court originally issued 3 warrants for crimes committed during the 2011 uprising, against Muammar Gaddafi, Saif al-Islam Gaddafi, and Abdullah al Senussi, charging them with murder and persecution as crimes against humanity. The case against Muammar Gaddafi was terminated after his death.

Initially at issue in both the Saif Gaddafi and al Senussi cases was whether they should be tried in Libya or at the ICC, as the ICC will only try cases where national courts are “unwilling” or “unable” to conduct the trials. The Court ruled that Saif needed to be tried at the ICC, whereas al Senussi could be tried in Libya, as he was the subject of domestic proceedings and the ICC deemed Libya “willing” and “able” to carry them out. The ICC Appeals Chamber affirmed both rulings.

Yet, despite the ruling that Saif should be tried in The Hague, he was never surrendered, and remains in Libya. His situation is complicated by the fact that he is not held by any governmental authorities, but the “Zintan” militia.

As to al Senussi, this Author thinks the Court erred in its decision. The problem with the criteria of “willing” and “able” (or that a national court is not “unwilling” or “unable” to try the accused, as it is phrased in article 17 of the Rome Statute), is that it generally ignores an equally problematic third possibility – that a national court is “all too willing” to try someone (i.e., the situation of “overzealous” national proceedings). This is a situation one can certainly anticipate any time there has been a regime change and the new government wants to “get” at officials of the past regime – in other words, potentially the situation here. The rush to justice resulting in the Saddam Hussein execution is another example.

Human Rights Watch reports that al Senussi was denied adequate time to prepare his case, and adequate assistance of counsel. Saif, who was not even present for his trial, was apparently denied both these protections, and, additionally, while trials in absentia are permitted in Libya, the procedural safeguards required for them were apparently not provided. While the death penalty is permissible under Libyan law (and its imposition alone does not necessarily mean the trials were unfair), more and more countries categorically oppose the death penalty. At minimum, where it is a possible punishment, it is especially important that fair trial guarantees are scrupulously observed.

Should this turn of events be of concern to the ICC? Indeed.

Saif was supposed to be tried at the ICC, and he could end up executed in Libya. As a result of the ICC’s rulings, a “green light” was given to al Senussi’s trial in Libya, which has also resulted in a death sentence. If the sentences are affirmed on appeal and carried out, the ICC will have played a role in allowing two executions based on trials suspected of serious due process flaws.

There is still a chance for an appeal in Libya. Libya’s Supreme Court should independently and fairly review the verdict, particularly with a view to due process. But in the mean time, more pressure should be put to bear to ensure that Saif is transferred to The Hague (where he should have been all along), and al Senussi’s counsel should move to reopen the admissibility challenge based on newly discovered information (the events in Libya), or the ICC Prosecutor’s Office should do so.

The Appeals Chamber did leave an opening in its July 24, 2014 ruling (.pdf), suggesting that it would not utterly ignore due process violations by a national court, suggesting some concerns of an “all too willing” or “vengeful” national court:

It is clear that regard has to be had to ‘principles of due process recognized by international law’ for all three limbs of article 17(2), and it is also noted that whether proceedings were or are ‘conducted independently or impartially’ is one of the considerations under article 17(2)(c). . . . As such, human rights standards may assist the Court in its assessment of whether the proceedings are or were conducted ‘independently or impartially’ within the meaning of article 17(2)(c).

To the extent the Appeals Chamber also suggested the national proceedings would have to be “completely lack[ing in] fairness” such that they fail to provide “any genuine form of justice,” before the ICC can be the proper venue, the Judges are setting the bar too high. (Alternatively, it is conceivable that, upon further inquiry, one might find even that bar met.)

It is true that the drafters of the Rome Statute specifically rejected making the lack of due process a ground for admissibility. Yet, the precedent they were dealing with at the time – the experiences of the ICTY and ICTR, where “unwilling” and “unable” trials respectively were the concern – simply do not reflect what has become the experience of the ICC. Moreover, it is quite possible –as the Appeals Chamber has done — to read a “due process” component into the language of article 17 of the Rome Statute.

Based on the events in Libya—flawed proceedings that suggest a lack of impartiality—the Court should now find the al Senussi case “admissible” at the ICC and order him transferred. If that happens, individual states and the UN Security Council should be prepared to help ensure the transfer actually happens.

These may not seem the most significant cases the ICC has on its docket (they probably aren’t), but it would be a bleak day if the ICC (and the UN Security Council) stand by and let these death sentences be carried out on cases that stemmed from the Security Council’s referral, and as to which the ICC was involved.

