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Argentina v. USA?

The Seal of the ICJArgentina has requested that the United States of America accept the jurisdiction of the International Court of Justice (ICJ) regarding recent decisions by US courts against Argentina. The ICJ only has jurisdiction over those cases where all necessary State parties consent to jurisdiction of the Court. The press release can be found here.

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The Temptations of International Criminal Justice: Part One – Ukraine

ICCThe International Criminal Court (ICC) – to date the only permanent, multi-lateral institution created to prosecute cases of international crimes – has not had the easiest time of it. In fact, the Court has been plagued by many different accusations regarding its operations. One of the most persistent critiques it that the ICC has an anti-Africa bias.[1]

Since the entry into force of the Rome Statute – the Court’s founding document – on 1 July 2002, the ICC has opened 21 cases arising from 8 situations.[2] All of the accused are from African countries, only two of which not being from sub-Saharan Africa. Further supporting claims of an anti-Africa bias is the fact that the Office of the Prosecutor (OTP) has declined to open investigations into alleged crimes in Venezuela and Palestine – two of the few situations brought to the Court’s attention that are outside of Africa.[3] In the last weeks the Court has received, and the OTP opened preliminary examinations into, two additional referrals[4] – one referring to Iraq and the other to Ukraine.

UN Security CouncilThese two situations provide a tempting opportunity for the ICC to show that it is willing not only to take on cases outside of Africa, but also cases that involve potential allegations against government officials of the great powers – States with permanent seats on the United Nations Security Council (UNSC). Notwithstanding the need for the ICC to branch out and take on cases arising from events in locations other than Africa, and to challenge the great powers, the Court would do well to steer clear of both these situations. In the coming weeks I will write more about this subject. For now, this first post will discuss the situation in Ukraine.

The Situation in Ukraine

Recent events in Ukraine have been making international news for some time. The current round of troubles began with the street protests leading to the occupation of Maidan square by “pro-western” protestors in November of last year. The protests, at times violent, arose from the refusal of then president Yanukovych to sign an agreement with the European Union that would have led to greater ties between the regional block and Ukraine. He chose instead to pursue closer ties with Russia.[5] The protests escalated until February of this year with the overthrow of the Yanukovych government and his subsequent flight to Russia. The new regime in Kiev immediately began to have problems in the east of the country where there is a majority of ethnic Russians. These troubles have led to the annexation of Crimea by Russia and violent unrest in eastern Ukraine that has seen claims of criminal behavior by both sides.[6] While the new government in Kiev is supported by the West, Russia has supported – to an extent that is not entirely clear – separatists in the East.

Allegations have been made that the Yanukovych government illegally targeted civilians during the protests leading to his ouster in a way that amounts to the commission of international crimes. After the fall of his government, there have been allegations of crimes being committed against Russian speakers by those associated with the new regime that could in turn amount to international crimes.

This context is important in order to understand the scope of the referral by the new regime in Kiev, regardless of the veracity of either side’s claims of crimes by their opponents.

Ukraine’s Acceptance of Jurisdiction

The authorities in Kiev referred the situation in Ukraine from 21 November 2013 to 22 February 2014, covering only the period of the street protests in the capital that led to the overthrow of the Yanukovych government.[7] In effect, the authorities in Kiev have made a referral (technically an acceptance of jurisdiction pursuant to Article 12(3) of the Rome Statute) that would de facto only expose their political rivals to prosecution – a mighty tool in the continuing conflict ravaging that country. The OTP has since announced that it is conducting a preliminary evaluation of the situation.[8]

A One-Sided Referral

Kiev’s clever limitation of their referral would not be the first time that the ICC had to deal with a situation where the referring government wanted to encourage the Court to move against its opponents without risking prosecution of regime members. In the situation concerning the Lord’s Resistance Army (LRA), Uganda tried to refer only the crimes of the insurgent group and not those allegedly committed by government militias and armed forces. The OTP however decided that a referral of a situation to the ICC is ipso facto a referral of all crimes committed by either side of the conflict in question. In other words, States cannot just refer the crimes of their opponents. However, this was a case of the government trying to exclude liability arising out of contemporaneous acts to those that they were trying to refer to the Court. The situation in Uganda was an ongoing insurgency that saw attacks by the LRA and reprisals by government forces over a period of time.

