Monthly Archives: March 2013

‘A State Party shall not authorize any transfer of conventional arms …, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva salwConventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.’

So mandates Article 2(3) of the draft Arms Trade Treaty that delegates almost approved this week. The treaty would target trafficking in “conventional arms,” described to include a host of heavy weaponry (battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers) and ammunition, as well as small arms and light weapons. That last category’s a primary cause of the attacks on civilians described in the quoted provision. (credit for photo of small arms being destroyed) This provision, which was inserted in the course of this month’s negotiating conference in New York, thus would place, on countries consenting to it, a significant new limitation on global weapons sales.

Whether such a limitation ever will take effect remains to be seen.

In accordance with a request of the United States made back in 2009, approval of the text could come only by consensus.  By Thursday of last week, the United States, which had balked at prior texts in the past, got on board – but then Iran, Syria, and North Korea jumped off. As did many others (online statements included laments from Britain, France, Kenya, Pakistan, and Switzerland), the top U.S. delegate expressed regret at this turn of events:

‘Such a treaty would promote global security, it would advance important humanitarian objectives, and it would affirm the legitimacy of the international trade in conventional arms. Over two weeks of hard negotiations we reached a text that was meaningful, that was implementable, a text that did not touch in any way upon the Constitutional rights of American citizens, a text that the United States could support. We look forward to this text being adopted by the United Nations General Assembly in the very near future.’

A General Assembly vote on the question reportedly could come as early as next week. Should that happen, pursuant to Article 22(1), entry into force would await joinder by 50 states.

For the 1st time in history, a team made up solely of women will represent Ethiopia in the final rounds of the Jessup International Law Moot Court competition, which begin this Sunday, March 31, in Washington, D.C.

Competing for Ethiopia will be 5 women, Adiam Zemenfes, Aklile Solomon, Liilnna Kifle, Maya Fresenay, Mintwab Afework, all of whom are students at the Addis Ababa University School of Law. They’re coached by a 6th woman, Blen Sahilu. The team is described in an ASIL Cable by New York Law School student Kienan D. Christianson, as follows:

‘These women are exceptional students and are ranked at the top of their class. Moreover, they are dedicated leaders and volunteers for the campaign ‘To End violence against Women’ known as the ‘Yellow Movement.'”

Jessup_cup_webMore than 500 law schools from 80 countries are expected to compete in this 54th annual competition. Its namesake, Philip C. Jessup (1896-1986), was a U.S. State Department diplomat, taught at Columbia Law, and served as a judge on the International Court of Justice (during which time he delivered the endowed Sibley Lecture at my own home institution, Georgia Law). It is that court, the ICJ, that student litigants address in this simulation contest. (credit for photo of winners’ trophy)

But there’s a hitch: The Jessup does not fund competitors, so the team has been fund-raising to assure its way to D.C. These women are still $4,000 short of their goal. If you’d like to support their efforts, please donate here, typing “Ethiopian Moot Court team” in the “on behalf of” box. I did.

signIt seems like it was only yesterday that persons who favored marriage equality struggled for broad support. Even in the Left Coast bastion of Berkeley, we who planted “NO ON PROP 8” lawn signs awoke to find them taken, torn, or trashed. “Prop 8” was, of course,  Proposition 8, the ballot initiative that aimed to overturn a May 2008 state supreme court ruling that same-sex couples had a fundamental right to marry; in so doing, Prop 8 aimed to make a ban on such marriages part of the California Constitution. Six months after the initial ruling, on the same day in 2008 that Barack Obama was elected President, the same-sex marriage ban passed with 52% of the California vote. (photo credit)

But that was then, nearly 5 years ago. And now, as the U.S. Supreme Court takes up the constitutionality of Prop 8 and of the federal Defense of Marriage Act, America is in a very different place. Opposition to bans is ascendant in polls. Opponents are found on both sides of the political aisles – not only the lawyers trying the cases, but also the persons lending their names through amicus briefs or public statements. Notable in that last group are current President Obama, who’s moved to a position of support for gay marriage, and former President Bill Clinton, who’s repudiated DOMA though it was he who signed it into law back in 1996.

