Out of Africa. Israel is Referred to the International Criminal Court

Like a shot out of the dark, Israel has been taken to the International Criminal Court by Comoros. Yesterday, Comoros submitted a referral in accordance with article 14 of the Rome Statute concerning the Israeli attack on the so-called Gaza Freedom Flotilla in May 2010. The referral letter is available on the Court's website.

In the days and weeks to come, there will be much chattering on the blogs and in law journals about the legal details. Is the referral admissible? Does it meet the gravity threshold? What about complementarity? Should the Prosecutor invoke the ‘interests of justice’ and decline to proceed?

But ultimately, like all of the other decisions to proceed or not to proceed with an investigation, politics will determine the outcome. Judging by the history of the Office of the Prosecutor, any contrived technical argument will suffice in order to avoid the Court addressing the situation in Palestine. Because everybody knows that the Prosecutor is terrified to deal with the situation in Palestine. It risks upsetting the increasingly cordial relationship between the Court and the United States.

The Comoros referral has some intriguing and unique legal features. Like previous applications of article 14, it is a ‘self-referral’. Comoros is referring a situation that took place on its own territory. The MV Mavi Marmara, where the main attack took place, is a Comoros vessel. In accordance with article 12 of the Rome Statute a ship flagged in Comoros is deemed to be part of its territory.

But as the referral makes clear, Comoros is referring the situation on its own territory because of the acts of another State. In that sense, it is really the first referral directed by one State against another. And it is also of interest because although Comoros is not and cannot charge Israel with the crime of aggression, the referral is entirely related to an aggressive act by one State against another (and in which the alleged aggressor will, of course, claim to have been acting in self defence).

In her statement yesterday acknowledging the referral, the Prosecutor indicated that she will now consider whether or not to initiate an investigation. There is no obligation on the Prosecutor to proceed. No referral, whether it is by a State party or by the Security Council, compels the Prosecutor to proceed. In practice, the Prosecutor has accepted every referral to date. This is likely to be the first referral that the Prosecutor refuses.

Should she decide not to investigate, article 53 becomes operational. It entitles Comoros to seek revision of the Prosecutor’s decision by a Pre-Trial Chamber. That too would be a first for the Court, because there has never before been such a proceeding. We do not know how the judges will interpret article 53. But we have some hints, because the nature of the revision is quite similar to what is contemplated by article 15, when the Prosecutor seeks authorisation to investigate a situation. Decisions by the Pre-Trial Chambers pursuant to article 15 indicate a very deferential and permissive attitude. Judges have been very reluctant to attempt to second-guess discretionary decisions by the Prosecutor with respect to priorities of prosecution. We can expect something similar if this case ever gets to the article 53 stage.

The Prosecutor does not need the referral in order to address the situation in Palestine. The Prosecutor can exercise jurisdiction over the territory of Palestine since 1 July 2002 as a result of Palestine’s declaration of January 2009.

Although no official statement has been issued, it seems that the Prosecutor does not consider the January 2009 declaration to be effective. Readers will recall that after studying the Palestinian declaration for more than three years, the former Prosecutor issued a statement saying that the issue of whether or not Palestine was a State was to be determined by the General Assembly and not the Prosecutor. The General Assembly recognized Palestine as a full observer State in November 2012. The Prosecutor does not seem to dispute the fact that recognition by the General Assembly resolves the issue of Palestinian statehood for the purposes of article 12.

But the position she is taking by which a new declaration is required is based on the erroneous proposition that Palestine became a State when the General Assembly admitted it in November 2012. The General Assembly resolution provides confirmation that Palestine was a State. Under general principles of law, statehood is determined according to several criteria, but membership, whether as a full member or observer, in the General Assembly is not one of them. Taking the position that Palestine must issue a new statement is just one further example of the Prosecutor’s desire to avoid having to deal with the substance of the situation, something driven by the political perspective mentioned above.

The most famous and important of the observer states is Switzerland. It was admitted by the General Assembly in 1948 and remained in that status until becoming a Member State in 2002. Would the Prosecutor consider that Switzerland was not a State prior to 1948?

