Friday, September 10, 2010

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Kampala as cause to celebrate

Posted: 10 Sep 2010 03:18 AM PDT

(Part 3 of a 3-part series)

Celebration proved the closing theme of the 4th International Humanitarian Law Dialogs.
The final speaker at the recent upstate New York conference was William A. Schabas, Professor of International Human Rights Law and Director of the Irish Centre for Human Rights at the National University of Ireland-Galway. He asked whether the International Criminal Court Review Conference this summer in Kampala, Uganda (above left; credit) was "a moment of celebration or a disappointment." Schabas then answered his own question:

I think it is a great accomplishment.

The 1998 Rome diplomatic conference, Schabas recalled, had ended with a compromise on the extent of crimes the ICC may hear. Immediately operative were 3 core international offenses: genocide, crimes against humanity, and war crimes. Left for another day was a 4th: the offense of offensive warmaking, called crimes against peace in the Nuremberg era and known today as the crime of aggression. Article 5 of the Rome Statute grants the ICC jurisdiction over aggression, but postpones actual prosecution until adoption of a provision "defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime."
Negotiators worked on both definition and conditions for the next dozen years before the Assembly of States Parties adopted a package of proposed amendments, designed to give the ICC power to adjudicate allegations of aggression, at Kampala.
"At Kampala, it was not obvious even till the final minutes of the conference that it was going to succeed," said Schabas. "These were adopted in the final minutes of the conference, by consensus. If somebody had called for a vote, the votes probably weren't there." (credit for photo from Schabas' Kampala blog, depicting him, center, "discussing the amendments to article 8 with the Bulgarian delegation")
The central achievement was the definition of aggression in proposed Article 8 bis. "It will not be immune to judicial interpretation," Schabas said, and predicted "a liberal approach to its application."
Strong supporters of criminal punishment for aggression have expressed concerns that the Kampala package affords too many ways to avoid implication in that crime. (For details on the intricacies of these amendments, see our crime of aggression series.)
Agression, Schabas allowed, "may never be prosecuted, which may not necessarily be a bad thing. It simply confirms a deterrent effect."
Schabas sought to allay concerns about obstacles to entry into force, including a requirement of ratification by 30 states and further review in 2017. "I don't think they're actually going to be very difficult – not anywhere near as difficult as the obstacles appeared in 1998, of getting the 60 ratifications." (This latter milepost was reached in April 2002, so that the Rome Statute entered into force fewer than 4 years after its adoption. Today 113 of the United Nations' 194 member states belong to the ICC. Nonparties include China, India, Russia, Turkey, and, as discussed in yesterday's post, the United States.)
Nor, in Schabas' opinion, does it seem likely that political leaders of states parties will exercise the possibility of opting out of exposure to ICC pursuit should they be accused of aggression.
Endorsing a prediction that, as posted, ICC Judge Hans-Peter Kaul made earlier in the Dialogs, Schabas said:
I think that within 6 years, 4 months, and a few days we will have a court with jurisdiction over aggression, capable of prosecuting the crime.
This is an important step for international criminal justice, Schabas maintained, along a trail blazed by Robert H. Jackson, Chief U.S. Prosecutor at the Trial of the Major War Criminals held in Nuremberg after the Allies defeated Nazi Germany:

Jackson saw the link between war and other crimes, that war is at the center of it, that war is responsible for it. To the extent that the adoption of that amendment revives this, that is good.

On the trail that Jackson blazed lies the question of state responsibility. According to Schabas, it's a question that was entertained in the proposal of U.S. President George H.W. Bush and British Prime Minister Margaret Thatcher, following Iraq's invasion of Kuwait, to set up a tribunal competent to hear charges of aggression. But that proposal never was implemented, and the question of state responsibility was not addressed the international criminal fora that were set up after Cold War.
Why might some be less eager today to prosecutor perpetrators of aggression?
Schabas proffered 2 possible answers:
► 1st: "We have become a be more militarized than we should be." As posted yesterday, in an earlier Dialogs speech Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes Issues, had stressed, as a reason for caution in implementing the current Kampala aggression amendments as they now stand, that military intervention is at times necessary. Schabas replied:

Sometimes, yes. But nor would I exaggerate the importance of that, because war brings atrocities, inevitably.

