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International Courts and Dispute Resolution

Emerging Voices: Interstate Arbitration: Awakening the “Sleeping Beauty of the Peace Palace”

by Tamar Meshel

[Tamar Meshel is an SJD Candidate at the University of Toronto Faculty of Law.]

In the early 1990s, a trend emerged among international legal scholars and practitioners aimed at reviving the Permanent Court of Arbitration (PCA) and, by extension, the use of arbitration to resolve interstate disputes peacefully. The PCA was created during the 1899 Hague Peace Conference, following a century of successful interstate arbitrations such as those between the United States and Great Britain under the Jay Treaty and the Treaty of Ghent, and it reflected the high hopes of the conference participants that the institution would bring about world peace through arbitration. However, after a decade or two of glory, the PCA gradually fell into disuse as states lost interest in arbitration as a dispute resolution mechanism, and it became aptly known as the “Sleeping Beauty of the Peace Palace” (Sam Muller & Wim Mijs, “The Flame Rekindled” (1993) 6(2) Leiden Journal of International Law). There are many political, historical, and legal rationales for this downturn, including the outbreak of the two World Wars, changes in the international political system, and the creation of the PCIJ and ICJ. This post focuses on another development that, while perhaps less recognized, is arguably responsible in part for the decline of interstate arbitrations during the 20th century, and is still relevant today. This development is the gradual ‘judicialization’ or ‘legalization’ of interstate arbitration to the point of being effectively equated with judicial settlement and both its original nature and distinctive qualities becoming imperceptible and inconsequential.

The evolution of interstate arbitration

The origins of arbitration can be traced back to ancient Greece, where arbitrators were seen as quasi-diplomats rather than judges, and could therefore “consider the equity of the case, whereas a judge is bound by the letter of the law” (Aristotle, cited in M.C.W. Pinto, “The Prospects for International Arbitration: Inter-state Disputes” in A.H.A. Soons, ed, International Arbitration: Past and Prospects (Martinus Nijhoff Publishers, 1990)). Arbitration continued to be used during the Middle Ages to end wars by reconciling the warring parties, and when the modern era of interstate arbitration began with the signing of the 1794 Jay Treaty between Great Britain and the United States, it was perceived as a hybrid process that combined legal proceedings with diplomatic negotiations. For instance, some of the disputes submitted to arbitration under the Jay Treaty were to be decided according to “justice, equity, and the laws of nations”, and their successful settlement was largely credited to the commissioners’ “spirit of negotiation and compromise”. While they rendered binding decisions and applied legal principles, the commissioners also “act[ed] to some extent as negotiators rather than as judges … temper[ed] justice with diplomacy [in order] to give a measure of satisfaction to both sides” (Pinto, 1990).

This perception of interstate arbitration persisted in the first decades of the 20th century. Some states, for instance, distinguished between judicial settlement, designed to resolve “legal disputes”, and arbitration, designed to resolve all other disputes ex aequo et bono while “having regard to the general principles of international law” (e.g., the 1928 Geneva General Act for the Pacific Settlement of International Disputes (.pdf); the 1957 European Convention for the Peaceful Settlement of Disputes). Arbitrators were also “prepared to waive a strict application of the law in order to achieve an acceptable settlement” in interstate disputes, such as the 1909 Casablanca case and the 1910 North Atlantic Fisheries case (M.C.W. Pinto, “Structure, Process, Outcome: Thoughts on the ‘Essence’ of International Arbitration” (1993) 6 Leiden Journal of International Law). However, as a result of the growing global quest during the 20th century for “orderly” interstate dispute settlement through the application of law, this quasi-diplomatic use of interstate arbitration gradually fell into disuse, and the dominant perception became that of the International Law Commission, which viewed it as “a procedure for the settlement of disputes between States … on the basis of law” (Pinto, 1990 (.pdf)). Accordingly, states increasingly restricted or excluded the power of arbitrators to decide disputes on the basis of equity or non-legal considerations and in all but a few rare, yet successful, cases (e.g., the 1968 Rann of Kutch arbitration; the 1986 Guinea-Guinea Bissau arbitration) arbitrators followed suit. The perception that only ‘judicial’ arbitration based on law should be “arbitration properly so called” thus became the conventional wisdom, even though in some cases, such as the 1977 Beagle Channel arbitration, it failed to resolve the parties’ dispute (Pinto, 1990, 1993). (more…)

Guest Post: Are States Injured by Whaling in the Antarctic?

by Priya Urs

[Priya Urs has recently received a Master of Law (LL.M.) with a specialisation in International Law from the University of Cambridge, U.K.]

