On October 4

On this day in  ...
... 1949, U.S. immigration authorities barred Margaret Fairley (left) and her husband, Professor Barker Fairley, a Goethe expert based at the University of Toronto, from entering the United States. He had been invited to lecture at Bryn Mawr, a Pennsylvania women's college founded in 1885 – coincidentally, the year of Margaret's birth in England. The ban followed an incident in March of the same year, when the couple were detained in New York, where they were attending the Cultural and Scientific Conference for World Peace – according to The New York Times, following that detention, Margaret Fairley was "ordered out of the country at once." She'd been born Margaret Keeling in England, and was educated at Oxford, "finishing with a “first” in English though denied her degree because she was a woman." She moved to the University of Alberta, Canada, which permitted her to complete her degree. By 1913, she was that university's dean of women; she resigned to marry and move to Toronto. (credit for painting by Frederick Varley) While living for part of the 1930s back in England, according to the University of Toronto website,

'Margaret fell in with Marxist activists and when the family, missing Canada, returned in 1936, she joined the Communist party here and remained a member until she died.'

In the course of her life – she died in 1968 – she was a teacher, a campaigner for women's, social, and human rights, and an editor of the magazine New Frontiers, published by Canada's Labour-Progressive Party. Margaret Fairley, who is commemorated by a statue in a small park near the University of Toronto, edited 2 books, The Spirit of Canadian Democracy (1946) and Selected Writings of William Lyon Mackenzie (1960). She was also the maternal grandmother of our colleague William A. Schabas, and an inspiration to him, as he wrote in a touching post this past International Women's Day.

(Prior October 4 posts here, here, here, here, and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'But when an international court proposes to send a man to jail for fifty years, and one of four judges who has heard the entire case thinks the man should not even be convicted, this should concern us.'

–  Our colleague William A. Schabas (left), in a post on his blog, in which he details the latest episode in the saga that began moments after a Trial Chamber of the Special Court for Sierra Leone had announced its conviction of former Liberian President Charles Taylor: that chamber's alternate judge, El Hadji Malik Sow (right) of Senegal, attempted to give voice to his own concerns with the verdict, and his microphone was cut off. Since then, Judge Sow's been subjected to internal disciplinary proceedings, a consequence of which was his absence from the sentencing hearing. (IntLawGrrls' posts on these events here and here.)
This past Thursday, an Appeals Chamber of the Special Court rejected a defense motion to disqualify judges from taking part in Taylor's appeal of his conviction and 50-year sentence, for the reason that those judges had participated in postconviction proceedings involving Judge Sow. That Appeals Chamber panel comprised 1 alternate and 5 permanent judges. Notably, as Schabas reports, 1 of those permanent members of the Appeals Chamber, Judge Gelaga King (right) of Sierra Leone, filed a separate decision recording his objections to a proceeding against Judge Sow, and further reporting that he, Judge King, had "walked out" of a judges' meeting rather than "taking any further part." Schabas' post considers this internal turmoil, yet concentrates his commentary on the concern stated in the quote with which this quote begins: that for the 1st time in the known history of international criminal justice, conviction appears to rest on less than unanimity of all judges who evaluated guilt or innocence in light of the factual evidence presented to them at trial. Referring to Sow's cut-off discourse, Schabas argues:

'His views matter. If they are not considered by the Appeals Chamber, they may well be taken into account by history. For the time being, we should insist on knowing more about them. As a starting point, the Appeals Chamber might request that Judge Sow submit his full opinion on the case so that it can be taken into account.'

Making aggression punishable before the ICC: Liechtenstein leads way & Germany's on road

"Liechtenstein geht international voran," boasted a headline in today's edition of the largest daily newspaper in Vaduz.
Occasioning this claim that "Liechtenstein leads the way internationally" was the announcement that yesterday, on the 67th anniversary of the end of World War II, Liechtenstein became the 1st state to ratify the Kampala amendments that would make the crime of aggression fully punishable by the International Criminal Court.
Martin Meyer, Deputy Prime Minister of the centuries-old principality, where today a little over 36,000 people occupy a space about the size of Washington, D.C., said:

'Der rechtliche Schutz vor Angriffskriegen ist gerade für Kleinstaaten von enormer Bedeutung. Ich bin stolz, dass wir heute unsere Vorreiterrolle zu diesem Thema fortsetzen können'.

That is:

'Especially for small states, legal protection against wars of aggression is of enormous importance. I am proud that today we can continue our leadership on this issue.'

Liechtenstein indeed has been a leader in moving toward definition and, perhaps, eventual activation, of the crime of aggression – an offense placed within ICC jurisdiction via the 1998 Rome Statute, by dint of Article 5(1), yet, by dint of Article 5(2), not then activated. (Here is IntLawGrrls' series of posts on the crime of aggression.)
Christian Wenaweser, the Ambassador Extraordinary and Plenipotentiary who's been Liechtenstein's Permanent Representative to the United Nations since 2002,served as chair of negotiations respecting the crime of aggression from 2003 to 2009 and, in his capacity as President of the Assembly of States Parties from 2008-2011, as leader of the ICC Review Conference. That 2010 Uganda meeting, on which many IntLawGrrls then posted, produced a package of amendments not only on the crime of aggression, but also on extension of certain bans on poisonous gases to non-international as well as international armed conflicts.
Thus in New York yesterday, Wenaweser's successor as Assembly President, Estonian Ambassador Tiina Intelmann, said as she accepted Liechtenstein's ratification documents from him:

'It is particularly fitting that Liechtenstein, which played such a crucial role in the negotiation of these amendments, should be the first to ratify them. I encourage other States Parties to do the same and hope for the earliest possible entry into force of the amendments.'

(credit for above (c) UN photo by Benoit Marcotte) To date, San Marino is the only other country to have ratified any part of the Kampala package – not the crime-of-aggression part.
But there is movement toward the goal that Intelmann articulated.
In Berlin in March 14, the German Ministry of Justice hosted a "VStGB konferenz" – that is, a conference aimed at exploring how the crime-of-aggression package might be incorporated into the statute known by its German acronym VStGB, which implements the Rome Statute domestically.
In opening the conference, the Ministry's State Secretary, Dr. Birgit Grundmann (left), referred to the negotiated agreement embodied in the Kampala package, and said:

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The situation in North Korea is a clarion call for the Security Council and other U.N. members to show courage in a case of political complexity. There can be few places in the world where the human rights situation is more egregious and yet more overlooked than North Korea.'

