UN International Law Commission to Elaborate New Global Convention on Crimes Against Humanity
The work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat, the Henry H. Oberschelp Professor at Washington University School of Law, achieved an important milestone when the United Nations International Law Commission voted on July 18, 2014 to add the drafting of a treaty on crimes against humanity to its active agenda.
The development follows the convening of a conference by the Initiative bringing together international experts and the members of the Commission in May, 2014. Organized by the Whitney R. Harris World Law Institute, the conference resulted in the publication of a report, titled Fulfilling the Dictates of Public Conscience: Moving Forward with a Convention on Crimes Against Humanity, on July 17, 2014.
Sadat began the Initiative in 2008 to study the need for and to draft an international treaty aimed at the prevention and punishment of crimes against humanity. She also chairs the seven-member Steering Committee of distinguished international experts which oversees the Initiative’s work. A global convention covering crimes against humanity – which were prosecuted at Nuremberg but never enshrined in a comprehensive international convention – is a key missing piece in the current framework of international law.
Since its launch in 2008, the Initiative has worked with more than 300 international scholars, practitioners, and jurists to develop and promote the world’s first model convention on crimes against humanity. It was published by Cambridge University Press in English, French, and Spanish in Forging a Convention for Crimes Against Humanity. Known as the Proposed International Convention on the Punishment and Prevention of Crimes Against Humanity, the model treaty, which was prepared under the leadership of Steering Committee member and Distinguished Research Professor of Law at DePaul University College of Law M. Cherif Bassiouni, has since been translated into Arabic, Chinese, German, and Russian.
Members of the Initiative’s Steering Committee are delighted with the ILC’s decision to move forward on the topic. “This is a very important step” notes William Schabas, Professor of International Law at Middlesex University, London. “The ILC is completing a task that began
more than 70 years ago and will be in a position to push this forward right to the heart of the UN, where it can be adopted and enter into force.”
This decision at the ILC would not have been possible without the efforts of Sean D. Murphy, ILC Member and the Patricia Roberts Harris Research Professor of Law at The George Washington University Law School, who has now been appointed Special Rapporteur.
“It is hoped that the work of the ILC on this topic will only add to the growing conviction that a comprehensive treaty on crimes against humanity is both urgently required and eminently feasible,” Sadat says.
For more information, and to read the text of both the Fulfilling the Dictates of Public Conscience Report the Proposed International Convention on the Prevention and Punishment of Crimes Against Humanity, please visit http://crimesagainsthumanity.wustl.edu/.
Crimes Against Humanity Initiative Steering Committee
• Chair Leila Nadya Sadat, Henry H. Oberschelp Professor of Law, Washington University; Director, Whitney R. Harris World Law Institute; Special Adviser on Crimes Against Humanity to the ICC Prosecutor
• Professor M. Cherif Bassiouni, DePaul University College of Law; President Emeritus, International Human Rights Law Institute
• Ambassador Hans Corell, Former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations
• Justice Richard Goldstone, Former Chief Prosecutor, International Criminal Tribunals for the former Yugoslavia and Rwanda
• Mr. Juan Méndez, Professor of Human Rights Law in Residence, Washington College of Law, American University; UN Special Rapporteur on Torture
• Professor William Schabas, Middlesex University, London • Judge Christine Van den Wyngaert, International Criminal Court
The Crimes Against Humanity Initiative was made possible by generous grants from alumnus Steven Cash Nickerson, JD ’85, MBA ’93, the U.S. Institute of Peace, and Humanity United.
The Bay of Bengal Maritime Arbitration Case: Part I
On 7 July 2014, the Permanent Court of Arbitration, the Hague, passed the award in the Indo-Bangladesh Maritime Arbitration Case (The Bay of Bengal Maritime Boundary Arbitration). The case was initiated by Bangladesh against India in October 2009, pursuant to Art. 287 of the UNCLOS, after 11 rounds of negotiations between the parties over five decades proved to be indecisive, and often marred by local politics. Following pages give a summary of various issues and facts considered by the tribunal to reach the final award.
