The Crime of Aggression: 1 Year Later

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Photo credit: BBC: https://www.bbc.com/news/world-africa-29548753

This year’s Assembly of States Parties (ASP) marks the first time the Court and States Parties will discuss the crime of aggression since its activation last year, and it will be interesting to hear what States Parties have to say about it. One issue that may be addressed includes the relationship between the Court and the Security Council given that the Security Council must first determine that an act of aggression has occurred before the Court can prosecute the crime of aggression (there is, however, an exception to this if 6 months have passed since the Security Council was made aware that an alleged act of aggression has occurred and has not made a determination). The implementation of the Kampala Amendments is another potential issue because there has been debate surrounding whether the amendments should be universally implemented for all States Parties to the Rome Statute or only for those that ratify the amendment. A third potential issue of discussion is how the Court will fund the addition of this crime to its jurisdiction given the already constrained budget.

The crime of aggression is the fourth crime enumerated under the Rome Statute of the International Criminal Court. Twenty years ago, States could not agree upon the definition of the crime of aggression when the text of the Rome Statute was negotiated, thereby excluding crimes of aggression from the Court’s jurisdiction.

The definition was finally agreed upon in 2010 through the Kampala Amendments, but negotiating States decided that the Court would still not have jurisdiction over the crime of aggression until one year after 30 member states had ratified the Amendments and it was promulgated by the Assembly of States Parties (ASP).

As Palestine was the 30th State to ratify the Amendments in June 2016, the ASP agreed to activate the Court’s jurisdiction over the crime of aggression during their meetings in December of 2017. The Court’s jurisdiction officially became active on July 17, 2018.

The key issue and reason for the delay in agreeing to the text of the crime was the lack of agreement on whether the Court could exercise jurisdiction for the crime of aggression over the nationals of States Parties to the Rome Statute who had not ratified the Amendments. The wide view on this issue is that the Court has jurisdiction when the crime occurs on the territory of a State which has ratified the Amendment. Still, there are those, including Canada, that believe that the Court would not have jurisdiction over state referrals or proprio motu investigations when the alleged crime is committed by nationals of non-ratifying States or on their territory.

The crime of aggression essentially allows for individual criminal responsibility for violations of Article 2(4) of the Charter of the United Nations. Article 2(4) prohibits “the threat or use of force against the territorial integrity or political independence of any state”. However, not all violations of the prohibition on the use of force will constitute a crime of aggression: only the most serious and dangerous forms.

The Rome Statute is the first modern criminal tribunal to include the crime of aggression, but the International Military Tribunals (IMT) in Nuremberg and Tokyo included prosecutions and convictions for crimes against peace, which criminalized those involved in waging wars of aggression or wars in violation of international treaties. The language of the crime of aggression was borne out of and based on the Charter of the IMT.

The crime of aggression has not been prosecuted yet and there is no precedent for the Court to follow. It will be interesting to see how the Court interprets the crime once the first charges are made, and if it takes any guidance from the IMTs or develops its own interpretation.

Stay tuned for updates!

This blogpost and my attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

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What’s In a Name – “Istanbul” in the SS Lotus Case

In the weeks leading up to the 91st anniversary of the judgment, two students and I had an occasion to re-read the iconic case of the SS Lotus (France v. Turkey) PCIJ 1927. Our task was to see how one word – the name of the capital city of Turkey – one of the two parties to the case, was invoked by judges in the text of the 1927 Lotus decision. We write this small piece to bring out a non-essential, but nevertheless interesting aspect of this much-cited, much-studied decision.

The SS Lotus case was a legal dispute between France and Turkey, brought by France to the chief judicial organ of the League of Nations, the Permanent Court of International Justice – which is the precursor to the International Court of Justice, chief judicial organ of the United Nations. The facts of the case involved a collision upon the high seas, on August 2, 1926, between a French vessel the SS Lotus and a Turkish vessel the Boz Kourt. The victims were Turkish nationals and the alleged offender was a French lieutenant on the Lotus. The case was brought before the PCIJ to study whether Turkey could exercise its jurisdiction over the French lieutenant under international law.

Our starting point is that the political histories of Western and Eastern scholarship, use different names for the same city. And though Istanbul – the name, the city, and the symbol; is, at best, of tangential importance to the legal outcome of the Lotus; there is something to be said about the how the usage of different names for the same city, offer clues to the political imaginations of the judges.