Events and Announcements: August 30, 2015

by Jessica Dorsey

Announcements

  • The Goettingen Journal of International Law has recently released the second issue of its sixth volume. The thoroughly selected articles of issue 6.2 address a variety of current questions in international law. Among others, the new edition features an article by Heike Krieger, in which she reflects on developments of immunities. Further contributions are by Sergio Dellavalle, Tim Banning and Mélanie Vianney-Liaud. The journal’s latest issue can be accessed at www.gojil.eu.
  • On Tuesday 11 July 1995, a date which will live in infamy, the town of Srebrenica was overrun by Bosnian Serb forces. In order to commemorate this tragedy, the Board of Editors of the Netherlands International Law Review (NILR) invited a select number of authors to contribute to a Special Issue on the Impact of the Fall of Srebrenica (1995-2015) on various areas of public international law. These areas are: the law relating to the United Nations (peace and security), the law relating to international crimes, the law relating to international responsibility and the law relating to international remedies. The Board of Editors of the NILR is proud to announce the publication its first Special Issue since 2010. So that we will never forget.
  • Volume 6, Number 2 of Trade Law and Development has been published. The contents of the journal can be found here.

Events

  • The T.M.C. Asser Instituut, the Dutch Red Cross and the Amsterdam Center for International Law are hosting a HILAC (Hague Initiative on Law and Armed Conflict) Lecture by Sasha Radin, Editor-in-Chief of International Law Studies and Associate Director of Research at the U.S. Naval War College’s Stockton Center, on September 8, 2015 at the Humanity House in The Hague. Sasha will speak on “Competing Concepts of Security Detention in NIAC.” A growing opinion exists that because of IHL’s lack of explicit law governing the legal basis, grounds and procedures for security detention in NIACs, any such basis must be found outside of IHL (most likely under domestic law and human rights law); absent that legal basis, detention would be arbitrary and unlawful. What are the implications of such an interpretation and is this the best way forward? The event is free. If you’d like to attend, please register with the Humanity House
  • The T.M.C. Asser Instituut is hosting a SCL (Supranational Criminal Law) Lecture by James Stewart, Deputy Prosecutor of the International Criminal Court, on September 9, 2015 at the T.M.C. Asser Instituut in The Hague. James will speak on ” International criminal law – a personal note on its practice and current challenges.” This event is free and does not require registration. For more information, click here.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Emerging Voices: Incorporation of Plural Realisations of Justice within the ICC System

by Justin Yang

[Justin S. Yang, PhD Researcher at King’s College London; LL.M at Leiden University.]

The International Criminal Court (ICC) projects a legal framework that is unique from the prior expressions of international criminal justice. In the construction of its Statute, in particular through the system of complementarity, the Court embodies the potential to actualise a horizontal and communitarian system of justice; rather than mandating a singular perspective of law in a vertical hierarchy, the ICC framework is designed to accommodate the inherent plurality of its international membership.

Tracing the development of international criminal justice institutions in the 20th century has illustrated that this project has been in oscillation between peak periods of heightened inter-state cooperation and trough periods of resistance to encroachments on Westphalian sovereignty. The respective institutions that were established following World War I, World War II, and the Cold War have predominantly reflected the interests of only the particularly powerful states, albeit under international communitarian rhetoric.

Prior to the ICC, exercises in international criminal justice were exclusively facilitated first by the key multinational states of the post-war Allies, and later by the P5 of the UN Security Council. Rather than devising a new justice system that could be compatible with sovereign equality and the multiplicity of legitimate legal systems on the international plane, the post-war multinational bloc opted to adopt the vertical trial-based nature of Western domestic criminal systems. In other words, these judicial institutions, acting on behalf of the multinational leadership, presided at the apex of their respective scope of adjudication, in the same way a sovereign reigns supreme in its domestic system. Mirroring the capacities of the sovereign, these international judiciaries were unchallengeable, and arbitrarily made claims to various laws, as understood and accepted by them, onto diverse heterogeneous situations. In this penetrative hierarchy, sovereign boundaries and the indigenous legal systems of the subject state were explicitly disregarded and disapplied by the adjudicators. Therefore, diverse circumstances, local peculiarities, and contextual relevancies, all of which could materially affect the process of adjudication and determination of culpability, failed to be considered. The crimes were analysed solely through the perspectives of the multinational victors.

