Dapo Akande

Professor of Public International Law, Blavatnik School of Government

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Dapo Akande is also Fellow at Exeter College and Co-Director of the Oxford Institute for Ethics, Law and Armed Conflict (ELAC). Before moving to the Blavatnik School, he was Professor of Public International Law at Oxford Law Faculty and was, from 2012 to 2017, Co-Director of the Oxford Martin Programme on Human Rights for Future Generations. He has held visiting professorships at Yale Law School, the University of Miami School of Law and the Catolica Global Law School, Lisbon. He was the 2015 Sir Ninian Stephen Visiting Scholar at the University of Melbourne Law School’s Asia-Pacific Centre for Military Law. Before taking up his position in Oxford in 2004, he held positions at the University of Nottingham and the University of Durham, and from 1994 to 1998, he taught part-time at the London School of Economics and at Christ's and Wolfson Colleges, Cambridge.

Dapo has generalist interests in international law. He is one of the authors of Oppenheim's International Law: The United Nations (2017, OUP), which was awarded the 2019 Certificate of Merit by the American Society of International Law. He is one of the editors of the Practitioners Guide to the Application of Human Rights Law in Armed Conflict (2016, OUP), and of Human Rights and 21st Century Challenges: Poverty, Conflict and the Environment (2020, OUP). He was a member of the International Group of Experts that prepared the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (2017, CUP) which was commissioned by the NATO Cooperative Cyber Defence Centre of Excellence. He was a member of the International Advisory Panel for the American Law Institute’s project on the Restatement Fourth, The Foreign Relations Law of the United States (2018). His articles have appeared in the leading international law journals.

Dapo is founding editor of EJIL:Talk! the widely read scholarly blog of the European Journal of International Law. He has served on the editorial or advisory boards of several leading international law journals, including the American Journal of International Law and the European Journal of International Law. He has also served in leadership or board positions of scholarly societies and civil society organizations, including as Counsellor on the Executive Council of the American Society of International Law; Trustees of the British Institute of International and Comparative Law; on the Advisory Board of the International Centre for Transitional Justice; and as a member of the Africa Group for Justice and Accountability. From 2016 -2018, he was on the World Economic Forum’s Global Future Council on Human Rights.

He has acted as consultant, expert, or adviser on international law issues to United Nations bodies, the African Union Commission, the Commonwealth Secretariat, and the Association of South East Asian Nations (ASEAN). He has provided advice to States and non-governmental organizations on matters of international law. He has acted as counsel, advocate, adviser or consultant in cases before the International Court of Justice, the International Tribunal for the Law of the Sea, the European Court of Human Rights, international arbitral tribunals in mixed disputes, World Trade Organization and North American Free Trade Area Dispute Settlement panels. He has also acted as consultant/adviser in cases in national courts, including the UK Supreme Court. From 2017-2018 he is acted as legal adviser to the UK Parliament’s All Party Parliamentary Group on Drone’s Inquiry into the ways in which the UK works with partners on the use of drones.

 

Publications

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  • D. Akande and Talita de Souza-Dias, 'A New Approach to the"Interests of Justice” in the Ten Years Ahead of the Rome Statute' (2018) ICCForum.com
    We believe that a key reform that has the potential to make the international criminal justice project stronger, more efficient, and more effective is the consideration of peace negotiations as an additional factor in the Prosecutor’s decision of whether or not to pursue an investigation or prosecution “in the interests of justice,” in accordance with Article 53(1)(c) and 2(c) of the Rome Statute. At present, this would require a revision of the Policy Papers issued on this question, in particular, the 2013 Policy Paper on Preliminary Examinations and the 2007 Policy Paper on the Interests of Justice. Significantly, we believe that this reform has the potential to prevent or alleviate, at least in part, some of the most pressing problems mentioned by the International Criminal Court’s (ICC) Office of the Prosecutor (OTP) in its question for this issue of the ICC Forum, namely, the lack of state cooperation, limited budget, and lengthy or complex proceedings.
