Archive for July, 2010
Last week, the International Court of Justice delivered its advisory opinion (PDF file) on the legality of Kosovo’s declaration of independence. It considered that Kosovo’s declaration of independence was not illegal but did not go as far as officially recognizing Kosovo’s independence in a positive manner. This caused a lot of confusion for many people – including the mainstream media – trying to understand what the ICJ said. This post attempts to clarify what the Court said, why it said what it said, and what the consequences are.
As Justine has noted in her post a few days ago, paragraph 56 is particularly interesting in its display of how the Court defined the question (it goes without saying that the emphasis is mine):
56. The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession”, and whether there was a rule of international law which conferred a positive entitlement on any of the organs named. By contrast, the General Assembly has asked whether the declaration of independence was “in accordance with” international law. The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence. If the Court concludes that it did, then it must answer the question put by saying that the declaration of independence was not in accordance with international law. It follows that the task which the Court is called upon to perform is to determine whether or not the declaration of independence was adopted in violation of international law. The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, afortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act ⎯ such as a unilateral declaration of independence ⎯ not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The Court has been asked for an opinion on the first point, not the second.
It must be noted that for many international lawyers, this strict interpretation of the question that was asked to the Court by the General Assembly of the United Nations – “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” – in Resolution 63/3 on 8 October 2008 is particularly frustrating, as we all (more or less) secretly expected a much bigger bombshell to come out of the Peace Palace in The Hague (no pun intended). Read the rest of this entry »
A few days after the International Court of Justice has delivered its advisory opinion on Kosovo’s independence its website is still not operating normally. The situation is seen by many as an important precedent for people seeking independence. While many media have seen the judgement as the ICJ giving the green light to independence of Kosovo, the topic was the legality of Kosovo’s declaration of independence.
The ICJ has now declared that that declaration was legal or to put it more carefully (as the Court did) no international legal provision can be found to doubt the legality of the declaration. This is very good news for the government (it seems we no longer have to add brackets) of Kosovo. Especially since it emerged earlier this week that the trial against Ramush Haradinaj, Kosovo’s former prime minister, needs a partial re-trial. Read the full article
There’s a recent internet “buzz” around the question of whether the European Union is or is not a State, following British MP Daniel Hannan’s post claiming that, with the UN recognizing the EU officially and the Lisbon treaty giving it the power to sign treaties, the European Union was now officially a State under international law.
I was doing my usual blog tour through RSS feeds and such, and came across this post on this question by Julian Ku at Opinio Juris. Reading the comments under them, one of them caught my attention. It was written by Tobias Thienel, who contributes at the Invisible College Blog. Tobias Thienel wrote, on the question of whether the EU was or not a State:
“for an entity to be a state, it must not only have powers comparable to a state (a ‘government’ in the words of the Montevideo Convention), but those powers must not be derived from anyone else. They also, therefore, must not be limited by someone else’s consent. That, in a nutshell, is what sovereignty means.
A state naturally has full ‘compétence de la compétence’, in that it can take new powers at any time, of its own initiative.
The EU cannot. It remains bound by the principle of limited attribution, and derives all its powers from the Treaties, that is to say from the member states. It does not hold power in its own right, no matter how much power – or what powers, including the capacity to make treaties – it holds.”
I started writing a comment to discuss this point, and the comment ended up being over a 1000 words long. Feeling it would be too long for a comment, I decided to post it here instead. Hence the abrupt start:
I think Tobias Thienel’s point about the United States having as a State “la compétence de la compétence”, and not the European Union raises an interesting issue of comparison. I believe he is right in the end, but I’ve been toying with the idea of comparing the US’s constitutional structure and the EU’s institutions, and I’ve found some interesting parallels.
First of all, words of caution: comparison is not, of course, reason, and what I am about to write will probably make any comparative legal scholar scream, but I think it’s worth thinking about.
I left my legal lexicon at home, but if I remember correctly, “la compétence de la compétence” as far as State sovereignty is concerned is the capacity of a State to define the limits on its powers on its own, without exterior intervention. In that sense, bar a full-fledged revolution, “compétence de la compétence” is incarnated by the State’s constitution, and more precisely in the clauses concerning the possibility to amend it.