The ICC marks a departure from this tradition of vertical justice. The democratic legitimacy inherent in its treaty-based creation, and its central tenets of independence and impartiality has, in theory, separated criminal adjudication from overarching political agendas, including that of the UN Security Council. The symbiotic relationship between the Court and its member states, within the complementarity regime, has allowed for a horizontal, stateless, and impartial system of justice to exist over the global community. Being complementary to national systems means that the Court preliminarily defers to a state’s sovereign prerogatives to exercise criminal jurisdiction over international crimes. This prerogative is perceived as a duty of every state (Rome Statute, Preamble). Upon failing this duty at a standard deemed acceptable by the Court, the case may then be admitted into the ICC docket. State proceedings are therefore inherently underpinned by the implicit threat of the Court ‘seizing’ the case, if the framework of preventing impunity (Rome Statute, Article 17) is not satisfactorily upheld. (more…)

Guest Post: Malaysia Airlines Flight MH17–Possible Legal Avenues for Redress (Part 2)

by Aaron Matta and Anda Scarlat

[Dr Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Anda Scarlat is a Summer Fellow with the Rule of Law Program at the Institute.With many thanks to Dr Lyal Sunga and Jill Coster van Voorhout for their helpful feedback on earlier drafts of this commentary.]

Following on from our previous commentary on potential state responsibility, this post will look at the role of individual criminal responsibility in addressing the downing of MH17. Proposals have been made for using either existing mechanisms or for setting up a new tribunal to address this incident specifically. Determining the best avenue ultimately depends on the outcome of the investigations into the incident and the political realities of the situation.

At the outset, it is important to note the most recent major development: the Russian veto, on 29 July 2015, of a proposed United Nations Security Council (UNSC) resolution which aimed to set up an international tribunal to prosecute the individuals responsible for downing MH17. Despite this apparent setback, which is explored further below, a wide variety of options remain open.

Domestic Prosecution

First, the alleged perpetrators could face domestic prosecution in a state which has jurisdiction over the crimes in question. The most familiar bases for jurisdiction under international law would be: territorial (i.e. Ukraine, in whose territory and/or airspace the alleged crimes took place; or Malaysia, as the state of registration of the aircraft, in accordance with Article 3(1) of the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft); nationality (depending on the nationality of the alleged perpetrators, which has not yet been established); and passive personality (depending on the nationality of the victims, so including states such as The Netherlands, Malaysia and Australia). In addition, if international crimes are alleged, any state could exercise universal jurisdiction over the alleged perpetrators, for example on grounds that the incident amounted to “war crimes”; this would depend on the various states having legislated to give their domestic courts jurisdiction to prosecute international crimes. In addition, it may be very difficult to secure the arrest and surrender of accused persons for prosecution at the national level, especially if they are high ranking officials.

It is possible that The Netherlands would exercise jurisdiction over these alleged crimes, based on either passive personality or universality, given the important role it has played in investigations thus far, as well as the fact that a large number of its nationals died during the incident. Although these circumstances are likely to result in support for such a prosecution at the domestic level in future, The Netherlands (alongside states such as Australia, Belgium, Malaysia and Ukraine) is currently pushing for other avenues for prosecution, such as an international tribunal.

One could also argue that Ukraine and Malaysia have more robust jurisdictional claims over the incident by virtue of the territoriality principle. However, this argument is typically based on the practical reality that these states would, in most cases, have better access to the witnesses and other evidence needed for prosecution. In the case of MH17, given the strong involvement of The Netherlands and other states in the investigation thus far, these investigating states may be in a better position, de facto, to carry out the prosecutions, regardless of the relative robustness of the de jure basis for jurisdiction.

International Criminal Court

Secondly, if international crimes falling within the ambit of the Rome Statute of the International Criminal Court (ICC) are alleged, the perpetrators could also be tried before this Court. However, (more…)

Emerging Voices: “Do No Harm” and The Development of General Corporate Human Rights Obligations

by Gabriel Armas-Cardona

[Gabriel Armas-Cardona received his J.D. from New York University and was a legal officer at Lawyers Collective in New Delhi, India where he managed the Global Health and Human Rights Database.]

Human rights activists have long complained of legal lacunae in domestic and international law over the regulation of corporations. This is why last year’s United Nations Human Rights Council resolution to elaborate binding obligations on corporations was cheered by activists (and derided by business). The UN’s previous attempt to develop a general framework of responsibilities in the 2011 Guiding Principles on Business and Human Rights did not impose binding obligations, likely one of the reasons it was generally praised by corporations.

Corporate behavior is primarily regulated through two domestic legal systems: tort and a corporate regulatory regime. The first is the traditional remedy system for individuals while the latter is the State impositions on business to promote a social good. In well-regulated States, these two distinct systems have grown to more effectively protect that society. But many developing countries don’t have legal systems in place that effectively protect their society and almost no State regulates corporate action abroad for the protection of other societies. The value of binding legal obligations is that they can remove the lacunae by having universal and consistent obligations for all corporations within States and in the interstitial space between jurisdictions.

