The More You Know: Lessons in International Justice

Today, holding world leaders responsible for crimes committed while in office can generally be achieved through one of two bodies: the International Criminal Court (ICC); or ad hoc tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY), or the Special Court for Sierra Leone (SCSL). But for international justice enthusiasts, which route is preferable? In fact, each option has its own advantages and disadvantages, and perhaps these bodies could learn some lessons from one another.

The first lesson for the ICC is clear: more celebrities. The SCSL’s trial of former Liberian President Charles Taylor, which began in 2007, attracted little attention from the international media until recently, when actress Mia Farrow and supermodel Naomi Campbell appeared as witnesses. Since these ladies became involved in the trial, the Western media has become suddenly interested in war crimes committed in Liberia and Sierra Leone (though the movie Blood Diamond also helped make the subject matter sexier).

The ICC, meanwhile, has begun investigations into crimes in five countries – Uganda, the Democratic Republic of Congo, Central African Republic, Sudan, and Kenya – and the media still doesn’t know where those places are, let alone which non-celebrity was responsible for the mass murder of thousands of other non-celebrities. The ICC should start scouring its case to see if Sudan’s President Omar al-Bashir ever met with Britney Spears, or if any of Congolese rebel…

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Jekyll or Hyde: Curtailed justice at the ICC?

The Security Council’s ability to suspend ICC investigations destabilizes the necessary independence of the court. Through Article 16 of the Rome Statute, the SC moves the ICC beyond a legal ideal into a political reality where diplomatic peace and justice can sometimes conflict. For reasons laid out below, this legal/political tension suggests that Article 16 is a Jekyll and Hyde provision. To consider Article 16 as a positive aspect of the Rome Statute, its dual character must be monitored through a continuous case-by-case assessment. This article will consider the implications of Article 16 and the possible consequences arising from Resolution 1422.

Article 16 – On Compromise and Politics

Article 16 represents a compromise between the SC and the ICC.  In its earlier form, Article 16 prevented the ICC from commencing a prosecution on any situation being dealt with by the SC unless the SC decided otherwise [here at 1509].  This broad provision would have jeopardized independence of the ICC and left it susceptible to the political motivations of the SC.  Viewed through a lens of compromise, the current version of Article 16 is a more palatable alternative. It arguably strikes an essential balance between recognition of the Security Council’s primacy over international peace and security and the Court’s independence. While the article still alters the independence of the ICC, it allows for investigations to continue unless the Council formally decides to stop the process.…

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A League of Their Own

In recent years China’s prominence on the world stage has grown rapidly. With consistently high GDP growth, a swelling middle class, and high-profile international events such as the 2008 Beijing Olympics or the Expo 2010 in Shanghai, many recognize China as an emerging superpower. But this growth has not been consistent across all fronts, and in some respects China lags far behind other world powers. Recent events have made one area in particular stand out in this regard: oil spills.

On July 16^th in the Chinese port city of Dalian, the explosion of two oil pipelines caused thousands of barrels of oil to begin gushing into the sea. The slick has since expanded to cover hundreds of square kilometres of water and spread upwards of 90km down the coast. The spill – and China’s cack-handed response – is clearly modelled after the U.S.’s ongoing gulf coast saga – but it’s a pale imitation. Unlike the American spill, there seems to be no threat of the oil being carried to other nations’ coasts. Yet even Australia has managed to pull off a massive spill affecting its neighbours. If China wants to get into the oil spill big leagues, they’ll have to find a way to go international.

But while the international oil spill scene is characterised by intense competition, there is a notable lack of corresponding cooperation. It’s all well and good to give neighbours’ coasts…

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Transparency, internet and the international investment law

A ‘small history’ was recently made in the field of international investment law when, for the first time ever, the proceedings of a certain investor-state dispute (Pac Rim Cayman LLC v. Republic of El Salvador (ICSID Case No. ARB/09/12) – Public Hearing (“Pac Rim Cayman dispute”)) were webcasted live to the general public.[1] These webcasts are now available on the International Centre for Settlement of Investment Disputes’ (ICSID) website, where visitors can entertain themselves with over 12 hours of recorded legal proceedings (including recess).[2] It is asserted in this entry that by using the online webcast technology, the parties to the Pac Rim Cayman dispute introduced a new standard of transparency into the field of international investment law. Whether this standard will be taken up by future disputants remains to be seen.

