Monthly Archives: October 2013

What ever happened to the Seselj Case at the ICTY?

[UPDATE: This post was written a few hours prior to the order by Judge Agius actually appointing a new judge. more on the order here…]

As regular commentators of international law, we usually rush to comment on what the tribunals say and do. But we rarely comment on what they don’t do. I think it’s fitting, around the date that the Judgment (or Jugdgement) in the Seselj case was meant to be delivered to ask a simple question: what is happening ?

Readers might recall that following a private email circulated to friends earlier this year, Judge Harhoff from Danemark was disqualified from the Seselj case at the end of August, with the motion for reconsideration rejected at the beginning of October. You can read about most episodes of how this started here and here, and on the consequences of the disqualification here, here and here.

Since then, nothing has happened. Now that the disqualification has been confirmed, I suppose that the order issued at the beginning of September by ICTY VP Agius applies. According to that order, we should have consultations between the judges and Seselj on whether to rehear the case or continue the proceedings, before a possible assignment of a new judge, irrespective of Seselj’s consent. I already commented on the fact that this order is scandalous because it takes putting an end to the proceedings off the table and makes a complete joke of Seselj’s opinion on the issue.

This being said, I’m wondering what is taking so long. Already, I don’t understand how it took so long to issue the rejection of the reconsideration request. Moreover, I can’t see imagine that it would be so time consuming to consult with Seselj and decide to proceed (or not) in order for a new judge to be appointed. Especially as, from the tone of his communications at the time, it appears that Judge Antonetti is quite keen on moving forward. And it can’t be that there would be disagreement between him and Judge Lattanzi, the other remaining judge on the Chamber, because their request for clarification seemed to indicate that they were on the same page.

Given this state of affairs, there are 3 possible explanations for this delay :

1) Things are really this slow at the ICTY, so I really shouldn’t be making a fuss. Could be depressingly true.

2) There is a policy discussion going on at the higher levels of governance at the tribunal with a possible dissagreement between the Chamber and the Presidency for example on whether to continue the trial. Given the current acrimony between judges at the Court, this would not necessarily be surprising.

3) Everybody agrees to go ahead with the proceedings, but they cannot find a judge to replace Harhoff. If this is the case, I would perfectly understand that no judge would want to get entangled in this nightmare situation, 10 years down the road, with arguably very little time to get familiarized with the file.

Of course, you could tell me that I should be happy that there is such a delay which might mean that things are not running smoothly in the aftermath of the disqualification. Indeed, “if not running smoothly” means that there will be bumps on the road to the scandalous result of continuing the proceedings and issuing the Judgment, then that is a good thing I suppose…

If readers have any thoughts (or knowledge) of what is actually going on inside the black box of the ICTY, please don’t hesitate to share them in the comments section.

Guest Post: Response to Julian Ku on the ‘boycott’ of UNCLOS arbitration by Russia and China

Wim Muller is an Associate Fellow with the International Law Programme at Chatham House. All views expressed in this post are personal.

I am pleased that Julian Ku has taken the time to respond in depth to my earlier guest post in which I, among other things, cited the U.S. withdrawal from Nicaragua as a precedent for China’s and Russia’s recent behaviour in UNCLOS arbitration proceedings initiated against them by the Philippines and the Netherlands, respectively. I am grateful to Professor Ku for clarifying his position by explaining that he was limiting his observations to UNCLOS dispute settlement and not binding international dispute settlement in general. In addition, Ku states that he “didn’t mean to argue that the U.S. was a better actor than China or Russia with respect to international dispute settlement” and his “general take is that China is likely to follow the U.S. in sharply limiting its involvement with the more ambitious forms of international adjudication like the ICJ and the ICC.” On this, we are mostly in agreement. To clarify my point: China has had a longstanding policy of not accepting compulsory jurisdiction of the ICJ and other international dispute settlement mechanisms including ITLOS (see Ma Xinmin, ‘China’s Mechanism and Practice of Treaty Dispute Settlement’, 11 Chinese J Intl L 11 (2012) 387), but some observers have also noted that it has used U.S. policy as an example, in particular with regard to the ICC.

Ku also writes that I seem “to be arguing that walking away from binding dispute settlement in the China/Russia manner is actually a more respectful approach than walking out halfway, as the U.S. did in Nicaragua.” I would not say it is more respectful; neither approach is respectful. What I argued instead, is that walking away after not getting the judgment that one wants does more damage than not participating in the proceedings at all. Neither course of action is indeed a “vote of confidence” in the dispute settlement procedure in question.

