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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Law of Peace(making) and Transforming Children’s Invisibility

Courtesy of the Blog of the Groningen Journal of International Law (August 22, 2017).

The law of international human rights came into being through an international peacemaking process, in particular the successive processes that gave birth to the Charter of the United Nations. The law as developed affirms children’s legal standing and agency as subjects of human rights. There is a concomitant international obligation to affirm the same in relation to the successive processes of peacemaking and give effect to those rights through the resultant agreements, as recalled by treaty and Charter bodies. Yet children are mostly invisible in such processes. Its extent is laid bare by a cursory review of collections of peace agreements. Of the close to eight hundred peace agreements in the United Nations database, for example, approximately ninety-five include a reference to children. The extremity of their invisibility raises a multiplicity of questions. Is it justified from the perspective of the law of peace(making)? May children’s human rights yield to the pursuance of peace?  And if not, why are children (mostly) invisible in peacemaking? These questions sparked and structured a probe of peace processes from a juristic, human rights and child rights perspective. Continue reading

Pursuing Synergies to Guarantee Women’s Rights in Conflict: The UN Security Council Arria Formula Meeting on CEDAW and the Women, Peace and Security Resolutions

Catherine O’Rourke, author of today’s post, and Aisling Swaine co-authored the UN Women (2015) Guidebook on CEDAW General Recommendation Number 30 and the UN Security Council Resolutions on Women, Peace and Security.

A key conclusion of the Global Study on UN Security Council Resolution 1325 was the need for improved synergies between the treaty-based human rights system and the Women, Peace and Security (WPS) agenda:

To fully realize the human rights obligations of the women, peace and security agenda, all intergovernmental bodies and human rights mechanisms must act in synergy to protect and promote women’s and girls’ rights at all times, including in conflict and post-conflict situations. (page 350)

The drive towards improved synergies between WPS and broader human rights obligations was given significant impetus in October 2013, when the monitoring Committee of CEDAW adopted General Recommendation Number 30 on the rights of women in conflict prevention, conflict and post-conflict situations. The Committee called on CEDAW state parties to inter alia ensure that implementation of their WPS commitments was taking place within the broader equality and women’s rights obligations of CEDAW. Further, state parties are called to report on implementation of their WPS commitments in their periodic reports to CEDAW.

The recent Arria Formula meeting between the UN Security Council and representatives from civil society, UN Women and the CEDAW Committee was an important milestone in the continued pursuit of such synergies. Held in UN Headquarters in New York on December 5, 2016, the meeting was convened by Security Council non-permanent member Uruguay. It was formally addressed by Yannick Glemarec, UN Women; Pramila Patten, CEDAW Committee; and Maria Victoria Cabrera-Balleza, Global Network for Women Peacebuilders. The speakers emphasized the following three dividends to be gained:

Information: Improved information sharing between the CEDAW Committee and the Security Council was identified as an important benefit of improved synergies. For example, the Security Council’s assessment of country situations should be informed by the CEDAW Committee’s assessment of women’s rights in the same country, gleaned through state reporting, shadow reporting and the women’s rights issues prioritised in Committee’s Concluding Observations to states. Likewise, the CEDAW Committee could draw on the Security Council activities in situations on its agenda to identify issues for further exploration through state reporting.

Civil Society Participation: The CEDAW process of periodic state examination, as well as broad standing for individual communications and inquiry requests under the CEDAW Optional Protocol, were identified as offering particular opportunities for civil society participation without significant parallel in the WPS resolutions.

Feminist Framing: The clear emphasis of the CEDAW Convention, Committee and General Recommendation Number 30 on women’s human rights, conflict prevention per se (as distinct from the narrower question of women’s role in conflict prevention) and disarmament (for example, the role of the Arms Trade Treaty in advancing WPS) was repeatedly noted. This mooted feminist framing offered a worthy counterpoint to the security and sexual violence focused activities of the Security Council.

Continue reading

Dispatch from the Women’s March in Washington

Wow.  What an experience.

img_9288Like Diane, I am not much of a marcher.  I respect and support direct action, but—as an academic—my contributions to social change tend to involve disseminating the written word more than chanting in the streets.

But this was an event to remember.  I am so thrilled that I was able to be here in img_9250Washington, D.C. (having flown from California in a plane FULL of women) with my mom, sister, daughter, and a number of students and friends from all stages of my life.  Thanks to our cell phones (and notwithstanding the overwhelmed cell towers), we were miraculously able to connect at random points along the way.

img_9287The Rally and March offered a beautiful display of American diversity—all ages, races, orientations, and genders were represented.  There were families with children everywhere—marching, chanting, frolicking, and sharing their own messages (“Grown-ups: WTF??” & “I Am 8 Years Old & I Have Better Manners & Fewer Tantrums”). Although this was billed as “The Woman’s March,” thousands and thousands of supportive men were in attendance, all advocating for women’s rights and inclusiveness (“Men of Quality Do Not Fear Equality”).

