For my own use, I created an ICL search engine that used Google to search all of the different Tribunals at once – but this would only be effective while the sites kept their current structure.

Thankfully, the ICC this week re-launched their Legal Tools website, providing a new and better place to do ICL research.

Legal Tools is a comprehensive resource of international criminal case law, and relevant international and domestic material. It contains judgments from all the major international Tribunals, going back to Nuremberg and Tokyo; relevant international legal instruments and decisions; and relevant legislation and cases from domestic jurisdictions. Also, it doesn’t require registration, you just agree with the terms and conditions and you have full access to either search or browse the database.

Of course it isn’t perfect. At times it feels a bit clunky, it certainly isn’t at a Google-level of sophistication. The results are often limited by the format of the source database – which can sometimes mean non-text PDFs. And some sources can’t be clicked through to due to copyrights issues.

But it does look like it will be a fantastic resource. The advanced search particularly looks to be a very powerful tool for specific searches of international criminal law. It’d be nice if the results were more friendly to Google, so that you could run a typical Google search over the database – but hopefully that’s something for the future, this could be a great addition to Google Scholar.

Transparency and accessibility of the law is crucial to the legitimacy and efficiency of the Tribunals. Access is currently at an barely usable level, and things definitely could be better. The ICC Legal Tools is a significant step in the right direction and it’ll be interesting to see where things go from here. We’ve seen increasing demands for domestic transparency in governments, let’s hope this also is reflected on the international level soon.

ICC Legal Tools: Researching international criminal law is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

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Alex makes some excellent points about the meaningless nature of this target. It was set over three decades ago, wasn’t based on any actual assessment of money needed, and current estimates put the actual required global ODA flows at far lower. And I agree that 0.7 isn’t entirely relevant except as a rhetorical tool for motivating governments to give more.

I think what Alex’s post stands for the strongest is a real need for investigation into how much money is actually needed, and ways to spend the money that actually make a difference. The UN target remains as a powerful burden on our governments who fail to live up to their agreement to convince us why their spending is adequate and well placed.

If the world is ready to move on from 0.7%, and I think clearly we are, then we need to establish what the new benchmark will be and this time actually live up to it.

Why are we holding governments to the 0.7% GNI aid target? is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

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I’ve previously written about the problems with international tribunals such as the ICTR being too ‘internationalised’, serving the international community at the expense of victims and effected communities. However, what James’ posts shows is the danger of bad local involvement and how beneficial a truly independent, international institution can be. The Cambodian government has wide powers over the work of the ECCC, making it difficult to do its work properly and independently. This has currently meant, for example, that the only people being prosecuted are those the government is comfortable being put in front of the Court.

Hypothetically, the ICC is meant to be something of a remedy to this problems of interference and partiality. Whether or not it will be used in this way remains to be seen.

Corruption at the Extraordinary Chambers in the Courts of Cambodia is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

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UN bureaucracy begins at the entrance is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

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Universal Human Rights Index of UN Documents is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

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UN Audiovisual Library of International Law is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

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My argument began its life around the question of the legality of art 13(b) of the Rome Statute. That is the provision that triggers ICC jurisdiction upon Security Council referral. I had encountered what looked like some people saying art 13(b) empowered the Security Council to act, or at least questioned its legality, so thought it would be good to explore exactly how this article operates.

However, about halfway through it became pretty clear that no-one can honestly think that art 13(b) operates to empower or limit the Security Council. Principles of treaty interpretation, art 103 of the UN Charter, etc, all clearly demonstrate that the only way to limit Security Council power is by explicit amendment to the UN Charter.

Since I couldn’t find anyone explicitly laying out as such, I decided it was worth it to use all the research I had done and spent about 1,000 words detailing the limits of art 13(b), before proposing the obvious solution that art 13(b) empowers the ICC upon Security Council referral. Ultimately, the difference may seem semantic, in that if the ICC is to be empowered technically the referral has to meet art 13(b) requirements, but I think its good to have a clear delineation of powers in international law.

Though there are some interesting questions surrounding how this effects ‘imperfect referrals’ – which arguably Res 1593 could be described as one, with its exclusion of certain peoples from ICC jurisdiction. I touched on this briefly, but didn’t have the words to do it justice.

Instead I spent the remainder of the essay discussing what this shows us about the fragmentation of international law. I focused particularly on the non-hierarchical nature of international law and the implications of this when creating new institutions. I also looked at the United States using the primacy of the Security Council to undermine the ICC via resolutions.

