Saturday, November 22, 2008
- Hugh Thirlway, The Law and Procedure of the International Court of Justice 1960 - 1989. Supplement, 2007: Parts Four, Five and Six
- Amanda Perreau-Saussine, British Acts of State in English Courts
- Penelope Nevill, Awards of Interest by International Courts and Tribunals
- Jean Allain, Nineteenth Century Law of the Sea and the British Abolition of the Slave Trade
- Alistair Rieu-Clarke, The Role and Relevance of the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses to the EU and its Member States
- John Martin Gillroy, Justice-As-Sovereignty: David Hume and the Origins of International Law
Friday, November 21, 2008
Kann eine Rechtsordnung, die Staaten dazu zwingt, dem Völkermord in anderen Staaten tatenlos zuzusehen, eine gerechte Rechtsordnung sein? Nicht erst seit die NATO zum Schutze der Albaner im Kosovo zu den Waffen griff, wird die Frage der Zulässigkeit solcher „humanitären Interventionen“ kontrovers diskutiert. Dabei steht auch die Frage nach der Gerechtigkeit des Völkerrechts immer aufs Neue auf dem Prüfstand, scheinen Moral und Recht hier doch auseinander zu fallen.
In dieser Geschichte der Entwicklung der Rechtsfigur der „Humanitären Intervention“ wird die Entwicklung der Staatenpraxis zwischen 1822 und 1945 ebenso präzise nachgezeichnet, wie die begleitende Diskussion in der völkerrechtlichen Literatur. Hierbei wird aufgezeigt, dass die zeitgenössische Rezeption der Staatenpraxis Parallelen im Umgang des Völkerrechts der Gegenwart mit der Vergangenheit hat. Neue Fragen nach Kontinuitäten und kaum überwundenen Traditionen werden dadurch aufgeworfen. Die Vergangenheit des Völkerrechts erweist sich dabei als Bestandteil seiner Gegenwart, ein unerledigtes Kapitel, das noch nicht abgeschlossen ist.
- Matt McDonald, Securitization and the Construction of Security
- Hans-Martin Jaeger, "World Opinion" and the Founding of the UN: Governmentalizing International Politics
- Alejandro Colás, Open Doors and Closed Frontiers: The Limits of American Empire
- Andreas Dür, Bargaining Power and Trade Liberalization: European External Trade Policies in the 1960s
- Iver B. Neumann, The Body of the Diplomat
- Touko Piiparinen, The Rise and Fall of Bureaucratic Rationalization: Exploring the Possibilities and Limitations of the UN Secretariat in Conflict Prevention
- E. Lagrange, La cohérence de la chose jugée (l’affaire du génocide devant la CIJ)
- P. Klein, Responsabilité pour les faits commis dans le cadre d’opérations de paix et étendue du pouvoir de contrôle de la Cour européenne des droits de l’homme: quelques considérations critiques sur l’arrêt Behrami et Saramati
- M. Forteau, À la recherche du droit applicable aux actes extraterritoriaux d’exécution: l’affaire R. c. Hape devant la Cour suprême du Canada (7 juin 2007)
- G. Distefano, Observations éparses sur les caractères de la personnalité juridique internationale
- B. Taxil, À la confluence des droits: la convention internationale pour la protection de toutes les personnes contre les disparitions forcées
- L. Lombart, Gibraltar et le droit à l’autodétermination: perspectives actuelles
- N. Susani, Sur quelques singularités territoriales européennes
- R. Pavoni, La jurisprudence italienne sur l’immunité des États dans les différends en matière de travail: tendances récentes à la lumière de la convention des Nations Unies
- G. Boutherin, Maîtrise des armements non conventionnels: le salut viendra-t-il du soft disarmament?
- Mia Louise Livingstone, Party Autonomy in International Commercial Arbitration: Popular Fallacy or Proven Fact?
- Graeme Johnston, Party Autonomy in Mainland Chinese Commercial Arbitration
- Kaj Hobér, State Responsibility and Investment Arbitration
- António Sampaio Caramelo, Arbitration in Equity and Amiable Composition under Portuguese Law
- Roman Jordans, Section 37h of the German Securities Trading Act and its Non-compliance with European Law
- Klaus Peter Berger, The Need for Speed in International Arbitration: Supplementary Rules for Expedited Proceedings of the German Institution of Arbitration (DIS)
- Timothy Tyler & Archis A. Parasharami, Finality over Choice: Hall Street Associates, L.L.C. v. Mattel, Inc. (U.S. Supreme Court)
- Jean-Claude Najar, A Pro Domo Pleading: Of In-House Counsel, and their Necessary Participation in International Commercial Arbitration
- Reza Mohtashami, Recent Arbitration-related Developments in the UAE
Hélène Lambert (Univ. of Westminster - Law) will give a talk today at the University of Nottingham School of Law-International Law Association (British Branch) Regional Seminar Series on "The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union."
