I(A). Looking for Precedents: The Nuremberg War Crimes Trials
I(A)(i). The Foundations
The Nuremberg Charter (October, 1945)
Article 6 – crimes within jurisdiction of tribunal: (a)Crimes against the peace (ex. war of aggression); (b)War crimes – violations of the laws or customs of war (ex. deportation to slave labour, killing hostages, devastation not justified by military purposes); (c)Crimes against humanity.
Control Council Law No. 10 (December, 1945) – Articles for rules within occupying Zones of Germany.
Article II (like Nuremerg Article 6) – (1)recognize the following acts as crimes: (a)crimes against peace; (b)war crimes; (c)crimes against humanity.
(2)deemed to have committed crime under (1)if individual: (a)is principal; (b)is accessory; (c)took consenting part; (d)was connected with plans involving crime’s commission; (e)was member of organization connected with commission of such crime; (f)in reference to crimes against the peace, if defendant held high political, civil, or military position in Axis powers, or held high position in financial, industrial, or economic life of country.
(3)punishment may consist of: (a)death; (d)forfeiture of property (vs. only taking away stolen property under Nuremberg); (e)restitution of wrongfully acquired property; (f)deprivation of some or all civil rights.
(4)(a)official position of person, does not free him from responsibility for crime, not entitle him to punishment mitigations (like Nuremberg Art. 7); (b)person acting under orders of superior is not free from responsibility, but can have sentence mitigated (like Nuremberg Art. 8).
UN General Assembly Resolutions (1946) – 96(1) – The Crime of Genocide – defined as “the denial of the right of existence of entire human groups” – calls it a “matter of international concern” – seeks to condemn principals and accomplices, private individuals and public officials.
I(A)(ii). The High Command Case – trial found none of defendants guilty of crimes against the peace – guilt for 11 defendants for war crimes and crimes against humanity in counts 2 and 3 of the indictment.
US v. von Leeb et al. (Nuremberg – 1948) – Court dismisses objection to tribunal’s existence – a state can enact criminal law and create courts to follow through with those laws – has jurisdiction to hear of violations of international criminal law.
Superior Orders – under Control Council Law No. 10 Article II(4)(a&b)– servile compliance with clearly criminal orders cannot be excused unless, perhaps, it can be shown that there was also some immediate fear of disadvantage or punishment for failure to comply (not the case here).
Orders – field commander is a soldier, not a lawyer, and cannot be expected to always know whether the orders he is given are criminal – field commander will only be criminally responsible for following or issuing orders if the order was obviously criminal on its face or it can be shown that he knew the order was criminal.
Commando Order – Hitler issued order in 1942, directing for the slaughter of “commando” troops (who he claims kill defenseless prisoners) even if they are unarmed (order did not effect treatment of regular enemy prisoners under international laws – Court calls this order criminal on its face.
The Unparticipating Party – under Article II(2)(c&d), an officer who stands by while known crime occurs, cannot be freed of guilt since he is still take a “consenting” role and is “connected” with the act.
Restatement §404 – Universal Jurisdiction to Define and Punish Certain Offenses – A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction indicated in § 402 is present.
I(B). Back to Yugoslavia
I(B)(i). A Brief History of the Conflict in Bosnia/Herzegovina – Serbs (from Yugoslavia – Serbia/Montenegro) commit atrocities against Bosnians and Croats (in Bosnia/Herzegovina).
I(B)(ii). The International Community Contemplates War Crimes
Security Council Establishes International Tribunal –
Resolution 764 (1992) – all parties to conflict are bound to comply with obligations under international humanitarian law and in particular the Geneva Conventions of 1949.
Resolution 808 (1993) – international tribunal “shall” be established for prosecution of persons responsible for serious violations of international humanitarian law committed in territory of former Yugoslavia since 1991 – doesn’t address how tribunal will create jurisdiction or what the legal basis is for its creation.
Legal Basis for Tribunal – eventually established under UN Chapter VII – Arts. 39 & 41
Court as Subsidiary Organ – under Article 29, but one of a judicial nature.
Resolution 827 (May 1993) – determines that the situation constitutes a threat to international peace and security – see an international tribunal as ensuring that violations are halted and effectively redressed – “creates” tribunal in former Yugoslavia for crimes since 1991.
I(B)(iii). Statute of the International Tribunal
Article 1 – Competence of the Tribunal – power to prosecute violators of international humanitarian law in Yugoslavia since 1991.
Article 2 – SM Jur. – Grave Breaches of Geneva Conventions of 1949 (under Geneva Art. 4 (pg. 998), only protects people in conflict or under occupation of a foreign force, not internal one) – power to prosecute crimes against property or persons under Geneva: (a)willful killing; (b)torture or inhumane treatment; (c)willful causing great suffering or injury; (d)extensive destruction and appropriation of property; (e)compelling prisoner or civilian to serve in forces of hostile power; (f)willfully depriving prisoner or civilian of right to fair trial; (g)unlawful deportation or confinement; (h)taking civilians as hostages.
Article 3 – SM Jur. – Violations of the Laws or Customs of War (requires “nexus” to armed conflict, but it need not be international in character, as for Art. 2) – power to prosecute for such violations: (a)employment of poison weapons or others causing unnecessary suffering; (b)wanton destruction; (c)attack of undefended towns; (d)seizure, destruction, or willful damage of religious, charity, educational, artistic institutions; (e)plunder of property.
Article 4 – SM Jur. – Genocide (does not require “nexus” to armed conflict although requires “intent” to wipe out a specific group of people) – includes: (a)killing members of a group; (b)serious bodily or mental harm to group members; (c)deliberately inflicting conditions of life calculated to destroy the group; (d)imposing measures to prevent births; (e)forcibly removing children from the group.
(3)punishes: (a)genocide; (b)conspiracy to commit; (c)direct and public incitement to commit it; (d)attempt to commit genocide; (e)complicity in genocide.
Article 5 – SM Jur. – Crimes Against Humanity (appeals court in Tadic, says they can be convicted for purely personal reasons, but need to be part of more widespread persecution) – power to prosecute for listed crimes, committed during armed conflict (Tadic says “during” only means that CAH has to be committed when there’s an armed conflict going on, but not necessarily in the actual combat stages – ex. during occupation), whether internal or international, and directed as civilian population: (a)murder; (b)extermination; (c)enslavement; (d)deportation; (e)imprisonment; (f)torture; (g)rape; (h)persecution on political, racial, and religious grounds (appeals court in Tadic says it requires added discriminatory intent beyond what is demanded for general guilt under Art. 5); (i)other inhumane acts.