The recent Whaling in the Antarctic decision of the International Court of Justice (ICJ) has unraveled existing debates about the propriety of whaling today, illustrated by the pivotal determination of whether the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) was in line with the object and purpose of the International Convention for the Regulation of Whaling 1946, and what that object and purpose might be. This issue, in turn, raises less discussed questions about the nature of the obligations the Convention imposes on contracting states; specifically, whether it includes an obligation erga omnes to refrain from commercial whaling. In this brief post I describe what the dispute does and does not tell us about the increasingly multilateral quality of state obligations, allowing even non-injured states like Australia to hold others accountable for obligations owed to the international community as a whole.

Multilateralism in International Law

Australia in its application to the Court alleged that the Japanese Government’s authorization of commercial whaling under the guise of scientific research was a violation of its obligations under international law – the Convention in particular, as well as ‘other obligations’ for the preservation of marine mammals and the marine environment. New Zealand (intervening) went a step further, suggesting that Japan’s actions were a challenge to the system of collective regulation established by the Convention, including contracting parties’ duty of ‘meaningful co-operation’. Japan on the other hand insisted that JARPA II was in line with the treaty’s Article VIII exception for scientific research, also claiming that there exists in customary international law a freedom to engage in whaling.

Considered collectively, the tenor of these various arguments raises a larger question about the very nature of state obligations: have multilateral ‘law-making’ treaties become the dominant source of obligations among states in contemporary international law? Professor James Crawford in a recent publication argues that to a large extent, they have. This trend is evident not only from the pleadings of Australia and New Zealand that conservation is a collective interest among states, but from the framework of the Convention itself. The Court’s discussion of the system of regulation set up by the Convention alludes to the cooperative effort among states contemplated during its drafting. In particular, the majority opinion notes the ‘significant role’ accorded to the Whaling Commission in regulating the activities of contracting states. In sum, whether the Convention amounts to a prohibition on or merely the regulation of commercial whaling, its law-making effect is well established.

The obvious conclusion to be drawn, then, is that multilateral agreements – such as the present Convention – are not merely aggregations of bilateral relationships. Their multilateral effect is manifested in the interest of states like Australia and New Zealand in ensuring mutual compliance irrespective of their ability to make claims to specific injury arising out of Japan’s violation. As a result, irrespective of whether the Convention was intended to prohibit commercial whaling as a conservationist effort, or simply to regulate states’ access to a common resource, this emphasis by the Court reaffirms this trajectory in the development of international law.

Obligations Erga Omnes

What is interesting about the proceedings in this dispute, then, is an issue that was not debated at all. Japan made no challenge to Australia’s standing before the Court (only making a challenge to ICJ jurisdiction using Australia’s reservation to the Convention), seemingly accepting as law the proposition that even though Australia was not an injured state in a bilateral relationship with Japan, it had a legal interest in ensuring widespread compliance among contracting states. This conclusion is purely conjecture, yet, regardless of whether this omission was a conscious decision or a glaring mistake by Japan, it is indisputable that all three parties’ positions in the Whaling dispute fall in line with the ICJ’s gradual recognition of obligations erga omnes over the last half-century.

Quick to offer an apology for its rejection of Ethiopia and Liberia’s public interest claim against South Africa in the South West Africa Cases, in 1970 the Court in its famous dictum in Barcelona Traction identified obligations erga omnes for the first time as obligations owed to the international community generally. It was only in 2012, however, that the question of standing was addressed by the Court directly, affirming in Obligation to Prosecute or Extradite that all states – including Belgium, a non-injured state – had a legal interest in ensuring Senegal’s compliance with the Convention Against Torture 1984.

This trend is reflected most clearly in Article 48 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts 2001 (ARSIWA), a progressive development of the law in which, instead of diluting the definition of an injured state, the ILC ultimately chose to recognise the right of a non-injured state to invoke the responsibility of a state in violation of its international obligations. Though not formally, the ICJ has affirmed the text of Article 48(1)(a) in its 2012 decision in Belgium v Senegal.

It is worth noting, however, that the Court indulged Belgium as a complaining state in a situation where the obligations involved were erga omnes partes only. As a result, its position on the broader category of obligations erga omnes in Article 48(1)(b) – owed to the international community as a whole – remains uncertain. It would appear that Article 48(1)(a) might have been similarly applied in the Whaling decision as involving obligations erga omnes partes on the basis of which Australia could defend its standing before the ICJ. Indeed, the Court seems to have subconsciously restricted itself to its position in 2012, determining the whaling dispute entirely on the basis of the Convention and choosing not to address Australia’s claims to Japan’s ‘other obligations’ outside of it.   

