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January 2, 2013

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Drug Trafficking, International Court of Justice, Law of the Sea

A Note On The ICJ Judgement In NICARAGUA v COLOMBIA and its relevance to International Crime and Criminal Law

Written by: Professor Steven Haines[1]

On 19 November 2012 in The Hague, the International Court of Justice (ICJ) handed down its Judgement in the case between Nicaragua and Colombia concerning the two States’ dispute over territory and maritime jurisdiction in the south-western region of the Caribbean.[2] The following day, Claire O’Neill McCleskey posted an article on the InSightCrime website in which she raised the possibility that the Court’s decision would have negative consequences in relation to the combating of serious crime in the region.[3]   What was it about the case that prompted this immediate reaction – and was that reaction justified?  Indeed, are there any international criminal law consequences of the Judgement?  The aim of this note is to provide a brief account of the case, its background and the manner in which the Court dealt with it, and to follow that up with some comment on whether or not there are likely to be significant consequences in relation to international crime and criminal law.

Background to the Case

The case was initiated by Nicaragua in December 2001.  Seventy-three years earlier, the 1928 Barcenas-Esguerra Treaty had dealt with issues of sovereignty of islands in the region and for some time after that there was no obvious dispute between the two States.  There were certainly no maritime boundary issues because, in 1928, the only cause for such would have been a dispute over overlapping claims to three nautical mile territorial seas; the islands were so far offshore (over 100 nautical miles) that this was simply not an issue – or regarded as potentially so.

On the basis of its interpretation of the 1928 treaty, Colombia exercised sovereignty over several islands that were in very much closer proximity to the Nicaraguan coast than they were to Colombia’s.  Three island groups in particular – San Andres, Providencia and Santa Catalina – were habitable islands that were expressly dealt with in the 1928 treaty.  Today they are important tourist destinations in the region.  San Andres (pop: 70,000) is just over 100 nautical miles from the Nicaraguan coast, while Providencia (pop: 5,000) and Santa Catalina are about 50 nautical miles to the north east of San Andres and about 125 nautical miles from the Nicaraguan coast.  All three islands are in the region of 380 nautical miles from the Colombian coast.  Two other physical features located to the north of San Andres, Providencia and Santa Catalina – Quitasueňo and Serrana – are very low lying, uninhabited banks or cays that were not expressly covered by the provisions of the 1928 treaty but which Colombia has always since then regarded as its territory.  There was, though, some doubt as to the extent to which Quitasueno remained dry at high tide, a factor that the Court was required to consider.  If it remained above sea level at high tide, it would be classed as an island and would generate a territorial sea – although almost certainly not an EEZ, as to do so it would need to be able to sustain human habitation or economic life under Article 121(3) of the 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS).  If it was submerged at high tide it would not qualify for island status, would not be appropriable as sovereign territory, and could not, therefore, generate a territorial sea or any other jurisdictional zone.

At the time the 1928 treaty was negotiated, the potential for substantial resource exploitation in the waters between the two States had not been a consideration and had not influenced the terms of the treaty. The islands claimed by Colombia generated a three mile territorial sea but Colombian sovereignty over them had relatively little geo-political, legal or, indeed, economic, impact on the region.  As the resources of the continental shelf emerged as a significant factor shaping the law of the sea in the second half of the twentieth century, however, the terms of the 1928 treaty increasingly came to be seen by Nicaragua as disadvantageous. Colombian sovereignty over the islands would have substantial impact as newly extended coastal state jurisdiction was established.  The location of the islands had the potential greatly to restrict the extent of Nicaraguan continental shelf and exclusive economic claims while at the same time giving Colombia a disproportionately large area of jurisdiction.  Nicaragua came to regard the situation as inequitable in the new era of extended jurisdiction and maritime resource exploitation, especially given the fact that the islands at the heart of the dispute were three times as distant from the Colombian mainland as they were from the Nicaraguan.  The latter began to challenge Colombian sovereignty of the islands. The result was that the claims of both States to continental shelf and exclusive economic jurisdiction overlapped significantly and the dispute intensified as the potential for economic exploitation increased.