Article 6 – Personal Jurisdiction – broad grant of jurisdiction over natural persons under statute.
Article 7 – Individual Criminal Responsibility – (1)responsible for crime if you: 1)planned; 2)instigated; 3)ordered; 4)committed; 5)otherwise aided or abetted in: a)planning; b)preparation; c)or execution of crime referred to in Articles 2-5.
(3)superior responsible for acts of subordinate if he knew or had reason to know that subordinate was about to commit such acts or if subordinate did so and superior failed to take appropriate measures.
(4)following superior orders does not remove responsibility but it can mitigate the punishment.
Article 9 – Concurrent Jurisdiction – international tribunal has primacy over national courts – may request that national courts defer to it.
Article 10– non-bis-in-idem – (1)like no double jeopardy (wont be tried in national courts for crimes that the tribunal tried you for) – although, under (2), if tried in national court, can later be tried by tribunal if, under (2)(b) the national court proceedings were not impartial or independent, were designed to shield accused, or case was not diligently prosecuted – under (3), tribunal also considers extent to which penalty imposed by national courts for the same act, by the same person, has already been served.
Article 24 – Penalties – (1)no death penalty.
Article 25 – Appellate Proceedings – (1)right of appeal for issues of fact and law.
I(B)(iv). Rape as a War Crime? I(C). The International Criminal Tribunal for the Former Yugoslavia
I(C)(i). Tribunal Composition – three organs: 1)judiciary – consists of 11 judges assigned to 2 trial chambers and appeals chamber; 2)Office of the Prosecutor; 3)Registry – headed by Registrar – carries out administrative functions of tribunal (ex. setting up defendants with legal aid).
Prosecutor of ICTY – (Inter. Criminal Tribunal for Yugoslavia) has few checks on power to indict (judge must decide if supporting material makes reasonable case for subject’s guilt), can even appeal an acquittal or sentence considered too lenient – doesn’t engage in plea bargaining and only rarely grants immunity for testimony.
Problems: 1)getting victim witnesses to testify – Tribunal has no enforceable subpoena power over residents of independent states – many witnesses reside in state where crimes took place and fears of intimidation or retribution keep them from testifying; 2)risk of isolation – ICTY stands on its own (no sister courts, other than ICTR, for points of reference, and no higher courts to correct errors) – ICJ is similarly isolated, but it doesn’t exercise criminal jurisdiction nor forcibly catch people and sentence them to prison – ICTY needs oversight by outside world to ensure its mission is achieved; 3)political nature of the court – highly dependent on other institutions’ cooperation (state cooperation, UN peacekeeping cooperation to arrest indicted individuals); 4)ICTY as half-historian – tribunal encouraged to document events that lead up to conflict but factual findings do not include views of the states themselves; 5)specter of state sovereignty – violations of international laws that take place in internal conflicts can and are prosecuted meaning that tribunal is no longer just for threats to “international” peace per se.
I(C)(ii). The First Principle Case: Prosecutor v. Tadic (February, 1995) – at all times, state of armed conflict exist in Bosnia – all acts or omissions were grave breaches under Tribunal Arts. 2, 3, 5 that occurred during armed conflict – all prisoners of Omarska camp, and Bosnian Muslims and Croats of Prijedor, were all protected under Geneva Conventions of 1949 – all of accused were required to comply with laws and customs of war, including Geneva 1949.
The Tribunal’s Jurisdiction is Challenged – three claims by defense:
Illegal Foundation of the International Tribunal: 1)was there really a threat to the peace justifying invocation of UN Charter Chapter VII as legal basis for creating tribunal; 2)assuming threat existed, was UN SC authorized, with view of restoring peace, to take its own measures rather than following those provided for in UN Charter Articles 41 & 42; 3)how can you justify making a tribunal since it doesn’t figure with the articles listed above?
Power of SC to Invoke Chapter VII – Article 39 allows SC to determine threats to peace, breach of peace, or act of aggression and to act on them, but these powers are bounded by a requirement to stay within purposes of UN (Article 24(2)) – the situation here is clearly a “threat to the peace,” even if it is an “internal” vs. an “international” armed conflict (“threat to the peace” includes internal armed conflicts).
Establishment of the International Tribunal as a Measure Under Chapter VII – discretion to act under Article 39 determinations is checked by Articles 41 & 42 – tribunal not expressly mentioned as an enforcement mechanism but it matches perfectly the description in Article 41 of “measures not involving the use of force.”
Unjustified Primacy of the International Tribunal Over Competent Domestic Courts – primacy established by Tribunal Article 9 – Security Council said to have authority to act for the “community of nations” that give it power – would be travesty to allow state sovereignty to usurp concerns about human rights and other international laws.
Lack of Subject-Matter Jurisdiction – claim that jurisdiction of court is only over “international” armed conflicts, not “internal” ones (Tribunal Articles 2, 3, and 5) – Court rejects this, saying that the “nexus requirement” between crimes against humanity and war crimes/crimes against the peace was eliminated as early as the Control Council Law No. 10 Article II(1)(c) (which listed it separately) – now a settled rule that crimes against humanity do not require connection to international armed conflict (doesn’t require connection to any conflict).
Judgment of the Trial Chamber
Factual Findings – with collapse of Communism, Serbia (using JNA and political parties) sought to create Serb republic by annexing parts of Croatia and Bosnia/Herz., but this involved getting rid of the Muslims and Croats in Bosnia/Herz. – given smaller manpower, JNA sought help from paramilitary (VRS) forces of Serbs recruited in Montenegro and Serbia – following war with Croatia in effort to get Serbian areas of it, Serb forces are also in Bosnia/Herz. and despite claim of withdrawal from territory, attacks continued by JNA and VRS (paramilitary).
Nexus Between the Acts of the Accused and the Armed Conflict – for crime to fall within jurisdiction of tribunal, a sufficient nexus must be established between the alleged offense and the armed conflict which gives rise to the applicability of international humanitarian law (armed conflict can be international or internal in nature, as per jurisdiction ruling of Appellate Division) – not necessary to show: 1)that conflict was occurring at exact time and place of the proscribed acts alleged; 2)nor that the alleged crime takes place during combat (ex. could occur during occupation); 3)crime was a part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict; 4)act was in actual furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict.
