Where do Britain and France stand on aggression prosecutions?

By David Bosco

Back in 2010, the members of the International Criminal Court (and a significant group of non-members) convened in Kampala, Uganda to hash out one of the thorniest issues related to the court: whether and when it should be able to prosecute state leaders for committing aggression. That conference ended with an elaborate compromise that defined aggression and allowed the ICC to prosecute the crime in certain circumstances. The United States and other large non-members insisted successfully that they shouldn’t be subject to prosecution. If one important divide at the conference was between court members and non-members, another was between the permanent Security Council members and most other states. During the negotiations, the P5 mostly managed to keep a united front and insisted on preserving a Council role in any determination of aggression.

Almost five years after the Kampala conference, the focus has shifted to how many countries will ratify the aggression amendment and whether the ICC members will vote (as they must) to finally make it operational. To date, 22 countries, mostly small, have ratified (Malta and Costa Rica are among the most recent). Since thirty ratifications is a key threshold for the amendment going into effect, countries who have delayed their decision may soon need to hop off the fence. And that may be particularly difficult for Britain and France, the two P5 members who belong to the court. As they wrestle with whether to ratify the amendment, they’ll likely be tugged between competing identities and allegiances. As court members and European Union states, they have routinely touted the court’s virtues, defended its prerogatives, and encouraged other states to join. But they will no doubt feel significant pressure from their larger P5 brethren to maintain a united (and skeptical) front regarding the court’s role in adjudicating aggression. I expect the foreign ministry legal teams in London and Paris will have some tough meetings ahead.

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Did Greece just blink?

By David Bosco

Reuters is reporting that the Greek government has sent a new proposal to the European Union and International Monetary Fund, and it appears to be quite accommodating:

On the issue of minimum wages, for example, Prime Minister Alexis Tsipras’s government climbed down from election pledges to raise the level immediately. Instead it said it would phase in collective bargaining with a view to raising minimum wages over time and that any changes would be agreed with partners.

Greece also said it would reform the public sector wage system in a way that would not reduce pay further but would ensure that the overall public wage bill does not rise.

Athens also committed to consolidating pension funds to achieve savings, and eliminate loopholes and incentives for early retirement – in an apparent effort to find a compromise between the government’s objective of avoiding any further pension cuts as previously demanded by EU and IMF inspectors.

Athens sent the six-page document to its European Union and International Monetary Fund creditors late on Monday. They must approve the plans to pave the way for the four month extension.

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A way forward for North Korean accountability

By David Bosco

The members of the United Nations’ Commission of Inquiry on North Korea have been making the rounds in Washington this week. Led by former Australian judge Michael Kirby, the commission has had a notable impact. Its report, which called for the Security Council to refer the North Korean situation to the International Criminal Court, generated significant diplomatic and media attention. In lopsided votes, the UN Human Rights Council and the UN General Assembly endorsed its recommendation. For the first time ever, the UN Security Council placed the issue of North Korean human rights on its agenda. Perhaps most important, the commission’s work generated howls of outrage from North Korea itself.

The question of where all this energy and attention goes now is an important one. The commission’s mandate has expired. The door to the International Criminal Court appears to be blocked; referring the North Korean situation would require a Security Council resolution, a step that China and Russia would almost certainly block. Absent dramatic political change, the commission appears to have exhausted the routes to accountability for the crimes it describes.

There is one avenue left, however, that has received little attention. The UN General Assembly–and other parts of the UN system— have the power to request advisory opinions from The Hague-based International Court of Justice (ICJ). The General Assembly has done so several times, including on the legality of Kosovo’s independence declaration and Israel’s separation wall. Because the veto does not operate in the Assembly, no one state could block a request. The ICJ opinions that result from this process are technically non-binding, but they can be highly influential. Most important in this context, an ICJ advisory case would be a means of maintaining pressure on North Korea. Various states, international organizations, and civil society groups could file briefs with the court, which might help to develop and deepen the factual record on North Korean abuses.