-- A joint op-ed in the International Herald Tribune by Geoffrey Nice, who served as chief prosecutor in the trial of Slobodan Milošević at the International Criminal Tribunal for the former Yugoslavia, and Professor William A. Schabas, Middlesex University, London. They lead by recount the story of a victim of the regime, Shin Dong-hyuk, as told in a brand-new book, Escape from Camp 14.  Nice and Schabas place this story in the context of he pattern of human rights abuses in the country formally known as the Democratic People's Republic of Korea. (map credit) Then, to quote the op-ed's title, they urge the international community to Put North Korea on Trial. As Nice and Schabas note, it's a goal realizable only by the Security Council, given that North Korea does not belong to the Rome Statute of the International Criminal Court.

Rights as Usual business & human rights blog

Thank you to IntLawGrrls for inviting me to contribute again, this time to introduce my new blog, Rights as Usual, which is now in the "connections" list at right.
Business and human rights is a fast moving and challenging area at the crossroads of law, policy, and the more business-oriented discipline of Corporate Social Responsibility, which tends to put international lawyers such as myself outside of their comfort zones. As the principles have yet to crystallise into binding international law, a lot of the writing over it is somewhat experimental from a strictly legal point of view. I have tried to explore these muddy waters via Twitter for the past 2 years, but the topic decidedly deserves more than micro-posts of 140 characters.
For these reasons, I have decided to create my own blog, in which I plan to explore the subject of business and human rights, focusing on the legal aspects but without the constraints of formal legal academic writing.
Other colleagues at my home institution, Middlesex University, who are working in human rights, such as Professor William Schabas and Dr Jérémie Gilbert, will occasionally contribute guest posts, reflecting developing expertise in the area.
Finally, since many of my colleagues (and myself!) are French speakers, the blog features a section “en Français,” and from time to time the blog posts will be in French.
Happy reading!

Genocide as the narrative of violations of socio-economic rights

The definition of genocide is utterly intricate. It is inherently arbitrary, protecting certain groups from destruction while leaving out others without providing a clear justification for this discrimination.
At the same time, and however unfortunate this arbitrariness may be, the conventional definition of genocide is probably more carved in stone that any other legal definition. It was not not even revisited in Rome in 1998 during the negotiations that led to adoption of the treaty establishing the International Criminal Court.
Most likely, back in 1948 the drafters of the Genocide Convention did not envisage that the Convention would be applied to a range of new situations.
As remarked by Professor William A. Schabas (left) some ten years ago, at the Convention’s fiftieth anniversary, the drafters of the Convention probably had in mind to erect a monument looking back at the Holocaust, rather than that they could conceive that the Convention would apply to genocides yet to occur. (credit for 2005 photo) As a result, the legal definition of genocide was tailored on past events rather than forward looking.
The definition in a way is the legal narrative of the Holocaust, rather than that it was specifically created for future application to yet unknown situations that were in essence comparable to the Holocaust. Even though the Holocaust has not been repeated in scale, form, and character, the qualification of genocide has been invoked in quite a number of situations, ranging from the massacres in Rwanda, Srebrenica, and Darfur, to the annihilations of Indians in the Americas and the transfer of Aboriginal children in Australia.
The question is:
► Are all these situations truly in essence comparable and is the qualification of genocide the most adequate one?
Or phrased in more abstract terms:
► To what extent is the definition of genocide as included in the Genocide Convention applicable to new situations, and what can recent jurisprudence teach us about the future application of the Convention?
In The Meaning of the Word 'Destroy' and the Implications for the Wider Understanding of the Concept of Genocide, an essay recently posted on SSRN, I have argued that the essence of the legal definition of genocide is captured in the word ‘destroy’, which is part of the mental element, namely that an act be committed with the specific intent to destroy the group.
The understanding of the word ‘destroy’ has been subject to different interpretations in the jurisprudence of the ad hoc Tribunals. The predominant and traditional view – as adhered to by the International Law Commission (here), by the International Criminal Tribunal for Rwanda, and mostly by the International Criminal Tribunal for the former Yugoslavia – is that the word destroy implies

'the material destruction of a group either by physical and biological means and not the destruction of the national, linguistic, religious, cultural or other identity of a particular group.'

On the Job! 2 senior intlaw professorships

(On the Job! pays occasional notice to interesting intlaw job notices)

International law professors will want to take note of 2 senior-level positions for which applications are now being sought:
► The Chichele Professorship of Public International Law at the University of Oxford, Faculty of Law, in association with All Souls College at the same English university.
Established in 1859, the professorship always has been held by a man. The notice e-mailed via SSRN states:

'Applications are particularly welcome from women and black and minority ethnic candidates, who are under-represented in academic posts in Oxford.'

The Chichele Professor "will play a major role ... in nurturing and developing the intellectual climate of legal studies, by publication and teaching, and by participation in the wider scholarly life of the subject." Duties of the position are detailed here.
Deadline for applications is April 2, 2012; details on how to apply here. The job will start as early as October 1, 2012.
► Professor of Human Rights Law and Director of the Irish Centre for Human Rights, Faculty of Law, National University of Ireland, Galway. Inaugural holder of this position, from 2000 to 2011, was our colleague William A. Schabas, who writes at his blog:

'This is a wonderful opportunity for an established scholar to lead the Irish Centre for Human Rights through its second decade. The job is full of opportunity and excitement. Please spread the word so that the best candidates apply for this great job.'

Deadline to apply for this position is April 12, 2012; details here.

Immunities & (inter)national customs

'The ICJ’s decision reinforces the observation that, just as successful revolutions vindicate themselves with hindsight, international law-breakers only become international law-makers when their legal “transgressions” attract a sufficient following to establish a new rule of customary international law.'

