Archive of posts for category
Online Symposia

Insta-Symposium on Scottish Independence Referendum

by Roger Alford

We have invited several academic luminaries to post here at Opinio Juris beginning early next week about the Scottish independence referendum that will be held next Thursday, September 18th. As we have done in the past with other symposiums, we also welcome other academics to submit guests posts for possible publication. We particularly welcome Scottish, British, EU and state succession experts. We will focus on the international legal aspects of the Scottish referendum, not the political or economic implications of the vote.

We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include other voices. So if you want to write a 500 to 1500-word guest post for Opinio Juris about the Scottish independence referendum, please do so in the next few days and send it to Jessica Dorsey and An Hertogen (their emails are linked to the right). Our editorial team will review the posts and publish those selected.

On a personal note, given that the Alford clan hails from the town of Alford in Aberdeenshire, and my wife and I spent several glorious years in Scotland when I earned my LL.M. and she earned her Ph.D. at the University of Edinburgh, our family has been following the developments in Scotland closely.

There’s an old Scottish saying: “Scottish by birth, British by law, Highlander by the grace of God.” Next Thursday will put that maxim to the test.

Emerging Voices: Controversy on the Definition of the Cambodian Genocide at the ECCC

by Melanie Vianney-Liaud

[Mélanie Vianney-Liaud is a PhD Candidate in International Law at the Aix-Marseille University in France.]

Many international Human Rights authorities, including the United Nations General Assembly talked about the “Cambodian genocide” to designate the atrocities of the Khmer Rouge. Yet, while the term “genocide” undoubtedly has considerable appeal, it turns out to be legally inappropriate to describe the massacre of 1.7 million of Cambodians from 1975 to 1979. At the Extraordinary Chambers in the Courts of Cambodia (ECCC) – the court in charge of trying the Khmer Rouge – the indictment of the last surviving Khmer Rouge senior leaders, known as “Case 002”, includes very limited genocide charges, only with respect to crimes committed on two minority groups: the Cham and the Vietnamese. Predictably, this decision disappointed many victims.

The trial began in June 2011. However, in September 2011, the Trial Chamber decided to sever Case 002 into smaller trials and limited the scope of the first trial to the evacuation of Phnom Penh on 17 April 1975 and movements of population in other regions of Cambodia. The genocide charges were excluded from the scope of this first trial. On August 7, 2014, the Chamber found the Accused guilty to have committed the crimes against humanity of murder, political persecution and other inhumane acts through their participation in policies to forcibly displace people. It sentenced them life imprisonment.

The Accused are currently trying within a second trial whose scope includes the genocide charges. Since this trial has started on July 30, 2014, it seems appropriate to clarify some of the complexities of the crime of genocide, generated by the specificities of the Cambodian context and the legal framework of the ECCC.

Genocide has been defined in the 1948 Convention on the Prevention and Repression of the Crime of Genocide as requiring the intentional destruction of “a national, ethnical, racial or religious group as such”. The enumeration of specific protected groups implies that the perpetrators’ conception of the victim group bears some relation to one of these protected groups. The Khmer Rouge regime is known for its system of terror and arbitrariness. Conditions of living were so extreme that a substantial part of the population died without that seemed to be directly imputable to group-based persecutions. However, indications of the targeting of particular groups undeniably exist in the case of the Khmer Rouge. This is the case for example, and among others, of the group of educated people and city dwellers referred to as “new people” by the Khmer Rouge. Contrary to “base people,” “new people” did not join the Khmer Rouge revolution prior to April 17, 1975 when Phnom Penh fell into Khmer Rouge’s hands. Forcibly transferred from cities to countryside, “new people” members were often targeted based on this identity (Indictment, § 227). This group however, does not fall under the listed classification defined in the Genocide Convention as the distinction made by the Khmer Rouge was based on an individual’s socioeconomic background.

Thus, although the Khmer Rouge had policies of group discrimination, both in regard to ethnic minorities as well as with respect to groups identified within the ethnic Khmer- majority, the characterization of genocide within the definition of the Convention only applies to crimes committed on minority groups. Many victims have therefore seen the crimes for which they have suffered be excluded from the characterization of the “crime of crimes,” even though they are victims of crimes of the same gravity as those committed against the minorities.

