International Court of Justice Roundup

In connection with meetings at the Peace Palace (left) last week and the recent visit of Dame Rosalyn Higgins to Santa Clara, I had occasion to take a peek at the current docket of the International Court of Justice. The ICJ has entertained 150 cases since its inception in 1947. At the moment, 16 cases are pending on its docket—more than at any other point in history. I asked Judge Higgins about the more frequent resort to the Court and she credited several factors, including an increased faith in the ability of international law to resolve disputes, a recognition of the Court's ability to render just and efficient outcomes, and greater litigiousness generally.
Among the cases pending before the ICJ (another of whose judges, as we've posted here and here, will be in the Bay Area this week), we see:
► Frontier disputes:

• Territorial and Maritime Dispute (Nicaragua v. Colombia);
• Maritime Dispute (Peru v. Chile); and
• Frontier Dispute (Burkina Faso v. Niger).

► Cases invoking environmental law:

• Aerial Herbicide Spraying (Ecuador v. Colombia); and
• Whaling in the Antarctic (Australia v. Japan).

► Near and dear to my heart, are several cases involving international criminal law:

• Jurisdictional Immunities of the State (Germany v. Italy). This case involves the willingness of Italy to entertain civil claims arising out of WWII that Germany argues are barred by immunity doctrines and were waived in a web of post-war treaties. Greece has recently requested permission to intervene on the ground that its legal interests could be affected by the Court’s decision, because Italy is also accused of enforcing Greek judgments based on occurrences similar to those underlying the main suit. As we’ve blogged before, Italy's counterclaims against Germany were rejected on temporal jurisdictional grounds.
• Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). This case concerns Senegal's compliance with its obligations to extradite or prosecute the former President of Chad, Hissène Habré. As our readers will recall, after the African Union mandated Senegal to prosecute Habré “on behalf of Africa,” Senegal indicated that it would begin pretrial proceedings once it received the necessary international funding, which is estimated at $11.7 million. Donors met in November 2010 to consider the financing of the prosecution of Habré. For more on the case, see Human Rights Watch's coverage.
• A case squarely presenting the question of the legality of the exercise of universal jurisdiction (a question that was dodged by the majority of the ICJ on non ultra petita grounds in Arrest Warrant of 11 April 2000 (DRC v. Belgium)), was recently withdrawn by the parties. Certain Criminal Proceedings in France (Republic of Congo v. France).

► Cases involving claims of violations of territorial integrity and the prohibition on uses of force:

• Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
• Armed Activities on the Territory of the Congo (DRC v. Uganda), which remains pending.

► Human rights

• Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia);
• Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation); and
• Ahmadou Sadio Diallo (Guinea v. DRC), an expropriation case.

► Civil jurisdiction

• Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland), involving the enforcement of judgments under the Lugano Convention.

A final dispute that is hard to categorize (though I must admit that the word "petty" came instantly to mind) concerns the continuing fight over the use of the word “Macedonia” by the former Yugoslav Republic of Macedonia. Application of the Interim Accord of 13 September 1995 (Greece v. former Yugoslav Republic of Macedonia). Greece has jealously guarded the term, arguing that the former Yugoslav Republic of Macedonia, which declared its independence in 1991, harbors irredentist territorial ambitions toward Greece’s northern province of Macedonia.
In addition to these contentious cases, there is one matter invoking the Court's advisory jurisdiction. Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development relates to a complaint filed against IFAD on a terminated employment contract that went before the ILO.
Busy times at the ICJ indeed.

On December 8

On this day in ...
... 1970 (40 years ago today), the U.N. Security Council "strongly condemn[ed]" Portugal for its attack against Guinea 2 weeks earlier, mounted from the Portuguese colony of Guinea-Bissau. The attack caused "loss of life and extensive damage," according to Resolution 290. The Council insisted that Portugal compensate Guinea for these injuries, and urged U.N. member states not to provide Portugal with assistance in its military intervention. The vote on the resolution was 11 ayes and 0 nays. Abstaining were 4 countries: Britain, France, and the United States, all permanent Council members, plus Spain.

(Prior December 8 posts are here, here, and here.)

ICC Update: The Spotlight Remains on Africa

The ICC Prosecutor, Luis Moreno Ocampo (left), is has announced developments with respect to two new situations in Africa.