The Tribunal was composed of: Judge Rudiger Wolfrum (President), Judge Jean-Pierre Cot, Judge Thomas A. Mensah, Dr. P.S. Rao, and Prof. Ivan Shearer. Dr. P.S. Rao reserved a concurring and dissenting opinion.
The Indian Independence Act, 1947 of the United Kingdom, partitioned from India the state of West Pakistan and East Pakistan. East Pakistan was carved out of the Bengal Province, with West Bengal remaining in India. In order to demarcate the boundary between East Pakistan and West Bengal, the Bengal Boundary Commission was set up in 1947 chaired by Sir Cyril Radcliffe. On 13 August 1947, the report was submitted describing the boundary, and is known as “Radcliffe Award.”
Thereafter, in the light of disputes on the application of Radcliffe Award, an Indo-Pakistan Boundary Disputes Tribunal was set up, known as Bagge Tribunal. The Award of this Tribunal dealt with segments not relevant to this case.
On 26 March 1971, Bangladesh declared Independence from Pakistan and succeeded to the territory of East Pakistan and its boundaries.
The boundary between India and Bangladesh runs across the Sunderban Delta region. The southern section of the land boundary lies in the riverine features, which fall in the Bay of Bengal. This delimitation exercise involves delimiting the boundary river, identifying the terminal point of the land boundary, to delimit the territorial sea, the EEZ, the continental shelf within and beyond 200nm.
The Parties were deemed to have accepted arbitration in accordance with Annex VII since there was no declaration made by either party under Art. 287(3) (Choice of Procedure), nor had any party made a declaration under Art. 298, thereby, not excluding the current dispute from compulsory dispute resolution mechanism entailing binding procedure. The Tribunal assumed the jurisdiction to ‘… adjudicate the present case, to identify land boundary terminus and to delimit the territorial sea, the Exclusive Economic Zone and the continental shelf between the parties within and beyond 200nm in the areas where the claims of the parties overlap.
Determination of the Land Boundary Terminus
In order to determine the land boundary terminus, both the Parties relied on the Radcliffe Award of 1947, and the subsequent award of the Bagge Tribunal of 1950, which had been formed to address the disagreement in the application of the former. They relied on different interpretations of the Radcliffe Award on the two issues -: whether the ‘twinning of rivers’ was implied in the Award and whether the actual demarcation has to be based on the physical conditions contemporaneous to the Award or based upon geographical conditions prevailing as on the day of actual physical demarcation.
The Tribunal ruled that the ‘twinning of rivers’ was not implied, and the riverine boundary would run through the ‘mid-stream of the main channel of the Haribhanga river. It also noted that there was an intention of contemporaneity in application in the Radcliffe Award. Meaning thereby, that the location of the boundary line in Haribhanga River and the land boundary terminus would be determined according to the actual conditions at the time of the Award. For purpose of such application, the Tribunal rejected the cartographic evidence presented by Bangladesh, and instead relied on the true copy of map annexed in the Radcliffe Award presented by India, which was found to be closer to the date of Award, and detailed enough to lead to justify its use.
Delimitation of the Territorial Sea
Both the Parties had proposed base points and the equidistant lines delimiting the territorial sea as traced from those base points, and both had contentions against each other’s proposals. Bangladesh mainly argued against India’s base points, claiming that they were unstable, and at least three of them were located on low tide elevations. It also disputed against the sovereignty of New Moore Islands as asserted by India. While Bangladesh pleaded for angle bisector line, claiming that its unstable coastline along with its concavity fell into ‘special circumstance’ category, India held on to equidistance/relevant circumstances criteria to delimit the territorial sea, and defending its choice of base points on low tide elevations to be based on the relevant provisions of UNCLOS.