The definition introduced by the Genocide Convention is too narrow to mirror the historical analysis of the Khmer Rouge criminal phenomenon. The fact that the Khmer Rouge targeted groups within the Khmer-majority population shows that the strict enumeration of protected groups is inappropriate. The question that arises then is whether it would be conceivable to have this definition evolved to correspond with the social reality of the “Cambodian genocide”.

Cambodia ratified the Genocide Convention in 1949. Consequently, since its entry into force in 1951, Cambodia has been submitted to the conventional obligation to “enact (…) the necessary legislation to give effect to the provisions of the Convention” (Convention, Article V). However, under the Khmer Rouge, the Convention had not been received into national law yet. This reception only occurred in 2001, with the creation of the ECCC. The 2003 international agreement between the United Nations and Cambodia and the 2004 amended domestic law which establish the court, provide both for its jurisdiction over the crime of genocide “as defined in the 1948 Convention.” However, and despite these provisions, the domestic law then gives a definition of the crime of genocide that differs in key points from the definition set out in the Convention.

A state is not prohibited by the 1948 Convention from adopting a broader definition of genocide. The Convention only adopted by a convention a principle which already existed in international customary law. Thus, the reception of the Convention into national legal orders has often resulted in a broadening of the definition of the crime. France, for instance, has gone further adding the “group determined by any (…) arbitrary criterion” to the groups protected by the Convention (French Penal Code, Article 211-1).

In the particular case of the ECCC however, the differences between the Convention and the Law have important implications for its subject-matter jurisdiction. In the English version of the ECCC Law, with regard to the list of underlying crimes, the Law indeed replaces the expression “any of the following acts” with “any acts” and the phrase ‘as such’ referring to “group” in the Genocide Convention with ‘such as’ but referring to “acts”. (more…)

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…)

Emerging Voices: Civil Society Organizations and the Committee on Enforced Disappearances–Towards Enhanced Participation in the Decision-Making Processes

by Marcos Kotlik

[Marcos D. Kotlik is a Lawyer, University of Buenos Aires, School of Law –UBA– This post is a part of his ongoing research as a Masters in International Relations candidate and as a research scholarship holder at UBA.]

In 2000, Kofi Annan submitted that “decision-making structures through which governance is exercised internationally must reflect the broad realities of our times”. He explained that better governance is achieved through greater participation and accountability and argued that the international public domain must be opened up to many actors, including those from the private sector and civil society organizations.

A few years earlier, discussions had begun within the UN that would lead to the conclusion in 2006 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPAPED). During its negotiation process, non-governmental organizations played a very active role on many levels, most notably on the treaty’s design.

Whether we call them “NGOs”, “civil society organizations” or “human rights organizations” (I will not discuss the scope of each category), I propose to examine their involvement in the negotiation of the ICPAPED as an example of global policy networks. Further, I believe that this type of dynamic throughout the treaty’s design process enabled these organizations to ensure their own enhanced participation in the decision-making processes to come, mainly through their intervention before the Committee on Enforced Disappearances.

The design of the ICPAPED

The interest of civil society organizations on the issue of enforced disappearance has much to do with several countries’ tragic histories and can be traced some decades back (as depicted here (.pdf)by Manfred Nowak). After the UN General Assembly issued the Declaration on the Protection of All Persons from Enforced Disappearance in 1992 and the OAS General Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons in 1994, human rights organizations focused their lobbying in favor of a draft UN Convention.

In 1998, the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights approved the draft Convention in its fiftieth session (.pdf). Resolution 1998/25 requested to “invite […] non-governmental organizations to provide comments on the draft convention” along with governments and intergovernmental organizations. In consequence, the OHCHR held a two-year long consultation process, and by the end of 2000 the Commission collected the comments of eight NGOs (see document 2001/69).

Civil society organizations continued to participate in the elaboration of the Convention, as reported between 2003 and 2006 by the Inter-sessional open-ended working group on a draft legally binding normative instrument for the protection of all persons from enforced disappearance, led by Bernard Kessedjian. Even without considering NGOs’ informal lobbying, these documents demonstrate how they participated in formal debates side-by-side with State delegations, issuing statements and submitting written proposals to modify the final text. The Convention still depended on its final approval by States, but the serious influence of NGOs cannot be ignored.