Status of Republika Srpska (VRS – Paramilitary) and Protections of Civilians – VRS are not agents of Serbia/Montenegro (because Serb forces withdrew and seem to have broken connection to VRS), therefore there presence in Bosnia/Herz. is not extra-national (can be said to have originated within Bosnia/Herz.), meaning that victims are still protected under Tribunal Article 3 which applies to any situation, but that also means that the accused cannot be guilty under Tribunal Article 2 for “grave breaches” of Geneva Convention since at no time were civilians part of a conflict of which they were not nationals (a requirement to be protected under the Geneva Conventions – Geneva Article 4, pg. 998).
Dissent – victims should be protected under Tribunal Article 2 because VRS force was extra-national and conflict was international in character – finds that despite claims of cutting ties to VRS, Serbia still supported them and they should be considered an extra-national Serbian force.
Tribunal Article 3 – Requirements for Article are met because: 1)an armed conflict existed; 2)each victim was protected by provisions, having taken no part in hostilities; 3)offences were committed within context of armed conflict (nexus requirement).
Tribunal Article 5 – attribution of individual criminal responsibility for crimes against humanity seems implicit from Appeals Chamber’s jurisdiction decision which said that customary international law dictates that crimes against humanity do not require connection to an “international” armed conflict.
Persecution (Article 5(h)) – can crimes against humanity that qualify under different prongs of Article 5 also constitute “persecution” under 5(h) if they are committed with discriminatory intent? Court says no – crimes against humanity already assume a discriminatory nature in carrying them out – persecution offense is a separate one and requires more than just simple discriminatory intent.
Individual Criminal Responsibility Under Tribunal Article 7(1) – Aiding and Abetting – Court finds that aiding and abetting includes all regular forms of assistance but must also include a requisite intent (presence alone is not sufficient) – acts of accused towards crime must be “direct and substantial” although his actual presence is not necessary (ex. just driving people to the woods to be killed when you know what’s going to happen to them).
Judgment of the Appeal Chamber – after all defendant appeals were denied, prosecution cross-appeals on many grounds:
Trial Chambers Finding That Victims Were Not “Protected Persons” Under Tribunal Article 2 – “grave breaches” article – claim that victims are “protected persons” under applicable Geneva Conventions – Trial Chamber said that VRS were internal army of B/H once Serbia’s JNA withdrew – Appeals Court looks to Geneva Convention III (pg. 983, on prisoners of war vs. civilians) which says that paramilitary can be regarded as legitimate combatants if they form “part of the armed forces” of a party to the conflict (Geneva III Article 4(A)(1) – pg. 985) or “belong” to a party in the conflict (Geneva III Article 4(A)(2) – pg. 985) and satisfy four other requirements – logical conclusion is that if paramilitary “belong” to another State, even if they sprouted from within the state of conflict, the conflict would still be international in scope and give rise to “grave breaches” of Geneva under Tribunal Article 2 (reasoning is that post-WWII, states should be responsible for the irregular forces they sponsored) – Appeals Court reverses Trial Chamber decision.
Trial Chamber’s Finding That Crimes Against Humanity (Tribunal Art. 5) Cannot be Committed for Purely Personal Motives – need to show crimes are related to “widespread or systematic attacks on civilian population,” and need to prove that crimes were related to the attack on a civilian population (armed conflict should be going on, but actual crimes need not have occurred during it) and that accused knew crimes were so related – however Appeals Chamber dismisses need to prove accused’s motive, in order to establish mens rea (therefore could be a crime against humanity even if committed for purely personal reasons).
Trial Chamber’s Finding That All Crimes Against Humanity Require a Discriminatory Intent – reading of Tribunal Article 5 makes clear that basic crimes against humanity do not require discriminatory intent and that this is an extra intent element necessary for “persecutions” under Article 5(h) – contrary reading would prevent punishment as crime against humanity, for random and indiscriminate violence intended to spread terror in civilian pop. – factually, crimes against humanity tend to be discriminatory, but legally, they need not be.
Appeal Chamber Jurisdiction to Overturn Acquittals – Tribunal Article 25(2) seems to allow overturning acquittals, but this might be in contravention of non bis in idem (double jeopardy restriction) – is non bis in idem a general principle of law that must be followed, and if so, is Article 25 consistent with it?
I(C)(iv). Security Council Resolution 1534 (2004) Extending Life of ICTY to 2010 – effort to complete all trials by 2010 results in transferring some cases to “competent national jurisdictions” and for any new indictments, seeking only to concentrate on the most senior leaders who are most responsible for the crimes – critically important that ICTY and ICTR help to strengthen competent national judicial systems.
I(C)(v). The Milosevic Trial – not easy to prove “genocide” – requires proof that accused intended to destroy a people or group, not just to kill many of its members (intention is a very subjective matter)
I(D). Toward a Permanent International Criminal Court?
I(D)(i). The International Law Commission
D.M. McRae – Codification and Progressive Development After 40 Years – General Assembly’s creation of International Law Commission under Resolution 174 (1947) was an effort to act under UN Charter Article 13(1)(a) which requires UN to “initiate studies and make recommendations for the purpose of…encouraging the progressive development of international law and its codification.”
Report of the ILC on the Work of its 44th Session (1992) – propositions for future international criminal courts: 1)should be established by Statute in form of treaty that countries agree to; 2)jurisdiction over private parties as distinct from states (in the first phase of operations); 3)jurisdiction over crimes of international character only; 4)shouldn’t have compulsory jurisdiction (where state party to statute is required, ipso facto, to accept court’s jurisdiction); 5)shouldn’t be full-time body – should have legal mechanism that allows it to resprout when needed (at least in its first phase); 6)must guarantee due process, independence, and impartiality in procedures.
I(E). Other Treaties/Documents
I(E)(i). Kellog-Briand Pact – outlawed war as a means to solve “international controversies.”
I(E)(ii). Dayton Agreements: 1)B/H allowed to exist as separate sovereign state; 2)Sarajevo reunified with B/H; 3)B/H composed of two states, Bosnian-Croat Federation and Serb Republic.
Government: 1)bicameral legislature – 15-person house selected by each state’s legislatures and 42-person house directly elected by each state – each house has 2/3 representation from Federation (more rep. for Bosnians and Croats over Serbs – doesn’t seem related to population); 2)executive – 3-person presidency with 2 chosen from Federation.
I(E)(iii). UN Resolution 1551 (2004) – NATO concludes its role in Balkans and EU takes over in December 2004.
II. CREATING LAW AND INSTITUTIONS: THE INTERNATIONAL CRIMINAL COURT
II(A). Introduction and Background
II(A)(i). Timeline of Establishment of ICC – 1stpermanent (vs. ad hoc – Nuremberg, Tokyo, Former Yugoslavia, Rawanda) international court with capability of trying people (vs. only states) on genocide, war crimes, and crimes against humanity – approval of Rome Treaty in 1998, went into force in July, 2002 (becomes binding on all countries that ratified or acceded to Statute) – US signed off on the Dec 31, 2000 deadline, but then “unsigns” itself in May, 2002 and claims it is no longer bound by treaty terms under Clinton signature in 2000.
