Posts Tagged Rome Statute

Dangers Ahead For International Justice – A Very Brief Reaction to David Bosco’s Post

David Bosco is raising the alarm on his excellent blog The Multilateralist over at Foreign Policy on some potentially very bad news for the international criminal justice project, regarding the ICC’s difficulties in Africa and the Special Tribunal for Lebanon’s delicate mission in an explosive-as-ever Lebanon.

The post is not very long, so it is difficult for me to quote excerpts without quoting the entire thing (which would not be appropriate without the author’s approval), so I can only strongly suggest you read it.

I do not have time for a detailed response, so I will have to content myself with two quick observations:

Regarding an engineered African withdrawal from the Rome Statute, the threat is undeniably there, and I do not doubt the credibility of the reports David Bosco mentions. However, things are a little more complex than what they appear, as Africa is a) not a homogeneous block – some African States are very pro-ICC, others a bit less, a few outright anti-; b) some African States do have an interest in having the ICC intervening in their country, and c) I was surprised while reading the statements given by delegations at the latest Assembly of States Parties at how conciliatory and even positively low-profile the African States’ declarations were. You’d think for a continent plotting to leave the Rome Statute in a coup, they would raise the issues bothering them in a louder fashion than what they did last month.

I sincerely doubt anything would happen before the Prosecutorial elections next year. The African group has a strong chance of having elected an African Prosecutor for the ICC, and I simply do not see them forfeiting that chance.

Regarding the situation in Lebanon, it is particularly delicate and one I have been meaning to write on for quite a while, and probably will as soon as I have a little more time on my hands (I still have a pile of reports on Lebanon to go through first). But it seems clear that the difficulties at the heart of the peace versus justice debate have never been so discernible and clear-cut than it is there. This is a situation to monitor and think about, for both sides.

Hopefully, I will have time to write more about each situation soon.

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Some Quick Thoughts About Africa, the Crime of Terrorism and the Rome Statute

As readers may know, I have been paying particular attention to the African Union’s attempt to put together a comprehensive counter-terrorism treaty, and have already posted some thoughts on the matter on the al-Wasat blog a few days before Christmas.

A few more thoughts occurred to me today as I was reading (for my current employer) the statements given by delegations to the Ninth Assembly of States Parties of the International Criminal Court, which took place last month in New York. I still have a handful to go through, but so far the delegation from Nigeria’s statement (PDF file) has particularly caught my attention.

From the third paragraph of the statement, I quote and emphasize:

One significant contribution of our common efforts in developing an international criminal justice under the Rome Statute is the strengthening of the international community, acting in concert, to check the activities of armed non-state actors. As we all know, these are usually armed groups that operate outside state control or authority, often constituting threats to corporate existence of their victim states through operational styles marked by horrendous acts of impunity.

I was intrigued by the mention of ‘armed non-state actors’, also known as non-State armed groups. Of course, that term means many things. In fact, it is fairly self-explanatory: any armed group that is not under the direct control of a State is, logically, a non-State armed group.

But as I read that I subconsciously understood “terrorist groups” and that has brought me back to what I wrote last month. Read the rest of this entry »

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Shedding Light on Tensions Between the African Union and the ICC

The current tensions between the African Union and the International Criminal Court are often the object of international criminal lawyers’ discussions, and are particularly seized upon by skeptics and critics of the Court. For the Court and its supporters however, it has also been the subject of much reflection and concern, and this up to the highest levels (see ICC President Song’s opening remarks at the ICC-NGO biannual meetings a few weeks ago). Tensions and frustrations are flaring, and there seems to be no end to the standoff between the UN Security Council and the ICC on one side, and the African Union and Sudan on the other.

In the midst of these frictions that clearly threaten the ICC’s credibility in Africa, the Institute for Security Studies published last week an excellent Position Paper titled “An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC”, written by three African international law experts, namely Dapo Akande, Max du Plessis and Charles Chernor Jalloh.

As the title very clearly suggests, the authors give a very detailed analysis of the African Union’s position towards article 16 of the Rome Statute, in particular as it relates to the current tensions arising from the ICC’s involvement in Darfur.

Before giving some of my personal thoughts on the study’s findings, I first have to say that this report is brilliant and enlightening. It takes a very clear and rigorous approach to the raised questions on the role article 16 has to play, and makes the case for the African Union’s position without falling into the usual anti-West postcolonial political rhetoric that I find too often pollutes the debate and makes the real legal case inaudible. Although some would say there’s nothing new in the study for anyone who has followed AU-ICC relations closely, I still find that it puts a fresh perspective and offers a coherent analysis that puts the difference pieces of the puzzle in order.