In very general terms, this is the historical background to the dispute (more detail can be found in the Court’s Judgement and in the papers presented by both sides during the case.) Nicaragua took the case to the ICJ confident that the Court would award it sovereignty over key islands.  It then expected the Court to define a maritime boundary using Nicaraguan sovereignty of the islands to establish its continental shelf and exclusive economic zone (EEZ) in substantial areas previously claimed by Colombia.  Colombia, on the other hand, while reluctant to place the dispute with the Court, was anticipating a rejection of Nicaraguan claims for sovereignty over the islands, which it assumed would leave the Colombian claimed continental shelf and EEZ largely intact.

The Progress of the Case and the Court’s Judgement

The Court took seventeen days short of eleven years to reach its Judgement. One might ask why it took so long.  The answer lies in a combination of procedural requirements, the need for the Court initially to consider its own jurisdiction before moving on to the merits of the dispute itself, and technical complexities.

Following Nicaragua’s filing of its Application in 2001, there followed the usual promulgation by the Court of deadlines for the submission of the Nicaraguan Memorial and the Colombian Counter-Memorial; these were set for April and June 2003 respectively.  In July 2003, however, Colombia raised preliminary objections as to the Court’s jurisdiction and the proceedings on the merits were duly suspended.  Public hearings on the preliminary objections were held in June 2007 and the Court handed down its judgement on these in December that year.  With one important exception (see below), it concluded that it did have jurisdiction to adjudicate on the dispute.

Colombia was then given a new deadline of 11 November 2008 to submit its Counter-Memorial on the merits.  This was met and there followed a further round of deadlines for a Nicaraguan Reply (18 September 2009) and a Colombian Rejoinder (18 June 2010).  Public hearings on the merits were eventually held between 23 April and 4 May 2012, with the Judgement handed down six months later.

Maritime boundary disputes are frequently complicated by technical factors and this was certainly true in this case, in which hydrographic evidence concerning maritime features and tidal effects was submitted to the Court by both parties. Their representatives in the proceedings included both legal counsel and scientific and technical advisers, and each party challenged the other’s scientific and technical methodologies in the process.  The principal technical issues in focus in relation to the question of sovereignty were to do with whether or not certain physical features qualified as islands or cays, or were merely raised banks that only dried at some point below high tide. The precise physical characteristics of the features and of the tides that affected them were important in determining whether or not it was possible for either State to claim them as territory and whether they would then, as a consequence, generate extensions of coastal state jurisdiction (territorial jurisdiction, exclusive economic jurisdiction, or jurisdiction over the continental shelf).  Following the determination of sovereignty, further technical details were to do with the construction of the single maritime boundary delimiting the two States’ continental shelves and EEZs.

While the time taken to reach the Judgement following Nicaragua’s initiation of the case may appear unduly excessive to those unfamiliar with the ICJ’s proceedings, it was by no means unusual, and the technical issues were also complex.  The time was necessary for all of the details of the case to be thoroughly researched and presented and then analysed by the Court.

Nicaragua submitted the dispute to the ICJ to achieve two objectives: first, a ruling that it has sovereignty of various islands and cays located between Nicaragua and Colombia; and, second, the delimitation by the Court of the maritime boundary between the two States.  One can see that Nicaragua wished to be granted sovereignty of certain islands in order to maximise the extent of its continental shelf and exclusive economic zone – the islands having a potentially significant influence on the extent of the resource zones that would be partially generated by them.

While the case was reasonably complex at the technical level, we need only briefly state its outcome.  The result was somewhat unexpected from the point of view of both parties.  To start with, the Court had concluded in its Judgement on Colombia’s Preliminary Objections that it had no jurisdiction to consider Nicaragua’s claim to the islands of San Andres, Providencia and Santa Catalina because sovereignty had been determined in Colombia’s favour by the 1928 treaty.  In effect, it was ruling in favour of Colombian claims to sovereignty over the islands.  It also confirmed Colombian sovereignty over various other islands, including Quitesueno and Serrana.  What it then went on to do was acknowledge the need, for reasons of equity, to grant no significance to Quitesueno and Serrana in relation to delimitation of the continental shelf or EEZ.  While Colombia has the right to a 12 nautical mile territorial sea around these islands, it has no prospect of relying on them to generate either a continental shelf or an EEZ. The islands were effectively left as Colombian territorial enclaves within the Nicaraguan continental shelf and EEZ.  While welcoming the Court’s decision over sovereignty, Colombia effectively lost the case in the final analysis because of the extensive sea area (approximately 30,000 square miles of ocean) it lost as a result of the ruling.

