How are the right to food and customary law linked? An Australian and South African comparison – Anna Bulman
Prior to colonisation, African peoples and Australian Aboriginal and Torres Strait Islander peoples lived in close connection with the land and environment, and governed themselves according to their own complex systems of law. With the colonies came completely different legal systems that were imposed onto the captured land, and which failed to properly recognise the existing structures. More
The ICJ’s docket grows in June 2016: an overview of Iran v US, Equatorial Guinea v France and Chile v Bolivia
This month, three contentious cases have been instituted by States in the International Court of Justice (ICJ).
This breaks a dry spell for the ICJ, where no proceedings were commenced in 2015.
In July 2015, the United Nations Human Rights Council issued Resolution 29/22 on the protection of the family as the natural and fundamental group unit of society. The Human Rights Council requested that the Office of the High Commissioner for Human Rights (OHCHR) prepare a report on the protection of the family and present it at the 31st session of the Human Rights Council. Such a report is a relevant step forward for lesbian gay bisexual and transgender (LGBT) parent-families’ rights within the United Nations aegis.
Resolution 29/22 focused on issues related to single-headed households, protection of children, disparity of household responsibilities between men and women and the protection of disabled members of families. To prepare the report, a note verbale was sent; 24 states and 81 civil society organisations responded with their input to the OHCHR. In particular, Denmark pointed out that Resolution 29/22 does not ‘properly recognize [sic] the fact that various forms of families exist’. Furthermore, the United Kingdom, the United States, and organisations such as Sexual Rights Initiative, and OutRight Action International, asked the OHCHR to consider LGBT parent-families.
Indeed, in the report submitted by the OHCHR to the Human Rights Council pursuant to item 37 of Resolution 29/22 (OHCHR report), the OHCHR states that there is no definition of ‘family’ in international law, and that there is a general consensus within UN documents that the concept of ‘family’ must be understood in a ‘wide sense’. While states maintain a margin of appreciation in defining the concept of family (para 26), the report encourages states to ensure that children born in de facto unions and in LGBT parent-families have equal rights of those born from married and heterosexual couples (para 42).
However, the OHCHR report also reiterates that men and women of full age have the right to marry (para 28. See also article 16 of the Universal Declaration of Human Rights and article 23(2) of the International Covenant on Civil and Political Rights (ICCPR)), and this right can only be understood to mean that a man can marry a woman and vice versa. Indeed, in 2002, the UN Human Rights Committee clarified in Joslin et al v New Zealand that the expression ‘men and women’ denotes that only different sex couples have the right to marry, because the drafters of the ICCPR considered marriage to mean an exclusively heterosexual institution (Luca Paladini, ‘Same-Sex Couples before Quasi-Jurisdictional Bodies: The Case of the UN Human Rights Committee’ in Daniele Gallo, Pietro Pustorino, Luca Paladini (eds) Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, Heidelberg, 2014) 533 at 545). Nevertheless, the OHCHR report also stresses that the Committee on Economic, Social and Cultural Rights has called upon states to provide some sort of legal recognition — for example civil partnership acts or legal recognition of de facto couples — for same-sex couples (OHCHR report, para 27).
The prohibition of discrimination on grounds of sexual orientation and gender identity is a politically controversial issue and a developing concept in international human rights law (Frederick Cowell and Angelina Milon, ‘Decriminalisation of Sexual Orientation through the Universal Periodic Review’ (2012) 12 Human Rights Law Review 341 at 344; Ronald Holzhacjer, ‘State-Sponsored Homophobia and the Denial of the Right of Assembly in Central and Eastern Europe: The “Boomerang” and the “Ricochet” between European Organizations and Civil Society to Uphold Human Rights’ (2013) 35 Law & Policy 1 at 8). In general, issues related to LGBT rights — particularly those related to LGBT family rights — trigger strong reactions from conservative/religious states and organisations. Indeed, conservative voices did not delay in expressing their disappointment with the OHCHR report. In February 2016, Global Helping to Advance Women and Children, the UN Family Rights Caucus and 26 organisations with consultative status at the UN Economic and Social Council submitted a written statement to the UN Secretary General (A/HRC/31/NGO/155) which maintained that the OHCHR report seeks to advance the status of LGBT relationships contrary to international law. The written statement continued to say that the claim that there is a general consensus within the UN on the term ‘various forms of families’ is ‘false and disingenuous’; and concluded by calling upon the OHCHR to edit the report by removing reference to the recognition of different forms of families.