An ICJ approach to North Korean abuses might have another advantage. In the last several decades, the focus of human rights and justice advocates has been almost exclusively on individual, rather than state, accountability. While powerful, this approach has its limits. An ICJ case that focused on the culpability of the North Korean regime as a whole, rather than on any one of its senior officials, could be a useful return to a more balanced approach to accountability.

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The many questions facing a Ukraine peacekeeping force

By David Bosco

The notion of an international peacekeeping force for eastern Ukraine is gaining some traction. In the wake of a humiliating withdrawal from Debaltseve, Ukrainian president Petro Poroshenko explicitly called for such a force this week. Via the BBC:

President Petro Poroshenko has called for UN peacekeepers to be deployed to eastern Ukraine to enforce a ceasefire.

At an emergency security meeting, he said such a force would help guarantee security “in a situation where the promise of peace is not being kept”….

“The issue was discussed and a decision has been taken to appeal to the UN and the EU concerning the setting up in Ukraine of a peacekeeping and security operation,” council secretary Olexander Turchynov told reporters.

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How the Security Council could unplug an ICC Palestine investigation

By David Bosco

More than a month after Palestine moved to join the International Criminal Court, the issue has now mostly faded from the headlines. More quietly, however, key actors are jostling for position. On January 16, the ICC prosecutor announced that she was opening a “preliminary examination” of the situation in Palestine. On January 29, more than seventy U.S. Senators urged President Obama to consider cutting off aid to Palestine as punishment for its ICC gambit. Meanwhile, the Palestinian Authority has reportedly created a special committee to handle its interactions with the court and to coordinate complaints against Israel.

For the moment, though,  one actor that could dramatically alter the justice landscape has not stirred–the United Nations Security Council. The Rome Statute gives the Council the power to defer an ICC investigation for up to a year, and the Council can renew that deferral indefinitely. As far as I can discern, there is no discussion at this point in diplomatic circles about Security Council action. And that makes sense. Everyone is struggling to figure out what the Palestinian move means and what steps the prosecutor will take now. Until the situation is clarified, there’s little reason for Council diplomats to stir.

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Why should only the P5 have an obligation to act on atrocities?

By David Bosco

For several years now, French diplomats at the United Nations have been seeking to create a new norm of behavior on the Security Council. Specifically, they have argued that the permanent members should accept an obligation not to veto measures designed to prevent atrocities. Stewart Patrick of the Council on Foreign Relations elaborates some of the key problems with the initiative:

First, proponents must decide the criteria to determine when the threshold for “mass atrocities” has been crossed—and who gets to make that determination. Inasmuch as any violent conflict is, sadly, likely to include some atrocities, there should presumably be at least some rule of thumb for when the RN2V principle kicks in. Is it a question of body count? Of the stated intent of perpetrators? There should also be provisions for decision-making when the P5 disagree. The initial French proposal would give the secretary-general such authority. This is legally innovative but problematic. The secretary-general is not a judge and it is unclear whether (s)he has (or should be given) the standing to make this determination.

Second, proponents must persuade skeptics that the “vital national interest” caveat is not a crippling loophole that P5 states can casually invoke. In the case of Syria, it could be argued that Russia and China have already defined coercion against the government of Bashar al-Assad as contrary to their national interests. From Moscow’s perspective, the Security Council’s failure to act in Syria is not evidence of its failure but of its working as intended, by allowing permanent members to veto coercion that is contrary to their perceived interests.

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A new Cold War? Not judging by the Security Council

The Security Council chamber (UN Photo)

The Security Council chamber (UN Photo)

By David Bosco

Earlier this month, the UN’s Department of Political affairs put out a survey of Security Council activity in 2014. The report contains several interesting nuggets, but the most consequential might be evidence that the Council’s activity levels increased actually last year, at least as measured by meetings and resolutions. Even as relations between Western members and Russia, in particular, have soured, the Council has kept up a healthy pace.

