The Crime of Aggression under International Criminal Law: Links with Refugee Law

The 16th Assembly of States Parties to the Rome Statute of the International Criminal Court is already more than halfway done. Many of the themes at the ASP this year is worthy of note, including the election of six new judges, planning for the 20th anniversary of the Rome Statute of the International Criminal Court, as well as consideration of activation of the International Criminal Court’s jurisdiction over the crime of aggression.

Of particular interest is the ICC’s activation of the crime of aggression, which will be the focus of this blog post. The crime of aggression is defined under the Rome Statute as ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’. The activation and exercise of the ICC’s jurisdiction over the crime of aggression is of significance because there are outstanding jurisdictional issues which are to be discussed at the ASP, including whether all States Parties are subjected to the ICC’s jurisdiction over the crime of aggression, or whether only States Parties which have ratified the crime of aggression amendments are subjected to the ICC’s jurisdiction over the crime of aggression (see Coalition of the ICC Backgrounder). This blog post will consider the impact the activation of the crime of aggressions may have on international refugee law.

ASP Work Programme

ASP Work Programme

One can see several parallels between international criminal law and refugee law. While at first glance, international criminal and refugee law may seem distinct from one another, in fact, when operating together, these two fields of law may enhance the functions of the other. First, the purposes of international criminal law and refugee law draw parallels with one another. Second, while international refugee law regime’s main purpose is to protect refugees, in order to do so, it must also protect the institution for asylum, by preventing those who have committed grave crimes from gaining refugee status and corresponding protection. Here, international refugee law borrows from international criminal law so as to ascertain what type of individuals would be excluded from international protection.

 One view of international criminal law’s purpose is to bring justice to victims through the prosecution of an individual for international crimes, i.e. by holding an individual liable for committing mass atrocities. The command responsibility rule is illustrative of this purpose in that high-ranking individuals can be held responsible for crimes committed by their subordinates. One view of international refugee law is that it offers the widest protection to those deserving through the granting of refugee status. Article 1F(a) of the Convention Relating to the Status of Refugees (Refugee Convention) prevents those who are undeserving of international protection from benefiting from that protection. This provision applies to those who have committed crimes prior to admission as refugees. Article 1F acts to preserve the institution of asylum, and to safeguard the receiving country from criminals who present a danger to that country’s security. Borrowing from international criminal law, international refugee law determines who is deserving of refugee status by excluding those who have committed serious international crimes. By working together, international criminal law brings perpetrators to justice, while international refugee law excludes those who try to find safe havens through acquiring refugee status and corresponding protection.

International refugee law borrows from international criminal law when determining which individuals would be excluded from refugee status under Article 1F(a) of the Refugee Convention. Under Article 1F(a), individuals are excluded from refugee status and corresponding protection where there are ‘serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes’. The United Nations High Commissioner for Refugees (UNHCR) has stated that ‘a ‘crime of aggression’ is essentially a ‘crime against peace’’ in its commentary. A crime against peace is defined as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the Charter of the United Nations’. This definition of a crime against peace was drawn from the United Nations General Assembly 1974 definition of ‘aggression’ and such definition has been retained in the International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind. As can be seen, international refugee law draws upon international criminal law in defining the relevant crimes under Article 1F(a) of the Refugee Convention. This type of close relationship between international criminal and refugee law may enhance respect for the rule of law internationally, while preventing individuals who do not deserve to be protected under the international refugee law regime from attaining refugee status.

As briefly demonstrated, while both international criminal law and refugee law may serve different functions, these two branches of international law, when operating together, may draw upon the other to enhance international respect for the rule of law. The negotiation between States Parties at the ASP will likely clarify the activation and jurisdiction of the ICC over the crime of aggression, which may, in turn, inform how Article 1F(a) may be interpreted by international refugee law adjudicators. Now more than ever, the institution for asylum must be protected from potential abuse by perpetrators of international crimes, so that only those deserving may be given the widest possible protection under the international refugee law regime.

