Recent Developments in International Criminal Law: Justice, Peace, and the Role of the International Criminal Court

I have not yet managed to fix the commenting problems on my blog. Currently, I am exploring working alternatives, but this whole process will take me some more time ... so please bear with me...

Today's post will, again, not cover the difficulties of the European Union, but this fact shall not discourage anyone interested in contributing to the ongoing debate on regrouping the European Union [link to post and debate].

Instead, I would like to dwell in this post on another area of law covered extensively on this blog: international criminal law [link to my prior blog posts]. Some recent events in international criminal law have sparked some media attention and I cannot help but add my twopenn'orth:

• a former military leader was sentenced to life in prison for kidnapping, torture and murder [AP article on Menendez trial];

• another former war time leader indicted for genocide was arrested [N.Y. times article on Karadzic arrest];
  

• and an arrest warrant has been requested for an incumbent head of state on charges of genocide, war crimes, and crimes against humanity [ICC press release on situation in Darfur, Sudan].

A comparison of the above cases is incredibly revealing of the mechanisms and challenges in international criminal law. It is important to note that the first two cases (i.e. Menendez and Karadzic) differ considerably from the third (Darfur, Sudan): both Argentina and Former Yugoslavia are no longer on-going conflicts while Sudan still is.

The Menendez trial involved acts committed roughly 30 years ago and the massacre of Srebrenica happened in 1995. Since then, domestic peace has been re-established both in Argentina and Former Yugoslavia, respectively. And with some delay to their internal peace processes, both countries have tackled the issue of bringing former perpetrators to justice: Argentina with substantial delay, but self-propelling; Serbia somewhat quicker, yet upon increasing international pressure.

The situation in Sudan, however, is different. The conflict involving Darfur is still on-going and the regime accused of committing human rights violations is still in power. International peace efforts have not yet been successful. Therefore, the recent actions of the prosecutor of the International Criminal Court (ICC) [website] against the incumbent Sudanese President Omar Hassan Al-Bashir have stirred up a recurrent debate in international criminal law: i.e. the issue of the proper relationship between peace and justice.

Opponents of the recent request by the ICC prosecutor to issue an arrest warrant against the Sudanese President argue that the prospect of prosecution by the ICC might hamper current peace negotiations with the Sudanese government [see, e.g., N.Y. Times article on concerns brought by China and Russia in UN Security Council]. Proponents of an ICC arrest warrant generally put forward that an imminent ICC prosecution could allow UN representatives to press forward certain benchmarks in the current peace negotiations with Sudan [see today's International Crisis Group Weekly Update: Grono and Hara, Security Council Should Make President Meet Benchmarks]. Both arguments are, however, mainly focused on the peace negotiations and not on justice as an ultimate goal.

Therefore, I would be eager to learn your opinion on the relationship of peace and justice - in the case of Sudan, in particular, or from a more general, conceptional perspective.

Some further articles on this subject are listed below:

• Article by the Council of Foreign Relations [website] in today's Washington Post on Africa and the International Criminal Court [link to article].
• Article by Linda M. Keller, The False Dichotomy of Peace versus Justice and the International Criminal Court in the current issue of the Hague Justice Journal [link to journal website].
• My article Reconciling Peace with Justice: A Cooperative Division of Labor [link to abstract].

I am looking forward to your comments!

Technical Issue

I currently have a little issue with my commenting software. I will try to fix it as soon as possible. In the meantime, just click on the heading of the post that you would like to comment on. You will then get onto the individual post page and from there, the comment feature should work. Sorry for the overhead.

ECHR: Person Subject to Ill-Treatment by State Can Loose Victim Status

Today, the European Court of Human Rights (ECHR) [website] rendered its judgment in Gaefgen v. Germany (judgment and press release available on ECHR website, application no. 22978/05). The case had sparked an intensive debate on the permissibility of the threat of ill-treatment during police interrogation in order to save a human life. The facts of the case are as follows:

In 2002, German police arrested Gaefgen after he had been seen to pick up a ransom deposited for the release of a kidnapped child. After one day of interrogations aimed at finding the place the child was hidden, police resorted to threatening Gaefgen with ill-treatment if he did not cooperate. At that point, police still thought that the child was alive and that immediate action was required to avoid the child's death from thirst, hunger, and cold. Police did not know that Gaefgen had suffocated the child right after luring him into his apartment. As a result of being threatened with ill-treatment, Gaefgen showed the police the place where he had disposed of the child's body.