So the question is, how much difference is there in who holds the power to modify or amend the US Constitution and the EU treaties? In principle, Tobias Thienel’s claim that the US has kompetenz-kompetenz and not the EU is exact. But from a practical point of view, the difference is less than it seems. Read the rest of this entry »
Last week the biggest massacre on European soil since the Second World War was commemorated. While the massacre occurred fifteen years ago, victims and relatives of those killed near Srebrenica have been relentless in their quest for justice. Relatives have already brought civil cases against the Dutch state and the UN. Both have thus far not led to the results the relatives had hoped for.
Relatives are now filing criminal complaints against three Dutchbat peacekeepers (the Dutch battle group operating under the UN flag). The charges are assisting in genocide, war crimes and murder.
It is interesting, but perhaps not very surprising that one of the charges is assisted genocide, which does not require that the peacekeepers in question possessed genocidal intent, that is the intent to destroy in whole or in part a racial, ethnic, religious or national group. It would be sufficient to prove that the peacekeepers knew of the genocidal intent of the Serbian soldiers at Srebrenica. Even though the bar is not set as high as in other cases of genocide (where the perpetrator’s intent needs to be proven, it may still be difficult to prove that the peacekeepers in question had knowledge of the intent. As the International Court of Justice has recognized that genocide has taken place in Srebrenica and the International Tribunal for the former Yugoslavia has also convicted General Krstic of genocide, most of the ground work seems to be done. However, they do not prove that the Dutch peacekeepers in question were aware of the genocidal intent of the Serbian perpetrators. Knowledge of genocidal intent will be difficult to prove as Bosnia has not known widespread acts of genocide similar to those in Rwanda. While there have been numerous (and serious) acts committed in Bosnia that fall under either war crimes or crimes against humanity, most acts are usually cited as falling under ‘ethnic cleansing’ which does not have a clear legal counterpart. It will therefore be hard to use other atrocities in Bosnia to argue that Dutch peacekeepers knew that the perpetrators intended to destroy the Muslim population as those other atrocities have not been named genocide. There was no overall pattern that could lead to the Dutch peacekeepers concluding that genocide would occur. In fact, ‘Srebrenica’ was the only place in Bosnia where the acts committed were recognized as genocide.
Whether because of this case, or one of the civil cases, the relatives of those killed at Srebrenica will ensure that all the legal routes will be taken in order to hold accountable those that played a role (if even a minor one) in the Srebrenica genocide.
“Congressional Republicans Rep. Christopher H. Smith (R-NJ) and Rep. Trent Franks (R-Az) have rallied behind a coalition of Islamic governments urging foreign governments to oppose a U.S.-led effort to support a bid by an American gay and lesbian organization to gain full-fledged membership as a U.N. non government organization.”
This alliance aims at stopping the International Gay and Lesbian Human Rights Commission (IGLHRC) from receiving international NGO status. The move comes as the US Government is finally being progressive and is currently helping IGLHRC to receive UN NGO status; the aim is to fill the gap between gay rights movement and the international human rights movement.
To give some background to the story, the IGLHRC has been trying to receive international status (as I believe they should) for three years but has been continuously blocked by a committee with a strong Islamic conservative view that reports to the ECOSOC. However, recently the Obama administration has taken steps to help the organisation by bypassing this conservative committee, and help the IGLHRC receive its rightful status. Republican Senators Christopher H. Smith and Trent Franks backwards reaction (to anything that may make the world evolve and become more tolerant) was to attempt to block the Obama Administration’s support. They wrote to UN members to attempt to stop the American move to allow a bypass of this committee.
My question is: what are you afraid of, Senators? This is the 21st century and gay rights are in the public domain, people will not be stuck in the dark ages anymore about gay rights, and these stall tactics will not do anymore. My God, even Latin America’s Argentina has just legalized same-sex marriage and you are playing stalling games, if you have something to say, man up and say it.
Gay issues play an important role in the domestic law and politics of countries around the world, hence they should play an equal role in the international rights domain. Just what do these senators think will happen if the IGLHRC becomes a UN NGO? Maybe they will contribute in a manner that represents a part of civil society, and the senators would not want that now. Or maybe this organisation will undermine intolerance and lack of understanding of gay rights. Alternatively if we infer from this strong reaction the UN will crumble to piece from this toxic organisation gaining status.
I think not: gay rights is the next step to a tolerant and truly democratic society, and the more the international community rectifies this problem, the more respect they will receive from this blogger.