The ICJ’s silence on these developments in the law of standing in the Whaling decision is perhaps an unfortunate result of Japan’s failure to challenge to Australia’s locus standi. It might have been worthwhile for Japan to have argued that Australia had no legal interest in its alleged non-compliance with its treaty obligations, refuting Australia and New Zealand’s characterization of the dispute as involving multilateral obligations of the sort contemplated by Article 48(1)(a).

Conversely, Japan could have taken greater advantage than it did of Australia’s characterization of the Convention as a ‘multilateral regime for the collective management of a common resource’ in its jurisdictional challenge, precluding the need for the ICJ’s resolution of the dispute in the first place. Judges Owada and Bennouna hint at this in their dissenting opinions, each arguing that the self-contained institutional framework created by the Convention should be allowed to take effect in the interest of genuine multilateral cooperation, but stopping short of challenging Australia’s right of standing before the Court.

Is it possible to conclude that the ICJ is inclined towards expanding the content of obligations erga omnes to include efforts towards conservation of common resources? While the peremptory norm against torture might have been persuasive in recognizing Belgium’s claim to locus standi in Obligation to Prosecute or Extradite, strictly speaking, the peremptory status of the norm in question is irrelevant to the determination of whether the obligation to adhere to it is erga omnes. Consequently, it would be inaccurate to suggest that the Court in the Whaling decision has recognized the existence of an international norm against whaling. (more…)

Emerging Voices: Freedom or Restraint? On the Comparison Between the European and Inter-American Human Rights Courts

by Lucas Barreiros

[Lucas E. Barreiros is a Professor of Public International Law and Coordinator of International Human Rights Law Masters Program at the University of Buenos Aires.]

While much attention has been paid to the differences and similarities between the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR) as well as to the dialogue between them [see here, here, here and here for examples], none of that attention has been devoted to comparing the one aspect of their work that best and most synthetically captures all that sets them apart – that is, the doctrines of “margin of appreciation” and “control of conventionality”. It is proposed here that more attention should be paid to the explanatory power of these two doctrines in understanding the different identities and diverging trajectories of the ECHR and the IACHR.

As known, the “margin of appreciation” doctrine was developed by the ECHR starting in its Handyside v. United Kingdom judgment. It has been understood to refer, as pointed out by Steven Greer, to “the room for manoeuvre that the Strasbourg institutions are prepared to accord to national authorities in fulfilling their obligations under the European Convention on Human Rights”. The rationale for allowing this margin of appreciation, as pointed out by the ECHR in Handyside when referring to the conditions set out in the Convention to lawfully restrict the freedom of expression, is that national authorities, “by reason of their direct and continuous contact with the vital forces of their countries (…) are in a better position than the international judge to give an opinion on the exact content of these requirements”.

For its part, the “control of conventionality” was first mentioned by the IACHR in its judgment in the Case of Almonacid Arellano et al v. Chile.The IACHR held that:

“(…) domestic judges and courts are bound to respect the rule of law, and therefore, they are bound to apply the provisions in force within the legal system. But when a State has ratified an international treaty such as the American Convention, its judges, as part of the State, are also bound by such Convention. This forces them to see that all the effects of the provisions embodied in the Convention are not adversely affected by the enforcement of laws which are contrary to its purpose and that have not had any legal effects since their inception. In other words, the Judiciary must exercise a sort of “conventionality control” between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also the interpretation thereof made by the Inter-American Court, which is the ultimate interpreter of the American Convention.” (emphasis added).

It should be noted that there are two components to the doctrine – one deals with the responsibility of national authorities to ensure that the application of national legislation does not adversely affect the rights under the American Convention of Human Rights; the other, however, is the direct opposite of the “margin of appreciation” as it leaves no room for national authorities to conduct their own assessment and requires them to apply the interpretation of the IACHR.

(more…)

MH17 Should Be Framed as Murder, Not as a War Crime

by Kevin Jon Heller

It has become quite common to describe the downing of MH17 as a war crime. In late July, for example, Navi Pillay, the UN High Commissioner for Human Rights, said that “[t]his violation of international law, given the prevailing circumstances, may amount to a war crime,” More recently, William Burke-White has said that, for framing purposes, “[t]he time has come for governments and international organizations to call the attack on MH17 a probable war crime.” 

[I]f whoever launched the missile did so with the intent of killing the civilian passengers aboard MH17, the act was unmistakably a war crime.

Even if the objective was to strike a Ukrainian transport aircraft, the act likely constitutes a war crime. Fundamental to the law of war, including the law applicable in non-international armed conflicts, is the principle of distinction – the requirement that fighting parties distinguish between civilian and military targets. In the words of the International Committee of the Red Cross, that duty of care includes doing “everything feasible to verify that targets are military objectives.”

