Tag Archive | "jurisdiction"

Sign at the International Criminal Court.

Critical Analysis: Gaza Conflict, Palestine, and the ICC

After a cease-fire ended the fifty day war between Gaza and Israel, Palestine wants to bring charges against Israeli individuals for war crimes and crimes against humanity. Therefore, Palestine has an important decision to make: become a state to the Rome Statute, which grants the ICC jurisdiction, or remain a non-member observer state and submit another ad hoc declaration to the ICC, which grants the ICC jurisdiction. To understand the arguments circling Palestine’s decision, it is important to know the history of the Gaza conflict.

The Palestine-Arab and Israel conflict (“Gaza conflict”) began after WWII when Jewish people wanted their own country and were given land in Palestine.  In 1967, Israel went to war and gained authority over the Gaza Strip from Egypt and the West Bank from Jordan: two territories that were heavily populated by Palestinian-Arab persons. In 2005, Israel “removed” its troops and a group called Hamas rose to power. Most countries, including the United States, consider Hamas a terrorist organization. The Hamas group refuses to recognize Israel as a country, and wants Palestinians to have their original land back and is not afraid to use violence to get it. With the rise of Hamas, Israel is a target and unsafe, therefore, Israel has been holding Gaza under a blockade, controlling Gaza’s coastline and the Gaza-Israel border. This blockade has resulted in many effects for over a million Palestinians: unemployment, hunger, and poverty.

Sign at the International Criminal Court.

International Criminal Court. Image Source: © Richard Wareham Fotographie / Alamy.

Thus, the main Palestinian demand is for the blockade to be lifted. Furthermore, Palestinians want prisoners released, reconstruction, and rights to fish off the Gaza coast. Conversely, Israel wants Hamas to recognize it and ensure its safety.

Now with a better understanding of the Gaza conflict, this brings us to the current issue: should Palestine grant the ICC jurisdiction either by accession to the Rome Statute or submitting another ad hoc declaration without accession? Because an ad hoc declaration does not obligate the prosecutor to open an investigation, accession is a better option. Accession will allow Palestine to seek judicial review if the prosecutor exercises her discretion and does not proceed with an investigation. However, under the Rome Statute, the UN Security Council can prohibit the prosecutor and the court from launching an investigation by passing a Chapter VII Resolution every twelve months. Added in 1998, this provision allows sensitive political negotiations (in this case, peace talks in the Middle East) to outweigh justice. As Joe Stork, Deputy Middle East Director at Human Rights Watch, points out this balancing test should not apply to the current conflict: “[t]he argument that Palestine should forego the ICC because it would harm peace talks rings hollow when 20 years of talks have brought neither peace nor justice to victims of war crimes.” Furthermore, “[t]he US, Israel and others who are pressuring Palestine not to seek the ICC’s jurisdiction cannot credibly argue that continued impunity for serious international crimes will help bring the conflict to an end.”

If Palestine decides to accession to the Rome Statute, it should determine whether it can secure a veto from one of the five permanent members of the UN Security Council in case a Chapter VII Resolution is submitted. Because countries like the U.S., the U.K., and France are opposed to Palestine becoming a state, it is likely that a Chapter VII Resolution would be submitted, and if a veto cannot be secured, then there is hardly a point to accession.

Open Issues:

In July 2014, the Palestine Liberation Organization (PLO) announced that at the Committee on the Elimination of Racial Discrimination’s annual meeting in August, PLO would request that Israel be designated an apartheid state because of its policies and measures against Palestine. If Israel is labeled an apartheid state, would this cause countries to shift from opposing Palestine’s enlistment of the ICC to supporting Palestine’s enlistment?

If Palestine becomes its own state, like Hamas wants, what will happen to Israelis who live in the current territory, such as the West Bank? And if the ICC is granted jurisdiction by Palestine, but Israel remains in control of Gaza, can the ICC conduct a proper investigation?

 

Cheyenne Moore is a 2L at the University of Denver, Sturm College of Law, and Survey Editor for the Denver Journal of International Law and Policy.