So writes California-Hastings Law Professor Chimène Keitner (below right), an IntLawGrrls contributor, in a superb new ASIL Insight. It analyzes the February 3 judgment in Jurisdictional Immunities of the State (Germany v. Italy), in which the International Court of Justice ruled by overwhelming majority that Germany enjoyed sovereign immunity against Italian lawsuits seeking compensation for forced labor endured under the Nazis more than half a century ago. (Prior IntLawGrrls posts on the case here and here.) (map credit)
In passages that will no doubt interest students competing in this year's Jessup International Moot Court competition, Chimène notes that the ICJ's ruling, grounded in an understanding of customary international law obligations, seems at odds with:
► 1st, a U.S. Supreme Court position, evident in Republic of Austria v. Altmann (2004) (prior post), that one state grants another sovereign immunity as a matter of comity; and
► 2d, the state-sponsors-of-terrorism exception contained in Section 1605A of the pertinent U.S. statute, the Foreign Sovereign Immunities Act.
Hence the reference to "international law-breakers" in the quote at top.
A different and also well-worth-reading analysis of the Immunities judgment is that of our colleague William A. Schabas. Focusing on implications for human rights law, Bill's post is available here.

Independent Panel on ICC Judicial Elections

The Independent Panel on ICC Judicial Elections, about which we've blogged before (here, here and here), has recently issued a statement and report on the upcoming elections for new judges for the International Criminal Court. Richard Goldstone chairs the panel, aided by IntLawGrrls alumna Patricia Wald as Vice-Chair. (credit for photo of ICC headquarters at The Hague)

The Independent Panel, which is composed of international law and judicial experts from around the world from both civil and common law systems, assessed judicial candidates for the ICC based on the requirements of the Rome Statute. A creature of the NGO Coalition for the International Criminal Court (CICC), the Panel's goal is to provide an independent assessment of whether each judicial candidate fulfils the qualifications prescribed by Article 36 of the Rome Statute. Most importantly, this provision provides that:

(a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.

(b) Every candidate for election to the Court shall:

(i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings [List A]; or

(ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court [List B]...

The provision also aims to ensure geographic and equitable gender representation. On the latter criteria, we noted earlier that no women were originally nominated for a spot on the ICC bench. Moreover, there were very few individuals designated as qualified pursuant to List B. In the final list of nominations, two women appear:

• Miriam Defensor-Santiago (right) of the Philippines (prior IntLawGrrls posts); and
• Olga Venecia Herrera Carbuccia of the Dominican Republic.

In terms of the Report's conclusions, it is clear that this Panel was not destined to be a rubber stamp. The Panel sought additional information where candidate dossiers were incomplete and reviewed outside information in addition to the materials provided by the Assembly of State Parties (ASP) Secretariat and the CICC (including a detailed questionnaire). On the basis of this work, they reached the following conclusions:

Qualified List A:

Rosolu John Bankole Thompson (Sierra Leone)

Vinod Boolell (Mauritius)

Modeste-Martineau Bria (Central African Republic)

Bruno Cathala (France)

Eduardo Cifuentes Munoz (Colombia)

Chile Eboe-Osuji (Nigeria)

Robert Fremr (Czech Republic)

Olga Venecia Herrera Carbuccia (Dominican Republic)

Antoine Kesia-Mbe Mindua (Democratic Republic of Congo)

Howard Morrison (United Kingdom)

Hamani Mounkaila Nouhou (Niger)

Qualified List B:

Wladyslaw Czaplinski (Poland)

Miriam Defensor-Santiago (Philippines)

Unqualified

Ajmi Bel Haj Hamouda (Tunisia) - List A (for lack of necessary relevant experience in criminal law proceedings)

Javier Laynez Potisek (Mexico) - List A (for lack of direct professional experience in criminal law)

George A. Serghides (Cyprus) - List A (for lack of the necessary relevant experience in criminal law proceedings)

Jorge Antonio Urbina Ortega (Costa Rica) - List B (for lack of experience in either humanitarian law or human rights)

All the dossiers can be found here.

In reaching these conclusions, the Panel made clear:

The Panel does not endorse, oppose or rank candidates. The Panel's determination of 'Qualified' or 'Not Qualified' for each candidate is based strictly on the requirements of the Rome Statute.

The Panel also made a number of important suggestions regarding the nomination process, such as that the Assembly of States Parties:

• work with governments to ensure that their nomination packets are complete and comply with the Statute
• consider what to do about potential conflicts of interest involving elected judges who are not immediately called for service
• address the legal and policy questions around the fact that there maybe two judges of the same nationality on the bench if outgoing judges are retained for continuing proceedings
• consider utilizing age restrictions or health assessments to ensure that candidates will be able to serve their full terms
  
• adopt a voluntary code of conduct for ICC judges to ensure they do not make remarks in public about legal issues on which they may be required to rule
• establish its own internal expert Panel to vet candidates

Our colleague Bill Schabas adopts a critical stance toward the results, arguing that the review was too mechanistic and formulaic. He also takes issue with the conclusion that Judge Bankole Thompson, a judge on the Special Court for Sierra Leone, is "qualified" in light of his dissent in the CDF case (beginning at p. 21339 here, and continuing here). In it, he conflated the jus ad bellum and the jus in bello to argue that members of the goverment-supported Civil Defence Forces should be exonerated, not withstanding their involvement in international crimes, in light of the fact that they were fighting a "just war." Under the circumstances, Professor Schabas would choose the Cypriot family law judge over someone "with such a misguided view of personal responsibility for atrocity crimes."
The elections to fill the 6 open spots are scheduled to take place during the next meeting of the Assembly of States Parties, December 12-21, 2011, in New York. It promises to be interesting ...