►2d: Some civil society organizations seemed not to appreciate the significance of making aggression a crime punishable by the ICC. Schabas recalled: "I saw a banner that said, 'Civil Society Welcomes Stocktaking,'" another aspect of the Kampala Conference. "Civil society should have welcomed the amendment on aggression."
Echoing Judge Kaul's description of atrocities as the "excrement" of war, Schabas said of the crime-of-aggression package: "That's the big piece. It shows that," despite some growing pains at the ICC, "we have a court that is healthy and productive and moving forward.
　
(Part 1 of this 3-part series on the 4th IHL Dialogs is here; Part 2 is here.)

Third Four Societies Conference

Posted: 10 Sep 2010 01:08 AM PDT

(Delighted to welcome back alumna Anna Spain, who contributes this guest post)

Scholars from around the world recently gathered in Awaji, Japan, for the Third Four Societies Conference.
Hosting the end-of-August event was the Japanese Society of International Law. Along with the Australia and New Zealand Society of International Law, the Canadian Council on International Law, and the American Society of International Law, JSIL has participated in Four Societies since the conference was established in 2006, in order to foster a scholarly network of international law scholars that is truly global in its perspective. (IntLawGrrls posted on the second conference here.)
Nisuke Ando, Professor Emeritus of International Law at Kyoto University and Director of the Kyoto Human Rights Research Institute, delivered the keynote address, in which he framed the central theme of the conference: "International Law in the New Era of Globalization." In his remarks, Ando defined globalization not as an emerging trend but as an ongoing process that cannot be constrained within a particular point of time. He challenged participants to consider whether international law in an era of globalization intends to promote benefits that are shared by all.
The conference's seventeen participants -- approximately half of whom were women -- were selected to present scholarly works (papers available here) by their respective societies.
► ASIL selected the following people to attend on its behalf, pictured above from left to right:
yours truly, Anna Spain, Associate Professor at University of Colorado Law School; co-presenters Rahim Moloo, General Counsel at University of Central Asia, and Justin M. Jacinto, Associate at White & Case LLP, standing next to ASIL President David D. Caron; Anastasia Telesetksy, Associate Professor at University of Idaho Law School; and Michael J. Kelly, Professor at Creighton University Law School, standing next to ASIL Executive Director Elizabeth Andersen.
While scholars wrote on different subjects in the areas of the environment, globalization, human rights, humanitarian law, international dispute settlement, investment and trade, several central themes emerged:
► What is the role of sovereignty in today's world?
► How should we understand fragmentation, integration and harmonization?
► Should international law prioritize the collective interests of the international community?
► Is it time to democratize international law and increase the status of non-state actors?
After two days of presentations and commentary from the participants, the conference concluded with remarks by leaders of the four societies, including ASIL President Caron.
The participating scholars plan to publish their works as a collection in an edited volume.
The Fourth Four Societies Conference will be hosted by ASIL, under the leadership of Caron and Andersen, in 2012.

'Nuff said

Posted: 09 Sep 2010 11:00 PM PDT

(Taking context-optional note of thought-provoking quotes)

The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor ... for violation of the substantive due process rights guaranteed under the Fifth Amendment.

-- U.S. District Judge Virginia A. Phillips of the Central of District California, based in Riverside, in the 86-page opinion issued yesterday in Log Cabin Republicans v. United States, in which she ruled that the government's "Don't Ask Don't Tell" law violates the U.S. Constitution. Having so ruled on 5th Amendment due process grounds, Judge Phillips then proceeded to rule that the law, found at 10 U.S.C. § 654, which has been applied to lesbians and gays in the military since 1993, also violates the free speech and petition rights of the 1st amendment.

On September 10

Posted: 09 Sep 2010 09:44 PM PDT

On this day in ...
... 1998, in the Netherlands, diplomats adopted the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. This multilateral treaty (Secretariat logo at left) aims to improve health and the environment by encouraging interstate cooperation regarding trade in specified hazardous chemicals. Modes of cooperation may include information sharing and implementation of state-level processes for import and export of such chemicals. The Rotterdam Convention entered into force on February 2004, and now has 134 states parties. The United States signed the day after adoption; in the ensuing dozen years, however, it has not ratified the treaty.

(Prior September 10 posts are here, here, and here.)

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