This blogpost and Jenny Poon’s attendance to the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

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Write On! Utrecht Univ. & American Univ.

backlit_keyboardThis installment of Write On!, our periodic compilation of calls for papers, includes calls to submit papers to Utrecht University and American University, as follows:

► Utrecht University‘s Journal of International and European Law is accepting submissions for its General Issue on International and European Law to be published in August 2018. Deadline to submit is April 9, 2018The word limit is 15,000 words. Articles should be submitted here. For guidelines and more information, click here.

► American University‘s Journal of Gender, Social Policy, & the Law is accepting submissions for its special themed edition, which will focus on timely and important legal issues in the areas of sexual harassment and sexual assault. 

The Journal will consider articles that propose a new argument or perspective about the legal issue and that include analysis of U.S. law in addition to any international focus. Deadline to submit is January 5, 2018. For more information, click here or email: gl-articles@wcl.american.edu

Digital rights are human rights

As the boundaries between our online and offline lives blur, is there really a distinction between “digital” and other human rights?

UN Photo Eleanor Roosevelt

UN Photo | Eleanor Roosevelt, holding the Universal Declaration of Human Rights

What do we mean when we talk about “digital rights”? This is a fundamental question that influences the Digital Freedom Fund’s strategy as we define the parameters for supporting the work of activists and litigators in Europe.

A quick search online yields a variety of definitions, most of which focus on the relationship between human beings, computers, networks and devices. Some of the narrower ones focus on the issue of copyright exclusively.

As our lives are digitalised further, does this approach to defining the term make sense?

In many ways, we already live in the sci-fi future we once imagined. The internet of things is here. Our food is kept cold in what we used to call a fridge, but what is now a computer that also has the ability to freeze things. The main way in which we communicate with our colleagues, family and loved ones are our mobile devices and what happens on social media is alleged to have a significant impact on elections. Our data are being collected by governments and corporations alike. In all of these contexts, our basic human rights – our rights to freedom of expression, freedom of assembly, privacy, and the like – are implicated. If there ever was a dividing line between “digital” rights and human rights, it has blurred to the point of irrelevance.

In line with the reality of our time, at DFF we work with a broad definition of digital rights for our grantmaking and field support activities. We consider digital rights to be human rights as applicable in the digital sphere. That is human rights in both physically constructed spaces, such as infrastructure and devices, and in spaces that are virtually constructed, like our online identities and communities.

If digital rights are human rights, then why use a different term? The label “digital rights” merely serves to pinpoint the sphere in which we are exercising our fundamental rights and freedoms. To draw concrete attention to an issue, using a term that expresses the context can help with framing and highlighting the issue in a compact manner. With our digital rights under threat on many fronts, this is important. Just as it was important, in 1995, for Hillary Clinton to state at the Women’s Congress in Beijing that “human rights are women’s rights, and women’s rights are human rights,” and for President Obama in 2016 to stress that LGBT rights are human rights, we should all be aware that digital rights are human rights, too. And they need to be protected.

As we further engage with the digital rights community in Europe, we look forward to supporting their important human rights work and highlighting their successes in this space. Part of that mission also includes creating broader understanding that digital rights are indeed human rights. We hope you will join us in sharing that message.

This article has been cross-posted on the Digital Freedom Fund blog. To follow DFF’s work and be notified when we launch, sign up for our newsletter and follow us on Twitter.

Optimism about “Arcs of Global Justice” at London launch of our OUP essay collection honouring William A. Schabas

LONDON – “Optimism” was the byword for Friday’s magical conference launching Arcs of Global Justice: Essays in Honour of William A. Schabas, the just-published Oxford University Press collection coedited by Margaret M. deGuzman and myself.

The event took place in a Christmas-tree-lighted conference room at 9 Bedford Row, the London chambers where our honouree, Bill Schabas (above center), is a door tenant. Joining Bill and his wife, Penelope Soteriou, were several of the 35 women and men whose 29 contributions comprise the volume, many friends, colleagues, PhD students, and relatives.

