16th Assembly of States Parties of the International Criminal Court: The Theme of Cooperation

 

photo 2 asp

United Nations Building

As a delegate of the Public International Law and Policy Group, I had the honor of attending the 16th Assembly of States Parties (ASP) of the International Criminal Court (ICC), which took place from December 4-14 at the United Nations’ Headquarters in New York City. In addition to the election of new judges, the most important themes of this year’s ASP included cooperation and whether to add the crime of aggression to the Rome Statute. Some posts have already been published on the latter (see here and here), but as of now, it is unclear which version of the circulated texts on aggression may have been adopted last night. Thus, I plan to report more on the crime of aggression later. This post will focus instead on the topic of cooperation, in the context of this year’s ASP.

 

 

photo 3 asp

16th Session of the Assembly of States Parties of the International Criminal Court

States which have ratified the Rome Statute and are thus members of the ICC have a treaty-based duty to cooperate with the court. While some states have routinely carried out this international law obligation, others have not. In particular, several states have failed to execute the ICC’s arrest warrants regarding Sudanese President Al-Bashir. The ICC issued two arrest warrants for Al-Bashir, in 2009 and in 2010, after the Security Council referred the Darfur situation to the court for an investigation in 2005, through Resolution 1593. States which are members of the ICC have a treaty-based duty to execute the court’s arrest warrant by arresting the subject of the warrant if he or she happens to be on their territory. In addition, the Sudan situation was referred to the ICC through Security Council Resolution 1593; in cases of Security Council referral, it may be argued that all states, not only ICC member states, have a duty to cooperate with the court. The text of Resolution 1593 supports this argument:

 

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.

 

photo 1 asp

Security Council Briefing on the Darfur Situation (16th Session of the ASP)

Resolution 1593 recognizes that states which are not parties to the Rome Statute do not have a treaty-based duty to cooperate with the ICC, which is why the Resolution itself “urges” all states and other regional and international organizations to cooperate with the court. Thus, according to this argument, all states have a duty to arrest Al-Bashir, in light of Resolution 1593, if he chose to travel to their territory, and to deliver him to The Hague.

 

While several “western” states support this view and have called for all states to cooperate with the ICC by arresting those wanted by the court, many African states reject this view. Al-Bashir has traveled freely to several African countries in the decade following the ICC arrest warrant – most recently to Uganda and South Africa. Many African countries have insisted that heads of state, such as Al-Bashir, have immunity from international criminal prosecutions, and that the ICC arrest warrant against a sitting head of state breaches the international law principle of state sovereignty. The recently negotiated Malabo Protocol, adopted by the African Union in 2014, extends the jurisdiction of the African Court of Justice and Human Rights (ACJHR) to crimes under international law and transnational crimes. The Protocol reflects the view, espoused by many African leaders in the context of the ICC Al-Bashir arrest warrant, that heads-of-state should be immune from prosecution, by including a provision on head-of-state immunity. In addition, many African states have argued that Resolution 1593, which referred the Darfur situation to the ICC, imposes a cooperation obligation only on member states of the ICC, not on non-member states.

 

photo 4 asp

United Nations Building

At the ASP, the ICC Prosecutor, Fatou Bensouda, briefed the Security Council on the situation in Darfur. Following Prosecutor Bensouda’s briefing, several states offered comments on the Darfur situation, as well as on the Al-Bashir arrest warrant. Predictably, most western states, including European nations such as France, United Kingdom, Italy, and Sweden, condemned states for not cooperating with the ICC and urged all states to execute the ICC arrest warrant. Additional states which supported this view included Senegal, Ukraine, Japan, Bolivia, Uruguay, and the United States. Other states, predictably, held the opposite view and insisted on head-of-state immunity from ICC prosecution, as well as on state sovereignty. Such states included Ethiopia, Egypt, Sudan, Russia, and China. Finally, Kazakhstan seemed to adopt a middle ground position, by encouraging Sudan to continue to make progress in humanitarian efforts in the Darfur region, and by urging everyone in the international community to respect Sudan’s sovereignty and independence. These Security Council members’ positions, although unsurprising, shed light on the existing geo-political dilemma caused by the ICC arrest warrant of Al-Bashir, as well as on the different states’ positions regarding this issue. In general, western states tend to support the ICC (with the exception of the United States), and in general, most western states have insisted that all states should cooperate with the ICC in the execution of this arrest warrant (including the United States). Sudan, many African states, as well as Russia and China, have criticized the court for its Africa focus, and have argued that the arrest warrant improperly breaches fundamental principles of international law, such as state sovereignty as well as head-of-state immunity. Because of the current Russian and Chinese position on this issue, that Resolution 1593 does not nullify the principle of head-of-state immunity for heads of states which are not members of the ICC and that the international community should respect Sudan’s sovereignty and independence, it seems unlikely that a new Security Council resolution, clarifying the issue of head-of-state immunity, will be voted on this issue.