As early as 2000, Witte, Reinicke & Benner already explained here that “international organizations do at times act as norm entrepreneurs by using networks as platforms to advance norms in such areas as sustainable human development or human rights”. The design process of the ICPAPED suggests that the UN system was able to provide the formal governance structure in order to adopt the treaty, although nurturing an informal “coalition for change” (Annan).

It seems that the idea of different sectors coming together and collaborating “to achieve what none of the single actors is able to achieve on its own” was accomplished taking advantage of civil society’s “voluntary energy and legitimacy” and of the “enforcement and rule-making power and coordination and capacity-building skills” of states and international organizations. The main characteristics of global policy networks –as described by the former Secretary-General (.pdf)– emerged throughout the negotiation of the ICPAPED: a non-hierarchical process gave voice to civil society almost at every stage; it set a global policy agenda, framed debates and raised public consciousness, developing and disseminating knowledge at the universal level concerning enforced disappearance; it seemingly made it easier to reach consensus and negotiate agreements on new global standards; and it most definitely determined the creation of new kinds of mechanisms for implementing and monitoring those agreements. This last feature will be the focus of the next section.

The seed of enhanced participation

(more…)

Emerging Voices: Protecting the World’s Children: R2P and Measures Less-Than-Force

by Stacey Henderson

[Stacey Henderson is a PhD Candidate and Teaching Fellow at Adelaide Law School, The University of Adelaide, South Australia]

Children are among the most vulnerable during armed conflict.  The existence of special protections for children in the 1949 Geneva Conventions, and the existence of the Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, all attest to the special vulnerability of children.  The security of children during armed conflict has even been recognised by the Security Council as being a matter of international peace and security (see for example: SCR 1261, SCR 1314, SCR 1379).  Given the importance of protecting children and other vulnerable groups during armed conflict, does the concept of the Responsibility to Protect (‘R2P’) clarify the principles governing international responses to atrocity crimes?

At its heart, R2P is about duty – the primary duty of states to protect their populations from atrocity crimes and the secondary duty of the international community to ‘use appropriate diplomatic, humanitarian and other peaceful means’ to help protect against atrocity crimes and to take action through the Security Council when the state ‘manifestly fails’ to protect its population.  Even if it is R2P-lite (.pdf), this formulation of R2P and the duty of the international community which flows from it, in practice appears to allow considerable scope for the international community to take significant steps to intercede in armed conflicts where atrocity crimes are being committed, provided those measures do not cross the threshold of use of force in the absence of a Security Council resolution.  In order to distinguish these less-than-force measures from the baggage that comes with the term “intervention,” in my view they are better described as “intercession.”  Although in its early stages, my research indicates that these less-than-force measures (intercession) include unilateral sanctions, trade restrictions, diplomacy, withdrawal of aid funding and even non-lethal support to rebel groups (.pdf).  These are measures taken by states, without Security Council authorisation, which are less than the use of force, but which appear to be the site of the most significant opportunities for change that protects the most vulnerable, including children.

The increasing use of intercession by the international community in response to modern armed conflicts reveals an emerging norm in international law which recognises that there are international obligations to protect human rights, particularly the human rights of the most vulnerable such as children, and humanitarian ideals that are more important than, and overtake, sovereignty when atrocity crimes are being committed.  (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…)

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…)

Emerging Voices: New Citizenship Law Will Not End Race-based Statelessness in the Dominican Republic

by Jillian Blake

[Jillian Blake is an immigration attorney at a non-profit organization in Alexandria, Virginia. She is a graduate of the University of Michigan Law School and the Johns Hopkins School of Advanced International Studies (SAIS).]

In May, Dominican President Danilo Medina signed a new naturalization law aimed at restoring the rights of some who were stripped of their citizenship in a September 2013 Supreme Court ruling. The ruling held that those born in the Dominican Republic to undocumented immigrants, who are predominantly black and of Haitian origin, are not Dominican citizens and instructed the government to apply the ruling retroactively, going back to 1929. International human rights groups strongly condemned the decision as racist and xenophobic and argued it would render hundreds of thousands of people stateless. The Caribbean Community (CARICOM), an international organization made up of 15 Caribbean states, also denounced the ruling and suspended the Dominican Republic’s application for membership.