These obligations would be distinct from and would not dilute State human rights obligations. Having multiple dutybearers, even qualitatively different ones, is not problematic. Corporate obligations would positively interplay with States’ duty to protect to further realize human rights. When a violation by a corporation occurs, it would be the State’s duty to provide a remedy system, stemming from a State’s duty to protect, and the corporation’s duty to cooperate with that system, stemming from the secondary duties mentioned in the duty to fulfill, or to directly provide reparations to the victim (in normal parlance: go to court or settle). If the corporation cannot provide reparations (e.g. due to bankruptcy), then the State would have to provide reparations directly. Either way, the victim is made whole.

Underlying the challenge is that there currently is no principled framework for universally applicable corporate obligations. One can’t simply copy State obligations and apply them to corporations; their obligations must reflect that they are private actors. The Guiding Principles state that corporations “should avoid infringing on the human rights of others” (Principle 11), or as the Special Representative of the Secretary-General that wrote the Guiding Principles said, the responsibility of a corporation is “put simply, to do no harm.” The principle of “do no harm” has been used as a touchstone in corporate human rights obligations since at least 2002 and is a surprisingly suitable standard for developing a structure for general obligations.

As dutybearers, the same tripartite typology of human rights can apply to corporations as States; i.e., a human right would impose duties on corporations to respect, protect and fulfill. The Shue/Eide typology recognizes that the realization of rights can require measures of varying degrees of activity by dutybearers. Corporations can violate rights as producers, industry players, or employers; thus, depending on the situation, corporations may be required to stop selling defective goods, protect victims from violations done by the corporation’s supply chain or provide reparations for a prior harm. The majority of obligations falls within the duty to respect, but the duties to protect and fulfill provide new and interesting duties that respond to the concerns of corporate violations.

To understand what substantive obligations arise from “do no harm,” it helps to use the example of a particular right, such as the right to health. As economic entities, corporations are able to directly infringe on the realization of economic, social, and cultural (ESC) rights. The right to health is one of the most developed and broadest ESC rights, making it useful to use here.

The content of corporate obligations vis-à-vis the right to health

(more…)

Guest Post: Malaysia Airlines Flight MH17–Possible Legal Avenues for Redress (Part 1)

by Aaron Matta and Anda Scarlat

[Dr Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Anda Scarlat is a Summer Fellow with the Rule of Law Program at the Institute.With many thanks to Dr Lyal Sunga and Jill Coster van Voorhout for their helpful feedback on earlier drafts of this commentary.]

17 July 2015 marked one year since the downing of Malaysia Airlines flight MH17 over eastern Ukraine, resulting in the death of 298 persons (passengers and crew). As approximately two thirds of the victims were Dutch nationals, the tragedy is particularly poignant in The Netherlands. The facts surrounding the incident are not yet clear, with suggested scenarios for the downing of the aircraft including firing by pro-Russian rebels or from a Ukrainian fighter jet. International investigations are still ongoing and are looking, on the one hand, at the causes of the incident and, on the other hand, at criminal responsibility. The Netherlands is taking an active role in both investigations.

The past year has also been marked by increasing speculation on the legal avenues for redress available to the victims’ families, the affected states, and the international community as a whole. The options include: state responsibility (inter-state litigation in the International Court of Justice (ICJ), or claims against a state who violated its human rights obligations under the European Convention on Human Rights (ECHR)); and individual criminal responsibility (at the national and international levels).

This first of two posts will look at the two options for state responsibility, while our second essay will consider proposals for international criminal responsibility and the prospect of setting up an international criminal tribunal.

Inter-State Dispute Resolution: International Court of Justice

Shortly after the downing of MH17, speculation began about possible inter-state claims before the ICJ. As aptly explained here, a possible claim against Ukraine could be based on the precedent in the Corfu Channel Case, for causing or failing to prevent the downing of MH17 while it passed through Ukrainian airspace. The precise basis for the claim would depend on the outcome of the factual investigation. First, responsibility could arise if Ukraine were directly responsible for the incident through a positive act, such as the use of a weapon. Second, responsibility could arise if Ukraine had failed to avert a foreseeable risk to civilian aviation within its airspace, given that there was ongoing fighting in eastern Ukraine and that Ukraine had already decided to close its airspace up to 32,000 feet, which was just short of the altitude at which MH17 was flying.

