CIAO DATE: 10/2010
Volume: 2, Issue: 2
August 2010
Editorial (PDF)
Stephan Hobe, Jörn Griebel
The global financial crisis has not only instigated states to enact a wide range of protectionist measures, by which they seek to protect their economic interests, but it also forms the background against which possible justifications regarding protectionist measures have to be discussed and measured. The present article examines recent examples of protectionist measures and discusses, to what extent such measures may be justified by rules stemming from the WTO legal regime or international investment law in general. The authors focus on the concept of “economic necessity”, which is enshrined in Art. 25 of the ILC Articles on State Responsibility and which has taken on even greater importance due to the Argentina investement law cases. They furthermore explore, whether this concept has been recognized by the WTO legal regime and/or bilateral investment treaties (BITs) and what criteria would have to be met so that a state could successfully rely on necessity to justify its actions in times of an economic crisis.
Reservations and the Effective Protection of Human Rights (PDF)
Johanna Fournier
Already since the first United Nations (UN) human rights treaties have been signed in 1966, it has been contested whether signatory states should be allowed to make reservations to different articles of the treaties. Many argue that reservation undermine the treaties and are not compatible with the universal application of human rights. One might hence ask whether reservations are compatible with human rights at all. Without disagreeing with these demurs, this essay will reverse the question: Is an effective protection of human rights possible without reservations? To answer this question, this essay will outline the current legal and practical framework on making reservations to UN human rights treaties in Part A. and will present a possible modification to this framework. In Part B. it will then demonstrate how reservations can be used to actually advance the effective protection of human rights. By being used as a starting point for the dialogue between the treaty bodies and the signatory state, reservations do not undermine human rights treaties, but support their purpose: the effective protection of human rights.
The Future of Peacekeeping in Africa and the Normative Role of the African Union (PDF)
Charles Riziki Majinge
While it has been the responsibility of the United Nations to conduct peacekeeping operations on the continent, the trend is gradually changing. African Union and its regional organizations (RECs) are increasingly assuming responsibility of securing peace and stability on the continent. Many reasons militate in favour of this trend. Chiefly the unwillingness of the United Nations Security Council and of the developed countries to intervene timely and adequately to avert humanitarian catastrophes as happened in Rwanda, Southern Sudan and Angola. Furthermore, the desire of Africa to take steps to address its own problems without heavily relying on assistance from the international community whose availability is neither assured nor sufficient. This contribution argues that Africa can no longer expect the international community to shoulder the burden of peacekeeping in some of the most intractable conflicts on the continent without taking steps to participate actively in the process itself. While Africa has expressed its desire to address its own problems through the vision of “African solutions for African Problems”, African leaders must show greater willingness to fund and strengthen institutions they establish to carry out this vision. Lastly, the paper contends that the international community, especially the developed states, should take genuine and adequate measures to assist Africa realize its vision. A strong African Union capable of securing peace and stability on the continent is in the best interests not only of Africa but also of the international community as a whole.
Humaneness, Humankind and Crimes against Humanity (PDF)
Bernhard Kuschnik
Due to its vagueness, the notion of humanity has created some discomfort within the system of international criminal law ever since it was codified as a legally binding concept in the mid 1940’s. In Prosecutor v. Kantanga/Chui the Pre-Trial Chamber I of the International Criminal Court (ICC) has given its own interpretation of the term. The Chamber claimed that the related provision of ‘other inhumane acts’ is more strictly construed in the ICC Statute than in previous Statutes of the ICTY and ICTR, and cannot be regarded as a catch all provision, and should predominantly be interpreted from the wording of the ICC Statute. The author argues in this article that a broad interpretation of ‘other inhumane acts’ pursuant to Article 7(1) (k) of the ICC Statute is required. The notions of humanity and ‘other inhumane acts’ should be concretized by relying closely on the legal historical and linguistic roots of the provision. Coming from this analysis, it is suggested that a serious injury to human dignity should count as an ‘other inhumane act’ and thus, as a crime against humanity.
Secession in Theory and Practice: the Case of Kosovo and Beyond (PDF)
Ioana Cismas
Since 17 February 2008 - the day of Kosovo’s declaration of independence from Serbia - it has become rather pressing to understand whether this act has legal precedential value and hence what its consequences are. This article carves out the place of secession in international law by appeal to fundamental principles and legal doctrine. It also explores major sociopolitical aspects in Kosovo’s history, from the battle of Kosovo Polje in 1389 to Security Council resolution 1244 (1999) that set up the United Nations Interim Administration Mission in Kosovo (UNMIK). By following these two analytical paths Kosovo is exposed as a case of remedial secession and thus as a potential legal precedent. While the elements of remedial secession are gathered, it is argued that states deprived this instance of practice of its precedential value and made it a legally insignificant act. In other words, the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism.
