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142. The Crime of Aggression After Kampala: Success or Burden for the Future?
- Author:
- Robert Heinsch
- Publication Date:
- 08-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The article provides a first evaluation of the results achieved in Kampala. The author focuses on the resolution dealing with the crime of aggression which was adopted by consensus. Apart from providing a detailed analysis of the new Article 8bis of the Rome Statute which defines the crime of aggression, he also gives an overview of the provisions foreseen for the exercise of jurisdiction over this crime contained in Articles 15bis and 15ter. This includes also the difficult relationship between the ICC and the Security Council with regard to the exercise of jurisdiction. In the author's view the resolution must already be characterized as yet another remarkable achievement in the field of international criminal law, even though there are some hurdles to cross before the respective amendment will enter into force.
- Political Geography:
- Kampala
143. The International Criminal Court's Exercise of Jurisdiction Over the Crime of Aggression – at Last … in Reach … Over Some
- Author:
- Astrid Reisinger Coracini
- Publication Date:
- 08-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The first review conference to the Rome Statute of the International Criminal Court, held in June 2010 in Kampala successfully concluded decades of negotiations over a statutory definition of the crime of aggression and its prosecution by a permanent international criminal court. The main unresolved issues to be addressed by the review conference concerned the determination of an act of aggression as a (procedural) prerequisite for the exercise of jurisdiction over the crime of aggression and the appropriate activation procedure for a provision on aggression. Most importantly, the compromise of Kampala could safeguard an independent and effective criminal prosecution of the crime of aggression by not subjugating the Court's exercise of jurisdiction to decisions of outside organs. However, in case of a referral of a situation by a State Party or the initiation of a proprio motu investigation, the Court's reach over perpetrators is significantly narrowed with a view to crimes of aggression involving a non-state party or a state-party that does not accept the Court's exercise of jurisdiction. These concessions, built on state consent to the exercise of criminal prosecution over individuals and elements of reciprocity, concepts that are alien to the Rome Statute, form part of a political compromise that enabled the activation of the Court's jurisdiction over the crime of aggression.
- Political Geography:
- Rome and Kampala
144. Special Issue: Strategies for Solving Global Crises – The Financial Crisis and Beyond
- Publication Date:
- 01-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Our contribution evaluates the recent financial crisis in light of the ongoing global governance debate. We contextualize the insights from the interdisciplinary workshop on strategies for solving and preventing global crises and put them within the broader frame of global governance. We analyze solution and prevention mechanisms for global crises phenomena by investigating the reactions to the financial crisis of 2007-9. We provide particular insights into the modes of multi-level-, G20-related, and regional governance mechanisms. Our findings indicate that the dominance of transnational networks and the inherent particularistic interests prevail as regards the reactions to the financial crisis. We discuss whether this outcome can be generalized with regard to the potential implications for other global crises.
145. Complementarity After Kampala: Capacity Building and the ICC's Legal Tools
- Author:
- Morten Bergsmo, Olympia Bekou, and Annika Jones
- Publication Date:
- 08-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Twelve years after the creation of the first permanent International Criminal Court and eight years since the entry into force of its Statute, the first ever Review Conference took place in Kampala, Uganda. Besides successfully introducing aggression as one of the crimes under the Court's jurisdiction and expanding the coverage for war crimes, the Review Conference provided a timely opportunity to reflect on some of the key aspects of the Court's regime. An integral part of the Review Conference was the “stocktaking exercise”. The exercise provided a platform for the participants at the Review Conference to reflect on the successes and the failings of the ICC following the first few years of its operation and to consider measures that could be taken to enhance and strengthen the Court's functions in the years to come. The stocktaking exercise focused on four themes: complementarity, cooperation, victims and affected communities and peace and justice. These themes represent major aspects of the ICC's operation which will continue to warrant consideration as the Court matures as an institution. The theme of complementarity is of particular importance because of its uniqueness to the ICC. The ICC's complementarity regime places a primary obligation on States to investigate and prosecute international crimes. It does so by limiting the jurisdiction of the ICC to situations where States are shown to be unwilling or unable genuinely to investigate and prosecute, in respect of cases of sufficient gravity to justify action by the Court. The principle of complementarity was an innovation, specifically tailored for the ICC. The Review Conference therefore provided an important opportunity to reflect on the effectiveness of the principle and steps that could be taken to strengthen it. This piece will consider the tenor of the debate concerning complementarity during the Review Conference and the emphasis that was placed on strengthening national capacity for the investigation and prosecution of core international crimes. In particular, it will highlight a significant shift in the use of the term “positive complementarity”. The term, which had originally been used to refer to the ICC's role in the construction of national capacity, was used throughout the Review Conference to refer to the involvement of States, international organisations and civil society in strengthening justice at the national level. It will also draw attention to the efforts that were made during the Conference to identify means to put positive complementarity into practice with the hope of overcoming some of the problems that States had faced in the investigation and prosecution of serious international crimes within their national systems. The article will go on to discuss the relevance of the ICC Legal Tools Project, a unique collection of legal databases, digests and applications designed to facilitate the application of international criminal law, to the discussions that took place in Kampala. It will be concluded that the ICC's Legal Tools provide an important means of supporting the principle of complementarity, positive or otherwise.