In my original post, I referred to a legacy of distrust of “the West” which partially explains why Russia and China are reluctant to participate, but not the U.S. Another partial explanation valid for all three states is that they can get away with not participating because of their relative power. Maybe this means that the UNCLOS dispute settlement procedure, like other similar procedures, will be helpful more often in settling disputes between more or less equal powers, as the multitude of such cases in various fora attests. A third factor which influences the behaviour of these powers cited by Ku is domestic pressure, when he argues that China and Russia are less susceptible to NGOs and international lawyers. I agree to this point to an extent, but Ku may be underestimating the significance of public opinion in particular in China, and maybe also in Russia. Domestic actors cannot exert as much pressure on the government as in the U.S. and face more constraints, but they are already relevant and their relevance will continue to grow. I do not believe that this would make much difference in the China v. Philippines case, where nationalist sentiment will probably put most of the Chinese population (to the extent that it cares) squarely behind the government. The Arctic Sunrise case may become more interesting in this respect, as it is more likely that Greenpeace will find some support within Russia, at the very least for its aims.

Finally, I would like to correct a factual mistake in my original post. The oil platform Prirazlomnaya on which the Arctic Sunrise cases occurred is not located in the Kara Sea, which is further to the east, but in the Pechora Sea, a fact agreed on by all parties in the case which carries some legal significance. I had taken this piece of information from a news article but not verified it myself, and extend my gratitude to Sergey Golubok, one of the defence attorneys for Greenpeace in the case, for pointing this out to me.

A response to Dersso on Chapter VII, the ICC, Kenya and healthy tensions in International Law

In a recent post, on Ejil Talk!, Solomon Dersso provides his take on the recent AU summit outcome in relation to the ICC. While I shared my own views on the issue here a few days ago, his post raised a couple of interesting issues which I think deserve further attention: on the scope of the use of Article 16 in the Kenya cases and on the general question of the “sour” relationship between the ICC and the AU.

1) On the use of Article 16 in the Kenya cases

As recalled by Dersso, a deferral of the cases would require that the UNSC act under Chapter VII of the UN Charter. Article 16 of the Rome Statute specifically provides that:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

Dersso deals with this Article in the following way:

Second, the UNSC can exercise its authority under Article 16 only after determining that continuing with the prosecution constitutes a threat to international peace and security within the framework of Chapter VII of the UN Charter. Looking at the cases against Kenyatta and Ruto, there is little evidence to suggest that their trial would lead to such a threat – unless UNSC members determine politically that the threat of terrorism facing Kenya (following the Westgate attacks) is reason enough to warrant the deferral.

This reasoning raises some new questions. Indeed, Article 16 does not require that the prosecution itself constitute a threat to international peace and security. As long as there is a resolution adopted under Chapter VII, then the case is deferred. Moreover, I don’t understand the emphasis on the word “politically” in the second part of the sentence. As opposed to what? I understand that there are political considerations in Chapter VII decisions, but it would not be more political to decide that Kenya is facing a threat of terrorism than to decide that prosecutions would constitute a threat to peace and security. Determinations under Chapter VII are always political.

In any case, as I said before, if the ICC Prosecutor herself considers Westgate to possibly be an international crime, then it’s not a far cry to think that allowing Ruto and Kenyatta to deal with it is necessary for international peace and security. Another argument, if a little twisted, could be that deferral is necessary to avoid the continued acrimony between the AU and the ICC, which is a setback for international justice, and therefore a possible threat to international peace and security.

A related question that is not dealt with by Dersso is what the ICC could do if it disagreed with the UNSC evaluation of the situation under Chapter VII. The issue of the judicial control of the use of Chapter VII is a long standing debate in international law. More particularly, it has come up a number of times in relation to international criminal tribunals. In the famous Tadic interlocutory appeal, the ICTY Appeals Chamber had engaged in a cursory discussion of whether the UNSC had validly used Chapter VII to create the tribunal. More recently, however, the Trial Chamber of the Special Tribunal for Lebanon, confirmed by the Appeals Chamber, refused to engage in such discussion. I personally agree with the STL case law and believe that a Chapter VII resolution would automatically trigger Article 16 of the Rome Statute with no discretion for the judges to exercise any judicial control over it.