Gaefgen was then tried for murder. The trial court found that the police interrogation methods violated, inter alia, art. 3 of the European Convention on Human Rights (Prohibition of Torture and Inhuman or Degrading Treatment). As a result, the trial court declared all statements obtained during interrogation invalid. The court, however, accepted evidence secured as a result of Gaefgen's statements during interrogation ("resulting evidence"). Gaefgen was then sentenced for murder on the basis of a confession made during the trial, corroborated by the "resulting evidence." Gaefgen's appeals in German courts alleging torture and lack of a fair trial were not successful. He therefore turned to the ECHR.

The ECHR confirmed that Gaefgen had been subject to ill-treatment contrary t0 art. 3 of the European Convention of Human Rights, but determined that Gaefgen had lost his victim status due to the subsequent exclusion of the interrogation statements from the trial and the punishments of the implicated police agents. Also, the ECHR found that the admissibility of the "resulting evidence" did not violate his right to a fair trial, because this evidence was only used to verify Gaefgen's confession during trial. The only dissenting opinion in the 6 to 1 decision argues that the inclusion of the "resulting evidence" prevented the trial from being fair as Gaefgen could not have been sentenced for murder solely on the basis of his confession during trial.

From a human rights perspective, it is remarkable that the ECHR sees the possibility for a torture victim to loose its victim status due to supposedly impeccable demeanor by the torturer at a later stage. Should it be possible to make good for previous acts involving torture or the threat of torture? Should a torture victim be susceptible of loosing its victim status? What are your thoughts on this case?

Regrouping of the European Union? Now It's Your Turn!

A little bit less than a week after the Irish decided against ratification of the Treaty of Lisbon in a popular vote, the British House of Lords approved ratification of the treaty, thus paving the way to official ratification by the Queen. Jurist has more [link].

The fact that Great Britain approved the Treaty of Lisbon might have brought some relief to the European heads of state who met today to discuss, inter alia, how to save the treaty despite the Irish "no" vote last week. Program and further information on the meeting are available here [link to official website of Slovenian presidency]. Yet, a concrete solution by the European heads of state for dealing with the Irish non-ratification is not expected before fall.

I thought we could help the European heads of state and discuss possible ways out of what now seems to be a dead end. Since the Irish referendum, various propositions have been made to this regard: e.g. having Irish vote again (as it was done few years ago with the Treaty of Nice) or giving up the whole European idea ... just to name a few extremes. I am, however, sure that many of you - regardless whether you are a European citizen or not, whether you are pro or con the European Union - have your own proper ideas on the future of the EU. With my blog, I would like to provide a platform for everyone to voice and discuss his/her thoughts about the future of the European Union.

I am looking forward to your comments!

Interesting Website

I recently stumbled over an interesting website. International Law Video Library [link] is a great tool for teaching international law and also a useful source of information on issues in international law. The International Law Video Library is hosted by Dr. Jean Allain [website] of Queen's University in Belfast. The site features interviews by major players in international law, e.g. Judge Thomas Buergenthal, Professor James Crawford, Judge Rosalyn Higgins, Dr. Joseph Rotblat.

Some News on the Lisbon Treaty

After a rather long "creative pause" I am now - hopefully - back on track. A lot has happened in the international law arena during the past few months and to list everything here would probably go beyond the scope of a simple blog post. So I decided to focus on one area that has previously been of intensive coverage on this blog: the good old(?) Lisbon Treaty.

Having been signed in December 2007, the Lisbon Treaty is currently in its ratification phase, i.e. the treaty has to become binding in the individual Member States. The ratification procedures vary among the various Member States and the whole process will probably last through 2008. For those of you who would like to know the Treaty's ratification status in the individual states, the European Union has a very helpful web page explaining ratification procedures, ratification status and other interesting information on a country-by-country basis. Here is the link (I will also add this link to the sidebar of my blog). In June, Ireland will hold its long-anticipated referendum on the Lisbon Treaty ratification and in the United Kingdom a case is pending on the question whether there should be a referendum on the ratification of the Lisbon Treaty. So it is definitely worth keeping an eye on how the situation in those two countries develops.