UN Peacekeeper Immunity – UN SC grants immunity from ICC for UN Peacekeepers in Resolution 1422 (2002).
Judges – first 18 judges sworn in in March, 2003.
Prosecutor – first Prosecutor, Mr. Lui Moreno-Ocampo, sworn in in June, 2003.
II(A)(ii). Overview: The ICC and the Objectives of the UN
Why Do We Need an International Criminal Court?
Justice for All – ICJ of Hague handles cases between states, not individuals, leaving many acts of genocide, war crimes, and crimes against humanity, unpunished if individual has not acted under state guise.
To End Impunity – Nuremberg established that individual criminal responsibility for all who commit such acts is the cornerstone of international criminal law.
To Help End Conflicts.
To Remedy Deficiencies of Ad Hoc Tribunals – Ad Hoc Tribunals raise questions of “selective” justice (why not have one for the “killing fields” of Cambodia) – ICC creates greater consistency – Ad Hoc Tribunals are also limited in time and place (ICTR does not cover killings in Rwanda since 1994).
To Take Over When National Criminal Justice Institutions Are Unwilling or Unable to Act – national institutions should be the ones dealing with criminals, but in times of conflict, they are often unable to act because: 1)government lacks political clout to prosecute its own citizens, especially if they are high-level officials; 2)national institutions may have collapsed.
Deter Future War Criminals.
II(A)(iii). Organs of the Court – Assembly of state parties selects 18 judges as well as the prosecutor (independent body) – judges select a president, registrar (who deals with non-judicial administrative functions of the court, like giving defendants legal aid), and constituent chambers – chambers include: 1)Pre-trial Division – not less than 6 judges; 2)Trial Division – not less than 6 judges; 3)Appeal Division – President and 4 judges.
Judges – 18 of them – nationals of state parties – can hold office for nine year term and are not eligible for reelection (except under certain Rome provisions) – judges elected for three year term can be reelected – President, if he finds it appropriate, can recommend increasing judge number but this must be approved by assembly of states – selected from two lists: 1)competence in criminal law and procedures; 2)competence in international law.
President – responsible for judicial administrative functions of court (except office of prosecutor) – will seek to coordinate with prosecutor.
II(B). Jurisdiction of the Court – jurisdiction over genocide, crimes against humanity, war crimes, and crimes of aggression (Rome Art. 5) – Lattanzi – court could infringe upon state sovereignty although ICC tries to be respectful of it (not all of court’s decisions are enforceable at the national level).
State Responsibilities in the Repression of International Crimes – ICC not intended to have exclusive jurisdiction over international crimes [states expected to act independently (Rome Preamble Para. 6), often cannot act unless threshold definitions of crimes have been met (ex. Rome Art. 7), and acting is deemed “complimentary” to national actions (Preamble Para. 10)] – ICC will only act in the face of the “most serious crimes” (restricting competence ratione materiae of the court to genocide, war crimes, crimes against humanity, and when defined, acts of aggression – excludes treaty based crimes from jur.)
Rome 12 (US’s Biggest Problem With the Treaty) – Preconditions on Exercise of Jurisdiction – by signing on, states accept jurisdiction of court for crimes under Rome Art. 5.
(2) – jurisdiction of court over Rome Art. 13(a&c) situations if at least one party to the conflict that is a member of the treaty or has accepted court’s jurisdiction under 12(3), is also: (a)state where conflict occurred, or if onboard craft, state of registration of the craft; (b)state of the accused.
(3) – state not party to statute can accept jurisdiction of court over those areas listed in 12(2).
Delegating Terr. Jur. – if France had terr. Jur. over US national and then transferred it to Libya, US could argue Libya’s jur. given crime occurred in France – in the same way, if France transfers terr. Jur. to ICC, some can argue that this is not allowed without consent by state of accused national (unclear whether customary international law allows such delegation).
State Participation to Statute as Automatic Acceptance of ICC Jur. – when states ratify (adhesion or accession), they directly accept competence of ICC in regards to crimes it deals with – will only act on crime if at least one state that is connected with the crime is a party to the statute or non party agrees to court’s jurisdiction (Rome 12(2&3)).
Opting-Out – Rome Art. 124 – when becoming member of treaty, state can opt out of court’s jurisdiction over it, regarding Rome Art. 8 (war crimes), for period of 7 years.
Jurisdictional Links for Exercise of ICC Jur. – Art. 12 – ICC will exercise jur., always subject to complimentarity, when statute is accepted by state where conduct occurred, or by state of national accused of crime (acceptance of statute by state of victim does not matter) – therefore ICC can only act if it has “cooperation” of state somehow involved with the crime.
Rome 13 – Exercise of Jurisdiction – court has jurisdiction over Rome Art. 5 crimes when: (a)case referred to prosecutor under Rome Art. 14; (b)referred to prosecutor by UN SC under UN Chapter VII; (c)prosecutor initiated investigation under Rome Art. 15.
Trigger Mechanism – state party or UN SC can trigger prosecution, but mainly the prosecutor, under Art. 15, has the job of bringing crimes to court’s attention (subject to review and approval by pre-trial chamber) – clearly prosecutor’s power to affect change is limited by the fact that he only has jurisdiction over crimes in state territory or committed by state nationals of states that have accepted court’s jurisdiction.
Power of UN SC to Refer Situation to the Court – although typically for ICC to have jur., state needs to have accepted jur. under Art. 12, this can be bypassed if UN SC, acting under UN Chapter VII (and having been confirmed as a “threat to international peace” under UN Art. 39), refers a situation to the Prosecutor (Rome Art. 13(b)) – this is not seen as infringing on state sovereignty because member State of UN have consented to this UN power.
Referral of “Situations” – has been decided that UN SC can only submit “situations” to court, rather than individual “cases” (i.e. UN cannot accuse individual suspects, Prosecutor must determine who suspects are).
UN SC Trigger – unlikely that UN SC will refer acts of genocide or crimes against humanity committed in peacetime, due to difficulty of establishing connection to “threats to international peace” (element they are required to find in order to act under UN Art. 39) – typically only find humanitarian emergency when connected with armed conflict or collapse of State.
Rome 14 – Referral of Situation by State Party.
Rome 15 – Prosecutor.