  • D. Akande, 'An Analysis of why the ICC does not have Jurisdiction over the Crime of Aggression Committed by Nationals of ICC Parties which have not Ratified the Kampala Aggression Amendments' (2018) ICCForum.com
    This piece examines the question of who will be subject to the ICC’s jurisdiction with respect to the crime of aggression. One of the most contentious questions in the negotiations that have taken place, since the adoption of the Rome Statute, regarding the crime of aggression is the question whether the Court’s normal jurisdictional regime should apply to the crime of aggression. A key point that divided the parties during the aggression negotiations was whether the Court should have jurisdiction over nationals of a state that does not ratify the aggression amendments but which is alleged to have committed an act of aggression on the territory of a state has accepted the aggression amendments. At the Kampala Review Conference, a provision was included in the aggression amendments by which states parties to the Rome Statute could opt out from the Court’s jurisdiction over aggression. While some states asserted that the Kampala Amendments essentially created an opt-out regime, under which nationals of states parties to the Rome Statute were covered by ICC jurisdiction unless their state opted-out, others maintained the regime for aggression was essentially an opt-in regime under which nationals of state parties were not within the jurisdiction of the Court unless their state opted-in. The dispute on this issue continued right up to the 2017 ICC Assembly of States Parties meeting in New York at which the ICC’s jurisdiction over the crime of aggression was activated. The resolution adopted in New York endorsed the “narrow view” of ICC jurisdiction and asserted that its jurisdiction over the crime of aggression was essentially based on states parties opting in. This comment first considers the legal effect that the New York resolution will have in determining this jurisdictional question. It is argued that the although an ASP resolution adopted by consensus can, in principle, be regarded as a subsequent agreement of the parties to the Rome Statute that establishes their authentic interpretation of the Statute, within the meaning of the Vienna Convention on the Law of Treaties, the New York resolution does not, in itself, provide the definitive answer as to the correct interpretation of the Rome Statute. It is argued that despite being adopted by consensus, and despite being highly relevant for the interpretation of the Rome Statute and Kampala Amendments, this resolution does not necessarily amount to a subsequent agreement or subsequent practice that the Court is legally bound to follow. Nevertheless, it is argued that the position adopted in New York with regard to the jurisdiction of the Court over nationals of states parties that do not ratify the aggression amendments is the correct legal position and the one that the Court, including the Office of the Prosecutor, ought to adopt. This comment argues that the answer to the question over whom the Court will have jurisdiction with respect to aggression is to be found in Rome rather than in Kampala and that the key to addressing that issue is to understand how the amendment provisions of the Rome Statute work, in conjunction with basic principles of the law of treaties.
  • D. Akande, 'International Organizations' in Evans (ed), International Law (Oxford University Press 2018)
    This chapter examines the legal framework governing international organizations. It begins with an examination of the history, role and nature of international organizations. It is argued in the chapter that although the constituent instruments and practices of each organization differ, there are common legal principles which apply to international organizations. The chapter focuses on the identification and exploration of those common legal principles. There is an examination of the manner in which international organizations acquire legal personality in international and domestic law and the consequences of that legal personality. There is also discussion of the manner in which treaties establishing international organizations are interpreted and how this differs from ordinary treaty interpretation. The legal and decision-making competences of international organizations are considered as are the responsibility of international organizations and their privileges and immunities. Finally, the chapter examines the structure and powers of what is probably the leading international organization—the United Nations (UN).