In this case, many steps could easily have been taken to differentiate MH17 from a military-transport plane, including visual identification (perhaps with binoculars), radar-signature analysis, and a check of the civilian aircraft transponder-code broadcast. If, as seems likely, these basic steps were not taken, even an accidental strike on MH17 would constitute a war crime.

If the Ukrainian separatists did indeed intend to kill civilians, Bill and Navi Pillay are absolutely right to describe the attack as a war crime — in this case, murder and/or intentionally directing attacks at civilians or civilian objects (to use the Rome Statute’s terminology). But everything we know to date about the attack indicates that the separatists honestly believed MH17 was a Ukrainian military transport, not a civilian airplane. If so, that changes the legal assessment of the attack considerably. The attack would still qualify as murder under domestic law — but it would not qualify as a war crime, under either the Rome Statute or the jurisprudence of the ICTY. (The latter likely representing the customary definition of the war crimes of murder and attacking civilians or civilian objects, which most states would apply in a prosecution based on universal jurisdiction.)

Let’s go in order. The problem with describing the attack on MH17 as a war crime under the Rome Statute is Article 32(1), which provides that “[a] mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.” The actus rei of the war crime of murder and the war crime of intentionally directing attacks at civilians or civilian objects each include a circumstance element: the individuals attacked must qualify as civilians (or as otherwise protected persons). The relevant mens rea for circumstance elements is knowledge, pursuant to Art. 30(3) of the Rome Statute: “For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists.” Black-letter criminal law provides that an honest mistake of fact negatives any mens rea that requires subjective awareness. So if the separatists honestly believed they were attacking a Ukrainian military transport, they were not aware that they were attacking civilians. In which case they could not be convicted of either the war crime of murder or the war crime of intentionally directing attacks at civilians or civilian objects.

The result is no different under the ICTY’s jurisprudence, even though the ICTY applies a lower mens rea to the war crimes of murder and attacking civilians. A complete discussion of the issue is beyond the scope of this post; suffice it to say here that an accused will be responsible for either war crime only if he was reckless toward the possibility that the objects of his attack qualified as civilian. (Dolus eventualis in civil-law terminology.) Recklessness is a subjective mental state in the ICTY’s jurisprudence; as the Trial Chamber noted in Brdjanin, specifically in the context of murder, “the threshold of dolus eventualis entails the concept of recklessness, but not that of negligence or gross negligence.”” Like the ICC, the ICTY recognizes mistakes of fact. As a result, the separatists could not be convicted of either the war crime or murder or the war crime of attacking civilians under ICTY jurisprudence if they honestly believed they were attacking a Ukrainian military transport: although that belief might have been negligent, even grossly negligent, its honesty meant that they were not subjectively aware they were attacking civilians.

The bottom line is that the accidental downing of civilian airplane based on an honest belief that the airplane was a military objective is not a war crime. Failing to take adequate precautions may violate IHL, but it is not criminal. The downing of MH17, therefore, should be framed not as a war crime but as murder.

Final Thoughts on the Bar Human Rights Committee’s Letter

by Kevin Jon Heller

Kirsty Brimelow QC, the chair of the Bar Human Rights Committee (BHRC) — and a colleague of mine at Doughty Street Chambers — has responded to my position on the 2009 Declaration, as recounted by Joshua Rozenberg in this Guardian article. Here is the relevant paragraph:

Neither Rozenberg’s opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support of their positions. This is hardly surprising given that the decision does not in fact “formally reject” the 2009 declaration.

Although I stand behind my claim that the OTP “formally rejected” the 2009 Declaration in its 2012 decision, Kirsty correctly points out that I did not cite the text of the decision. So I think it’s useful to summarise the text and quote it where appropriate:

[1] The 2009 Declaration purported to accept the Court’s jurisdiction over the situation in Palestine on an ad hoc basis, retroactive to 1 July 2002 (para. 1).

[2] Per Art. 15 of the Rome Statute, the OTP initiated a preliminary examination “in order to determine whether there was a reasonable basis to proceed with an investigation” (para. 2).

[3] The OTP stated that the first step in that inquiry was to determine whether it had jurisdiction over the events in Palestine. In that regard, it noted that “only when such criteria are established will the Office proceed to analyse information on alleged crimes as well as other conditions for the exercise of jurisdiction” (para. 3)

[4] The OTP pointed out that only a “State” can accept the Court’s jurisdiction on an ad hoc basis under Art. 12(1) of the Rome Statute (para. 4), which meant that the key issue with regard to the Declaration was whether Palestine qualified as a State (para. 5).

[5] The OTP concluded that it did not have the authority to decide whether, as a matter of law, Palestine was a State; that responsibility was “for the relevant bodies at the United Nations or the Assembly of States Parties” (para. 6).