Furthermore, if it is found that those responsible for downing MH17 were receiving support from another state (for example Russia, as is widely argued) the supporting state could face a claim along the lines of that raised in the Nicaragua Case, for “‘organizing or encouraging the organization of irregular forces or armed bands … for incursion into the territory of another State’ and ‘participating in acts of civil strife … in another State’, in the terms of General Assembly resolution 2625 (XXV)” (para 228).

Substantive issues aside, another pertinent consideration is that the ICJ’s jurisdiction is fundamentally based on state consent (as per Article 36(1) of the ICJ Statute). As explained here, the potential respondent states (for example Ukraine or Russia, if the result of the investigation points towards them) have not made a declaration accepting the ICJ’s jurisdiction in respect of inter-state disputes (Article 36(2)). Therefore, the feasibility of an ICJ claim would depend on the respondent states accepting the jurisdiction of the ICJ for this particular claim via a special agreement (Article 36(1)). This makes inter-state litigation on the MH17 incident relatively unlikely.

In addition, such a claim would have to be brought to the ICJ by one of the potential applicant states, for example The Netherlands. This illustrates the relative impotence of the individual in the international system: the victims’ families depend on a state choosing to bring a claim under diplomatic protection on behalf of its nationals. As yet, there have been no indications that an ICJ claim would be pursued.

The difficulties in bringing a contentious case before the ICJ may be bypassed if one of the UN organs, for example the General Assembly or Secretary General, requests an Advisory Opinion on the MH17 incident, as suggested by Olexander Horin, Ukrainian Ambassador to The Netherlands [see video, relevant parts are in English]. Even though this may give some clarity on the legal position, the Advisory Opinion would not be binding on the responsible state(s), and may therefore be of limited value in practice.

Human Rights Claims: European Court of Human Rights and Domestic Litigation

Potentially responsible states could, however, face claims directly from the victims’ families under the ECHR. Such a case, Ioppa v Ukraine, was lodged with the European Court of Human Rights (ECtHR) in November 2014, alleging that Ukraine has violated its human rights obligations, presumably under Article 2 (the right to life). In addition, the applicants could also bring a claim against Russia, if the ongoing investigation concludes that Russia was sufficiently involved in the conflict in eastern Ukraine, as detailed below. Both Ukraine and Russia are parties to the ECHR, which means that individuals can bring claims against them before the ECtHR for alleged human rights violations (Article 34 of the ECHR). (more…)

The Post-Incarceration Life of International Criminals

by Kevin Jon Heller

The inestimable Mark Kersten devotes his new column at Justice Hub (ignore the scary portrait) to an unusual issue: whether international criminals should be able to pursue higher education once they are released from prison. The column focuses on Thomas Lubanga, who recently stated his desire to complete a PhD at Kisengani University after he is released. Here is Mark’s takeaway, reached after he discusses the (very different) examples of Saif Gaddafi and Sam Kolo:

Still, these stories raise important questions: should convicted and alleged war criminals be allowed – perhaps even encouraged – to pursue higher education? Is there, as many believe, something curative in the pursuit of education that might help to deter relapses into criminality? Is there something morally egregious when former perpetrators of mass atrocities are afforded educational opportunities that they have – by their very actions – denied thousands of others? Is the best alternative to prevent them from pursuing any education and thus letting them ‘rot in prison’ or turning a blind eye and sending them back into the world without any support? What would be the risks in doing so? Do tribunals have any responsibilities for supporting released convicts? Should the tribunals and the international community consider the strategies of domestic prison systems, where education is often encouraged as a means of healing and skills development?

As the world of international criminal justice plods along and matures, new and uncomfortable questions will undoubtedly emerge, including what the post-incarceration life of war criminals should look like. There are no easy answers. The pursuit of higher education may leave a bitter taste in the mouths of some. But given all of the options and the ever-present risk of war criminals returning to their old habits, encouraging them to pursue an education may be a least-worst option.

I confess that I don’t find this a difficult issue at all. In my view, once an international criminal has served his sentence, he should be treated no differently than any other citizen. That’s the way we treat domestic criminals, as Mark notes. Why should international criminals be treated differently? Because their crimes are worse? That may be so — but once they have paid their debt to the international community, what is the basis for continuing to punish them by denying them educational opportunities? Human-rights groups and victims may believe that Lubanga got off easy; I might agree with them. But it’s not Lubanga’s fault that Moreno-Ocampo undercharged him. And it’s not Lubanga’s fault that the Trial Chamber arguably (I don’t agree) gave him too lenient of a sentence. He did the crime and served the time. That should be the end of the story. So I don’t like Mark’s question about whether Lubanga should be “allowed” to pursue a PhD. He would no more be “allowed” to pursue a PhD after his release than I would. There is no legal basis to deny him one. (Admission requirements, of course, are another story…)