    ISBN: 9780198791836
  • D. Akande and A. Tzanakopoulos, 'Treaty Law and ICC Jurisdiction over the Crime of Aggression' (2018) 29 European Journal of International Law 939
    DOI: https://doi.org/10.1093/ejil/chy059
    This article examines the question of who will be subject to International Criminal Court (ICC) jurisdiction with respect to the crime of aggression. One of the most contentious questions in the negotiations regarding the crime of aggression was whether the Court would have jurisdiction over nationals of a state that does not ratify the Kampala Amendments, but which is alleged to have committed an act of aggression on the territory of a state that has accepted the aggression amendments. The question is examined here against the background of the rules in the law of treaties regarding amendments and treaty interpretation. The article considers the legal effect that the resolution adopted by the ICC Assembly of States Parties in New York in December 2017 will have in determining this jurisdictional question. A resolution of an international conference adopted by consensus can, in principle, be regarded as subsequent practice or a subsequent agreement of the parties to the Rome Statute that establishes the authentic interpretation of the Statute within the meaning of the Vienna Convention on the Law of Treaties. It is argued, however, that this particular resolution does not, in itself, provide the definitive answer on the correct interpretation of the Rome Statute. Despite being adopted by consensus, and despite being highly relevant for the interpretation of the Rome Statute and the Kampala Amendments, this resolution does not necessarily amount to a subsequent agreement or subsequent practice that the Court is legally bound to follow. Nevertheless, it is further argued that the position adopted in New York with regard to the jurisdiction of the Court over nationals of states parties that do not ratify the Kampala Amendments is the correct legal position and the one that the Court ought to adopt. The answer to the question over whom the Court will have jurisdiction with respect to aggression is to be found in Rome rather than in Kampala, or even in New York. We argue that the key to addressing this issue is to understand how the amendment provisions of the Rome Statute work in conjunction with basic principles of the law of treaties.
  • D. Akande and Emanuela-Chiara Gillard, 'Humanitarian Actors’ Engagement with Accountability Mechanisms in Situations of Armed Conflict' (2017) 2016 Anuário Português De Direito Internacional 105
  • D. Akande and Emanuela Chiara-Gillard, 'Promoting Compliance with the Rules Regulating Humanitarian Relief Operations in Armed Conflict: Some Challenges' (2017) 50 Israel Law Review 119
    DOI: https://doi.org/10.1017/S0021223717000048
    In recent years, the increasingly frequent and, in certain contexts, extremely severe impediments to the provision of humanitarian assistance to civilians in need have focused attention on how to enhance compliance with the rules of international humanitarian law (IHL) that regulate humanitarian relief operations. Efforts to hold accountable parties to armed conflict and persons responsible for unlawfully impeding humanitarian relief operations face the challenge that the underlying rules give parties latitude in how to implement the central obligation to allow and facilitate the rapid and unimpeded passage of humanitarian supplies, equipment and personnel. This article outlines the rules of IHL regulating humanitarian relief operations and highlights the difficulties, in the majority of situations, of determining whether they have been violated. It then presents current endeavours to promote accountability. It concludes with some reflections on whether the threat of accountability is the most effective way of enhancing compliance with this area of IHL, at least while efforts are under way to negotiate access.
  • D. Akande and Antonios Tzanakopoulos, 'The Crime of Aggression in the ICC and State Responsibility' (2017) 58 Harvard international law Journal Online 33
    This is a short piece which discusses the implications of the ICC exercising jurisdiction over the crime of aggression for the responsibility of states.
  • D. Akande and Emanuela-Chiara Gillard, 'The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: An Introduction' (2017) 2016 Anuário Português De Direito Internacional 23
  • D. Akande and E. Gillard, 'Arbitrary Withholding of Consent to Humanitarian Relief Operations in Armed Conflict' (2016) 92 International Law Studies 483
    This article examines the requirement under international humanitarian law (IHL) that consent to humanitarian relief operations must not be arbitrarily withheld. It begins with a brief outline of the rules of IHL regulating humanitarian assistance in armed conflict. The article then considers the origin of the rule prohibiting arbitrary withholding of consent to humanitarian relief operations before proceeding to set out the circumstances when consent will be considered to have been withheld arbitrarily under international law. It proposes three tests for arbitrariness in this context, and also examines how international human rights regulates humanitarian assistance in armed conflict.