Gillian Higgins (left), Head of the International Practice Group at 9 Bedford Row, opened with a warm message of welcome and congratulations. Then followed a celebration that combined lighthearted anecdotes with serious presentations of scholarship. Topics ranged as far and wide as Schabas’ multifaceted career, which includes current appointments as Professor of International Law at Middlesex University, London, Professor of International Criminal Law and Human Rights at Leiden University, and Emeritus Professor of Human Rights Law and Honorary Chairman of the Irish Centre for Human Rights, National University of Ireland Galway; service as a member of the Sierra Leone Truth and Reconciliation Commission and as a consultant on capital punishment for the United Nations Office of Drugs and Crime; and authorship of hundreds of books, chapters, and articles.

A sobering moment came in Birkbeck Lecturer Emma Sandon‘s discussion of Schabas’ role as an organizer of and speaker at human rights film festivals. Sandon (above) concluded with a clip from Judgment at Nuremberg (1961). All fell silent while watching the characters in the video courtroom watch actual footage from the Allied liberations of concentration camps like Buchenwald.

Also moving was the memorial that Northwestern University Law Professor David Scheffer gave on behalf of contributor Cherif Bassiouni, who died at age 79 in September, not long after finishing his chapter, entitled “Human Rights and International Criminal Justice in the Twenty-First Century: The End of the Post-WWII Phase and the Beginning of an Uncertain New Era.” (Bassiouni also penned a dedication for our conference programme, available in PDF here.) Scheffer described the essay in light of his own and Schabas’ writings, and concluded on a optimistic note regarding the future of human rights.

That same note sounded in Schabas’ own interventions throughout the day. On issues ranging from the International Criminal Court to abolition of the death penalty, he assured his audience that even in these times, when the day-to-day “weather” may seem grim, the overall “climate” offers much room for optimism.

Here’s order of the day (full PDF programme here; IntLawGrrls participating were Meg, Sandra Babcock, and me; additional contributors in attendance included Middlesex Law Dean Joshua Castellino and Cambridge PhD candidate Bruno Gélinas-Faucher):

Arcs of Global Justice:
Conference Launching Essay Collection in Honour of William A. Schabas
Friday, 8 December 2017, 9 Bedford Row, London

Opening
“Welcome” by Gillian Higgins, Head of the International Practice Group at 9 Bedford Row
“In Memoriam for Cherif Bassiouni” by David Scheffer, Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University Pritzker School of Law, Chicago
“Introduction to Arcs of Global Justice” by coeditors Diane Marie Amann and Margaret M. deGuzman

International Law & Criminal Justice
“The Principle of Legality at the Crossroads of Human Rights & International Criminal Law” by Shane Darcy, Senior Lecturer at the Irish Centre for Human Rights, National University of Ireland Galway
“Criminal Law Philosophy in William Schabas’s Scholarship” by Margaret M. deGuzman, Professor of Law at Temple University’s Beasley School of Law
“Perspectives on Cultural Genocide: From Criminal Law to Cultural Diversity” by Jérémie Gilbert, Professor of International and Comparative Law, University of East London
“Toward Greater Synergy between Courts & Truth Commissions in Post-Conflict Context: Lessons from Sierra Leone” by Charles Chernor Jalloh, Professor of Law, Florida International University, and a member of the International Law Commission
Moderator: Kathleen Cavanaugh, Senior Lecturer at the Irish Centre for Human Rights, National University of Ireland Galway

Justice / Scholarship / Culture / Practice
“Bill the Blogger” by Diane Marie Amann, Emily and Ernest Woodruff Chair in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law
“Advocates, Scholars & Maintaining the International Criminal Law Momentum” by Wayne Jordash QC, international human rights and humanitarian lawyer and founding partner of Global Rights Compliance
“Law & Film: Curating Rights Cinema” by Emma Sandon, Senior Lecturer in Film and Television at Birkbeck, University of London, and a Research Fellow to the Chair for Social Change, University of Johannesburg
Moderator: Michelle Farrell, Senior Lecturer in Law in the School of Law and Social Justice, University of Liverpool

Abolition of the Death Penalty
“International Law & the Death Penalty: A Toothless Tiger, or a Meaningful Force for Change?” by Sandra L. Babcock, Clinical Professor of Law at Cornell Law School and Faculty Director of the Cornell Center on the Death Penalty Worldwide
The Right to Life & the Progressive Abolition of the Death Penalty by Thomas Probert, Research Associate, Centre of Governance & Human Rights, University of Cambridge (on behalf of himself & co-authors Christof Heyns & Tess Borden)
Moderator: Jon Yorke, Professor of Human Rights and Director of the Centre for Human Rights at Birmingham City School of Law