Margaret Young (Univ. of Cambridge - Law) will give a talk today at the University of Cambridge Lauterpacht Centre for International Law on "Toward a Legal Framework for Regime Interaction: Lessons from International Trade and Fisheries Regimes."
Thursday, November 20, 2008
- Ali Mezghani, L'arbitrage en droit musulman
- Bernard Beignier, Assurance et arbitrage: la place de l'assureur dans l'instance arbitrale
- Alexis Mourre, A propos des articles V et VII de la Convention de New York et de la reconnaissance des sentences annulées dans leur pays d'origine: où va-t-on après les arrêts Termo Rio et Putrabali?
Shaygan: La compatibilité des sanctions économiques du Conseil de sécurité avec les droits de l’homme et le droit international humanitaire
Le recours accru de l’ONU aux sanctions économiques, depuis la fin de la guerre froide, a révélé, entre autres carences du système de sécurité collective, la problématique de leurs effets désastreux sur la population civile de l’État cible pour laquelle la Charte n’a rien prévu. Les Nations Unies ont été confrontées aux valeurs et fins communes consacrées par la Charte.
Le présent ouvrage se propose de démontrer que le respect des règles et principes pertinents des droits de l’homme et du droit international humanitaire est la clef de l’humanisation des sanctions et de la conciliation des activités du volet sécuritaire de l’ONU avec celles de son volet développement humain. Il montre également que la crédibilité du Conseil de sécurité dépend désormais de ce qu’il intègre une dimension humaine dans sa mission en tant qu’élément constitutif de l’ordre public international.
Cette étude met en évidence l’inefficacité du mécanisme des dérogations humanitaires qui n’est pas un instrument préventif, mais doit constituer un remède aux souffrances provoquées. Elle permet de mieux comprendre comment et pourquoi le Conseil de sécurité a tendance à rechercher une solution en amont pour l’ensemble des problèmes liés aux sanctions. Il s’agit de la politique dite des sanctions ciblées ou « intelligentes » dont les avantages et les défauts sont également analysés en profondeur. L’exploration ne se termine pas là, elle examine ensuite les moyens juridiques et autres pour assurer, dans une certaine mesure, la légalité des sanctions dès le stade de leur conception.
Elizabeth Kirk (Univ. of Dundee - Law) will give a talk today at the Queen's University Belfast School of Law - International Law Association Belfast Regional Seminar Series on "The Good, the Bad and the Development of International Law: The Role of Non-Compliance in International Law."
Photini Pazartzis (Univ. of Athens - Law) will give a talk today at the University of Oxford Public International Law Discussion Group on "Revisiting the Element of Practice in Customary International Law."
Wednesday, November 19, 2008
- James Harrison & Alessa Goller, Trade and Human Rights: What Does 'Impact Assessment' Have to Offer?
- Claire Mahon, Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
- Samantha Besson, Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?
- Stephen Allen, International Law and the Resettlement of the (Outer) Chagos Islands
- Brian Ray, Occupiers of 51 Olivia Road v City of Johannesburg: Enforcing the Right to Adequate Housing through 'Engagement'
- Alicia Hinarejos, Laval and Viking: The Right to Collective Action versus EU Fundamental Freedoms
Benedict Kingsbury (New York Univ. - Law) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on Global Governance and Legal Theory on "The Concept of 'Law' in Global Administrative Law."
John Merrills (Univ. of Sheffield - Law) will give a talk today at the University of Sheffield Centre for Law in its International Context Seminar Series on "Autonomy and International Adjudication."
Marco Roscini (Westminster Univ. - Law) will give a talk today at the International Law Association (British Branch)-University College London Faculty of Laws International Law Seminar on "Nuclear Non-Proliferation from a Regional Perspective: The Case for Nuclear-Free Zones."
Today, Trial Chamber I decided to lift the stay of proceedings in the case of The Prosecutor v. Thomas Lubanga Dyilo that had been imposed on 13 June 2008. The judges provisionally suggested the date of Monday, 26 January 2009, for the commencement of the trial. The decision of the Chamber is based on the conviction that the reasons for imposing a halt “have fallen away”. The full reasoning will be explained in a written decision in due course.
Trial Chamber I decided to impose the stay of proceedings because they came to the conclusion that the prosecution had incorrectly used article 54 (3) (e) of the Rome Statute. This article allows the Prosecutor, exceptionally, to receive information or documents, on the condition of confidentiality, which are not for use at trial, but solely for the purpose of generating new evidence. The Chamber concluded that this misuse has had the consequence that a significant body of exculpatory evidence had not been disclosed to the accused, thereby improperly inhibiting the opportunities for the accused to prepare his defence. Some documents were obtained from information providers, such us the United Nations and NGOs with agreements not to be disclosed.