Post-Kampala piecemeal

This week in New York, the United Nations accepted deposit of the 1st instrument ratifying a Kampala amendment to the 1998 Statute of the International Criminal Court.
No, not that amendment.
And that may be the rub.
Ratified was a Kampala amendment to ICC Statute Article 8(2)(e). Upon entry into force, it would authorize war-crimes jurisdiction over the use of specified dumdum bullets and poisonous weapons -- not only over international armed conflicts, as the statute already provides, but also in armed conflicts not of an international nature.
San Marino (flag at left) became the 1st state party when Antonella Mularoni, its Foreign Minister, delivered San Marino's instrument of ratification to U.N. Legal Counsel Patricia O'Brien.
Appears no other state took this step during Monday's annual U.N. treaty event in New York -- notwithstanding that well over a year has passed since the ICC Review Conference in Kampala.
And Article 8(2)(e) was supposed to be the easy change.
Far more innovative, of course, were other Kampala amendments about which we've frequently posted -- the package of crime-of-aggression amendments that, if ratified, would authorize the ICC to pursue individuals believed responsible for the offense. (Our colleague Bill Schabas blogged last week "that Germany hopes to be the first to ratify the aggression amendments.") The crime last was prosecuted internationally in the post-World War II trials at Nuremberg and Tokyo.
Posts by various IntLawGrrls have indicated potential legal complexities within that package; my own 2010 miniseries on the issue is here, here, and here.
In my view, a single key will unlock complexities:
Political will.
Right after Kampala, some predicted that proposed Article 8 bis and the other aggression provisions soon would be part of the ICC Statute. By the package's own terms that can't happen unless 30 ICC states parties, and even then not until the year 2017.
At the end of the Review Conference, 2017 seemed quite a ways off.
It's less so now that 15 months have lapsed. Yet only 1 state has ratified even 1 piece -- a small, easy piece -- of the Kampala amendments.
Compare that with developments after the 1998 Rome Conference: Senegal became the 1st state party to the ICC Statute within 6-1/2 months. By the 15-month mark -- that is, by the end of September 2000 -- fully 18 states had joined the ICC. (credit for above right photo of ICC's Hague headquarters)
The comparison points to a slowgoing, piecemeal ratification process, and so provokes questions about political will with regard to preventing and punishing the crime of aggression.

How to deepen shallow ICC judges pool

Of the six vacancies, two should be filled by candidates from Latin America and the Caribbean to ensure the court retains a broad geographical representation. But that region has only put forward three candidates, one less than the minimum required to hold a poll.

So wrote Financial Times reporter Caroline Birnham Wednesday in a story whose title says it all: "The Hague struggles to find judges."
The struggle, specifically, is to find qualified women and men to compete in the International Criminal Court judicial election to be held in December. As IntLawGrrl Beth Van Schaack discussed in posts available here, fully a third of the bench will turn over this year. (credit for photo of ICC building)
The ICC extended the judicial nominations deadline by 2 weeks, Birnham wrote in Financial Times; she added, "lack of candidates ... could force another extension."
As our colleague William A. Schabas put it on his blog:

'It's an astonishing situation.'

Too-few numbers aren't the only concern. Outside of the Philippines' Senator Miriam Defensor Santiago (1 of only 3 persons nominated on account of human rights expertise, and 1 of only 2 women nominated), few of the 19 names listed are hugely familiar. Bruno Cathala of France is an exception, though his international experience has been in the role of registrar, and not as an international judge. Sierra Leone's Rosolu John Bankole Thompson has served as presiding judge of the Special Court for Sierra Leone -- in that position, he dissented from the Court's conviction of Sierra Leonean ex-government officials.
One looks in vain for a candidate with the background of some who've served on the International Court of Justice. There's no Higgins or Simma or Greenwood. Nor any Patricia Wald, Richard Goldstone, or Cecilia Medina Quiroga, to name the 3 former judges tasked with vetting the current ICC candidates.
The names of many qualified potential candidates jump to mind. It's to be hoped that ICC states parties, which need not nominate their own nationals, have considered them all.
If, as Article 36 of the ICC Statute now requires, nominations must come from states parties, it's up to states parties to step up and recruit qualified candidates.
If states parties don't step up, it may be time to consider amending the statute to permit civil society to play a more direct role in this essential process.

Write On! In honor of Bill Schabas

(Write On! is an occasional item about notable calls for papers)

It's this 'Grrl's great honor to serve on the editorial board of a volume taking shape to pay tribute to a colleague and mentor, William A. Schabas (below right).
Papers are now being sought for the volume, whose lengthy title reflects Bill's many areas of expertise: Public International Law, International Criminal Law & International Human Rights Law: A Critical Evaluation of the Scholarship of Professor William Schabas. It is expected to be published by Cambridge University Press in late 2012/early 2013.
The principal coordinators of the project are Dr. Kathleen Cavanaugh, Senior Lecturer at the Irish Centre for Human Rights, National University of Ireland, Galway, which Bill founded and, in little more than a decade, established as a pivotal human rights thinktank, and Dr. Joshua Castellino, Professor of Law and the Head of Law Department at Middlesex University in London. They write:

Over the last half a century the discourse of public international law has been enlivened by a growing emphasis on international human rights law, spawning robust debate and discussion, and also the creation of an imperfect system of accountability for crimes against humanity, war crimes and genocide. In the last two decades in particular, the scholarship and activism of Professor William Schabas has had a significant impact on the growth and direction of the normative frameworks around these subjects. In addition through his own engagement in different theatres, Professor Schabas has also contributed to the spread of implementation models worldwide, and has supervised a growing number of successful doctoral contributions that have further enhanced the quality of the debate. His sterling role on the Sierra Leone Truth Commission is but one manifestation that that his contribution has spread well beyond the realms of the classroom: recognition that is also reflected in the bestowal of the Order of Canada upon him for his contribution to human rights.

(His most recent honor: an honorary doctorate from Northwestern, incidentally my alma mater, at a ceremony that also honored comedian Stephen Colbert.) For the volume, which will mark Bill's 60th birthday, they welcome essays of 8,000 to 10,000 words, in English or French, from scholars, practitioners, judges, and others. Contributions should critically engage with, assess, and discuss the impact of Bill's extensive body of publications. The coordinators explain:

'We seek this in the belief that the best testament to a scholar is a critical engagement with their work.'

