ICJ

One week after the International Criminal Court Appeals Chamber acquitted a Congolese politician-warlord whom a Trial Chamber unanimously had convicted of rape, pillage, and other crimes, practitioners and scholars continue to debate the decision’s significance. Indeed, the case, Prosecutor v. Bemba, has been invoked in both the papers so far presented at the 2-day ICC Scholars Forum now under way at Leiden Law School’s Hague campus.

My own initial thoughts – concerned not about the decision’s fact-based details but rather to its refashioning of the legal doctrine of command responsibility – have been published at EJIL: Talk!, the blog of the European Journal of International Law. My post, entitled “In Bemba and Beyond,” discusses command responsibility as “a time-honored doctrine with roots in military justice and international humanitarian law.” Placing this appeals judgment in the context of other decisions, the post warns:

“Together, such rulings suggest a turn away from the goal of assigning responsibility at high levels, and toward a jurisprudence which acknowledges (with regret) the commission of crimes, yet holds no cognizable legal person responsible.”

Full post here.

IWC latest logo 210x64Some lawmakers and lobbyists in Japan displayed their distaste for whaling bans this week with a whale-meat eat-in in Tokyo. The Japan Daily Press reported:

‘In an act of defiance against a recent ruling by the International Court of Justice (ICJ) halting the nation’s whale hunts, pro-whaling legislators and lobby group gathered on Tuesday to eat whale meat while pledging to continue what they call one of the country’s centuries-old traditions.’

Stoking these opponents’ appetite was the March 31 judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). (Prior posts here and here.) The Hague-based court held 12-to-4 that Japan had violated the 1946 International Convention on the Regulation of Whaling by granting permits to harvest 3 species of whales areasin an area of the seas known as the Southern Ocean Sanctuary. (In yellow on map at right; see p. 3 here.) Japan asserted that a scientific research exception to the Convention’s whaling ban justified the hunts. But a majority of the ICJ disagreed, in a ruling that Rutgers Professor Cymie Payne analyzed in a recent ASIL Insight. (credit for above logo of the International Whaling Commission, which monitors compliance with the Convention)

Yesterday, the Japan Times reported, Japan’s government announced that it would still engage in what it calls research whaling, albeit at a reduced rate and in regions other than the area of concern to the ICJ case. The report indicated that the decision to go forward marked a victory for Japan’s Fisheries Ministry and a defeat for its Foreign Ministry.

Particularly vocal among the opponents of the ICJ’s ruling has been the man who’s served as Fisheries Minister since last December: Yoshimasa Hayashi, a Harvard Kennedy School graduate. Hayashi spoke at the Tokyo banquet on Tuesday. And in a February interview with Japan Times, he explained his position:

‘Japan is an island nation surrounded by the sea, so taking some good protein from the ocean is very important. For food security, I think it’s very important … We have never said everybody should eat whale, but we have a long tradition and culture of whaling. So why don’t we at least agree to disagree? We have this culture and you don’t have that culture.’

Payne’s Insight agreed that, notwithstanding the March 31 issuance of the ICJ’s opinion, resolution of “fundamental cultural conflict[s]” awaits another day.

wiliguseWASHINGTON – The President of the International Court of Justice spoke for a banquet room full of women and men yesterday when he said, “I am just here to share in the joy of my colleagues.” The colleagues of whom ICJ President Peter Tomka spoke were Judges Joan E. Donoghue, Julie Sebutinde, and Xue Hanqin. The three women received the Prominent Women in International Law Award during the Women in International Law Interest Group luncheon, a highlight of every American Society of International Law annual meeting. As a special treat, retired U.S. Supreme Court Justice Sandra Day O’Connor dropped in to congratulate what she called “the women’s division” of the World Court bench.

Each of the honored judges made brief but inspiring comments.