The situation in Ukraine is different in at least one fundamental way. Here, the crimes allegedly committed by one side predominately occurred during the timeframe of the referral to the Court, while the crimes allegedly committed by the new government would have occurred after that time period. Kiev’s acceptance of jurisdiction poses the same dilemma as that of Uganda’s referral as to the one-sidedness of the prosecutions sought by the Court. Of course there are crucial differences, not the least of which is the fact that Uganda is a State party to the Rome Statute, so that there is no question of jurisdiction over crimes outside the scope of the referral in that case. Ukraine of course is not a State party so the ICC would lack jurisdiction outside of any acceptance thereof. In the face of this limitation the ICC should not simply mechanically proceed based on the scope of the referral by Ukraine as doing so would risk irreparable harm to the Court and the nascent permanent system of international criminal justice.[9]

Allowing the new authorities in Kiev to avoid responsibility through the use of a clever temporal limitation of their referral would undermine the message sent by the Court in the situation in Uganda – all sides are equal before the ICC and States cannot use the Court as a weapon against their political and military adversaries. It would send the wrong message about the purpose of international criminal justice if the Court (either the OTP or the chambers when they hear the issue) were to proceed with investigations and/or prosecutions based on such a limited referral or acceptance of jurisdiction. The message would be that if you are able to seize the government of a State, you could refer the crimes of your predecessors to the Court without risking prosecutions for the crimes you commit after taking power. State power as protection from prosecution, one of the central evils that international criminal justice was designed to remove.

Conclusion

Ukraine’s acceptance – or granting – of jurisdiction to the ICC is an attractive opportunity of the Court to show that it is not “anti-African” and to take on one of the great powers, Russia. However, while this may be true, the referral is also dangerous in that it could set a precedent on how to arrange the prosecution of political enemies before an international body thereby rendering the ICC nothing more than a pawn in the game of international Real Politick. The OTP and the Court as a whole must be careful not to allow this important institution to become anything other than an agent of justice by investigating and prosecuting crimes committed by all sides to a conflict, not just those that may have committed crimes first (or last). The failure of the ICC to successfully deal with this referral is nothing less than a mortal threat to the credibility of international criminal justice.

[1] See, e.g., http://iccforum.com/africa; http://www.gulf-times.com/opinion/189/details/367879/international-criminal-court-is-accused-of-anti-africa-bias; http://sites.thehagueuniversity.com/africans-and-hague-justice/home.

[2] Of the 30 accused before the court of committing international crimes, 8 remain at large (4 in one case alone from 2005), 3 have died before being taken into custody for trial, the charges against 4 were not confirmed, 3 have not been transferred for trial at the Court even though in custody of local authorities, the arrest of 2 was not confirmed, 1 has been acquitted, 7 are on trial or waiting for the confirmation of charges and 2 have been convicted. This is my count based on the current (17 May 2014) list on the ICC website. It may be that some names are no longer listed and my total count is therefore off. Also, I did not count those on trial for offenses against the administration of justice.

[3] See, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/Pages/communications%20and%20referrals.aspx.

[4] I am using the term her in a broader sense then the technical one used at the ICC. I mean simply that two new situations have been brought to the attention of the Court.

[5] In the background of this conflict are the divisions in Ukraine between ethnic Ukrainians and ethnic Russians.

[6] See, e.g., http://en.wikipedia.org/wiki/Euromaidan; http://online.wsj.com/news/articles/SB10001424052702303948104579533341029784038.

[7] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr997.aspx.

[8] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr999.aspx.