Given the many issues and interests reflected in Bill's writings, a range of topics is likely to be included in the volume. Examples:
► Genocide
► War crimes
► Crimes against humanity
► Creation and functioning of the International Criminal Court
► Capital punishment
► Reservations to treaties
► Jus cogens norms
► Minority rights
► Religion and human rights
► Truth commissions
► Reparative justice
► Literature and human rights
Anyone wishing to be considered for publication should submit -- either to Cavanaugh (far left) at Kathleen.Cavanaugh@nuigalway.ie or to Castellino (near left) at J.Castellino@mdx.ac.uk -- a 500-word abstract. It should outline the general thrust of the proposed contribution and also highlight the aspect of Schabas’ scholarship that would be engaged.
Abstracts must be submitted no later than October 1, 2011.
Vetting the submitted abstracts will be a panel of editors that includes yours truly and many other professors, including Andrew Clapham (Geneva), Françoise Hampson (Essex), Douglas Cassel (Notre Dame), Dinah Shelton (George Washington), Christine Chinkin (London School of Economics), David Scheffer (Northwestern), David Wippman (Minnesota), David Kretzmer (Hebrew University), Emmanuel Decaux (Panthéon-Assas), and Alain Pellet (Paris Ouest).
Authors of selected abstracts will be notified by mid-December 2011, and full papers must be completed by the strict deadline date of May 1, 2012.
Please contact Cavanaugh or Castellino at the above e-mail addresses for more information on this well-deserved tribute project.

Bensouda on ICC prosecutions

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post)

At last week’s annual meeting of the American Society of International Law, participants were treated to a luncheon presentation by Fatou Bensouda (right), Deputy Prosecutor of the International Criminal Court and candidate for the top job when Luis Moreno Ocampo’s term expires next year. Bensouda presented some opening remarks and then was ably questioned by our own Diane Marie Amann, as well as a few audience members.
In her luncheon dialogue, which is available for web viewing here, Bensouda began by providing an overview of the work of the International Criminal Court Office of the Prosecutor (OTP) in the most active situations before the Court. Illustrating her talk was the map at bottom, which depicts the 114 states parties to the Rome Statute in dark blue, signatory states in light blue, selected situations in yellow, and preliminary examinations in green.
With regard to Libya, Bensouda stated that the OTP has notified those with formal and de facto authority, including Gaddafi, that their crimes will be investigated. The OTP has made clear that warning civilians to leave before attacking civilian areas does not relieve those involved of criminal responsibility. Bensouda emphasized that the OTP is seeking to be as transparent as possible in its dealings with the Libyan leadership.
In discussing the various situations, Bensouda revealed her vision of the ICC’s role in the global legal order: to prevent crimes through deterrence and by “sending messages” about the types of offenses the international community will not tolerate.
In discussing the OTP’s work with regard to the post-election violence in Kenya, for example, Bensouda asserted that the prosecutions will prevent crimes by “sending the message” that those who gain power by violence will be held accountable.
Similarly, she stated that the prosecution of those who killed peacekeepers in Sudan “sends an important message that the Court supports peacekeeping;” and the trial of Thomas Lubanga for recruiting child soldiers in the Democratic Republic of Congo “signals” the seriousness of that crime.
Bensouda also mentioned a situation in which the OTP is seeking to prevent crimes through incapacitation of key actors. She asserted that the arrest last fall of Callixte Mbarushimana, leader of the rebel group the Democratic Forces for the Liberation of Rwanda, was an effort to “destabilize” that organization and thus prevent crimes in Eastern Congo.
Bensouda also described the OTP’s approach to deciding which situations of alleged international crimes the ICC should investigate. The process of determining whether to pursue a formal investigation has become known as the “preliminary examination.”
Last October, the OTP issued a Draft Policy Paper on Preliminary Examinations. Bensouda promised that the final policy statement would be issued soon. Under Article 53 of the ICC Statute, the preliminary examination phase requires the OTP to determine whether a “reasonable basis” exists to proceed in a situation. This “reasonable basis” analysis has three components. It requires the OTP to assess whether:
► (1) crimes within the ICC’s jurisdiction appear to have been committed;
► (2) potential cases within the situation would be admissible (that is, they are sufficiently grave and meet the complementarity requirement that no State with jurisdiction is already acting in good faith); and
► (3) prosecution would not contravene the “interests of justice.”
The most interesting thing about the OTP’s draft policy on preliminary examinations is that it purports to disavow any role for prosecutorial discretion in deciding which situations to investigate. Whereas an earlier draft policy paper talked about the OTP “selecting” situations to investigate, the 2010 paper takes the position that the OTP must investigate if the statutory criteria are met.
Bensouda’s comments confirmed this approach. She noted that when the office began operations, Colombia and the Democratic Republic of Congo were the “gravest” situations within the Court’s jurisdiction; however, no investigation was opened in Colombia because that country was pursuing some national prosecutions. She also reiterated the OTP’s position that no investigation was undertaken with regard to the war crimes committed by British soldiers in Iraq because they were not sufficiently grave to be admissible.
As I have written elsewhere, this assessment seems mistaken – surely war crimes resulting in the deaths of even a small number of civilians are admissible before the ICC. The decision not to investigate the Iraq situation makes more sense if articulated as an exercise of the prosecutor’s discretion to focus on the most serious situations available. The OTP’s current policy, however, seems to preclude such an approach. Moreover, when questioned about the Court’s selection criteria, Bensouda seemed to admit that gravity is sometimes primarily a matter of numbers of victims – as in the Iraq situation – and at other times is conceived as relating more to the nature and impact of the crimes – in particular, what “signal” a particular prosecution is going to send.
Finally, Bensouda stated that there is no timeline for concluding preliminary examinations, and opined that the act of engaging in a preliminary examination itself has a deterrent impact. Echoing her current boss, Bensouda also emphasized that the OTP “has a legal mandate with no flexibility to adjust to political considerations,” a position that has been challenged recently by writers such as Bill Schabas and James Goldston.
Bensouda concluded that the ICC represents a “paradigm shift” from the Westphalian model of state sovereignty to one of international scrutiny and the rule of law.
In the questioning, Bensouda was pressed hardest on the problems associated with the ICC’s exclusive prosecution of African cases. She noted that such criticisms often overlook the victims of the African conflicts, and stated that she would “not apologize” for seeking to give victims a voice. She also sought to justify the emphasis on African situations by reference to the requirements of the ICC Statute, in particular the principle of complementarity. She noted that the OTP always encourages national proceedings but that unfortunately those are “not happening in Africa.” She reminded the audience that three of the African situations were referred by the affected governments themselves.
Nonetheless, when asked whether the ICC’s focus on Africa mitigates in favor of an African as the next prosecutor Bensouda, a native of the Gambia, was (unsurprisingly) supportive!