Judge Donoghue, a career U.S. State Department lawyer before she joined the ICJ in September 2010, focused her comments on gender disparity in international law. In a recent three-year period, “93 percent of the arguments judges of the ICJ heard came from men,” Donoghue said, citing “A Study of Lawyers Appearing before the International Court of Justice, 1999-2012,” a forthcoming European Journal of International Law article by Cecily Rose and Shashank Kumar. In calling for greater diversity, Donoghue reasoned:

‘We are a world court, and international law in the main is for the world.’

Flashing a broad smile, Judge Xue said, “Indeed, this is a great honor and privilege to receive this award. It’s really like an higgOscar.” Xue, a former diplomat and law professor in China, is senior to Donoghue on the court by a few months. She recalled two women who had preceded both of them – Dame Rosalyn Higgins (right), whose service from 1995 to 2009 included abastid term as the ICJ’s President, and Suzanne Bastid (left), an ad hoc judge in the 1980s. Xue said:

‘Today we have so many women on the court not because today women are so much more intelligent, but because many international lawyers, men and women – I want to stress, men and women – have fought so hard for women’s rights.’

She accepted her award “as a tribute to all women legal professionals working in the field of international law, in recognition of their dedication to international peace and development.”

Having three women on the bench, Judge Sebutinde said, “is indeed a pinch-yourself moment for me.” Sebutinde’s pre-ICJ career included service as a judge in her homeland of Uganda and on the Special Court for Sierra Leone. Sebutinde thanked her colleagues Donoghue and Xue, stating, “I don’t think I would even have had the courage to apply if they were not there.” Sebutinde urged the court to increase public outreach. It is particularly important in her own region: “It is no secret I come from eastern Africa where there has been a lot of conflict for decades. The first thing that nations think of for settling their differences is war. It is never the International Court of Justice. So it’s a great responsibility, especially for judges who come from Africa, to sell the court to our part of the world.”

Adding their own words were audience members  – judges, law students, law professors, law librarians, and practicing lawyers – who took part in WILIG’s introduce-yourself tradition. Among them was International Criminal Court Prosecutor Fatou Bensouda, who recalled that as a young girl in Gambia, she had felt “helpless” after trying in vain to get police to protect a relative who was suffering domestic violence. “That is why I went to law school,” Bensouda said, and added with reference to her current work, “There must be accountability for those crimes, those who perpetrate those crimes. There must be rule of law.” Meanwhile, Washington-based attorneys Lucinda Low and Jennifer A. Hillman (a former member of the World Trade Organization Appellate Body) urged “constant vigilance” to ensure that once earned, gains in women’s participation are maintained.

A University of California-Davis Law student who hails from Kazakhstan summed up the celebratory spirit. Aigerim Dyussenova, known to her new WILIG friends as Aika, proclaimed:

‘This is the happiest day of my life.’

(In photo at top by Fionnuala Ní Aoláin, WILIG Co-Chairs Clara Brillembourg – a cardboard cutout of Eleanor Roosevelt behind her – and Christie Edwards address the luncheon audience. Looking on are, from left, Judges Xue Hanqin, Joan E. Donoghue, and Sebutinde, along with Justice O’Connor. Cross-posted at IntLawGrrls and ASIL Cables)

This year’s annual meeting of the American Society of International Law features a unique trove of speakers and events. The gathering – from April 7 to 12, at the Ronald Reagan Building & International Trade Center, on Pennsylvania Avenue a few blocks from the White House – will also be the global biennial conference of the International Law Association. That combination promises multiple addresses, panels, debates, and roundtables, as donoghuewell as committee, working group, and interest group meetings, as detailed in the draft program.

sebutindeOne highlight will be the annual luncheon of ASIL’s Women in International Law Interest Group, at which I xuewas honored to speak last year. This year, at the Thursday, April 10 luncheon, WILIG’s Prominent Women in International Law will go to three especially worthy women – International Court of Justice Judges Joan Donoghue, Julia Sebutinde, and Hanqin Xue.

radhikaA notable keynote will be the Grotius Lecture on Wednesday, April 9, by Radhika Coomaraswamy, who’s served as the Special Representative of the U.N. Secretary-General with regard both to Children and Armed Conflict and to Violence against Women.