[9] The Court’s current problems have in no small part led to suggestions of creation another ad hoc court for South Sudan instead of referring the situation to the Court. See,

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The African Court’s First Judgment

On 14 June 2013, the African Court on Human and Peoples’ Rights (AFCtHPR or Court) issued its first judgment on the merits of a case in consolidated applications 009/2011 & 011/2011, Tanganyika Law Society, The Legal and Human Rights Centre & Rev. Christopher R. Mtikila v. The Republic of Tanzania wherein the Court found a violation of the applicants right to participate in public life, right of association and equality before the law. The applicants brought their case based on Tanzania’s requirement that all candidates for public office belong to a political party. Three judges issued separate opinions wherein they adopted the findings of the Court and further defined issues they felt to be important to the future operations of the AFCtHPR. In particular, the Judges focused on the propriety of deciding the issue of jurisdiction before that of admissibility (or vice versa).[1]

What makes this judgment so interesting is not that the Court found a violation of the applicants rights, that it was the first judgment on the merits or that the judges argued in their separate opinions about the order in which jurisdiction and admissibility should be addressed, but rather what the judgment says at paragraph 110 about the nature of the action: that it “cannot and must not be dealt with as though it were a personal action, and it would inappropriate for [the AFCtHPR] to do so.” This single statement, one that went unobserved in the long debate between the judges in their separate opinions about how the court should proceed in the future, could have resounding consequences for the Court.

Jurisdiction and Standing Before the Court

The AFCtHPR has jurisdiction to hear “all cases and disputes submitted to it concerning the interpretation and application of the Charter” submitted by individuals or non-governmental organizations (NGO’s) if the State against which the case is brought has authorized such actions.[2] The Court has not yet addressed what is meant by “case,” however, it should in its ordinary meaning be understood to mean litigation brought by a party with an actual interest in the outcome.[3] Such a distinction is necessary as the Court also has jurisdiction to issue advisory opinions when asked to do so by a State the African Union or recognized African Organizations.[4] Otherwise an individual or NGO could request an advisory opinion in the guise of filing a “case” before the court. It is exactly the need for this distinction that makes the Court’s judgment so interesting.

It is first necessary to point out that none of the applicants in Tanganyika Law Society et. al. v. The Republic of Tanzania were States, the African Union or recognized African organizations. The Court described the first two applicants as NGO’s with observer status before the African Commission.[5] The third applicant, obviously, was a natural person.[6] Neither of these parties therefore has standing to request an advisory opinion. The question then becomes what the Court meant in paragraph 110?

Representative Standing Before the Court

The problem of standing arises because the Rev. Christopher R. Mtikila has founded/joined a political party and so has had the ability to stand in local and national elections. In other words, the violation of the African Charter on Human and Peoples’ Rights (Banjul Charter) that he brought before the court was in many ways hypothetical, he was not prevented from standing for election and had done so in the past. It was in response to this fact that the Court opined that his case “cannot and must not be dealt with as though it were a personal action” so as to overcome the potential bar to hearing the case based on his not complaining about the violation of his personal right to stand for election. He could and had, after all, stood in elections.

The problem is that individual standing to bring “cases” before the court is just that, individual. Otherwise there would be no need to treat it differently from the way organizations and States are treated, including their ability to ask for advisory opinions. If the individual who files a case before the Court is not prejudiced by the alleged violation there is no “case” and the application should be found inadmissible. Obviously though, this is not exactly how the bench viewed the case or the individual standing to bring a State before the Court. Pursuant to the language used by the Court in paragraph 110 an individual can bring a case before the AFCtHPR even where he or she is not directed prejudiced by the alleged violation when that violation regards the whole society, as this would be “inappropriate.”

This possibility, that an individual may bring a “case” for the violation of rights protected by the Banjul Charter when that individual has not been harmed in the specific by that violation is revolutionary in human rights jurisprudence and all international jurisdictional settings.[7] It also has the possibility of opening up proceedings before the Court to a host of cases that do not see a concrete violation but hypothetical violations lacking concrete effect. On the other hand, it may provide an opportunity for individuals to bring cases alleging violations that they have not personally experienced but those whose victims are not in a position to bring a case.

Lastly, and this should at least be pointed out, there is the point that the Court may have been looking for a case to hear on the merits. Many cases have been filed before the AFCtHPR but none had yet been subject to a judgment on the merits due to admissibility problems. This case provided an opportunity for the Court to begin its work in earnest.

Conclusion

The Judgment of the African Court on Human and Peoples’ Rights in consolidated applications 009/2011 & 011/2011, Tanganyika Law Society, The Legal and Human Rights Centre & Rev. Christopher R. Mtikila v. The Republic of Tanzania is a fascinating document that potentially opens up a jurisdictional novelty in international law, the ability of a party to bring a case against a State where there is no concrete violation.