For similar reasons, I don’t like the way Mark phrases his final takeaway: that encouraging international criminals to pursue an education “may be a least-worst option.” Nothing in Mark’s column indicates that anything negative will result from an international criminal getting a PhD. Saif Gaddafi is a poor example, because he didn’t actually write his own dissertation. And Sam Kolo’s post-LRA life indicates that Mark should have concluded encouraging international criminals to pursue an education may well be the very best option. So what is the basis for describing post-incarceration education as one of the “least worst” options? Is the fear that the international criminal will write a dissertation entitled “A Step-by-Step Guide to Committing Genocide”? It seems far more likely that the international criminal — if successful in, say, a PhD program — will rely on his previous actions to illuminate an aspect of conflict that we “peaceable” types cannot possibly understand in the same way.

Indeed, as I was  reading Mark’s column, I couldn’t get Albert Speer out of my mind. Speer did not pursue a PhD after he was released from Spandau prison in 1966, but there is no denying that he used both his incarceration and his post-incarceration life productively. He wrote Inside the Third Reich and Spandau: The Secret Diaries while in prison, and after his release he wrote Infiltration, a seminal work on Himmler’s SS. How much less would we know about the Third Reich if Speer had not been “allowed” to write and publish books on account of his crimes?

I’m not suggesting, of course, that Lubanga is likely to follow in Speer’s academic footsteps. But Lubanga’s proposed focus for his graduate studies does, in fact, seem worthwhile: “I hope to help identify a new form of sociology that will help the tribal groups to live together in harmony.” If anyone has something to say about that topic, isn’t it someone who knows tribal conflict all too well?

So What Are Your Top 5 Worst Treaties Ever?

by Duncan Hollis

Benjamin Soloway at Foreign Policy magazine thrilled me last week when he called to set up an interview for this story on the worst treaties ever.  Simply put, I love treaties and I love lists.  After all, a few years back I started a discussion on the most important treaties ever.  But, having given a lot of thought to my top 5, I was surprised to have never done a list of my bottom five.  So, I spent an entire day before talking to Ben, pestering my family (who do not necessarily share my enthusiasm for all things treaty-related) with various candidates based on different ways of defining “worst” (worst treaty for humanity? the parties? one party in particular? for third parties? for the agreement’s stated goals?).  In the end, I’m glad to see all the treaties that I mentioned got onto his list. Some, sadly, didn’t make the cut –I’d wanted the Universal Rubber Agreement included because it’s a rare example of a treaty that so failed to perform its intended functions (stabilizing rubber as a commodity) that the parties went through the trouble of terminating it in lieu of just letting it fall into desuetude.

Interested readers should definitely read Ben’s article.  But I thought I’d open the comments section here to allow Opinio Juris readers to sound off on whether they agree with his list, or to offer their own suggestions.  What treaties would you add (or delete) if we’re talking about the worst treaties of all time?

Members of UN Security Council Discuss LGBT Issues

by Kristen Boon

13 of the 15 members of the UN Security Council met yesterday to address LGBT issues for the first time in a closed session chaired by Chile and the US.     The focus was on persecution of gays in Syria and Iraq.    As an Arria-formula meeting, the discussion was confidential, however news reports after indicate the group discussed the Islamic State’s targeting of LGBTQ residents of Iraq and Syria.   Samantha Power, US Ambassador to the UN, told the diplomats that “we are coming together as a Security Council to condemn these acts, to demand they stop, and to commit to one day bringing the perpetrators to justice. That unified condemnation matters.”

See the news reports here, here and here for more details.

Emerging Voices: Is the International Community Ready for a “Duty to End Impunity”?

by Auriane Botte

[Auriane Botte is a Ph.D candidate in International Law at the University of Nottingham (UK).]

One can no longer count the number of times that the objective of ending impunity for core international crimes has been crushed by more pressing political and diplomatic interests. The most recent instance was on the 15th of June when South Africa allowed Omar al Bashir to return to Sudan despite an interim order issued by the High Court in Pretoria to prevent the Sudanese President from leaving South Africa, pending a decision on implementing an arrest warrant issued by the International Criminal Court (ICC) in 2010. This decision to favour impunity over justice is even more disgraceful since South Africa has been a State Party to the Rome Statute since 2000. As a quick reminder, Omar al Bashir is accused of indirectly participating in the commission of crimes against humanity, war crimes and genocide committed in Darfur. What happened in South Africa may, nevertheless, give a ray of hope as there was, for once, an attempt to hold Bashir accountable. Another positive aspect of this non-event is that it demonstrated the increasing power of civil society to put pressure on governments in relation to issues of impunity, with the support of the domestic courts.