This year’s other honorees likewise include some very special people:

bensouda► International Criminal Court Prosecutor Fatou Bensouda (whom I am honored to serve as Special Adviser on Children in and affected by Armed Conflict) will receive the ASIL Honorary Membership awarded each year for “distinguished contributions or service in the field of international law.”

cherifM. Cherif Bassiouni, whose many titles include Emeritus Distinguished Research Professor of Law and President Emeritus, International Human Rights Law Institute, DePaul University College of Law, Chicago – not to mention dean and mentor to all of us who work in international criminal justice – will receive the Goler T. Butcher Medal, given “for outstanding contributions to the development or effective realization of international human rights.”

pelletAlain Pellet, Professor of Public International Law at the Université de Paris Ouest Nanterre La Défense and a frequent advocate before the International Court of Justice, will receive the Manley O. Hudson Medal “for outstanding contributions to scholarship and achievement in international law.”

Click here for details (including the complete draft program) and registration, which is significantly discounted through February 7, 2014.

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arcsunShould nongovernmental organizations be friends of intergovernmental courts? Put another way, is there a role for the NGO amicus curiae in tribunal that states have set up to deal with international disputes?

These are questions that Western Ontario Law Professor Anna Dolidze explores these questions in her just-published, information-filled American Society of International Law Insight, “The Arctic Sunrise and NGOs in International Judicial Proceedings.”

Dolidze’s news hook is The “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), filed in late November with the Hamburg-based International Tribunal for the Law of the Sea. At issue was the seizure of Arctic Sunrise, Dutch-flagged ship owned by Greenpeace International, an NGO that, in its own words, “acts to change attitudes and behaviour, to protect and conserve the environment and to promote peace.” During a protest at the offshore oil rig Prirazlomnaya, Russia had seized the boat and detained its crew members on criminal charges. (credit for 2007 photo of the ship) They were not released till very recently.

While the matter was pending, Russia declined to appear before the law of the sea tribunal – though it did object to a Greenpeace petition to file an amicus brief due, Dolidze reports, “to the ‘non-governmental nature’ of the submitting organization.” The tribunal thus kept the brief out of the case file, even though its members and the parties were able to review the document. Dolidze’s Insight underscores the tension in this resolution, given Russia’s nonappearance, on the one hand, and the direct effect of the dispute on Greenpeace, on the other hand.

The Insight tracks other tribunals’ varied treatment of such petitions. Among the most restrictive is the International Court of Justice, another tribunal in which only states may litigate contentious cases; Dolidze cites ICJ Practice Direction XII, which handles amicus briefs much as ITLOS did in Arctic Sunrise. Among the most expansive is the Inter-American Court of Human Rights’ rule 41, which accepts such briefs within a specified timeline. Others – the European Court of Human Rights, the World Trade Organization dispute mechanisms, and the International Criminal Court – are in between. In sum, Dolidze writes:

‘Procedures allowing NGO amicus curiae briefs are currently more a norm than an exception in international judicial proceedings.’

Not all agree this is a good thing. Dolidze points to a 2007 article in which Melbourne Law Professor Robin Eckersley favored NGO participation for its “potential of creating a transnational space for dialogue.” But she also  quotes Arizona State Law Professor Daniel Bodansky’s 1999 caution that amicus litigation by nongovernmental organizations ought not to be conflated with public participation. Dolidze sees in the Greenpeace matter a timely opportunity to revive this debate.

icjDevoid from much of the U.S. debate about whether to use military force against Syria is any exploration of nonviolent ways to condemn the use of chemical weapons and to push for an end to Syria’s multiyear civil war. (Prior posts.)