The Tribunal relying on the jurisprudence of the Black Sea Case, rejected India’s proposed base points, opting instead to go for the base pints on the Indian coastline. The Tribunal also rejected Bangladesh’s arguments of special circumstances – climatic, concavity and instability of coastline, etc., – thereby, also rejecting its proposal of angle-bisector lines.
The Bay of Bengal Maritime Arbitration Case: Part II
Delimitation of EEZ and Continental Shelf
In order to delimit the areas beyond the territorial sea, the Tribunal first determined the relevant coastlines of the Parties and subsequently the relevant area. Its task was “…to identify the coast that generate(s) projections which overlap with the projection from the coast of the other Party.” The Tribunal found that India’s relevant coastline stretched further south west to Sandy Point as opposed to Devi Point as India had claimed. It also found that the projections from the northern tip of the Andaman Islands (India) qualified for the identification of the relevant area. It delimited the relevant area accordingly.
In his dissenting opinion, Dr. P.S. Rao, criticized the identification of the coastline stretching to Sandy Point and the relevant area, by pointing out that the international jurisprudence demands that the construction of the relevant area be “… as strict as possible to denote the disputed area as closely as possible…”. He also disagreed on identification of projections from the Andaman Islands, as its coastal front is neither opposite nor adjacent to the coast of Bangladesh.
Preference was given to the Equidistance/Special Circumstance method for delimitation of delimitation of the EEZ and continental shelf within 200nm, over the angle bisector method proposed by Bangladesh, for the reasons of transparency and the fact that Bangladesh’s arguments for angle bisector line weren’t found to be convincing. The Tribunal reasoned that the instability of Bangladesh’s coast doesn’t render it special circumstance as it was possible to identify the base points, nor can future possibility of climate change be taken to adjust provisional equidistance line.
Delimitation of Continental Shelf Beyond 200NM
The Parties and the Tribunal both agreed on the point that there is a single continental shelf , and that there is no difference between the continental shelf within 200nm and the so called ‘outer continental shelf’. The Tribunal recognizing that both the Parties have entitlements in continental shelf beyond 200 nm, decided to delimit the continental shelf beyond 200nm using the equidistance/relevant circumstances method as it has used for delimiting the shelf within 200nm.
The Tribunal accepted Bangaldesh’s argument that the concavity of Bangladesh’s coast indeed produces cut off effect. It ruled that the provisional equidistant line was not equitable as it prevents Bangladesh from extending its maritime boundary as far as International Law permits, thus defeating the principle of equitable use of the sea area. Thereby rendering it a special circumstance, the Tribunal proposed adjustment of the equidistant line within and beyond 200nm.
The final adjustment of the equidistant line gave out more area to Bangladesh. This adjustment was criticized by Dr. P.S. Rao, as in his opinion the Delimitation Point from which the adjustment was affected was well before the point where a significant cut off occurs. This adjustment is not sufficiently justified. Also, the fact that the adjusted line concurs with the bisector line proposed by Bangladesh is arbitrary and run against the majority’s own rejection of the bisector line.
The Tribunal found that the relevant area to be delimited so identified by the Tribunal compromised of 406,833 sq. km, and the final delimitation lines allocate apporx. 106,613 sq. km of the relevant area to Bangladesh and approx. 300,220 sq. km to India. The ratio of allocated areas is approximately 1:2.81. This ratio, in the view of the tribunal does not produce any significant disproportion.
The Tribunal’s delimitation lines resulted in a grey area, which lies 200nm from the coast of Bangladesh, but within 200nm of coast of India, but the equidistant line is drawn such that it falls on the east (Bangladesh’s side) of the Tribunal. The Tribunal reasons that, the boundary identified by the Tribunal delimits only the parties’ sovereign rights to explore the continental shelf and to exploit the living resources of sedentary species and mineral resources as set out in article 77 of the UNCLOS. It held that within this grey area the boundary does not limit India’s sovereign rights to the EEZ in superjacent waters.