[1] The judges who issued the seperate opinions were Judges Ngoepe, Ouguergouz and Niyungeko.

[2] Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, arts. 3(1), 5(3), 34(6).

[3] For the US examples of this see, Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937) (need for a case and/or controversy); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (case must not be moot); U.S. v. SCRAP, 412 U.S. 669 (1973) (standing must be based on actual harm not just some interest in the case).

[4] Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, art. 4(1).

[5] AFCtHPR, Tanganyika Law Society, The Legal and Human Rights Centre & Rev. Christopher R. Mtikila v. The Republic of Tanzania, applications 009/2011 & 011/2011, Judgment, ¶¶ 1, 4-5, 7 (14 June 2013).

[6] Ibid. at ¶ 2.

[7] In fact, only the WTO has a non-violation proceedings and it has never been invoked. Here the Rev. alleged a violation (so this would not strictly speaking be a no violation situation, but it is not far off).

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India v. Italy: The Indian Supreme Court Decides

Massimiliano Latorre e Salvatore Girone, i due marò arrestati dalle autorità indiane

Massimiliano Latorre e Salvatore Girone, i due marò arrestati dalle autorità indiane

On January 18, 2013 the Supreme Court of the Union of India entered the fray of the Enrica Lexie incident by issuing a decision on the fate of the Italian military guards, Massimiliano Latorre and Slavatore Girone, who are accused of killing two Indian fishermen. This incident has been discussed at length on this blog. An overview of the facts and prior developements can be found by following the links here. The court, in clear terms, reaffirmed India’s jurisdiction over the alleged crimes based both on international and national laws. The court also made certain pronouncements regarding internal divisions of jurisdiction within India. My comments here will be limited to the international legal aspects of the decisions.

Italy challenged the jurisdiction of the Indian court on several grounds. The main thrust was that the guards could not be tried before the Indian courts because their actions were taken as part of their official military duties and therefore covered by sovereign immunity.[1] Italy also made arguments based on the United Nations Convention on the Law of the Sea (hereinafter UNCLOS), principally that the flag State has exclusive jurisdiction over the events that take place aboard a vessel on the high seas.[2] Part of this second argument was an assertion that the Indian fishing boat was not “Indian” within the meaning of the convention and that article 97 gave exclusive jurisdiction to Italy.[3]

The Enrica LexieAttorneys for India responded by making arguments primarily based on national provisions extending the penal code to the areas adjacent to the territorial sea such as the international water where the incident took place.[4] The Union’s international law arguments included a detailed analysis of UNCLOS. India argued that article 97 UNCLOS was limited to collision type events and had no bearing on jurisdiction in the Enrica Lexie case.[5] This fact, along with the assimilation of ships to national territory and the objective territoriality principle, were sufficient to ground Indian jurisdiction.[6] India also argued that the passive personality principle would grant jurisdiction in this case.[7] On the issue of immunity, the Union pointed out that the State has a policy of not entering Status of Forces Agreements excluding national jurisdiction and that there was no basis for a sovereign immunity claim in a criminal case.[8]

The actual decision of the court was issued in a two-page order. The motivation or reasoning of the decision came in two opinions, one by the Chief Justice. These two opinions are not completely consonant even though they agree in the result. We will turn first to the Chief Justice’s views before analyzing those expressed in his fellow judge’s concurrence.

The Chief Justice identified two issues that needed to be resolved in the case: one national and one international. The international problem was that of Indian jurisdiction based on applicable law, including UNCLOS, which India was bound to follow.[9] The Chief Justice started by refuting the Italian argument based on article 97 of UNCLOS. After observing that there was no collision in this case the justice reasoned