On 2 July 2008, the judges of Trial Chamber I granted the release of Lubanga Dyilo. According to the judges it was "the logical consequence" of the stay of proceedings as it was impossible to secure a fair trial for the accused. However, Lubanga Dyilo remained under the custody of the Court pending a final decision of the Appeals Chamber.
On 11 July 2008, the Prosecution requested Trial Chamber I to resume trial proceedings and to revoke the order of release for Lubanga Dyilo, but on 3 September the judges decided to maintain the stay they had imposed.
Furthermore, on 21 October 2008, the Appeals Chamber reversed the decision of the Trial Chamber I on the release of Thomas Lubanga Dyilo and decided to remand the matter to the Trial Chamber for a new determination.
Tuesday, November 18, 2008
ICJ: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Judgment on Preliminary Objections)
Here's the dispositif:
Vice-President Al-Khasawneh appended a separate opinion to the Judgment of the Court; Judges Ranjeva, Shi, Koroma, and Parra-Aranguren appended a joint declaration to the Judgment of the Court; Judges Ranjeva and Owada appended dissenting opinions to the Judgment of the Court; Judges Tomka and Abraham appended separate opinions to the Judgment of the Court; Judge Bennouna appended a declaration to the Judgment of the Court; Judge Skotnikov appended a dissenting opinion to the Judgment of the Court; Judge ad hoc Vukas appended a separate opinion to the Judgment of the Court; Judge ad hoc Kreća appended a dissenting opinion to the Judgment of the Court.
(1) By ten votes to seven,
Rejects the first preliminary objection submitted by the Republic of Serbia in so far as it relates to its capacity to participate in the proceedings instituted by the Application of the Republic of Croatia;
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Buergenthal, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Vukas;
AGAINST: Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Owada, Skotnikov; Judge ad hoc Kreća;
(2) By twelve votes to five,
Rejects the first preliminary objection submitted by the Republic of Serbia in so far as it relates to the jurisdiction ratione materiae of the Court under Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide to entertain the Application of the Republic of Croatia;
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Vukas;
AGAINST: Judges Ranjeva, Shi, Koroma, Parra-Aranguren; Judge ad hoc Kreća;
(3) By ten votes to seven,
Finds that subject to paragraph 4 of the present operative clause the Court has jurisdiction to entertain the Application of the Republic of Croatia;
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Buergenthal, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Vukas;
AGAINST: Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Owada, Skotnikov; Judge ad hoc Kreća;
(4) By eleven votes to six,
Finds that the second preliminary objection submitted by the Republic of Serbia does not, in the circumstances of the case, possess an exclusively preliminary character;
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Vukas;
AGAINST: Judges Shi, Koroma, Parra-Aranguren, Tomka, Skotnikov; Judge ad hoc Kreća;
(5) By twelve votes to five,
Rejects the third preliminary objection submitted by the Republic of Serbia.
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Vukas;
AGAINST: Judges Shi, Koroma, Parra-Aranguren, Skotnikov; Judge ad hoc Kreća.
I’d like to thank the Fletcher School and the sponsors of this event for the invitation to address this conference. During my last four years as Legal Adviser, I have spent a very considerable amount of time on issues relating to international criminal justice, especially the International Criminal Court, and I am delighted to be here to tonight to share some thoughts and discuss these issues with you.
Tonight, I’d like to discuss the United States’ approach to international criminal justice generally, and in particular, our views on the various international criminal tribunals. Let me start by making a few points about the overall U.S. approach in this area.
First, the United States has been a consistent supporter of international criminal justice. This fact is often lost on critics, who tend to focus on the United States’ objections to certain aspects of the International Criminal Court. There is sometimes a mistaken impression that this Administration opposes international tribunals, including international criminal tribunals. Not so. The fact is that U.S. support is vital to the operation of these institutions, and the United States is among the largest providers of financial, political, and technical support for international criminal justice.
Indeed, the United States recognizes that international criminal tribunals, in the right circumstances, play a key role in ensuring accountability for those who commit war crimes, genocide, and crimes against humanity.
Second, where the United States has expressed concerns about international tribunals – leaving aside the ICC for the moment – those concerns have generally not been about tribunals’ ultimate purposes, but rather to ensure that tribunals function efficiently. In the United States, we of course have the saying that “justice delayed is justice denied.” The same is often true of international tribunals. Not only do delays and inefficiencies thwart the purpose of meting out justice; they undermine what is often one of the essentials purposes of international tribunals: to redress serious crimes in a manner that allows all sides to a violent conflict to come to terms with what has happened and reconcile their differences.
