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22 Jul

[Darryl Robinson is Associate Professor at Queen’s University Faculty of Law] I am delighted to offer this comment on Leila Sadat’s excellent article on crimes against humanity in the modern age.  Her article makes several important contributions. I agree with her central normative point, which is that ICC jurisprudence has often been too restrictive and too demanding in its interpretation of the policy element. If we trace the history of academic discourse around the policy element, we see that it has had gone through cycles of ascendance and decline.  For decades after Nuremberg, the policy element seemed fairly generally supported (see eg Keenan, Bassiouni).  In the nineties, following this tradition, it was recognized in the Tadic decision and the ICC Statute.  Around that time, however, the tide of academic opinion turned against it.  Most commentary grew quite skeptical. The nadir for the element was the ICTY’s about-face in Kunarac, which repudiated the element en passant in a highly controversial footnote. Recently, the element has enjoyed a scholarly resurgence, led by thoughtful pieces by Bill Schabas (here) and Claus Kress (here), advocating that a policy element is not only legally required but conceptually required, in order for the law of crimes against humanity to make sense.  I am in a very similar camp to these two scholars, in that I think that some form of policy element has doctrinal support and, more importantly, is conceptually essential. My only caveat was that the element was perhaps at times cast a bit too stringently. Leila’s article is a leading and welcome example of the latest movement, which is a mildly corrective counter-movement, arguing for a modest threshold. Leila gives arguments based in customary law precedents for an inclusive concept of the type of ‘organization’ that may be behind a crimes against humanity.  In a similar direction, Gerhard Werle and Boris Burghardt give arguments based in the ordinary meaning of the term ‘organization’ (here), and Charles Jalloh has noted the possible Euro-centricism of a rigid concept of organization that does not regard tribal groups as a sufficient form of organization (here). I have also given arguments based in the theory underlying the element (here).  While I acknowledge that the narrower view, requiring a state-like entity, can also be supported by a principled theory (‘betrayal of the responsibility to protect’), I suggested that the essence of crimes against humanity may be humans acting collectively to harm humans.  The purpose of the policy element is simply to exclude the ‘normal’ crime patterns of individuals acting on their own initiatives.  This purpose is satisfied by a modest threshold, encompassing coordination by many types of organization.  I think Leila’s contrast of a ‘traditional’ and a ‘modern’ view of the dangers posed by organizations is another helpful contribution. In this comment, I wish to expand upon Leila’s thesis, by highlighting the most recent confirmation decision in Gbagbo. 
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22 Jul

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Director, Whitney R. Harris World Law Institute, at Washington University School of Law] I am honored to participate in this Opinio Juris/AJIL forum discussion, and wish to thank, in advance, the editors for agreeing to host it, and Elies van Sliedregt and Darryl Robinson for agreeing to comment. Crimes Against Humanity in the Modern Age emerged out of my leadership of the Crimes Against Humanity Initiative, a multi-year project undertaken by the Whitney R. Harris World Law Institute at Washington University School of Law, and directed by a Steering Committee of distinguished jurists, that, over the course of three years, examined the need for and assessed the feasibility of drafting a new convention for the prevention and punishment of crimes against humanity.  During our discussions it became clear that participants believed crimes against humanity (CAH) charges to be critically important to both international and domestic prosecutions of atrocity crimes, but there was little empirical data to support these intuitions.  I set out to systematically examine every case brought to the ad hoc international criminal tribunals to determine which charges were brought and which were successful in order to get a sense whether or not these could properly be labeled “crimes against humanity courts,” as some scholars have observed. In a second step, it seemed important to see how this analysis would play out at the International Criminal Court (ICC).  Tables 1-6 in the article summarize this data. Collecting and sorting the data was difficult as indictments at the ad hoc tribunals were often amended, and appeals regularly set aside or added additional counts.  I am indebted to the Harris Institute staff members who assisted me, as well as my research assistants Sam Chaffin and Shishir Jani who pored through the information and reworked it time and time again.  The ICC presented a particular challenge as there are no “indictments” but a “document containing the charges” followed by a confirmation decision, making it sometimes difficult to assess what the charges are in a particular case.  However, based upon the information available on the websites of three of the tribunals – the International Criminal Tribunals for the former Yugoslavia and Rwanda (the ICTY and ICTR) and the Special Court for Sierra Leone (SCSL) – and the ICC, it was possible to ascertain overall prosecution and conviction rates for each of the core crimes. Interestingly, the data suggested that war crimes counts dominated at the ICTY and SCSL, but CAH (and genocide) counts dominated at the ICTR.  Both the ICTY and the ICTR had conviction rates on CAH that were higher than the war crimes conviction rates; this was not true for the SCSL.   The pattern for cases involving armed conflicts remained relatively stable across all courts and tribunals (and situations at the ICC), and suggest about a 55-45 ratio of war crimes counts to CAH counts, except at the ICTR and for situations at the ICC in which only CAH have been charged. At the ICTY, only two out of 161 defendants were charged solely with crimes against humanity, representing 1.2 percent of all accused.  At the ICTR, only two out of 90 defendants were charged solely with crimes against humanity, representing 2.2 percent of all accused.  This is in sharp contrast with the pattern at the ICC before which, at the time the article was written, 11 out of 30 accused were charged only with crimes against humanity in the Kenya, Libya and Côte d’Ivoire cases, representing a stunning 36.7 percent of all accused. Turning to a more normative and qualitative assessment of the data, the article postulates that the increase in “CAH only” cases at the ICC is to be expected because the ICC is a permanent court, created prior to the onset of atrocities in many cases, that can intervene in times of peace, not only once war has begun.  This, in turn, suggests that David Scheffer’s intuition about peacetime atrocity crimes being “pre-cursors of genocide” may also be correct, although more research is required to fully explore this hypothesis. The article painstakingly analyzes the ICC’s early jurisprudence on crimes against humanity, and concludes that there is some cause for concern. 
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22 Jul

