U.N. Security Council and the Future of the ICC: Some Comments After the Authorization of UNAMID

Darfur has become an allegory for human rights violations and, according to the International Crisis Group [website], the situation has even deteriorated since the signing of a peace agreement in 2006 [click here for full report]. In 2005, the U.N. Security Council had referred the situation in Darfur to the International Criminal Court (ICC). Click here for Resolution 1593 of 31 March 2005 [pdf, in English]. This year, the ICC issued warrants for the first two suspects; yet, mostly due to the Sudanese government's defiance of the ICC, the execution of those warrants is still in the air. For previous posts on this topic, click here and here.

This week's U.N. Security Council Resolution 1769 [press release and text], which authorizes a joint U.N.-African force (UNAMID) for the Darfur region, could be a first step towards fighting impunity in Darfur. It illustrates that the U.N. is unwilling stand idly by. Maybe the U.N. should also give more attention to prompting the Sudan government to cooperate with the ICC ... Nick Grono and Donald Steinberg of the International Crisis Group have written an interesting article [text, in English] on how the ICC's future may depend upon the involvement of the U.N. Security Council.

Japan Accedes to the Rome Statute

Recently, on July 17, 2007, Japan acceded to the Rome Statute and will thus become the 105th member. For more information, click here [press release, in English].The Rome Statute constitutes the treaty that establishes the International Criminal Court (ICC). The Statute was adopted on July 17, 1998. The ICC is a permanent court with jurisdiction over crimes against humanity, genocide and war crimes. For more information, click here [website of ICC] and visit previous posts.

Hopefully, this recent accession by Japan serves as a role model for other states that are currently reluctant to acknowledge the ICC's authority ... At least, it strengthens the international task force against human rights violations and further drives perpetrators into a corner.

EU Reform Treaty: Update (1)

Last Monday marked the opening of the Intergovernmental Conference (IGC) 2007 [website, in English]. Goal of the IGC 2007 is to further implement the Reform Treaty proposed earlier this month [see previous post]. A text of the Draft Reform Treaty can be found here [treaty, in French]. During the first two sessions of the IGC 2007, the group of judicial experts drafted an agenda which can be found here [agenda, in French]. The proposed schedule provides for 18 sessions that shall take place in blocks and shall conclude on September 13, 2007.

The schedule seems rather ambitious given that the Polish Minister of Foreign Affairs, Anna E. Fotyga, has already issued an opening statement where she stresses, inter alia, that her country wants the retention of the current voting system (as opposed to the double-majority system) during the transition period to be automatic upon request. Also, Poland reserved the right to accede to the protocol that prevents the EU Charter of Fundamental Rights from becoming binding in the United Kingdom. Ms. Anna E. Fotyga's statement is available here [text, in English].

Coverage and discussion of the Reform Treaty process from a probably more "reformer-driven perspective" can be found at the blog of former French President Valéry Giscard d'Estaing [in French].

"Judicial Liquidation" of the ICTY - Time vs. Justice?

In today's online edition of LeMonde, Stéphanie Maupas takes stock of the achievements of the International Criminal Tribunal for the former Yugoslavia (ICTY). In her opinion article Le "coma" du Tribunal pénal international, she stresses the devastating effect of the impending cessation of the tribunal's operations due to lapse of time (the ICTY is set to complete its operations in 2010) - which she calls "judicial liquidation." Thus, in order to accomplish the daunting task of hearing and deciding about 55 cases in the remaining 3 years - compared to the 106 cases that have been concluded so far since establishment of the ICTY in 1993 - the judges have turned to the practice of "artificially" limiting the numbers of accusations the prosecution may bring in against each individual defendant. To read the opinion, click on the link below [text in French].

Le "coma" du Tribunal pénal international, par Stéphanie Maupas
LE MONDE | 20.07.07

©

International Law - Praise and Criticism

As a scholar one has to be able to give and accept criticism ... and as an international scholar in the United States one can, at times, encounter severe criticism. Just recently, I discovered the "Debate Club" of Legal Affairs [website]. While browsing through its archives, I came across a debate between Eric Posner (Kirkland and Ellis Professor of Law at the University of Chicago) and Oona Hathaway (Associate Professor of Law at Yale Law School). Topic of this debate was: Is International Law Useful? [text]. But why have a debate on this question? Hasn't international law been necessary and established for centuries?

The reasons for international law skepticism are manifold, but can be ascribed to the very nature of international law, most notably its remoteness and vagueness - both being inevitably interconnected. I have already dealt with the problem of the perceived remoteness of the EU in a previous post. The same is sort of true on a more global level. Why should the citizens of a modern industrial state care about the U.N. when it does not affect them directly? Doesn't it defy the purpose of having an International Court of Justice if hardly anyone knows about it? The latter question also leads to the next point: vagueness. Due to the perceived remoteness, the whole concept of international law tends to be vague to John Doe.

Even if two lawyers mention international law, it is not said that they talk about the same thing - particularly when one comes from Europe and the other from the United States. Thus, international law in the broader sense could theoretically comprise both public international law (i.e., in general parlance, the legal system governing the relationship between nations [see Black's Law Dictionary]) and private international law (i.e. body of jurisprudence that undertakes to reconcile differences between the laws of different states or countries in a case in which a transaction or occurrence central to the case has a connection to two or more jurisdictions [see Black's Law Dictionary].

Yet, again, scholars heavily debate on the accurateness of the term "private international law" as it is merely a part of the private law of each state. Confused? So much for vagueness!