 

The academic (see here, here,  and here, for example) and International Court of Justice view on the question of head-of-state immunity seems well-established: the principle of head-of-state immunity applies in national proceedings but not before international criminal tribunals (I note the important distinction between two different types of immunity: ratione personae and ratione materiae, which the academic literature cited here clearly addresses, but which this brief post will not go into.  It suffices to say that for the purposes of various states’ arguments on immunity, as described above, the distinction is immaterial). In the Al-Bashir arrest warrant situation, the additional “wrinkle” is the existence of a Security Council resolution, which trumps state sovereignty-based arguments and imposes a duty on cooperation on all states, whether ICC members or not. Thus, the argument espoused by some African states, Russia, and China, at this year’s ASP seems clearly rooted in politics and contrary to established norms of international law.

 

Advertisements

Call for Nominations: Francis Lieber Prize

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.
 
Criteria:         Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize.  Works that have already been considered for this prize may not be re-submitted.  Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.
 
Eligibility:       Anyone may apply for the article or book prize.  For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed.
 
Submission:     Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail. 
 
Printed submissions must be sent to:
 
Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia  30322
USA
 
Electronic submissions must be sent to:
 
 Lblank[at]emory.edu
 
Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.
 
Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2018. 
 
In 2017, the winners were:
 
Book prize:
— Kenneth Watkin, “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict” (OUP 2016)


Article prize:

— Tom Dannenbaum, “Why Have We Criminalized Aggressive War?,” 126 Yale Law Journal (2017)
 

Catalan Independence Referendum and the Kosovo “Precedent”

On October 1, the people of Catalonia voted to separate from Spain in an independence referendum which has been declared illegal by Spain.  According to numerous news reports, Spanish police and government forces attempted to interfere with the referendum and engaged in tactics which some have criticized as repressive and “shocking.”  The European Union (EU) however failed to condemn the Spanish government and instead insisted that the referendum was an internal matter for Spain and that the Spanish Constitution and rule of law should be respected.

The Catalan referendum brings back memories of the Kosovo situation in 2008.  Serbian President, Aleksandar Vucic, has criticized the EU for its “hypocrisy” because of the EU’s seemingly different stance vis-a-vis the recent Catalan independence vote and vis-a-vis Kosovo’s secession from Serbia in 2008.  Vucic stated, after meeting with the Greek President, “How come you’ve [EU] declared Kosovo’s secession from Serbia legal, violating international law and the foundations of European law.”  In other words, the EU had essentially “blessed” the Kosovar secession from Serbia while it has, in this instance, supported Spain and failed to recognize that Catalan “right” to an independence referendum.  Are the situations in Catalonia and Kosovo drastically different? What does international law say about the subject-matter of secessions?

First, the situations in Kosovo and Catalonia may be different because their respective mother states are different.  Kosovo had been a part of Serbia, which, while under the rule of Slobodan Milosevic, had engaged in brutal tactics to suppress an independence-seeking rebellion brewing within Kosovo.  Thus, the international community got involved – through the 1999 NATO-led air strikes and subsequently through various NATO and EU-led administrative, security-based, and civil missions.  When Kosovo declared independence in 2008, United States Secretary of State Condoleezza Rice described Kosovo as “sui generis,” in part because of the international community’s strong involvement in this region.  The Catalan had expressed their desire for independence and had held other independence referenda in the past, but the Spanish government had never engaged in human rights violations in Catalonia and the situation has remained peaceful.  The international community itself has never been involved in Catalonia and it may be that factually, Catalonia remains an internal matter.  If Catalonia is an internal matter, then, like in Scotland and in Quebec, any potential secession would need to be worked out through peaceful negotiations and a constitutional framework.  If Spain says no, then Catalonia would not have the right to unilaterally secede.  This is the factual argument, not based in international law.  This leads me to my second point – what does international law have to say about the Catalan secession?

Second, international law is silent on secession.  Almost all international law scholars would agree that international law does not entail a “right” to secession, and that secession may be tolerated in international law in  rare instances, like in Kosovo, or in Bangladesh.  We know from the 2010 International Court of Justice Advisory Opinion on Kosovo that international law does not specifically prohibit unilateral declarations of independence, and that international law only condemns declarations of independence procured through an illegal use of force.  We also know that international law contains the right to self-determination, but, as I recently wrote in the context of the Kurdish independence referendum, it is unclear whether the right to self-determination ever applies in the non-decolonization paradigm, and whether this right can ever lead to remedial secession.  It is unclear that the Catalan can invoke the right to self-determination in order to justify secession from Spain – the right to self-determination in this instance may entail simply a right to autonomy within the larger Spanish state.  The Kurds may have a much stronger self-determination-remedial secession argument than the Catalan, as the former may be able to demonstrate much more easily that their mother state is not representative of their interests.  Spain is a democratic nation which respects human rights, and the international law-recognized right to self-determination (leading to remedial secession) has never been invoked in this type of context before.  Thus, international law, at best, begrudgingly tolerates secession in extreme and rare instances, where the mother state is not a democratic nation which respects human rights.  The Catalan do not have a sound international law-based argument, and despite Spanish interference with the Catalan independence referendum, the Catalan cannot claim a particular legal right to secede.