Posted in 1TVFA Posts, 2Featured Articles, Cheyenne Moore, DJILP StaffComments (0)

Japanese whaling vessel

Critical Analysis: Australia and Japan head to the ICJ

From June 26th to July 16th the International Court of Justice (ICJ) will hear arguments from Australia and Japan over the dispute concerning Japan’s whaling program. This will be Japan’s first appearance as a party before the ICJ. The court proceeding began in 2010 and has so far cost Australia over $20 million dollars.

Australia and Japan are key trading partners and both countries have said that the ICJ is the appropriate forum for a dispute between friends; yet, it is believed Japan will defend their case by arguing that the ICJ lacks jurisdiction and that the Japanese whaling program is not a violation of international obligations because it is only for scientific purposes. The ICJ is known as the World Court and has dual jurisdiction – to resolve disputes in accordance with international law that have been submitted to it by States or to give advisory opinions at the request of the UN or other specialized agencies.

Australia maintains that this case falls under the first prong of the court’s jurisdiction. Australia believes Japan has breached its duty under the 1986 International Whaling Commission ban on commercial whaling by hunting the whales and labeling it a scientific program. Australia states that Japan has killed over 10,000 whales since 1988. In comparison, in the 31 years prior to the ban, only 840 whales were killed for research. Tension over this issue between the friendly nations has been building since 1999 when Australia named the Southern Ocean a sanctuary for whales. Australia holds strong to the position that commercial whaling should be outlawed.

Japanese whaling vessel

A Japanese vessel engaged in what Japan describes as scientific research (Jeremy Sutton-Hibbert)

Japan argues that their whaling program is for scientific research to prove commercial whaling is viable and therefore exempt under Article 8 of the International Convention for the Regulation of Whaling. Although the whales are killed for scientific research, the whales are brought back to Japan and sold for meat,which is why Australia believes the program is actually a commercial enterprise. Japan defends their right to whaling as part of a culinary tradition and cultural practice; however, whale consumption is significantly low in Japan and it is reported that 5,000 tons of unsold meat remains in storage.

Those who side with Australia note that scientific research on sustainable whale populations can be done without slaughtering the animals. Scientists can use listening devices to track the whales, locate them, and then attach satellite devices to learn more about their breeding and feeding behaviors and patterns. Asking the court to preserve the whales may seem like an emotional stance but a decline in the species affects the marine ecosystem and tourism connected with whale watching expeditions.

The ICJ has also permitted New Zealand to intervene in support of Australia’s position but the ICJ did not grant New Zealand status as a party to the case. Conversely, Norway and Iceland, which have commercial whaling programs, have not moved to intervene in support of Japan’s arguments that whaling is a cultural tradition. Not only is Australia arguing that commercial whaling should cease under the International Whaling Commission ban, but the Animal Welfare Institute has also cited that any attempts, including those by both Norway and Iceland, to sell whale products is banned by the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Iceland has one company that hunts fin whales and the only country it sells to is Japan. However, Iceland also allows for the hunting of endangered minke whales and has exported 3,000 tons of whale meat to Japan since 2006.

The final ICJ decision could impact Japanese public perception on the practice of whaling, which in turn may affect Iceland’s trade with Japan. The case is a large gamble for conservationist nations because the ICJ’s 16 judge panel decision will be final, binding, and with no appeal; the outcome could risk the lives of numerous whale populations. The Attorney-General Mark Dreyfus is hopeful that Australia will win the case and that the ICJ decision will come before the end of the year, preventing the next season of hunting. This case is one that all international and environmental lawyers should tune in for – the public hearings will be broadcast live on the International Court of Justice’s website at www.icj-cij.org/presscom/multimedia.php?p1=6.

Kristen Pariser is a rising 3L, a Staff Editor for the Denver Journal of International Law and Policy, and Executive Editor for The View from Above blog.