As many of you probably have heard by now, Trial Chamber I of the International Criminal Court has ordered the release of Thomas Lubanga Dyilo in an oral hearing following a decision last week imposing an unconditional stay on the proceedings of the case. Mr. Lubanga is a Congolese warlord who was put on trial in the ICC on charges of war crimes committed in the rich Ituri region of Congo, war crimes related to the enrollment of children in his armed group. Arrested in March 2005, his trial started on 26 January 2009. He is the first accused to face trial before the ICC, and so far it’s looking like it’s heading towards a complete fiasco. The Trial Chamber gave the OTP 5 days before it implemented its decision and Mr. Lubanga can walk free, in order to give the Prosecutor a chance to appeal, which it probably will do (UPDATE: Prosecutor announced that he has appealed).
The issue at hand. So why did the Court decide to stay the proceedings of this case and a few days later order the release of Mr. Lubanga? Apparently, the OTP (Office of the Prosecutor) committed a series of procedural irregularities by trying to conceal documents, and in particular the name of a key witness – only known as ‘intermediary 143’, from the defense and the judges, and this despite several orders by the Trial Chamber to release such information.
Clearly, there’s something of a problem when the Prosecutor refuses to abide by the orders of the Chamber. As Kevin Jon Heller writes (in the comments sections): “Prosecutors do not get to ignore court orders. Period. If they do, they should be held in contempt and, if the relevant rules provide, removed.“
The OTP, for its defense (there’s some irony in there…), claims that it is bound by an “independent statutory obligation” to Protect Witnesses, on the grounds of article 54 of the Rome Statute. According to the OTP’s position, it has a statutory obligation to protect witnesses from foreseeable risk, independently from whether the Chamber itself considers that the circumstances do not pose a risk to the said witness. To which the Chamber answered rather dryly (from Dov Jacobs’ post): “No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations.” (§27).
For a deeper discussion on the validity (or lack thereof) of the OTP’s claim that it is bound by an “independent statutory obligation,” see another one of Kevin Jon Heller’s post at Opinio Juris, where he considers that there is no such obligation.
My expertise in ICC Procedural Rules is still rather limited (hoping that will change in the future), but on principle I have to agree with the Court and Professor Heller. A Prosecutor must obey the Court. End of story, no discussion. Any exception to that rule opens a Pandora’s box that could lead to some serious judicial dysfunctionality.
The difficulty of protecting witnesses in a conflict zone. That being said, I think this situation raises the issue of protecting witnesses within the framework of the recent international criminal justice system that are still located in conflict zones. The purpose of international criminal justice is to bring law and order in lawless and chaotic situations, protecting victims from their tormentors, but as we have observed again and again since the 1990s, there’s only so much Justice can do without the international community’s backings, especially in terms of logistics and soldiers to enforce their decisions. International criminal justice has to make do with this reality, which won’t change anytime in the near future. This gives us the opportunity I believe to reflect a bit further on how far international criminal justice can go to protect its witnesses without causing the trial to be unfair.
How this is also good news for International Criminal Justice. So, how is this a good thing for international criminal justice? On a first approach, it looks bad. The trial of the first accused before the ICC, who was on trial for the past 18 months, is appearing to crash and burn due to errors by the OTP. The Court’s detractors and doubters (and there are many of them out there) will probably have a field day with this.
But there’s also good news involved. As Mark Kersten writes in his blog,
“The decision illustrates the effective working of procedural law at the ICC. (…) This decision flies against popular assertions by the Court’s detractors that it’s a Western, imperial Court meting victor’s justice. The decision to uphold important procedural law at the Court by its judges in the favour of the alleged war criminal severely weakens claims of victor’s justice.”
There has been a lot of muttering, in Africa and elsewhere, that the International Criminal Court is really the “African Criminal Court”, as it has so far only operated in Africa, and that it is, as Mark mentions, a neo-colonialist or imperialist European-based Court and the latest weapon white men found to dominate the Continent. This decision proves otherwise: the Judges of the ICC are independent, honest and rigorous. They will uphold procedural rules in order to guarantee a fair trial, even at the risk of letting a known warlord walk. And that’s, believe it or not, a very good thing for the credibility of the international criminal justice system.
