“Bemba and Beyond,” reflections on command responsibility

One week after the International Criminal Court Appeals Chamber acquitted a Congolese politician-warlord whom a Trial Chamber unanimously had convicted of rape, pillage, and other crimes, practitioners and scholars continue to debate the decision’s significance. Indeed, the case, Prosecutor v. Bemba, has been invoked in both the papers so far presented at the 2-day ICC Scholars Forum now under way at Leiden Law School’s Hague campus.

My own initial thoughts – concerned not about the decision’s fact-based details but rather to its refashioning of the legal doctrine of command responsibility – have been published at EJIL: Talk!, the blog of the European Journal of International Law. My post, entitled “In Bemba and Beyond,” discusses command responsibility as “a time-honored doctrine with roots in military justice and international humanitarian law.” Placing this appeals judgment in the context of other decisions, the post warns:

“Together, such rulings suggest a turn away from the goal of assigning responsibility at high levels, and toward a jurisprudence which acknowledges (with regret) the commission of crimes, yet holds no cognizable legal person responsible.”

Full post here.

(Cross-posted from Diane Marie Amann)

Women, accustomed to the International Court of Justice

Standing beneath the portrait of Dame Rosalyn Higgins, the 1st woman judge and 1st woman president of the International Court of Justice, are, from left: University of Georgia School of Law students Lyddy O’Brien and Evans Horsley; IntLawGrrl Kathleen A. Doty, now serving as Interim Director of Georgia Law’s Dean Rusk International Law Center; student Jennifer Cotton; and IntLawGrrl and Georgia Law Associate Dean Diane Marie Amann.

HAGUE –  A briefing at the International Court of Justice was part of today’s Hague leg of the Global Governance Summer School that we at the University of Georgia School of Law Dean Rusk International Law Center are co-presenting with KU Leuven Centre for Global Governance Studies. Providing insights into the work of the court was Dr. Xavier-Baptiste Ruedin (right), Legal Adviser for Judge Joan E. Donoghue. As IntLawGrrls well know, she’s one of three women who are now permanent members of the court, and one of only four in the court’s 72 years.

Recalling the photo at left, on which I posted a few years back, couldn’t resist making the “Women of the Global Governance Summer School” photo above.

Thus does international custom begin to crystallize.

 

 

‘Nuff said: Sebutinde on women judges, international courts

sebutinde_hires“I’ve often heard people say, even women say, during the campaign and after, that it’s not a big deal for a women to be on this court. They have no idea what a deal it is. It is a big deal.”

So commented Judge Julia Sebutinde, reflecting on her tenure at the International Court of Justice. She was quoted in “Africa’s most senior female judge: ‘Would these men even listen to me?’, a November profile published in South Africa’s Daily Maverick. Sebutinde has served on the court since 2012, following a lengthy U.N. election process; she is the 4th woman, and the 1st African woman, to be elected in the court’s 70-year history.

Sebutinde began her distinguished career as a lawyer and judge in her native Uganda. She also has served as a judge both on the Special Court for Sierra Leone and on the International Criminal Court. In the Daily Maverick article, she not only speaks of her work at the ICJ, but also offers criticism of current opposition to the ICC. (credit for ICJ photo)

Go On! ESIL – European Court of Human Rights Conference, 5 June

A one-day conference entitled The European Convention on Human Rights and General International Law is being organized jointly by the European Court of Human Rights and the European Society for International Law. The programme includes presentations by ten judges from the European Court of Human Rights, as well as presentations by judges from the International Court of Justice, and other judges and international law scholars.

The conference will take place on Friday 5 June at the premises of the Court in Strasbourg.

Program and more information here.

To register for this event, please send an email to Rose During (Rose.During [at] echr.coe.int) with your name and affiliation.

ICJ anti-whaling judgment appears to have whetted Japan opponents’ appetites

IWC latest logo 210x64Some lawmakers and lobbyists in Japan displayed their distaste for whaling bans this week with a whale-meat eat-in in Tokyo. The Japan Daily Press reported:

‘In an act of defiance against a recent ruling by the International Court of Justice (ICJ) halting the nation’s whale hunts, pro-whaling legislators and lobby group gathered on Tuesday to eat whale meat while pledging to continue what they call one of the country’s centuries-old traditions.’

Stoking these opponents’ appetite was the March 31 judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). (Prior posts here and here.) The Hague-based court held 12-to-4 that Japan had violated the 1946 International Convention on the Regulation of Whaling by granting permits to harvest 3 species of whales areasin an area of the seas known as the Southern Ocean Sanctuary. (In yellow on map at right; see p. 3 here.) Japan asserted that a scientific research exception to the Convention’s whaling ban justified the hunts. But a majority of the ICJ disagreed, in a ruling that Rutgers Professor Cymie Payne analyzed in a recent ASIL Insight. (credit for above logo of the International Whaling Commission, which monitors compliance with the Convention)

Yesterday, the Japan Times reported, Japan’s government announced that it would still engage in what it calls research whaling, albeit at a reduced rate and in regions other than the area of concern to the ICJ case. The report indicated that the decision to go forward marked a victory for Japan’s Fisheries Ministry and a defeat for its Foreign Ministry.

