Dubious negotiations in New York: Did France and the UK come to blow it up?

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From 4 to 14 December 2017, the States Parties to the International Criminal Court (ICC) met in New York City to activate the Court’s jurisdiction over the crime of aggression. This marks a crucial step for international criminal justice. Since Nuremberg, no international criminal tribunal has been empowered to prosecute aggressive war-making. The activation was expected to be comparable to a mere turning on of lights, as the most controversial issues, such as the definition of the crime, were already settled at the 2010 Kampala Conference. Seven years later, however, this expectation turned out to be a naïve dream. It is regrettable that especially those states that sat in judgment in Nuremberg were the fiercest opponents to the activation of the Court’s jurisdiction over the crime of aggression. This article aims to reveal the dubious attempts by France and the UK to hamper the decision-making process at the 16th Assembly of States Parties (ASP) in New York.

Negotiating position in conflict with the genesis of the Kampala compromise

States Parties, including France, emphasized in their opening statements that they did not want to reopen negotiations. In the end, they failed to keep that promise. France and the UK brought back to the negotiating table what had been rejected in Kampala. Both states pushed for the adoption of a jurisdictional opt-in system for state referrals or proprio motu investigations. Hence, the ICC shall exercise jurisdiction over nationals of a State Party or on its territory only if that state opts in by accepting or ratifying the aggression amendments. Seven years ago, the final compromise between the opt-in supporters and defenders of the existing no-consent regime of Article 12(2)(a) ICC Statute was reached by establishing an opt-out system in Article 15bis(4). Accordingly, the ICC may exercise jurisdiction over a crime of aggression, arising from an act of aggression of a State Party, unless that state has made an opt-out declaration. Nothing in Article 15bis(4) suggests, however, that a prior ratification by the aggressor state is required. Such an interpretation rather conflicts with the described genesis of the Kampala compromise. Unfortunately, historical interpretation is a strong argument only as long as people can remember the genesis of a norm. The time lapse was a key advantage for strengthening the France/UK position. They could make a second attempt to push the compromise toward their preferred jurisdictional regime. This time, the opt-in regime finally found its way into the adopted resolution. Except for Security Council referrals, the ICC can prosecute crimes of aggression only where committed in conflicts between ratifying States Parties.

No intention to compromise until the very end

The opt-in regime was adopted because France and the UK had no intention to compromise while States Parties overall were committed to reach consensus. Consensus is the way to strengthen the Court, they said. In the end, consensus was the way to give the minority, France and the UK, a de facto veto right. Due to the constant resistance by France and the UK, supporters of the opt-out camp even offered a pragmatic proposal that undermined the rationale of the opt-out system. In Kampala, the idea behind forcing states to formally opt out was to raise the political barrier. In contrast, the pragmatic proposal would have established a softer opt-out regime with various ways to avoid prosecutions without losing face. To illustrate that point, the proposal exempted from declaring an opt-out those states that had previously expressed their position of non-acceptance in the Report on the Facilitation. Thus, there was no need for the firm defenders of the opt-in regime (France, UK, Canada, Colombia, Norway) to make any embarrassing statement in the future. Moreover, the proposal allowed simple statements of non-acceptance upon adoption or after one year of consideration without the moderating spirit (or peer pressure) of these international get-togethers. Despite these concessions, France and the UK struck out all pragmatic provisions from the draft resolution and replaced them with their opt-in regime on the very last day of the ASP. Criticizing other proposals for being one-sided is one thing. Bringing up a proposal based on one’s initial position after nine days of intensive negotiations is simply hypocritical. But France and the UK were probably aware of their stronger negotiating position. As long as others strived for consensual activation, they could come up with exaggerated claims.