The Turkish capital, originally referred to in texts by Pliny the Elder, as Lygos, was colonised by the Greek in 667 BC. The Romans named it Byzantium – Eastern Roman Empire. It was then renamed Nova Roma, and eventually become Constantinopolis, when the Roman Emperor Constantine made it his capital 330 AD. Given Emperor Constantine’s recent conversion to Christianity, the city of Constantinople became a thriving centre for religion and an important symbol of Christendom. In 1453 AD, Sultan Mehmed II “The Conqueror” laid siege to the city and captured it, and made it the capital of the Ottoman Empire. Mehmed sacked the legendary Hagia Sophia and turned it into a mosque. He proclaimed Islam as the State religion.

After World War I, the empire was split up and occupied by the Allied powers. The Turkish War of Independence saw the Allies being pushed out in 1923. Turkey signed the Treaty of Lausanne – giving it recognised international borders and exclusive jurisdiction over the territory of Turkey.

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Cautionary tales for the Mueller Probe from the International Criminal Tribunal for the former Yugoslavia

 

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Photo by the National Archives and Records Administration

“I just can’t wait to hear the final report of the Mueller probe!”

Even those not normally interested in the intricate details of complex legal investigations have found themselves obsessed with the criminal investigation at the center of our nation’s political drama—the Special Counsel Investigation into Russian interference in the 2016 election, or the Mueller probe.

Both sides of the political aisle are awash with speculation about what the final report might reveal (and it’s probably as damning as whatever is in Donald Trump’s tax returns). Whatever you think it might disclose, we all seem convinced that the investigation will prove to the American public once and for all just what was going on during the 2016 election.

But international justice offers a cautionary tale about the ability of criminal justice mechanisms to draw a line in the sand about political events.

Very popular criminals 

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The International Criminal Tribunal for the Former Yugoslavia

 

 

In 1993, the United Nations established the International Criminal Tribunal for the former Yugoslavia (ICTY) in order to try those most responsible for the crimes committed during the Balkans wars of the 1990s. In December 2017, it sentenced former Bosnian Serb general Ratko Mladić, also known as “the Butcher of Bosnia,” to life imprisonment for genocide, war crimes and crimes against humanity. Justice, one might infer, had been served. Who could deny the atrocities now?

After the Mladić verdict, in Srebrenica—a town whose name became synonymous with the 1995 genocide—mayor : “Mladić will be remembered in history and this sentence only strengthens his myth among the Serb nation, which is grateful to him for saving it from persecution and extermination.” For a little less than half of the Bosnian population, Mladić is not a war criminal: he is a hero.

Denials about atrocities of the war are typical and commonplace in the Balkans, even of infamous events like Srebrenica. Despite 2.5 million pages of court transcripts, the ICTY’s findings are not always accepted as true among the people for whom it was established.

There are many theories about why Bosnians have not internalized the ICTY rulings. Some argue that the trials and the judgments were too lengthy, complicated and legalistic for people to understand—the court is located far away in The Hague and the proceedings are conducted in English and French. People in the former Yugoslav simply didn’t watch the trials or read the verdicts. Some point the finger at nationalist elites, politicians and journalists, who used confusion about the ICTY rulings for their own benefit. Still others point out that the defendants were allowed to hijack the trials and use them as political platforms, undermining the ICTY’s ability to communicate with the public.

But the truth was that being subjects of international indictments for war crimes did not really lessen the popularity of any of the Balkans leaders among their constituencies. Continue reading

CfP: Law, Translation, and Activism

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The editors of the Routledge Handbook of Translation and Activism (Rebecca Ruth Gould and Kayvan Tahmesebian), are seeking contributions relating to the intersections of law, translation, and activism. The full CfP is here. If you would be interested in contributing chapters dealing with any of the following themes (or other themes engaging with law and translation) please get in touch (preferably to globalliterarytheory@gmail.com):

  • the politics of court interpretation
  • indigenous language rights
  • migration law
  • law in multilingual societies
  • translating human rights
  • legal translation as a profession and technique

This volume will be published in 2019 as part of the Routledge Handbooks in Translation and Interpreting Studies. A preliminary website for the volume has been set up here.

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Jane Addams and Belva Ann Lockwood, et al., the newest members of ASIL

A warm welcoming of new members highlighted the recent annual meeting of the American Society of International Law.

