In association with the International Commission of Jurists

Recent Posts

05 Aug

The request is supported by a number of leading QCs and professors in Britain. (Full disclosure: three of the signatories are barrister members and one is an academic member of Doughty Street Chambers, with which I'm associated.) Here is the Bar Human Rights Committee's summary: Public international law and criminal law Q.C.s and Professors based in Britain join with the Bar Human...

|
04 Aug

As Eugene notes in today's guest post, the Palestinian Authority (PA) appears to have decided to ratify the Rome Statute. I'll believe it when I see it: the PA has threatened to ratify before, only to back down at the last moment. But could it? Most observers have assumed it could, but Eugene disagrees. I think his bottom line may well be...

|
04 Aug

[Clare Frances Moran is a teaching fellow in law at Abertay University, and is due to submit her PhD thesis at the University of Glasgow in late 2014.] In the eight years since Cesare Romano’s assertion that the ‘season’ of international criminal law was coming to an end, the season appears to have turned into an Indian summer. During this summer, the focus of international criminal law has evolved. The formative debates on the significance of the idea of aggression and the conceptual boundaries of genocide have developed into a discussion on how to use such concepts in order to protect individuals, regardless of traditional concerns such as a state link or sponsorship of the violence. This shift in focus indicates a continued interest in the idea of international criminal law, and the aim of creating a system of international criminal justice, but with greater attention to the protection of individuals. As such, the reason for continuing interest in international criminal law can be explored in relation to two strands of reasoning: the fading of the State requirement, and the shared purpose of international human rights law, international humanitarian law and international criminal law. The law of the initial international criminal tribunals – those of Nuremberg, Tokyo, Rwanda and the former Yugoslavia - focused on criminal conduct committed by those acting on behalf of States. Even the name of such tribunals gives away their aim: punishing those who have committed crimes while acting in official positions. Although the International Criminal Court looked a likely successor to these tribunals, it has taken a different direction with its prosecutions. Not a single defendant convicted or tried by the International Criminal Court to date has been affiliated to a state; the focus of the Court has shifted to the most serious situations, rather than those linked to acts on behalf of a State or committed by those representing a State. This premise represents a true departure from the origins of international criminal law in national military tribunals and the internationalised tribunals of Nuremberg and Tokyo. The trial of such individuals utilises the silence by the Statute on what may constitute an ‘organisational policy’ in the context of a crime against humanity. Many international lawyers would, in a similar vein, read into article 8 on war crimes the idea that the criminal activity was backed by a State, or at least that the State was complicit. However, this article is similarly restrained on mentioning the idea of a link to a State. The lack of direct prosecutions against State officials is interesting, and the arrest warrants issued for certain Heads of State indicate that the idea has not yet faded into obscurity. There is substantial difficult, however, apparent in organising such prosecutions. Laurent Gbagbo, former President of the Ivory Coast, remains the first and only Head of State to be detained by the ICC. His arrest warrant was issued in 2011 and initial hearing to confirm the charges was adjourned in February 2013, with the charges against him confirmed only recently in June 2014. In postponing the hearing in 2013, the Court clearly stated that the seriousness of the charges underpinned its decision to give the prosecution more time, and invariably it seems that trying Heads of States and the decision-makers of the piece is more complex. This again demonstrates the priority that the Court is giving to the seriousness of the crimes, rather than the link between the State and the individual. The number of prosecutions which have been raised against individuals who are part of groups which are non-state actors further indicates a shift away from the traditional focus on the State. The reduction of the number of States which engaged in armed conflict with one another makes it less likely that States ought to be the central focus of the Court, and that its mission to prevent impunity would be better served by ensuring that those who breach international criminal law and international humanitarian law are prosecuted. The recent crimes committed by Boko Haram in Nigeria and ISIS in the Middle East indicate that the discipline is evolving with the world.
|
04 Aug