Fairness is essential for international criminal justice. In the words of Judge Richard Goldstone: “the success of international tribunals will be tested by whether the trials were fair.” (in M. Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press, Boston 1998), p. 26)
What future for ICC Chief Prosecutor Luis Moreno-Ocampo and Mr. Lubanga? This could put Luis Moreno-Ocampo on the hot seat. After several blunders as Chief Prosecutor, some legal scholars, such as previously mentioned Opinio Juris’ Kevin Jon Heller, are starting to call for his removal by the Assembly of State Parties, as is made possible by article 46 of the Rome Statute. As for Mr. Lubanga, maybe he will be having dinner with Professor William Schabas, while the rest of us hope he will not be going back to Congo and return to his former activities.
From the Enough! Project’s website:
Today, Congo activists, U.S. consumers, and the people of Congo won an incredible victory against long odds. Congress passed the Wall Street reform bill with the inclusion of a key provision on conflict minerals. The conflict minerals language requires companies that use tin, tungsten, tantalum, or gold in their products to file a disclosure report with the Securities and Exchange Commission detailing whether these materials originated in Congo or its adjoining countries. And thanks to you, the bill requires companies to audit these reports to actually prove whether they are sourcing from conflict mines or not.
While passage of the conflict minerals provision is not a cure-all for completely ending the war in Congo, it is a huge step forward. This new law – once it is signed by President Obama – begins to eliminate the source of funding that allows armed militias to continue to terrorize and humiliate communities, cause countless deaths, and commit widespread sexual violence and rape.
While the fight is not over, activists should be very proud of this impressive victory and deserve to relish in this moment. Across the United States, Congo activists, members of the diaspora, and concerned consumers – the growing movement across America that sees the urgency in ending the world’s deadliest war – rallied around the passage of this legislation. They overran the Facebook pages of elected officials, followed up with phone calls, met face-to-face with their representatives, and called on industry leaders to clean up their supply chain. Senators Sam Brownback (R-KS), Dick Durbin (D-IL), and Russ Feingold (D-WI), Representatives Jim McDermott (D-WA), Howard Berman (D-CA), and Donald Payne (D-NJ), Chairmen Chris Dodd (D-CT) and Barney Frank (D-MA), and many other brave members of Congress also deserve special praise for taking a major step to ending the neglected conflict in eastern Congo. These are just some examples of the creative advocacy that has helped elevate the issue of conflict minerals to reach today’s tipping point.
From the day President Obama signs the bill, the Securities and Exchange Commission will have nine months to promulgate regulations implementing the new law. It will be up to us to ensure that these regulations are as strong as possible. While the jewelry and manufacturing lobbyists were caught off guard by the conflict minerals language and weighed in too late to remove the language, you can be sure industries will fight to make sure the regulations implementing the law are as weak as possible. As this story continues to develop, we’ll be coming to you with new ways of getting engaged. Please stick with us.
Congratulations on today’s exciting victory!
Good news indeed.
A little reminder video on what’s wrong with conflict minerals and consumer electronics:
UPDATE: A nice piece about this in Newsweek: The Genocide Behind Your Smartphone.
Yesterday, the French lower-house of the Parliament, l’Assemblée Nationale, voted in favor of a bill banning the full-face Islamic veil, also known as the niqab and to a certain extent the burqa (even though no “burqa” has ever been reported to be seen in Europe – see pictures in this article), after months of debate in France and much criticism from abroad. The bill, which was approved by the National Assembly 335 to 1, will not yet be signed into law, as it is due to be voted in the upper house, the Senate, only in September. However, there is little risk that the Senate will not vote for it in turn.
For many people from outside of France, and in particular in what the French like to call “the Anglo-Saxon” world, the move to ban the niqab is an intolerable infringement on freedom of religion and individual rights, and should put the country that self-proclaimed itself the Nation of Human Rights (“La Patrie des Droits de l’Homme“) to shame. I should add that such concerns are also shared by some people within France, and many critics who consider that the French government should have better things to do than generate debates and promote laws on a practice that only concerns approximatively 1,900 women.
I think this requires a more thoughtful, and informed approach. Before I begin my presentation, I would like to say two things to set the foundations of this post: first of all, I will admit that, as a staunch supporter of laïcité (I’ll explain in a moment), I am favorable to the ban. I am telling you this out of honesty. However, my purpose here is neither to present a pro-ban vision of the recent vote, nor to convince you that I am right and you are wrong (assuming you are against the ban). What I want to do in this entry is present cultural and legal elements that will probably not convince you that the French National Assembly is right to ban the burqa, but that at least help you understand part of the reasons of why a ban was considered in the first place.