Against the reaffirmation of judicial independence

Although both proposals, the pragmatic proposal as well as the pure France/UK one, eventually failed to reach consensus, France and the UK continued to play the game. When the Vice-President of the ASP made one last attempt and presented a draft resolution that was supposed to be acceptable for all sides, France and the UK were presumptuous enough to request “minor changes”. Why? Even though the draft was based on their preferred opt-in system, it contained a shocking operative paragraph: A paragraph that reaffirmed the judicial independence of the Court. Montesquieu would have been proud of his home country. To highlight the absurd discussions on removing this paragraph, even South Africa, a state that had previously reiterated its intention to leave the Court, spoke up for the judicial independence of the ICC. In the face of strong opposition from other states, France and the UK had to cave in on that point.  Yet given that this draft resolution was not open to negotiations, merely suggesting any modifications could have jeopardized the activation. Hence, one may wonder whether France and the UK were truly committed to activating the jurisdiction over the crime of aggression.  Throughout the ASP, they ignored what had been agreed on in Kampala, they were unwilling to compromise and pushed the limits of their de facto veto right. Fortunately, states still managed to achieve activation, but it came at a price. The ICC will be limited to prosecuting crimes of aggression committed in conflicts between the 35 ratifying states. None of them is known for its current interest in perpetrating acts of aggression towards other states.

 

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Introducing Annegret L. Hartig

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It is our great pleasure to introduce our new IntLawGrrls contributor Annegret L. Hartig!  Annegret works as a research assistant for Prof. Dr. Florian Jessberger in the field of international criminal law at University of Hamburg. She is currently in charge of the revision process of his textbook on international criminal law and conducts research for the chapters on the crime of aggression, immunities, modes of liability as well as international criminal law in practice. Moreover, she is one of the contributors to the “Annotated Leading Cases of International Criminal Tribunals” by André Klip and Steven Freeland. Besides that, she is writing her PhD thesis on the national implementations of the crime of aggression. Before working as a research assistant, she studied law within the trinational study program “European Law School” at the Humboldt University of Berlin where she passed her First State Exam. Additionally, she holds a maîtrise en droit in European Law (Université Panthéon-Assas, Paris) and a LL.M. in International Criminal Law (University of Amsterdam / Columbia University). Her master thesis dealt with the question whether the differentiated system of liability in the Rome Statute should be replaced with a unitary model. At the 16th session of the Assembly of States Parties, she had the chance follow the negotiations on the activation of the International Criminal Court’s jurisdiction over the crime of aggression.

Heartfelt welcome!

Read On! New anthology, “Human Rights and Children”

Honored to be a contributor to Human Rights and Children, an anthology of works in the field edited by another IntLawGrrls contributor, Hofstra Law Professor Barbara Stark.

The collection’s just been issued by Edward Elgar Publishing, which writes:

“This volume provides a comprehensive overview of children’s human rights, collecting the works of leading authorities as well as new scholars grappling with emerging ideas of ‘children’ and ‘rights.’ Beginning with the Convention on the Rights of the Child, the most widely ratified human rights treaty in the world, this book explores the theory, doctrine, and implementation of the legal frameworks addressing child labor, child soldiers, and child trafficking, as well as children’s socio-economic rights, including their rights to education.”

My own contribution is listed in this compendium as: “Diane Marie Amann (2013), ‘A Review of Reimagining Child Soldiers in International Law and Policy in Mark A. Drumbl, Oxford University Press’, American Journal of International Law…” On my SSRN page, I describe this book review as follows:

“This essay reviews ‘Reimagining Child Soldiers in International Law and Policy’ (2012), in which author Mark Drumbl examines legal doctrine, global activism, and social science research respecting underaged combatants.”

Additional contributors to this collection who have also contributed to IntLawGrrls include, besides Professor Stark and me, Mark A. Drumbl and Nienke Grossman. The balance of contributors are as follows: Philip Alston, Jo Becker, Maria Bouverne-De Bie, Claire Breen, Geert Cappelaere, Cynthia Price Cohen, Katherine Covell, Mac Darrow, Martha F. Davis, Michael J. Dennis, Janelle M. Diller, Sara A. Dillon,  Martin Guggenheim, Stuart N. Hart, Kamran Hashemi, R. Brian Howe, David A. Levy, Janet McKnight, Tendai Charity Nhenga-Chakarisa, Paulo Sérgio Pinheiro, Roslyn Powell, Alison Dundes Renteln, Marilia Sardenberg, William A. Schabas, David M. Smolin, Murray A. Straus, Laura Thetaz-Bergman, John Tobin, Jonathan Todres, Geraldine Van Bueren, Wouter Vandenhole, Eugeen Verhellen, and Barbara Bennett Woodhouse.

(Cross-posted from Diane Marie Amann blog)

Children Born of Rape in Bemba: Can the ICC Close the Accountability Gap?