The Russian Federation, Protocol No. 14 (and 14 bis), and the Battle for the Soul of the ECHR (PDF)
Bill Bowring
With a focus on the Russian Federation, this article examines the adoption
by the Council of Europe of Protocol No.14 to the European Convention on
Human Rights (ECHR), and its long-delayed coming into force. The author
starts with the question of the original object and purpose of the Council,
and how they have now changed. This leads to an analysis of the nature of
the crisis - a crisis of success - now faced by the ECHR system, and the
reform process which started, on the 50th anniversary of the ECHR, in
2000. After describing Protocol No.14 itself, and the discussion which has
surrounded it, the article turns to the central issue. This is not the question of
procedural reform, or even admissibility criteria, but what lies behind - the
"soul" of the ECHR system. Should the Strasbourg Court remain a court
which renders "individual justice", albeit only for a handful of applicants
and with long delays; or should it make become a court which renders
"constitutional justice"? The article focuses on the specific problems faced
by Russia in its relations with the Council of Europe; and an analysis of the
lengthy refusal by the Russian State Duma to ratify Protocol No. 14. The
author concludes with an attempted prognosis.
Mindia Vashakmadze, Matthias Lippold
On 22 July the International Court of Justice (ICJ) delivered its Advisory Opinion on Accordance with international law of the unilateral declaration of independence (UDI) in respect of Kosovo. There is a wide range of legal questions related to Kosovo’s UDI. However, the ICJ decided by way of a narrow interpretation of the General Assembly’s request to focus only on prohibitive rules. The Court came to the conclusion that the UDI did not violate international law. While this result is defendable, the way the Court got there is problematic. The Court missed its opportunity to provide legal guidance in fields of secession and self-determination. This article shall give a first overview of the Court’s reasoning.
Kampala June 2010 – A First Review of the ICC Review Conference (PDF)
Hans-Peter Kaul
In the years and months before the ICC Review Conference, which took place in Kampala, Uganda from 31 May to 11 June 2010, there were, from the perspective of the International Criminal Court (ICC), quite a number of important if not crucial questions: What would be the course and what would be the outcome of the Review Conference? How would it affect the Review Conference that it would be held not only in Africa, but in an African situation country? Would there be only a narrow, maybe inappropriately narrow, examination of the institution of the Court? Or would there be a review of the entire ICC system as established by the Rome Statute? What about the stocktaking with regard to the four critical themes chosen for this Review Conference, namely cooperation, complementarity, impact on victims and affected communities, and the important question of the relationship between peace and justice? Which amendments to the Statute would be considered or adopted? Above all, would there be any progress or maybe even a breakthrough with regard to the very difficult, unresolved issues concerning the crime of aggression as referred to in Article 5(1)(d) of the Statute? It is against this background of questions, hopes and expectations that this contribution tries to briefly assess the Review Conference. The first part of this introductory comment (A) reflects the author’s hopes and expectations prior to the Review Conference. It is based on a speech delivered by the author in May 2010.1 The second part of this comment (B), is a first analysis and review of the course and outcome of the Review Conference. The author hopes that this comparative approach may be an informative and interesting manner to provide in this Article a first summary of what was expected, what happened and what was actually achieved in Kampala.
Sabine Klein
The International Criminal Court Review Conference took place in a ‘situation country’ of the International Criminal Court (ICC), meaning in a Country the ICC is currently investigating. Therefore, the Conference had a dimension, which arose besides the factual conference and its outcomes. This article pictures observations of developments in Uganda due to the Conference and shows how issues of International Criminal Law have been increasingly recognized and discussed within the regional society. The meaning of the Conference’s venue in a ‘situation country’ in the Rome Statute system is to be assessed, whereby reference is made to the ICC’s outreach and (positive) complementarity.
Roger S. Clark
The first Review Conference on the International Criminal Court had three items on its agenda proposing amendments to the Rome Statute. The proposal to delete Article 124 of the Statute (which permits States to opt out of the war crimes provisions of the Statute for seven years) failed. Proposals for a comprehensive set of provisions facilitating the Court's exercise of its jurisdiction over the crime of aggression were adopted. The existing provisions on weapons that are banned in international armed conflict were incorporated also into the part of the Statute dealing with non-international armed conflicts.