Particularly vocal among the opponents of the ICJ’s ruling has been the man who’s served as Fisheries Minister since last December: Yoshimasa Hayashi, a Harvard Kennedy School graduate. Hayashi spoke at the Tokyo banquet on Tuesday. And in a February interview with Japan Times, he explained his position:

‘Japan is an island nation surrounded by the sea, so taking some good protein from the ocean is very important. For food security, I think it’s very important … We have never said everybody should eat whale, but we have a long tradition and culture of whaling. So why don’t we at least agree to disagree? We have this culture and you don’t have that culture.’

Payne’s Insight agreed that, notwithstanding the March 31 issuance of the ICJ’s opinion, resolution of “fundamental cultural conflict[s]” awaits another day.

(Cross-posted from Diane Marie Amann)

Sharing in joy at annual WILIG luncheon

wiliguseWASHINGTON – The President of the International Court of Justice spoke for a banquet room full of women and men yesterday when he said, “I am just here to share in the joy of my colleagues.” The colleagues of whom ICJ President Peter Tomka spoke were Judges Joan E. Donoghue, Julie Sebutinde, and Xue Hanqin. The three women received the Prominent Women in International Law Award during the Women in International Law Interest Group luncheon, a highlight of every American Society of International Law annual meeting. As a special treat, retired U.S. Supreme Court Justice Sandra Day O’Connor dropped in to congratulate what she called “the women’s division” of the World Court bench.

Each of the honored judges made brief but inspiring comments.

Judge Donoghue, a career U.S. State Department lawyer before she joined the ICJ in September 2010, focused her comments on gender disparity in international law. In a recent three-year period, “93 percent of the arguments judges of the ICJ heard came from men,” Donoghue said, citing “A Study of Lawyers Appearing before the International Court of Justice, 1999-2012,” a forthcoming European Journal of International Law article by Cecily Rose, an IntLawGrrls contributor, and Shashank Kumar. In calling for greater diversity, Donoghue reasoned:

‘We are a world court, and international law in the main is for the world.’

Flashing a broad smile, Judge Xue said, “Indeed, this is a great honor and privilege to receive this award. It’s really like an higgOscar.” Xue, a former diplomat and law professor in China, is senior to Donoghue on the court by a few months. She recalled two women who had preceded both of them – Dame Rosalyn Higgins (right), whose service from 1995 to 2009 included abastid term as the ICJ’s President, and Suzanne Bastid (left), an ad hoc judge in the 1980s. Xue said:

‘Today we have so many women on the court not because today women are so much more intelligent, but because many international lawyers, men and women – I want to stress, men and women – have fought so hard for women’s rights.’

She accepted her award “as a tribute to all women legal professionals working in the field of international law, in recognition of their dedication to international peace and development.”

Having three women on the bench, Judge Sebutinde said, “is indeed a pinch-yourself moment for me.” Sebutinde’s pre-ICJ career included service as a judge in her homeland of Uganda and on the Special Court for Sierra Leone. Sebutinde thanked her colleagues Donoghue and Xue, stating, “I don’t think I would even have had the courage to apply if they were not there.” Sebutinde urged the court to increase public outreach. It is particularly important in her own region: “It is no secret I come from eastern Africa where there has been a lot of conflict for decades. The first thing that nations think of for settling their differences is war. It is never the International Court of Justice. So it’s a great responsibility, especially for judges who come from Africa, to sell the court to our part of the world.”

Adding their own words were audience members  – judges, law students, law professors, law librarians, and practicing lawyers – who took part in WILIG’s introduce-yourself tradition. Among them was International Criminal Court Prosecutor Fatou Bensouda, who recalled that as a young girl in Gambia, she had felt “helpless” after trying in vain to get police to protect a relative who was suffering domestic violence. “That is why I went to law school,” said Bensouda, another IntLawGrrls contributor. With reference to her current work, she added, “There must be accountability for those crimes, those who perpetrate those crimes. There must be rule of law.” Meanwhile, Washington-based attorneys Lucinda Low and Jennifer A. Hillman (a former member of the World Trade Organization Appellate Body) urged “constant vigilance” to ensure that once earned, gains in women’s participation are maintained.

A University of California-Davis Law student who hails from Kazakhstan summed up the celebratory spirit. Aigerim Dyussenova, known to her new WILIG friends as Aika, proclaimed:

‘This is the happiest day of my life.’

(In photo at top by IntLawGrrl Fionnuala Ní Aoláin, , IntLawGrrls and WILIG Co-Chairs Clara Brillembourg – a cardboard cutout of foremother Eleanor Roosevelt behind her – and Christie Edwards address the luncheon audience. Looking on are, from left, Judges Xue Hanqin, Joan E. Donoghue, and Sebutinde, along with Justice O’Connor. Cross-posted at Diane Marie Amann and ASIL Cables.)

Tempest over a Temple 2

The International Court of Justice recently issued a final judgment in The Case Concerning The Temple Of Preah Vihear, Request For Interpretation Of The Judgment Of 15 June 1962 (Cambodia v. Thailand) (the full case docket is here).  The judgment confirms (again) that the contested temple is on the territory of Cambodia, although leaves open the question of the territory around the temple.  Newspapers initially reported that both countries were satisfied with the ruling; now, it seems that Thailand wants to “negotiate further on the issue with Cambodia.”