  • D. Murray, D. Akande, C. Garraway, F. Hampson, N. Lubell and E. Wilmshurst, Practitioners' Guide to Human Rights Law in Armed Conflict (Oxford University Press 2016)
    Although the relationship between international human rights law and the law of armed conflict has been the subject of significant recent academic discussion, there remains a lack of comprehensive guidance in identifying the law applicable to specific situations faced by military forces. Providing guidance for armed forces and practitioners on the detailed application of international human rights law during armed conflict, this book fills that gap. Part 1 of the volume details foundational information relating to international human rights law and human rights institutions, the types of operations that States' armed forces engage in, and how the law of armed conflict and international human rights law apply to regulate different situations. Part 2 provides practical guidance as to the legal regulation of specific situations, including discussion of the conduct of hostilities, detention operations, humanitarian assistance, cyber operations, and investigations. This book is the result of an in-depth process involving both academic and practitioner experts in the law of armed conflict and international human rights law who were convened in meetings at Chatham House chaired by Elizabeth Wilmshurst, Distinguished Fellow at Chatham House. The group included Professor Francoise Hampson, Essex University; Professor Dapo Akande, Oxford University; Charles Garraway, Fellow at Essex University; Professor Noam Lubell, Essex University; Michael Meyer, British Red Cross; and Daragh Murray, Lecturer at Essex University
    ISBN: 9780198791393
  • D. Akande, 'Selection of the International Court of Justice as a Forum for Contentious and Advisory Proceedings (Including Jurisdiction)' (2016) 7 Journal of International Dispute Settlement 320
    This article was commissioned by the International Court of Justice as one of four background papers for a seminar held at the Court in April 2017 to mark the 70th anniversary of the Court. A French version of the article - "Le choix de recourir à la Cour internationale de Justice en matières contentieuses et consultatives (y compris la question de la compétence)" - was published in the same special issue of the Journal International Dispute Settlement as the English version.
    ABSTRACT: The article identifies trends relating to the selection of the Court as a forum for contentious and advisory proceedings. It compares the use of the Court with other judicial or arbitral mechanisms and identifies how the use of the Court is affected by newer adjudicatory mechanisms. The article considers developments with regard to the invocation of the Court’s jurisdiction under Article 36 of its Statute and examines the factors that might influence states in selecting mechanisms for adjudicating inter-State disputes. The article also examines the significant increase in the use of the Court’s incidental jurisdiction to indicate provisional measures. In this regard, it analyses the ‘plausibility of rights’ criterion, as well as the issues that are likely to arise as the Court seeks to balance competing considerations of preventing misuse of provisional measures and the need to preserve the integrity of the final judgment. Finally, the article considers the use (or lack thereof) of the advisory jurisdiction of the Court, categorizing the types of questions that have been put to the Court and explaining why requests relating to some categories of questions have declined.
  • D. Akande, 'The Impact of the Genocide Convention on the Obligation to Implement ICC Arrest Warrants' in R. Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Brill Nijhoff 2016)
    The International Court of Justice (icj) has held that Article VI of the Genocide Convention imposes an implicit obligation on contracting parties to cooperate with an "international penal tribunal" that has jurisdiction over persons charged with genocide. Although it was envisioned in the drafting of the Convention that acceptance of such jurisdiction would occur by treaty, the ICC is to be regarded as a competent international penal tribunal under the Genocide Convention even in cases where the ICC exercises jurisdiction on the basis of a Security Council referral. This creates an obligation on parties to cooperate with the ICC where an accused person is charged with genocide. However, under the jurisprudence of the ICJ, this obligation of cooperation only arises where the contracting party in question has not only accepted the jurisdiction of the tribunal but also has a pre-existing obligation to cooperate. Applying this precedent would mean that in the Bashir case only those states that are parties to the ICC Statute have an obligation of cooperation under the Genocide Convention. However, a teleological interpretation of the Convention would permit use of the Genocide Convention as a basis for creating an obligation of cooperation for nonparties since they must be deemed to have accepted the jurisdiction of the ICC over the case, by virtue of a binding Security Council resolution conferring such jurisdiction. Relying on the Genocide Convention as a basis for cooperation would open up alternative arguments allowing ICC parties (and nonparties if the teleological interpretation were adopted) to bypass immunities otherwise provided for in international law.
