In association with the International Commission of Jurists

International Criminal Law

09 Aug

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...

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07 Aug

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.] Rumors and speculation about a Palestinian ICC bid continue to abound. However, news accounts about the process behind the PA’s consideration of the issue underline the point I made in a prior post that based on the Morsi precedent, Abbas could not accept the Court’s jurisdiction. I will elaborate on that here, and address some comments about my argument (partly concurred in by Kevin) about the relevance of the Morsi matter to a Palestinian referral. In a meeting last week Abbas sought "written consent to join the ICC” from other Palestinian factions. According to another account Abbas has a draft acceptance letter, and is "waiting for signature from Hamas and Islamic Jihad.” If the PA needs the written consent - not just a political nod- from the Gaza–based factions, it strongly supports the view that the PA government does not have full power to accept jurisdiction on behalf of Palestine, especially for Gaza. Some might say that if the government is divided and both possible claimants to full powers agree, then any defect is cured (this may be why Abbas wants written authorization).  The argument does not work: the sum of governmental authority is greater than its parts. To accept ICC jurisdiction, especially after the Morsi matter, it must be clear which particular government is in control, and it must be that government that accepts jurisdiction. The reason to require government control over a state for ICC jurisdiction is it is that government that will be responsible for enforcing the treaty. A joint signature raises myriad intractable problems. Who will ultimately be carrying out the obligations of the treaty? Abbas would presumably not mind signing over authority over Israeli crimes, but then not cooperate with the court in investigating Hamas crimes, saying he has no control there. If all factions give written consent to join, who has authority to terminate membership?
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06 Aug

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...

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05 Aug

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...

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05 Aug

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

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04 Aug

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

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04 Aug

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

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

[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.
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26 Jul

That's the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense -- and has been updated...

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