Although there were incredible speakers and performers (including Gloria Steinem, Michael Moore, Ashley Judd, andimg_9232 Madonna), this was really about building community and solidarity in the streets.  The roar of the crowds was incredible—and deafening—at times.

As usual, the ubiquitous hand-made signs, all emphasizing social justice themes and the power of resistance, were a highlight. They were full of creative double entendres (“Electile dysfunction”) and clever puns (“Donald Dump” (with poop emoji) – “Trump Puts The ‘Twit’ in Twitter” & “We Shall Overcomb”).  Even Trump’s bizarre appearance did not escape reference (“Orange is the New Blech”).

The messages were pro-immigrant (“To All Immigrants: img_9268Thanks for Choosing America”), pro-diversity, pro-social justice, pro-human rights (“Women Just Want to Have FUNdamental Rights”) and pro-reproductive rights.  Indeed, I’ve never seen so many unique renderings of the female uterus in one place (“Shed Walls, Don’t Build Them”).

Not surprisingly, Trump’s unbridled misogyny and sordid history of sexual assault offered frequent themes (“No Sex Offenders in Public Housing” (with a picture of the White House)).  The pussy references were legion, even over and above the seas of pink knitted hats thanks to the Pussyhat Project.  I was thrilled to wear one knitted for me by one of my students. img_9281

Much of the anger was directed toward Trump (“Dump Trump”), but Mike Pence did not escape the crowd’s ire (“Pence Sucks Too”), particularly as we all marched past the EEOB where the Vice President has his office.  There were also plenty of references to Russia’s intervention in the election (“Nyet my President”) and images of Trump as Putin’s puppet or crybaby (“Make Daddy Vimg_9283ladimir Proud”).  Trump’s campaign slogans and vile comments were all turned inside out (“Make America Kind Again” – “Build a Wall Around Trump & We’ll Pay For It” – “Hate Does Not Make America Great” & “You Haven’t Seen Nasty Yet”).  Even Melania receivedimg_9207 some attention (“Free Melania” & “Melania, Blink Twice if You Need Help”).

Everyone was peaceful and loving. Notwithstanding the finality of yesterday’s inauguration, people were upbeat, strategizing for the coming resistance, and exchanging random acts of kindness, even in hot, crowded metro stops and the throngs on the streets.  We saw two people wearing “Trump” hats, but otherwise this was a crowd full of Hillary Clinton supporters (“Still With Her”).

In fact, there were so many references to Hillary that it was as if this were her inauguration celebration. It should have been (“The People’s President: She Got 2,864,974 More Votes”).

Onward.

Read On! ‘Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability’

I am thrilled to post for the first time in IntLawGrrls and to share the publication of my book Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability (Hart Publishing, 2016).

This book considers the potential of human security as a protective tool within the international law of human rights. Indeed, it seems surprising given the centrality of human security to the human experience, that its connection with human rights had not yet been explored in a truly systematic way. The book attempts to address that gap in the literature and sustains that the human rights of persons, particularly those facing structural vulnerability, can be addressed more adequately if studied through the complementary lens of human security and not under human rights law alone. It takes both a legal and interdisciplinary approach, recognizing that human security and its relationship with human rights cuts across disciplinary boundaries.

Human security with its axis of freedom from fear, from want and from indignity, can more integrally encompass the inter-connected risks faced by individuals and groups in vulnerable conditions. At the same time, human rights law provides the normative legal grounding usually lacking in human security. International human rights norms, individualistic in nature and firstly enacted more than sixty years ago, present limits which translate into lack of protection for people globally. As a result, the collective and contextual conditions undergone by persons can be better met through the broader and more recent notion of human security, which emphasizes ‘critical (severe) and pervasive (widespread) threats’, and accentuates socioeconomic vulnerabilities as authentic security concerns. Indeed, as signaled by Sadako Ogata, human security is ‘the emerging paradigm for understanding global vulnerabilities’.

The analysis follows a two-part approach. Firstly, it evaluates convergences between human security and all human rights – civil, political, economic, social and cultural –and constructs a general framework for thought and action, the ‘human security – human rights synergy’. Secondly, it goes on to explore the practical application of this framework in the law and case-law of UN, European, Inter-American and African human rights bodies in the thematic cores of 1) violence against women and girls (VAW); 2) undocumented migrants and other non-citizens such as asylum-seekers and refugees; converging in 3) a particular examination of the conditions of female undocumented migrants. In the last chapter, the book systematizes this evidence to reveal and propose added values of human security to human rights law; and inversely, it indicates how human rights standards/indicators can deliver a needed more precise, normatively grounded and operational conception of human security.