While it’s true that Russia, in particular, says it will veto action in the U.N. Security Council, we’ve not seen any public effort to apply effective pressure on Russia to do otherwise. No threat of a Western boycott of the Sochi Olympics – to hearken to one tool used during the Carter Administration – or any other action that similarly might sting the Putin regime. (By no means am I advocating a boycott, which does unwarranted harm to athletes. I mention it, rather, as an example of the kind of out-of-the-box thinking we haven’t seen voiced in this runup to a possible Syrian intervention. As posted months ago with respect to Syria, in this sense diplomacy hasn’t been tried.)

And while there’s been much hand-wringing over Russia’s apparent opposition to a Security Council referral of the situation in Syria to the International Criminal Court, we’ve heard no exploration of another Carter-era tool – a lawsuit in the International Court of Justice. (photo credit) My students and I have just studied that suit, brought against Iran after the November 1979 takeover of the U.S. Embassy in Tehran. The ICJ’s May 1980 decision in the Diplomatic & Consular Staff Case (U.S. v. Iran) pronounced the wrongfulness of Iran’s failure to protect the embassy and its personnel during and after the takeover. The court’s order that the two sides negotiate an appropriate remedy fueled a bilateral settlement which resulted in the release of the 52 U.S. hostages and the establishment of the Iran-U.S. Claims Tribunal, which to this day arbitrates disputes between the 2 countries.

Why not pursue a similar course in the current crisis, in lieu of or in tandem with other avenues?

A possible vehicle for such a suit would be the 1984 Convention Against Torture. Article 1(1) defines torture as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Surely, this definition is satisfied by the conduct alleged against the Syrian government: attacking civilians with chemical weapons – nerve agents that bring long-lasting injury or death to human beings – for the purpose of exacting punishment against or coercing capitulation by rebel forces.

The Convention Against Torture may serve as a vehicle for litigation because Article 30(1) contains a clause conferring ICJ jurisdiction:

Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

The United Nations’ online treaty database indicates that when Syria joined the Convention on August 19, 2004, it did not limit the effect of Article 30. That seems to open a path for a state party – if not the United States, which did place some limitations on its own joinder, one of the many other countries calling for action against Syria – to insist on negotiation of this dispute over chemical weapons use, with an eye to suing in the ICJ 6 months’ hence if negotiations come to naught.

An ICJ judgment that explores the relation of a chemical attack to the universal ban against torture could do much to enhance the current claim that such an attack crosses an “international redline.” Even if some snag prevented the issuance of a judgment as unequivocal as that in the Diplomatic Staff case (maybe a lex specialis concern, to name one), resort to negotiation/litigation might enable a more deliberate, less violent resolution to this grave situation.

Women of the ICJ2
Further to Cymie Payne’s excellent IntLawGrrls post regarding ongoing oral hearings before the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (webcasts and transcripts available here; prior post here):

Cymie cites among the “great international litigators” on the case Laurence Boisson de Chazournes (below), a professor of international law at the University of Geneva. Also well worth mentioning, of course, is the work done on this case by the jurists depicted above – the Women of the ICJ. ICJ Judge Xue Hanqin of China stands at left. At right is ICJ Judge Julia Sebutinde of Uganda; next to her, ICJ Judge Joan E. Donoghue of the United States. laurenceBetween Donoghue and Xue is ICJ Judge ad hoc Hilary Charlesworth, an Australian National University international law professor (not to mention an IntLawGrrls contributor). They flank the portrait of the ICJ’s first woman member, Rosalyn Higgins of Great Britain. She began service as an ICJ Judge in 1995– four years after the publications of a milestone article in which Charlesworth et al. decried the absence of women on that bench. Higgins was the ICJ’s President from 2006 until her retirement in 2009.

(With thanks to Don Anton for forwarding the featured group photo)

Sovereignty is dear to the People’s Republic of China. We international lawyers all know that. But we may have only a vague sense of why; that is, why Chinese jurists hold close to the concept of sovereignty. Nor are we likely to know what China thinks about other aspects op170f international law. I’ve just come across a few essays which provide some answers.