In conclusion, the mention in the OHCHR report to different types of families, and the prohibition of discrimination against children born in LGBT parents-families, are much-needed steps forward in the advancement of LGBT family rights. However, at this point, it is crucial to see whether a second resolution on the protection of the family can evolve in a direction that reflects the sentiments expressed in the OHCHR report.
Giulia Dondoli is a PhD Candidate at Te Piringa — Faculty of Law of the University of Waikato.
The future of warfare lies not in drones that are remotely controlled by a pilot, but in unmanned weapon systems that can independently acquire, track and engage targets.
In fact, this future has been a reality since at least the 1980s, in one respect or another. Weapon systems such as the Phalanx Close-In Weapon System, the Aegis Weapon System and the Iron Dome Weapon System detect incoming threats and react to them without requiring a human to pull the trigger.
But there is a difference between these types of mechanised responses and autonomous weapon systems that are able to select and analyse a target, and decide whether or not to attack it.
The latter are the subject of this article, which proceeds in three parts to explain what autonomous weapons are, what issues they raise at international law, and what they may mean for the future of war.
What are autonomous weapon systems?
In 2013, as part of a test mission, an Air Force B-1 bomber deployed a Long Range Anti-Ship Missile (LRASM) over Point Mugu, off the coast of California. Although pilots initially directed the LRASM, the weapon entered its autonomous mode half way through its voyage. Without any further human intervention, it analysed three possible ships before selecting one to attack.
Weapon systems with some level of autonomy are already being used, and may be considered for deployment by Australia by the mid-2020s (Defence White Paper at 2.81). Autonomy is a matter of degree, but the LRASM evidently displays a high level of it. It is different from the defensive systems described above, which react on the basis of pre-programmed rules to intercept incoming threats. We know precisely what the Iron Dome will do to an incoming missile. Autonomous weapon systems, on the other hand, behave in a way that is not exactly predictable.
What else we know about autonomous weapon systems is mostly hypothetical. Their use for lethal force is banned by the US Department of Defense up to 2022 (US Department of Defense, Directive Number 3000.09: Autonomy in Weapons Systems at [4.c.(3)] albeit with some exceptions [4.d.]). But we do know that they will not be silver screen, silver-boned killer robots from the future. A definition offered by the US (Directive Number 3000.09, Part II: Definitions) explains that these are systems that ‘once activated can select and engage targets without further intervention by a human operator [emphasis added].’ There is necessarily some human interference.
What human interference does not do, however, is the legally significant act of selecting and engaging a target. Where that act is not subject to meaningful human control, including where there is an override function but the response happens so quickly that it would be impossible for a human operator to keep up, the weapon may be considered autonomous.
How to regulate autonomous weapons systems?
According to a report by the Special Rapporteur on Extrajudicial, Summary and Arbitrary Execution to the UN Human Rights Council, such weapons should meet international standards before even considering them for deployment (Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary & Arbitrary Execution). As yet, there are no specific treaties dealing with autonomous weapon systems, but per Article 2(b) of the Additional Protocol I to the Geneva Conventions (API), generally recognised principles and international humanitarian law (IHL) continue to apply.
Article 36 of the API requires states to determine whether new weapons are prohibited under international law. That determination requires consideration of two further API articles: article 35(2), which prohibits weapons causing unnecessary suffering or superfluous injury, and article 51(4)(b), which prohibits inherently indiscriminate weapons (for a more in-depth look at how these provisions affect autonomous weapons, see Kenneth Anderson & Matthew C. Waxman, ‘Law and Ethics for Autonomous Weapon Systems: Why A Ban Won’t Work and How the Laws of War Can’, Stanford University, The Hoover Institution (Jean Perkins Task Force on National Security and Law Essay Series), 2013). Autonomous weapon systems tend to offer a new method of delivering existing weaponry, including bombs and bullets, so they are unlikely to be the subject of a blanket ban in this regard. However, the use of such weapons may still contravene IHL if the weapons are incapable of exercising the principles of proportionality and distinction (International Committee of the Red Cross, Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects 75).
Proportionality demands the balancing of military advantage against civilian injury. Assessment of a target’s worth is typically carried out on-scene by a commander who makes a judgment call. It does not adhere to a system of precedent, or a rigid ratio, so programming a weapon to make such an assessment may be difficult, particularly as that assessment may change from minute to minute based on new intelligence.