The investor-state dispute resolution process has been a long standing target for critics. Many of these critics concentrate on the lack of transparency demonstrated in the system; Indeed investor-state dispute resolution proceedings are often held in a confidential manner, where not only the public cannot follow or participate in the proceedings, but also, at least on some occasions, viewing the awards granted in these disputes is not permitted. The importance of such a webcast therefore lies first and foremost in the enhanced transparency it provides. It is, after all, only fair that the public be allowed (and able) to follow any…

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Realizing Layers of Security in Haiti: A Conceptual Re-Think is Needed if Haiti is to Find Post-Earthquake Peace

Articles in this week’s New York Times and Globe and Mail highlighted calls for a massive scaling-up of disaster relief and development efforts in Haiti. However, leaders should be much more critical about the shortfalls of such missions in the past, as Haiti is no stranger to international interventions, in particular at the hands of the United Nations and the US government, and to a lesser extent, Canada. As security is often held to underpin relief and development efforts, policymakers need to reform their view of the provision of physical security and international law needs to reflect this process. Time and time again, Western powers have failed to assist the Haitian people address the wrongs of the past and meet their overall social and economic development goals.[1]

Sadly, it has become commonplace for developed nations to make big pledges when tragedies occur, but seldom are all funds collected to drive development strategies. Only 10% of funds pledged to Haiti after the January 2010 earthquake have arrived in Port au Prince thus far. Core funding is often lumped into ‘security programs’, while so-called ‘soft development’ strategies languish. Soft development aid dollars are often tied up in the activities of foreign NGOs. The amount of NGOs in Haiti is staggering. The presence of so many foreign personnel, who are often unaccountable to the Haitian government or people as a whole, is troubling and potentially destabilizing.…

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Anarchists Engage with G20 Issues

A great deal of attention has been paid recently to the preparation for the G20 summit next weekend in Toronto. But while the event has been a boon for the troubled artificial lake industry, not everyone will be so pleased with the assembled world leaders. From labour unions to environmentalists to indigenous rights groups, protestors are expected in the thousands. The greatest security concern however, remains the kind of anti-capitalism and anarchist groups which made the Seattle WTO summit of 1999 so memorable. The same kind will be in attendance during the Toronto summit; the Southern Ontario Anarchist Resistance (SOAR) and FFFC Ottawa, which was responsible for the firebombing of an Ottawa bank after hours on May 18^th, have both announced they’ll be at the event.

Yet Mike Bakunin, who recently left SOAR to establish a sister branch in Rivière Ouest (Manitoba) with a more awesome acronym, claims that these groups don’t just advocate violence. “For those who think that anarchists are just about chaos and firebombing, that’s not the case. Groups like FFFC Ottawa give the rest of us a bad name – we can actually engage with the issues as well as anyone. Now obviously the summit will be focusing on economic and financial matters, so we think that we can best get our message across if we zero in on those issues as well. It’s hard to convey…

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The Securitization of Immigration and Refugee Law in the United Kingdom

In describing governance trends in the United Kingdom today, Ian Loader contends that certain issues or “threats” are taken out of the realm of democratic politics and “securitized” by government.[1] Refugee and asylum law in particular, is an issue that has been increasingly securitized over the past decade since the ‘9-11’ attacks in the US in 2001 and the ‘7-7’ attacks in the UK in 2005. Evidence of this trend can be detected from the analysis of a recent press statement from the British Home Office:

Asylum applications for the last three months of 2009 were the lowest since the early 1990s. Net migration is down, and the new UK Border Agency is increasingly successful… We are making the UK a more hostile place for illegal immigrants by issuing foreign nationals with ID cards, checking those who apply for visas against watch lists and fining those who employ illegal workers.[2]

There is nothing inherently wrong with a dip in asylum applications occurring within the UK. In fact, the decreasing amount of refugees in the UK probably does correlate with a global downturn in the total number of refugees.[3] Yet, it is strange that this press statement focuses on this dip in correlation to the UK Border Agency’s (UKBA) attempt to create a more  “hostile” atmosphere for those seeking to migrate to the UK. The UKBA publishes accounts of its agents cracking down on illegal…