Each was published in the Chinese Journal of International Law by Dr. Xue Hanqin (right), on whose American Society of International Law intervention (video now available here) I recently posted. Xue wrote the articles while she was China’s ambassador to the Netherlands and, in 2 cases, a member of the International Law Commission. Today, she’s a judge on the International Court of Justice. Her status makes her take on China and international law well worth a read.

In “China’s Open Policy and International Law” (2005), and again in “Chinese Observations on International Law” (2007), Xue posited as the structural foundation  the Five Principles of Peaceful Coexistence, agreed upon in 1954 by Burma/Myanmar, China, India, and Indonesia. As she described them, the 5 are:

  1. “mutual respect of sovereignty and territorial integrity”;
  2. “mutual non-aggression”;
  3. “non-intervention in international affairs”;
  4. “equality and mutual benefit”; and
  5. “peaceful-coexistence.”

Xue wrote that China values sovereignty from the perspective of its history – a history marked by decades of invasion and occupation, which came to an end only in the mid-20th C. “I must say frankly,” she wrote in 2005:

‘[T]he first introduction of international law into China from the western world in the late 19th century left the Chinese people with little fond memories, as it was done through cannons and warships.’

cjil(Regarding this history, she referred to the 1990 Hague Academy lectures by the Professor Wang Tieya.) In her 2007 article, Xue situated China within the “viewpoint of the developing countries,” that “international law is based on a foreign legacy.” By this view, the U.N. Charter won acceptance because it enshrined “certain values” that postcolonial states “had been fighting for: sovereignty, equality, democracy, and self-determination.” She argued that the international legal system depends on “diversity of autonomous political communities,” and would falter if all members were forced to adhere to “one single social model.” She expressed concern lest the concept of responsibility to protect become a vehicle for usurping “multilateral mechanisms” for determining whether states may intervene against another. And even as she repeated China’s statements in support of “a just, impartial and effective” International Criminal Court, Xue argued, in the name of sovereignty, against ICC exercise of its Article 12(2) nonconsensual jurisdiction. (My own exploration of that provision is here.)

The 2 essays, along with “International Treaties in the Chinese Domestic Legal System” (2009), which Xue coauthored with Jin Qian, demonstrate the extent to which China has embraced such cooperation. (No doubt this theme is further developed in Xue’s own Hague Academy lecture, published here in 2012.) The country has entered more than 300 multilateral treaties, the vast majority since 1979.  And through a complex process that is neither entirely monist nor entirely dualist, it has implemented treaty obligations domestically – with respect to its World Trade Organization accession alone, China altered nearly 3,000 domestic laws and regulations.

China’s human rights record is, of course, an easy target for outside criticism. Yet Xue’s articles indicate that the framework for compliance is there: China has ratified thematic human rights treaties, such as the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women, as well as comprehensive treaties like the International Covenant on Economic, Social, and Cultural Rights – none of which the United States has ratified. (The countries switched sides on the International Covenant on Civil and Political Rights, with the United States a party and China a nonparty.) Xue further emphasized a 2005 amendment to China’s Constitution, by which Article 33 now provides:

‘The state respects and guarantees human rights.’

Xue acknowledged the growing participation of nongovernmental organizations and other nonstate actors. Indeed, she pointed out that she herself once introduced delegates at a U.N. conference on desertification “our peasants,” whom she’d brought as “grass-roots representatives” of the problem. Yet Xue questioned whether their presence had “changed the basis of decision-making”; in her view, “national interests remain a determining factor for international cooperation.”