Closing
Introduction by John Louth, Editor-in-Chief of Academic Law at Oxford University Press
Remarks by William A. Schabas OC MRIA

Reception

With thanks to our host, 9 Bedford Row, & cosponsor, Oxford University Press

◊ ◊ ◊

Cross-posted at Diane Marie Amann. Tomorrow’s post: Details on Arcs of Justice: Essays in Honour of William A. Schabas (Margaret M. deGuzman and Diane Marie Amann, eds.) (OUP 2018) (The hardback may be ordered via OUP or Amazon, and the book’s also available on Kindle.)

The OTP’s Preliminary Examinations & Burundi’s Withdrawal from the ICC

20171208_150558

The Prosecutor of the International Criminal Court (“ICC”), Ms. Fatou Bensouda, launched the Office of the Prosecutor (“OTP”) Report on Preliminary Examination Activities 2017 at this year’s 16th Assembly of Parties (“ASP”) to the ICC. The report provides an overview of her Office’s preliminary examination activities that have been conducted between 1 October 2016 and 30 November 2017 in relation to ten situations under consideration for possible investigation. The OTP is responsible for determining whether a situation meets the legal criteria established by the Rome Statute of the ICC to warrant investigations. In order to do so, the OTP conducts a preliminary examination to decide whether there is a reasonable basis to initiate an investigation into a situation at hand. The OTP is required to assess and verify several criteria before it can initiate an investigation. Firstly, the crimes must be committed after 1 July 2002, which is the date on which the Rome Statute entered into force. Secondly, the alleged crimes must have been committed on the territory of a State Party or by a national of a State Party. An option that does not rely on the territorial or nationality linkage of the alleged perpetrator is when the United Nations Security Council directly refers a case to the ICC. Thirdly, the question of whether the crimes committed are within the jurisdiction of the Court as stated in Article 5 of the Rome Statute, which are the crime of genocide, crimes against humanity, war crimes and the crime of aggression, must be answered prior to deciding whether to launch an investigation. Fourthly, the OTP is required to assess whether genuine investigations or prosecutions for the same crime were undertaken at the national level; if not, then the ICC can consider proceeding to the investigation stage. Lastly, the OTP needs to ask itself whether the opening of an investigation would serve the interest of justice and of the victims of international crimes. In this regard, it is noteworthy that any individual, group or State may send relevant information to the OTP regarding alleged crimes falling under the jurisdiction of the Court. In Phase 1 of the preliminary examination process, the OTP accepts information on alleged crimes and has to date received more than 10,000 communications, which are vital for forming the initial basis of the Office’s preliminary examinations.

Side Event: Launch of OTP Report on Preliminary Examination Activities 201720171208_140951

The Report on Preliminary Examination Activities (2017) highlighted that seven situations remain under ongoing examination, three of which are under Phase 2 (Subject-Matter Jurisdiction), namely: Gabonese Republic, Palestine, and Ukraine. Four situations are at a more advanced stage: Colombia, Guinea, Iraq/UK, and Nigeria are currently in Phase 3, which focuses on admissibility, comprising both complementarity and gravity. This year, three preliminary examinations were completed: Afghanistan, Burundi, and Registered Vessels of Comoros, Greece and Cambodia. The OTP report aims to promote public awareness and transparency regarding the Office’s preliminary examination process and related activities.

The completed preliminary examination on the situation in Burundi led to the ICC Prosecutor to open an investigation on 25 October 2017 to investigate alleged crimes against humanity, such as murder and attempted murder, imprisonment or severe deprivation of liberty, torture, rape, enforced disappearance and persecution. Unfortunately, in response to the announcement of the ICC’s investigation, Burundi decided to withdraw from the Rome Statute, which made it the first State Party ever to withdraw.