Dr. P.S. Rao criticized the formation of the Grey Area in his dissenting opinion as a matter of law and policy, reasoning that the adjustment allowed for a “grey are” in a ‘not-insignificant expanse” of the Bay of Bengal. The only other case in which such Grey Area has been created was by the ITLOS in the Bangladesh/Myanmar Case (2012).
Consideration of equity, so well pronounced in the international jurisprudence rules the considerations of the Award. The Award is final and binding on both the parties and cannot be appealed.
Article 12(2)(a) Rome Statute: The Missing Piece of the Jurisdictional Puzzle
Published on August 7, 2014 Author: Jean-Baptiste Maillart
Article 12(2)(a) of the Rome Statute provides that the ICC may exercise its jurisdiction over a crime if the “State on the territory of which the conduct in question occurred” is a party to the Statute or has accepted the Court’s jurisdiction by a declaration. It has become commonplace to paraphrase that provision as stating that the Court may exercise its territorial jurisdiction over a crime that has been committed within the territory of a State Party. For instance, the late Judge Hans-Peter Kaul wrote [p. 607] “if a core crime is committed by an individual in the territory of a State Party to the Statute, the ICC will have jurisdiction” (see also the commentaries of Schabas [p. 285], Bourgon [p. 564] and Haupais [p. 582]). The Court itself uses the exact same wording: “[…] under article 12(2) of the Statute one of the two alternative criteria must be met: (a) the relevant crime was committed in the territory of a State Party or […] (b) the relevant crime was committed by a national of a State Party […]” (ICC-01/04-01/07-262 [§. 14]); see also for instance ICC-02/11-14 [§. 187] or ICC-01/09-19-Corr [§. 175]).
However, a careful and literal reading of Article 12(2)(a) leads to a different conclusion. The Court has jurisdiction over a crime when “the conduct”of this crime occurred on the territory of a State party, not when the crime was committed there. Some scholars addressing Article 12 (e.g., Wagner [p. 485] and Vagias [p. 53]) have pointed out the exact terminology used, but none have considered whether it could have any practical effect. This post considers, on the basis of the traditional interpretation of the term “conduct”, a possible challenge to the ICC’s jurisdiction over certain cross-border crimes where, if Article 12(2)(a) said “commission”, it would undoubtedly have jurisdiction. In other words, it could be argued that it is incorrect to read “conduct occur[ing]” on certain territory as equivalent to “commission of a crime” on that territory. The post also proposes a counter-argument in favor of jurisdiction.
Challenging the ICC’s territorial jurisdiction through the traditional interpretation of the term “conduct”
Leaving aside mens rea and crimes ofconduct, the commission of a crime requires at least two elements: criminal conduct and a result. According to the modern and universally recognized theory of ubiquity, a crime is considered as committed on the territory of a State when either of these two elements has taken place there. Returning to Article 12(2)(a), if the drafters had used the term “commission”, then the Court would have had jurisdiction over any crime for which the conduct and/or the result occurred in the territory of a State party.
But they opted for “conduct”. According to the traditional interpretation of this term, the conduct and the result are two disconnected chronological moments (though very close in absolute time). Indeed, conduct is traditionally perceived as a specific and determined moment on the track of the commission of the crime, clearly distinct in time from the result of the crime. For instance, in the case of a crime of willful killing committed with a firearm, the conduct is the action of pulling the trigger; the result is the subsequent death of the victim. In this context, Article 12(2)(a) would seem to mean that the Court has jurisdiction only over crimes for which the criminal conduct took place within the territory of a State party, whether or not the result took place within a State party.