2) The general question of the relationship between the AU and the ICC

The tone of Dersso’s post seems to suggest that the current tension between the ICC and the AU is necessarily a bad thing. However, beyond appearances, I am not sure that this is the case. Indeed, it highlights the real tensions in international law today between competing cosmogonies that are not easily reconcilable: criminal justice vs. political realism, human rights vs. sovereignty, universalism vs. regionalism…

Nobody is actually to blame for this situation. The ICC has a mandate that it is perfectly legitimate in trying to accomplish, but African states are also legitimate in voicing their concerns. As far as I know, the opinion of states is still an important aspect of international law and if these states decide to withdraw from the Rome Statute, it is not a defeat for international law, but a consequence of how international law works.

It is ultimately healthy for the system that these tensions come out in the open, rather than be swept under the carpet to create an illusion that everything is running smoothly. Whatever one’s own view of how international law should be, ignorance of reality is a recipe for irrelevance. In the current situation, blind defense of the ICC and dismissal of AU concerns might just end up being an example of that.

Ruto Required to attend ICC Trial (for the moment)

This morning the Appeals Chamber delivered its Judgment in the Ruto case on the Trial Chamber’s decision to excuse him for most of his trial. It found that 1) The Rome Statute (Article 63(1)) does allow a person to be excused from his trial in exceptional circumstances, contrary to what the Prosecutor had argued and 2) the Trial Chamber abused its discretion in excusing Ruto for most of his trial even before the start of it. As a result, the Trial Chamber decision was reversed.

Just a few thoughts on the interpretation of Article 63(1) and what this means for Ruto and Kenyatta.

1) The interpretation of Article 63(1)

This article provides that: “The accused shall be present during the trial.” In a nutshell, the question is whether this means that this is a duty and that he cannot be excused (which is what the Prosecutor argued) or whether this is a right that can be waived (which is what Ruto argued). I won’t go into the details of the argumentation on both sides, but for those who have an interest in question of interpretation international law, and as pointed out by William Schabas, these decisions, especially the Kenyatta one, provide some interesting insights on how to interpret the Rome Statute.

I have a lot of sympathy for the Trial Chamber’s interpretation of the Statute, in terms of common sense and policy, but I must say that the Prosecutor, as well as the Appeals judges who issued the separate opinion this morning have a strong case. The fact is that the Statute does not provide for this kind of excusal and Article 63(2) which explicitly provides for one situation of removal from court suggests that if other exceptions were considered, they should have been put in the Statute. The result of ignoring this is that we have a Trial Chamber and an Appeals Chamber disagreeing about something that does not exist and discussing the conditions of the exercise of a discretion that is not provided for in the Statute.

This is not the first time that this happens. ICC judges have invented powers for themselves out of thin air before, and then disagreed on how to exercise them. For example in relation to conditional release, which is not provided for in the Statute or in relation to abuse of process proceedings, again not provided for in the Statute. It is a little bit like Asimov and Philip K. Dick arguing about how to design an alien spaceship… it’s fun to listen to, but ultimately you cannot say that one is right or wrong because neither argument is grounded in reality…

At the end of the day, the criteria laid down by the Appeals Chamber for the exercise of discretion in excusing a person is no less or no more arbitrary than those adopted by the Trial Chamber and in this case, I don’t see how this is not the Appeals Chamber substituting, on the substance, its own opinion to that of the Trial Chamber.

2) What does it mean for Ruto and Kenyatta?

The obvious reading of the judgment would be that Ruto now has to attend his trial. This is not entirely true. The Appeals Chamber reversed the Trial Chamber decision on the basis that they erred in the exercise of their discretion. This means that the Trial Chamber could very well revisit the issue in light of today’s judgment and, applying the new criteria laid down and possibly concluding, while phrasing it differently, that Ruto needn’t participate at various stages of the proceedings. The result might be the same, it will just be more time consuming because rather than 1 decision, there will be dozens of them.

What about Kenyatta? His Trial Chamber issued a decision excusing him from his Trial last Friday, along the same lines as the Ruto decision. The Trial Chamber decision is an interesting academic exercise in treaty interpretation, but is even less legally technical in explaining the specific circumstances allowing an excusal that the Ruto decision. Which means that there is little doubt that the Appeals Chamber Judgment today would apply to it.

So what happens now? The logical thing to do would be that the Trial Chamber reconsider its decision in light of the Appeal Chamber’s Judgment. However, this is not procedurally possible as there is no provision on reconsideration in the Statute.

This means that the “long route” needs to be taken, with that the Prosecutor applying for leave to appeal the decision and, if granted, leading to the Appeals Judgment most certainly reversing the decision. This long process could have been avoided if the Trial Chamber had waited for the Appeals Chamber Judgment, as the Prosecutor had requested, but who cares about judicial economy?