I would recommend the reading of this report to anyone interested in understanding the state of ICC-AU relations, and more specifically, the legal aspects of the AU’s position towards the ICC.

I won’t summarize and go over the entire report, but briefly mention three main ideas that I think structure the paper and that particularly shed light on the ongoing conflict: Read the rest of this entry »

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A Rapid Follow-Up to the al-Bashir in Kenya Saga

So al-Bashir did not go to Kenya today. Instead, the IGAD summit that was initially supposed to take place in Nairobi will take place instead at a date still to be determined in Addis Ababa, in Ethiopia, which is not a State Party to the Rome Statute and therefore is not bound to execute the arrest warrants. At the insistence of the United States, Security Council Resolution 1593, which referred the situation of Darfur to the International Criminal Court, makes that very clear at paragraph 2 (emphasis is mine):

2. Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

Kenya did respond to Pre-Trial Chamber I’s request (see my previous post) by merely stating that there was no plan for the Sudanese President to come, which was, once the summit was moved to Ethiopia, true.

There’s not much to say here, and perhaps the saga ends here. The Pre-Trial Chamber’s “warning shot” probably did, despite (former) Kenyan Foreign Minister Wetangula’s claims, dissuade Kenya from holding the summit and receiving Bashir.

I did particularly enjoy Mr. Wetangula’s arguments in that article, not only claiming that Kenya did not push for the summit to be held in Ethiopia because of the ICC Judges’ request (to be fair, only the Kenyan authorities know for certain, but that’s very unlikely), but also said some pretty ludicrous things, such as “We have no demands from the ICC and we are not the arresting agents of the ICC so that is not an issue” (oh, really? Just imagine what people like Moses Wetangula would say if ICC investigators conducted an arrest à la Eichmann), and “ICC does not have a hold on Kenya, we are a signatory to a treaty establishing it so we cannot live under fear over a treaty that we are just a party to” (to be honest, I’m not really sure what that means).

As for the “former” in front of Foreign Minister, Mr. Wetangula resigned last Wednesday over allegations of corruption.

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The David Bosco v. Julian Ku Debate on the ICC, and I’m disagreeing with both

The International Criminal Court, photo from the Coalition for the ICC's website

Not that I want to do another blog review so soon, but a recent exchange between Opinio Juris‘ Julian Ku and Foreign Policy The Multilateralist‘s David Bosco on the International Criminal Court has caught my attention. It’s an interesting exchange between someone with a very American and conservative view on the ICC (Julian Ku), and another who’s closer to the center and apparently slightly more favorable – or perhaps “less unfavorable” being a more appropriate expression – to the Court (David Bosco).

You would probably think that I’d take Bosco’s side on this debate, and I wish I were, but – at the risk of not making many friends – I’m going to take neither.

My opposition to Julian Ku is clear, and is one I’m comfortable with. From what I’ve been reading, Julian Ku belongs to the American school of thought that considers the ICC to be a threat to American interests, that the adoption by the Assembly of States Parties at Kampala in June of a definition (PDF) for the Crime of Aggression (Article 5(1)(d) of the Rome Statute – PDF) is a failure for US diplomacy, and that US cooperation with the ICC will lead to nowhere. Read the rest of this entry »

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Communiqué: The International Jurist Wishes To Congratulate St Lucia For Ratifying The Rome Statute

Xavier: I’d like to welcome our newest team member, Cate Minall. This is her first post, and hopefully the first of many. Cate, welcome to The International Jurist.

On 18 August 2010, the Eastern Caribbean state of St. Lucia deposited its instrument of ratification of the Rome Statute of the International Criminal Court (ICC) at the UN Headquarters, becoming the 113th State Party to the ICC Treaty.

The Court welcomed this decision, calling it “a new sign of the international community’s commitment to put an end to impunity for the perpetrators of the most serious crimes that deeply shock the conscience of humanity.”

According to the Coalition for the International Criminal Court, Caribbean states played a key role in the creation and establishment of the ICC, and Catherine Ashton, the EU’s High Representative of the Union for Foreign Affairs and Security Policy noted that St. Lucia’s ratification was the third this year. She stated, “A steady increase in the number of ratifications demonstrates that the Court is a reality, which everybody must recognize.”

The International Jurist congratulates St. Lucia for showing true commitment to international justice, and welcomes them to the growing community of states around the world that are working to end impunity.

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Putting Article 16 of the Rome Statute to Good Use?

The Siege of the International Criminal Court, in The Hague

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.

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