[6] The OTP acknowledged that numerous states had acknowledged Palestine’s statehood and that Palestine had applied for membership as a State in the UN, but insisted that although the UN application was relevant, “this process has no direct link with the declaration lodged by Palestine” (para. 7).

[7] The OTP said it “could in the future consider allegations of crimes committed in Palestine” if the statehood issue was “eventually” resolved by the UN or ASP (para. 8).

Although the decision is not the picture of clarity, I still think it qualifies as a “formal rejection” of the 2009 Declaration. The Declaration formally requested the OTP accept jurisdiction and investigate the situation in Palestine. The OTP opened a preliminary examination, as required by the Rome Statute, but then ended that examination at the first step, concluding that it did not have jurisdiction over the events in question because Palestine could not establish that it was a State. That’s a rejection, even if the OTP — to use a common-law phrase — dismissed the Declaration without prejudice.

My guess is that paragraph 8 is the crux of the disagreement between the BHRC experts and me. They are reading it as a statement that the OTP would essentially hold onto the Declaration until the UN or ASP clarified Palestine’s status as a state, at which point it could then advance the preliminary examination. It’s possible — but I think the OTP would have said as much if that’s what paragraph 8 meant. I read the paragraph as making clear the OTP was rejecting the Declaration without prejudice to a later ad hoc declaration — a reading, not incidentally, that seems to square with Fatou Bensouda’s recent statement that the OTP won’t act without a new Declaration or Palestine’s ratification of the Rome Statute.

I also want to make clear that I disagree with Rozenberg’s statement that the BHRC “is at best naive, and at worst misleading, for suggesting [the] legal situation is beyond doubt.” I don’t think there is anything naive or misleading about the letter, even though I disagree with it. These are very difficult issues, over which reasonable people can disagree. And there is, of course, nothing wrong with advocates advocating.

Finally, I want to sincerely apologise to the BHRC for revealing that I had been asked to sign the letter. Although I waited for the letter to appear publicly before commenting on it, I should not have mentioned that I had been approached.

Emerging Voices: Extraordinary Reparations, Legitimacy, and the Inter-American Court

by David Attanasio

[David L. Attanasio is a professor of law at the Jorge Tadeo Lozano University in Bogotá, Colombia, and Doctoral candidate in philosophy at U.C.L.A.]

The Inter-American Court of Human Rights—the highest authority dedicated to enforcing international human rights law in the Inter-American system—has received deep praise for its influential and innovative reparations decisions (.pdf). Nonetheless, its more innovative reparations measures suffer from a serious problem of legitimacy, in that they do not seem to respond to the human rights violations that the Court identifies. Specifically, in the vast majority of its reparations decisions since 2001, the Court has ordered what I call extraordinary reparations, measures such as human rights training, changes to law and policy, improvements in the justice system, and provision of education, water, food, or public services (preceding links to .pdfs). These typically are in addition to compensation payments and other measures explicitly designed to eliminate the violation’s consequences. Although the Court has not adequately defended its practice of ordering extraordinary reparations, several potential bases of legitimacy may justify its principal decisions. Some extraordinary reparations are disguised orders to cease violations, others seek to repair damage to communities, and some aim to repair victim trust in the state.

Despite the importance of its innovations, the Inter-American Court has not explained why it may order extraordinary reparations, particularly when it has already ordered measures supposedly sufficient to eliminate the effects of past human rights violations. For example, following a forced disappearance (.pdf), the Court ordered monetary compensation for the victim’s family supposedly equivalent to the harm suffered, but went on to order, among other measures, a literacy program for the victim’s mother. The American Convention on Human Rights empowers the Court to order reparations only for identified human rights violations, not to order any measure it thinks might make for a better state or for a more human rights-friendly social environment. It is not an international legislature. However, extraordinary reparations, which often appear aimed at changing the victim’s circumstances, apparently lack any “causal nexus” (.pdf) with a past human rights violation. As states have complained (.pdf), they do not seem to address the violation’s effects, as other reparative measures such as restitution or compensation are supposedly sufficient for that objective. The Court lacks explicit principles in its jurisprudence sufficient to clarify when and why extraordinary reparations might be legitimate.

(more…)

Here Comes That Frivolous Argentina ICJ Claim! Oh, And They Have No Jurisdiction Either!

by Julian Ku

As I noted last week, Argentina has been making threats to take the US government to the International Court of Justice over the results of US litigation over their 2002 sovereign debt default.  And so today, Argentina has made good on its threat by filing an application to the ICJ contending that “that the United States of America has committed violations of Argentine sovereignty and immunities and other related violations as a result of judicial decisions adopted by US tribunals concerning the restructuring of the Argentine public debt.”