Posted in 1TVFA Posts, 2Featured Articles, DJILP Staff, Kristen PariserComments (0)

Revisiting jurisdiction over the Enrica Lexie incident

In my last post about the Enrica Lexie incident, I stated that under the United Nations Convention on the Law of the Sea (UNCLOS), Italy had excusive jurisdiction over the Italian military personnel who allegedly killed two Indian fishermen mistaking them for pirates. Roger Philips at Communis Hostis Omnium rightly pointed out that the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation (SUA Convention) contained some contradictory jurisdictional provisions. Upon a closer analysis of the relevant international law, it is clear that Italy and India have concurrent jurisdiction over the Italian armed guards.

The Enrica Lexie

India and Italy have both signed and ratified the 1988 SUA Convention requiring States Parties to criminalize the enumerated offences from Art. 3 in their domestic penal codes. Art. 3(1) lists performing “an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship,” as well as “injur[ing] or kill[ng] any person, in connection with the commission or the attempted commission of any of the [enumerated] offences.” The alleged actions of the Italian marines clearly implicate the SUA Convention.

SUA Art. 6 expressly allows for jurisdiction based on the territorial, nationality, passive personality, and protective principles. Thus while UNCLOS confers jurisdiction on Italy alone, the SUA Convention allows for India to claim jurisdiction under Arts. 6(1)(1) and 6(2)(2) and Italy to claim jurisdiction under Arts. 6(1)(1) and 6(1)(3). As a purely practical matter, jurisdiction falls to the country that reaches the alleged perpetrators first, subject to the principle of aut dedere aut judicare (“extradite or prosecute”).

Indeed, the facts of the Enrica Lexie mirror those from the famous 1927 Lotus opinion by the PCIJ where a French ship collided with a Turkish ship killing eight Turkish sailors on the high seas. The French captain was prosecuted in Turkish courts and the Turkish and French governments submitted the question of jurisdiction to the PCIJ. The latter held that, absent a relevant provision to the contrary, Turkish courts could exercise criminal jurisdiction over the French captain because the incident took place on the high seas and had a substantial effect on Turkey.

Art. 6 of the 1958 Geneva Convention on the High Seas, which says that all ships “save in exceptional cases expressly provided for in international treaties . . . shall be subject to [the] exclusive jurisdiction [of the flag state] on the high seas,” provided a provision contrary to the PCIJ’s holding in Lotus that was subsequently reflected in UNCLOS. The SUA Convention apparently provides for an express exceptional case anticipated by art. 6 of the Geneva Convention. To obtain exclusive jurisdiction over the Italian guards, Italy would have to convince India, through diplomatic channels, that the SUA Convention did not apply to the Enrica Lexie because the presence of armed military personnel on board made it a ship “operated by a State when being used as a naval auxiliary,” and thus outside the auspices of SUA pursuant to art. 2(1)(2) – a nearly impossible scenario.

So, as Douglas Guilfoyle points out on the European Journal of International Law’s blog EJIL Talk, whether the Italian marines will be indicted by the Indian authorities will be a question of sovereign immunity, not jurisdiction. Because the Italian guards were part of the military, they are considered a Vessel Protection Detachment (VPD) rather than a team of Private Armed Guards (PAGs). As a general rule, the former enjoys sovereign immunity while the latter does not. Professor Guilfoyle suggests that though it is ultimately up to the Indians to respect Italy’s sovereign immunity – and India will undoubtedly seek out exceptions it can use to overcome the immunity claim – the immunity claim will likely survive because the Italian guards were acting in their official capacity and state practice is such that “immunity is not lost in fatal injury cases even where a defendant’s conduct was: careless, reckless, involved excessive force, or was contrary to instructions.”

Despite the presence of concurrent jurisdiction, Italy will most likely have the ultimate responsibility for deciding whether or not to compensate the victims of the Indian fishermen’s families or punish its military personnel for its actions. Regardless of the ultimate outcome, the investigation must be transparent, as the question of liability is ultimately a factual one requiring the two competing stories of the incident to be reconciled. If such reconciliation reveals the case of mistaken identity described in my previous post to be true, the victims’ families should be compensated and the guards punished for their hasty and improper use of force.

Posted in 1TVFA Posts, 2Featured Articles, Jon BellishComments (12)


University of Denver Sturm College of Law

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