These ‘interpretative synergies’ offer promise for shifting the boundaries of international human rights law: in constructing integrative approaches to fill legal gaps, better prevention and addressing protectively collective threats, and –in the spirit of the Universal Declaration of Human Rights- creating an ‘enabling environment’ to fulfil all human rights, especially for those not only confronting isolated moments of risk or individual human rights violations, but rather conditions of structural vulnerability affecting their everyday lives. Continue reading

Law of peace(making) and the promise of a new beginning for children

Cross-posted courtesy of the Oxford Human Rights Hub.

The act of peacemaking may be viewed as the promise of a new beginning. It is latent within the sui generis legal form of the self-constituting process, and the often layered human rights transformation at its substantive epicentre. In the complex and evolving legality that constitutes peacemaking, international human rights claims often have heightened performativity. Or in other words, international human rights law (itself born of international peacemaking processes) is both applicable to, and performative within, the self constituting process of peacemaking. However, the layered human rights transformation is often partial: children and their rights are particularly likely to be invisible in the successive processes and agreements that constitute peacemaking. Yet, there is an international legal obligation to respect and ensure their rights ‘in’ and ‘through’ peacemaking, as affirmed by the Committee on the Rights of the Child and underwritten by the Security Council. Further, as noted in an earlier posting, peacemakers may for multifarious reasons — some principled, others political — commit to ‘transforming children’s rights as part of human rights’. So, why, then, are children mostly invisible in peacemaking? Continue reading

How Do Wars End?

I had the great pleasure of attending Southern Denmark University’s Center for War Studies‘ signature event “How Do Wars End?”.  The conference started with the riveting reflections of the famous Danish author, Carsten Jensen, on “The Forever Wars”.  He described his experiences embedded with Danish troops in Afghanistan and related the soldiers’ problems dealing with a lack of clear strategic goals within the conflict, complex  homecoming struggles, as well as the current trend towards privatization of war. His books included characters that range from traditional soldiers to drone pilots and who grapple with ethical challenges as well as boredom.  He also provided a wonderful overview of war literature from around the world, leaving the audience with a compelling urge to run to the library.  The next presentation was by Christopher Kolenda, a Senior Military Fellow at King’s College London.  Kolenda served as commander of an infantry task force in Afghanistan which handed out notebooks and pencils to the local community as part of its peacemaking strategy (in part influenced by Greg Mortenson’s book Three Cups of Tea).  He also co-authored the McChrystal assessment on Afghanistan and has worked with strategic policy on Pakistan as well.  He delivered an insightful explanation of why the US has trouble managing war termination; including the cost of failure to follow up early negotiation opportunities, problems related to centralization of security decision-making, and the challenges of narratives which delegitimize the enemy and impede negotiation.  This was followed by Joachim Krause , the Director of the Institute for Security Policy at the University of Kiel.  He discussed confusion regarding the definition of war and set forth a typology, ranging from cabinet wars to classic international wars, limited wars over specific islands, post-modern wars, hybrid wars, people’s wars, religious wars, wars of secession, civil wars, and the emergence of war economies.  He ruefully commented on the negative consequences of war efforts that were terminated too early as well as those that were terminated too late.  The breadth of his presentation served as a confirmation to me that the ethics academic, Jonathan Glover, had appropriately named his book on the scope of atrocities committed in the 20th Century, HumanityCian O’Driscoll of the University of Glasglow reflected on the Victory of Just War, ruminating on the scope of triumph.  He was followed by Thomas Obel Hansen of Ulster University who gave a thorough overview of transitional justice, breaking myths and underscoring real dilemmas in practice.   In conclusion, I gave a perspective from international law in which I reflected on the challenges we face given the lack of normative agreement on what we mean by peace, explaining the difference between negative peace and positive peace, as well as institutional failures to implement peace in the long term.  I gave an overview of the book Promoting Peace through International Law and then proceeded to discuss specific cases. I noted the Peace Accords in Colombia and the observation that there is no more war in the Americas.  To counter this, I used the example of Guatemala, which formally experienced a Peace Accord in 1996 while having 1 million IDPs and 200,000 refugees who claimed land restitution, as well as 200,000 paramilitary troops and 3,000 URNG guerillas who required demobilization.  In spite of a solid commitment by MINUGUA, USAID, World Bank, EU, Norway, and other entities, Guatemala experienced a serious setback in human rights and security, well documented in a report by the Inter-American Commission on Human Rights. At present, Guatemala has the fourth highest rate of chronic malnutrition in the world, as well as high levels of illiteracy, and a homicide rate that renders it one of the most murderous countries in the world.  Most crimes are not prosecuted and the state’s security system has been infiltrated by criminal elements resulting in a parallel state. Thus, there is in effect a new war between criminal elements and the government.  This experience leads us to consider the process in Colombia, which has an overwhelming 7 million IDPs to contend with, difficult in particular due to ongoing polarization within the society regarding accountability vs. amnesty dilemmas.  I called for more research in peace studies, in particular adding legal and critical perspectives.

Kudos to  Anders Engberg-Pedersen and Sten Rynning for organizing a thought-proving conference!