As the ICJ’s press release notes, Argentina is seeking to found jurisdiction upon the U.S. deciding to grant consent to the case. But the U.S. has no obligation to give such consent, nor does it have any incentive to do so. Nor does Argentina (I suspect) really expect the U.S. to grant consent.  This is almost certainly a way to show its people and the world that it has a grievance, without actually ever having to test that grievance in a judicial proceeding.

And the fact that this lawsuit has no chance of getting to a court is probably a good strategy for Argentina. The actual specific claims are not yet available, but I have a hard time imagining they are anything but frivolous.  The only claim I am aware of that was raised by a commenter to my post last week is that Judge Griesa exceeded his jurisdiction by ordering third-party banks not to pay out moneys on bonds issued under foreign law.  This is an interesting argument, and even if it were plausible, I don’t understand why Argentina has not raised that argument directly to the U.S. courts. And this would still not impact the bonds issued under New York law.

Bottom line: there is no chance that Argentina gets the U.S. to accept jurisdiction before the ICJ. Expect more grandstanding from the Argentine government as it tries to use the ICJ as an international public relations platform.

My Podcast on Palestine and the ICC — and an Additional Thought

by Kevin Jon Heller

I had the pleasure of doing a podcast yesterday with Mark Leon Goldberg, purveyor of the essential UN Dispatch website, on the possibility of Palestine ratifying the Rome Statute or accepting the Court’s jurisdiction on an ad hoc basis. It’s about 20 minutes long, and you can find it here (or on iTunes).

I do want to mention another aspect of Palestine’s decision — one I hadn’t thought about until I read this excellent article in the Guardian by Joshua Rozenberg. (And it’s not just excellent because he quotes me.) As I discuss in the podcast, Palestine has two roads to a potential ICC investigation of Operation Protective Edge: (1) accept the Court’s jurisdiction on an ad hoc basis retroactive to 29 November 2012, the date of UNGA Res. 69/17; or (2) ratify the Rome Statute and then file an ad hoc declaration retroactive to 29 November 2012. Although both roads would give the ICC jurisdiction over the situation in Gaza, there is actually a critical procedural difference between them — assuming that the OTP wanted to investigate (which I still think is extremely unlikely). If Palestine simply accepts the Court’s jurisdiction on an ad hoc basis, the OTP’s decision to investigate would be considered proprio motu — and that decision would be subject to review by the Pre-Trial Chamber. (See, in that regard, the Cote d’Ivoire situation.) By contrast, if Palestine ratified the Rome Statute and then filed an ad hoc declaration, the OTP’s decision to investigate would be based on the referral of a State Party — and would not be subject to Pre-Trial Chamber review.

We’ll see what happens…

“A Song of Good and Evil” and Telling International Law’s Story to a Broader Audience

by Chris Borgen

Philippe Sands is well-known as a scholar and as a practicing attorney. Now let’s add spoken word artist:

October 1946, Nuremberg.

Human rights lawyer Philippe Sands narrates an original piece that offers new insights into the lives of three men at the heart of the trial, with the music that crossed the courtroom to connect prosecutor and defendant.

A personal exploration of the origins of modern justice and the fate of individuals and groups, in images, words and music.

Bach, Beethoven, Rachmaninov, Aragon, Mizraki and Leonard Cohen, performed by acclaimed bass-baritone Laurent Naouri and renowned jazz pianist Guillaume de Chassy.

The piece is called “A Song of Good and Evil” and it will have its premiere in London on November 29th.

Engaging and educating as broad a public as possible about international law is no easy feat. For example, there have been depictions of international law and international legal themes in film, in television, and in fiction.  While at times the authors of such works may want to say something about international law or international institutions, such works have varying degrees of accuracy and educational value.  More often than not, “international law” or “the World Court” or “the UN” are just plot devices with very little consideration as to how any of these things actually work (or even what they are).  And I don’t know of many (actually, any other) international lawyers actively writing and performing theater pieces with legal themes.  (If there are, please let me know!)

Every work of art that depicts international law and international institutions affects the perception of some segment of the public about international law. Some of these books and films are produced in ignorance and stoke paranoia or the worst form of cynicism.  However, because so many of the stories of international law are profoundly human stories, they can also be the stuff of great art. Or the stuff of entertainment that also enlightens.

So, break a leg Philippe Sands! (And please have a performance in New York.)

Hat tip: John Louth for having mentioned this event.

Three Thoughts on the OTP’s Rejection of Jurisdiction over the Situation in Palestine

by Kevin Jon Heller

The ICC Office of the Prosecutor has just released the following statement:

Palestine is not a State Party to the Rome Statute, the founding treaty of the ICC; neither has the Court received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the Prosecutor to open an investigation into any alleged crimes following the November 2012 United Nations General Assembly Resolution (67/19), which accorded non-member observer State status to Palestine.