Those welcomed included two luminaries – a Nobel Peace Prizewinner and a U.S. Presidential candidate – plus untold others, as reflected in this resolution, adopted by ASIL’s General Assembly:

RESOLVED,

That the American Society of International Law, wishing to provide recognition and posthumous redress to women who were excluded from membership in the Society during its early years, hereby confers membership on JANE ADDAMS, BELVA ANN LOCKWOOD, and any other women whose applications for membership were denied from 1906-1921.

FURTHER RESOLVED,

That the Society should undertake additional research to determine which members of other groups also were excluded from membership over the course of the Society’s history, and merit similar redress.

ASIL President Lucinda A. Low (left) introduced the resolutions, one of her last acts before handing the presidency to Professor Sean D. Murphy. Low, a partner at Steptoe & Johnson LLP, acted in response to a member inquiry – an inquiry prompted, as Low told ASIL members, by “International Law and the Future of Peace,” the speech I gave upon receiving the 2013 Prominent Woman in International Law award of ASIL’s Women in International Law Interest Group. As I indicated in that speech, original credit is owed to yet another ASIL President: Professor Alona Evans (below left), the 1st woman elected to lead the Society, in 1980, her tenure cut short by her death at age 63 that same year.

Six years earlier, Evans and Carol Per Lee Plumb had published “Women and the American Society of International Law” in the American Journal of International Law. They reported that ASIL, founded in 1906, had refused women’s applications for membership until 1921, the year after the U.S. Constitution was amended to give women the right to vote. Applicants before that time included:

► Lockwood (1830-1917) (top, middle), an attorney-activist who gained admittance to the District of Columbia bar in 1873 thanks to the intervention of U.S. President Ulysses Grant. Thereafter, she became the 1st woman to appear on an official ballot as a candidate for U.S. President, and also the 1st to argue a case before the U.S. Supreme Court.

► Addams (1860-1935) (top, right), the Chicago settlement house leader whose achievements including chairing the 1915 International Congress of Women at The Hague and serving and the 1st President of the Women’s International League for Peace and Freedom. She would earn the Peace Prize in 1931.

According to Evans’ co-authored article, when Addams sought ASIL membership, she was sent a letter in which she was “invited, instead, to subscribe to the Journal ‘for the same amount as the annual dues ….’” That letter constitutes one of the few remaining records of such applications; it is for this reason that the 2018 Resolution refers to all women, known and unknown, who were denied membership.

Similarly lacking is evidence of how members of other groups fared in ASIL. (The sole African-American person elected ASIL President, C. Clyde Ferguson Jr., served just before Evans.) The Society has further resolved to seek this information and grant redress.

As for Evans, President Low indicated that the Society is considering how best to honor her legacy. These resolutions surely constitute a superb 1st step.

(Cross-posted from Diane Marie Amann)

Lebanon and the Origins of International (Refugee) Law

I’ve spent most of these past years researching the situation of Syrian refugees in Lebanon, culminating in a series of recent articles which among others can be found here and here. Today, Lebanon hosts the highest number of refugees in the world in proportion to its population size of about six million. Many of these live in deep social and legal precarity, with an estimated 60 per cent of Syrian refugees living irregularly in the country and thus subject to extremely harsh and marginalized conditions.

From an international law perspective, however, Lebanon is a fascinating country. It takes pride in its contribution to some of the earliest international human rights instruments, including the participation of Charles Malik in the drafting of the Universal Declaration of Human Rights and his chairing of the UN Commission on Human Rights in 1951-1952.

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Interview with Georges Abi-Saab

In the latest edition of our series titled “Conversations with Leading Judges”, it was my great pleasure to interview Georges Abi-Saab, Honorary Professor of International Law at the Graduate Institute of International and Development Studies in Geneva.  He was Member (and former Chairman) of the Appellate Body of the World Trade Organization (since 2000). He was also Member of the Administrative Tribunal of the International Monetary Fund and of various international arbitral tribunals (ICSID, ICC, etc.)  Abi-Saab served as Judge ad hoc of the International Court of Justice and Sometime Judge on the Appeals Chamber of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda and Commissioner on the United Nations Compensation Commission (UNCC). He has published widely on international law in both English and French, including his General Course on Public International Law at the Hague Academy.

The interview touches upon a wide array of topics including pluralism within International Law, the New International Economic Order, politicization of the WTO Appellate Body, diversity within international adjudication, and other topics.  The  video interview is available at:http://www.jus.uio.no/english/services/knowledge/podcast/guest-lectures/2016/interview-with-his-honour-judge-georges-abi-saab.html

The full set of interviews is available at:  http://www.jus.uio.no/english/research/areas/intrel/interviews/