Distinction forbids the targeting of persons who are not directly taking part in the hostilities, and although autonomous weapon systems can be fitted with advanced sensors to process biometric data, they may not be able to account for the difficult and fluid line between civilians and combatants (Peter Asaro, ‘On Banning Autonomous Weapon Systems‘; the International Committee of the Red Cross has released an entire guide to interpreting what direct participation in hostilities means, see Nils Mezler, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law). Civilians can become legal targets if they take up arms, which sensory equipment may be able to process, but also if they perform acts to assist military operations without actually carrying a weapon. Likewise, combatants may or may not become illegal targets if they are hors de combat due to injury, but that depends on the severity of the injury.
Are automated weapon systems capable of following the law? In fact, some argue that a properly programmed weapon system will follow the law perfectly (Marco Sassoli, ‘Autonomous Weapons: Potential Advantages for the Respect of International Humanitarian Law’). It will not react in anger or panic, seek revenge or withhold information concerning its own conduct. Human soldiers do not always exercise complete compliance with IHL. Can machines do so perfectly? And if they cannot, and can only comply to the same imperfect level as humans, is that good enough?
And what if programming fails? Assigning liability is a challenge. A machine cannot be convicted of war crimes. The prosecution of developers and manufacturers is unlikely – as a preliminary bar, IHL only applies once hostilities have begun. Weapons developed in the lead up to war, or during peace, fall outside of the temporal coincidence required (Tim McFarland and Tim McCormack, ‘Mind the Gap: Can Developers of Autonomous Weapons Systems be Liable for War Crimes?’ 372). Those who procured the weapon may face the same challenge. Even if they did not, should they really hold legal responsibility? It would also be difficult under modes of liability to implicate a commander – if the weapon is autonomous to a degree that it selects and engages its own target, the commander may not have the requisite knowledge of pending criminal acts (Jack M. Beard, ‘Autonomous Weapons and Human Responsibilities’ (2014) 45 Georgetown Journal of International Law 647, 658). For command responsibility to apply, the principle would have to be modified. But is that level of culpability appropriate if the weapon behaved autonomously?
Why regulate autonomous weapons systems?
The real conceptual difficulty with autonomous weapon systems is not one for lawyers, but one for ethicists. Article 1(2) of the API, the so-called Martens Clause, states that in the absence of other agreements, we must be guided by the principles of humanity and public conscience. Does that humanity-guided decision-making involve moral and intuitive paths that are not algorithmic in nature?
Consider Mark Bowden’s widely read 2013 article in The Atlantic, ‘The Killing Machines’, which recounts the experience of a 19-year old drone operator. In 2013, when a truck began shooting at a patrol of marines in Afghanistan, he fired a Hellfire missile at the vehicle and destroyed it. Those marines were at war in Afghanistan. The drone operator was at an office building in the US. Months later, he was still bothered by delivering a ‘deathblow without having been in any danger’.
Of course, for militaries around the world, this is one of the most significant benefits of autonomous weapon systems. True, machines are faster than humans in collecting, processing and acting upon information. They are also more accurate in firing at their selected targets and thus reduce civilian casualties (Avery Plaw, Matthew S. Fricker & Brian Glyn Williams, ‘Practice Makes Perfect?: The Changing Civilian Toll of CIA Drone Strikes in Pakistan’), and are not subject to fatigue or emotional responses. These are military advantages. But there is also an ethical advantage. The machine assumes the risk of war (Ronald Arkin, ‘Lethal Autonomous Systems and the Plight of the Non-Combatant’, ASIB Quarterly, No. 137, 2013). For every unmanned weapon system deployed in a battlefield, at least one human soldier does not have to face that risk.
Autonomous weapon systems will never be bothered by a lack of mutual risk. The use of highly autonomous systems may remove the culpability of the human in the act of killing, an act to which humans face a psychological barrier (see, eg, David Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society (Little, Brown & Co, Boston, 1995)). But does the decreased personal responsibility in this area make it easier to ethically disassociate from the costs of war?
Aneta Peretko is a solicitor and the Chair of the South Australian International Humanitarian Law Collective, a group of young people who share an interest in the law of armed conflict. The views expressed in this article are solely her own.
The politics of aggression and its susceptibility to regulation by domestic and international criminal law: Is it an act unsuitable for legal regulation generally? — Sophocles Kitharidis
Definitional, jurisdictional and regulatory issues surround the crime (and act) of aggression, and its status as a legal act. This post examines whether the determination of an act of aggression — which is made by the United Nations Security Council (UNSC) and is soon to be justiciable before the International Criminal Court (ICC) — is and will always remain a primarily political (rather than legal) act.
