In association with the International Commission of Jurists

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

01 Aug

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

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

|
30 Jul

[Janina Dill is a Lecturer at the Department of Politics and International Relations at the University of Oxford.] In the ongoing military campaign ‘Protective Edge’ the Israeli Defence Forces (IDF) consistently issues warnings before air strikes against targets in Gaza. The population is warned of impending attacks with phone calls, text messages or so called ‘knocks on the roof’ (dropping of non- or low-impact explosives on the intended target). The warnings play a central role in Israel’s claim that, contrary to Palestinian armed groups, namely Hamas; it obeys the strictures of international law. ‘While the IDF goes to extraordinary lengths to avoid civilian casualties, Hamas deliberately puts civilians in the line of fire, the IDF maintains on its official blog. The First Additional Protocol to the Geneva Conventions, the relevant sections of which have the status of customary international law, in Article 57(2) c indeed prescribes that ‘effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit’. Warnings, their frequency and form, are at the centre of a narrative that Israel does not simply comply with, but goes beyond the call of international law in its care for the civilians of Gaza. ‘Israel's use in the Gaza Strip of non-lethal warning shots to the roofs of buildings which constitute military targets … is not legally obligated’, the Military Advocate General’s Corps holds. Media commentary commends Israel for giving civilians a way out without even being obliged to do so. This is a misunderstanding of Article 57. The provision establishes an unequivocal obligation to warn before attacks that implicate the civilian population – as air strikes against a territory as densely populated as Gaza will regularly do. Granted, it is not an absolute obligation. The law recognizes that sometimes it may not be possible to warn. Crucially the provision does not say ‘warn if possible’, but ‘warn unless impossible’. It is open to interpretation when that is the case and reasonable people may disagree, but the default is to issue a warning and it is a failure to do so that requires explanation. Warnings are not acts of charity. But are the kinds of warnings issued as part of Operation Protective Edge manifestations of the IDF’s commitment to the laws of war? The practice raises two distinct concerns. The first is that the air strikes the IDF carries out after issuing warnings are indicative of a misunderstanding of the legal implications warning before an attack. It has none! The second is the concern that the practice itself violates international law. I discuss them in turn.
|
30 Jul

[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...

|
28 Jul

A few hours ago, the NY Times broke a story that the United States views Russian tests of a ground-launched missile as violating the 1987 INF treaty, formally (and lengthily) titled, "The Treaty Between The United States Of America And The Union Of Soviet Socialist Republics On The Elimination Of Their Intermediate-Range And Shorter-Range Missiles".  According to the story, the State...

|
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.
|
28 Jul

Some lawyers at Shearmen & Sterling are no doubt celebrating what may be the largest single arbitration award in history (text of award here). Their client, a shareholder of the expropriated Russian oil company Yukos, has won a $50 billion award against Russia in an investor-state arbitration (seated at the Permanent Court of Arbitration) under the Energy Charter Treaty.   Michael Goldhaber...

|
27 Jul

Call for Papers A conference on General International Law and International Economic Law: An (Un)Easy Relationship? will be held at the Lomonosov Moscow State University on April 17, 2015. The conference seeks to address the challenges created by application of the general international law to international economics context as well international economic law influence on evolution of general international law. Abstracts should...

|
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...

|
25 Jul

[Arpita Goswami currently serves as an Assistant Editor to China Oceans Law Review, and is a Graduate Assistant at the South China Sea Institute, Xiamen University, P.R. China. The views expressed here are her own and have no connection whatsoever to the above mentioned organizations.] The recently concluded Bay of Bengal Maritime Arbitration Case between India and Bangladesh offers interesting insights into the application of the judicial pronouncements to the factual situation contemporaneous with it for determining the boundary lines and the usage of cartographic evidence in the same. This post examines the section of the Award delimiting the riverine boundary between the two States. The reasoning given by Tribunal in this case makes an interesting read regarding the technicalities of demarcation of boundaries, challenges in the contemporaneous applications and the validity of cartographic evidence in such an application.

Background (para. 50-55 of the judgment)

The Indian Independence Act, 1947 of the United Kingdom, partitioned from India, the states of West Pakistan and East Pakistan. East Pakistan was carved out of the Bengal Province, with West Bengal remaining in India. In order to demarcate the boundary between East Pakistan and West Bengal, the Bengal Boundary Commission was set up in 1947 which was chaired by Sir Cyril Radcliffe. In Aug. 1947, the Commission submitted the report describing the boundary, and is known as "Radcliffe Award". However, in 1948 the Indo-Pakistan Boundary Dispute Tribunal was set up by India and Pakistan to address the disagreement in the application of the Radcliffe Award. In 1950, the above mentioned Tribunal gave its Award, known as the "Bagge Award". In 1971, East Pakistan declared independence from West Pakistan, and succeeded as a new state of Bangladesh to the territory of East Pakistan and its boundaries. The boundary between India and Bangladesh runs across the Sunderban Delta region. The southern section of the land boundary lies in the riverine features, which fall in the Bay of Bengal. Among its tasks of finding the land boundary terminus anddelimiting the territorial sea, EEZ and continental shelves between the two States, the present Tribunal also had to concern itself with delimiting the boundary river between the two, which will be discussed in the passages below.

Delimitation of the Boundary River

|