By doing so, I do not wish to deny the existence of racism, islamophobia or other forms of bigotry that can certainly be found in certain supporters of the ban. But I want to highlight other cultural issues, far more essential, and far more widespread, about the French and the reasons behind the bill that was just voted by the National Assembly.
Laïcité. You’re going to see this word a lot in this post, and I’m not translating it, because it is untranslatable. If you look it up in a dictionary, you will probably read “secularism”. That is true, but it’s more than that: laïcité in fact refers both to the 1905 law concerning the separation of the State and the Churches, and a secular way of life, which is in French culture a very important societal value.
From a purely legal perspective, laïcité only applies to the State. Article 1 of the 1958 Constitution of the Fifth Republic states that “France is a indivisible, laïque, democratic and social Republic. She ensures equality before the law of all citizens with no distinction of origin, race or religion. She respects every beliefs.” (translation is mine). According to eminent French legal scholar Patrick Weil, three principles results from laïcité: freedom of conscience, separation of State and Churches, and an equal respect of all faiths and beliefs (Patrick Weil, ‘Why the French Laïcité is Liberal’ (2008-2009) 30 Condozo L. Rev. 2699).
Two comments can be made from Patrick Weil’s three principles: first of all, each of them applies to the State, and not to individuals as such. Second of all, they – especially the first and third one – make the ban on the niqab look unconstitutional, as it violates freedom of conscience (assuming that those who wear it consider it a religious obligation) and appear to be discriminatory against a minority, which is contrary to the “equal respect of all faiths and beliefs” prescribed by the Constitution. I’ll get back to that later.
But an essential thing to understand about laïcité is that it is precisely more than just a legal norm: it is a societal value. The French, who have known in their history many religious conflicts, and who adhere to a vision of a “neutral” citizenship, have transformed laïcité from a norm that applies to their government to a way of life, a societal compromise to guarantee a form of equality among citizens. In the words of Jessica Fourneret, “laïcité is a concept regarding the separation of Church and State, yet it is also a state of mind that incorporates a long history of cultural ideas” (Jessica Fourniret, ‘France: Banning Legal Pluralism by Passing a Law’ (2005 – 2006) 29 Hastings Int’l & Comp. L. Rev. 233, p. 235). The ideal of this deeply secular society is that everyone keeps their religion (or lack thereof) to themselves, so that everyone can feel comfortable in the public space.
It is a radically different way of seeing things from the American and British conception of freedom of religion.
Ordre Public. It is important to understand the culture in order to understand the motives behind the law. However, the law is based on a hierarchy of norms, and as we have seen, a ban on the niqab cannot be founded on laïcité, as laïcité as a norm only applies to the State, not to the individual. But French lawmakers have another basis for the ban: Ordre Public, which literally translates as “Public Order”, and is very close to the American legal notion of “Compelling State Interest”: an interest so strong that it justifies limits to liberty.
Liberty is not absolute. The 1789 Declaration of the Rights of Man and the Citizen defines liberty in its articles 4 and 5:
“Article 4 – Liberty consists in the power to do anything that does not injure others; accordingly, the exercise of the rights of each man has no limits except those that secure the enjoyment of these same rights to the other members of society. These limits can be determined only by law.
Article 5 – The law has only the rights to forbid such actions as are injurious to society. Nothing can be forbidden that is not interdicted by the law, and no one can be constrained to do that which it does not order.“
What is injurious to society is limited by public order. How does that work in the niqab ban: security and human dignity. I’ll talk about human dignity some other day, as it is of indirect concern for the law (but it is very interesting). Security’s the issue at hand concerning this bill, but Ordre Public is more than that: not unlike compelling State interests, it is often used as a trojan horse to justify imposing societal values on recalcitrant minorities. This is what is at hand here, as public order is the foundation of the bill banning the niqab.
Going more specific: The Bill Banning the Niqab. On Tuesday, the National Assembly voted the bill, to much media coverage. It’s a very short text composed of 7 articles, article 1 being the one of most interest:
“Article 1: Nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage.”
