Tag: security law

ICC v Islamic State? An Emerging Quandary

Editors Analysis, Articles

Last month, the United Nations High Commissioner for Human Rights released a report which concluded that the Islamic State had perpetrated gross violations of international criminal law, including acts amounting to possible genocide.  The High Commissioner recommended that Iraq accept the jurisdiction of the International Criminal Court (ICC) to investigate and prosecute crimes perpetrated within its territory under article 12(3) of the Rome Statute.

This suggestion triggered international debate over what role the ICC could and should have in prosecuting Islamic State leaders.

They key issue in this debate is whether the Security Council should refer the ongoing situation in Iraq and Syria to the ICC.  This has been previously advocated by UN human rights chief, Zeid Raad al-Hussein, and France has recently declared its support for such a resolution.

On 2 April 2015, the New York Times published an article by John Bellinger III — a former US legal adviser to the National Security Council and State Department — supporting a Security Council referral.  For international lawyers, Bellinger’s most compelling point is that the US and UK should not limit themselves to merely prosecuting Islamic State leaders for crimes committed against their citizens under their respective domestic legal systems.  An international prosecution by the ICC is necessary because:

[t]he group is engaging in widespread and systemic attacks against civilians in Iraq and Syria that constitute grave international crimes (including genocide)

Bellinger’s article is flecked with controversial political statements, which are picked up and attacked by Professor Kevin Jon Heller in a post on Opinio Juris.  Heller disagrees with Bellinger’s statement to the effect that it is more sensible for the ICC to investigate the Islamic State rather than have them investigate the US or the UK over treatment of detainees or Israel in respect of the 2014 conflict in Gaza.  Heller argues that ‘the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable’.

Heller also takes issue with a procedural point asserted by Bellinger — that a Security Council referral would be the only way to prosecute Islamic State because Iraq and Syria are not parties to the Rome Statute.  Heller responds that a referral is unnecessary, because the ICC’s jurisdiction is not territorial: it can prosecute the nationals of any state party to the Rome Statute.  As some prominent Islamic State figures are citizens of states who are party to the Rome Statute — like the infamous Jihadi John who is a British citizen — the ICC already possess a limited jurisdiction that would enable it to perform prosecutions.

However, on 8 April 2015, ICC Prosecutor, Fatou Bensouda joined the fray and stated that ‘[t]he jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage’.

Perhaps in a nod to the members of the Security Council, Bensouda goes on to remark that:

The decision of non-Party States and the United Nations Security Council to confer jurisdiction on the ICC is, however, wholly independent of the Court… I stand ready to play my part, in an independent and impartial manner, in accordance with the legal framework of the Rome Statute

However, the immediate goal of the international community is not the prosecution of Islamic State’s leadership, but the protection of Iraqi and Syrian populations and the ongoing military campaign against the extremist group.

 

Elders’ Proposal for UN Reform

Editors Analysis, Articles

In Australia this year we have heard, and will continue to hear, about the centenary of the ANZAC landings at Gallipoli. But 2015 is also the 70th anniversary of the end of the Second World War and the 70th birthday of the United Nations.

On 7 February 2015, The Elders – an organisation founded by Nelson Mandela, chaired by Kofi Annan and made up of prominent elder statesmen and women from across the globe – marked this anniversary by releasing a statement calling for reform of the UN’s structure and processes. It is entitled ‘Strengthening the United Nations’ and is part of a wider push to make the UN ‘fit for purpose‘.

The Elders’ targets are the veto-wielding permanent members of the Security Council, who think of their special status ‘almost as their natural right, sometimes forgetting that it is above all a responsibility’. They present four proposals to strengthen the UN and make it ‘fit for purpose in the 21st century’.

A new category of members

The Elders address a common roadblock to reform of the Security Council: if there are to be new permanent members, who should they be and what powers should they have? The proposed solution is a compromise:

Let the states which aspire to permanent membership accept instead, at least for the time being, election to a new category of membership, which would give them a much longer term than the two years served by the non-permanent members, and to which they could be immediately re-elected when that term expires. This would enable them to become de facto permanent members, but in a more democratic way, since it would depend on them continuing to enjoy the confidence of other member states.

This is the most radical of the Elders’ proposals and the only one that would require amending the Charter of the United Nations (Charter).

A pledge by existing permanent members

As the first words of the Elders’ statement remind us, the UN was founded ‘to save succeeding generations from the scourge of war’ (from the preamble of the Charter). However, too often has the Security Council’s ability to properly address war and humanitarian crisis been deadlocked by the use of the veto one or more of the permanent members. To address these failings, the Elders call for a pledge from existing permanent members to use their veto in a more transparent and principled way:

States making this pledge will undertake not to use, or threaten to use, their veto in such crises without explaining, clearly and in public, what alternative course of action they propose, as a credible and efficient way to protect the populations in question. This explanation must refer to international peace and security, and not to the national interest of the state casting the veto, since any state casting a veto simply to protect its national interests is abusing the privilege of permanent membership.

And when one or more permanent members do feel obliged to cast a veto, and do provide such an explanation, the others must undertake not to abandon the search for common ground but to make even greater efforts to agree on an effective course of action.

A voice for those affected

The Elders want to open doors on the decision-making of the Great Powers, and ensure that the voices of those affected by their decisions are properly heard in Security Council deliberations. They suggest an expansion of the existing ‘Arria formula’, whereby Security Council members hold consultative meetings on an issue with civil society representatives. Whereas meetings under the Arria formula are usually only attended by minor functionaries, in the future they should be a crucial part of the decision-making process, so that the Council’s:

decisions are informed by full and clear knowledge of the conditions in the country or region concerned, and of the views of those most directly affected.