The Council met a combined 430 times during the year, the most since 2010. It passed 63 resolutions, the highest total since 2011. (Just over half of these resolutions employed Chapter VII of the Charter.) Permanent members employed only two vetoes (related to Syria and Ukraine) during the year, and the vast majority of resolutions passed unanimously. Those two nyets (both involving Russia) ended a year long run without vetoes, but the total was not a departure from post-1990 trends; there were two or more vetoes in 2012, 2011, 2006, 2004, and 2003. During the year, the Council authorized one new peacekeeping mission–in the Central African Republic–and tweaked the mandates and structure of several others. Per usual, Africa dominated the Council’s agenda; more than 50 percent of meetings were devoted to issues on that continent.

The Ukraine crisis, tension over Syria, and jostling between China and others in East Asia has produced plenty of speculation that a new Cold War (or multiple Cold Wars) are brewing. The real Cold War had a dramatic impact on the Council; vetoes were frequent and the Council’s activities were severely constrained. If current activity levels are a meaningful indicator, tensions are nowhere near that level. For all their differences, the P5 have maintained cooperation on a wide range of security issues. The enormous increase in Council activity that the end of the Cold War prompted continues, with no sign that it will end anytime soon.

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Keep China out of the TPP party (for now)

By Sarah Cleeland Knight

Free-traders in Washington believe that 2015 may finally be the year that the United States and 11 Asia-Pacific countries finish negotiating the Trans Pacific Partnership (TPP).  We won’t know the details of the agreement until the Obama administration formally presents it to Congress, perhaps as soon as March.

guest post logoBut we know one crucial feature of the agreement:  China won’t be one of the countries taking part. From an economic perspective, this is puzzling. If the free-trade arguments behind TPP are right, adding China would be an enormous boost. Its participation would further liberalize the $500+ billion US-China trade relationship and create more wealth and jobs in both the United States and China. Chinese officials have signaled that they might be open to joining.

But from a political perspective, there are at least three good reasons why China shouldn’t be a part of the TPP, at least not yet.

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Beyond the Paris Attacks and Rally: What should happen next?

By David Kaye

It takes a certain amount of audacity for people to go into the streets after the attacks we saw this week on the Charlie Hebdo staff, Jewish shoppers before the Sabbath, and the police. I’m awed by the hundreds of thousands who participated in today’s rally in Paris in support of . . . well, in support of any number of legitimate and important things. Freedom of expression, I would hope, is that the top of the list: freedom to express all kinds of views, political, religious, artistic, and otherwise.

The coming weeks will almost certainly see a kind of forceful effort to tighten counter-terrorism cooperation internationally and close domestic bureaucratic and legal gaps that allowed the terrorists in France to kill their victims. (That also allows the security officials to say, ‘if only we had this power, we could have stopped the attacks,’ which is nonsense.) Anyway, the point I want to make is this: responses to the Charlie Hebdo and Hyper Cacher attacks should focus on attacks on free expression as much as they focus on improving counter-terrorism approaches.

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What Ebola tells us about the World Health Organization

WHO Director-General Margaret Chan (WHO/Pierre Albouy)

By Mike Schroeder

Speaking to African member states late last year, Dr. Margaret Chan, the director-general of the World Health Organization (WHO), accused the world of tolerating “long-neglected health systems” while singling out a “profit-driven industry” for not investing in Ebola vaccines earlier. Dr. Chan’s speech was a reminder that WHO officials can use the bully pulpit to mobilize the international fight against pandemics. But the speech was also a step toward restoring the organization’s shaken credibility after its response to the ongoing outbreak.

Last April, Doctors Without Borders International (MSF) prodded the WHO to declare an international health emergency and mobilize the resources to track and contain Ebola and treat those already infected. Far from sounding the alarm, the organization’s regional office did not officially declare an emergency until August. Even then, the WHO insisted it was a technical agency that would not play a lead role in the response. The result was a series of reports (see examples here, here, here, here and here) critical of the organization’s preparedness. UN Secretary General Ban Ki-moon felt compelled to create a new UN Ebola mission that is taking on leadership and coordination tasks previously expected of the WHO.

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