Translated, that gives “No one may, on public space, wear a garment destined to hide one’s face” (my translation)
Article 2 goes on to define public space as “public ways, spaces open to the public or affected to a public service”. You will note that the phrasing of the law is deliberately impersonal and vague, so as not to attract the ire of the Conseil Constitutionnel (France’s Constitutional Court), and perhaps more worryingly, the European Court of Human Rights.
Arguments behind this bill are several. On legal grounds, it is considered to be a matter of security: it is considered dangerous to tolerate individuals walking around in public spaces with absolutely no possibility of identifying them. Reports of criminals stealing from jewelery stores hiding behind a niqab have spawned in the French media, although the phenomenon remains largely marginal.
Issues also arise about human dignity, which I skipped over earlier. In France, since 1995 and a famous and controversial decision by the Conseil d’Etat (France’s highest administrative court – France has a dualist system, like most civil law system, which separates civil litigation and administrative litigation) Morsang-sur-Orge (I’ll have to write a post just on that one someday), it is considered possible that the State or the Judge imposes the notion of human dignity, sometimes against the will of the individual the State or the Judge seeks to protect. That notion, which generates very passionate debates among law students and lawyers in general, is also at the heart of the French ban.
More on cultural aspects. My post is starting to get a bit long, so I’m going to rush a bit the ending and eventually finish in the commentary if people are interested. Other cultural aspects to consider are the French model of integration, which really is not so much “integration” as it is “assimilation” of minorities into the culture. The model worked in the past well, as France, a land of many different groups and who has known several immigration waves has merged into one Nation. France is, in many ways much more a “melting pot” than America. America is more of a “salad bowl”: several communities, with their values and traditions, living side by side under the Flag – which is to take nothing out of the beauty of American society.
The wearing of the niqab is considered by the majority of the French as a refusal to integrate and meld into French society, which is why it gets such vehement reactions from the public and the politicians. It bothers the French that some of their fellow citizens would deliberately refuse to integrate in the society’s Republican values. This opens a whole debate about integration into France, and questions of racism, discrimination, and the overall growing sectorisation of our society. I do not want to get into that debate here and now, but it must be kept in mind that laïcité is an essential French value, and that those who refuse to adhere to it marginalize themselves from French society. Who’s to blame for that, or if the French should or should not tolerate such behavior, is a whole different debate.
A risky game, both legally and socially. The ban is a risk. Legally speaking, there is a chance that the French Constitutional Court or the European Court of Human Rights strike it down. Socially, there is a risk that an already stigmatized Muslim minority in France feels even more sidelined and unwelcome.
The problem at hand with the niqab ban is where do we, as societies, with our liberal values that we all hold dear, strike a balance between individual rights and societal values? Whether you like it or not, in most societies, you may not walk naked in the street (not that I’m comparing wearing a niqab to being naked). Liberty is defined by its limits. And it’s never easy fixing these limits.
Other nations are also considering a ban on the niqab, for their own reasons. For the French, it’s first and foremost about defending their values – the way we want to live together, in particular in a secular society where religion is kept private – when these values are being attacked like never before.
Does it infringe individual rights? Undeniably. Is it condonable? That’s up to you.
But for the majority of the French, is it worth the fight? Absolutely.
For another interesting post on France’s niqab ban and cultural aspects, see here.
I had a “discussion” this morning on Twitter with Jon Hutson, of the Enough! Project I wrote about a few days ago, concerning peace in Sudan and Darfur following an article he posted. Although the discussion was necessarily limited by the format of Twitter (no more than a 140 characters per message), I thought it raised interesting questions especially relating to how to use article 16 of the Rome Statute efficiently in peace negotiations.
The conversation started off when Mr. Hutson posted this op-ed article published in the New York Times. The article, ‘In Sudan, War is Around the Corner’, is written by Dave Eggers – the author of the novel What Is the What – and John Prendergast – the co-founder of the Enough Project.
The article is an interesting call for vigilance from the international community and the United States in particular at the outcome and consequences of the future referendum in 2011 concerning South Sudan’s eventual secession. As the authors of the article point out, should this referendum be cancelled or manipulated by Khartoum, fighting will break out once more in the South and in Darfur. They call for “developing a more robust package of carrots and sticks” which would “strengthen America’s diplomatic hand.“
So far, no problem. But then something caught my eye (emphasized). And I quote:
“For this diplomatic effort to be effective, real incentives should be on the table as well: If — and only if — true peace comes to Sudan, we could offer conditional, one-year suspensions of the International Criminal Court warrants and normalization of relations between Khartoum and Washington. And experienced American negotiating teams should be deployed immediately to support African Union and United Nations efforts already under way to end the war in Darfur and prevent one between the north and south, just as we did with the 2005 deal.”