Third, in the United States’ view, local institutions are the preferred avenue for dispensing justice. Solutions that empower local institutions of criminal justice also inspire local ownership of results. We believe that fostering domestic institutions is central to the promotion and development of the rule of law. In appropriate circumstances, however, international tribunals can supply the resources or technical capacity that local courts may lack; they can provide legitimacy and fairness where local institutions are inchoate or mistrusted; and most important, they can provide the political will to carry out justice where that will is absent, or insufficient, at the domestic level. But it is critically important that we rely on local criminal-justice institutions where they are available and up to the task, and, where they are not, that we work to develop those institutions. An example of the United States’ approach in this area has been our support for the Iraq High Tribunal, which the Iraqis determined was the best way to achieve justice and reconciliation in their country. The United States stood virtually alone, however, in supporting the tribunal, perhaps because of lingering international pique over the Iraq war and in part because some countries and human rights groups preferred an international tribunal. This was unfortunate. International tribunals should not be the presumptive option: where, as in Iraq, justice can be handled locally, that is where it should be done.
Fourth, dispensing justice through international tribunals is not an easy or straightforward business. As the history both of the Yugoslavia and Rwanda tribunals and of the United States’ experience with military commissions suggests, establishing new institutions requires the development or adoption of an appropriate framework of substantive and procedural law – for example, rules of evidence addressing hearsay or involuntary testimony and substantive definitions of the scope of criminal offenses. In the West, our longstanding judicial and criminal-justice institutions have already worked out their “kinks.” For international tribunals, major substantive and procedural issues often have to be worked out on the fly, in the course of investigating and prosecuting individual defendants.
With these points in mind, I’d like to survey recent developments in the various criminal tribunals and in U.S. policy in this area.
ICTY and ICTR
Let me start with the two tribunals created by the UN Security Council to address the horrible crimes committed during the conflicts in Yugoslavia and Rwanda. The United States has strongly supported these tribunals – financially and otherwise – in order to ensure that the perpetrators of these crimes are held accountable and ultimately to encourage reconciliation among the parties to the conflicts in those regions. In fact, the United States – and the Office of the Legal Adviser in particular – was instrumental in setting up these tribunals. And let me say we are quite proud that so many private American citizens – including professional judges and prosecutors – have worked at the two tribunals. Among them is Ted Meron, a U.S. national and a former counselor in the Legal Adviser’s office, who currently serves as an appeals judge on the ICTY – the International Criminal Tribunal for the former Yugoslavia – and for several years served as a very effective president of the institution.
The tribunals are funded through assessed UN contributions, and the United States is the largest contributor to both institutions. We have provided about one quarter of the cost of the ICTY and the ICTR – the International Criminal Tribunal for Rwanda. All told, our total contributions to the tribunals since their inception exceeds half a billion dollars.
Along with these financial contributions, the United States has offered significant political and technical support to the tribunals. Secretary Rice made a point of meeting with the presidents and chief prosecutors of the ICTY and ICTR within months of entering office. And over the years we have actively cooperated with requests by the tribunals for information or access to witnesses – both from the prosecution and the defense – in order to ensure fair trials. For example, we have provided the ICTY with imagery of mass graves at Srebrenica, which has been used by prosecutors to help establish the facts surrounding the slaughter of approximately 8000 men and boys in the summer of 1995 – an act of genocide that shocked the world.
This summer saw a notable success for the ICTY in the arrest and transfer of Radovan Karadzic to The Hague this past July. The United States applauds Serbian authorities for taking this important step. We now must continue to work toward the arrest of remaining fugitives, particularly Ratko Mladic, and at the ICTR, Felicien Kabuga.
The time is approaching, however, when both tribunals need to wrap up their work, consistent with the “Completion Strategy” laid out by the Security Council. The tribunals have taken steps to increase efficiency, but it is clear that the timelines for finishing work are slipping. We encourage continued improvement in efficiency, and note that, given that the delay is due in part to the recent capture of fugitives, it will be necessary to make some reasonable accommodation.
We are now working in New York with other members of the Security Council to define which functions will be assigned to the residual mechanism (or mechanisms) that will handle certain limited matters once the tribunals have completed their current work, probably in 2011. The United States would like to see a mechanism with a limited mandate, but also with the capacity to ramp up and handle trials of Mladic and Kabuga if they are not apprehended and tried before the tribunals’ operations cease.