How these shifts will affect judicial deliberations is anyone’s guess, not the least because of the precise questions before the Court: Read Full Article

Now that the story of the surrender of Bosco Ntaganda has ended with his transport to the International Criminal Court detention center, and given that his 1st court appearance set for Tuesday morning, it’s high time to review the precise charges against this former fugitive.

drc_iturPursuant to a request by the ICC’s 1st Prosecutor, Luis Moreno-Ocampo, a 1st warrant sought the arrest of Ntaganda in August 2006. It described him as “Deputy Chief of General Staff for Military Operations” for the Forces Patriotiques pour la Libération du Congo. Conjoined with the Union des Patriotes Congolais, the UPC/FPLC operated as a political-military organization made up mostly of members of the Hema ethnic groups in Ituri. The UPC/FPLC were among several armed groups at war in that region, located in the eastern part of the Democratic Republic of the Congo. (credit for map (c) BBC) The 1st warrant alleged that Ntaganda was No. 3 in the group, led by UPC/FPLC President Thomas Lubanga Dyilo, a co-accused who was himself a Hema born in the region (in contrast with Ntaganda, who is said to have been born in Rwanda).

Only child-soldiering then was charged. Applying the standard required by Article 58(1)(a) of the Rome Statute of the ICC, judges thus issued the 1st arrest warrant after finding “reasonable grounds to believe” that Ntaganda was responsible for

► (i) enlisting,
► (ii) conscripting, and
► (iii) using to participate actively in hostilities

children under the age of fifteen, in an armed conflict of an international or a non-international charter, in violation of Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), respectively.

There matters lay for nearly six years – until last May 14, when the ICC’s second Prosecutor, Fatou Bensouda, sought to expand the list of charges against Ntaganda. Her request came 2 months to the day after the ICC conviction of Lubanga for unlawful enlistment, conscription, and use of underage children in an internal – but not in an international – armed conflict. As I wrote in an American Journal of International Law casenote, in its judgment of conviction, Trial Chamber I had refused to consider trial evidence of sexual abuse in Lubanga, for the reason that the indictment did not include stand-alone charges of sexual or gender-based violence. Expansion of the charges in Ntaganda could avoid a repeat of the result in Lubanga.

The request was granted on July 13 of last year. After reviewing allegations of attacks on non-Hema civilians in Ituri – “in Mongbwalu town and Sayo village between 18 and 23 November 2002” and “in Lipri, Bambu, Kobu and surrounding villages between 17 February 2003 and 2 March 2003” – a pre-trial chamber issued the 2d arrest warrant in Ntaganda. Judges agreed that the Prosecutor had shown the requisite reasonable grounds to believe the accused’s responsibility on 7 additional counts, which alleged crimes against humanity and war crimes in a non-international armed conflict, as follows:

► 1: Murder Constituting Crimes Against Humanity (Article 7(1)(a));
► 2: Murder Constituting War Crimes (Article 8(2)(c)(i));
► 3: Attack against a Civilian Population Constituting War Crimes (Article 8(2)(e)(i));
► 4: Rape and Sexual Slavery Constituting Crimes Against Humanity (Article 7(1)(g));
► 5: Rape and Sexual Slavery Constituting War Crimes(Article 8(2)(e)(vi));
► 6: Persecution Constituting Crimes Against Humanity (Article 7(1)(h)); and
► 7: Pillaging Constituting War Crimes (Article 8(2)(e)(v)).

The form of liability charged in both warrants is that set forth in Article 25(3)(a) of the ICC Statute, concerning commission of an offense

‘whether as an individual, jointly with or through another person, regardless of whether that other person is criminally responsible.’

As is not uncommon among ICC judges, the panel in the 2d arrest warrant decision referred to this as “indirect co-perpetrator” (para. 66), even though that label, derived from the practice of some ad hoc tribunals, does not appear in the ICC Statute. This is the same form of liability at issue in the first two ICC cases to be tried to verdict – not only in the March 2012 conviction in Lubanga, but also in the December 2012 acquittal in Ngudjolo. As is evident at para. 67 of the 2d arrest warrant decision, ICC jurisprudence has constructed a many-element test for whether Article 25(3)(a) has been satisfied. But in each of the cases tried to verdict, 1 out of 3 trial chamber judges objected to the burden that the construct places on the prosecution. (The opinion to this effect in Lubanga, by Judge Adrian Fulford of Britain is at pages 594-607 of the pdf document here; that in Ngudjolo, by Judge Christine Van den Wyngaert of Belgium, is here.) It is thus notable that at para. 66 of the 2d arrest warrant decision in Ntaganda, the pre-trial chamber “underline[d]” that its determination did “not prejudice any subsequent finding regarding the applicability of a different mode of liability at a later stage of the proceedings.”

tallinnThe Luddite in me casts a skeptical eye at arguments that some new technology is not regulated by old laws. After teaching cyberwar in a Laws of War class, for example, my takeaway was the key to resolving many legal questions is not to make new laws but rather to adapt laws on the books as needed (and only to the extent that adaption is needed). Thus it’s heartening to find kindred spirits among the drafters of Tallinn Manual on the International Law Applicable to Cyber Warfare. As Manual editor Michael Schmitt, who leads the International Law Department at the U.S. Naval War College, told an AP reporter:

‘”Everyone was seeing the Internet at the ‘Wild, Wild West.’ What they had forgotten is that international law applies to cyberweapons like it applies to any other weapons.'”