If this goes to the Appeals Chamber, the appeal will probably be given suspensive effect, so Kenyatta will be required to attend his trial. It should be noted that the Trial Chamber does not have to grant leave to appeal, so if it really disagrees with the Appeals Chamber, it can just ignore its Judgment and move forward. This is unlikely to happen of course, but would be interesting to witness on such an important issue.

3) A broader comment on Kenya and the ICC

This judgment of course needs to be read in light with the general context surrounding Kenya and the ICC, and more particularly the attempt by the African Union to get the cases against Ruto and Kenyatta “frozen” by the UNSC, as I discussed here.

Interestingly, in a separate opinion in the Kenyatta decision last week, Judge Eboe-Osuji seemed to suggest that excusal from the trial was the best solution between no prosecution at all and full presence which would disrupt the exercise of his presidential functions by Kenyatta. If we buy this argument, then there is no longer any middle ground solution here and the only option left is a deferral of the case.

On this point, I take the opportunity of answering a question I got after my previous post on whether this situation would actually fall within Chapter VII (threat to peace). First of all, there is in fact no control of UNSC use of Chapter VII, so it doesn’t really matter what I think. If the UNSC thinks it’s a threat, then it’s a threat. Second of all, this is something we can argue about forever because I think that in the past, Chapter VII was arguably used in situations that did not justify it.

Finally, if one does want to debate it, I think that Kenya’s best ally in arguing for this is ICC Prosecutor Bensousa! Indeed, in her most remarkable press release after the Westgate incident, she suggested that this could be considered as an international crime and therefore of concern to the ICC and the international community as a whole. If the Prosecutor of the ICC thinks so, then why should the UNSC not consider the same event as being a threat/breach to the peace justifying a deferral of the cases allowing Ruto and Kenyatta to deal with the situation?

Guest Post: Great power v small state: some parallels between the Arctic Sunrise case (Netherlands v Russia) and Philippines v China

Wim Muller is an Associate Fellow with the International Law Programme at Chatham House. He recently defended his doctoral thesis on China and international law at the European University Institute in Florence. All views expressed in this post are personal.

Yesterday, it was announced that Russia is rejecting the jurisdiction of the International Tribunal for the Law of the Sea (ITLOS) in the Arctic Sunrise case, initiated against it by the Netherlands after the Russian authorities detained the Greenpeace ship and its crew during a protest against oil drilling in the Kara Sea. This case has garnered a lot of attention, especially in the Netherlands and Russia, where it is part of a series of issues unhappily coinciding with the official celebration of Russian-Dutch relations, including vocal protests by Dutch nationals against laws restricting gay rights in Russia, the brief forceful arrest of an allegedly drunk Russian diplomat by police in his home in The Hague two weeks ago, and an attack by unknown intruders on his Dutch counterpart in his Moscow apartment two weeks later.

This modest contribution only aims to shed some light on several legal and legal-political aspects of the case by offering a brief analysis of the arguments used by the Russian Federation against ITLOS jurisdiction and its procedural consequences. In particular, I’d like to draw attention to a parallel between Russian behaviour in the Arctic Sunrise case and the Chinese attitude in the ITLOS arbitration initiated against it by the Philippines earlier this year. Both states may be following a path first set out almost thirty years ago by the United States, which is hampering the effectiveness of international judicial institutions to this day.

  • Russian objections to jurisdiction

According to a statement (in Russian, Google translation here) on the Russian foreign ministry website, Russia does not accept the jurisdiction of ITLOS in this case due to the reservation it made upon ratification of the United Nations Convention on the Law of the Sea (UNCLOS) in 1997, which excludes ITLOS jurisdiction in cases involving the implementation of sovereign rights and jurisdiction. It appears that this refers specifically to the part of the reservation which concerns

disputes concerning military activities, including military activities by government vessels and aircraft, and disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction […].

According to Russia, this is the case here as the activities by the Greenpeace activists violated Russian law on the exclusive economic zone and the continental shelf and have led to criminal investigations. (The original charges for piracy were dropped yesterday in favour of a hooliganism charge.) In its request for provisional measures, this rather broad assertion of jurisdiction by the Russian authorities is cited as one reason by the Dutch government to initiate the proceedings in question.