1. Kenya

As we blogged before, the post-election violence in Kenya in 2007-8—which led to the deaths of 1,300 people and displaced 300,000 more—has been the subject of international scrutiny. A Commission if Inquiry, headed by Justice Phillip Waki, recommended the establishment of a special tribunal to prosecute individuals responsible for the violence and generated a list of suspects that allegedly includes cabinet ministers, MPs, and businessmen.

Ocampo (right, meeting with Kenyan officials) had indicated that if Kenya did not go forward with such a tribunal, he would seek authorization to open a formal investigation from the Pre-Trial Chamber. This has now come to pass. On November 7, 2009, Pre-Trial Chamber II was re-constituted to accept Ocampo’s filing, which will likely be made in early December, and consider whether to authorize an investigation pursuant to Article 15(4). This would be the first Article 15 proprio motu investigation by the Prosecutor. The Kenyan press has reported that the Government may seek to forestall an ICC investigation by establishing the proposed special tribunal to try suspects in Kenya through a bill originally introduced by human rights activist and Imenti Central MP Gitobu Imanyara (the Constitution of Kenya (Amendment) Bill, 2009).

The Press Release issued by Ocampo is available here.

2. Guinea

The Prosecutor also recently announced that he was opening a preliminary investigation into violence across the African continent in Guinea (map left), which joined the ICC in 2003. Over 150 people were reportedly killed when members of the military attacked anti-government protests in the capital of Conakry in September 2009 (photo right, credit). At the time, over 50,000 people were protesting the decision by President Moussa Dadis Camara, who assumed power in a military coup, to run in the next election. The attacks included acts of sexual violence.

Human Rights Watch has reported that the massacre was premeditated by the Presidential Guard; the government has claimed any injuries were the accidental result of a stampede.

These situations, while serious, implicate the principle of gravity, about which we’ve blogged before (see here and here). Stay tuned …

Thank you, Miriam

As a child of the 1980s, I first heard the music of Miriam Makeba (left) after she performed with Paul Simon on his Graceland tour, but she became a household name when she appeared on the Cosby Show in 1991.

Her music is still a part of my daily life. "Pata Pata," Makeba's best-known hit (1967 video performance at the bottom of this post), happens to be a fabulous cha-cha. My dance partner and I have it in our favorite warm-up mix, and often argue about the song's interpretation. While it is a truly "fun" song, we disagree because she is actually listening to the music -- the playful, bouncing melody -- and I am listening to Makeba's struggle underlying it. I lose the argument every time, but Makeba's music truly expresses a myriad of emotions. As Nelson Mandela put it following Makeba's death last week:

Her haunting melodies gave voice to the pain of exile and dislocation which she felt for 31 long years. At the same time, her music inspired a powerful sense of hope in all of us.

While Makeba resisted being called an activist, she became a symbolic voice for the struggle against apartheid. Born in Johannesburg in 1932, Makeba began her singing career blending jazz and traditional South African music in the 1950s. In 1959, after starring in anti-apartheid documentary Come-back Africa, the regime revoked Makeba's citizenship. Thrust into exile, Makeba spent the following 31 years living between the United States, Guinea and Europe. Americans were comfortable with Makeba when her politics concerned South Africa. In 1963, during a period when her career flourished in the United States, Makeba testified without incident before the United Nations about the situation in her homeland, saying "the time had come for all mankind to act with firmness to stop those mad rulers from dragging the country into a horrifying disaster." But when Makeba married Stokely Carmichael, a black activist working with the leaders of the American civil rights movement, the American public turned their backs on her, despite Makeba's assertions that the relationship was not political. Her bookings were cancelled and her career ended in the United States -- until South Africa became a hot topic in the 1980s.

In a seeming dual exile, Makeba went to Guinea. She served as the country's UN Representative and won the Dag Hammarskjöld Peace Prize in 1986 for her work in this position. After another move, this time to Belgium, Makeba was finally able to return home to South Africa in 1990.

A citizen of the world, yet a citizen of nowhere, Makeba insisted:

I just told the world the truth. And if my truth then becomes political, I can't do anything about that.

This world, that punished her during most of her life for that truth, will always be indebted to her for it.