Although not of the global importance as the situation in Syria or Iran, this case can be counted as a provisional win for the ICJ and for the processes of international dispute resolution.  As we’ve discussed in the past (here) the origins of the dispute can be traced to Thai domestic politics more than anything else.  The ICJ offered a neutral forum where the parties could outsource the dispute, give everyone involved some breathing room, and allow for the political situation in Thailand to normalize.  It remains to be seen whether nationalist forces within Thailand will accept the ruling, or insist that the government repudiate it.

Round 1 at the International Court of Justice

By way of background, the ICJ first took up the case upon a 1959 application by Cambodia after Thai forces occupied the temple area in 1954.  In that earlier opinion, issued in June 1962, the Court had declared that

the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia

notwithstanding that the temple, being on an escarpment, is geographically more accessible from Thailand and on the Thai side of a natural watershed that otherwise demarcates the border between the two countries.  Interestingly, the Court did not consider Cambodia’s cultural claims to the 11th century temple, which was built by the same Khmer royalty who are responsible for the spectacular Angkor Wat temple complexes.

The ruling was premised in part on interpretations of French maps, drawn up in 1907 by the Franco-Siamese Mixed Commission, which placed the territory in Cambodia.  Thailand had helped generate these maps, and subsequently used them for its own purposes until its 1954 occupation of the area.  Because Thailand had originally relied on the 1907 maps, suggesting an acceptance of their contents, international lawyers normally cite the ICJ’s 1962 judgment for the principle of estoppel, which the court identified as a general principle of law as contemplated by Article 38(1)(c) of its statute.

UNESCO Enters the Fray

Preah Vihear TempleThailand withdrew from the temple complex following the 1962 judgment.  Cambodia generally enjoyed uncontested sovereignty over the temple until recently.  In 2007, Cambodia successfully requested that UNESCO list Preah Vihear as a World Heritage Site, one of two in Cambodia.  The map Cambodia provided to UNESCO included part of the promontory on the Cambodian side of the border.  Nationalist political parties in Thailand protested the move, leading to Thailand’s withdrawal from both the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage and the World Heritage Committee.  These protests were part of the unrest that led to the 2008 Thai political crisis.  At the same time, Thai and Cambodian forces clashed along the borders, displacing thousands of civilians and requiring the temple to be closed to tourism.  In February 2011, Cambodia brought the conflict to the attention of the U.N. Security Council, which called for a permanent ceasefire to be established between the two parties and expressed its support for the efforts of the Association of Southeast Asian Nations (ASEAN) to find a solution.

Round 2 at the International Court of Justice

In April 2011, Cambodia requested that the ICJ, pursuant to Article 60 of its statute, interpret its original 1962 judgment.  Thailand advanced the argument that the original ICJ opinion related only to the temple itself (and the immediate vicinity), and not to the entire area surrounding it, where the recent clashes have occurred. Similarly, it argued that the Court did not delineate the entire frontier between the countries, which remains contested.  Cambodia countered that by determining that the temple falls within Cambodian sovereign territory, the ICJ by implication had determined the border between the two countries, at least with regard to the temple vicinity. Thai incursions, it contended, thus are akin to violations of Article 2(4) of the U.N. Charter. On the strength of the original ICJ opinion, Cambodia has argued that Thailand remains under a continuing and general duty – rather than a mere instantaneous duty applicable only in 1962 – to withdraw its troops from the area and to respect the integrity of Cambodian territory.

On July 18, 2011, the International Court of Justice ordered provisional measures in the Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand).  Made pursuant to Article 41 of the ICJ Statute, provisional measures are akin to the issuance of a preliminary injunction in U.S. litigation practice.  The measures were premised on findings that:

  • the rights asserted by Cambodia were at least plausible;
  • the rights from which the request for provisional measures derive from the earlier judgment;
  • a link exists between the alleged rights and the provisional measures sought; and
  • irreparable prejudice could be caused to those rights.

Thus the ICJ ordered, inter alia, that

all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia.

The Court then defined this zone with reference to particular coordinates. In addition, the parties were ordered to continue to cooperate with ASEAN and to allow observers to have access to the provisional demilitarized zone.

Round 3 at the International Court of Justice

The Court unanimously ruled this week on the merits of the dispute.  In keeping with its earlier provision measures, the Court held that the 1962 judgment only addressed a dispute regarding territorial sovereignty over the temple and area on which it is located; it was not delimiting the entire frontier or assigning sovereignty over the entire escarpment or nearby geographic features.  Nor did it indicate where Thai troops should withdraw to; rather, it simply indicated that they should withdraw from the temple area.

It remains to be seen whether nationalist forces within Thailand will accept the ruling, or insist that the government repudiate it.  There are apparently plans afoot to jointly develop the area.  Having been to Cambodia dozens of time, I still have yet to see this architectural and historical marvel, which has been generally off limits to tourists.  Let’s hope these moderate impulses prevail…