A new process for choosing the Secretary-General

Finally, the Elders call for the process for the election of the Secretary-General selection to become more open and transparent. Currently they say that ‘for 70 years the holder of this post has effectively been chosen by the five permanent members of the Security Council, who negotiate among themselves in almost total secrecy’. But the Charter gives the power of appointment to the General Assembly, not the Security Council (who merely recommend a candidate to the General Assembly).

They call for a new process, where multiple candidates are proposed by the Security Council, ignoring gender and regional origin. In order to implement this new process, they:

suggest that the next Secretary-General be appointed for a single, non-renewable term of seven years, in order to strengthen his or her independence and avoid the perception that he or she is guided by electoral concerns. She or he must not be under pressure, either before or after being appointed, to give posts in the Secretariat to people of any particular nationality in return for political support, since this is clearly contrary to the spirit of the Charter. This new process should be adopted without delay, so that the United Nations can make full use of it to choose the best person to assume the post in January 2017.

This is a strong call to arms for reform of global governance at the highest level, and it comes from a group of men and women who have dedicated their lives to the project of global peace. Australia was a founding member of the UN in San Francisco, and Australians like H. V. Evatt were integral actors in its formation. Australia recently concluded a two-year term on the Security Council, during which it achieved important feats. If the time for reform of the UN is now, it is hoped that Australia will step up and exhibit the same leadership as it has at other key times in the UN’s history.

Legal Mechanisms to De-escalate Tension in the South China Sea – Hitoshi Nasu

Editors Analysis, Articles

The recent tension over the South China Sea, involving multiple parties in Southeast Asia, has raised concerns for the potential outbreak of an ‘inadvertent war’. As the claimants attempt to consolidate their claims, bolster their strategic position and exploit energy resources in disputed areas, there is potential for maritime incidents to recur, with the associated risks of escalation into a major outbreak of warfare. The United States Secretary of Defense, Chuck Hagel, highlighted this risk at the May 2014 Shangri-La Dialogue when he stated that:

in recent months, China has undertaken destabilizing, unilateral actions asserting its claims in the South China Sea. It has restricted access to Scarborough Reef, put pressure on the long-standing Philippine presence at the Second Thomas Shoal, begun land reclamation activities at multiple locations, and moved an oil rig into disputed waters near the Paracel Islands.

Arbitral proceedings, commenced by the Philippines against the People’s Republic of China (PRC), are unlikely to result in any form of settlement, given the PRC’s outright refusal to participate in the proceedings. Rather, they have the potential to exacerbate the dispute, depending on how the arbitration tribunal handles the proceedings.

The regional efforts to manage the dispute have focused upon negotiations towards the adoption of a legally binding Code of Conduct. Indeed, the ASEAN Foreign Ministers once again agreed in August 2014 on the need for a legally binding Code of Conduct in the South China Sea. While adopting such an instrument may have political significance, does the legally binding status of an agreement make any difference in preventing an ‘inadvertent war’ in the region?

A mutual undertaking of restraint by the disputing parties has already been agreed upon at the policy level — expressly provided in the Declaration on the Conduct of Parties in the South China Sea (DOC) adopted in 2002 — between ASEAN member states and the PRC. It confirms in paragraph 4 that ‘[t]he Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force’, which is merely re-affirming their existing legal obligations under articles 2(3) and 2(4) of the UN Charter.

While the DOC also refers to the Parties’ commitment to ‘exercise self-restraint in the conduct of activities that would complicate or escalate disputes’ in paragraph 5, it does not clearly set out what conduct is considered to constitute an activity that would complicate or escalate disputes. In the absence of a clear, mutual understanding of prohibited conduct through practical guidelines for example, the disputing parties may simply engage in ‘lawfare’ by justifying their military action with reference to legal concepts favourable to their position, such as sovereignty, the right of self-defence and freedom of navigation. Although scholars and policy makers appear to consider that the adoption of a legally binding Code of Conduct will somehow improve the situation, it is doubtful whether any concrete set of practical guidelines can be produced through political and diplomatic processes.

In this respect, the new Code for Unplanned Encounters at Sea (CUES), adopted at the 14th Western Pacific Naval Symposium held in Tsingtao in April 2014, could be of greater significance. Based on the Convention on the International Regulations for Preventing Collisions at Sea, CUES offers safety measures and procedures, a basic communications plan and manoeuvring instructions for when naval ships and aircraft encounter each other unexpectedly. They are expected to provide a much needed de-escalation mechanism.

CUES is limited in its ability to prevent maritime incidents in situations where, for example, one navy deliberately chooses to act in a way that irritates or threatens another: a destroyer locks its fire control radar on another, or one navy vessel observes the military exercises of another. Nevertheless, the successful adoption of CUES amidst rising tensions in the Asia-Pacific signifies room for negotiations towards a wider range of mutual understandings of prohibited conduct in the South China Sea, designed to avoid misunderstanding as to what might be considered as a threat or a hostile act and intent in manoeuvring vessels in the area.

The best way forward to deal with such highly politicised disputes is to remove political actors as much as possible from the negotiating tables in producing a concrete set of practical guidelines on prohibited conduct in the South China Sea.

Hitoshi Nasu is Senior Lecturer, ANU College of Law, and Co-Director, Center for Military and Security Law (CMSL) and Australian Network for Japanese Law (ANJeL)