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'[I]f you want to confine your energies to big fish, you need larger holes. Otherwise, you'll spend all your time picking out the sardines, minnows, and plastic bottles. One of the greatest challenges of international criminal justice is the selection of cases. Resources must be focused using the concept of 'those who bear the greatest responsibility' or something similar.

-- Our colleague William A. Schabas, Professor of Human Rights Law, and Director of the Irish Centre for Human Rights, National University of Ireland-Galway, in "Prosecuting Dr Strangelove, Goldfinger, and the Joker at the International Criminal Court: Closing the Loopholes," published in a Leiden Journal of International Law forum on the policy element included in the ICC definition of crimes against humanity. At issue, to be precise, is Article 7(2)(a) of the Rome Statute, which requires that the requisite anti-civilian attack occur "pursuant to or in furtherance of a State or organizational policy to commit such attack." Schabas' concluding essay constitutes a biting smackdown of proposals to relax the requirement.

ICC referral: sweet, or bittersweet?

Some sweet irony in the referral of the Gadhafi regime to the International Criminal Court.
As watchers of the Hague-based court at left well know, longtime Libyan leader Moammar Gadhafi long has been a thorn in the ICC's side.
It's not just that Libya's not a party to the Rome Statute of the ICC. As the map below shows, the same holds true of many of its Arab neighbors -- and of certain very large states to the west and east of Libya.
Rather, Libya's particularly prickly relation to the ICC stems from Gadhafi's efforts to exerts his brand of leadership on the African continent.
To cite an example: It's no accident that, as Pittsburgh Law Professor Charles Jalloh, among others, has noted, the 1st African Union resolution condemning the ICC's pursuit of Sudanese President Omar al-Bashir occurred at a meeting in Libya.
Libya also is a member of the Human Rights Council, formed in 2006 as a means better to promote human rights within U.N. member states and throughout the world.
The Human Rights Council broke with Libya on Friday, as we posted here and here. Reports that the Gadhafi regime had ordered aerial attacks and street-thuggery against its own, unarmed civilians compelled the Council unanimously to urge the General Assembly to suspend Libya's U.N. membership.
Last night the Security Council went giant steps further, not only imposing sanctions and an arms embargo, but also referring the Libya matter to the ICC. The vote was unanimous among the T-10 and P-5 alike: ICC nonparty China put aside earlier-reported misgivings, and the United States, another ICC nonparty, openly supported an ICC referral for the 1st time ever.
Here're the pivotal paragraphs of Security Council Resolution 1970 (February 26, 2011):

The Security Council,
....
Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41,
....
ICC referral
4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;
5. Decides that the Libyan authorities 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 with the Court and the Prosecutor;
6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;
7. Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;
8. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily; ...

The resolution zeroes in on Gadhafi -- and what little seems left of his regime in the wake of many ministerial defections to the antigovernment side.
Worth noting: The caveat concerning a national of a nonparty state present at the scene by authorization of the Council -- presumably, a person deployed as a U.N. peacekeeer. Evidence that such a person took part in criminal behavior must be referred to the state of nationality; by the terms of ¶6, absent a waiver the ICC would have no jurisdiction over such a malefactor. (Thanks to our colleague Kevin Jon Heller (his OJ post here) for pointing out my initial, erroneous interpretation.)
Some cause for concern: The foisting of the costs of ICC investigation onto the ICC and states that choose to contribute. That provision in ¶8 hints at certain lingering reluctances, and serves to remind of the deaf ear that the Security Council has turned to the ICC Prosecutor's pleas for aid in effecting the arrest of international fugitive and still-incumbent President Bashir.
It's to be hoped the Security Council's newfound spine will translate into helping the ICC as it endeavors to respond responsibly to yet another weighty referral. It's also to be hoped that the ICC will rise to the "test," to quote our colleague William Schabas; that is, it "must inspire confidence in its ability to provide a meaningful, significant and above all prompt response to the crisis."
If not, today's irony may prove more bitter than sweet.

(Credit for 2010 map indicating: in grey, states, like Libya and China, that have neither signed nor ratified the ICC Statute; in orange, states, like the United States, Sudan, and Russia, that at one time signed but never ratified; and in green, full states parties to the ICC Statute. Though slightly out of date -- it shows 111 rather than the current 114 states parties -- the map is accurate with regard to the states discussed in this post, a version of which is cross-posted at The Huffington Post.)

Read On! ICL Handbook

(Delighted to welcome back alumna Nadia Bernaz, who contributes this Read On! guest post)

It is a pleasure to come back on IntLawGrrls (my previous posts are here and here) to announce the Routledge Handbook of International Criminal Law, published last month.
I co-edited the Handbook with Professor William A. Schabas, Director of the Irish Centre for Human Rights at the National University of Ireland, Galway. We wanted to put together a book that would provide a reader new to the area with an introduction to this fast-growing area of law. But, at the same time, we did not want to edit a mere textbook. The whole idea was to give our contributors (who include a number of IntLawGrrls besides myself: Fiona de Londras, Leila Nadya Sadat, Margaret deGuzman, and Nancy Amoury Combs) the freedom to express their opinions, as scholars, on the areas they were asked to write on.
We are really happy with the results as our contributors have manage to deliver concise, original and provocative papers which, combined together in one single publication, make this book greatly relevant to students, scholars and practitioners working in the field.
Here is the table of contents:

1. Introduction, William Schabas and Nadia Bernaz

Part 1: Historical and Institutional Framework
2. Trial at Nuremberg, Guénaël Mettraux
3. The Tokyo Trial, Neil Boister
4. The Trials of Eichmann, Barbie and Finta, Joseph Powderly
5. The Ad Hoc International Criminal Tribunals: Launching a New Era of Accountability, Michael P. Scharf and Margaux Day
6. The International Criminal Court, David Scheffer
7. Hybrid Tribunals, Fidelma Donlon

Part 2: The Crimes
8. Genocide, Paola Gaeta
9. Crimes Against Humanity, Margaret M. deGuzman
10. War Crimes, Anthony Cullen
11. Aggression, Nicolaos Strapatsas
12. Terrorism as an International Crime, Fiona De Londras
13. Drug Crimes and Money Laundering, Robert Cryer

Part 3: The Practice of International Tribunals
14. Understanding the Complexities of International Criminal Tribunal Jurisdiction, Leila Sadat
15. Admissibility in International Criminal Law, Mohamed M. El Zeidy
16. Defences to International Crimes, Shane Darcy
17. Participation in Crimes in the Jurisprudence of the ICTY and ICTR, Mohamed Elewa Badar
18. International Criminal Procedures: Trial and Appeal Procedures, Hakan Friman
19. Sentencing and Penalties, Nadia Bernaz
20. State Cooperation and Transfers, Judge Kimberley Prost
21. Evidence, Nancy Combs

Part 4: Key Issues in International Criminal Law
22. The Rise and Fall of Universal Jurisdiction, Luc Reydams
23. Immunities, Rémy Prouvèze
24. Truth Commissions, Eric Wiebelhaus-Brahm
25. State Responsibility and International Crimes, Eric Wyler and León Castellanos-Jankiewicz
26. International Criminal Law and Victims’ Rights, Carla Ferstman
27. Amnesties, Louise Mallinder
28. International Criminal Law and Human Rights, Thomas Margueritte
29. Conclusion, William Schabas and Nadia Bernaz

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The whole trial has been a nightmare since the disputes between judges and the prosecutor began in 2008. ... There appears almost a breakdown between the two sides.'

-- Our colleague William A. Schabas (below right), Professor and Director of the Irish Centre for Human Rights, National University of Ireland-Galway, in yesterday's New York Times article by Marlise Simons, entitled "For International Criminal Court, Frustration and Missteps in Its First Trial." Blogreaders will recognize the subject of Simons' critique as the on-again/off-again ICC proceedings about which we've frequently posted -- the trial of Congolese militia leader Thomas Lubanga Dyilo for illegal recruitment of child soldiers. Problems cited include:

► The "'ugly and healthy'" relations, as Schabas termed them, between judges and the prosecution, stemming out of an evidentiary dispute that implicates the due process rights of the accused.

► Continuing doubts about the strength of the case -- about whether "'all this time and effort was worthwhile,'" in the quoted words of Lorraine Smith, who's monitoring for the International Bar Association.

► The decision of the prosecution not to press charges of sexual crimes, a complaint voice by IntLawGrrls guest/alumna Brigid Inder, the Women's Initiatives for Gender justice representative who posted on the issue a while back.

Scarcely a welcome account on the same day that trial #2 commenced, against Jean-Pierre Bemba.

Kampala as cause to celebrate

(Part 3 of a 3-part series)

Celebration proved the closing theme of the 4th International Humanitarian Law Dialogs.
The final speaker at the recent upstate New York conference was William A. Schabas, Professor of International Human Rights Law and Director of the Irish Centre for Human Rights at the National University of Ireland-Galway. He asked whether the International Criminal Court Review Conference this summer in Kampala, Uganda (above left; credit), was "a moment of celebration or a disappointment." Schabas then answered his own question:

I think it is a great accomplishment.

The 1998 Rome diplomatic conference, Schabas recalled, had ended with a compromise on the extent of crimes the ICC may hear. Immediately operative were 3 core international offenses: genocide, crimes against humanity, and war crimes. Left for another day was a 4th: the offense of offensive warmaking, called crimes against peace in the Nuremberg era and known today as the crime of aggression. Article 5 of the Rome Statute grants the ICC jurisdiction over aggression, but postpones actual prosecution until adoption of a provision "defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime."
Negotiators worked on both definition and conditions for the next dozen years before the Assembly of States Parties adopted a package of proposed amendments, designed to give the ICC power to adjudicate allegations of aggression, at Kampala.
"At Kampala, it was not obvious even till the final minutes of the conference that it was going to succeed," said Schabas. "These were adopted in the final minutes of the conference, by consensus. If somebody had called for a vote, the votes probably weren’t there." (credit for photo from Schabas' Kampala blog, depicting him, center, "discussing the amendments to article 8 with the Bulgarian delegation")
The central achievement was the definition of aggression in proposed Article 8 bis. "It will not be immune to judicial interpretation," Schabas said, and predicted "a liberal approach to its application."
Strong supporters of criminal punishment for aggression have expressed concerns that the Kampala package affords too many ways to avoid implication in that crime. (For details on the intricacies of these amendments, see our crime of aggression series.)
Agression, Schabas allowed, "may never be prosecuted, which may not necessarily be a bad thing. It simply confirms a deterrent effect."
Schabas sought to allay concerns about obstacles to entry into force, including a requirement of ratification by 30 states and further review in 2017. "I don’t think they’re actually going to be very difficult – not anywhere near as difficult as the obstacles appeared in 1998, of getting the 60 ratifications." (This latter milepost was reached in April 2002, so that the Rome Statute entered into force fewer than 4 years after its adoption. Today 113 of the United Nations’ 192 member states belong to the ICC. Nonparties include China, India, Russia, Turkey, and, as discussed in yesterday’s post, the United States.)

Nor, in Schabas' opinion, does it seem likely that political leaders of states parties will exercise the possibility of opting out of exposure to ICC pursuit should they be accused of aggression.
Endorsing a prediction that, as posted, ICC Judge Hans-Peter Kaul made earlier in the Dialogs, Schabas said:

I think that within 6 years, 4 months, and a few days we will have a court with jurisdiction over aggression, capable of prosecuting the crime.

