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DOI: 10.1163/170873811X563947

This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the Sudanese leader. Given the AU’s continued concerns, and the current impasse, fundamental questions have arisen about the Council’s authority to exercise, or not exercise, its deferral power. This culminated into a November 2009 African proposal for an amendment to the Rome Statute to empower the UN General Assembly to act should the UNSC fail to act on a deferral request after six months. Although ICC States Parties have so far shown limited public support for the AU’s proposed amendment to the deferral provision, this article examines its merits because a failure to engage the “Article 16 problem” could impact international accountability efforts in the Sudan, and further damage the ICC’s credibility in Africa. This unresolved issue also has wider significance given that the matters underlying the tension – how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the Council in ICC business – will likely arise in future situations from around the world.

ISBN: 2210-9730

International humanitarian law governs the conduct of participants in an armed conflict. In order to determine whether it applies to situations of violence it is necessary to assess first of all whether the situation amounts to an ‘armed conflict’. However, international humanitarian law does not recognize a unitary concept of armed conflict but, rather, recognizes two types of armed conflicts: international and non-international. This chapter examines the history of the distinction between these two categories of armed conflict, the consequences of the distinction and whether it still has validity. The chapter then discusses legal concepts relevant to the two categories, including the differences between a non-international conflict and other violence, extraterritorial hostilities by one State against a non-state armed group and conflicts in which multinational forces are engaged. All these concepts are relevant to the understanding of the case studies which are the focus of the rest of the book.

ISBN: 978-0-19-965775-9

DOI: 10.1093/ejil/chq080

This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.

ISBN: 0938-5428

Abstract:

The article considers whether the obligations of states, which have been referred to the International Criminal Court (ICC) by the United Nations Security Council, are the same as the cooperation obligations of states parties to the ICC Statute. It is argued that despite the lack of clarity in the resolutions referring the situation in Darfur and in Libya to the ICC, the better view is that the obligation imposed on Sudan and Libya to �cooperate fully� with the ICC should be regarded as an obligation to cooperate in accordance with the provisions of the ICC Statute. This means that those states are entitled to benefit from those limited provisions of the ICC Statute that permit a refusal to cooperate with the Court or permit the state to postpone the execution of a request by the Court for assistance. The article also considers the interaction between the obligations of states to cooperate with the ICC and domestic proceedings against those sought for ICC prosecution. It considers the extent to which the obligation of cooperation may be suspended by an admissibility challenge and addresses whether the permission to suspend the obligation of cooperation may extend to a suspension of the obligation to surrender an accused person to the ICC.

ISBN: 1478-1387

DOI: 10.1093/jicj/mqp034

This article considers whether states are obliged or permitted to arrest Sudanese President Omar al Bashir pursuant to a warrant of arrest issued by the International Criminal Court (ICC). The article considers the extent to which the ICC Statute removes immunities which would ordinarily be available to state officials. It is argued that the removal of the immunity by Article 27 of the ICC Statute applies also at the national level, when national authorities act in support of the ICC. The article examines the application of Article 98 of the ICC Statute and considers the legal nature of Security Council referrals to the ICC. It is argued that the effect of the Security Council referral is that Sudan is to be regarded as bound by the ICC Statute and thus by Article 27. Given that the Statute operates in this case not as a treaty but by virtue of being a Security Council resolution, the removal of immunity operates even with regard to non-parties. However, since any (implicit) removal of immunity by the Security Council would conflict with customary international law and treaty rules according immunity to a serving head of state, the article considers the application of Article 103 of the United Nations (UN) Charter in this case.

ISBN: 1478-1387

Jeff McMahan’s challenge to the longstanding orthodoxy about the right way to conduct war has fallen on fertile grounds because it is an attempt to apply to the use of force between states a moral standard whose pertinence to international relations is decreasingly contestable and which regulation by international law (IL) is, therefore, under pressure to afford: the preservation of individual rights. This compelling endeavour is at an impasse given the admission of many ethicists that it is currently impossible for international humanitarian law (IHL) to regulate killing in war with a view to individuals’ liability. IHL’s failure to consistently protect individual rights, specifically its shortfall compared to human rights law, has led to challenges also by international lawyers. This paper identifies the features of war that ground the inability of IL to regulate it to a level of moral acceptability and characterises such situations as presenting an epistemically cloaked forced choice regarding the preservation of individual rights. Commitment to the above moral standard then means that IL should not prejudge the outcome of such quintessential wars and must, somewhat paradoxically, diverge from morality. In showing that many confrontations between states inevitably take the form of such epistemically cloaked forced choices, the paper contests the argument by revisionist just war theories that the failure of IL to track a deep morality of war is merely a function of contingent institutional desiderata. Symmetrical IHL with its current moral limitations has a continuing role to play in international relations.