The next question which arises is whether the incident of firing could be said to be an incident of navigation.  The context in which the expression has been used in Article 97 of the Convention seems to indicate that the same refers to an accident occurring in the course of navigation, of which collision between two vessels is the principal incident.  An incident of navigation as intended in the aforesaid Article, cannot, in my view, involve a criminal act in whatever circumstances. In what circumstances the incident occurred may be set up as a defence in a criminal action that may be taken, which legal position is accepted by both the countries which have initiated criminal proceedings against the two marines. Even the provisions of Article 100 of UNCLOS may be used for the same purpose. Whether the accused acted on the misunderstanding that the Indian fishing vessel was a pirate vessel which caused the accused to fire, is a matter of evidence which can only be established during a trial.  If the defence advanced on behalf of the Petitioner Nos. 2 and 3 is accepted, then only will the provisions of Article 100 of the Convention become applicable to the facts of the case.[10]

Following the Lotus case, therefore, jurisdiction would be proper.[11] Next, the justice observed that States only have limited jurisdiction outside of the territorial sea that are limited by UNCLOS.[12] Unfortunately, this limit is not described and the Chief Justice asserts Indian jurisdiction over the incident based on this limited grant without further deliberation.[13]

Judge Chelameswar issued an opinion agreeing with the judgment but on different grounds. His views were almost entirely based on internal law. The important international component was his assertion that jurisdiction itself is based on “the legitimate interests” of the State asserting its authority.[14] He then used the passive personality and the objective territorial principles as evidence of this existing jurisdiction.[15] Either of which would therefore be sufficient to ground jurisdiction in this case.

I would like to begin my analysis by looking to the contentions surrounding article 97 UNCLOS. This provision reads in pertinent part,

In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.

Italy argued that the shooting was an “incident of navigation” and so wholly within her jurisdiction.[16] Both opinions corrected concluded that article 97 was implemented with the limited scope of overturning the ruling in the Lotus case when it came to collisions and similar events on the high seas. It was not designed to undo the general principles of State jurisdiction. The problem with the justices’ analysis lies rather with the application of the passive personality principle.

Article 92 of UNCLOS provides,

Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.

International Maritime OrganizationThis is enough to preclude the application of the passive personality principle. If the nationality of the victim were enough, India would have had jurisdiction over the events if they had occurred entirely on board the Lexie. Such a result would render article 92’s provisions on exclusive jurisdiction without meaning. Such a reading should therefore be avoided. However, given the existence of other bases of jurisdiction, the justices’ overstatement of the application of the passive personality principle is not fatal to the international validity of the judgment.

The most unfortunate part of the Supreme Court’s judgment was its declining to fully address the issue of sovereign immunity for the Italian guards. The court rejected the argument but did so without an analysis of applicable international law. The court instead punted on the issue leaving it to be re-litigated based on the evidence in light of article 100 of UNCLOS. This last provision is nothing more than an obligation for the States party to co-operate in the fight against piracy. Presumably, this means that if the Italian guards were actually fighting piracy, article 100 UNCLOS would protect them from trial. This, however, would be a strange and unfortunate interpretation of a treaty provision that mentions neither jurisdiction nor immunity.

Most of the UNCLOS aspects of the Enrica Lexie incident appear to have been resolved by the Supreme Court of India. What remains now is a determination on the immunity of the guards and the facts of the case. It seems to me, that if the guards are determined to have been “fighting piracy” they will in fact be innocent of the crimes with which they are accused. At the same time, under the court’s probable reading of UNCLOS, this fact will grant them immunity. If they are instead found to have been acting outside of their mandate (for whatever reason) they will in fact be guilty of the crimes with which they are charged and not benefit from immunity. The Supreme Court would have done better to settle this issue once and for all and leave the trial to address the accusations alone.


[1] Decision of the Supreme Court at ¶¶ 7, 13, 29, 42, 45.

[2] ¶ 26.

[3] ¶¶ 26, 29, 31, 38.

[4] ¶¶ 51-52, 55.

[5] ¶ 64.

[6] ¶¶ 60, 65.

[7] ¶ 63.

[8] ¶¶ 69-70.

[9] ¶ 97.

[10] ¶ 94.

[11] ¶ 95.

[12] ¶ 99.

[13] ¶ 100.

[14] ¶ 25 of the concurring opinion.

[15] ¶¶ 27-28.

[16] Decision of the Supreme Court at ¶¶ 26, 29.