The General Assembly admission of an observer state is simply a fact to be weighed when assessing if an entity really is a State in accordance with article 12. Switzerland didn’t need observer status in the General Assembly in order to become a State. And perhaps one of the other observer states, the Holy See, isn’t really a state at all, despite recognition by the General Assembly.

Even if Palestine were to submit a new declaration, the Prosecutor might very well deny it any retroactive effect. She has not yet taken a position on this. But given her anathema to things relating to Palestine, I would expect her to claim that Palestine can only give jurisdiction to the Court from November 2012, when it ‘became’ a State according to the reasoning her Office appears to have adopted.

This would be a very perverse position. Because if Palestine cannot give jurisdiction over its territory back to 1 July 2002, then who can? Surely not Israel, because we are talking about occupied territory. Is it really thinkable that the Prosecutor would recognize what would be, in effect, a black hole that is immune to the jurisdiction of the Court? This cannot be consistent with the object and purpose of the Rome Statute. 

The flotilla events are probably the weakest basis for Palestine-related prosecutions at the International Criminal Court. The best focus for the Prosecutor – and something she can do on her own, without any referral, and by acknowledging the validity of the January 2009 declaration – is an investigation into the ongoing settlement policy of Israel. It is unlawful in international law and a crime under the Rome Statute. A decision by the Prosecutor to investigate the situation of the settlements might help the world to address a situation of festering and intolerable illegality. And while it might anger a few powerful states, it would do wonders for the Court’s reputation in Africa and elsewhere in the Global South. 

Thanks to Maria Varaki.

Raphael Lemkin

Here's an interesting short film clip with a brief interview of Raphael Lemkin, the man who devised the word genocide. The conclusion shows Herbert Evatt, who was president of the General Assembly in 1948, announcing the adoption of the Genocide Convention.
Thanks to Diane Amann.

MOOC in Human Rights

Please go to https://moocfellowship.org/submissions?discipline=2&language=en and cast your vote in support of the on line course I am proposing on human rights. There is a development fellowship available, offered by iversity and Stifterverband für die Deutsche Wissenschaf, but there are many contenders and it seems that the number of votes cast and Facebook 'likes' is important. Please urge your friends to vote as well. I thank you in advance for your support.

Fairness Conference at Middlesex

Summer School on Children and Human Rights

Chemical Weapons: Is it a Crime?

The conflicting reports about Syria’s alleged use of chemical weapons raises an interesting point about international crimes. It is being widely reported that the use of chemical weapons is a war crime. But is it?

The Rome Statute contains four relevant provisions, in article 8, where a complete and exhaustive list of war crimes is set out:

(xvii) Employing poison or poisoned weapons;

(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

These provisions only apply to international armed conflict and are therefore not applicable to the Syrian civil war. And it isn’t really complete or exhaustive. But it is what the Rome Conference could agree upon.

At the Kampala Review Conference, held in June 2010, amendments were adopted extending the same provisions to non-international armed conflict. The amendments have only been ratified by a few States and obviously not by Syria, which is not a State Party to the Rome Statute, nor by some of the States that are accusing Syria of committing war crimes through the use of chemical weapons in a non-international armed conflict. But they also haven’t been ratified by some of the States that are now condemning Syria.

Even assuming that these provisions do apply, in a general sense, to the conflict in Syria, - the consequence of a Security Council resolution, for example - do they prohibit chemical weapons? The issue was certainly debated at the Rome Conference where the relevant paragraphs in article 8 were adopted. In the course of negotiations, only a week before the conclusion of the Conference, the Bureau proposed a text that was the ancestor of article 8 containing six paragraphs dealing with prohibited weapons, not four as in the final version. The two that did not make it to the final draft read as follows:

iv) Bacteriological (biological) agents or toxins for hostile purposes or in armed conflict;

(v) Chemical weapons as defined in and prohibited by the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction;

The penultimate draft that contained reference to bacteriological and chemical weapons also contained a broad prohibition on weapons that cause unnecessary suffering and superfluous harm and that are indiscriminate. Indeed it was broad enough to cover nuclear weapons.

