France

Following a raft of ratifications this week, the Arms Trade Treaty is 4/5 of the way toward entry into force.

Paying-the-priceDepositing their instruments of ratification on Tuesday were Australia, Austria, Belgium, Burkina Faso, Jamaica, Luxembourg, Saint Vincent and the Grenadines, and Samoa. They join 30 other countries that’ve become full members of the treaty since its adoption by the U.N. General Assembly on April 2, 2013. Ten more joinders are needed for the treaty to take effect.

In its 28 articles, the Arms Trade Treaty provides for states parties’ regulation of traffic in a range of arms, from battle tanks to light weapons. (Prior posts available here.) As indicated by the Control Arms poster above, regulating the latter is a principal aim of treaty proponents. (image credit)

Among the 5 permanent members of the U.N. Security Council (among them major arms-exporting states), Britain and France have ratified. The United States signed last September, but the treaty has not been presented to the Senate for consideration. China has not signed; Deutsche Welle reported this week:

‘China has indicated that it would consider signing if the US ratified, which is unlikely to happen.’

And in late May, the Voice of Russia reported that the Russian Federation would not sign, for the following reasons:

‘Russia considers this document to be not completely thought through. It also discriminates against the Russian military-industrial complex.’

page-06-image-UNHCR_v5.1_MapWith a hat tip to Colum Lynch of Foreign Policy, here’s the transcribed passage from today’s press briefing colloquy at which the U.S. Department of State confirmed that the United States now supports a referral of the situation in Syria to the U.N. Security Council:

QUESTION: Are you considering supporting a – UN Security Council authorizing a investigation by the ICC into war crimes in Syria?

MS. PSAKI: Ali, for you, let me check and see with her office if there’s more to convey on that. I do have something for you, Elise. One moment.

We do – the United States supports the referral to the ICC set forth in the draft resolution under discussion. We’ve long said that those responsible for atrocities in Syria must be held accountable, and we’ve been working with our Security Council colleagues on a draft resolution toward this end. We will also continue to support efforts to gather evidence to hold accountable those responsible for atrocities in Syria.

Go ahead.

QUESTION: Can you —

QUESTION: What changed your mind? I mean, originally, you had some concerns about whether this was the right venue to pursue accountability for Syrians.

MS. PSAKI: Well, obviously, we’ve remained concerned, continue to be concerned about the atrocities that we’ve been seeing on the ground. I don’t have any specific incident to point you to, just the ongoing gathering of what we’re seeing on the ground.

Reports are that the draft referral resolution – a draft that cannot take effect unless Russia and China decide to withhold vetoes – contains the same caveats that have drawn criticism with respect to Darfur and Libya. See, e.g., critiques in my articles (page 9 here, page 40 here, and pages 4, 8 here ; see too my posts here and here), as well as posts that NYU Law Professor Ryan Goodman published today, here and here. Spurring the latter was Lynch’s Wednesday scoop.

(credit for U.N. High Commissioner for Refugees October 2013 map of child refugees from Syria conflict)

courThe 1994 genocide of nearly a million persons in Rwanda will be the subject of a trial beginning today before 6 jurors and 3 judges in the Paris Cour d’assises, or criminal court.

Charged with taking part in killings as part of an escadron de la mort, or death squad, is Pascal Simbikangwa, a 54-year-old man said to have been head of central intelligence and part of the inner circle of Juvénal Habyarimana, the Rwandan President whose April 6, 1994, death in a plane crash precipitated the genocide. The trial will involve testimony by historians, among other witnesses, and is set to be filmed in its entirety.

Le Monde‘s Stéphanie Maupas reported yesterday that this marks the 1st such trial in France, a country whose own behavior in Rwanda has been questioned. (And see here.) French authorities arrested Simbikangwa for trafficking in false papers in 2008 and subsequently refused the Rwandan government’s extradition request. A similar trial in Canada of another defendant ended last year in an acquittal; meanwhile, Belgium has convicted several such defendants in a series of trials.

Maupas’ report (available here and here) ended on a reflective note:

Le verdict devrait tomber mi-mars, juste avant les 20 ans du génocide. Vingt années durant lesquelles la France a été accusée d’offrir un exil confortable aux acteurs du génocide. Au-delà de l’histoire d’un homme, passible de la perpétuité, ce procès sera aussi le miroir des relations franco-rwandaises.

that is,

The verdict could come in mid-March, just before the twentieth anniversary of the genocide. Twenty years during which France has been accused of offering comfortable exile to génocidaires. In addition to the story of one man on trial for his life, this trial will also serve as a mirror of French-Rwandan relations.

unscMy colleague Beth Van Schaack, newly returned to academia after a stint as Deputy at the State Department’s Office of Global Criminal Justice, has posted at Just Security on what the presence of 11 International Criminal Court states parties on the U.N. Security Council could mean for ICC-Security Council relations.