The above-mentioned web page also offers other interesting information on the Lisbon Treaty, including a full-text version [link]. In addition, the Centrum fuer Europaeische Politik (CEP) [homepage] provides an interesting comparison of the Lisbon Treaty and its predecessor, the Nice Treaty [link; contributions mainly in German, but "Overview: Institutional Changes" is available in English at the bottom of the web page].

Well, this post should definitely bring us back on track as far as the Lisbon Treaty is concerned ...

US Supreme Court Judges Offstage

In an exceptional move, Bryan Garner from LawProse, Inc. [website] was offered the opportunity to look behind the scenes of the US Supreme Court. During the 2006-2007 term, he interviewed eight of the nine Supreme Court judges and made the interviews available online [link to videos]. It is extremely interesting and revealing to hear the judges talk about legal writing and advocacy. Thanks for everyone involved for providing this great opportunity.

The German Federal Constitutional Court in the News

The German Federal Constitutional Court [website, in German] has been in the news lately ...

Two weeks ago, the Court (BVerfG, 1 BvR 370/07 vom 27.2.2008, Absatz-Nr. (1 - 333)) rendered a decision on so-called "online searches." [decision, in German] The court distinguished between open-access information on the web and information that can only be accessed through some kind of technical infiltration. Not surprisingly, the court allowed police to freely dispose of the former while indicating that access to the latter generally needed prior authorization by the courts. Most remarkably, however, the Court even went further and formulated a new fundamental right: the guaranteed confidentiality and integrity of IT-based systems (as part of the more general right of informational self-determination, art. 2.1 with art. 1.1 of the German Basic Law). This decision marks an important step to render the internet more tangible for legal purposes.

Today, the Court (BVerfG, 1 BvR 2074/05 vom 11.3.2008, Absatz-Nr. (1 - 185)) further emphasized the importance of the right of informational self-determination when it declared unconstitutional the police practice of automatically capturing license plates. [decision, in German]. According to the court, such usage of data violated the constitutional right of informational self-determination, unless such data collection served immediate investigation purposes. Thus, another important step towards privacy protection in the information age...

The Independence of Kosovo from an International Law Perspective

On Sunday, Kosovo declared its independence from Serbia. The United States were the first country to recognize Kosovo as an independent state, followed by France, Germany and many others. Yet, other countries, like Israel and Spain are reluctant to recognize an independent Kosovo because they fear that this may cause Palestinians and Basque respectively to undertake similar steps. The FAZ has more [article in German].

What do all these events mean from an international law perspective? Can any sub-region of a given country simply declare its independence and enter statehood? And what are the effects of recognition by other states? Section 201 of the Restatement (Third) of the Foreign Relations Law of the United States (1987) defines a state as follows:

Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.

This provision enumerates the four "formal" requirements for statehood. Yet, section 201 of the Restatement (Third) does not say anything about recognition by other states. Is recognition then necessary for an independent state to exist?

The significance of recognition on statehood has long been subject to debate. According to some, it is the recognition by other states that makes an entity become a state. Consequently, this point of view sees recognition as an essential requirement for statehood, a fifth element so-to-speak. Such an approach, however, may prove problematic. It makes statehood contingent upon the discretion of other states and it is unclear how many states will have to recognize an entity in order for it to constitute a state. Therefore, others say that recognition by other states is only declaratory. According to this view, an entity that fulfills the above-mentioned four criteria is considered a state under international law. Yet, these four conditions are not necessarily clearly established in a particular case and their determination generally depends upon assessment by other states which, by means of recognition (!), indicate that they consider the four elements of statehood to be present... [Source: Damrosch et al., International Law (2001), pp. 250 et seq.]

In the end, all still seems to boil down to state recognition. Thus, the fact that some important countries have already recognized the independent Republic of Kosovo does constitute an important stepping stone. Yet, will it be enough given that Serbia has accused the President of Kosovo, the Prime Minister, and the President of the Parliament for treason and that there have already been some attacks to Kosovo borders? How important is endorsement of Kosovo by the U.N.? It remains to be seen how things further develop.

Presidential Elections in the US: Where Do the Respective Candidates Stand on International Law Issues?

Ever wondered about where your favorite presidential candidate stands on issues of international law? The American Society of International Law (ASIL) may have the answer. In its web-initiative International Law 2008, ASIL presents Presidential candidates' policy statements on international law topics, publishes the answers of some candidates to ASIL's candidate surveys (interestingly, though, only Democratic candidates seem to have answered the surveys), and provides some comments by ASIL Executive Council members on the question of the most important international policy issue that will face the next U.S. administration. Even as a foreigner, I find this website extremely useful.