The new citizenship law, Law 169-14, was passed this spring in response to the international backlash against the Supreme Court decision. Law 169-14 establishes a regime to restore the citizenship rights of those born between 1929 and 2007 who are entered in the civil registry. Notably, the law excludes restoration of citizenship to those born between 2007 and 2010, the year the new Dominican Constitution first revoked jus soli citizenship, or citizenship based on where one is born. All those born after 2007, or who are not in the civil registry, are required to register as foreigners and will then have to apply for regularization and naturalization.

While the law could restore citizenship rights to thousands of people, it is far from a final victory against statelessness in the Dominican Republic. First, the law only addresses a small percentage of those impacted by the Supreme Court ruling. According to human rights groups roughly 24,000 of the more than 200,000 people rendered stateless could qualify to have their citizenship restored under the law, and even that restoration is not automatic. Part of the reason so few will be affected is that for many years hospitals and government agencies refused to issue birth certificates or other identity documents to children of parents of Haitian origin. Many children born in the Dominican Republic do not have birth certificates and/or are not listed in the civil registry. Any long-lasting solution will require hospitals to issue birth certificates for, and enter into the civil registry, all persons born in the Dominican Republic and recognize their citizenship. There also should be a national drive to document (as citizens) those born in the Dominican Republic who do not currently possess birth certificates.

Second, the new law is still premised on the illegal assumption that those born in Dominican territory are not citizens. This retrogression of established inter-American law, which recognizes jus soli citizenship, is not only illegitimate but could lead to the denial of rights elsewhere in the future. Third, given the racially-biased administration of past immigration and naturalization regulations in the Dominican Republic, there is a serious concern that even those entitled to the restoration of citizenship under the law will never actually be recognized as citizens. Fourth, the law requires those who are not in the civil registry to register with the government within 90 days after the law takes affect, which will exclude many who can’t register in time, especially the poor and those living in remote areas. Finally, the law will not restore citizenship to future generations born in the Dominican Republic, which will leave a perpetual system of statelessness in the country.

In an Article forthcoming in the Georgetown Journal of Law and Modern Critical Race Perspectives entitled, “Haiti, the Dominican Republic, and Race-based Statelessness in the Americas” I analyze the 2013 Supreme Court decision and long history of citizenship exclusion based on racial and ethnic prejudice in the Dominican Republic. (more…)

Emerging Voices: The Contribution of International Criminal Tribunals and Courts to the Development and Promotion of International Human Rights Law

by Clare Frances Moran

[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. (more…)

Emerging Voices: The Preliminary Examinations in Iraq: A Net Loss for the ICC’s Political Capital

by David Benger

[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.

(more…)

Emerging Voices: The Rights of Women in Armed Conflict

by Jens Iverson

[Jens Iverson is a researcher at the Law Faculty of the University of Leiden.]

Imagine there is a potential peace agreement that would end a civil war, but only at the cost of leaving portions of the country in question in the hands of a group that systematically violates the human rights women and girls.  The government is backed by a foreign state who, in the past, effectively occupied the country.  Some policy considerations are obvious – continued armed conflict can be devastating to most involved, but resolving the armed conflict with a solution that denies at least half of the population their rights is deplorable.  But is this a purely pragmatic, policy question?

In this post, I assert that foreign states may be obliged to push for peace agreements that protect the rights necessary for a modern democracy, not only on the basis of a general concern for human rights but also based on a more ancient legal and ethical tradition.  The obligation emerges from a source one might not expect—the logic behind the exception to the prohibition of transformative occupation, and ultimately on self-interest.

Traditionally, radical transformation of the laws of occupied territory was prohibited.  There is, however, an exception to this rule, dating at least back to Immanuel Kant.  An occupying power is not obliged to protect a legal system that is itself geared towards war—it is acceptable to create a less war-like constitution for an occupied nation.  This is not a human rights argument, nor an argument based on sparing a civilian population, nor a purely pragmatic public policy argument.  Rather, the legitimate transformative role of an occupying power responds to the traditional justifications for going to war (satisfying the justa causa of the war).  If the war is being fought in response to aggression that has disrupted international peace, then the justa causa may be to restore a system of international peace.  But what does that have to do with the rights of women that would be protected in a modern democracy?