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.] New reports say the Palestinian leadership has decided to seek to join the International Criminal Court as a member state. The PA has been threatening such action fairly constantly for several years, and it remains to be seen whether they mean it this time. A recent and little-noticed development at the ICC suggests the Palestinian Authority may have a harder time getting the Court to accept its accession than many previously thought. A few months ago, in a situation quite analogous to the Palestinians', the Court rejected an attempted accession. Recall that the ICC rejected a 2009 Palestinian attempt to invoke its jurisdiction by saying that it lacked the competence to determine if Palestine was a "state" under international law. A main motive for the last year's General Assembly's vote to treat Palestine as a non-member state was to bolster its case for ICC membership. The idea was that the OTP would look only to the formal, "political" action of the General Assembly, rather the the objective factors of whether Palestine satisfies the criteria of statehood, such as whether they control their own territory. Whether that is true or not, recent developments show that even if the OTP accepts that Palestine is a state - ignoring objective tests - it would conclude that the PA cannot accept jurisdiction on behalf of that state, certainly not for Gaza.
|
04 Aug

Africa The United States will announce nearly $1bn in business deals, increase funding for peacekeeping and commit billions of dollars to expanding food and power programs in Africa during a summit this week, officials said. Little action has been taken to clean up pollution caused by oil production in Nigeria's Niger Delta region, either by the government or Shell Oil, Amnesty International and other groups have said. Health...

|
03 Aug

Call for Papers The Lex Mercatoria Publica Project at the Max Planck Institute in Heidelberg has issued a Call for Papers for a workshop on "The (Comparative) Constitutional Law of Private-Public Arbitration" to be held on 21-22 November 2014. Against the background of a rising number of arbitrations between private economic actors and public law bodies, both on the basis of contracts...

|
02 Aug

This week on Opinio Juris, we had some vigorous debate on the legality of Israel's "Operation Protective Edge" in Gaza. Kevin opened the week with the question whether Israel can cut off water and electricity to Gaza, and Janina Dill raised two concerns with the IDF's practice of using warnings. Julian commented on the Joint Declaration on the Gaza Offensive signed by over 140...

|
01 Aug

[Ori Pomson and Tali Kolesov Har-Oz are both teaching assistants and LL.B. candidates at the Hebrew University of Jerusalem Law Faculty.]  Introduction The recent hostilities between Israel and Hamas have attracted a great deal of media and public attention. However, while a number of media reports have alluded to the legality vel non of certain actions committed by both sides, they have thus...

|
01 Aug

Under any view, the privilege of combatancy is key to the basic architecture of the law of war. It stands at the fault line between domestic criminal law and International Humanitarian Law, between impermissible killing and lawful belligerency. Simply put, the privilege of combatancy transforms, almost magically, what would otherwise be an unlawful act of murder into a lawful killing...

|
01 Aug

[David Benger is the Course Assistant for the Brandeis University in The Hague intensive summer school in International Criminal Law. He may be reached at dabenger [at] gmail [dot] com.] The International Criminal Court, an ostensibly purely legal organization, is nevertheless plagued by a wide variety of political pressures. For example, the attempt to balance The Court’s relationship with The African Union (widely considered to be deteriorating) and its relationship with the United States (widely considered to be improving) is an important thorn in the side of the Court’s daily operations. This post will examine the re-opening of the preliminary examination of British soldiers in Iraq through the lens of the potential political fallout of that decision. The re-opening of the preliminary examination in Iraq is not a signal of sufficient substance to appease the African anti-ICC lobby. Unless and until there are actual trials of European commanders in The Hague (not likely in the near future), the characterization of the ICC by African leaders as a neo-imperialist Western tool is not likely to dissipate based on a mere preliminary examination. With regard to the United States, however, the impact of this decision will almost certainly resonate. Though many observers of the USA-ICC relationship subscribe to the narrative of a steadily improving rapport between the two, this post will argue that this is not quite the case. In fact, the relationship between the Court and the USA is in a decidedly precarious position, and the re-opened Iraq investigation may have a decisive and damning impact on America’s potential support for The Court.
|
31 Jul

According to Standard & Poor's, Argentina has defaulted on at least some of its sovereign bonds, after last minute negotiations failed to reach a deal with its holdout bondholders, who had won a series of victories in U.S. court.  Although there are reports that some U.S. banks representing the rest of the bondholders are exploring ways to buy out the holdout bondholders...

|