Brierly's Law of Nations

From left, Russ Clapham, Andrew, Maya Sikand, Sandy McBride and Ben Emmerson QC.

Thursday I attended the launch of Brierly’s the Law of Nations, a classic of international law written by Prof. Andrew Clapham. The launch was held at Matrix Chambers, of which Andrew is a founding member. Elizabeth Wilmshurst of Chatham House did a wonderful presentation of the book.

Brierly’s law of nations was first issued in 1928, and over the course of the next thirty-five years it was revised five by the author. But since the early 1960s it had lain untouched until Andrew brought his considerable talents to bear on modernizing the text. He told us how he had attempted to learn about the art of revising the work of an early writer by studying the writings of Ian Fleming. Andrew may not have shaken international law with this book, but he has certainly stirred it. It is an immensely accessible volume and the perfect introduction to international law, at a very affordable price in soft cover (although purchase of the hard cover, as a keeper, is strongly recommended).

Judge Sow Interviewed on Taylor Trial

The alternative judge in the trial of Charles Taylor, Malick Sow, has given an extraordinary interview to the magazine New African where he sets out his views about the quality of the evidence, the nature of the deliberations and other aspects of the proceedings. Nothing comparable has ever appeared in the history of international criminal justice.

Further Progress on Death Penalty Shown by Vote in Third Committee of General Assembly

The Third Committee of the United Nations General Assembly yesterday adopted a resolution calling for a moratorium on the death penalty. This is the fourth such resolution since 2007. Each time, the number of States voting in favour of the resolution has increased.
Yesterday, 110 States voted in favour, compared with votes in the Third Committee of 107 in 2010, 105 in 2008 and 99 in 2007. The number of States opposing the resolution yesterday was 39, up one from 2010, but still dramatically down from 48 in 2008 and 52 in 2007. Niger and Tunisia joined the Yes camp yesterday, while Papua New Guinea, Afghanistan and Indonesia abstained. South Sudan, which only joined the United Nations last year, voted Yes.
Here are the full results of the votes in the Third Committee in 2007, 2008, 2010 and 2012.
The next stage in the process is a vote in the plenary General Assembly in December. Based on previous experience, it is to be expected that the number of Yes votes will increase yet again.
This is all further evidence of the global trend towards reduction and abolition of the death penalty.

The ICC at Ten

The Centre for International Law and Justice of the University of Copenhagen hosted a conference this week to mark the tenth anniversary of the International Criminal Court. My lecture is available in podcast together with the full programme of the conference and information about the Centre.
Congratulations to  Professor Jørn Vestergaard and Assistant Professors Iryna Marchuk and Martin Mennecke for organizing such a great conference.
We all went to the Opera here in Copenhagen this evening for a marvellous performance of Madame Butterfly.

Whitney Harris

The late Whitney Harris 

and Judge Hans Peter-Kaul.

Earlier this week, Judge Hans-Peter Kaul of the International Criminal Court delivered a wonderful lecture at a conference held at Washington University commemorating the 100th birthday of Whitney Harris, the Nuremberg Prosecutor who passed away two years ago. Judge Kaul's tribute to Whitney Harris highlighted his great determination to see the creation of the International Criminal Court, and his conviction that the institution should have jurisdiction over the crime of aggression. Judge Kaul also added many personal touches about the friendship he and his wife Elizabeth developed with Whitney and Anna Harris and their family, including their dramatic first meeting at the Rome Conference in 1998.
The St. Louis Conference, organized by Prof. Leila Sadat, brought together a host of interesting speakers who reflected on the development of the International Criminal Court in the course of its first decade.

Palestine and the International Criminal Court

Earlier this year, the Prosecutor of the International Criminal Court declined acting upon the January 2009 declaration by the Palestinian Authority recognizing the jurisdiction of the Court pursuant to article 12(3) of the Rome Statute. The Prosecutor said that the issue of Palestine's status as a State was to be resolved either by the United Nations General Assembly or by the Court's own Assembly of States Parties. The Assembly of States Parties meets in a few days, but consideration of Palestine's status has not been put on the agenda for discussion.
Nevertheless, Palestine is proceeding with a request to the United Nations General Assembly to be given full observer state status. Here is the request. Should Palestine be successful, the concern of the Prosecutor will be adequately addressed. Then, the Prosecutor can either request authorization of the Pre-Trial Chamber to proceed with an investigation, pursuant to article 15 of the Rome Statute, or wait to be requested to proceed by a State Party (article 14) or by the Security Council (article 13b).

Trinidad and Tobago to Ratify Aggression Amendment

Later this morning, Trinidad and Tobago is expected to deposit its ratification of the amendments to the Rome Statute adopted at the Kampala Conference, one of which enables the International Criminal Court to exercise jurisdiction over the crime of aggression. That will bring the total to three. Thirty ratifications are required for the amendment to enter into force.

11/11

Remembrance Day is an occasion to think about the importance of peace. It commemorates the end of the First World War, which lasted four years and resulted in the deaths of an estimated 20 million people. It was followed barely twenty years later by the Second World War, which caused the death of an estimated 65 million people.

These figures are difficult for us to comprehend today. Consider that this means an average of about 23,000 deaths every single day over the ten years of the two conflicts. Also bear in mind that in the first half of the twentieth century the population of the globe was about 30 to 35% of what it is today. In other words, in equivalent 2012 numbers, there were about 70,000 deaths daily.

That is more than double the number reported to have died in the Syrian conflict since February 2011. This is not to suggest that the number of killings in Syria is not appalling, merely to put the overall amount in perspective.