The general modern form of the hypothesis that democracy, including non-discrimination, is important for peace is the “democratic peace hypothesis.”  This hypothesis states that as the democratic nature of the two states increases, the probability for substantial armed conflict between those states during a given year decreases.  If this hypothesis is accurate, and should protecting and promoting the rights of women be an important component of the democratic nature of the state, then promoting and protecting the rights of women is not only important for its own sake but also because of the positive correlation with the sustainability of the peace.

Considered under this analysis, protecting the rights of women is not a side-issue or epiphenomenon that can be considered once the “primary” issues of national security and inter-state relations are resolved—rather such protection can be determinative as to whether the war was justified in the first place.

There are, of course, strong reasons to protect the rights of women based purely on a human rights analysis, and powerful points to be made in favor of protecting women’s interests purely on ethical and humanitarian grounds.  The argument in this post is not intended in any way to undermine such arguments or impugn their moral force.  It does suggest that there is a supplementary analysis that should be helpful in addressing the gap between the ideal of respect and promotion of women’s human rights in the transition to peace and the reality.  This supplementary analysis requires an analysis of the moral and legal justification of the foreign military intervention as a whole.  It is essentially rooted in a traditional framework for public international law-the legal relationship between sovereign states.

Protecting the rights of women during the transition out of armed conflict is critical for establishing a just and sustainable peace.  This is not a new insight.  The UN Security Council has passed several resolutions on women, peace, and security (UNSC Res. 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), and 1960 (2010)). These resolutions provide evidence of the seriousness of the issue, and provide but have proven unsuccessful in fully addressing the problem.  Women are frequently victimized during armed conflict, underrepresented at the peace table, and disserved by the peace.

So why is this need not being fully addressed?  One difficulty may be the foundations upon which efforts to protect the rights and interests of women are typically built.  During conflict, the main foundation is International Humanitarian Law.  During early peace, there is an increasing role for human rights law and public policy.  International Humanitarian Law has numerous protections for civilians generally and in certain cases for women in particular, but many of those interests are short-term, often simply avoiding death or damage.  Human rights concerns and public policy concerns may be at their weakest when the terms of the new peace are being resolved.  There is a need for an additional rationale that would align the long-term self-interest of powerful actors (such as foreign states) with the self-interest of those placed in an unequal situation by systematic discrimination.

This logic does not, of course, limit itself to women.  Protecting the human rights of children, religious minorities, ethnic minorities, and other minorities is important if the armed intervention is to be justified, and the peace is to be democratic and durable.

Sometimes grasping an immediate, imperfect peace will be ethically and legally preferable to ongoing armed conflict, even if continued conflict comes with the hope of a better peace later.  There is a rationale to say that a foreign state should be reluctant to get in the way should local elites desire peace.  But too often, the foreign state has been too ready to consolidate a peace around a new government that does not respect human rights.  Foreign states, if they continue to have any role, should weigh the obligations they have based on their prior acts, and not jump too quickly to compromise the rights of women.

Emerging Voices: Sexual Violence As War Crime: Controversial Issues in the International Criminal Court

by Rosemary Grey

[Rosemary Grey is a PhD Candidate at the Faculty of Arts and Social Sciences, University of New South Wales.]

The case of The Prosecutor v Bosco Ntaganda, which is currently before the International Criminal Court (ICC), is the latest of several cases in the ICC and Special Court for Sierra Leone (SCSL) to address the issue of sexual violence against female child soldiers by members of their own group.

The accused, Ntaganda, is the alleged former commander of the Union des Patriotes Congolais-Forces Patriotiques pour la libération du Congo (UPC-FPLC), an armed group which in 2002 and 2003 was involved in the non-international armed conflict in the Democratic Republic of Congo (DRC).

On 9 June 2014, Pre-Trial Chamber II confirmed the charges against Ntaganda, including charges for the rape and sexual slavery of female child soldiers in the UPC–FPCL by their commanders and fellow soldiers, which the ICC Prosecutor characterized as war crimes under Article 8(2)(e)(vi) of the Rome Statute. This was the first time that Article 8(2)(e)(vi) had been used to prosecute sex crimes committed against child soldiers by members of the same armed group.

I recently discussed the Pre-Trial Chamber’s decision on Beyond The Hague; here I will focus on the parties’ interpretation of Article 8(2)(e)(vi), and highlight some important gender issues raised by this case.
(more…)