China_revisedforState_480_1On these and other critical topics – law in the South China Sea, for instance, or climate change –  reading these 3 essays will help the Westerner contemplate the international legal system from the standpoint of the world’s most populous state.

whitehouse7apr13lgMemorable bits ’n’ pieces from the just-concluded annual meeting of the American Society of International Law:

► Comments by Dr. Xue Hanqin, who has been a law professor and government official in China and, since 2010, a judge on the International Court of Justice. For a taste of the incisive observations she made during the closing plenary on “Global Governance, State Sovereignty, and the Future of International Law,” consider her opening remark after moderator José Alvarez (NYU Law) introduced the other panelists, Bruno Simma (Michigan Law/Munich Law) and Joel Trachtman (Tufts/Fletcher), then her. I paraphase:

‘I see this panel is “The West – And the Rest.'”

►The emphasis placed on fundamental fairness during a dialogue between Fatou Bensouda, International Criminal Court Prosecutor, and Judge Theodor Meron, President both of the International Criminal Tribunal for the former Yugoslavia and the Mechanism for International Criminal Tribunals. (Video of their Brookings appearance, also last week, is here.) Asked at ASIL about recent acquittals at the ICC and ICTY, as well as the latter’s counterpart for Rwanda, both stressed that accountability is to be equated not with conviction, but rather with the subjecting of charged crimes to a fair process of adjudication of individual criminal liability – a process that accepts the possibility that some individuals will not be found guilty beyond reasonable doubt. (Yours truly made similar points in this 2002 AJIL essay on a 2001 ICTY decision.)

CAREpaket_frei3_01Bruno Simma recalling a day in 1945 or 1946. A 5-year-old boy who had just lived through the end of World War II, he saw a CARE package fall from the sky and into the village in Austria where he lived. In it were watercolors and marbles. They became his only toys. The package, stamped U.S.A., marked his 1st memory of the United States of America. (Simma went on to become a distinguished law professor, 1st in Austria and then in Germany and the United States, as well as a judge on the International Court of Justice. He is now a member of the Iran-U.S. Claims Tribunal, and received ASIL’s Hudson Medal at the annual meeting.)

► A discussion of “The Past & Future of African International Law Scholarship.” I was lucky enough to catch parts of a couple presentations at this panel. Erika George (Utah Law) offered a thoughtful review of From Cape Town to Kabul: Rethinking Strategies for Pursuing Women’s Human Rights, the super new book by Albany Law Dean Penny Andrews. A imagesreview of international economic law books by Uche Ewelukwa-Ofodile (Arkansas Law) underscored that notwithstanding all the troubles covered in mainstream media, Africa is on the rise. (Kudos to moderator/organizer James Gathii, whose Loyola Law class I’d had the pleasure of leading earlier in the week.)

► Not the least by any stretch, the reunion of IntLawGrrls, members of ASIL’s Women in International Law Interest Group, and assorted male friends at Thursday’s luncheon, where I delivered my talk on “International Law and the Future of Peace.” Present in the sold-out room, in addition to our life-size cardboard cutout of proto-foremother Eleanor Roosevelt, were so many women and men – I cannot name them all. Women who have inspired my lifework, like judges Patricia Wald and Joan Donoghue and prosecutor Fatou Bensouda; dear colleagues, like Betsy Andersen, Jaya Ramji-Nogales, and Beth Van Schaack, not to mention Andrea Bjorklund and Karima Bennoune from my former home, California-Davis Law, as well as Laura Kagel, Harlan Cohen, and Charlie Hunnicutt from my current home, Georgia Law; present and former students, like Kate Doty, Kelly Wegel, Kaitlin Ball, Sonia Farber, and Caroline Arbaugh; and the Addis Ababa University Law lecturer and 5 students comprising Ethiopia’s 1st all-woman Jessup team. My thanks to all who were able to attend or sent their regards. Thanks too, of course, to WILIG, which has just launched a mentoring program that generated much excitement among the young international lawyers present.

► After the meeting ended, I headed to the National Gallery of Art (the Dürer exhibit and the Matisse cutout room are must-sees; the pre-Raphaelites, not so much). Standing at a corner monwhere we pedestrians had a good view of the 555-foot-tall marble obelisk known as the Washington Monument, a wee boy asked his father an excellent, and perhaps unanswerable, question:

‘Why did we built that?’