A defendant could therefore raise this argument against the jurisdiction of the ICC in a case of a cross-border war crime for instance. Imagine that a rocket fired by a Syrian national from the territory of Syria, not a State party, hits and kills civilians in Jordan, a State party. This might amount to a war crime of willful killing (prescribed by Article 8(2)(a)(i)). On the basis of the traditional interpretation of the term “conduct”, a defendant charged with responsibility for the attack could contest jurisdiction on the basis that the criminal conduct (the action of firing the rocket) took place on the territory of a State not party to the Rome Statute. Such a defense argument has not been raised so far. However, it is likely to happen in the future, particularly since such cross-border crimes are increasingly frequent due to the blurring of frontiers and the development of modern technology. In modern armed conflicts, belligerents increasingly prefer to rely upon long-distance delivery systems rather than engaging themselves in close combat. The on-going armed conflict in Gaza between Israel and the Hamas is a very good illustration of this trend.
This result is unsatisfying for the fight against impunity. I propose, however, a counter-argument which would allow the Court to claim jurisdiction over all crimes for which either the conduct or the result takes place within the territory of a State party, as if the drafters of the Rome Statute had actually used the term “commission”.
Filling the jurisdictional gap
There are several arguments against simply substituting the term “commission” with “conduct” without further justification. It appears that the drafters of the Statute intentionally used the latter term.First, the travaux préparatoires show that this terminology was chosen very early in the drafting process. For instance, in 1994, Article 21 of the International Law Commission’s Draft Statute for an International Criminal Court states that the Court’s jurisdiction with respect to a crime must be accepted “by the State on the territory of which the act or omission occurred”, not the State on the territory of which the crime was committed. This wording was not challenged until 1998 when the expression “act or omission” was replaced at the last minute by the term “conduct”, as no agreement was reached on the definition of “omission”.
Second, the second part of Article 12(2(a) speaks of crimes “committed on board a vessel or aircraft”. One must consider why there is a marked difference of wording, in the same provision, if it was not meant to emphasize a difference?
Third, the word choice could be explained as arising from important practical considerations. Indeed, since the alleged perpetrator as well as the evidence of the crime are most of the time to be found on the territory where the criminal conduct took place, if the conduct occurred in a non-State party, it would be nearly impossible for the Court to investigate the crime and request this State to arrest and surrender the alleged perpetrator, since only States parties are bound to cooperate. One could thus argue that it makes sense for the Court not to have jurisdiction over crimes for which the conduct took place in a non-State party.
The solution is to be found in an expansive interpretation of the term “conduct”, arising from the so-called “constructive conduct theory” developed in the US during the 19th century. It aims at connecting in time the conduct and the result of a crime. Pursuant to this theory, criminal conduct lasts until the result takes place. In this way, from a ratione loci point of view, the conduct is moving and not static as it is with the traditional interpretation. The conduct does not only take place where it started to take place but also everywhere the missile goes before causing the result of the crime. The conduct moves together with the missile. Therefore, if the missile crosses a border, the conduct virtually follows it and is considered as having taken place on both sides of the border. So when the rocket is fired from Syria to Jordan, the criminal conduct does not stop as soon as the perpetrator releases the trigger and the rocket is fired. It lasts until it explodes in Jordan and the war crime is committed. Pursuant to this theory, the conduct does not only take place in Syria but also in Jordan as soon as the rocket crosses the border. Therefore, the Court may exercise its jurisdiction. Within the context of the Rome Statute, such an interpretation is possible on the basis of Article 31 of the 1969 VCLT, which provides that the terms of a treaty should be interpreted in their literal meaning but also in light of the object and purpose of the treaty. According to the Preamble of the Rome Statute, its object is to “put an end to impunity” and “exercise (…) criminal jurisdiction over those responsible for international crimes”, i.e. strengthen the fight against impunity of international crimes. Therefore, a teleological interpretation of Article 12(2)(a) allows for an extensive interpretation of its terms as long as it aims to better fight against impunity.
Such a progressive interpretation is the only way to respect the wording of Article 12(2)(a) and, at the same time, provide the ICC with a territorial scope of jurisdiction similar to that which would have been considered if the drafters had used the term “commission”, thus allowing it to claim jurisdiction over all cross-border crimes involving the territory at least of one State party. The jurisdictional puzzle of the Court would therefore be complete.