  • D. Akande and A. Tzanakopoulos, 'The International Court of Justice and the Concept of Aggression' in C Kress and S Barriga (eds), The Crime of Aggression: A Commentary (Cambridge University Press 2016)
    This paper reviews the contribution of the International Court of Justice in defining the concept of aggression against the background of the Kampala Amendments to the 1998 Rome Statute of the International Criminal Court. It argues that the ICJ, while not contributing directly to the elaboration of the concept of aggression, has indeed influenced the internal gradation of the concept of aggression through drawing an implicit parallel with the concept of armed attack. The paper then completes this picture by introducing a three-step parallel gradation of concepts: use of force-armed attack-serious breach of jus cogens and use of force-act of aggression-war and/or crime of aggression; and by discussing their potential relationship and interaction.
  • C. Heyns, D. Akande, L. Hill-Cawthorne and T. Chengeta, 'The Right to Life and the International Law Framework Regulating the Use of Armed Drones' (2016) 65 International and Comparative Law Quarterly 791
    DOI: https://doi.org/10.1017/S0020589316000385
    This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, and that since those latter obligations are owed to individuals, one State cannot consent to their violation by another State. The article considers the important legal challenges that the use of armed drones poses under each of the three legal frameworks mentioned above. It considers the nature and application of the right to life in armed conflict, as well as the extraterritorial application of that right particularly in territory not controlled by the State conducting the strike. The article then turns to some of the key controversies in the application of international humanitarian law to drone strikes. It examines the threshold for non-international armed conflicts, the possibility of a global non-international armed conflict and the question of who may be targeted in a non-international armed conflict. The final substantive section of the article considers the law relating to the use of force by States against non-State groups abroad. This part examines the principles of self-defence and consent, in so far as they may be relied up on justify targeted killings abroad.
  • D. Akande and L. Hill-Cawthorne, 'The Lieber Code and the Regulation of Civil War in International Law' (2015) 53 Columbia Journal of Transnational Law 638
    In this paper, we consider one particularly interesting feature of the Lieber Code, which is the fact that it was drawn up by the U.S. Government to regulate the conduct of its armed forces in a civil war. In so doing, we hope to explore the extent to which there maybe links between the Lieber Code and the contemporary regulation of non-international armed conflicts. In particular, we explore some similarities and contrasts between the views on the regulation of civil war that existed at the time of the drafting of the Lieber Code and the position that exists today.
  • D. Akande, 'The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC' (2012) 10 Journal of International Criminal Justice 299
    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
  • D. Akande, 'Classification of Armed Conflicts: Relevant Legal Concepts' in Wilmshurst (ed), International Law and the Classification of Conflicts (OUP 2012)
    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
  • D. Akande, C. Jalloh and M. du Plessis, 'Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court' (2011) 4 African Journal of Legal Studies 5
    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
  • D. Akande, 'The Genocide Convention and the Obligation of Cooperation with the International Criminal Court' (2011) UCLA Human Rights and International Criminal Law Online Forum (2011)
    The International Court of Justice (ICJ) has held that Article VI of the Genocide Convention imposes an implicit obligation on Contracting Parties to cooperate with an “international penal tribunal” that has jurisdiction over persons charged with genocide. Although it was envisaged in the drafting of the Convention that acceptance of such jurisdiction would occur by treaty, the ICC is to be regarded as a competent international penal tribunal under the Genocide Convention even in cases where the ICC exercises jurisdiction on the basis of a Security Council referral. This creates an obligation on parties to cooperate with the ICC where an accused person is charged with genocide. However, under the jurisprudence of the ICJ this obligation of cooperation only arises where the contracting party in question has not only accepted the jurisdiction of the tribunal but also has a pre-existing obligation to cooperate. Applying this precedent would mean that in the Bashir case, only those States that are parties to the ICC Statute have an obligation of cooperation under the Genocide Convention. However, a teleological interpretation of the Convention would permit use of the Genocide Convention as a basis for creating an obligation of cooperation for non-parties since they must be deemed to have accepted the jurisdiction of the ICC over the case by virtue of a binding Security Council resolution conferring such jurisdiction. Relying on the Genocide Convention as a basis for a cooperation would open up alternative arguments allowing ICC parties (and non-parties if the teleological interpretation were adopted) to bypass immunities otherwise provided for in international law.