Rome 16 – Deferral of Investigation or Prosecution – no investigation or prosecution can proceed for 12 months if the UN SC asks court to refrain under UN Chapter VII (can be renewed).
Power of UN SC to Suspend Court’s Activity – Stopping court under UN Chapter VII needs consent of all permanent members.
Rome 17 – Issues of Admissibility – case is inadmissible to court when: (a)state is prosecuting it, unless state is also unable or unwilling to genuinely carry out the prosecution or investigation (defer to states in first instance – protects sovereignty).
“Subsidiary” Nature of Court – Rome Art. 17(1)(a&b) – court not seen as concurrent with state jur. but as subsidiary to – typically will not usurp state actions on an issue unless states are “genuinely” not available or unwilling to prosecute and punish.
Rome 19 – Challenges to Court Jurisdiction or Admissibility – (2)challenges can be made by: (a)accused, or person for whom warrant of arrest is issued under Rome Art. 58; (b)State with jurisdiction over case, on grounds it is prosecuting or investigating it on its own; (c)State from which acceptance of jurisdiction is required under Rome Art. 12 (Preconditions to Exercise of Jurisdiction).
Rome 20 – Ne bis in idem – no double jeopardy – if tried by ICC, cannot be tried by state – if tried by state, can be tried by ICC if state proceedings sucked.
II(C). Arrest, Surrender, and the Duty of Cooperation – Rome Art. 63(1) – mandates “the accused shall be present during trial” (no trial in absentia) – therefore court requires state cooperation for tracking down and catching criminals, given no independent capture mechanism like ICJ’s use of UN peacekeepers.
Rome Art. 19 – Challenges to Jurisdiction or Admissibility of Case to Court.
Rome Art. 58 – Issuance by the Pre-Trial Chamber of a Warrant of Arrest or a Summons to Appeal – (1)warrant issued by prosecutor if there are “reasonable” grounds for doing so – (5) request for provisional arrest may be made (Rome Art. 92).
Rome Art. 59 – Arrest Proceedings in the Custodial State – states must comply with arrest warrants and state courts must determine their validity in being carried out (however, under 59(4), no authority to decide if warrant was validly issued).
State Actions – state must act immediately to arrest person requested by the ICC, whether this is at the same time as surrender, or under a provisional arrest – under Art. 59(2)(a-c) court ensures that warrant applies to that person, proper arrest procedures were followed, and person’s rights were respected.
Rome Art. 86 – General Obligation of State to Cooperate With Treaty - court has no independent police force or military to carry out its edicts (needs states).
Rome. Art. 89 – Surrender (vs. Extradition) of Persons to the Court – mandate compliance with surrender.
Surrender vs. Extradition (Rome 102): 1)extradition – surrender of person from one state to another as provided for under an international treaty, convention, or domestic law – concern sovereign states who agree to it through bilateral or multilateral treaties (state has great discretion within treaties as to whether to extradite, including which application to accept in the case of many requests); 2)surrender – transfer and delivery of person by a state to the ICC in compliance with its provisions – request of court cannot be likened to request of state for extradition.
89(1) – court can request arrest and surrender by state – doesn’t contemplate grounds for refusal by a state nor the right to lay down conditions for refusal.
89(2) – defendant can raise issue of neb is in idem (double jeopardy) in national court and state must consult with the court to determine if the same issue has already been ruled on (state court is one of parties that can challenge ICC’s jurisdiction under Art. 19(2)) – only issue accused can raise before national court is the double jeopardy concern although he is free to raise other issues directly before the ICC under 19(2)(a).
89(4) – required to consult with court if person is sitting or being proceeded against for a crime different that what the court wants him for.
Rome. Art. 90 – Competing Requests – Art. 18(1) – prosecutor notifies all parties that would have jur. of commencement of investigation.
(2)situations where requested state gives priority to court.
(4) (extradition treaties or international obligations supercede the power of court to try case in many situations) if another requesting state is not party to the statute, as long as there’s no extradition treaty with that state, the requested state must give priority to court’s request.
This doesn’t apply however in situations where UN SC has submitted case to court – UN Art. 103 establishes preeminence of UN Charter requirements over other treaties.
(7)requests from states for extradition for crimes different for crime the court is dealing with: (a)if no extradition treaty or inter. obligation with other state, court gets priority; (b)if there is a treaty with the requesting state, the requested state can look at all relevant factors to determine whether to send to state or to court.
(8) – allows the court to determine if extradition to the other state was denied in an effort to give accused immunity.
Rome. Art. 92 – Provisional Arrests.
Rome. Art. 98 – Cooperation With Respect to Waiver of Immunity and Consent to Surrender – (1)Court cannot proceed with request of surrender if this would cause a state to behave inconsistently with its other obligations under international law (ex. immunity of person in third state) unless court can convince third state otherwise; (2)Court will not force state to act inconsistently with its other international agreements (ex. extradition treaties).
II(C)(ii). Limits to Obligation to Cooperate – grounds for refusal to surrender and cooperate: 1)Art. 93(7)(b) – surrender of nationals on condition that person be returned to State to serve any sentence; 2)Art. 72 – state may consult with court and refuse assistance if the request concerns the production of any documents or disclosure of evidence which relates to its national security defense; 3)Art. 93(9)(b) – refusal to cooperate thanks to other international agreements.
II(C)(iii). Notes on the Arrest and Surrender Provisions
Failure to Cooperate – Arts. 87(7) & 112(f) – very limited consequences due to court’s and framers’ fear of trampling on state sovereignty.
The Arrest – Art. 58(5) (court may request provisional arrest or arrest and surrender of accused) – Art. 59(4) (shall be open to custodial state to consider whether warrant for arrest was properly issued under Art. 58(1)(a&b)) – Art. 89(1) (mandates state compliance with court request of arrest and surrender) – Art. 92 (concerns provisional arrest and allows the court to request it “in urgent cases” pending presentation of request for surrender and documents supporting this as specified by Art. 91) – formal requests for surrender must be met within 60 days).
Surrender – Art. 89 – state party must comply with request for surrender.
Objections to Arrest and Surrender Which May be Raised by the Accused – Art. 59(2) (national court determines whether warrant applies to person, whether person was arrested with proper process, and whether person’s rights were respected) – Art. 97 (if national court finds defects, it needs to consult with the court) – Art. 89(2) (defendant can launch ne bis in idem challenge in state court and no transfer will occur until the ICC determines admissibility) – Art. 95 (where there is admissibility challenge considered by court under Arts. 18 & 19, State may postpone execution of request – under Art. 19, seems individual can bring challenge after arrest but before surrender).