The situation in Darfur, Sudan has repeatedly been under the spotlight this year, as it sadly illustrated the weakening of the fight against impunity for core international crimes. Last December, the ICC Prosecutor announced in her report to the Security Council on the situation in Darfur that she decided to “hibernate” the investigation on this situation. This decision was taken following a blatant lack of cooperation from Sudan and a lack of support from the Security Council for the work of the ICC, despite the fact that the situation was initially referred to the Court by the Security Council. The ICC Prosecutor as well as the ICC Pre-Trial Chamber II recently pointed out the lack of willingness from the Security Council to play its part by imposing measures on UN Member States for their failure to comply with Resolution 1593 (2005) requesting cooperation with the ICC. This lack of cooperation with the ICC from UN Member States as well as from the Security Council demonstrates the limits of the commitment of the international community to achieve the objective of ending impunity.

These two serious impediments to the objective of ending impunity in Darfur highlight a major flaw in the response to core international crimes by the international community: the absence of significant consequences for the failure to cooperate with the ICC. In other words, if a State decides not to cooperate with the ICC, it is unlikely that the State will have to face any serious consequences. The scarce provisions of the Rome Statute related to non-cooperation and the soft approach taken by the Security Council or the Assembly of States Parties on instances of non-cooperation illustrate further this flaw. In the specific situation in Sudan, an argument has been put forward, notably by the African Union, that the States Parties may justify their refusal to execute a request from the ICC to surrender Omar al Bashir by their obligation under International Law to respect the diplomatic immunity of the Head of States. This goes back to the ongoing debate of the opposing Articles 27 and 98 of the Rome Statute, raising the question whether the irrelevance of official capacity under the Rome Statute should prevail over obligations to ensure diplomatic immunity under International Law. The main issue here is that the Security Council did not explicitly waive the diplomatic immunity of the alleged perpetrators in Sudan. Nevertheless, the ICC Pre-Trial Chamber II reaffirmed that Resolution 1593 (2005) did de facto waive the immunity of Omar al Bashir.

The problem of the lack of commitment to end impunity for mass crimes goes beyond the issues of non-cooperation with the ICC. It may be timely to rethink the responsibility for core international crimes by looking at the broad picture. A possible way to revive the objective of ending impunity for core international crimes may be to consider it outside the focus of individual criminal responsibility and to integrate it within a larger framework of accountability mechanisms. This may allow for developing a wider approach drawing simultaneously from International Criminal Law and State responsibility norms to cover an extensive range of accountability mechanisms at the international and domestic level. International Criminal Justice may potentially benefit from the conceptualisation of a duty to end impunity lying with the States and associated with appropriate consequences for the failure to fulfil this duty. It is important to note that this obligation may not only fall upon the States. The Security Council may also have an impact on ending impunity through targeted sanctions and other accountability measures. Due to the limited length of this post, this issue will not be discussed further.

A structured framework to strengthen the duty to end impunity may be inspired by (more…)

Emerging Voices: Strength and Legitimacy of Control Mechanisms in International Human Rights Treaties: The Moderation Effect

by Katarína Sipulova, Hubert Smekal and Jozef Janovsky

[Katarína Šipulová is a student in an MSt in Socio-Legal Research, University of Oxford and a PhD candidate at the Faculty of Social Studies, Masaryk University. Hubert Smekal is an Assistant Professor at Faculty of Social Studies, Masaryk University; and Jozef Janovský holds an MSc in Applied Statistics, University of Oxford, having previously studied politics and applied mathematics at Masaryk University. This contribution comes from research under a project entitled “International Human Rights Obligations of the Czech Republic: Trends, Practice, Causes and Consequences,” GA13-27956S, supported by the Czech Science Foundation GAČR.]

The study finds that the strength of a human-rights treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties. Empirical test of the “moderation effect hypothesis” showed that the overall speed of the commitment process of communist Czechoslovakia and newer democratic regimes (CR and SR) was quite similar. However, while communist Czechoslovakia preferred commitments to treaties with weak control mechanisms, the transitioning CSFR and its democratic successors were more prone to ratify treaties with a strong control mechanism.

What motivates states to ratify international human rights treaties remains an unanswered question in political science. Many tentative explanations for the observed commitment patterns have been proposed, relating e.g. to the character of the political regime of the state (Moravcsik 2000, Hafner-Burton – Tsutsui – Meyer 2008), the characteristics of a treaty and how they diverge from a country’s practice (Hathaway 2007; Cole 2005), and foreign policy goals (Goodman 2000, Heyns and Viljoen 2001), especially accession to the EU (Guzman 2008; Landman 2005).