Finally, how does one reconcile the seemingly different results (as of now) in Kosovo, Catalonia, and Kurdistan? Kosovo unilaterally declared independence from Serbia in 2008 and within a short period of time, it was recognized as a new state by many in the international community (although not by Spain – understandably so).  Interestingly, almost no states among those supporting Kosovo advanced international law-based rationales for the Kosovar secession from Serbia; instead, such states continued to distinguish Kosovo as a unique situation, sui generis, a special case which should somehow not create any type of precedent in international law.  Catalonia and Kurdistan have held independence referenda which have not been supported by almost any states in the international community.  Many states have referred to these referenda as illegal because contrary to the wishes of their respective mother states, or as internal matters, or as not representative of any particular “rights” in international law.  Accepting the argument that international law is silent on secession and does not regulate secession, it would appear that secessions are matters of domestic law. If this is the case, it appears that the international community may accept such a role of domestic law in cases where the mother state is a democratic nation or an emerging democracy whose sovereignty is deemed worth-while.  This manner of reconciling different referendum results is not based in international law, but it rather reflects geo-political interests of other powerful states.

 

Female Voices at IHL Dialogs in Chautauqua, NY: Katherine B. Fite Would Have Been Proud

 

Chautauqua Photo Hotel

Athenaeum Hotel, Chautauqua, NY (IHL Dialogs)

In my capacity as an academic and representative of Intlawgrrls, I had the pleasure of attending and speaking at the 11th International Humanitarian Law Dialogs in Chautauqua, New York from August 27th-29th.  The Dialogs’ theme for this year was “Changing Times: New Opportunities For International Justice and Accountability.”  As usual, the Dialogs’ schedule was filled with many interesting sessions on fascinating topics of international humanitarian law and international criminal law.  What was particularly impressive this year was the presence of so many distinguished female voices.  In this post, I will briefly highlight panels and lectures with such distinguished female participants.

 

 

Chautauqua Photo Leila Sadat

Professor Leila Sadat

 

The Dialogs began on August 27th with a screening of the documentary “Never Again: Forging a Convention for Crimes Against Humanity.”  As many of our readers will surely know, the documentary was conceived at the initiative of our colleague, Professor Leila Sadat from Washington University School of Law, who has been working for the past nine years on drafting and promoting a Convention for Crimes Against Humanity.  In addition to this session, Professor Sadat also moderated a book release and discussion on August 29th, regarding a forthcoming book (“The Founders,” to be published later this year by Cambridge University Press; Professor Sadat is one of this book’s editors and a chapter contributor).  The recipient of this year’s Joshua Heintz Award for Humanitarian Achievement was Zainab Bangura, a Sierra Leonian politician and activist who recently served as the United Nations Special Representative on Sexual Violence in Conflict.  Professor Valerie Oosterveld from the University of Western Ontario Faculty of Law participated as a panelist in a Roundtable discussion on August 28th on “Changing Times: New Opportunities for International Justice and Accountability.”  Professor Oosterveld was also a panelist on August 29th in a porch session entitled “Victim-Driven Approaches to International Criminal Justice” (more on this session below).  Professor Margaret deGuzman from Temple University School of Law participated on August 29th in a porch session entitled “Hybrid Courts.”  Professor Jennifer Trahan of the New York University Center for Global Affairs delivered a breakfast presentation on August 29th entitled “The Future of International Justice.”  She also participated in a porch session on August 29th, on “Victim-Driven Approaches to International Criminal Justice.”

 

 

Chautauqua Photo Judge VDW2

ICC Judge and Baroness Christine Van den Wyngaert

International Criminal Court Judge and Baroness Christine Van den Wyngaert delivered the Katherine B. Fite Lecture on August 28th (more on the lecture below), and yours truly delivered the “Year in Review” Lecture on August 29th, and co-moderated the August 29th porch session on “Victim-Driven Approaches to International Criminal Justice.”  In addition, Dean Aviva Abramovsky of SUNY Buffalo Law School accepted the Heintz Award on behalf of Zainab Bangura (who unfortunately could not attend), and Andrea Gittelman of the United States Holocaust Memorial Museum co-moderated the “Victim-Driven Approaches” porch session on August 29th with yours truly.  Susan Murphy serves as President and Chief Executive Officer of the Robert H. Jackson Center, which is one of the Dialogs’ sponsors.