The removal of an explicit reference to bacteriological and chemical weapons coincided with a removal of the broad general provision capable of covering nuclear weapons. This was a compromise designed to appease some non-nuclear states, who felt that excluding nuclear weapons alone smacked of hypocrisy. After all, chemical weapons were the ‘poor man’s’ weapon of mass destruction.

By an exercise of interpretation, it is possible to view chemical weapons as falling under the category of ‘poison or poisoned weapons’ or ‘asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices’. Of course it is also arguable that nuclear weapons are also ‘poison weapons’.

Perhaps the most likely place to find chemical weapons is in the fourth paragraph of the relevant provision in article 8 of the Rome Statute, paragraph xx, with its reference to ‘weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate’. That provision refers to an annex to the Statute. But alas, there is no annex. In preparation for the Review Conference, Belgium initially proposed the adoption of such an annex but there was insufficient interest from other States.

Of course, there should be an annex. And it should contain both chemical and nuclear weapons. That is the only position consistent with the general principle set out in 1869 in the St. Petersburg Declaration. And the vast majority of States Parties to the Rome Statute would have no difficulty with such a prohibition.

The deficient provisions in the Rome Statute on prohibited weapons are best explained by the fact that the most powerful States possess important stockpiles of weapons of mass destruction that are potentially far more harmful to humanity than isolated chemical weapons used on the battlefield. Not only do they merely retain nuclear weapons; these States continue to develop them, in defiance of their obligations under international law and in particular under the Non-Proliferation Treaty. And all the while, they continue to lecture Iran and North Korea and any other rogue upstart.

Also of interest in this discussion is the observation that the two United Nations ad hoc tribunals established to deal with essentially non-international conflicts, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone, do not have any jurisdiction over the use of prohibited weapons. Only the Statute of the International Criminal Tribunal for the former Yugoslavia has a text on the subject. Article 3 of its Statute lists as a crime the ‘employment of poisonous weapons or other weapons calculated to cause unnecessary suffering’. It has not been prosecuted, however, nor has the Tribunal ever had to decide whether this war crime, whose text is drawn from rather archaic instruments that only concern international armed conflict, may also apply to non-international armed conflict.

Finally, the Chemical Weapons Convention of 1993 requires a mention. It of course prohibits the use of chemical weapons, but it does not make their use an international crime. It has been widely ratified, but I did not find either Syria or Israel on the list of States Parties.

The point here is not to suggest that Syria’s use of chemical weapons, if that is indeed the case, constitutes innocent or excusable behaviour. If the allegations are true, Syria has perpetrated an appalling atrocity. But the rather facile manner by which political leaders in powerful states that possess and continue to develop nuclear weapons describe the use of chemical weapons as a war crime does indeed smack of hypocrisy. One of the States condemning Syria on the matter of chemical weapons possesses a substantial arsenal of nuclear weapons, some of them aimed at Syria itself.

We should express outrage on the existence of such appalling illegal weapons. But rather than echo the United States, the United Kingdom and Israel, who themselves stockpile horrible weapons of mass destruction, we should insist that they put their money where their mouths are.

Ashgate Research Companion

Leiden University Wins International Criminal Court Moot

A team of Leiden University students has won the International Criminal Court moot, held at the the Court. Leiden's team consisted of: John Doyle, Sophie Beelaerts van Blokland, Uzay Aysev, Alexander Wills, Joe Holt, Daniel Huck and Adrian Plevin. Thirty-seven teams from twenty-seven countries competed in the moot. For the Court's press release and a photo of the team with Judge Howard Morison, who presided over the final, see here.

 

Irish Famine Tribunal

The Irish Famine Tribunal is being held this weekend at Fordham University School of Law, in New York City. It is a bit of a cross between a Russell Tribunal and a student law moot. The Tribunal is considering whether the responsibility of the United Kingdom – acknowledged by Prime Minister Tony Blair in 1997 (‘Those who governed in London at the time failed their people through standing by while a crop failure turned into a massive human tragedy’) – can be examined using modern-day definitions of genocide and crimes against humanity.

From left, Adam Assahli, Elaine Marum, Justice Hardiman, Judge Ingram, myself and Conor Campbell.