At the same time, we need to work to build the capacity of domestic courts to try war crimes. This has not only been critical to the success of the ICTY and the ICTR completion strategies, but is also essential for lasting justice and reconciliation. The United States has been a significant supporter of building the capacity of local courts, particularly in Bosnia, but to some extent in Croatia and Serbia as well, and the ICTY has been able to transfer a number of cases to courts in the region for prosecution. The ICTR has had difficulty transferring certain cases to Rwanda, and transferring individuals for genocide prosecutions in European national courts has not proved to be a straightforward alternative. Nevertheless, as ethnic and political reconciliation slowly take hold in the former Yugoslavia and in Rwanda, we need to be mindful that local political entities will ultimately need to exercise responsibility for addressing the remaining issues that stem from their respective conflicts.
Special Court for Sierra Leone
The Special Court for Sierra Leone, which I will discuss next, represents a hybrid model of international criminal justice – and the first of its kind – in that it combines local and international components. Unlike the ICTY and the ICTR, which were created directly by the Security Council through Chapter VII resolutions, the Special Court was established through an agreement between the UN and the Government of Sierra Leone, undertaken by the UN Secretary General in accordance with a resolution of the UN Security Council. The court has jurisdiction to prosecute crimes under both Sierra Leonean and international law, and includes judges appointed by the Government of Sierra Leone and by the UN Secretary General.
The United States has been the Special Court’s principal supporter. Here, however, the court’s funding consists entirely of voluntary contributions from the international community. The United States has provided approximately $60 million in funds to-date – which is roughly forty percent of all voluntary contributions to the court and more than the total funds provided by the next three largest contributors combined. The United States has also provided extensive technical and political support to the Special Court. Although we are not under a legal obligation to assist the Special Court as we are the ICTY and the ICTR, we have nevertheless cooperated with the Special Court in the same manner.
Last year saw the start of the trial of former Liberian President Charles Taylor in The Hague. This was a significant moment: Taylor is the first African president to be indicted by an international court for war crimes, crimes against humanity, and other serious international crimes. The United States went to extraordinary lengths to help locate Taylor, bring him to Liberia, and facilitate his trial. Secretary Rice was personally instrumental in these efforts, and I remember personally calling ICC President Philippe Kirsch to tell him we had no objection to the use of ICC facilities for the trial. Although we do have concerns about the ICC, which I will discuss in a moment, we do not have concerns about the use of its bricks and mortar.
We were disappointed that European countries, when asked to incarcerate Taylor if convicted, were reluctant to help. Some countries are vocal about international criminal justice, and are quick to criticize the United States over the ICC, but have often failed to take concrete action themselves to support the work of the other international tribunals. Tony Blair is to be applauded for cutting through the red tape and agreeing to take Taylor, if convicted.
Khmer Rouge Tribunal
Like the Special Court for Sierra Leone, the Khmer Rouge Tribunal is a “hybrid” court established by agreement between the UN and the Cambodian government to bring to justice those responsible for the deaths of as many as two million Cambodians under the Khmer Rouge regime in the late 1970’s. One notable feature of the Tribunal is that, although it consists of both Cambodian personnel and UN-appointed personnel, Cambodians are entitled to a majority of judges in both the Trial and appellate Chambers of the Tribunal. This distinguishes the Tribunal from the Special Court for Sierra Leone, for example, which has a majority of judges appointed by the UN Secretary General.
The United States strongly supports the goal of bringing Khmer Rouge leaders to justice, and is committed to the work of the Tribunal and to helping Cambodia build a society based on the rule of law. We have, however, also had serious concerns about the ability of the Tribunal to meet international standards of justice and address corruption.
Of late, the Tribunal has made notable progress on management and corruption issues, but there is more work to be done. If the Tribunal continues to make progress, the United States intends to make available $1.8 million for the Tribunal this year.
Special Tribunal for Lebanon
The Special Tribunal for Lebanon represents yet another model for international criminal justice. The Tribunal was created, in accordance with UN Security Council Resolution 1757, to bring to justice those responsible for the murder of former Lebanese Prime Minister Rafik Hariri and others. The Tribunal’s mandate is to prosecute violations of Lebanese domestic law. This distinguishes the tribunal from the ICTY and the ICTR, whose jurisdiction covers war crimes, genocide, and crimes against humanity. The Lebanon Special Tribunal is, in other words, an international institution set up to prosecute domestic crimes. Usually the prosecution of such crimes is left to a state’s internal legal process, but Lebanon was a case where that process was itself subverted by threats of violence and terrorism. We therefore believe an international criminal justice mechanism is necessary in order to deter further political assassinations and to protect the sovereignty of Lebanon.