Side Event: Burundi in the aftermath of the opening of an ICC Investigation20171208_173425

Its withdrawal took effect on 27 October 2017; therefore, the ICC can only exercise its jurisdiction over those crimes that were allegedly committed in Burundi or by nationals of Burundi between December 2004 and 26 October 2017. Burundi’s actions are of utmost concern to the ASP and the ICC, which is evident in the fact that a whole side event on this day was dedicated to Burundi in the aftermath of the opening of an ICC investigation. The Court’s impartiality and independence has often been questioned, especially by some African leaders who accuse the court of being hijacked by influential Western states and acting as a proxy for foreign-led government change. The ICC’s independence and impartiality has been under attack and changing the perception among African members and non-member states will be one of the major tasks that the newly elected ASP President, H.E. O-Gon Kwon, will need to address during his Presidency.

 

This blogpost and Annika’s attendance to the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

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ICC Assembly of States Parties Symposium: Day 5

The General Debate concluded today – Day 5 of the International Criminal Court Assembly of States Parties (ASP) in New York. The last of the Member States made statements, including Nigeria and Tunisia. Nigeria urged dissatisfied states not to withdraw and, rather, to recall the reasons underlying their states’ original support for the Court.

Observer states Ukraine, China, Iran and the United States also made statements. The United States rejected any ICC exercise of jurisdiction over US personnel absent the government’s consent or a UN Security Council referral, including in any potential investigation into US troop conduct in Afghanistan. China implicitly critiqued the Court, for example in statements such as “It is necessary for the Court to strike a balance between its two core values, namely, peace and justice. Justice should not be pursued at the expense of peace and reconciliation” in conflict zones.

The General Debate ended with statements by civil society groups. The Convenor of the

HRW at Genral Debate

HRW Speech at General Debate

Coalition for an ICC, Bill Pace, urged states to be proactive rather than reactive. Among the many NGOs to speak was Human Rights Watch, which pointed out that “in this Assembly, there has been too little attention to addressing non- cooperation and we urge strengthened efforts in this area next year.” Human Rights Watch also expressed concern about the budget discussions: “Human Rights Watch is deeply concerned that the current budgeting process for the ICC will continue to result in inadequate funding for the effective implementation of the Court’s mandate.”

Day 5 also included consideration of the ICC’s 2018 programme budget request. Registrar Herman von Hebel presented the 2018 request (147.9 million Euro, up 4.4% from 2017) based on the needs of the various ICC organs, and the Chair of the ASP’s Committee on Budget and Finance presented the CBF’s recommendations on the budget request (2% growth over 2017). States also participated in informal consultations on the ASP’s omnibus resolution, titled Strengthening the ICC and the ASP.

Annika Weikinnis contributes a blog post today on side-events concerning the Prosecutor’s preliminary examinations and the aftermath of the Burundi withdrawal. Annika  is currently enrolled in the Graduate Studies in Law program at the University of Ottawa (Canada) and conducts research in the field of international criminal law, inAnnika particular the involvement of transnational corporations in international crimes. She holds a Master’s degree in Politics and International Relations from the University of Aberdeen and a Master’s degree in Law and Politics of International Security from the Vrije Universiteit Amsterdam. Attending the ASP16 is an invaluable experience for her, academically and professionally, and she hopes to gain further insights in the organisation, processes and issues concerning the ICC. Heartfelt welcome, Annika, to the IntLawGrrls ICC ASP Symposium!

 

Preliminary examinations: A closer look at one of the most important parts of the ICC Office of the Prosecutor’s work

Sara Wharton and Rosemary Grey

Preliminary examinations are in the limelight following the release of the ICC Office of the Prosecutor (OTP’s) 2017 Report on Preliminary Examination Activities, which was presented today at the 16th session of the ICC Assembly of States Parties in New York.

Additionally, recent developments in several situations under preliminary examination have garnered attention, including the Prosecutor’s decision to seek authorisation to open investigations in Afghanistan and Burundi and affirmation of her 2014 decision not to proceed with an investigation into war crimes allegedly committed by members of the Israel Defence Forces on the vessels of Comoros, Cambodia, and Greece.

In this period of heightened interest in ICC preliminary examinations, we want to take the opportunity to share some findings of our forthcoming study, which tracks and compares data across all 25 preliminary examinations that have been publicised to date.[1]

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