The UNSC has the power to declare an event an act of aggression under the UN Charter (Article 39, Chapter VII). The crime of aggression, on the other hand, will fall within the jurisdiction of the ICC under the Rome Statute in 2017, and concerns:
the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.
Two competing schools of thought exist when it comes to approaching the complex task of interpreting aggression as an act capable of legal regulation. First, there are states that argue that the ICC should be the only institution with the right to exercise jurisdiction over aggression once the UNSC has determined that an act of aggression has occurred (Matthew Gillett, ‘The Anatomy of an International Crime: Aggression at the International Criminal Court’ (2013) 13 International Criminal Law Review 829). Such an approach indicates that the ICC would be in a position to only make determinations about the ‘leadership elements’ of aggression (see Report of the Special Working Group of the Crime of Aggression Doc. ICC-ASP/6/20/Add.1/Annex II). In contrast, the second school of thought argues that there are a lack of existing legal frameworks that demonstrate the contentions of the UNSC in determining and asserting the ICC’s independence and rights protection framework for the accused; after all the ICC is required to adjudicate all elements of the crime of aggression (Davis Brown, ‘Why the crime of aggression will not reduce the practice of aggression’ (2014) 51 International Politics 648). This line of thought leads to the argument that aggression is not regulated by criminal law.
This post argues that although a limited legal framework exists to regulate the crime of aggression (and within a criminal law context), there remain significant concerns. It first discusses aggression in the context of article 5(2) of the Rome Statute. It also sets out legal and policy arguments for why aggression may be considered a political rather than legal act. Finally, it articulates the ramifications of its proposed legal status.
Aggression and article 5(2)
Article 5(2) of the Rome Statute sets out the conditions under which the ICC can exercise its jurisdiction over acts of aggression:
The court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
In his submission to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Sir Franklin Berman argued that interpretation of this provision may be that
the reference to aggression in article 5 and, in particular, the last sentence of paragraph 2 of that article, which mentioned the Charter, [is] a reference to the requirement of prior determination by the Security Council that an act of aggression had occurred
This position is reiterated by Meron, (Theodor Meron, ‘Defining Aggression for the International Criminal Court’ (2001) 25 Suffolk Transnational Law Review 1), Zimmermann (Andrew Zimmermann, ‘Article 5’, in Otto Triffterer and Kai Ambor (eds), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Articles by Article) and Scheffer, where Scheffer referred to the provision as opaque due to its nature not indicating whether the ICC can prosecute the crime of aggression absent a prior determination by the UNSC that an act of aggression has taken place (Cited in Carrie McDougall, ‘When Law and Reality Clash — The Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court’s Jurisdiction over the Crime of Aggression’ (2007) 7 International Criminal Law Review 277, 280). It is argued that the provision was drafted in order to accommodate both the states that favour the crucial power held by the UNSC to determine the existence of aggression (and therefore the power to regulate its prosecution), as well as states that opposed any ‘special role’ for the UNSC in the prosecution of aggression. In this regard, The Rome Statute interlinks (or at least appears to interlink) with the UN Charter.
Exclusive authority by the UNSC — The importance of UNSC determinations
The UNSC has power to identify an act of aggression pursuant to article 39 of the Charter. The provision states that the UNSC
shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
Whilst article 39 provides the legal basis for the characterisation of an act as one of aggression, as outlined below, the making of the determination itself is inherently political (McDougall above 281). In 1991, the International Law Commission provided an opinion on these political dimensions during discussions on the Draft Code of Offences against the Peace and Security of Mankind, asserting that both the crime and threat of aggression can be interpreted as ‘sui generis in that, by definition, they existed only if the Security Council characterised certain acts as such’ (See the Report of the International Law Commission on the Work of its Forty-Third Session).
On this point, Akande notes that the determination of whether a situation is a threat or breach of the peace or an act of aggression is clearly non-justiciable. It cannot be answered by ‘recourse to legal reasoning as there are no legal standards by which to reach a decision. It involves a political decision as to factual ammeters and is in no way constrained by legal considerations’ (Dapo Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations’ (1997) 46 International and Comparative Law Quarterly 309, 338). The UNSC’s interpretative exercise requires an evaluation of facts and an ‘appraisal of the international political situation to see both whether a particular label is justified and whether the interests of international peace and security will be furthered’ (McDougall above 281).