BembaChildren born of sexual and gender-based violence in situations of conflict and mass violence have, until recently, been neglected in international criminal law. These children exist in what the Secretary-General on Sexual Violence in Conflict has previously termed an “accountability gap” as the “punishment against or redress by the perpetrator rarely includes reparations for the women who were victimized or the children who were born as a result of rape”.

Such children have, however, featured in recent cases at the International Criminal Court (ICC). For instance, in the case against Jean-Pierre Bemba Gombo, leader of the Congolese Movement of Liberation of the Congo (MLC), convicted in March 2016 of war crimes and crimes against humanity for crimes committed by his troops in the Central African Republic (CAR) between 2002 and 2003, unwanted pregnancies and the birth of children were identified during sentencing as a harm of rape. This case represents the first time the ICC will have the opportunity to provide reparations to victims of rape and a recent Expert Report on reparations suggested that children born of rape should be included within this process.

Children Born of Rape in Bemba

It is unclear how many children were born of rape as a result of Bemba’s MLC crimes. Expert testimony provided during the Trial, however, identified at least four women who suffered unwanted pregnancies as a result of rape, noting that:

One victim did accept the child as being her own, so took on, shouldered that. There was another one who didn’t want to have anything to do with the child she had given birth to, and there was a third one who had an abortion. Actually, she had to do this in hiding, and that meant that there were medical consequences to that abortion. And a fourth, well, we lost track of her. We do not know what the outcome in terms of this pregnancy was.

These children, who are about 13 years old now, are in a precarious situation in terms of their own identity and family relations, as explained by the mother of one of the children during the sentencing hearing:

She doesn’t know who her father is. She doesn’t know where he is. She has no news of him. And I wonder how things will develop. I ask God if I die, what will happen to that child? The three others which I had, I know that their father’s families are there, and if something happened to me, those children could go and live with the family of their father. But when it comes to this child, what will her fate be if anything happens to me? Continue reading

Introducing Eithne Dowds

EithneIt is our great pleasure to introduce our new IntLawGrrls contributor Eithne Dowds! Eithne is a lecturer at Queen’s University Belfast. Her research intersects the areas of international criminal law, feminist legal theory, sexual offences and children born of sexual violence in conflict. Eithne is particularly interested in feminist strategies in international criminal law and the extent to which developments at the international criminal level might bear relevance to domestic law on sexual offences.

Eithne completed her PhD in 2017, which examined the role of consent in an international criminal definition of rape. In particular, it focused on the definition at the International Criminal Court and whether the definition could facilitate ‘positive’ norm transfer from the international to the domestic. She is in the process of turning her thesis into a book which will be published by Hart in 2019.

Heartfelt welcome!

Write On! 10th Anniversary Special Issue of Trade, Law and Development on WTO’s Role in Global Governance

backlit_keyboardThis installment of Write On!, our periodic compilation of calls for papers, includes calls to be published in the 10th Anniversary Special Issue of Trade, Law and Development, as follows:

Trade, Law and Development, a student edited journal on international economic law, is seeking unpublished, original articles, comments, notes, or book reviews for publication in its special issue (Vol. 10, No. 1 2018). The theme of the special issue is Revisiting WTO’s Role in Global Governance.  The issue will be published in the summer of 2018.  Deadline is February 28, 2018.

►  For further information, click here. Questions may be sent to editors@tradelawdevelopment.com 

Go On! 18th Specialization Course in International Criminal Law for Young Penalists in Siracusa, Italy

trunks.jpgGo On! makes note of interesting conferences, lectures, and similar events.

► The Siracusa International Institute for Criminal Justice and Human Rights is organizing its 18th Specialization Course in International Criminal Law for Young Penalists on “International and Transnational Crimes,”  dedicated to the memory of Professor M. Cherif Bassiouni (1937-2017).  The course will take place from May 27 to June 4, 2018 in Siracusa, Italy.

The Siracusa Institute will select 60 participants who should have a university degree, ideally in law or with some studies in law, and be 35 years of age or under. The Institute will offer 10 scholarships to applicants from Developing and Less Developed Countries. Applications should be submitted by March 27, 2018.

To apply, click here. Direct any questions or concerns to icl-course@siracusainstitute.org.