This is an important step for international criminal justice, Schabas maintained, along a trail blazed by Robert H. Jackson, Chief U.S. Prosecutor at the Trial of the Major War Criminals held in Nuremberg after the Allies defeated Nazi Germany:

Jackson saw the link between war and other crimes, that war is at the center of it, that war is responsible for it. To the extent that the adoption of that amendment revives this, that is good.

On the trail that Jackson blazed lies the question of state responsibility. According to Schabas, it’s a question that was entertained in the proposal of U.S. President George H.W. Bush and British Prime Minister Margaret Thatcher, following Iraq’s invasion of Kuwait, to set up a tribunal competent to hear charges of aggression. But that proposal never was implemented, and the question of state responsibility was not addressed by the international criminal fora that were set up after Cold War.
Why might some be less eager today to prosecutor perpetrators of aggression?

Schabas proffered 2 possible answers:
► 1st: "We have become a be more militarized than we should be." As posted yesterday, in an earlier Dialogs speech Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes Issues, had stressed, as a reason for caution in implementing the current Kampala aggression amendments as they now stand, that military intervention is at times necessary. Schabas replied:

Sometimes, yes. But nor would I exaggerate the importance of that, because war brings atrocities, inevitably.

►2d: Some civil society organizations seemed not to appreciate the significance of making aggression a crime punishable by the ICC. Schabas recalled: "I saw a banner that said, ‘Civil Society Welcomes Stocktaking,’" another aspect of the Kampala Conference. "Civil society should have welcomed the amendment on aggression."

Echoing Judge Kaul’s description of atrocities as the "excrement" of war, Schabas said of the crime-of-aggression package: "That’s the big piece. It shows that," despite some growing pains at the ICC, "we have a court that is healthy and productive and moving forward."
　
(Part 1 of this 3-part series on the 4th IHL Dialogs is here; Part 2 is here.)

Crimes Against Humanity: Enduring normative debates and doctrinal ambiguities

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post on Crimes Against Humanity, her forthcoming book chapter)

In the summer of 1997 I was a law student intern in the Legal Advisor’s Office of the Office of the Prosecutor of the International Criminal Tribunal for Former Yugoslavia at The Hague (left). When I walked in the door I was told that my assignment was to try to figure out the mens rea of crimes against humanity.

I was shocked. Surely someone who had spent more than a semester studying criminal law had already worked out the elements of crimes against humanity?

I spent a fascinating summer digging through cases decided under the Nuremberg Charter and under Control Council Law No. 10, as well as anything else I could get my hands on that might provide some insight into the mental element of crimes against humanity. (In those days, international criminal law sources were not as readily available as they are now.)

In the end I wrote an article that argued, as much on policy grounds as on precedent, that the mens rea should involve knowledge of the connection between the individual’s inhumane act and the broader attack against a civilian population. I like to think that my work influenced the adoption of the knowledge standard in the Appeals Chamber's July 15, 1999, Judgement in Tadić, but who knows?

I have remained fascinated with crimes against humanity ever since. One of the things that most intrigues me is that although this category of crimes is supposed to represent, along with genocide, the worst of the worst that people can do to each other, there is still lots of uncertainty about the elements and the theoretical underpinning of the legal prohibition.

The persistent uncertainties surrounding crimes against humanity are due in part to their historical origins. After World War II, the Allies wanted to prosecute the Nazis for crimes committed within German territory, conduct that was not covered by the laws of war. They found purchase for the new crime in the Martens Clause, part of the preamble of the Hague (IV) Convention Respecting the Laws and Customs of War on Land. Invoking natural law protections for any lacunae in the laws of war, the Martens Clause provides that persons not otherwise covered in the 1907 Convention

remain under the protection and rule of the principles of the law of nations, as they result from the usages among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

From those cryptic words, a new category of international crimes was born, without any diplomatic negotiations, drafting committees, or treaty ratifications.

This unusual history is only partly to blame for the persistent uncertainties that surround crimes against humanity, however. Figuring out what is meant by “crimes against humanity” has simply proven tricky for many smart people over the years. The International Law Commission debated the matter for decades, diplomats pondered the elements when they drafted the statutes of the ad hoc tribunals, and the international community spent years trying to work out a definition for the Rome Statute of the International Criminal Court. Nonetheless, the ICC definition, in some ways the culmination of all these efforts, remains controversial in a number of important respects. Furthermore, the normative justification for crimes against humanity continues to engage deep thinkers, as illustrated by a number of recent treatments by such scholars as David Luban, Larry May, and Richard Vernon.

I explore some of the persistent normative debates and doctrinal ambiguities that surround crimes against humanity in my contribution to the forthcoming The Routledge Handbook on International Criminal Law, edited by our colleagues, William A. Schabas and IntLawGrrl guest/alumna Nadia Bernaz. My chapter first provides an overview of the evolution of the definition of crimes against humanity, before surveying the competing normative visions of this category of crimes. A number of justifications have been advanced for international jurisdiction over crimes against humanity, including that they:

► Threaten international peace and security;

► Are particularly grave and thus shock the conscience of humanity;

► Involve actions of states or state-like organizations that would otherwise go unpunished; and

► Target groups rather than isolated individuals.

I conclude that ultimately none of these approaches provides a clear and complete rationale for categorizing certain inhumane acts as crimes against humanity.

I then explore the doctrinal debates that necessarily result from the lack of clear philosophical underpinnings for these crimes:

► What constitutes a widespread or systematic attack?

► Is a policy required and, if so, what kind?

► What defines a “civilian population”?

► What connection is required between the individual inhumane act and the broader attack?

Last year, a group of experts on crimes against humanity gathered in St. Louis at the invitation of Washington University Law Professor Leila Nadya Sadat, an IntLawGrrls guest/alumna, to consider a Convention on Crimes Against Humanity. Initially, there was much discussion of how to “improve” the definition for inclusion in the Convention. Ultimately, however, the organizers decided it would be unwise to create a new definition that would compete with that included in the Rome Statute and simply adopted the latter’s definition. Perhaps the debates about crimes against humanity will now subside, and the Rome Statute’s definition as interpreted by the court will gain general acceptance.

In the meantime, I’ll continue to be intrigued.