An extensive updated collection of key documents covering all elements of the subject, plus commentary and bibliographic annotation. Organized by reference to UN instruments, UN sponsored conventions, ILO, UNESCO, and regional instruments.

ISBN: 978-0-19-956404-0

DOI: 10.1093/acprof:oso/9780199647071.003.0003

When the Security Council imposes binding obligations through decisions adopted under Chapter VII of the UN Charter it may impact on internationally protected human rights and the corresponding obligations of UN member states to respect these rights. Member states are then faced with potentially conflicting obligations. This contribution surveys the respective position of Security Council measures and human rights obligations in the (emergent) normative hierarchy of international law. It defines normative conflict and discusses state practice in order to establish whether Article 103 of the UN Charter is a conflict or a hierarchy rule and whether human rights obligations are subordinate to Security Council measures.

ISBN: 978-0-19-964707-1

DOI: 10.1093/acprof:oso/9780199600762.001.0001

This book examines how the United Nations Security Council, in exercising its power to impose binding non-forcible measures ('sanctions') under Article 41 of the UN Charter, may violate international law. The Council may overstep limits on its power imposed by the UN Charter itself and by general international law, including human rights guarentees. Such acts may engage the international responsibility of the United Nations, the organization of which the Security Council is an organ. Disobeying the Security Council discusses how and by whom the responsibility of the UN for unlawful Security Council sanctions can be determined; in other words, how the UN can be held to account for Security Council excesses.

ISBN: 978-0-19-960076-2

DOI: http://dx.doi.org/10.1093/acprof:oso/9780199595297.003.0003

This paper attempts to trace, analyze, and justify, the reactions of domestic courts when these are faced with a challenge to domestic measures implementing Security Council sanctions regimes, in particular the regime under SCRs 1267 (1999) seq. It discusses the method in which domestic courts engage with the measures before them, as well as the standard of review they apply, and the usual outcomes of the challenge, ie abstention, low-intensity review, interpretation or annulment of the domestic measure. Interpretation and annulment of the domestic measure in particular may force the State in breach of its international obligations under the relevant SCRs and Article 25 of the UN Charter. The final section attempts to legal qualify and justify this potential breach.

ISBN: 978-0-19-959529-7

As the title suggests, this paper does not deal with 'international law in domestic courts' but rather with 'domestic courts in international law'. It seeks to ascertain whether domestic courts are assigned an international judicial function by international law, and whether and to what extent they are in fact assuming and exercising that function. The paper attempts to define the concept of an ‘international judicial function’ and argues that, because of the peculiar ‘directionality’ of a great many international obligations (which require implementation within the domestic jurisdiction), domestic courts are the first port of call and the last line of defense for the interpretation and application of international law. However, as organs of States, courts may engage the international responsibility of the State if their conduct results in the breach of an international obligation. This is why the exercise of the international judicial function of domestic courts is supervised by States, either through the submission of disputes to international courts, or, more usually, through decentralized reactions.

ISBN: 1533-5860

States increasingly 'contract out' their governmental authority in favour of international organizations. As a result, remedies available under domestic law to individuals and legal entities may no longer be available, leaving them without redress. (Domestic) courts have devised a method to react to such diminution of their jurisdiction, which at the same time comprises a message for various addressees and engages a dialogue on multiple levels. This method is shaped by the spirit and thrust of the argument the German Constitutional Court put forward in its Solange jurisprudence, and has the potential of fostering a harmonization of domestic and international law, as well as that of establishing a rudimentary normative hierarchy at the international level.

ISBN: 9781849462471

This paper discusses transparency in the working method of the United Nations Security Council. It describes the institutional design of the organ and the evolution of Security Council powers, and seeks to identify whether there is an obligation for the Council to act in a transparent manner in the exercise of its powers. The paper argues that transparency is an 'ancillary' obligation incumbent on the Council, to allow for decentralised control over the exercise of its powers by Member States of the UN. Transparency having no independent normative charge, we do not how much of it is good -- this is determined by a pattern of protest and reaction between the Security Council and the Member States called upon to implement its decisions.

ISBN: 978-1107021389