In an earlier statement of claim directed at the Russian government and annexed to the request, the Dutch government pre-emptively stated (at para. 13) that the jurisdiction of the arbitral tribunal is not affected by the Russian declaration, claiming that its reach is limited to the subject matter of the section of UNCLOS under which the provision applies. In the Dutch view, this is limited to marine scientific research and fisheries and cannot apply to other disputes, which would be in contravention of Article 309 UNCLOS, a provision invoked by both parties to assert that reservations and declarations can be made which are not expressly permitted by the Convention.

  • Parallels with Philippines v China

Disagreement about whether an international judicial institution has jurisdiction is the rule rather than the exception; most inter-state cases go through a jurisdictional phase before arriving at the merits. However, normally it is up to the judicial institution in question to establish whether the arguments made are valid and if it does indeed have jurisdiction. This is not happening in the Arctic Sunrise case. In addition to announcing that it does not accept the jurisdiction of the arbitral panel, Russia also stated that it will not participate in any of the proceedings and remains open to other means of settling the dispute. In a legal context, one would expect the state party to respect the authority of the institution in question by allowing it to reach a decision first and then to abide by it.

In this respect, Russia’s behaviour runs parallel to the attitude taken by China when the Philippines filed an UNCLOS arbitration case against it in January over the countries’ competing territorial claims about the Nansha or Spratly islands, which are located in the South China Sea and claimed by both states. On 19 February 2013, China notified the Philippines that it “rejects and returns the Philippines’ Notification and Statement of Claim”. In the view of the Chinese government, “[t]he note and related notice not only violate the consensus enshrined in the Declaration on the Conduct of Parties in the South China Sea (DOC) [a common declaration by the ASEAN states and China in which they resolve to settle disputes through ‘consultation and dialogue’ – WM] , but are also factually flawed and contain false accusations.” Its spokesman also reiterated China’s commitment to addressing the dispute through bilateral talks. Despite China’s rejection of the arbitration, the arbitration proceedings have moved forward, with the appointment of more arbitrators in March and April. The Chinese government has continued to insist that the arbitral tribunal would not have jurisdiction as the dispute between China and the Philippines is about territory, while the UNCLOS procedures have to do with the law of the sea.

The provisions of Annex VII to UNCLOS allow arbitration proceedings to go forward upon the request of the initiating party, as has happened in the case of the Philippines. It can be expected that the Dutch case will also proceed without Russian cooperation and participation. In both cases, the tribunals will have to satisfy themselves that they have jurisdiction and that the claim is well founded in fact and law. The lack of participation of one party does however cast doubt on the relevance of the outcome of the proceedings.

  • Non-participation as a great power prerogative

In a typically tendentious post on Opinio Juris, Julian Ku (who has earlier blogged extensively on the Philippines-China case) also notes the parallel in behaviour between Russia and China and suggests that China may have “started a trend”, especially since Russia has been participating in UNCLOS proceedings in the past. Ku may have identified the beginning of this “trend” almost 30 years too late and be mistaken on who initiated it. Although Russia may well feel strengthened by the Chinese attitude in the Philippines case, its attitude with regard to other international institutions, such as the European Court of Human Rights, has also been problematic in sensitive cases (although the picture is more nuanced than it is sometimes presented). At the same time, both countries’ attitudes can also be seen as typical great power behaviour, as both P5 states may be following an example set by a fellow permanent member of the Security Council in 1985, when the United States walked out of the proceedings in the Nicaragua case following its unsuccessful challenge to the ICJ’s jurisdiction. Although the United States did participate in the hearings on preliminary objections, a difference with the current cases is that in the UNCLOS context decisions on jurisdictional arguments are usually rendered together with the merits. Arguably, walking away in the midst of proceedings is even more damaging than not participating to begin with.

Non-participation in judicial proceedings, even if a state previously consented to a tribunal’s jurisdiction, may well be the prerogative of powerful states in cases in which they feel they have more to lose than to gain from participation. (An example of non-participation which I consider irrelevant here is that of Israel in the advisory case on the legal consequences of the Wall case, since the case was not an adversarial one and Israel had never consented to anything to begin with.) Both with regard to Russia and China, a historical legacy of distrust of the international system, which is perceived to be rigged in favour of the West, is often cited as at least a partial explanation. The Nicaragua case should put the lie to that argument, since although the United States set a bad example for powerful states to follow, it also showed that the leading Western power was not immune to an adverse judgment by an international judicial institution. The challenge therefore remains to convince governments that it is in their interest, not only in the long term (as no state remains powerful forever) but also in the short term to participate to strengthen that elusive notion of the international rule of law.