  • D. Akande and Sangeeta Shah, 'Immunities of State Officials, International Crimes and Foreign Domestic Courts' (2010) 21 European Journal of International Law 815
    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
  • D. Akande, Max du Plessis and Charles Jalloh, 'An African Expert Study on the African Union's Concerns About Article 16 of the Rome Statute of the ICC' (2010) Institute for Security Studies
    This African expert study on the African Union’s (AU) concerns about article 16 of the Rome Statute of the International Criminal Court (ICC) seeks to articulate a clearer picture of the law and politics of article 16 deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC) to invoke article 16 to suspend the processes initiated by the ICC against President Omar al-Bashir of Sudan. The lack of a formal reply by the UNSC to the AU request has resulted in AU member states deciding to withhold cooperation from the ICC in respect of the arrest and surrender of Bashir. In light of the AU’s continued concerns, questions have arisen about the UNSC’s exercise of the controversial deferral power contained in article 16. This culminated in the AU proposing that article 16 be amended to empower the UN General Assembly to act should the UNSC fail to decide on a deferral request after six months. Although states parties to the Rome Statute have shown little support for the AU’s proposed amendment to article 16, the merits of the AU proposal must be considered. A failure to engage with African government concerns about the deferral provision could further damage the ICC’s credibility in Africa. Constructive suggestions about the ‘article 16 problem’ must be developed in order to contribute towards resolving the negative stance that some African countries have taken towards the ICC. The challenge is to devise both legally sound and politically palatable options. For many Africans, the ICC’s involvement in Sudan has come to reflect the skewed nature of power distribution within the UNSC and global politics. The result is that the uneven political landscape of the post-World War II collective security regime has become a central problem of the ICC. It is also important to pay attention to the AU’s concerns and its request for an article 16 deferral of the Bashir indictment because the matters underlying the tension – how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the UNSC in ICC business – are likely to arise in the future with respect to other situations. Solutions must be found to problems that may arise in working out the relationship between the UNSC and the ICC. The study therefore makes practical suggestions about how to resolve the concerns raised within certain African government circles and other developing nations about the relationship between the UNSC and the ICC, and the relationship between the ICC and peacemaking initiatives of governments and regional organisations. The spirit underlying the study is that a strong, independent and successful ICC is ultimately in Africa’s best interest as the continent works to tackle impunity. By the same token, it is equally in the ICC’s long-term interest to show greater sensitivity towards the specific interests and views of African states. It is for this reason that the position paper includes proposals for possible amendment of article 16, despite agreement among the experts of the project’s working group that such an amendment is unlikely considering the amount of support that would be required from states parties to enable the passing of an amendment. . . . The expert study began with the writing of a draft position paper on the article 16 issue. The draft was then circulated to a group of African and international experts from civil society and government, who provided written comments and participated in a two-day meeting in Addis Ababa in June 2010 to discuss the draft paper. The experts participated in their personal capacities and their views do not reflect the views of their organisations. Although the final position paper reflects the outcomes of the inputs and discussions among the expert group members, the contents of this paper must be attributed to the three authors rather than to members of the expert group.