There is obiter commentary by the International Court of Justice that supports the UNSC’s exclusive prerogative to determine aggression. In his dissenting opinion in the Lockerbie Case, Weeramantry held that:
… the determination under article 39 of the existence of any threat to the peace, breach of the peace or act of aggression, is one entirely within the discretion of the Council. It would appear that the Council and no other is the judge of the existence of the state of affairs which brings Chapter VII into operation. That decision is taken by the UNSC in its own judgment and in the exercise of the full discretion given to it by Article 39. Once taken, the door is opened to the various decision the Council may make under that Chapter. Thus any matter which is the subject of a valid Security Council decision under Chapter VII does not appear, prima facie, to be one with which the Court can properly deal. [page 66]
Similarly, the International Criminal Tribunal for Yugoslavia in the Kanyabashi Case made an argument that also applies to aggression, stating that:
… the Security Council has a wide margin of discretion in deciding when and where there exists a threat to international peace and security. By their very nature, however, such discretionary assessments are not justiciable since they involve the consideration of a number of social, political and circumstantial factors which cannot be weighed and balanced objectively by this Trial Chamber. (at paragraph )
Consequently, international criminal tribunals recognise that the determination of an act of aggression by the UNSC has a political dimension. Within this political context, the nature of article 39 determinations can also be viewed through the veto power of the UNSC’s permanent five members, which is ‘exercisable in relation to substantive questions’ that include the characterisation of acts of aggression (McDougall above 283). De Wet contends that the ‘structural bias in favour of the major powers is a clear indication that decisions in the interest of peace and security will be based exclusively on (national) political considerations’ (Erika De Wet, The Chapter VII Powers of the United Nations Security Council 134–5. See also McDougall above 283) as well as interests. Kelsen argued that the UNSC is not limited to ‘taking enforcement measures under articles 41 and 42’ as article 39 allows the UNSC to make recommendations ‘of any kind’ (Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems 438. See also McDougall above 284).
Another argument of concern relates to article 103, which states that
[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
The issue is that any Rome Statute provision granting the ICC jurisdiction to determine aggression would conflict with articles 24, which outlines the UNSC’s powers in respect of international peace and security, and 39, ‘which grant the Security Council the exclusive ability to determine the existence of acts of aggression and establish an obligation of the Member States to uphold the Security Council’s rights’ (McDougall above 285). Of further concern is where the UNSC adopts a resolution clearly identifying an act of aggression. Here, and on the basis of article 25, ‘it is claimed that a resolution determining the existence of aggression would be binding on the Member States of the United Nations and therefore all States Parties to the Rome Statute’ (McDougall above 285–6). Consequently, it is arguable that ICC judgments regarding the crime of aggression that reach an alternative conclusion to the UNSC’s resolutions would ‘create inconsistent obligations and therefore be unenforceable pursuant to article 103 of the Charter’ (McDougall above 286).
Policy considerations when determining and regulating aggression
If the determination of aggression is a political rather than legal act, then attention must be paid to the policy considerations driving that determination. These must be viewed through a realpolitik lens (McDougall) since the permanent five members of the UNSC and their allies view UNSC determination as the ‘conditio sine qua non for the inclusion of the crime of aggression’ (Hermann Von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’ in Roy S Lee (ed) The International Criminal Court: The Making of the Rome Statute 84). Scheffer also places a degree of an emphasis on realpolitik by viewing aggression as ‘one crime that other nations may seek to charge our deployed military with, regardless of the merits.’ He views it as a crime that ‘invites political manipulation to serve the interests of whoever regards any projection of military power to be aggressive’ (Quoted in McDougall above 307. See also D D N Nsereko, ‘Bringing Aggressors to Justice: From Nuremberg to Rome’ (2005) 2 University of Botswana Law Journal 5).
There are other interpretations of how the permanent five members of the UNSC can ensure that it possesses the crucial prerogative to determine the occurrence of aggression. First, they desire the ability to protect their leaders from ICC prosecution (regardless of the merits of the legal case). Secondly, they will go above and beyond to protect this privileged status within the international arena ‘in the context of increasing debate about the need for Security Council reform’ (McDougall above 308). Thirdly, they are concerned with the ICC having jurisdiction over the crime of aggression, with their position being ‘premised on a belief that jurisdiction could be a sticking point, ultimately leading to a breakdown in negotiations’ (McDougall above 308). Such politics may see the crime of aggression undermined by the UNSC. The UNSC’s actions concerning aggression are evidence of ‘the legality of the State act element of the crime’; that is, actions leading to a less hostile and more cooperative relationship that provides for ‘resolutions vis-à-vis allegedly aggressive acts’ being drafted by the UNSC and considering future prosecutions (McDougall, 308).