I concluded with fragmentation being bad. Undermine new institutions and creating overlapping norms and obligations for States to abuse.

We shall see what they think!

The ICC and the Security Council Referral Power is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

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I wonder though about this section:

The President of the ICC, Philippe Kirsch, and the then Secretary-General of the UN, Kofi Annan, each representing his institution, finally signed this agreement on 4 October 2004. This came after both the Assembly of States Parties of the ICC and the General Assembly of the UN had approved the draft agreement, respectively on 7 and 13 September 2004. Article 2(3) of this Agreement commits both the UN and the ICC to respect each other’s status and mandate. One could therefore argue that all member states of the UN are bound by this agreement, which obligates them to respect the provisions of the Rome Statute. While this Agreement does not establish a direct ICC jurisdiction over UN members, it implies the acceptance, by the UN, of the provisions of Article 13(2) of the Rome Statute. Should the UN Security Council therefore refer to the ICC the situation arising from events in a member state, such as Sudan, in accordance with this prerogative it has accepted in the Rome Statute, that state has to respect and abide by that referral because of its membership of the UN.

I would be doubtful about any attempts to interpret the Realtionship Agreement as a source of binding law on UN member states. First, I’m not sure “respecting” the status and mandate of the Rome Statute requires full co-operation with the ICC.

Second, and more importantly, the agreement seems to be more akin to a relationship between two international legal institutions as opposed to an agreement between their members. As the UN and ICC have separate legal personality from their member States, they can enter into agreements binding on the institutions without impacting directly the rights and obligations of their members. The terms of the UN-ICC Agreement seem to relate much more to the institutional relationship.

That isn’t to say that UN members don’t have to abide by the referral, the broad powers the Security Council has under Chapter VII allows it to bind UN members in precisely the way it did in the referral. Though a somewhat novel exercise of Security Council power, it has tangential precedent in the establishment of the ICTR and ICTY.

Perhaps more interesting is how the Prosecutor is meant to exercise its power under the referral, given that the Security Council resolution doesn’t conform exactly to the requirements of the Rome Statute. Are the non-conforming aspects severable? Additionally, did Rome Statute signatories break their good faith duty to the ICC by voting for this problematic resolution?

More on Security Council Referral to the ICC is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

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Recommended BBC World Service Podcasts is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

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Britain and France say privately that the lines of communication with Khartoum are nearing total breakdown. The Sudanese authorities are blocking the work of the 11,000-strong Unamid peacekeeping force and have not handed over two other ICC suspects – government minister Ahmad Harun and militia chief Ali Kushayb – for whom arrest warrants were issued last year.

This is always the danger with pushing for judicial resolutions to conflict, while the person who will be prosecuted is in power. Prosecutions create disincentives for them to continue negotiating or compromise their position. The better choice for them, since everyone thinks they are war criminals anyway, is to stay in office, in country, as long as possible and to keep rorting the system.

Of course, that’s not necessarily an argument against the ICC Prosecutor intervening in all circumstances. Theoretically, if people know they are liable to be prosecuted then they have a greater incentive not to break international law in the first place; and it may reign in their worse instincts. Of course this depends on people expecting the ICC to actually prosecute them.

But Steve Crawshaw of Human Rights Watch said bargaining with justice will permanently undermine the ICC’s credibility and independence. ‘The idea that you can do deals on justice is both short-sighted and a shocking moral abdication on Britain’s part. It can only be damaging to the court.

‘Justice is not a tradeable option. We have seen again and again that Sudan makes empty promises. To think that Sudan is likely to act in good faith is either naive or cynical,’ said Crawshaw.

I think what Crawshaw misses in the above quote is that in some cases justice is a tradable option. Sometimes it is better to get peace sooner than keep pushing for ‘justice’ (that is in the way the word is being used here). The ANC was forced to do so in South Africa and opted for ‘reconciliation’ over a judicial option and Rwanda’s obsession with ‘justice’ is causing massive human rights violations for the 100,000 accused languishing in prison.

Though I think the two key issues in this instance is, first, the dithering of the Security Council Members over the right course of action to take – the back-and-forth between prosecuting/not-prosecuting does not bode well for expectations of international prosecution; and second, understanding pacing issues and when pursuing ‘justice’ works with the peace process and when it is better to wait.

Kevin Heller at Opinio Juris has more.

Moves to stop ICC prosecution of Bashir is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

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