The Tribunal process is now underway, and, as the UN Secretary General has affirmed, that process is irreversible. The Tribunal will sit in The Hague, and we are grateful once again to the Dutch for their willingness to host, particularly in light of the security and safety challenges the Lebanon Tribunal presents. The United States has been a principal supporter of the Tribunal. So far, we have contributed $14 million toward the set up and first-year operations of the Tribunal, and we expect to continue to be among the Tribunal’s strongest backers. In addition, we fully support the work of Daniel Bellemare, Commissioner of the UN International Independent Investigation Commission, or UNIIC. We look forward to his next report and recommendations on whether to extend UNIIIC’s mandate or open the Tribunal. In the end, it is important that the Tribunal will ultimately punish those responsible for the assassination of former Prime Minister Hariri and others in Lebanon and help ease civil discord.
International Criminal Court
And finally, let me turn to the International Criminal Court, the tribunal which tends to overshadow all the others even though it has yet to try a single case. Of course, in international law circles, the ICC is a hot topic right now. And there is considerable speculation about what the next Administration will do with respect to the ICC. I obviously cannot say for sure what will happen on this score, so let me instead describe some aspects of the U.S. approach over the last few years.
It is important to note at the outset that the United States’ fundamental concerns about the ICC have been remarkably consistent across successive Administrations and Congresses controlled by both Democrats and Republicans. Time will tell if the next Administration will take a different approach, but I think it is unlikely, in the absence of significant changes to the Rome Statute to address these concerns, that the United States will become a party to the Rome Statute any time in the foreseeable future. Rather, I believe that the future of the relationship between the United States and the ICC will be defined mainly by the extent to which the United States and ICC supporters can agree to disagree about the Rome Statute and find constructive and practical ways to work together to advance our shared interest in promoting international criminal justice.
While long a proponent of the idea of a permanent international criminal court, during the run-up to the Rome Statute in the 1990’s, the United States consistently stressed that establishing an international criminal court was not an end in itself. Rather, we believed, a court’s effectiveness would depend on the powers given to the court and the ways in which those powers were integrated into the existing international system for peace and security. In particular, Clinton Administration representatives at Rome made clear that the ICC must operate in coordination, not in conflict, with the UN Security Council. They opposed proposals to give the court’s prosecutor the authority to commence investigations on his or her own initiative, without a referral from the Security Council. They emphasized that the United States and other governments participate together in military alliances and peacekeeping operations around the world, and that the soldiers undertaking these important tasks need to be able to do their jobs without exposure to potentially politicized prosecutions from the court. They also expressed concerns with proposals to have the court exercise jurisdiction over crimes, such as a crime of aggression, which had a very different character than war crimes, genocide, and crimes against humanity.
While U.S. negotiators worked hard to secure agreement on a treaty that would meet these objectives, the negotiations at Rome failed to produce acceptable terms. The concerns the United States made clear at Rome were the basis for President Clinton’s decision, announced in December 2000, that the United States would sign the Rome Statute but that he would not submit it to the Senate for advice and consent to ratification. President Clinton stated: “I will not, and do not recommend that my successor submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.”
My point here is that concerns about the ICC did not begin, and likely will not end, with the present Administration. Of course, this Administration has been criticized for its approach to the ICC, particularly in the first term, when the United States formally notified the UN Secretary-General that it did not intend to become a party to the Rome Statute. This has been widely misunderstood as a confrontational U.S. rejection of the ICC. In fact, the central motivation was to resolve any confusion whether, as a matter of treaty law, the United States had residual legal obligations arising from its signature of the Rome Statute not to take steps inconsistent with the treaty’s “object and purpose.”
I want to be clear here that it was not the policy of the United States to try to kill the ICC. We have respected the decisions of other states to become parties to the Rome Statute. Under Secretary of State Marc Grossman emphasized this very principle in his 2002 announcement that the United States did not intend to become a party to the Statute. He said: “the United States respects the decision of those nations who have chosen to join the ICC; but they in turn must respect our decision not to join the ICC or place our citizens under the jurisdiction of the court.” Our policies have been consistent with this approach – including the so-called “un-signing,” and our efforts to secure Article 98 agreements with other states, which were designed to protect U.S. personnel from the jurisdiction of the court, not to interfere with the decisions made by Rome Statute parties to subject their own nationals to the court’s jurisdiction.
The concerns, however, that underlay the Clinton Administration’s actions and the decision in 2002 to inform the UN that the United States did not intend to become a party are still relevant today. They reflect the unique role and interests of the United States as a global military power and as a permanent member of the Security Council, as well as our historically-rooted concern that institutional power must be subject to appropriate checks. Even if the next Administration decides, despite these concerns, that it would like to pursue having the United States become a party to the Rome Statute, it may be quite difficult to muster support from two-thirds of the Senate. It is important for supporters of the court overseas to appreciate these political realities in the United States.
Still, even if the United States is not a party to the Rome Statute, there are many ways for the United States and ICC parties to work constructively on international criminal justice issues. In recent years, this Administration has sought to steer the focus away from unnecessary wrangling over the issues that divide the ICC’s supporters and opponents and toward finding practical and constructive ways to cooperate in advancing our common values and our shared commitment to international justice.
