Monthly Archives: November 2013

Animated-Flag-BelgiumThe global push to make the aggressive use of armed force a crime punishable by the International Criminal Court picked up another supporter this week.

Belgium deposited its ratification of the Kampala amendments to the ICC Statute on Tuesday, thus becoming the 12th ICC state party to support the amendments, which, as previously posted here, here, and here, define the crime and set out the paths by which persons suspected of responsibility for aggression may be called to account before the ICC.

Pursuant to the compromise reached at the 2010 ICC Review Conference in Kampala, Uganda, the amendments may not take effect before 2017, and then only after a further vote and the ratification by at least 30 states. Belgium’s joinder this week means the ratifications halfway point is near. Indeed, a tally of pledges made by other states both before and during this month’s annual meeting of the ICC Assembly of States Parties reveals that it is quite likely that the 30-ratification threshold will be reached well before 2017. (See my October post and the recent statements in the Crime of Aggression Twitter feed.)

usflagBut that was not the only crime-of-aggression news this month. Also at the Assembly meeting, just five days before Belgium deposited its joinder, the most vocal of ICC nonparty states weighed in: the United States’ top international criminal justice diplomat urged states not to make the crime of aggression punishable. That diplomat – Ambassador Stephen J. Rapp, head of the State Department’s Office of Global Criminal Justice – concluded his November 21 address to the Assembly by stating:

‘Another challenge with which the international community needs to grapple involves the crime of aggression.’

He made clear that U.S. statements against the amendments, made just after the end of the Kampala conference, still held:

‘The United States continues to have many concerns about the amendments adopted in Kampala, including the risk of these amendments working at cross-purposes with efforts to prevent or punish genocide, crimes against humanity, and war crimes—which provide the very raison d’être for the Court.’

And he urged a rethinking of the endeavor:

‘The States Parties were wise to create breathing space by subjecting the Court’s jurisdiction to a decision to be taken after January 1, 2017. The international community should use that breathing space to ensure that efforts to ensure accountability for genocide, crimes against humanity, and war crimes can be consolidated and that measures regarding the amendments requiring attention can be properly considered; …’

With that, Rapp concluded:

‘… and it is our view that States should not move forward with ratifications pending the resolution of such issues.’

His exhortation appears not to have moved some states, including some of the United States’ NATO partners – among them, Belgium, Estonia, Germany, Luxembourg, and Slovenia, which already have ratified, as well as Croatia, the Czech Republic, Romania, Slovakia, and Spain, which reportedly are working toward ratification.

Rather quiet in this debate are 2 states parties that belong to NATO and also hold permanent seats at the U.N. Security Council. How Britain and France proceed remains to be seen.

photo2As we await the oven exit of our holiday bird, can’t help thinking about the sad fate of the pastry blender.

A search beyond my standard cookbooks for a new recipe for an after-dinner sweetie suggested that these days, all mixing must be done by machine – preferably a very heavy, very expensive food processor. They were all the vogue when I got married, and remain so. But I passed then, and now. So this Thanksgiving found me retrofitting a crust recipe for photothe handy implement above and, well, hands.

Judging by the photo at right, don’t think we will suffer one bit for our  reversion to a more tactile era of baking.

maamThe wee hours in Geneva today brought news of an agreement to regulate Iranian nuclear development, blocking nuclear weaponry and easing global sanctions. The agreement’s a victory for what, back in 2007, I dubbed the talking cure – a welcome turn of events after decades in which tensions escalated even as telephone lines remained silent. (It is just 8 weeks since the leaders of Iran and the United States talked for the 1st time in 34 years; just 5 days since the leaders of Iran and Britain talked for the 1st time in a decade.) The European Union-Iran statement on the agreement is here, text of Joint Plan of Action here, and a White House fact sheet is here.

The guy getting credit for all this is a woman. She’s Catherine Ashton, the coal miner’s daughter and onetime activist in the Campaign for Nuclear Disarmament who’s served since 2009 as the European Union’s 1st-ever High Representative of the Union for Foreign Affairs and Security Policy. Ashton’s early days in that post were rocky, but she persevered. She’s been in the trenches negotiating with Iran for years. The Guardian‘s Julian Borger reports that during this week’s diplomatic marathon at Geneva, while other delegates nicked out for pilaf or pizza, “Lady Ashton, the EU foreign policy chief steering the talks, often just made do with bar snacks.” And so today the media are painting Ashton as a hero – “from ‘zero’ to hero,” as the Telegraph of London rather snarkily put it.

Pivotal is the quality that an unnamed Brussels diplomat assigned to Ashton: “emotional intelligence.” There will be need for much of that as leaders work to win approval of the deal in their own states.  Most notably the United States, where some same-day reactions indicate more fondness for the hostile old status quo than for a chance to edge toward a calmer international future.

(credit for above photo of today’s Geneva announcement, depicting a chestnut-suited Ashton flanked by, from left, British Foreign Secretary William Hague, German Foreign Minister Guido Westerwelle, Iranian Foreign Minister Mohammad Javad Zarif, Chinese Foreign Minister Wang Yi, U.S. Secretary of State John Kerry, Russian Foreign Minister Sergey Lavrov, and French Foreign Minister Laurent Fabius)

southsudanSouth Sudan appears poised to ratify the 1989 Convention on the Rights of the Child. The South Sudan Parliament approved a ratification bill yesterday (not coincidentally, Universal Children’s Day, so named to commemorate the adoption of the Convention on November 20, 1989, as well as the approval of a precursor Declaration on November 20, 1959). The bill awaits signature by the president of the country – since 2011, the newest member of the United Nations.