The 320-page Tallinn Manual, to be released in print on March 31 and already available in electronic format, is the product of 3 years of study by a score of legal experts, among them present and former members of the military as well as law professors and representatives of the International Committee of the Red Cross. The manual’s focus is cyberwarfare (but not economic cyber espionage, subject of the new ASIL Insight available here). Rules of cyberwarfare are analyzed against the backdrop of numerous international law concepts and doctrines, for example: sovereignty and jurisdiction; state responsibility; use of force and self-defense (the latter reportedly a topic of debate among the experts); and law of armed conflict issues including participation in the hostilities, permissible objects of attack, and means and methods of warfare.

This brand-new text is the instant go-to reference on the topic.

LocationMali.svgAn upcoming American Bar Association teleconference promises to enrich understanding of events in the Republic of Mali. (map credit) Entitled Dissecting the Crisis in Mali: From Political Intervention to International Criminal Responsibility?, it’s scheduled for 1-2:30 p.m. Eastern time next Wednesday, March 27. Organizers write:

‘From the March 2012 coup d’état in Bamako to the January 2013 French military intervention in the northern region, the crisis in Mali has gripped international attention and dominated the headlines for several months. Yet, often opaque in discussions is an understanding of the underlying causes of the conflict, the implications for regional stability and the importance of international accountability.

‘As the anniversary of the coup approaches, and the international intervention is extended, the challenges for Mali’s future are immense. In this teleconference an expert panel will dissect the complex crisis addressing key issues affecting the way forward including the timeliness and subject matter of investigations conducted by the International Criminal Court.’

Confirmed to lead the discussion will be Professor Mathurin C. Houngnikpo, Academic Chair, Civil-Military Relations at the African Center for Strategic Studies, a U.S. Department of Defense thinktank located at Fort McNair in Washington, D.C., and Haverford College Political Science Professor Susanna Wing. Also invited to speak is Ambassador Oumar Daou, Mali’s U.N. Permanent Representative. Moderator will be Johanna Mendelson Forman, Senior Associate at the D.C.-based Center for Strategic and International Studies.

Fee for the teleconference is $15 for members of the ABA Section on International Law, $25 for all others. Details and registration here.

“‘It took us more than two centuries to admit that a law could be imperfect and the people’s representatives uninspired. That a government and its majority often act too hastily, with the result that the Constitution is mistreated. That protecting the Constitution promotes liberty. usa_french_flag_imageTwo centuries to admit that, on this point, the American Revolution has been more just than the French.'”

Thus does LeMonde quote French law professors Guy Carcassone and Olivier Duhamel. (All translations from the French original mine.)  The quote appears in “Au ‘non’ de la loi,” reporter Patrick Roger’s fascinating analysis of how a 2010 law permitting private individuals to challenge the constitutionality of statutes has transformed both the theory and practice of separation of powers in France. (IntLawGrrl Naomi Norberg described the reform in this 2009 post.)

conseilAs Roger describes and constitutional comparatists well know, post-Revolutionary France relied on the view that statutes were the expression of “volonté générale,” the “general will” advanced by 18th C. political theorist Jean-Jacques Rousseau. Inroads into that “doctrine of the infallibility” of the Parlement français began with the establishment of a constitutional council, the Conseil constitutionnel, in France’s 1958 Constitution. In its 1st decades the Conseil hesitated to question laws; that changed in 1971, when the council determined that a law did not conform to the Constitution. In so doing, Roger reports, the Conseil referred not only to the 1958 document,

‘but also to the “fundamental principles” of the 1789 Declaration of the Rights of Man and the Citizen, reprised in the preamble of both the 1946 and the 1958 Constitutions. This “bloc of constitutionality” – that is, the ensemble of norms of constitutional stature – established the foundation on which the Conseil has constructed its jurisprudence.’

Added to this new foundation were statutory revisions that expanded the pool of potential plaintiffs, culminating in the 2010 reform. The result? Today the majority of statutes undergo review by the council; according to the LeMonde report, that fact has instilled in legislators a new awareness of their constitutional duties. Claims the Conseil‘s President, Jean-Louis Debré:

‘”The Constitution henceforth belongs to the citizenry.'”