We’ve re-emphasized as a core principle of our policy our respect for the decisions of other states to join the ICC, and have acknowledged that the court can have a valuable role to play in certain cases. On this point, Darfur is exhibit A. In 2005, in one of the first major policy decisions of Secretary Rice’s tenure at the State Department, the United States accepted the decision of the UN Security Council to refer the Darfur situation to the ICC. We have said that we want to see the ICC’s Darfur work succeed and indicated our willingness to consider an appropriate request for assistance from the ICC in connection with the Darfur matter, consistent with applicable U.S. law.
And in recent months, we have opposed efforts by some countries to invoke Article 16 of the ICC Statute to defer the investigation and prosecution of Sudanese President Al Bashir. The irony of the United States’ support for the court in opposing an Article 16 deferral is often noted by the press; what I hope will get equal attention is the still-greater irony that some strong supporters of the court seem so willing to consider interfering with the Court’s prosecution of an individual responsible for genocide. And beyond Darfur, the President has waived restrictions under U.S. law on assistance to a number of countries that had not signed Article 98 agreements with the United States in order to ensure the continuation of important aid to those countries.
It is now time for ICC supporters to overcome their own reluctance to build a more constructive relationship with the United States. As Under Secretary Grossman said in 2002, “We believe that there is common ground, and ask those nations that have decided to join the Rome Statute to join us there.” And, I am glad to say that finally on Monday of this week, ICC supporters expressed a willingness to do so. For the first time, after three years of opposition, ICC supporters included language in this year’s version of the annual UN General Assembly resolution on the ICC that emphasizes the importance of cooperation by States parties with States that are not parties to the Rome Statute and that notes that the upcoming review conference provides an opportunity to address the concerns of non-parties. This signals, I hope, a new willingness by ICC supporters to stop fighting their ideological battles and trying to convert the United States and instead to cooperate with us and address our legitimate concerns.
For its part, the new Administration will no doubt look at a range of issues as it contemplates how best to protect American interests. For example, both the Clinton and Bush Administrations have recognized from the outset the risks posed by the possibility of the Rome Statue parties adopting a definition of the crime of aggression that does not meet U.S. redlines. Much of the work on the definition has been done by a Special Working Group, but that group’s work is now coming to an end, with meetings next week – at the meeting of the Assembly of States Parties in The Hague – and at the final “resumed sessions” scheduled to take place at the beginning of next year. It is quite unlikely that the Working Group will bridge the very profound differences in points of view about the definition, and the issue will remain unresolved as the parties head toward the Rome Statute Review Conference that is to take place in 2010. With the efforts of the Working Group behind it, the new Administration will need to consider how best to position the United States to deal with this important issue going forward. One thing is for certain: if Rome Statute parties adopt an unacceptable definition of the crime of aggression and then amend the Rome Statute so that it applies to non-parties like the United States, they risk triggering a new crisis in their relationship with the United States.
ICC supporters will undoubtedly press the new Administration to become parties to Rome Statute. As I have noted, absent very basic changes to the Rome Statute, the same “fundamental concerns” that led President Clinton to decide not to submit the treaty for ratification will continue to be salient for a new Administration and make this, in my view, exceedingly unlikely. The new Administration may be pressed to participate as observers in the Assembly of States Parties, to share intelligence and law enforcement information with the ICC, to seek repeal of the American Servicemembers Protection Act, and perhaps even somehow to renounce the “un-signing” of the Rome Statute, and it will be interesting to see how it deals with these issues. The 2010 Review Conference provides an opportunity to address concerns raised by non-parties, and the extent to which ICC supporters constructively use this opportunity can significantly affect the ability of Rome Statute parties and non-parties to work constructively on our shared interests in promoting justice rather than focusing endlessly on our differences about the Court.
In sum, there are difficult issues ahead for the United States and the ICC, to be sure. But those issues should not cloud the United States’ strong and consistent support for international criminal justice – in the former Yugoslavia, in Rwanda, and in Sierra Leone, Cambodia, and Lebanon. Whatever the outcome of the various issues surrounding the ICC, international institutions of criminal justice will continue, in appropriate circumstances, to be important practical tools for ensuring accountability for serious crimes, in particular war crimes, genocide, and other crimes against humanity. We must not forget that that is what is ultimately at stake here: the need to address crimes of the gravest and most heinous nature – crimes that the entire human race condemns. It is an honorable and necessary enterprise, and one the United States fundamentally supports.