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Review of International Tribunal Decisions for the week of December 10, 2012

Last week saw very important decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC). In particular, the Appeals Chamber of the ICC issued a decision where it clarified the meaning of an acceptance of the Court’s jurisdiction by a non-State party.

International Criminal LawICTY

ICTY

Prosecutor v. Karadžić[1]

Decision on Appeal From Denial of Judgement of Acquittal for Hostage-Taking

Background

The indictment against the Accused included charges of kidnapping UN personnel who were not taking part in the hostilities during the war in Bosnia in 1995.[2] At the conclusion of the Prosecution’s case, the Accused filed a motion for acquittal inter alia on this count, which the Trial Chamber denied on the grounds that even if they had participated in the fighting the minute they were placed hors de combat they benefited from the prohibition on hostage taking.[3] The Accused appealed arguing that the Trial Chamber erred in affording the UN personnel protection under the Geneva Conventions vis-à-vis this crime.[4] The Appeals Chamber rejected that appeal.

Reasoning

The Appeals Chamber first considered if the UN personnel were covered by the Geneva protections even if they were combatants.[5] The Chamber considered that they were, regardless of whether or not they were combatants as anyone hors de combat is protected against hostage taking.[6] Therefore it was not erroneous for the Trial Chamber to deny his motion for acquittal.

Prosecutor v. Tolimir

Judgment

The Trial Chamber by majority, found the Accused guilty of Genocide, Conspiracy to Commit Genocide, Extermination as a Crime Against Humanity, Murder as a violation of the laws and customs of war, Persecutions as a Crime Against Humanity and Inhumane Acts through forcible transfer as a Crime Against Humanity. The Accused was sentenced to life imprisonment.

ICCICC

Prosecutor v. Gaddafi & Al-Senussi[7]

Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi

The Chamber recalled that admissibility challenges are based on two factors: if at the time of the proceeding on admissibility there is a State investigation or proceeding and if so, if the State in question is unwilling or unable to genuinely carry out that investigation or proceeding.[8] The party raising the admissibility challenge bears the burden of proof.[9] To this end the Chamber observed that it would be useful if everyone involved were aware of what kinds of evidence would be necessary to prove the existence of such proceedings.[10] The Chamber also formulated questions for Libya regarding specific investigative acts that have been taken since the filing of the admissibility challenge.[11] The Chamber also questioned the value and sufficiency of evidence offered by Libya to substantiate its claim that it is investigating Mr. Gaddafi.[12]

Prosecutor v. Gaddafi & Al-Senussi[13]

Order in relation to the request for arrest and surrender of Abdullah Al-Senussi

The Pre-Trial Chamber issued an order to Libya to hand over the accused Al-Senussi after his transfer to Libya.

Prosecutor v. Gbagbo[14]

Judgment on the appeal of Mr Laurent Gbagbo against the decision of Pre-Trial Chamber I on jurisdiction and stay of the proceedings

The Accused filed a challenge to the jurisdiction of the ICC on the grounds that the acceptance of a non-State party of the jurisidiction of the court could only be retroactive and was limited to specific crimes. The Appeals Chamber disagreed and held, importantly giving shape to an otherwise vague term in the Rome Statute that,

The use of the words “crimes referred to in article 5” [in the rules of procedure and evidence] indicates that the term. “crime in question” in article 12 (3) of the Statute refers to the categories of crimes in article 5 of the Statute, i.e. genocide, crimes against humanity, war crimes and the crime of aggression, and not to specific events in the past, in the course of which such crimes were committed.[15]

This holding of the Appeals Chamber also puts to rest the argument made by some that non-States parties (such as a potential Palestine) can refer only the crimes of their opponents to the Court.


[1] IT-95-5/18-AR73.9, 11 December 2012.

[2] Ibid. at ¶¶ 2-3.

[3] Ibid. at ¶ 4.

[4] Ibid. at ¶ 9.

[5] Ibid. at ¶ 15.

[6] Ibid. at ¶ 16-18, 21.

[7] ICC-01/11-01/11, 7 December 2012.

[8] Ibid. at ¶ 6.

[9] Ibid. at ¶ 8.

[10] Ibid at ¶ 10.