Objections Which May be Raised by the Custodial State – Art. 19 (state may raise objection to jurisdiction or admissibility prior to confirmation of charges) – Art. 89(4) (state must consult with court if person sought is being processed for or is serving sentence for different crime than what court wants him for – doesn’t provide for denial of request) – Art. 90 (different treatments given depending on whether competing requests originate from party or non-party state) – Art. 72 (state can contest court jurisdiction based on national security information – under Art. 93(4), national government has the right of final refusal).
II(D). The US and the ICC
II(D)(i). Early Debates – US supports concept of ICC (view that it strengthens the rule of law and serves the interests of the US and the world community).
Pitfalls of Universal Jurisdiction (Restatement §404) – Kissinger – two approaches to achieving goal have been recognized: 1)extradition to areas where the person is to be prosecuted; 2)ICC.
Universal Jur. as Political Weapon – extradition has power to subject past and future leaders by magistrates of third countries without due process safeguards – cannot allow legal principles to be used as weapons to settle political scores.
Unfairness – extradition can submit the accused to stand trial under a system he is not familiar with and with the difficulty of bringing in witnesses from far away – also, extradition procedure only allows for raising procedural questions of jurisdictional validity, which in turn delays the opportunity for accused to present defense as to substance.
ICC – fairer approach because it eliminates arbitrariness of third country magistrates, but still the prosecutor has huge powers in triggering investigations and because the time for these is unlimited, they can turn into political weapons (little accountability) – UN SC can quash ICC actions, but one veto is all that is needed to block the UN SC from quashing in this way.
Proposals – US should only be part of system containing: 1)UN SC created Human Rights Commissions to report when human rights violations warrant judicial action; 2)UN SC right to set up ad hoc tribunal where government where crime occurred is not representative or unable to sit in judgment; 3)scope of procedures of international tribunal and prosecutor clearly defined by UN SC.
Case for Universal Jurisdiction – Roth – there is accountability since prosecutor can be removed for misconduct by simple majority of Rome Member States and a 2/3 vote can remove a judge.
Jurisdiction Over Americans – not likely ICC will try Americans since ICC is not triggered to act unless country of accused or territory where alleged crime occurred, refuses to act.
Little Risk of Sham Trials – countries from whom extradition is requested, are always free to deny it in the face of concerns over the due process standards of the requesting party.
Flaws in the Extradite or Prosecute System – current system of extradition requires national courts to adjudicate but can they be neutral bodies? Another problem is that many extradition treaties avoid requiring extradition where there’s a “political offense” – situations where an ICC makes sense: 1)evidence located in two or more countries; 2)countries disagree what sort of punishment to administer; 3)where crimes or victims are from two or more countries; 4)no extradition treaty between requesting country and the country with possession of alleged offender.
Harboring of Suspects – ICC also useful in situations where countries are harboring known criminals (even US could be accused of doing this).
Problems With “Ad Hoc” Approach: 1)must be built from the ground up each time; 2)ad hoc tribunals don’t always manage to show that justice is done in an even-handed manner rather than out of revenge; 3)hard to create it without world leader support.
II(D)(ii). The US and the International Criminal Court – Scheffer – ICC would: 1)serve as deterrent; 2)be more cost-effective than ad hoc courts; 3)ensure uniformity in case law evolution.
US Objectives for the Rome Treaty – under Art. 7, US succeeded in ensuring that ICC jurisdiction over crimes against humanity included acts in internal armed conflicts and acts in the absence of the armed conflict – however high threshold for such crimes since conduct must involve the multiple commission of such acts against any civilian population pursuant to or in furtherance of a state of organizational policy to commit such an attack – US also sought high threshold for war crimes because states should be able to discipline errant soldier war crimes while ICC should only deal with situations where there’s significant criminal activity – US also secured punishment for sexual war crimes.
Flaws in the Rome Treaty – US is concerned over the status of non-party states under the ICC (under Art. 12(3), ICC has jurisdiction over anywhere in the world if the state of the territory where the crime was committed or the state of nationality of the accused consents) – as non-party US, with troops in more parts of the world than any other country, could be exposed to ICC jurisdiction for activities of those troops in those countries – fear of such jurisdiction could discourage future interventions abroad – US also concerned about ICC’s jurisdiction over crimes of aggression given that there’s no definition of aggression in Rome Statute and the finding can be made independent of the determinations of the UN SC.
II(D)(iii). Cornerstone or Stumbling Block? The US and the ICC – Broomhall
Clinton Administration’s Search for a Negotiated Fix – US reluctantly signed on to Rome at the last minute, although there were no prospects of US ratification given hostility in Congress for it – US lacked bargaining power because a threat to oppose ratification could do little in the face of international momentum to sign on to it.
US Under the Bush Administration – Clinton administration sought to make US a member to work towards “constructive engagement” of the ICC within the organization, but Bush dropped US from treaty while other countries have gone ahead with it as is – “unsigning” occurred in May 2002, with US relying on its right under Vienna Convention on Law of Treaties Art. 18 (pg. 54) which they claimed allows for undoing the obligation, incurred on signature, to respect the object and purpose of a treaty.
II(D)(iv). The Case Against the Court – Committee on International Relations (2000) – Reasons why ICC is objectionable: 1)court will not deter war crimes or crimes against humanity since court will not and should not have authority it needs to be an effective deterrent (ex. Milosevic still killed Kosovars despite threat of ad hoc tribunal and bombing of Belgrade); 2)false idea that international justice is consistent with political resolution of disputes (ex. Pinochet matter is very political and should be handled in Chile by their people, rather than kidnapping him in UK to resolve matter in Spain); 3)US can face strong and proactive prosecutor – could technically even go after US Pres. – not really accountable to anyone (not totally true – pre-trial chamber must approve prosecutorial decisions); 4)can exercise jurisdiction over non-signatories if crime occurs in a signatory state or non-signatory state that allows ICC’s jurisdiction (Art. 12(3)); 5)acts of aggression are not defined and can count as a crime (Art. 5(1)(d)).
II(D)(v). Concurrent Resolution Urging President Bush Not to Ratify – House of Representatives (February 2001) – Lists reasons for resolution: 1)crimes of aggression are not defined and may require US to get UN SC approval before acting in order to avoid ICC jurisdiction in this area; 2)US civilians and military could be brought before court that bypasses US government; 3)bypasses many Constitutional rights (ex. trial by jury of one’s peers); 4)cannot sign treaty that authorizes what the Constitution forbids; 5)ICC breaks with accepted norms of international law by extending jurisdiction to nationals of countries that do not sign and ratify the treaty; 6)ICC would be empowered to unilaterally investigate, try, and punish crimes rather than giving countries the primary responsibility in doing this; 7)ICC bypasses US legislative and judicial authority by giving ICC jurisdiction over the four offenses that should be within US government authority to make decisions on (Art. 5).
