nonstate actors

UntitledIt is the season of renewal, of anticipating the year to come. It is a time for revelry, but also for reflection. And reflection on this past year forces one to confront the grim reality of harms humans have wreaked upon other humans – on women, men, and children.

It is this last group of victims on which I have focused, in my service as International Criminal Court Prosecutor Fatou Bensouda‘s Special Adviser on Children in and Affected by Armed Conflict. Bensouda’s office has worked this year to  prepare a Policy Paper on Children, and this year the ICC Appeals Chamber sustained the court’s first conviction, against a militia leader responsible for child-soldiering crimes. But this year also saw untold crimes against children – not only tragically quotidian crimes of domestic abuse, but also spectacular outrages like last week’s lethal attack on a school in Pakistan, and the several instances of girls’ abduction or enslavement by groups like ISIS and Boko Haram.

It is this last group of victims, moreover, that this year spurred digital artist Corinne Whitaker to publish “Cradle Song,” an online book featuring images and poetry that she created. (As I’ve posted, Whitaker is the longtime publisher of a monthly webzine, Digital Giraffe, as well as the sister of colleague Ed Gordon.)

“Cradle Song” features pages of images like the one above, juxtaposed with verse-form text. “How can I face a child / today / knowing what I know?” it begins, then continues with angry, taut descriptions of what she knows – of, that is, the awful ways that armed violence affects children. Her refrain of questions – among them, “Why doesn’t someone / anyone / care?” – reminds us that we do, we must, care. And in this time of renewal, we must resolve to act.

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.

instrument - CopyWith the joinder last week of the Republic of Nigeria, the 2013 Arms Trade Treaty has 4 states parties. That leaves 46 to go for entry into force – a number that seems achievable, given that 83 states have taken the 1st step of signing the treaty since its April 2 approval by the U.N. General Assembly. As previously posted, the Assembly’s vote (154 aye-3 nay-23 abstain) became necessary when Iran, Syria, and North Korea blocked adoption by consensus at the late-March conclusion of a final treaty-drafting conference.

Secretary of State John Kerry proclaimed in June: “The United States welcomes the opening of the Arms Trade Treaty for signature ….” But to date the United States is not a signatory.

As detailed in the final text and previously posted, the treaty is intended to regulate “conventional arms”; that is: heavy weapons like battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles, and missile launchers; ammunition; and small arms and light weapons.

After depositing the instrument of ratification, Olugbenga Ashiru, Nigeria’s Minister of Foreign Affairs, was quoted as follows:

‘This landmark event represents our deep commitment to a treaty which establishes common international standards for the import, export and transfer of conventional arms … We remain resolute and unyielding in our efforts to uphold the principle of ATT and, in particular, ensure that small arms and light weapons are appropriately transferred and access denied to terrorist groups, pirates, bandits and the like.’

His reference to nonstate actors occurred against the backdrop of Nigeria’s struggle against Boko Haram, a group responsible in recent years for attacks against civilians in the northern and central parts of the state. (According to the BBC, “Boko Haram,” “roughly translated means ‘Western education is forbidden’ in the local Hausa language.”) Earlier this month, a report by the Office of the Prosecutor found reasonable basis to characterize some attacks as crimes within the jurisdiction of the International Criminal Court. And just this week, a report surfaced that the armed group’s leader may have been killed.

Nigeria joins Antigua and Barbuda, Guyana, and Iceland as an early ratifier of the Arms Trade Treaty.

(above, detail from August 14, 2013, photo of Nigeria’s instrument of ratification, in the hands of Minister Ashiru, left, and D. Stephen Mathias, the UN’s Assistant Secretary-General for Legal Affairs)

memdFor a number of years now, writings of my colleague Mireille Delmas-Marty have explored the relationships between the globalization of law and the globalization of the economy. Her newest publication proposes to regulate the latter in a way that enhances the former. Specifically, she would criminalize “aggression committed by non-state actors” – read corporations – as a means to encourage states to agree to hold themselves accountable for this international offense.

This provocative suggestion appears toward the end of “Ambiguities and Lacunae: The International Criminal Court Ten Years On,” just published in the Journal of International Criminal Justice by Delmas-Marty, Chair Emerita in Comparative Legal Studies and Internationalisation of Law at the Collège de France in Paris. (photo credit) The essay:

► Begins with “ambiguities” that arise out of the tension between the universalist aspirations of the Rome Statute and the sovereigntist realities of the ICC’s state-based structure.

Among the manifestations of this tension, she writes, is the status of the crime of aggression in the ICC. The international global community, she argues, must not just aim for “restoring peace as a form of reparation, but rather it must seek to establish a long-lasting and sustainable peace.” (p. 557) In her view, states’ Realpolitik must give way to acceptance, by big states as well as small, of the crime-of-aggression amendments adopted at the ICC Review Conference in Kampala, Uganda.

These amendments would regulate only state actors. Entry into force requires ratification by 30 of the ICC’s 122 states parties, as well as an additional state-party vote that may not take place earlier than 2017. As I wrote in A Janus Look at International Criminal Justice (2013), ratifications have been slow in coming. The Rome Statute had secured nearly all the requisite 60 ratifications within the 3 years following its adoption; in contrast, as of today, 3 years after the Kampala Conference, only 7 states have ratified the crime-of-aggression amendments. A new addition, Germany, merits particular note not only because of its history, but also because of its status as a large-power NATO member. Yet as Delmas-Marty writes in her JICJ article, most states seem to remain “[r]eluctant to transfer to international judges the power to qualify acts of aggression.” (p. 558)

► Shifts to exploration of “lacunae” (pp. 558-61). Of particular concern to Delmas-Marty is the status of globalized nonstate economic actors vis–à–vis the ICC. Citing Nuremberg-era cases involving industrialists, such as IG Farben, Flick, and Krupp, she states:

‘Corporate criminal involvement in international crimes did not end with the Second World War.’

Sometimes, she continues, “corporations are involved in the commission of serious crimes …. And yet, the Rome Statute does not contemplate the criminal responsibility of legal persons ….” Especially when corporations bear responsibility for fueling logs-of-war-promo2-view-1.599.307.sconflicts through “alliances with warlords in order to obtain scarce resources (such as diamonds, gold, timber or oil),” (photo credit) Delmas-Marty urges amending the Rome Statute to hold nonstate economic actors accountable for aggression:

‘By first outlawing armed conflicts commenced by criminal organizations,  the resistance of states could be overcome with the purpose of recognizing a global community whose interests are pursued  by all in the name of a sovereignty that, rather than being solitary, is grounded on solidarity. Following such an approach, international criminal justice could perhaps apply not only to the vanquished but also to the victors. In other words,  to the major powers themselves.’

These are ambitious goals. Even at Nuremberg, industrialists were convicted of aggression solely in the Krupp trial, and that result was reversed  on review. (See here.) Still, Delmas-Marty’s article provokes thought on how to hold to account both state and nonstate authors and agents of atrocities.