[11] Ibid. at ¶¶ 14-15.

[12] Ibid. at ¶¶ 16-18, 20, 22, 25, 28, 31, 32, 41, 48.

[13] ICC-01/11-01/11, 10 December 2012.

[14] ICC-02/11-01/11 OA 2, 12 Decmeber 2012.

[15] Ibid. at ¶ 80.

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India v. Italy Part Five: The Saga Continues

The Enrica Lexie incident has been widely discussed on this blog and in the international media. So far the case has been heard by courts in the Indian state of Kerala and has been argued before the Supreme Court of India. This last court has had the matter under consdieration since September of this year after a full court argument and briefing. On 21 November 2012 the Supreme Court issued a Suo Motu Petition requesting additional briefing regarding a “Recent Firing Incident, Widely Reported in the Press, Resulting in the Death of Two Persons, Allegedly on Account of Use of Firearms by Some Private Security Personnel”. Nothing in the petition and order issued by the court directly identifies it with the Enria Lexie incident, and in fact, the order was issued in relation to another shooting incident in downtown new Delhi, but its content and reference could address issues raised by the Enrica Lexie case.

The Justices requested additional briefing from Ministry of Home Affairs for the Union of India on four issues: (1) what legal rules exist to govern the use of private security agencies; (2) what rules exist for the issuance of firearms to such companies’ personnel; (3) what rules govern the use of such firearms by said personnel and; (4) “what are the rights and duties of private security agencies under the law, particularly, vis-a-vis the criminal law of the land”.

From the point of view of International Law, the Enrica Lexie incident raised two major questions the jurisdiction of India over the events and the immunity of the Italian soldiers from said jurisdiction. If the responses to this order can be applied to the Lexie case, it would appear that the Court has found a basis to affirm India’s jurisdiction and is in a possition to look and see which national laws would govern the substantive case.

I will report more on the case as it develops.

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Reply to Comments on Syria Part 2

There have been a few comments on our last post on Syria dealing with the possibility of intervention based on an assertion of self-defense by Turkey. I thought it might be best to address them together in a separate post.

The first issue that came up was the possibility that the international community could intervene if Syria were to be suspended or expelled from the United Nations. The underlying legal assertion being that the prohibition on the use of force contained in the UN Charter is a contractual obligation flowing only between the States party/member of the United Nations. The wording of Article 2(4) of the Charter would seem to indicate otherwise. It reads,

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations

Members agree not to use force in their international relations, full stop. It does not provide, as argued, that this prohibition applies against only other members of the UN. In any case, it is now generally recognized that the prohibition on the use of force is a binding norm of customary international law (See, Antonio Cassese, Diritto Internazionale, Bologna 2005). Member or not of the United Nations, Syria benefits from the prohibition on the use of force absent United Nations Security Council authorization.

A second point raised what that the events in Syria amount to genocide and crimes against humanity and therefore the ICC is competent to act. This is undoubtedly true; a UN report has classified the events in Syria in these terms. However, this fact alone does not found jurisdiction for the ICC, which is instead governed by Articles 12 and 13 of the Rome Statute. These articles set out that there is jurisdiction only in cases where the territorial State (where the crimes took place) or the State of which the accused is a national have accepted the competence of the Court or when the United Nations Security Council has referred the given situation to the Court. None of these circumstances exists in the case of the ongoing events in Syria. Ergo, the ICC does not have jurisdiction to act regarding alleged crimes in that country.

The last legal point raised was the alleged consensus of the United Nations Security Council regarding action in Syria. The view noted that neither Russia nor China shared this view and had prevented any formal adoption on intervention. The view appears to be that if the majority of the Security Council is in favor of action then this is tantamount to authorization by the Council. This is however in error. The Security Council cannot act without the affirmative votes or abstention of all five permanent members of the Council, including Russia and China. This is the so-called “veto power”. For better or for worse, all permanent members must agree (or abstain) to avoid deadlock.

Finally, a moral obligation to act in the face of allegations of international crimes was raised. I will abstain from this argument as it is extra-legal and raises many issues (worthy of discussion) that are outside the scope of the original post.

Thank you very much for the comments; they were very thoughtful and insightful.

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