We are pleased to host the American Journal of International Law on-line symposium on the lead articles of the new issue of the AJIL, which were written by Leila Sadat (Washington University) and Eyal Benvenisti (Tel Aviv University). Today and tomorrow there will be a discussion of Leila Sadat's article, Crimes Against Humanity in the Modern Age. The précis of her piece explains...

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22 Jul

The ICC's Chief Prosecutor Fatou Bensouda has said that attacks on UN peacekeepers in the Darfur region of Sudan may constitute war crimes. European Union governments agreed today to put the armed wing of Hezbollah on the EU terrorism blacklist in a reversal of past policy fuelled by concerns over the Lebanese militant movement's activities in Europe. French Interior Minister Manuel Valls...

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21 Jul

[Solon Solomon will join King’s College of London, Dickson Poon School of Law as of September 2013, and Jackson Nyamuya Maogoto is a Faculty member of the University of Manchester, School of Law.] Much has already been written on the Comoros referral to the International Criminal Court (ICC) in light of the Mavi Marmara incident (EJIL:Talk!, Opinio Juris, Human Rights Blog and Dov Jacobs Blog). The referral while premised on a legal footing arguably has a second facet which is significant—political. It is as been noted elsewhere (EJIL:Talk!) that this was the first case where an African state referred a non-African state to the Court. The political parameter aside, the Comoros referral introduces two important doctrinal issues which pervade the discussions of this referral. These are article 12(2) of the Rome Statute regarding vessel jurisdiction and the legal discourse around the axiom that all State Parties can refer to the Court possible crimes perpetrated on the territory of a State Party. The authors’ assertion is that the two spectra have wider implications for future cases and thus their elaboration is essential in the realm of the Prosecutor’s response to the Comoros referral. As far as jurisdiction is concerned, we add our voice to authors who have so far who have held this is asserted. (See EJIL:Talk!, Opinio Juris and Human Rights Blog-spot) In this particular piece we would like to argue that such an assertion is de lege lata and not necessarily the case de lege ferenda. The assertion of jurisdiction derives from article 12(2)’s grammatical reading. However it is imperative to bear in mind that since the Rome Statute is a negotiated treaty, it is subject to wider reflection other than the narrow confines of the black letter provision. In this regard we aver that as a treaty, the Vienna Convention on the Law of Treaties (VCLT) is at play and in this regard invite consideration that the treaty provisions as provided for in the VCLT should be read in their contextual and historical depth, including their negotiation history and the volition of the parties. As such, there are elements that accompany the Rome Statute provisions on vessel jurisdiction which while not embedded in the wording of the provision itself, still constitute part of its essence. The Rome Statute provision was drafted along the lines of article 91 of the UN Convention on the Law of the Sea (UNCLOS). The latter, echoing a strong jurisprudence and treaty tradition stipulates and favours the notion that there must be a genuine link between the flag state and the vessel. This genuine link requirement is critical. While in some instances judicial bodies may have appeared reluctant to assert it, the reason was not its denial, but judicial and academic fears that a strict diligence to the principle would eventually preclude the forging of any nationality bonds, a far worse scenario. In the MV “Saiga” (No.2) case, the International Tribunal on Law of the Sea expressly stated that the role of the genuine link requirement is to secure more effective implementation of the duties of the flag state. UNCLOS does not envision an arrangement where states just confer nationality to ships and then are not at all engaged in their activities. Nationality is regarded as having a functional character. States try to protect social bonds of attachment against mere formal nationality imposed by the technicalities of law. This functional inquisition is evident in diverse fora. For example in the case of UN sanctions, such as those against Serbia and Iran, the relevant Security Council Resolutions considered the nationality of the vessel based on ownership or contract terms, regardless of the flag under which the ship may sail. (see UN SC Res 787 (1992) and UN SC Res 1929 (2010)). Essentially then, Article 91(1) of UNCLOS should be read in conjunction with article 94, in a way that the exercise of effective jurisdiction over the vessel constitutes one of the necessary conditions for granting nationality. It is thus too long a legal bow to draw that with embryonic jurisprudence on the subject, the ICC will have in mind previous positions and thus reflect on its article 12(2) vessel jurisdiction as not only encapsulating the straight line reading on flag jurisdiction but also the matter of a genuine link with the vessel particularly given the nature of its mandate. In the case of Comoros, the Mavi Marmara was Comoros flagged just a week before the flotilla incident.
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20 Jul