- Political Geography:
- Uganda and Kampala
146. Unilateral Interpretation of Security Council Resolutions: UK Practice
- Author:
- Alexander Orakhelashvili
- Publication Date:
- 12-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Unilateral interpretation of UN Security Council resolutions takes place where, due to political considerations of the day, one or more States attempt construing the resolution in question as falling short of, or exceeding, the agreement between the Council's Member States that the resolution on its face suggests. Whether unilateral interpretation indeed takes place depends on what the content of the resolution actually is, which question in its turn depends on the use of transparent methods of interpretation applicable to resolutions. After examining the applicability of the 1969 Vienna Convention in this process, the article turns to four instances of unilateral interpretation from the UK practice, and to reactions to the attempts of unilateral interpretation. These four instances demonstrate that the consistent use of interpretation methods, coupled with the reaction by other States to that effect, can help maintaining the adherence to the resolution's meaning. Where the national or international courts are available as forums to challenge unilateral interpretation, they can further enhance the maintenance of proper meaning of these instruments.
- Topic:
- Security and United Nations
- Political Geography:
- United Kingdom and Vienna
147. The Legal Significance of Global Development Partnerships: European Development Cooperation and its Contribution to the International Law of Development
- Author:
- Markus Kaltenborn
- Publication Date:
- 12-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The global development partnerships of the European Union are embedded in a legal context which provides several constraints for stakeholders in Brussels. This legal framework consists both of the rules and principles of public international law and of the 'supranational' law of the European Union. After a short survey of the activities of the European Union referring to North-South relations, some of the prevailing legal problems of the Union's development policy as well as its contribution to the international law of development are discussed in this Article.
- Topic:
- Development
- Political Geography:
- Europe
148. Defending the Emergence of the Superior Orders Defense in the Contemporary Context
- Author:
- Jessica Liang
- Publication Date:
- 12-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The defense of superior orders is one of the most controversial defenses to be pleaded under criminal law. In effect, it condones ignorance of the law and allows a subordinate to escape criminal liability on a basis other than culpability. It may therefore come as a surprise that sixty years after the Nuremberg and Tokyo trials, the resort to superior orders has re-emerged as a complete defense for certain types of crimes. I argue that this defense is based on sound policy reasons of military necessity, and should be made available on the condition that the order is not 'manifestly illegal'. In contrast to blunt absolutist approaches, the manifest illegality doctrine presents the most workable test for distinguishing between the culpability of conduct committed by soldiers in circumstances of exigency. This 'middle-way' successfully balances the dichotomous ends of legality and military efficiency and should be the preferred test under international law.
- Topic:
- International Law
- Political Geography:
- Tokyo
149. The Post 9/11 Discourse Revisited - Self-Image on the International Legal Scietific Discipline
- Author:
- Ulf Linderfalk
- Publication Date:
- 12-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- A few years ago, the legality of Operation Enduring Freedom (OEF) was a topic much discussed in the international legal literature. This article approaches the problem from a new angle. Rather than investigating the relevant issue of legal substance – whether or not OEF was ever consistent with international law – the article focuses attention on the general scholarly performance in dealing with this issue. Scrutinizing the literature published immediately following upon the events of 11 September 2001, the author suggests that overall, the scholarly debate on the legality of OEF did not live up to the standards normally applied in serious legal analysis, and that hence, the debate should be characterized as poor science. The article presents this criticism in further detail. With said criticism as a basis, in a concluding part of this article, the author takes the investigation one step further. As he suggests, when scholars engaged in the post-9/11 discourse, there was something about the whole situation that greatly constrained them. They were obviously hesitant to conclude that in circumstances like those of 9/11, there would still not be any right of self-defense to exercise. So much did they hesitate that they thought the opposite conclusion worth the prize of far-reaching infringements of the most basic of scientific quality standards. Why this hesitation, the article asks. What force or forces are compelling international legal scientists? As the author suggests, this question bears directly on the particular self-image of the legal scientific discipline and the role it envisages for itself in the international community. He concludes the article by initiating a discussion on this very delicate issue specifically, introducing for this purpose a description of the international legal scientist as archetype.
- Topic:
- International Law
150. Humanitarian Action – A Scope for the Responsibility to Protect: Part II: Responsibility to Protect – A Legal Device Ready for Use?
- Author:
- Marie-José Domestici-Met
- Publication Date:
- 12-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Throughout three issues of the Goettingen Journal of International Law we are trying and answering the same question: with the recognition of responsibility to protect, is humanitarian action at last guaranteed? Will this concept avoid some avoidable deaths and lack of rescue? Our first issue was devoted to the long quest for a legal regime in favor of humanitarian action effective delivery. After a step by step review of the many solutions which have been tried, the paper ended with the “discovery” of physical protection. After mentioning the Kosovo (and Serbia) air strikes and the 3rd millennium UN field missions, the paper ended with a worrying assessment: no device over the past 150 years has succeeded in guarantying neither assistance' provision nor protection. And we raised the issue of responsibility to protect (R to P) as a possible help to solution. Our today's paper goes down this way.
- Topic:
- International Law
- Political Geography:
- Kosovo and Serbia