The ICC has no jurisdiction over alleged crimes committed on the territory of Palestine.

I have three thoughts on the statement. First, the OTP clearly believes that the 2009 Declaration by the Palestinian Authority is void. If Palestine wants the OTP to investigate, it will have to either ratify the Rome Statute or file a new declaration accepting the Court’s jurisdiction on an ad hoc basis.

Second, it seems equally clear that the OTP will not accept a Palestinian declaration accepting jurisdiction over events prior to before 29 November 2012, when the UNGA adopted Res. 67/19. The statement strongly implies — if it doesn’t quite say it explicitly — that Palestine’s statehood, at least for the ICC’s purposes, began on that date. Any other conclusion is difficult to reconcile with the statement’s emphasis on Res. 67/19; the fatal flaw of the 2009 Declaration seems to be that it was made before the UNGA upgraded Palestine’s status.

Third, the statement’s reference to “the territory of Palestine” raises the possibility that the OTP will not accept an ad hoc declaration that is limited to Gaza — even one that properly focuses, as the 2009 Declaration did, on crimes committed by both parties to the conflict. To be sure, the reference may just reflect casual or sloppy drafting; indeed, I see no reason why Palestine could not self-refer only the Gaza situation, given previous situations the OTP has accepted (Northern Uganda, Ituri, Darfur, etc.) But it’s a point to ponder going forward.

Bar Human Rights Committee of England and Wales Asks OTP to Investigate Gaza (Updated)

by Kevin Jon Heller

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 Rights Committee of England and Wales to urge the Prosecutor of the International Criminal Court (ICC) to initiate a preliminary investigation into crimes being committed in the Gaza Strip.

In response to the extreme gravity of the situation in the Gaza Strip, including spiralling civilian deaths and large scale destruction of homes, hospitals and schools, the Bar Human Rights Committee of England and Wales, supported by leading Q.Cs and Professors, has submitted a formal request, calling upon the Prosecutor of the International Criminal Court to initiate an investigation, pursuant to Article 15 of the Rome Statute.

The letter of request was submitted to the ICC on 3rd August 2014. It asserts that the 2009 Declaration, submitted by the Government of Palestine pursuant to Article 12(3) of the Rome Statute, provides the prosecutor with the necessary jurisdictional basis on which to act.

Kirsty Brimelow Q.C., Chair of the Bar Human Rights Committee, stated: “The initiation of an investigation would send a clear and unequivocal message to those involved in the commission of these crimes that the accountability and justice called for by the United Nations on the part of victims are not hollow watchwords. It would bring about an end to the impunity which has prevailed in the region to date, fuelling ever increasingly brutal cycles of violence. The international community cannot continue to act simply as witness to such bloodshed and extreme civilian suffering.”

I declined to sign the request, despite my profound respect and admiration for the signatories. Although I have no doubt that serious international crimes have been committed by both Israel and Hamas in Gaza, I find the request problematic. Moreno-Ocampo formally rejected the Palestinian Authority’s 2009 Declaration on behalf of the OTP, and the UNGA did not give Res. 67/19 — which upgraded Palestine to non-member-state status — retroactive effect. In my view, therefore, the 2009 declaration is effectively (and perhaps even legally) void. That conclusion is supported by Fatou Bensouda’s public statement that “the ball is now in the court of Palestine”, “Palestine has to come back,” and “we are waiting for them.”

The bottom line for me is that Palestine needs to submit a new declaration accepting the ICC’s jurisdiction on an ad hoc basis. (Assuming the Palestinian Authority has the authority to do so — about which see my previous post.) That declaration should refer the situation in Gaza, not simply Israel’s crimes, as the 2009 Declaration properly did. (The primary reason I do not believe the complaint filed by the Palestinian Authority’s Justice Minister can be considered an ad hoc declaration is that it singles out Israel for investigation.) The declaration should also clearly specify the temporal parameters of the jurisdiction Palestine is giving to the ICC. Any attempt to accept the Court’s jurisdiction retroactive to 1 July 2002, when the Rome Statute entered into force, is likely to fail, because I seriously doubt that the OTP wants to determine when Palestine became a state. The most plausible date for retroactive jurisdiction would be 29 November 2012, when the UNGA adopted Res. 67/19. (Like many others, I believe Palestine qualified as a state long before that. But I wouldn’t be the one deciding whether to investigate.)

In short, and again with the greatest respect to the signatories of the present request, I do not think it is wise to pursue what seems to me to be a procedural shortcut to ICC jurisdiction over the situation in Gaza. If the ICC is to become involved in the most heavily politicised conflict in recent history — and I think the likelihood the OTP would act on even a proper request is essentially zero — there should be no doubt whatsoever about either Palestine’s desire for an investigation or the ICC’s jurisdictional competence. If we’ve learned anything about the conflict in Gaza, it’s the importance of always crossing the legal “t’s” and dotting the legal “i’s.”