The case was presented as a simulated application by Ireland against the United Kingdom before the International Court of Justice. The three-judge panel consisted of Justice Adrian Hardiman of the Supreme Court of Ireland, Judge John G. Ingram of the Kings County Supreme Court in Brooklyn, and myself. Written submissions are to follow and a decision will be issued in the future (don’t worry, we won’t take as long as the International Criminal Tribunal for Rwanda or the Special Court for Sierra Leone).

The issues raised are quite fascinating, and are not without relevance to the attribution of international criminal responsibility in other situations of famine, such as the Ukrainian famine of the 1930s and the massive deaths from disease and starvation under the Khmer Rouge in the 1970s. The discussions also looked at the responsibility of a government to assist its own people when circumstances that are not of its making bring terrible hardship. In 1846, the prevailing Whig policy applied by the United Kingdom Parliament seemed rooted in the view that it was not the government’s responsibility to care for its people, and that if they wanted to survive the crisis they would have to give up their possessions and work for their food. Yesterday’s discussion was reminiscent of some of the Tory drivel we hear today about welfare reform.

Another fascinating issue concerns the application of the international criminal law framework to the 1840s. The United Kingdom government today takes the view that the notion of genocide cannot be applied to events prior to 1948, when the Convention was adopted, but its cynical justification is driven by a fear of angering Turkey were it to label the 1915 attacks on the Armenians with the ‘g-word’. Yet in 1915, when it was at war with Turkey and not concerned about irritating a NATO ally, the United Kingdom condemned ‘these new crimes of Turkey against humanity and civilisation’. If the United Kingdom recognised the concept of crimes against humanity in 1915, why not in 1846?

Even if the crimes themselves can be deemed applicable to events 170 years ago, that still leaves the question of whether the United Kingdom’s neglect of the Irish people during the famine was actually intentional conduct intended to destroy the Irish people, in whole or in part, and therefore genocide according to the modern definition, or whether it constituted a ‘widespread or systematic attack’ on the Irish people, and therefore crimes against humanity. I expect these issues to be addressed in the final judgment.

An interesting discussion of the historiography of the Irish famine was published by Breandán Mac Suibhne last week in the Dublin Review of Books.

Drafting history of the Universal Declaration of Human Rights

My new book on the drafting history of the Universal Declaration of Human Rights will be published officially by Cambridge University Press on Thursday. It actually consists of three books and 3,150 pages, and comes in a box. I hope everyone will buy the books, but they are expensive so I won't begrudge friends for not laying out the dosh, but librarians should certainly be informed about getting them for their collection. Information on the books is available here. It is possible to buy them at a significant discount using the discount code of the recent American Society of International Law conference: ME3ASIL.

Celebrating arrival of the book. Cambridge editorial director Finola O'Sullivan came down to London with an advance copy, where we met at the Parcel Yard to toast the birth of the new baby. From left: Penelope Soteriou, myself, the book, and Finola.

The three volumes contain all of the United Nations documents related to the drafting of the Universal Declaration of Human Rights. It is a project that has been dear to my heart for more than 15 years. In 1998, some students made for me a set of photocopies of the relevant documents, but it was not complete and moreover it was not indexed in any way. And I lost the copies when I moved to Ireland a few years later.
There is also, on the website of the United Nations, a collection of scanned documents related to the drafting of the Declaration. But it too is not really complete, and there is no way of searching the materials by keyword or article.
For the first time, then, the relevant materials are assembled in a comprehensive and systematic way, and they are thoroughly indexed. There are also detailed annotations to assist the reader.
My belief is that this will make the drafting history of the Universal Declaration of Human Rights much more accessible to scholars and researchers. And this may lead to new understandings and insights.
The Universal Declaration of Human Rights is a hugely important document whose significance has often been understated by statements like 'it's not binding'. The Declaration is one of the bases of the Universal Periodic Review undertaken by states at the Human Rights Council. It is also a source of common understandings of human rights that contributes to our appreciation of customary international law and 'fundamental principles of humanity'. These ideas are developed in the lengthy introduction to the three volumes.
Besides the bound volumes, Cambridge will issue this soon in an electronic version.