The Crime of Aggression After Kampala: Success or Burden for the Future? (PDF)
Robert Heinsch
The article provides a first evaluation of the results achieved in Kampala. The author focuses on the resolution dealing with the crime of aggression which was adopted by consensus. Apart from providing a detailed analysis of the new Article 8bis of the Rome Statute which defines the crime of aggression, he also gives an overview of the provisions foreseen for the exercise of jurisdiction over this crime contained in Articles 15bis and 15ter. This includes also the difficult relationship between the ICC and the Security Council with regard to the exercise of jurisdiction. In the author's view the resolution must already be characterized as yet another remarkable achievement in the field of international criminal law, even though there are some hurdles to cross before the respective amendment will enter into force.
Astrid Reisinger Coracini
The first review conference to the Rome Statute of the International
Criminal Court, held in June 2010 in Kampala successfully concluded
decades of negotiations over a statutory definition of the crime of aggression
and its prosecution by a permanent international criminal court. The main
unresolved issues to be addressed by the review conference concerned the
determination of an act of aggression as a (procedural) prerequisite for the
exercise of jurisdiction over the crime of aggression and the appropriate
activation procedure for a provision on aggression. Most importantly, the
compromise of Kampala could safeguard an independent and effective
criminal prosecution of the crime of aggression by not subjugating the
Court's exercise of jurisdiction to decisions of outside organs. However, in
case of a referral of a situation by a State Party or the initiation of a proprio
motu investigation, the Court's reach over perpetrators is significantly
narrowed with a view to crimes of aggression involving a non-state party or
a state-party that does not accept the Court's exercise of jurisdiction. These
concessions, built on state consent to the exercise of criminal prosecution
over individuals and elements of reciprocity, concepts that are alien to the
Rome Statute, form part of a political compromise that enabled the
activation of the Court's jurisdiction over the crime of aggression.
Complementarity After Kampala: Capacity Building and the ICC's Legal Tools (PDF)
Morten Bergsmo, Olympia Bekou & Annika Jones
Twelve years after the creation of the first permanent International Criminal Court and eight years since the entry into force of its Statute, the first ever Review Conference took place in Kampala, Uganda. Besides successfully introducing aggression as one of the crimes under the Court’s jurisdiction and expanding the coverage for war crimes, the Review Conference provided a timely opportunity to reflect on some of the key aspects of the Court’s regime. An integral part of the Review Conference was the “stocktaking exercise”. The exercise provided a platform for the participants at the Review Conference to reflect on the successes and the failings of the ICC following the first few years of its operation and to consider measures that could be taken to enhance and strengthen the Court’s functions in the years to come. The stocktaking exercise focused on four themes: complementarity, cooperation, victims and affected communities and peace and justice. These themes represent major aspects of the ICC’s operation which will continue to warrant consideration as the Court matures as an institution. The theme of complementarity is of particular importance because of its uniqueness to the ICC. The ICC’s complementarity regime places a primary obligation on States to investigate and prosecute international crimes. It does so by limiting the jurisdiction of the ICC to situations where States are shown to be unwilling or unable genuinely to investigate and prosecute, in respect of cases of sufficient gravity to justify action by the Court. The principle of complementarity was an innovation, specifically tailored for the ICC. The Review Conference therefore provided an important opportunity to reflect on the effectiveness of the principle and steps that could be taken to strengthen it. This piece will consider the tenor of the debate concerning complementarity during the Review Conference and the emphasis that was placed on strengthening national capacity for the investigation and prosecution of core international crimes. In particular, it will highlight a significant shift in the use of the term “positive complementarity”. The term, which had originally been used to refer to the ICC’s role in the construction of national capacity, was used throughout the Review Conference to refer to the involvement of States, international organisations and civil society in strengthening justice at the national level. It will also draw attention to the efforts that were made during the Conference to identify means to put positive complementarity into practice with the hope of overcoming some of the problems that States had faced in the investigation and prosecution of serious international crimes within their national systems. The article will go on to discuss the relevance of the ICC Legal Tools Project, a unique collection of legal databases, digests and applications designed to facilitate the application of international criminal law, to the discussions that took place in Kampala. It will be concluded that the ICC’s Legal Tools provide an important means of supporting the principle of complementarity, positive or otherwise.