In the past, states parties like Guatemala have used their seat to sponsor ICC discussions at the Council, she writes, and notes that the newest member will hold the Council presidency next month. That would be Jordan, whose Permanent Representative, Prince Zeid Ra’ad Zeid Al-Hussein, has worked for years on ICC issues and has served as President of the ICC Assembly of States Parties. (credit for 2009 photo of Council in session)

One nagging problem for the Court has been state noncompliance with ICC orders – in particular, of arrest warrants for fugitives like Sudanese President Omar al-Bashir – and to date the Council has done little to command compliance by U.N. member states. Another, Van Schaack writes, is the Council’s withholding of sanctions against persons accused by the ICC. Yet another  is the resolution boilerplate by which the Council:

► 1st, declined to contribute funds to aid the investigation and prosecution of the Libya and Darfur situations that it referred to the Court; and

► 2d, immunized any national of a ICC nonparty states (read the United States) from ICC investigation, even if the national were suspected of committing ICC crimes in the referred situation.

(And see here.) In theory, the large presence of states parties could change these dynamics. Or not: Van Schaack writes of criticism that states “‘forget’ that they are ICC members when they are elected to the Council.”

And there is also the matter of the Council’s 4 members who are not ICC states parties, China, Rwanda, Russia, and the United States. Their attitudes toward the ICC range from ambivalent to downright hostile, and 3 of them are permanent members able to veto Council resolutions. Van Schaack indicates that this may have contributed to a “zeitgeist,” an opening for the proposal that the Council ought not veto measures aimed at stopping atrocities. As I detailed in An old new idea to break P-5 impasse, the idea’s been around for more than a decade, but gained new steam when France, a  Council permanent member, embraced it this autumn. The other P-5 ICC state party, Britain, has yet to weigh in.

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.

Le Monde online debuts a novel feature today: articles en anglais. Prompting the presence of some English-language items is the Paris daily’s exposé of the degree to which the United States’ National Security Agency has been monitoring, well, everybody – including citizens of France.

patateNSA: un système géant d’espionnage mondial,” declares the banner headline. Beneath it are several sidebar articles, including, in a welcome mat from readers across the Channel and across the Pond, many with English titles and text. Examples: “Inside the NSA’s web of surveillance” and “France in the crosshair: Wanadoo and Alcatel targeted.”

There is much anger reported at these revelations. A leader of the National Assembly admitted that the fact that the NSA is surveilling France is not surprising. But he continued (my translation):

‘[T]he real discovery in this affair is the extent and the systematic nature of these wiretaps. These practices … damage considerably the image of this great democratic nation and question its conception of the world and of fundamental liberties.’

Despite that dark apparent reference to the United States’ global stature, a few cartoonists have approached the news with humor, telling the story “en patates.” The video published by Le Monde recounts the experiences of the “Lafrite” family  – the mother who works for Alcatel, the son who uses social media to keep in touch with a buddy in Turkey, and the father who stays clear of electronics (except to watch webcasts of “Game of Thrones”) – not to mention the sunglass-sporting NSA agent (above) who watches them. The video ends with President-Hollande-as-potato, peering at his own presumably compromised computer.

Comment la NSA vous surveille (expliqué en patates)” is here; Francophones, enjoy.

p5Rather muted in the U.S. press is France’s recent call for “self-restraint” on its part and that of its veto-friendly partners in the P-5.

The P-5, of course, are the 5 countries with permanent membership on the U.N. Security Council. By U.N. Charter mandate, each of the 5 enjoys the right to veto a resolution authorizing intervention – even if the rest of the 15-member Council finds harm to international peace and security. As has been evident in the 2-plus years of Syria’s civil war, by exercising its veto a P-5 member can leave a matter run its course without international intervention no matter what the casualty count.

France has suggested a way out of this predicament. As stated in an op-ed that Foreign Minister Laurent Fabius published October 4 in Le Monde, in French, and in the International Herald-Tribune, in English, here’s the idea:

‘[T]he five permanent members of the Security Council – China, France, Russia, Britain and the United States – themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto.’

How to determine when the commitment is in play? It’s “simple,” Fabius wrote:

‘[A]t the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply.’

Fabius recognized “that objections of all kinds can be made,” and sought to deflect some of them with this caveat:

‘[T]his code would exclude cases where the vital national interests of a permanent member of the Council were at stake.’

It is not a new idea. As pointed out in an October 3 lecture at Georgia Law by Lee A. Feinstein, the former U.S. Ambassador to Poland who’s teaching here this semester, a similar idea appeared as Principle 3(D) of The Responsibility to Protect, the 2001 Report of the Independent Commission on Intervention and State Sovereignty, which launched the responsibility to protect concept.

What is new is that the show of support comes from a P-5 state itself. Yet it must be mentioned that France has vetoed far fewer times than most of its peers on the P-5. And those peers likely will be far less enamored of France’s idea, as Mark Goldberg posted at UN Dispatch.

What could draw those peers toward France’s idea? Perhaps an understanding that a P-5 member’s “vital national interests” are “at stake” whenever a resolution implicates the member’s client state. But then adoption would be hollow, for such a proviso would sap the proposal of its strength.

(credit for September 2013 U.N. photo by Mark Garten of, from left, British Foreign Secretary William Hague, French Foreign Minister Laurent Fabius, Russian Foreign Minister Sergey Lavrov, U.N. Secretary-General Ban Ki-moon, U.S. Secretary of State John Kerry, and Chinese Foreign Minister Wang Yi)