As I was checking my news feeds on Google News, I came across this: The snail photo is not actually part of the Washington Post article. So does that mean Google shares my concern with Libya's endless stall tactics?...

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20 Jul

This week on Opinio Juris, we continued our Emerging Voices symposium. Patricia Tarre Moser started the week with her proposal for the unilateral withholding of sovereign immunity as a countermeasure against jus cogens violations. Scott McKenzie wrote on the application of international water law principles to the simmering tension between Egypt and Ethiopia on the latter's decision to dam the Nile. Daniel Seah...

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19 Jul

Well, not really. But that's the unintended consequence of yesterday's awful decision in US v. Sterling, in which the Fourth Circuit held that James Risen could not rely on journalist's privilege to avoid testifying against James Sterling, whom the government believes leaked classified information to Risen. According the court, the government is entitled to Risen's testimony, because he is the...

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19 Jul

[Chelsea Purvis is the Robert L. Bernstein International Human Rights Fellow at Minority Rights Group International (MRG).  Opinions expressed here are her own and do not necessarily reflect those of MRG.] The African region has long been perceived as a recipient, not a creator, of international human rights law.  But over the past decade, African institutions have enshrined emerging human rights norms in treaties and issued ground-breaking jurisprudence.  Africa should be recognized as a generator of innovative human rights law.  Human rights institutions outside the continent, however, have largely failed to engage with African-made human rights law. An example of innovative African law-making is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which came into force in 2005.  The Maputo Protocol builds on existing women’s rights law: Like the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the Maputo Protocol obligates States parties to combat discrimination against women in all areas of life.  And like the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the Maputo Protocol prohibits physical, sexual, and psychological violence against women.  But the Protocol goes further than these earlier treaties.  For the first time in any international instrument, it prohibits verbal and economic violence against women. The Maputo Protocol contains notable protections for women’s reproductive rights, including an affirmative right to abortion in certain circumstances.  It also takes a conceptual leap forward in its treatment of culture and tradition.  Many sources of women’s rights law treat African cultures as uniformly negative for women. The Maputo Protocol, as Johanna Bond has argued, adopts the more nuanced approach advanced by scholars from the global South.  It recognizes the positive role culture can play in women’s lives but enshrines a woman’s right to shape her culture.  The Protocol also recognizes that certain culturally-authorized practices or beliefs are necessarily harmful to women—it prohibits, for example, female genital mutilation and exploitation in pornography. Another ground-breaking source of African human rights law is a 2010 decision by the African Commission on Human and Peoples’ Rights. 
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19 Jul

The ABA Journal is seeking nominations for its annual list of the 100 best legal blogs. We can’t nominate Opinio Juris because you can't nominate your own blog, but if you like our blog, find it useful or otherwise would like to spread the word, we'd be happy if you nominate us! Readers interested in nominating a particular blog for the 7th annual...

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18 Jul

The many tragedies that have unfolded in Syria and particularly, the failure of the international community to intervene in a prompt manner, have led to a series of new analyses on the scope and application of certain doctrines in international law. Take for example, the argument made by Laurie Blank and Geoffry Corn, in their forthcoming Vanderbilt Journal of Transnational Law...

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18 Jul

In the wake of the Pre-Trial Chamber's categorical rejection of Libya's admissibility challenge, the Libyan government asked the Appeals Chamber to suspend its obligation to transfer Saif Gaddafi to the ICC pending its appeal of the decision. The Appeals Chamber has now rejected that request and ordered Libya to surrender Saif to the Court. Here are the critical paragraphs of its decision: 24. Libya...

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