A thorough examination of practices in two post-communist countries, the Czech Republic and Slovakia, contributes to this long-standing debate on different commitments patterns (i.e. signatures and ratifications). Our in-depth comparative study is based on a set of more than 190 human rights treaties; by a “human-rights treaty” we understand any multilateral treaty which includes human-rights provisions (i.e. both predominantly human-rights treaties and treaties dealing with human rights only in parts of their provisions). These are typically treaties which originated in the Council of Europe, the United Nations and the International Labour Organization.

The study covers two countries with similar foreign policy incentives as well as a common historical, political, and legal heritage. Interestingly, the political experience of the both countries has included non-democratic, semi-democratic, democratic and transitional periods. After the fall of a four-decade-long communist regime in 1989, both countries experienced a short intermezzo as a federal democratic republic (“CSFR”), which dissolved on 1 January 1993 following strong calls for national self-determination. Approximately seven decades of common history meant that the two new states shared a common starting point with regards to their international commitments and domestic legal systems. The Czech Republic set off decisively for political and economic liberal reforms in order to quickly integrate into Western international structures and it very soon acquired a reputation of the front-runner among post-communist countries. On the other hand, between 1993 and 1998, Slovakia, under the government of Prime Minister Vladimír Mečiar, slowly moved towards a semi-authoritarian system, characterised by restrictions of political rights, censorship in the media, and economic scandals. At the end of 1998, Mečiar’s government fell due to worsening economic problems and foreign-policy failures (pre-accession talks with the EU and NATO were particularly unsuccessful). After 1998, Slovakia caught up with the other CEE candidate countries and fully reoriented its efforts towards integration into Western structures. In December 2002, both states successfully concluded their pre-accession negotiations with the EU and subsequently acceded on 1 May 2004.

In this study, we do not break out the period of Mečiar’s government for methodological reasons: its character and position on the democratic – non-democratic axis remains disputable (see Janos 2000, Kitschelt 1999, or Linz and Stepan 1996). However, the political developments are taken into account when interpreting the data. Experience with different political regimes adds data variability and enables us to focus on the relationship between the character of the regime and state’s commitment activity wherever possible. Academic literature includes regime type among the most important variables influencing the decision to commit. Several authors have pointed out that non-democratic countries with poor human rights records tend to ratify treaties at a higher rate and speed (Hathaway 2002), in order to demonstrate a low-cost legitimizing symbolic commitment without any actual willingness to comply (Hafner-Burton – Tsutsui – Meyer 2008). Moreover, this commitment might be further distorted either by the use of reservations (Neumayer 2007) or a control mechanism too weak to be seen as a credible threat (Dutton 2013).

Control mechanisms adopted in human-rights treaties (i.e. their strength) differ profoundly: from no control, through an obligation to submit internal reports, to subordination to the jurisdiction of a judicial body. In this short contribution, we focus on the influence of the control mechanism on commitment patterns. Our distinct argument, that the strength of a treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties, is then tested on the Czech and Slovak experience.

Empirical Study

Figure 1 mirrors our expectations regarding the frequency and the speed of human rights commitments of the Czech Republic and Slovakia under different political regimes. Based on the above-mentioned theories, we would expect non-democratic communist Czechoslovakia to commit to few human rights treaties, and primarily to those with a weak control mechanism (i.e. with no actual control or limited to domestic reports). However, the process of these commitments should be rather fast, because of the limited need for deliberation. On the other hand, we expect the post-1989 Federal Republic to be strongly human-rights oriented, committing frequently and fast in order to boost its international credentials and spur the proverbial return to (Western) Europe. After the consolidation of new democracies, we expect the speed of ratifications to slow down.

Figure 1: Theoretical expectations (Source: authors)

  Regime Commitment pattern(expected frequency and speed of commitments)
Communist Czechoslovakia (1948-1989) Non-Dem Low commitment activity; medium-fast processHigher for treaties with a weak control mechanism compared to democracies
 Federal Republic (1990-1992) Dem High + fast for all treaties
Czech Republic (1993 →) Dem Medium + slow for all treaties
Slovak Republic (1993 →) Dem* Medium + slow for all treaties

The overall human rights commitment activity of Czechoslovakia and its successors is presented in Figure 2. The graph shows the cumulative number (more…)

Weekly News Wrap: Monday, August 24, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

  • Signatories of the Arms Trade Treaty, a major treaty aimed at regulating the international arms trade, should agree a number of key steps for its implementation at a conference this week, host nation Mexico said on Sunday.