In particular, as a strong proponent of the International Criminal Court (ICC), I found it especially interesting how candidates responded to the question what the U.S. policy towards the ICC should be. While the two leading Democratic candidates, Clinton and Obama, recognized the important role the ICC has played so far, they did not provide a clear answer whether the United States should sign the Rome Statute establishing the ICC or not. The other (former) Democratic candidates who submitted answers, Edwards and Kucinich, explicitly argued for a United States membership of the ICC. It would be interesting to know how the Republican candidates would answer this question...

Status Report on Lisbon Treaty Ratification

Our move has unfortunately broken the flux of my blog posts. Yet, as I am now well settled in New Haven, you will hopefully hear from me more often ;-) Many interesting things have happened on the international plane since I last posted on this blog and it is impossible to catch up with everything. I would therefore like to focus on recent developments in one of the major areas covered on this blog last year - the EU Reform Treaty, now officially called Lisbon Treaty.

The Lisbon Treaty was signed by the European heads of state in December 2007. The signing ceremony had been clouded by British Prime Minister Gordon Brown arriving after the whole ceremony was over. Eventually, however, the Lisbon Treaty was signed by all heads of state and thus entered its ratification stage - the last step before entering into force. Yet, it is the ratification process that is the most volatile. Previous reform efforts had failed when referenda in France and the Netherlands had rejected ratification of the EU Constitutional Treaty.

The ratification of the current Lisbon Treaty was then already up for a rough start as the current text had been drafted in a way to avoid referenda whenever possible. To date, only Ireland will have to cast a popular vote on the Lisbon Treaty. Yet in at least two countries, France and the UK, governments face opposition to their decisions to have the Lisbon Treaty ratified by parliament and not by referendum.

In France, the government has been exceedingly eager to avoid a repetition of the 2005 reversal. On Monday, the French Senate and National Assembly both passed an amendment to the French Constitution. The amendment cleared the way for a parliamentary ratification of the Lisbon Treaty (instead of a referendum). Besides eliminating any reference in the French Constitution to the failed Constitutional Treaty, the amendment also adds two articles concerning the interrelationship between the French legislature and the European Union. For the text of the constitutional amendments, visit the blog of former French President, Valéry Giscard d'Estaing [in French]. The French Senate and National Assembly are scheduled to vote on the ratification of the Lisbon Treaty at the end of this week.

It is worth noting that while the above-described amendments to the French Constitution were necessary to allow for a parliamentary vote on the ratification of the Lisbon Treaty, the French Constitution has at all times provided for a parliamentary vote on the ratification of international treaties. According to Valéry Giscard d'Estaing, the parliamentary vote is even the primary path for ratification, a referendum being just an alternative option [pdf, in French]. The issue is that the previous government had deemed the Constitutional Treaty to be so important to warrant a popular vote by the French People. It seems that the current government has made a reassessment concerning the Lisbon Treaty and decided to resort to the parliamentary ratification procedure. This reassessment is not approved by some members of parliament as well as 59% of the French voters. EUobserver has more.

In the UK, the government's decision not to hold a referendum on the Lisbon Treaty has encountered even more severe resistance. Several efforts are being made to stop a parliamentary vote on the ratification. The major argument of ratification opponents is that the government had previously promised to hold a referendum on the Constitutional Treaty before the treaty failed due to negative referenda in France and the Netherlands. A donor of the British conservative party therefore tries to get judicial review of the British Prime Minister's decision not to hold a referendum claiming a possible breach of contract. A similar case has been filed in a different court by a member of the UK Independence Party. BBC has more. Meanwhile, the so-called "I Want a Referendum (IWR)" campaign [website] intends to run "mock" referenda on the Lisbon Treaty in several constituencies across the UK. It remains to be seen how the situation develops.

I would like to conclude this post with some positive news: According to the BBC, Romania, Hungary, Malta, and Slovenia have already ratified the Lisbon Treaty. In Germany, the government has introduced a law to ratify the Lisbon Treaty. The German parliament is expected to vote on that law in the months to come. For more information regarding the German ratification of the Lisbon Treaty, click here [website of the German government, in German].