Completion of that process will return matters to where they stood in 2005, when Justice Anthony M. Kennedy referred in Roper v. Simmons, a judgment outlawing the juvenile death penalty, to the

‘United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia’

Then as now, Somalia lacks a strong central government, a fact that effectively leaves the United States standing alone.

usflagWhy the opposition? Factors compiled in “Why won’t American ratify the UN convention on children’s rights?”, an Economist article published last month, include claims that ratification “would usurp American sovereignty,” “undermine parents’ authority, particularly over religious and sex education,” and “provoke lawsuits demanding that the government pay” costs to improve children’s lot. Evidence of such concerns surfaced at p. 120 of a July/August essay in Foreign Affairs, which decried a 2002 Committee on the Rights of the Child recommendation (¶ 11) that Britain work to allocate funds and resources toward adequate implementation of obligations it undertook by joining the Convention. One also discerned such concerns earlier this month, in between the lines of questions that Chief Justice John G. Roberts, Jr. (pp. 42-43) and Justice Antonin Scalia (pp. 31-32) posed during oral argument of Bond v. United States, a U.S. treaty-power case.

Undercutting those concerns is the fact that most Convention rights are already guaranteed by U.S. law (though not all, as the Economist points out) – not to mention the fact that nonratification weakens U.S. efforts to advocate globally for child rights. The fate of the newest effort to secure U.S. ratification of the disabilities treaty (prior post) may signal whether such facts have traction in contemporary U.S. politics.

scotusblog-banner-925-1143Just published at SCOTUSblog: my preview of a case asking whether arbitrators or U.S. courts enjoy the last word on jurisdiction to arbitrate. The post discusses decisions below and briefs filed in BG Group PLC v. Republic of Argentina, a dispute arising out of the Britain-Argentina bilateral investment treaty, about which Justices are scheduled to hear oral argument on December 2.

sgbssTwo Justices of the U.S. Supreme Court have signaled a willingness to reconsider precedent that permits state judges to impose the death penalty even after the jury has voted for a lesser sentence.

The signal came yesterday in a dissent from denial of the petition for certiorari in Woodward v. Alabama, No. 13-5380. The dissent’s author, Justice Sonia Sotomayor, wrote (citations omitted):

‘In Spaziano v. Florida (1984), we upheld Florida’s judicial-override sentencing statute. And in Harris v. Alabama (1995), we upheld Alabama’s similar statute. Eighteen years have passed since we decided Harris, and in my view, the time has come for us to reconsider that decision.’

Joining her in that estimation was Justice Stephen G. Breyer, who’d voted with the majority in Harris. (credit for Washington Post photo of Breyer and Sotomayor) Indeed, in that 1995 judgment, all the Justices then on the Court voted in favor of the state – all except Justice John Paul Stevens, who dissented in both the precedents Sotomayor named. Quoting Stevens’ dissent in Harris, she wrote:

‘Alabama judges, it seems, have “ben[t] to political pressures when pronouncing sentence in highly publicized capital cases.'”

listSupporting that conclusion was evidence in the Woodward record of state judges’ admissions that re-election worries may have motivated them to override jurors who, after balancing mitigating and aggravating circumstances, had voted for life imprisonment and against capital punishment. Fully 95 Alabama defendants have received death sentences in such a way, wrote Sotomayor, appending the list of those defendants to her opinion. In the last 13 years, “there have been only 27 life-to-death overrides, 26 of which were by Alabama judges,” Sotomayor added, commenting:

‘As these statistics demonstrate, Alabama has become a clear outlier.’

Whether the judicial-override sentence will go the way of 2 others Sotomayor cited – death penalties for juveniles and for mentally retarded persons, both no longer deemed constitutional – remains to be seen.

Classroom-destroyed-300x225Percolating into global consciousness is the armed conflict that’s ravaged the Central African Republic this past year. Fighting began last December, and in March rebels entered the capital, Bangui, and ousted the President who’d ruled for 10 years, François Bozizé. A transitional government eventually was put into place. But that has not eased fighting. Just yesterday, fighting was reported in the capital following the assassination of a judge and his aide.

Estimates that “more than 1.6 million people need urgent humanitarian assistance” – nearly a third of the country’s entire population – prompted  Louise Arbour, President of the International Crisis Group and formerly the top U.N. human rights official, last week to urge the Security Council to “take decisive action.”

As in many conflicts, the months of violence have taken a severe toll on children. Underscoring this is the image with which Foreign Policy‘s Peter Bouckaert began a recent report:

‘In the schoolrooms of the northern Central African Republic (CAR), the blackboards still show dates from late March — when Seleka rebels seized power in the country and a nightmare began.’

The statement jibed with an October report by UNICEF, the United Nations Children’s Fund:

‘Seven out of 10 primary school students in the Central African Republic (CAR) have not returned to school since the conflict started in December 2012 …’

Blocking the return of children and their teachers to school: attacks, destruction, and occupation by armed groups. (credit for photo by Save the Children) Many families remain in camps like those that drew attention because of a visit by Mia Farrow, the actor who serves as a UNICEF Goodwill Ambassador. (See the child’s drawing that Farrow posted here.)

Among the many offenses that Fatou Bensouda, the International Criminal Court Prosecutor, denounced in an August statement was the recruitment of child soldiers – a crime that’s reportedly doubled in the last year.

And last week, concern focused on allegations of stepped-up killings of civilians, particularly children.

Much to be discussed during the Security Council’s scheduled consideration, later this month, of the crises in the country.