Article 5(1) of the Rome Statute provides the International Criminal Court (ICC) with jurisdiction over the crime of aggression, but does not define the crime. A Special Working Group on the Crime of Aggression, however, has made considerable progress in developing a definition of the crime as well as conditions for the exercise of jurisdiction. In 2008, and in anticipation of a Review Conference to be held in 2010, the Special Working Group circulated a Discussion paper that, in its Annex, proposes a definition of the crime of aggression by way of amendment to the Rome Statute. The definitional consensus that has emerged is grounded on the assumption that a narrow definition of aggression stands a more realistic chance of securing state approval. Three characteristics animate this definitional consensus and contribute to its narrowness: (1) that state action is central to the crime; (2) that acts of aggression involve interstate armed conflict; and (3) that criminal responsibility only attaches to very top political or military leaders.
This Paper argues that, although there are pragmatic advantages to proceeding in this conservative manner, opportunity costs also arise. In response, this Paper suggests a gentle expansion in the scope of the crime of aggression, both in terms of the impugned acts as well as in terms of who can be prosecuted. It draws from two examples of crimes against the peace prosecutions in the wake of the Second World War (the Greiser and Sakai cases) that have received scant attention in the Special Working Group. The Paper also draws from the nature of contemporary threats to transnational stability, security, sovereignty, and human rights interests, many of which depart from the classic model of interstate armed conflict. The following sequence concerns me: (1) the Special Working Group proposes a narrow crime of aggression; (2) the Rome Statute is amended to include this narrow crime; (3) the Special Working Group packs up its tent; and (4) the conversation about what exactly aggression should proscribe simply loses momentum and ends. Such an outcome, which arises from a push to codify, might compromise the longer-term expressive value and effective legitimacy of the crime of aggression to future generations, especially in the developing world.
Monday, November 17, 2008
- Gary Wilson, Selective Conscientious Objection in the Aftermath of Iraq: Reconsidering Objection to a Specific War
- Jeffrey Burds, Ethnic Conflict and Minority Refugee Flight from Post-Soviet Ukraine, 1991-2001
- Manisuli Ssenyonjo, The Applicability of International Human Rights Law to Non-State Actors: What Relevance to Economic, Social and Cultural Rights?
- Olufemi O. Amao, The African Regional Human Rights System and Multinational Corporations: Strengthening Host State Responsibility for the Control of Multinational Corporations
- Graham Dossett, Interviewing by Law Enforcement Officials: The Need for an International Regulatory Framework and the Form This Might Take
- Myriam Denov, Girl Soldiers and Human Rights: Lessons from Angola, Mozambique, Sierra Leone and Northern Uganda
- Phil C.W. Chan, National Origin Discrimination and Race Anti-Discrimination Legislation in Hong Kong
The Supreme Court's 2008 decision in Texas v. Medellin appears to represent a formalist turn in the Court's approach to foreign relations cases. The opinion emphasizes text as the key to treaty interpretation and it stresses the importance of the Constitution's specific law-making procedures. But the opinion does not deliver on its formalist promises. Emphasis on treaty text is undermined by Court's insistence that the text reflects the intentions of the U.S. treaty makers, a questionable proposition with respect to the issue of domestic implementation raised by the case, and one that will raises serious interpretative difficulties down the road. Most significantly, however, the opinion is saddled with an unnecessary and unconvincing application of Justice Jackson's tripartite Youngstown framework. The Court concludes that President's effort to implement the treaty falls within the third category, but the indicia of Congressional intent that the Court relies on are weak, and the analysis works a substantial expansion of category III. Moreover, as the Court frames the issue - one of treaty interpretation - it is unclear why Youngstown should apply at all.
- Tetiana Bersheda Vucurovic, 50th Anniversary of the New York Convention; Any Progress in Recognition and Enforcement of Foreign Arbitral Awards in Ukraine?
- Catherine Bellsham-Revell, Complex Dispute-Resolution Clauses: Has the Desire to Control the Dispute Process Led to Increased Uncertainty?
- Ola Ø. Nisja, Confidentiality and Public Access in Arbitration—the Norwegian Approach
Sunday, November 16, 2008
- Anthony Lester & Paola Uccellari, Extending the Equality Duty to Religion, Conscience and Belief: Proceed with Caution
- Colm O’Cinneide, A Modest Proposal: Destitution, State Responsibility and the European Convention on Human Rights
- Kate Smyth, R. (on the application of Al-Jedda) v Secretary of State for Defence: Human Rights and Accountability in International Military Operations
- Catherine Dupré, After Reforms: Human Rights Protection in Post-Communist States
- David G. Barnum, Foreign Intelligence Surveillance in the United States: Update
- Achilleas Demetriades, Silvia Bartolini, & Theodora Christodoulidou, Life Imprisonment as Inhuman and Degrading Treatment: Kafkaris v Cyprus before the European Court of Human Rights