Fifth Anniversary of the Rome Statute

Five years ago, on July 1st, 2002, the Rome Statute establishing the International Criminal Court (ICC) entered into force. Meanwhile, 104 States have become parties to the Statute ... a fact that, according to the Chief Prosecutor of the ICC, Luis Moreno-Ocampo, shows that the ICC is a "landmark in international justice." [U.N. News Centre] Furthermore, the Prosecutor points to the awareness raising impact the court already has, noting that "States recognize now that there are some limits, and that there can be no more genocide [...]." [U.N. News Centre]. Yet, the ICC is not supported worldwide. Some countries like the United States, China, and Russia are still not Parties to the Rome Statute. The Nuremberg Human Rights Center [website] on behalf of the Foreign Office of the Federal Republic of Germany and in collaboration with the Goethe Institute has created an exhibition on the ICC. The exhibition will be mainly displayed in States that are not (yet) Parties to the Rome Statute in order to promote the ICC's cause specifically in those countries. A brochure on the exhibition [pdf, in English] can be downloaded from the ICC page of the Nuremberg Human Rights Center.

France and the Politics of Jogging

Are all joggers capitalists or are all capitalists joggers? In his post Le jogging n'est pas français, Monsieur le Président [post, in English], Charles Brenner from Times Online describes the French perspective on this important question. It is hilarious!

Some Comments on the Brussel Treaty Deal

Although the EU heads of government and state reached a deal about a "Reform Treaty" already a while ago, I did not get around to writing about it until now. Well, better late than never ...

On June 23, 2007, after extensive, one-and-a-half-day negotiations, German Chancellor Angela Merkel, who as outgoing President of the Council of the European Union headed the meeting, was able to announce that a deal for a "Reform Treaty" has been reached by the participants. This agreement shall bring about the following important institutional reforms [the following list was taken from the official website of the German government; original text in English, comments and explanations added in italic gray font by the author of this blog]:

• A full-time President will chair the European Council of heads of state and government.

  This shall bring about more uniformity in presenting "common" decisions to the public.

• A High Representative of the European Union for Foreign Affairs and Security Policy will be appointed. To accommodate national sensitivities, the title of foreign minister has been dropped.

  Dito. Just that this time focus is laid on uniformity with regards to international relations. Both institutions (the EU President and the High Representative for Foreign Affairs) are vestiges of the originally aspired formation of an EU identity (with anthem, flag etc.).

• Majority decisions will be taken using the double-majority system only as of 2014, with a transitional three-year period until 2017. Then motions can be adopted by the Council of Ministers provided 55 percent of member states representing at least 65 percent of the population of the Union are in favour.

  With this delay of the introduction of the double-majority system, the summit participants accommodated Poland which had vehemently opposed changes to the status quo (see previous post). Under the current system, 255 votes out of 345 (73.9%) representing 62% of the EU population are needed, with the four most populous countries (Germany, France, UK, and Italy) having 29 votes each, Poland and Spain having 27 votes (for a detailed list of votes per country, click here). Consequently, the current system tends to favor middle-sized countries (i.e. Poland and Spain) over more populous member states.

• For legislative procedures, the codecision procedure will become the general rule. This will put the European Parliament, which represents the citizens of Europe, on an equal footing with the Council of Ministers.

  The so-called "remoteness" has frequently been met with criticism. This amendment shall pour oil on troubled water.

• The national parliaments will be given a greater say in European legislative procedures. This is intended to strengthen the principle of subsidiarity in particular.

  Dito.

• The constitutionally determined break-down of legislative competences between the Union and member states respectively shall remain unchanged.

  No intermingling of competences.

• The number of EU Commissioners is to be reduced from 27 to 15.

  With the continuing enlargement of the EU, the system of each EU member state sending one EU Commissioner has become unhandy.

• The EU Charter of Fundamental Rights will become legally binding in 26 member states (but not in the United Kingdom).

  This was a concession made to the U.K. which fronted any EU reform critically. The British Labour party had promised its voters a referendum over the ratification of the (original) EU Constitution in the U.K. Now, outgoing British Prime Minister Tony Blair pre-defined "red lines" that could not be crossed. Protecting the common law system by denying the Charter of Fundamental Rights any legal effect was one of those "red lines".

• The concept of the referendum will be introduced.

  This will hopefully lead to more direct involvement of EU citizens and hereby refute the accusation of remoteness.

Interestingly, the new "Reform Treaty" basically retains the majority of provisions of the formerly proposed EU Constitution that had been rejected by referendum in the Netherlands and France (for further information, see my previous post). Only symbolism was sacrificed. Thus, the proposed body of rules is no longer called "Constitution", but merely "Reform Treaty" and would not replace the existing treaties, instead, it would amend them. Similarly, the new text no longer provides for an EU flag, anthem, and motto. Yet, to put it into the words of former French President Valéry Giscard d'Estaing (who created a blog [in French] in order to discuss the proposed treaty): "In fact, this text entails the resumption, to a great part, of the substance of the constitutional treaty." [original quotation in French].

The ulterior motif of the above approach is, certainly, to avoid referenda and a rerun of the defeats of 2005. The question, however, is how the people, especially the citizens of France and the Netherlands, will take this. Are the largely formal changes enough to convince them of the fact that the new treaty would no longer need their direct approval? And will this recent development really increase the popularity of the EU? We will see how far these "Reform Treaty" efforts will take us. Further steps will be the convening of an Intergovernmental Conference (IGC) in order to further implement the propositions made at the meeting in Brussels. The IGC will adopt amendments to existing EU treaties. These treaty amendments will then have to be ratified by the EU member states according to their national procedures. And here again, we hold the wolf by the ears...