II(D)(vi). US Rejects the ICC – Rumsfeld says that ICC creates disincentive for US involvement in world affair (for fear of being subject to jurisdiction of court despite being a non-signatory) – US reaffirms that it will stay involved in international affairs and in international human rights.
II(E). American Efforts to Protect Itself in an ICC World
II(E)(i). American Servicemembers’ Protection Act (2002) – “The Hague Invasion Act” – gives President power to use “all means necessary and appropriate” to bring about release from captivity of US or Allied personnel detained or imprisoned by or on behalf of the Court – prohibits any cooperation with the ICC – bars military aid to nations who support ICC (except NATO and other major allies) – President must ensure that US forces involved in peacekeeping will be safe from ICC prosecution – President can waive many of the requirements.
II(E)(ii). Article 98 Agreements With the US – Rome Art. 98(1) prohibits states from acting contrary to their other international obligations with respect to the state or diplomatic immunity of a person or property of a third state (requires ICC getting consent from that third state) – as a result, US seeks to sign bilateral treaties with as many countries as possible in an effort to avoid ICC jurisdiction over Americans (prohibits surrender or transfer to ICC absent US consent) – by June 2003, 38 countries signed such agreements with the US – Council of EU, in September 2002, said that such agreements may be inconsistent with the ICC statute and other international agreements (“Guidelines” call for Art. 98 coverage to exclude persons not currently serving in their governmental capacities or as military personnel – US however wanted protection to extend to all US citizens given that many US humanitarian organizations conduct activities around the world and ICC jurisdiction over them may be used a political weapon) – US claims Art. 98 treaties are not an effort to avoid being subject to war crimes jurisdiction of the court.
II(F). The UN and the ICC
II(F)(i). Immunity for Personnel of Non-Party States
Resolution 1422 (2002) – requests, under Rome Art. 16 that ICC suspend any cases against officials or personnel from a UN state not a party to Rome over acts or omissions relating to a UN established or authorized operation (ex. US troops working in Yugoslavia or Rwanda) – allows this resolution to be renewable under the same conditions for more 12-month periods.
Human Rights Watch Response (April 2003) – UN adopted resolution following threats by US to veto renewal of all peacekeeping missions – Human Rights dislikes the resolution because: 1)it grossly distorts meaning of Rome Arts. 16 & 27 in ways that weaken the independence of the court; 2)UN SC oversteps its authority by amending a multilateral treaty in this way.
Rome Art. 16 – text allows for delays of “investigations or prosecutions” – can be seen as giving them right to defer in a case-by-case basis in the event of particular investigations or prosecutions – also presupposes that pre-trial chamber has approved an “investigation” under Art. 15(4) before UN SC can act in this way (not meant as a preemptive, indiscriminate response, but rather a response to specific ICC proceedings).
Rome Art. 27 – says that official capacity is irrelevant for ICC jurisdiction, since it will apply equally to all – claim that Resolution 1422 allows entire classes of individuals to escape judgment of ICC, opening the door to impunity if national courts of non-state parties fail to carry out good faith investigations and prosecutions.
Additional Reason to Reject Renewal of 1422: UN SC Overreach – Art. 16 requires UN SC act under Chapter VII but this cannot be invoked unless there’s a threat to international peace under UN Art. 39, but lacking such a finding, they could not act on Resolution 1422.
Security Council Debate on Renewal of Resolution 1422 – Resolution 1487 (2003) passed as a renewal of 1422 for another year (to June 1, 2004) – Kofi Annan hopes this doesn’t become a consistent practice because it would undermine the authority of both the ICC, the UN SC, and peacekeeping.
US Gives Up – when June 1, 2004 rolled around, US avoided seeking a second renewal of immunity – claims it will in the future, consider the risk of ICC review when determining contributions to UN operations – ICC backers reaffirm that court will only act where nation is unwilling to prosecute its own accused citizens.
II(G). Relfections on the ICC: The Self-Defeating ICC – Goldsmith – ICC needs to court US because without its vast political, military, and economic support, there will inevitably be less human rights protections in the world.
Relation to UN SC Powers – Art. 16 allows the UN SC to delay cases, but this assumes unanimous agreement, which means the prosecution is automatically triggered and one veto of a delay will allow it to proceed – Art. 13(b) also allows them to refer cases to court under UN Chapter VII.
Consequences of Art. 12 Jurisdiction: 1)territorial liability over non-signatories (ex. crime committed in territory of signatory) – will chill US peacekeeping actions; 2)traveling dictator exception – leaders of non-signatories can commit crimes in their own countries without consequence and even if they go to the Hague, there would still be no jurisdiction (reason why ICC will probably fail – worst offenses occur within national borders and are committed by state leaders) – UN SC can override this sovereignty exception by referring something directly to ICC, but this is subject to politics of the Council and even if approved, ICC lacks the power to go after such criminals itself.
Basis Of US Disagreement – War Crimes Arising from Military Strikes – ICC has jurisdiction over war crimes that result from military strikes, like causing civilian injuries or deaths that are “excessive to the overall military advantage anticipated” (Rome Art. 8(2)(b)(iv)) (such proportionality judgments are always risky).
Why Create a Self-Defeating ICC?: 1)ICC framer commitment to equality of all nations before ICC; 2)middle powers were less concerned with curing human rights abuses then they were about increasing their own power by inhibiting militarily powerful nations (comports well with the fact that there’s liability for non-signatory nations who engage in military operations across border, while there is immunity for non-signatory domestic human rights abusers who are typically perceived as the greatest threat to human rights).
III. CREATING INTERNATIONAL LAW: THE ROLE OF CUSTOM AND TREATY
III(A). Introduction to Customary Law
III(A)(i). Sources of International Law
ICJ Art. 38 (pg. 37) – when determining what law dictates a situation in a case, court applies: 1)international conventions, establishing rules recognized by contesting states; 2)international custom, as evidence of a general practice accepted as law; 3)general principles of law recognized by civilized nations; 4)subject to provisions in ICJ Art. 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Restatement §102 – Sources of International Law – three types of international law: 1)customary – general and consistent practice of states followed because of a sense of general obligation; 2)international agreements – create law for member states and can lead to creation of customary international law if intended for adherence by states generally and are widely accepted; 3)general principles common to the major legal systems – may be invoked as supplementary rules even if not reflected in customary law or international agreement.