    ISBN: 978-1-920422-24-0
  • D. Akande, 'Prosecuting Aggression: The Consent Problem and the Role of the Security Council' (2010)
    This paper focuses on the conditions which ought to exist before the International Criminal Court can exercise jurisdiction over the crime of aggression. In particular, it addresses (i) whether the Court should be competent to exercise jurisdiction where the alleged aggressor State has either not accepted the amendment on aggression, or is not a party to the ICC Statute and (ii) whether ICC jurisdiction on aggression should be made dependent on the prior approval of the United Nations Security Council. The first issue is referred to here as the “consent problem” and the second the “Security Council problem/issue”. This paper argues that the consent problem raises a fundamental question of deeper significance than the textual or perhaps technical issues concerning the way in which the amendment concerning aggression might come into force under Article 121 of the Statute. The consent problem raises fundamental issues about the nature of the ICC as an international tribunal and about the principles governing the competence of international tribunals under international law. In particular, the consent issue raises important questions about the jurisdiction of international tribunals over non-consenting States and whether the ICC is to be regarded as bound by rules of international law that would ordinarily bind other international tribunals. This paper, outlines and explains the principle of consent as applied to the competence of international tribunals. There is a detailed discussion, in Section 2, of the application of the principle to cases before international tribunals where the tribunal is called upon to determine the rights and obligations of States not before the tribunal. In particular, this section discusses the Monetary Gold principle enunciated by the International Court of Justice. According to that principle, the Court will not adjudicate on a case where the Court would be required, as a necessary prerequisite, to adjudicate on the rights or responsibilities of a non-consenting and absent third State. It is argued that this principle is simply an application of the more general principle of consent and that the principle is derived from the more fundamental principle of the independence of States, i.e. the idea that States are not subject to external authority of other States or institutions created by other States. The paper argues, in Section 3, that because a determination that an individual has committed the crime of aggression requires a prior determination that a State has committed an act of aggression and a breach of the UN Charter, the ICC would act in violation of the consent principle in cases contemplated by the aggression amendment. The paper then turns, in Section 4, to an examination of whether the consent principle and the Monetary Gold principle (which is an application of that more general principle) are applicable to international criminal tribunals in general and to the ICC in particular. Referring to the case law of other tribunals, it is argued that these principles apply to all international tribunals and that the form in which the proceedings involving adjudication of the responsibilities of other States takes place is irrelevant to their application. Section 5 examines which States are to be regarded as non-consenting States for the purpose of the application of the consent principle. I then turn to the Nuremberg and Tokyo precedents in Section 6. I argue that the establishment and operation of these tribunals would not support the view that a rule has developed permitting departure from the consent principle in international criminal tribunals. I argue that neither tribunal was truly international and that in any event, in both cases, there was the consent of the relevant sovereign authority. The paper considers, in Section 7, whether the jurisdiction of the ICC over aggression can be justified on the basis of a transfer of authority from the State that is the alleged victim of aggression. It is argued that though victim States can prosecute for aggression and though transferred jurisdiction is an appropriate justification for the jurisdiction of the ICC in general, the principles and precedents which support transfers of jurisdiction to international tribunal do not apply to aggression. Section 8 returns to the Security Council issue and considers whether prior determination by the Council (or by the General Assembly or ICJ) would fall within an exception to the Monetary Gold principle. It is argued that the best way to expand the jurisdiction of the Court to non-consenting States while respecting the principle of consent is by referral of situations to the Court by the Council. When the consent problem is taken into account, the role of the Security Council in making referrals to the ICC with regard to aggression is not a limit on the competence of the Court. Rather the Security Council comes to the aid of the Court and expands its jurisdiction to situations where the ICC would otherwise be legally incompetent to act. On this view, giving the Security Council almost exclusive competence with regard to aggression cases is not to be regarded as a problem to be overcome, but rather as a means of overcoming an existing problem. The final section is the main theoretical contribution of the piece, considering whether the deviation from the consent principle contemplated with regard to the ICC’s jurisdiction over aggression is to be regarded as an evolution of the law or instead a violation.
  • D. Akande, 'The Legal Nature of the Security Council Referrals to the ICC and its Impact on Al Bashirs Immunities' (2009) 7 Journal of International Criminal Justice 333
    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
  • D. Akande, 'Arrest Warrant Case”; “Pius Nwaoga v. The State' in Cassese, Akande, et al (ed), Oxford Companion to International Criminal Justice (OUP 2009)
  • A.Cassese, G. Acquaviva, D. Akande and others (eds), Oxford Companion to International Criminal Justice (Oxford University Press 2009)
    The Oxford Companion to International Criminal Justice is the first major reference work to provide a complete overview of this emerging field. Its nearly 1100 pages are divided into three sections. In the first part, 21 essays by leading thinkers offer a comprehensive survey of issues and debates surrounding international humanitarian law, international criminal law, and their enforcement. The second part is arranged alphabetically, containing 320 entries on doctrines, procedures, institutions and personalities. The final part contains over 400 case summaries on different trials from international and domestic courts dealing with war crimes, crimes against humanity, genocide, torture, and terrorism. With analysis and commentary on every aspect of international criminal justice, this Companion is designed to be the first port of call for scholars and practitioners interested in current developments in international justice.