This, I thought, is particularly interesting. Offering one-year suspensions of the International Criminal Court warrants as a carrot for peace. Well, why not?
Let’s go back to law for a moment. The 1998 Rome Statute that created the International Criminal Court includes a provision that states:
“Article 16: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.“
The provision is self-explanatory: the UN Security Council has the power to defer any investigation or prosecution by the ICC for one year, with the possibility of renewing the deferral. However, it only takes one veto, or a 8 out of 15 majority (it is little-known rule, but for a Security Council resolution to pass, a 9 out of 15 majority is required), for the deferral to be blocked, limiting the Security Council’s power over the Court.
To give a little background information on the importance of this article, it is interesting to note that it had been the subject of much debate during the negotiations, and is probably the most important reason why the Americans have refused to this day to ratify the Statute. I will not get too much into the details, but basically the Americans wanted a much larger control of the UN Security Council over the ICC’s actions, and in particular the Prosecutor’s. They wanted the Prosecutor to require authorization from the Security Council to being an investigation, which would, of course, be subject to American veto. For more info, see William A. Schabas, “United States Hostility to the International Criminal Court: It’s All About the Security Council” (2004) 15 EJIL 701-720.
In any case, under the Rome Statute, the Security Council can only suspend one year (renewable) the procedure against – in this case – Sudanese President Omar al-Bashir.
The question is: what can the Security Council do with this in order to secure peace?
I’m going to put on the side my own belief that justice is not an impediment to peace but a requirement. In the words of Mark Kersten, I fit more in the “moral imperative camp,” coupled with the idea that for people to find peace they “psychologically” need a form of justice and recognition. However, I am not an ideologue, and if an article 16 deferral can save lives, I certainly will not complain.
But can it? Dave Eggers and John Prendergast write that it should be considered as an incentive, a “carrot,” for al-Bashir to negotiate peace. My skepticism is aimed at the one-year limit. Is the UN Security Council going to renew the deferral every single year until al-Bashir dies (genocide and crimes against humanity are imprescriptible)? If not, then is al-Bashir really going to be interested by a single year suspension? Sooner or later, the ICC will catch up.
On the Enough! Project blog, John Prendergast writes about how he sees article 16 being used:
“Article 16 was specifically included in the ICC charter to give countries leverage where there might appear to be none, and only in support of peace. The Article 16 deferral only lasts a year, and is conditioned on fulfilling the terms of the original deferral. So if the condition for deferment is a peace deal in Darfur, full implementation of the CPA, no support for violence or conflict in the South, respect for the referendum process and its results, and respect for human/civil rights in Sudan – certainly monumental hurdles when we consider the past 21 years of NCP rule – that bar has to be met and re-met every year. This means that the leverage inherent in an Article 16 deferral isn’t a one-off instrument, but rather an ongoing point of influence, which, if we utilize it, actually lends further credence to the ICC.“
In many ways, that is an interesting view on article 16, and it could work. I have two reservations to make, however: first of all, as I have already said, even if the Security Council renews it every year under the condition that the Sudanese regime respects the peace process established since 2005, I don’t see it renewing it until al-Bashir’s death (in the hypothesis that al-Bashir all of the sudden gets the message and accepts the peace process, with all the carrots involved), and the Sudanese President is bound to know that. Secondly, and this relates more to principle and a form of idealism, I am uncomfortable in seeing the ICC, and Justice in general, used as a simple political tool of pressure. It is rather frequent in common law systems, but much less so in civil law systems.
That being said, if it works, I won’t let my idealism stand in the way of peace and of saving lives.
Sudan is an interesting case for international lawyers, as it seems to be the first of several things: first time the UN Security Council refers a situation to the ICC, and the first time the ICC indicts a sitting head of State. Could it also become the first time the Security Council uses article 16 of the Statute to defer a procedure?
It’s going to be interesting to watch.
What are your thoughts on this? Feel free to comment.