 

 

Chautauqua Photo Porch Session

From left to right: Prof. Valerie Oosterveld; Andrea Gittelman; Prof. Milena Sterio; Prof. Megan Fairlie; Prof. Jennifer Trahan (porch session)

Intlawgrrls had two particular roles at the Dialogs.  First, Intlawgrrls has traditionally sponsored the Katerine B. Fite Lecture, which was delivered this year by Judge and Baroness Christine Van den Wingaert (I had the honor of introducing her).  Katherine B. Fite was an American lawyer who graduated from Yale Law School in 1930, when she was one of only three women to graduate from law school in the United States! She later worked at the State Department and with Justice Jackson, while he served as Chief Prosecutor during the Nuremberg trials.  Judge Van den Wyngaert delivered an excellent lecture in which she described her own path to becoming an International Criminal Court judge.  She remains an inspiration to so many of us.  Second, Intlawgrrls co-sponsored, with the Holocaust Memorial Museum, the above-mentioned porch session on “Victim-Driven Approaches to International Criminal Justice.”  The session was co-moderated by yours truly, as representative of Intlawgrrls, and Andrea Gittelman, as representative of the Holocaust Memorial Museum (Ben Ferencz Initiative).  Distinguished panelists included Professor Jennifer Trahan, Professor Valerie Oosterveld, and Professor Megan Fairlie (Florida International University School of Law).

 

In sum, in light of so many distinguished female voices at Chautauqua, I am certain that Katherine B. Fite would have been proud.

 

Call for Papers: International Law Weekend 2017 New Voices

International Law Weekend 2017, a conference jointly organized by the International Law Students’ Association and the American Branch of the International Law Association will take place in New York City from October 19-21.  The following is an announcement regarding a call for submissions from new voices/scholars:

ABILA invites the submission of abstracts from emerging scholars and practitioners in the field of international law.  We will select several abstracts for presentation at ILW 2017 as part of a panel of new professionals. The abstracts may be based upon ongoing work. While all submissions are welcome, preference will be given to papers not already published. Eligibility is restricted to applicants working in the field of international law for five years or less.  

More information about new voices submissions due August 8 is available here.

ASIL-Midwest Works-in-Progress Conference: Call for Submissions

 

ASIL-Midwest Works-in-Progress Conference

Call for Submissions

ASIL-Midwest, an interest group of the American Society of International Law (ASIL) is co-sponsoring its fourth scholarly works-in-progress conference at the Cleveland-Marshall College of Law in Cleveland, Ohio on September 15-16, 2017. The goal is to create a friendly, open conversation about works in progress and to foster a Midwestern United States international law community. To that end, the workshop will include both full drafts and early works in progress.

Those interested in presenting at the conference should send a 500-word abstract to ASIL-Midwest Co-Chair Cindy Buys (cbuys@siu.edu) by Friday, July 28, 2017. Please also include a sentence about the stage the paper is expected to be in by September (e.g., reasonably complete draft, early work in progress, etc.). Papers may address any International Law topics, and this Call for Submissions is open to everyone in the international legal community.  Preference will be given to ASIL members who are also members of the ASIL-Midwest Interest Group.  Paper presenters will be asked to circulate their drafts (or a summary of the project if it’s early stage) to workshop attendees no later than September 1, 2017.

Those interested in serving as a commentator for a paper should also send an email to the Co-Chair Cindy Buys by July 28 (cbuys@siu.edu).  Commentators will be asked to prepare five to eight minutes of comments on one or more of the papers. Those interested in presenting are also encouraged to comment on the other papers and should indicate whether they are willing to serve as commentators as well.

ASIL members and Cleveland-Marshall College of Law faculty, staff, and students may attend for free. Participants who are not ASIL members or Cleveland-Marshall College of Law affiliates will be required to pay a $50 registration fee (includes workshop and some meals) for the conference. Some meals will be provided, but participants are responsible for their own travel and hotel expenses. More details regarding transportation, hotels and other logistics will be provided shortly.

For any questions about papers and presentations, please contact ASIL-Midwest Interest Group Co-Chairs, Cindy Buys (cbuys@siu.edu) or Neha Jain (njain@umn.edu).  For questions about conference logistics, contact immediate past-Chair, Milena Sterio (m.sterio@csuohio.edu).

International Law Weekend- Extended Deadline for Panel Proposals

The deadline for panel proposals for International Law Weekend 2017 has been extended until May 15.  International Law Weekend 2017 will take place from October 19-21 in New York City; this conference is jointly sponsored and organized by the International Law Students’ Association and the American Branch of the International Law Association.  More information about the conference, its theme, and procedures about panel submissions is available here.