    ISBN: 978-0-19-923832-3
  • D. Akande, '“The Protective Principle”; “The Active Nationality Principle”; “The Passive Personality Principle”; “The Territoriality Principle”' in Cassese, Akande, et al (ed), Oxford Companion to International Criminal Justice (OUP 2009)
  • D. Akande, 'Act of State Doctrine' in P. Cane (ed), The New Oxford Companion to Law (OUP 2008)
  • D. Akande, 'The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits' in Bekou & Cryer (ed), The International Criminal Court (Ashgate 2005)
    also published as a journal article
    ISBN: 0754624099
  • D. Akande and S Williams, 'International Adjudication and National Security Issues: What Role for the WTO' (2003) 43 Virginia Journal of International Law 365
    60% contribution by this author
    ISBN: 0042-6571
  • D. Akande, 'The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits' (2003) (2003)1 Journal of International Criminal Justice 618
    This article examines the jurisdiction of the International Criminal Court (ICC) over nationals of states not party to the ICC Statute. The article first addresses the US argument that the exercise of ICC jurisdiction over nationals of non-parties without the consent of that non-party would be contrary to international law. The author considers the principles which support the delegation of criminal jurisdiction by states to international tribunals and discusses the precedents for such delegations. It is further argued that the exercise of ICC jurisdiction over acts done pursuant to the official policy of a non-party state would not be contrary to the principle requiring consent for the exercise of jurisdiction by international tribunals. Finally, the article explores the limits to the jurisdiction of the ICC over non-party nationals. In particular, the article addresses the circumstances in which ICC parties are precluded from surrendering nationals of non-parties to the ICC.
  • D. Akande, 'The Role of the International Court of Justice in the Maintenance of International Peace' in N. White (ed), Collective Security Law (Ashgate 2003)
    This publication reproduces, in a collection of seminal works on collective security, an article first published in (1996) 8 African Journal of International Comparative Law. The chapter examiners the role and record of the international court in the settlement of disputes which are likely to affect international peace.
  • D. Akande, 'The Settlement of International Disputes: Institutions and Procedures, Collier and Lowe (OUP, 1999).' (2001) 64 Modern Law Review 140 [Review]
  • D. Akande, 'Africa Have Your Say' (2000) BBC BBC World Service Duration: 54 mins
    The programme discussed issues relating to the ICC and the pursuit of peace and justice.
  • D. Akande, 'The Era of International Criminal Responsibility' in (ed), The Hutchinson Almanac (2000)
  • D. Akande, 'Review of The International Court of Justice: Its Future Role After Fifty Years, Muller, Raic and Thuránszky (eds.), (Martinus Nijhoff, 1997).' (1998) 69 British Yearbook of International Law 524 [Review]
  • D. Akande, 'Nuclear Weapons, Unclear Law? Deciphering the Nuclear Weapons Advisory Opinion of the International Court' (1997) 68 British Yearbook of International Law
  • D. Akande, 'The International Court of Justice and the Security Council: Is there Room for Judicial Control of Decisions of the Political Organs of the United Nations' (1997) 46 International and Comparative Law Quarterly 309
  • D. Akande, 'The Legal Imperatives toward Supranationalism Inherent in the Process of Economic Integration' (1996) 8 Proceedings of the Annual Conference of the African Society of International and Comparative Law 103
  • D. Akande, 'The Role of the International Court of Justice in the Maintenance of International Peace' (1996) 8 African Journal of International and Comparative Law 592
  • D. Akande, 'Review of National Treaty Law and Practice: France, Germany, India, Switzerland, Thailand and the United Kingdom, Monroe Leigh and Merritt R. Blakeslee (eds.), (ASIL, 1995)' (1995) 7 African Journal of International and Comparative Law 215 [Review]
  • D. Akande, S. Davis, M. Guerts and T. Doyle, 'New Trends in United Nations Peacekeeping" - a section in “Recent Developments in International Law 1993' (1994) European Law Students’ Association Law Review 71

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