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Regionalization of International Criminal Law on the African Continent?: Ubuntu and Amnesty

On 15^th December 2009, the African Court on Human and Peoples’ Rights (ACHPR) rendered its (much awaited) first decision – In the Matter of Michelot Yogogombaye v The Republic of Senegal.[1] In the case, Michelot Yogogombaye brought an application against Senegal with a view to suspend Senegal’s ongoing legal proceedings against Hissène Habré, former President of Chad.[2] Habré is suspected of complicity in crimes against humanity, war crimes and acts of torture in Chad between 1982 and December 1990.[3] Yogogombaye alleged that Senegal had violated the legality principle by amending their Constitution to authorize “retroactive application of its criminal laws, with a view to trying exclusively and solely Mr. Hissène Habré”.[4] Although the ruling did not move beyond the merits in finding that Senegal had not accepted the Court’s jurisdiction,[5] some of the arguments outlined deserve attention. In this case note I will focus on the arguments on the issues of amnesty to draw out the regional flavour in the approach.

Amnesty and Ubuntu: Shared objective?

An interesting feature in the judgment was that Yogogombaye urged the Court to order that Senegal utilize the philosophical concept of ubuntu to develop a national “Truth, Justice, Reparations and Reconciliation” Commission for Chad on crimes committed between 1962 and 2008.[6] Ubuntu (or African Humanity) is a philosophy that attempts to capture the intersection of justice and humanity by essentially asking: how does one keep their humanity after being wronged? This was underscored…

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Re-defining Disability in South Africa: The Social Assistance Amendment Bill

The Social Assistance Amendment Bill introduced in the South African Parliament last month has revealed fissures in government policy and has opened up debate on how this country handles disability issues. A key concern for some is that South Africa does not have centralized disability legislation. There are however, several different pieces of legislation and government policy that treat disability issues, such as the Social Assistance Act of 2004, the Employment Equity Act of 1998, and the Integrated National Disability Strategy of 1997, among others. This is not unusual, as countries such as Canada do not have dedicated national disability legislation. However, because the various pieces of South African legislation use different definitions of the term disability, this can create confusion, particularly when disabled persons are applying for government-provided financial assistance. Major criticisms of the bill are that it is still not clear enough, and that it does almost nothing to help move South Africa away from a medical model of disability, towards a social model that would promote societal inclusion for persons with disabilities.

South Africa signed and ratified the Convention on the Rights of Persons with Disabilities and its optional protocol in 2007. Furthermore, the South African Constitution specifically enshrines equality for persons with disabilities under Article 9(3). Yet, it is not clear how the current bill will take this nation closer to full implementation of the Constitution and the Convention. While the Deputy Minister of…

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Piercing the Veil of State Immunity: Exceptions to the rule

Incumbent head of state immunity at international law is a multi-layered issue. Whether an incumbent head of state always has immunity therefore depends on certain variables. In this short piece, I will discuss the current state of the law on state immunity.

Revisiting old tensions: Horizontality

Incumbent head of state immunity hugs the boundaries of the verticality/ horizontality discourse. Although derived from customary international law, state immunity is rooted in the horizontal level through its objective of maintaining a peaceful coexistence[1] between States and ensuring states’ sovereignty. As underscored in Arrest Warrant[2], courts at the horizontal level cannot interfere with head of state immunity because such an action would hinder the effective performance of the official’s duties.  At this level, there is no exception for State official immunity – not even for derogation of jus cogens norms.[3] Although this may seem a high price to pay to grease the wheels of international camaraderie, some argue[4] that absence of immunity in relation to human rights violations is more likely to hinder international cooperation than it is to significantly increasing protection of human rights.[5]

Peeling back the layers: Ratione materiae and Ratione personae

Viewed through a human rights lens, the finding of absolute immunity in Arrest Warrant is contentious. However, I argue that in failing to make a clear distinction between ratione materiae and ratione personae, the Arrest Warrant judgement missed an opportunity to limit the polemic nature of its overarching judgment.…

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