Other policy arguments have been put forward demonstrating that aggression is more a political act:
- If the ICC has the right to determine the existence or occurrence of aggression, it undermines the UNSC since it can make the determination in situations where the UNSC failed to make an article 39 determination or taking enforcement measures under Chapter VII; (McDougall above 309. See also Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, at paragraph );
- In a situation where the ICC determines the existence of aggression, the UNSC loses its ability to negotiation peaceful settlement of conflicts by offering amnesty; (McDougall above 309. See also Allegra Carroll Carpenter, ‘The International Criminal Court and the Crime of Aggression’ (1995) 64 Nordic Journal of International Law 223);
- ‘the ICC is not equipped to consider matters that may lie at the heart of allegations of aggression such as maritime boundaries, the scope of legitimate self-defence under article 51, and the status of self-help remedies under international law’ (McDougall above 309); and
- The ICC only possesses jurisdiction over natural persons and not states, so there would be implications for the rights of States (McDougall above 309. See also James Nicholas Boeving, ‘Aggression, International Law and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute’ (2004) 43 Columbia Journal of Transnational Law 557).
This piece has laid bare the political context of a determination of an act of aggression. Determination is a political rather than legal act, in part due to ineffective legal mechanisms in the UN Charter. However, it is also due to the considerations of great powers that wish to protect their privileged status in the international arena. The legal regulation of aggression by the ICC remains hostage to the political decisions of the UNSC, and whilst from 2017 the ICC will have jurisdiction to prosecute the crime, its ability to do so will rest on political decisions in New York rather than evidence tendered in The Hague.
Sophocles Kitharidis is a public international law adviser and consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victoria) and he holds a Master of Laws in Public International Law from the University of Melbourne.
ILA Event – International Rules on the Use of Force: Implications for Russia + Ukraine, China + South and East Chinese Seas – 20 August 2015
The ILA is pleased to announce that Dr Alison Pert will deliver a seminar which will cover the history and extent of the maritime territorial claims of China in this area, the competing claims from other states in the region, the arbitral proceedings brought by the Philippines, and the legal status of the islands being created or expanded through Chinese dredging and land reclamation.
Dr Pert will also briefly review the recent history of Russia’s intervention in Ukraine, focussing on the legal justifications advanced by Russia. In light of the status of Russia and China as permanent members of the UN Security Council, protected from Security Council censure by their veto power, Dr Pert will raise the question of the role of international law, and the UN Charter system of collective security in particular, in this new post-post-Cold War era.
The event will be held at 5.30 pm (for a 5.45 pm start), 20 August 2015 at Marque Lawyers, Level 4, 343 George Street, Sydney.
Please RSVP to Phoebe Saintilan (firstname.lastname@example.org) by 18 of August 2015.
A copy of the event flyer is accessible here.
On 5 May 2015, Professor Surya Subedi OBE delivered a speech at the University of Leeds on his time as UN Special Rapporteur for Human Rights in Cambodia from 2009 to 2015. Professor Subedi is Vice-President of the ILA Nepalese Branch and Member of the ILA British Branch.
The lecture is titled ‘Life as a UN Special Rapporteur’ and the ILA Reporter is proud to make available a copy to its readers. To access the speech, please click here.
The life of a Special Rapporteur is described by Professor Subedi as that of ‘an international diplomat, a human rights activist, a human-rights law academic, and a government adviser – simultaneously’ (p. 38). The speech is an insightful and entertaining story of what it means to juggle these ‘hats’ at the same time.
Professor Subedi’s role took some interesting turns during his time in office. At one point, he became the de facto mediator between the Cambodian government and opposition during the political stalemate following disputed 2013 elections. At other times, he operated as a government critic and was very nearly declared persona non-grata by Cambodian authorities. Whilst such status is apparently something of a ‘badge of honour’ in the international human rights community, Professor Subedi says that he is happy enough with his OBE from Her Majesty the Queen of the UK.
Professor Subedi’s style as Special Rapporteur was characterised by robust critique layered in soft diplomatic language. Indeed his style earned him the dubious title of ‘old whisky in a new bottle’ from the Cambodian Prime Minister. In the Editors’ views, coming from the man the subject of the criticism, that’s a pretty good nip.
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.
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.