UPDATE: Multiple sources are reporting on Twitter that the ICC has announced it has no jurisdiction over the situation in Gaza. (See here, for example.) That would seem to put beyond doubt that any attempt to rely on the 2009 Declaration will fail.

Can the PA Ratify the Rome Statute? (A Response to Eugene)

by Kevin Jon Heller

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 right, as I will explain at the end of this post. But I have problems with other aspects of it.

To begin with, let’s dispense with Eugene’s claim that Abbas’s lack of control has an upside for him, because it “prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.” Abbas has neither de jure nor de facto effective control over the members of the groups (especially Hamas) that are responsible for the rocket attacks on Israel. Nor does it seem likely that he would be part of the military chain of command in a Fatah-Hamas unity government. So whatever the state of Palestine’s responsibility for the rocket attacks might be, it is extraordinarily unlikely that Abbas would ever be held individually criminally responsible for them — now or in the future.

I also think that Eugene is overreading the OTP’s rejection of Mohammed Morsi’s attempt to accept the ICC’s jurisdiction. In particular, I think he is eliding the difference between two different concepts of “effective control”: for purposes of determining the government of a state, and for purposes of determining whether part or all of a state’s territory is belligerently occupied. Here is the relevant paragraph of the ICC press release concerning the decision:

In accordance with the legal test of “effective control,” the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law. Application of that test, on both the date that the purported declaration was signed and the date it was submitted, lead to the conclusion that Dr Morsi was no longer the governmental authority with the legal capacity to incur new international legal obligations on behalf of the State of Egypt. The information available indicates that, at all material times, the applicants did not exercise effective control over any part of Egyptian territory, including on the date the declaration was signed. Nor would it be consistent with the “effective control” test to have one putative authority exercising effective control over the territory of a State, and the other competing authority retaining international treaty-making capacity.

As the paragraph indicates, the OTP relied on effective control to determine which of two rival domestic Egyptian entities represented the government of Egypt. In that context, the OTP quite rightly decided that “the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law.” Morsi lost under that test, because his claimed failed all three conditions.

That concept of effective control has little to do with the concept of effective control in the law of occupation. Effective control in the latter context determines whether the law of occupation applies; it does not determine who the sovereign is in the occupied state. On the contrary, one state’s effective control over the territory of another state does not transfer sovereignty from the government of the occupied state to the occupying state; the government in the occupied state remains the occupied state’s government, even if it loses some of its powers of governance for the duration of the (ostensibly temporary) occupation.

I see no reason, therefore, why Israel’s occupation of the West Bank and possible occupation of Gaza would have any impact on the OTP’s decision to accept or reject the Palestinian Authority’s ratification of the Rome Statute. Even if the state of Palestine is completely occupied by Israel — which Israel obviously rejects — the government of Palestine is still the government of Palestine. Indeed, the only way that wouldn’t be true is if the state of Palestine suffered debellatio, understood as the complete destruction of a state’s sovereignty through conquest. If that were the case, then Israel would be the government of Palestine and would be entitled (exclusively) to make decisions on its behalf. That was the situation after World War II: because of the debellatio of the German state, the Allies, via the Control Council, exercised supreme legislative authority in Germany as a condominium. But that is hardly the case in Palestine, as both sides agree. (And in any case, the concept of debellatio may well have fallen into desuetude.)

All that said, I agree with Eugene’s claim that the Palestinian Authority may not qualify as the government of Palestine — at least without the inclusion of Hamas. According to Eugene, “Hamas came to power in a coup against Abbas’s government, and since the ‘statehood’ of Palestine, the latter has never exercise ‘effective control’ over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president.” That’s an inaccurate description of the situation: Hamas was democratically elected by Palestinians in 2006, but was prevented from governing by Fatah until it seized control of Gaza in the 2007 civil war. Hamas’s election, however, only strengthens Eugene’s point, because it indicates that the Palestinian Authority may well have a Morsi problem if it attempts to ratify the Rome Statute without Hamas’s consent. The Palestinian Authority fails all of the elements of the OTP’s “effective control” test in the context of rival governments: it does not control all of the state of Palestine, it does not enjoy the “habitual obedience of the bulk of the population,” and it does not have “a reasonable expectancy of permanence.”

Nor, for that matter, does Hamas — for similar reasons. So it may well be that only a unity government between Fatah and Hamas, such as the one that Israel desperately tried to undermine prior to its invasion of Gaza, is competent to ratify the Rome Statute. Whether the Palestinians will still be able to form such a unity government remains to be seen.