The point – something Stephen Pinker has made so eloquently in his book The Better Angels of Our Nature – is that the world is less violent than in was. The likelihood of dying a violent death continues to decline, even if there are still parts of the world that are very dangerous indeed.

Why is this? International law has made an important contribution. The Charter of the United Nations prohibited resort to force to settle disputes. The judgment of the International Military Tribunal recognized crimes against peace to be an international offence.

Very recently, after some hesitation, the States Parties to the Rome Statute completed the necessary codification of the crime of aggression. When the amendments enter into force in 2017 the International Criminal Court will be able to prosecute the crime of aggression. This is an important process that fits squarely within the progressive law making of the past 65 years aimed at the prohibition of war.

Peace is fundamental to the protection of human rights. Freedom from fear is the fourth of Roosevelt’s famous four freedoms. Unfortunately, the place of the right to peace within human rights law is still contested.

Recently, I was contacted by a former high school friend who is organising a reunion of the class of 1968. He sent me a list of those I was at secondary school with, and I was saddened to see that several of them had passed away. Perhaps ten out of 230. Contrast that with the schools attended by my parents and my grandparents, where an entire generation was decimated by world war.

The photo shows a plaque that was unveiled last week in the Cooper Gallery, in Barnsley, Yorkshire. The building once housed Holgate Grammar School, where my maternal grandfather and his brother went to school. Seventy-five of the boys lost their lives in the First World War, including my great uncle Duncan Fairley, whose name is on the plaque. Duncan was a second lieutenant who was fatally wounded on the morning of 1 July 1916, the opening day of the Battle of the Somme, in northern France. That day, the British army suffered 60,000 casualties, the largest in its history, as waves of young men, my great uncle among them, marched across the muddy fields to be mown down by artillery and machine gun fire. I am grateful to Sally Hayes for the photograph.

Death Penalty Developments

It was tempting to entitle this ‘Los Angeles Votes to Abolish the Death Penalty’. That was indeed what happened in Tuesday’s vote on Proposition 34, a referendum on amendment to the California constitution intended to abolish capital punishment.

The people of Los Angeles voted by 1,191,545 or 54.04% in favour to 1,013,477 (45.96%) against. However, when the votes for the rest of the state were considered, the amendment was rejected, by 47.2% Yes to 52.8% No.

The result, then, was indeed very close, and shows that when the death penalty is put to a popular vote as was the case in California, it cannot be said that Americans massively support the death penalty. I suppose some will say that California is not typical of the United States, and no doubt the support for capital punishment would have been higher if the referendum had been held in Utah or Idaho, just as it would have been lower were it held in Vermont or Massachusetts.

It seems that the message in Tuesday's election is that the population of the United States is changing, and that ethnic minorities, younger people, and women, all of whom tend to be more progressive, are increasingly effective in exercising their democratic rights. That would suggest that if the referendum is repeated in California in five or ten years, the result will improve. It doesn't need to improve much for it to succeed.

Two new publications on capital punishment:

From the European Union, a study by Prof. Roger Hood on enhancing EU action in Asia with respect to capital punishment

From the Office of the High Commissioner for Human Rights, Moving Away from the Death Penalty, which is a report on a panel discussion held in New York earlier this year.

Seventy-five Years Since Adoption of First International Criminal Court Statute

Seventy-five years ago, from 1 to 16 November 1937, the International Conference on the Repression of Terrorism convened in Geneva under the auspices of the League of Nations. It concluded with the adoption of the Convention for the Creation of an International Criminal Court.

The Conference also adopted a Convention for the Prevention and Punishment of Terrorism which criminalized various terrorist offences.

The Convetion was signed on 16 November 1937. It was only open to signature and ratification or accession by States that had already accepted the primary substantive treaty on terrorism. Ten States signed the Convention at the conclusion of the Conference: Belgium, Bulgaria, Spain, France, Greece, the Netherlands, Romania, Czechoslovakia, Turkey and Yugoslavia.

The international criminal court was to be a permanent body but one that would only sit when an offence had been charged. It was to have five regular and five deputy judges, chosen by the Permanent Court of International Justice. Although the Convention was adopted at a League of Nations conference, there was to be no formal connection between the Court and the League.

States Parties would have the option of referring an individual to trial before the international court instead of trying them by courts of their own jurisdiction or extraditing them. An accused could not demand the right to be tried by the international court.

As a comment in the British Yearbook of International Law in 1938 explained: ‘It is possible that in a moment of political embarrassment a government may find it convenient to make use of the court, if and when it is instituted.’

According to the British Yearbook,

The question what law the court is to apply seems to have given rise to considerable discussion; as nothing in the nature of an international criminal law, proper to such a court, is in existence, some municipal system had to be chosen. Ultimately it was decided that as between the municipal systems of the country where the terrorist act was done and the country which committed the accused for trial, "the substantive criminal law to be applied by the court shall be that which is the least severe" (Article 21); the court decides which law answers to that description. As it is possible that the court will not include any judge who is a national of the state whose law is to be applied, the convention provides for the invitation of an assessor "who is an acknowledged authority on such law". The convention does not apparently contemplate the presence of a jury, a jury being regarded, so it seems, as part of the law of procedure in a municipal system, and not (O shades and myths of Runnymede!) of its "substantive law" (loi pénale de fond).

The idea of the court, and of the corresponding anti-terrorist convention had emerged following the assassination in 1934 of King Alexander of Yugoslavia and Louis Barthou, at Marseilles on 9 October 1934 (for a contemporary newsreel, click here). The French government urged the League of Nations to intervene. Its proposal included the idea of establishing an international criminal court.

Only India ratified the Convention. Today, India stands outside the International Criminal Court. It would be useful to remind India of the pioneering role that it once played in this area.