IntLawGrrls |
- The Aggression Negotiations
- Intersectionality and the U.N. Special Rapporteur on Violence Against Women
- On September 2
| Posted: 02 Sep 2010 02:58 AM PDT Several IntLawGrrls attending the ICC Kampala Review Conference provided blow-by-blow accounts of the negotiations on the crime of aggression and the stocktaking. I've recently completed a paper that provides a thick description of the negotiations and an analysis of the final jurisdictional package (based in part on research presented in our crime of aggression series). The full paper is posted here. The paper recounts the perennial difficulty of reaching consensus on when and how to prosecute the crime of aggression, which stemmed from the recognition that the crime by its nature involves both state action and individual conduct. From virtually the beginning of the  negotiations, it was argued that an aggression prosecution should not go forward absent some definitive showing that a state had committed a predicate act of aggression. Where delegations diverged was in deciding on which body should be empowered to determine this consensus: the oligarchic Security Council, in keeping with its role under the U.N. Charter as the arbiter of peace and security, or some other body, including perhaps the Court itself. Because state action was deemed to be so central to an aggression prosecution, delegates also raised the question of whether it was necessary for some state—the putative aggressor state(s), the victim state(s), or all of the above—to have consented to the Court's jurisdiction in some fashion before a prosecution could proceed. Although these two issues—the role of the Security Council and state consent—were present in Rome where the ICC Statute was promulgated, they emerged in starker relief in Kampala.States opposed to Security Council control of aggression prosecutions congregated around two irreconcilable positions: one—idealistic if not hopelessly naïve—seeking a fully independent Court, capable of exercising a universal form of jurisdiction over the crime of aggression, and another—more cautious—insisting that jurisdiction be premised on some manifestation of state consent and endeavoring to find a compromise that would satisfy Council members. States in these two camps were natural allies against the position of the permanent five members of  the Council (P-5): Council control of aggression prosecutions. Nonetheless, the P-5's interlocutors' struggled to overcome their collective action problems and find common ground on a jurisdictional package that did not involve the Security Council, notwithstanding a host of creative solutions put forward in Kampala.For their part, the P-5 had difficulty asserting their full influence as well. Indeed, with China, Russia, and the United States all observers during the negotiations, and the United States a latecomer at that, it was left to France and the United Kingdom (the P-2) to formally defend postwar privileges. And yet, legal arguments in favor of Council exclusivity in the aggression realm proved unconvincing in light of contemporary United Nations practice. Policy arguments, in turn, were never persuasively developed and were in any case undermined by the Security Council's checkered history of responding to breaches of the peace. States that in the past might have been convinced to endorse a strong, if not exclusive, role for the Council instead espoused voluntarist attitudes that undercut the preferences of the P-5. In the end, the coalition of states favoring strong aggression provisions abandoned its ideals and backed an unimpeachable regime of state consent with retrograde elements—one that completely insulates the nationals of non-states parties from prosecution and allows states parties to opt out of the crime entirely—in order to defeat one controlled by the Security Council. This concession attests to the extreme—if not irrational—antipathy felt by many states toward the Council. Speaking through the P-2, the P-5 reluctantly joined the consensus. This was notwithstanding that the results achieved in Kampala have once again subtly eroded the primacy of the Security Council, as states revealed a preference for a consent-based regime and a willingness to extend international criminal jurisdiction to their own nationals and over their own foreign policies. Notwithstanding the suggestion in the ICC Statute that there should be greater harmonization between the ICC and the Security Council in the aggression context, the Security Council was not ultimately accorded any additional powers vis-à-vis aggression prosecutions. Indeed, the aggression amendments may have actually diminished the efficacy of the Council's pre-existing referral power and created the potential for greater conflict between the Council and the Court. The outcome in Kampala thus presents a microcosm of the continual thinning of state sovereignty and the indelible shift in the balance between power and law in contemporary international relations. The article, entitled Negotiating at the Interface of Power & Law: The Crime of Aggression, engages the aggression amendments and the process by which they were adopted in three Parts. Part II introduces the central themes at issue, presents a short history of the multilateral efforts to codify the crime and its jurisdictional regime, and describes the negotiating dynamics in Kampala. Part III provides a thick description of the arc of the most recent negotiations and recounts states' recurring efforts to mix and match jurisdictional elements to reach a consensus outcome and avoid either a contentious vote or continued deferral of the entire project. Part IV discusses the validity of the substantive arguments made by negotiating states and their rhetorical impact and offers a critique of the negotiation process. The Article closes with a discussion of the way in which the negotiations and the final amendments invoked and rebalanced the central themes of power politics, state consent, and judicial independence within public international law. I welcome your comments!  |
| Intersectionality and the U.N. Special Rapporteur on Violence Against Women Posted: 01 Sep 2010 09:01 PM PDT  The United Nations Special Rapporteur on Violence Against Women, Rashida Manjoo, will present a thematic report to the Human Rights Council in June 2011. Manjoo's report will focus on intersectional forms of discrimination in the context of violence against women. Manjoo, who has held the appointment of Special Rapporteur since 2009, comes to the office with impressive credentials from her years as an advocate of the High Court of South Africa, as the former South African Parliamentary Commissioner of the Commission on Gender Equality, and as an accomplished activist focusing on violence against women within South Africa.The Special Rapporteur should be applauded for undertaking the research to produce a report on intersectionality and violence and to bring it to the attention of the Human Rights Council. Not since the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, has the Special Rapporteur's office engaged with issues of intersectionalit  y in such a meaningful way. In 2001, the then-Special Rapporteur, Radhika Coomaraswamy, issued a report in preparation for the World Conference that was important in challenging the U.N.'s historical tendency to compartmentalize human rights abuses as either the result of gender discrimination or racial discrimination -- but not both. In the past, I have critiqued the U.N. human rights treaty bodies' tendency to neatly compartmentalize forms of discrimination rather than explore their intersections. I am encouraged to see the Special Rapporteur's office undertake to study the myriad ways in which women are targeted for violence based not only on gender but also on their membership in ethnic, religious, sexual, and other minority communities.  |
| Posted: 01 Sep 2010 09:00 PM PDT  On this day in ...... 1998, was issued the 1st judgment of conviction for genocide against a defendant who stood trial before an international tribunal. Convicted in the Trial Chamber judgment in Prosecutor v. Akayesu was the former bourgmestre, or mayor, of a Rwanda community afflicted by massacres and other atrocities in 1994. As I've written here and here, the judgment was a landmark for many reasons, among them: its ruling that "sexual violence" is a crime within the jurisdiction of the International Criminal Tribunal for Rwanda (above left); and its teleological interpretation of the protected-groups element of the proscription codified in Article II of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide and included verbatim in Article 2 of the ICTR Statute. (photo credit) (Prior September 2 posts are here, here, and here.)  |
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