Restatement §103 – Evidence of International Law – in determining whether a rule is law under §102, substantial weight accorded to: 1)judgments and opinions of international judicial tribunals; 2)judgments and opinions of national judicial tribunals; 3)writings of scholars; 4)pronouncements by states that undertake to state a rule of international law, when such pronouncement are not seriously challenged by other states.
Vienna Law of Treaties Art. 34 (pg. 59) – treaty does not create obligations or rights for a third state without its consent – idea that state is legally entitled to refuse to submit to a set of conventions it doesn’t accept.
Hague and Geneva Conventions – all parties are bound by Hague and Geneva Conventions because they are “declaratory of existing international law” and therefore binding – doesn’t matter if they weren’t binding as “international agreements” because they were binding as expressions of international law accepted by the civilized nations of the world.
III(B). Law of the Sea: The Formation of Customary Law With Regard to the Continental Shelf
III(B)(i). A Traditional Perspective – The International Law of the Sea – Higgins & Colombus
Territorial Jurisdiction – state’s jurisdiction extends to all parts of its land and shoreline, a certain portion of sea beyond its shoreline, and all the airspace above those areas.
High Seas – sea beyond the limits of territorial jurisdiction (forms no part of territory of any state) – open to the common use of all men (still require international law).
Seabed vs. Subsoil: 1)seabed – usually, incapable of occupation by any state – legal status same as that of open sea above it – as an exception, seabed might be open to occupation by state if it has well-defined purposes for the area; 2)subsoil – subsoil under seabed may be considered capable of occupation by states, even if it exists beyond the territorial waters of the state, provided it doesn’t affect or endanger the surface of the sea.
Continental Shelf – under-sea extension of continental territory normally up to a depth of 100 fathom at which point the seabed falls off towards oceanic basin.
Truman Proclamation – 1945 – claim natural resources of the subsoil and seabed of the continental shelf beneath the high seas as within the US’s jurisdiction and control.
Author Response – claim that it is legal to claim ownership over the shelf and subsoil (ex. continental drilling extended into sea), but it is not legal to claim seabed as well, since control and free use of this can act to impede free navigation of the high seas (ex. oil drilling platform).
III(B)(ii). Early Developments
Truman Proclamation on the Continental Shelf – 1945 – US claim to jurisdiction over subsoil and seabed of continental shelf claimed to be valid since they are extension of the US land mass – where shelf extends to shores of another state, or is shared by an adjacent one, the US and state shall decide on a boundary under equitable principles – high seas above continental shelf are unaffected.
Fishing Proclamation – issued the same day – US asserts right to regulate fishing activities in areas of the high seas contiguous to the US coast where US nationals alone had fished, and envisaged agreements with other states over areas where they both fish.
Report of the Interior Secretary – continental shelf is area of ocean floor around US and territories that is covered by no more than 600 feet of water.
Other States’ Claims – many states issue “responsive” declarations, claiming the same territorial jurisdiction over their continental shelves as the US did – Chile goes even further and claims territorial jurisdiction at a distance of up to 200 nautical miles from the coastline, and all the land beneath it, no matter at what depth.
US Takes Issue With Chile’s Claim – claim that Chilean position diverges from accepted international law and raise several issues: 1)Chile’s claim of 200 nautical miles is beyond the internationally accepted limits of territorial waters (200 nautical miles is irrespective of depth or presence of continental shelf); 2)fails, with respect to fishing, to accord appropriate recognition to the rights and interests of the US in the high seas off the coast of Chile (randomly picked 200 nautical miles without notice of who fishes in that area).
Convention on the Continental Shelf (1958) – pg. 563 – Art. 2 gives states sovereignty over continental shelf – Art. 1 – “continental shelf” is used as referring to: 1)seabed and subsoil adjacent to coast but outside of area of territorial sea to a depth of 200 meters (around the same 600 foot depth described by Truman Proclamation) or, beyond that limit, to where the depth of the superadjacent waters admits of the exploitation of the natural resources of the said areas; 2)to the seabed and subsoil of similar areas adjacent to the coasts of islands.
III(B)(iii). North Sea Continental Shelf Cases – Germany v. Denmark/Germany v. Netherlands (ICJ – ’69) – the three countries ask the court to determine what portions of the continental shelf they possess, given their close proximity with one another.
Convention on the Continental Shelf (1958) – is Continental Shelf Convention Art. 6(2) (pg. 563), which establishes the equidistance principle for partitioning the continental shelf of adjacent countries, binding on all parties? Denmark and Netherlands agree that convention cannot be contractually binding (since Germany hasn’t signed it), but claim that it is legally binding on Germany since they have unilaterally implemented its provisions and assumed its obligation – Court says that this “acceptance” needs to be clear and definitive to be given any weight, also question why Germany avoided signing on if it accepted all the provisions.
Customary International Law – Denmark and Netherlands also claim convention binding on Germany because it has since become customary international law – court rejects this in relation to Art. 6(2) because of evidence that commission adopted it with hesitation and intended to use it as an experiment – also cite “reservations” of Art. 12 which allow for reservations to be made to Art. 6(2) and other articles when signing and ratifying the convention (if it were customary international law, this opportunity would not be available) – at most, Art. 6(2) is a conventional rule.
Conventional Rule to Customary International Law – conventional rule can become customary international law if it is accepted and practiced by a large number of states, including the state at issue, even if it hasn’t been around for a long period of time or explicitly ratified by all of them – however, here, not enough states have been following the convention to call it CIL and Germany has not been applying Art. 6(2) with such uniformity that it may be assumed that they have unilaterally accepted its legal obligations.
Dissenting Opinion of Judge Lachs – first look to see if transformation of Art. 6(2) into generally accepted law has taken place – look at:
State Practice – 39 states were parties and 23 more have ratified it – even more states have adopted legislation in an effort to conform with its rules – this level of acquiescence to convention is enough to establish it as a general rule of law – to be binding, an international law need not have universal acceptance just need “general” adoption in the practice of states – to make binding, should also be enough to prove that general rule is part of general practice accepted as law by the states in question [prima facie evidence that can be controverted if it shows “uncertainty and contradiction” or on a test of opinio juris (rule of law) with regard to states in question] – in this case, clear that Germany has accepted obligations.
Time Factor – Convention on Continental Shelf was a very speedy development, but although relevant, time must be commensurate with the rate of movement of events which require legal regulation – despite short time period convention has been around, it has become general law.
III(B)(iv). The Law of the Sea Convention (1982) – see