The Impact of the Case on International Crime and Criminal Law

It must be said that on first reflecting on this case, it appears to have no substantial relevance to international criminal law at all.  As already explained, it was to do with rival maritime claims that, while producing tension, had not previously resulted in the parties to the dispute resorting to force.  One narrow definition of ‘international criminal law’ is that implied in the Statute of the International Criminal Court (ICC), which has jurisdiction over genocide, war crimes, crimes against humanity and aggression. Unless war were to break out between the two States, it is virtually impossible to imagine circumstances in which the case would have relevance to ICC-based criminal law.

Both Nicaragua and Colombia have accepted the Court’s Judgement, although the latter feels aggrieved by it.  Apart from initially challenging the ICJ’s jurisdiction, Colombia has subsequently been highly critical of its ruling.  Colombian president, Juan Manuel Santos, declared on 28 November that the Judgement was ‘unjust and erroneous’ and announced that his government would ‘no longer recognise the World Court in border disputes’.[4] He went on to say, however, that Colombia’s ‘emphatic rejection’ of the resultant maritime boundary would not result in any extra-legal action; it will only rely on international legal processes to challenge it.  It must be said that it is difficult to imagine what legal processes Colombia now intends to resort to.  The ICJ’s Judgement is final and there is no avenue for appeal against a Court Judgement, which is legally binding on the parties.  Despite post-Judgement rhetoric, Colombia has so far not acted irresponsibly in relation to it and remains within the law.  On current assessment, its disappointment with the Judgement seems unlikely to cause the dispute to rumble on, and certainly not to the extent that force will be deployed (which would raise questions concerning aggression and the application of the law of armed conflict/international humanitarian law).  We can reasonably hope that the dispute has been resolved peacefully and that both parties will respect that.

We can also reasonably rule out the possibility of this case having any relevance to ICC-based international criminal law.  If, however, we adopt a broader definition of what constitutes ‘international crime’ there is at least a suggestion that the Judgement has consequences.  A broader definition arguably includes all serious crimes having a significant international dimension.  Given the international nature of the oceans, crimes committed at sea will almost invariably have potentially significant international dimensions.

One group of crimes with profound international consequences is to do with the manufacture, sale and trafficking of illicit narcotics.  These activities are a seriously worrying feature in the Central American/Caribbean region, with Colombia itself a major source of illicit narcotics, with cartels like the Medellin, Cali and Norte del Valle extensively engaged in the production and export of drugs into North America, using maritime routes through the region.  It was the narcotics problem in the region that prompted McCleskey to post her article and to ask whether the Court’s ruling would be ‘Good news for drug traffickers’.  Her interjection was perhaps a little surprising, but it clearly demands some consideration, at the very least.

Unfortunate Consequences for Law Enforcement?

The thrust of McCleskey’s article was that the substantial reduction in the extent of Colombia’s maritime jurisdiction and consequential increase in Nicaragua’s, combined with the latter’s relatively weak navy, would undermine efforts to combat the narcotics trafficking activities of drugs cartels operating out of Colombian territory and using the waters off Nicaragua to traffic narcotics from Colombia to the United States (see map below).  A key consideration is that a number of criminal groups operating out of Colombia have recently been using sea routes through the San Andres islands.  This activity has been targeted by the Colombian navy but, McCleskey suggests, Colombia’s loss of jurisdiction over waters very close to the islands will undermine these efforts.  To quote from her article:

‘……the withdrawal of the Colombian Navy, from what are now Nicaraguan waters, may benefit drug traffickers operating in the region, among them the Revolutionary Armed Forces of Colombia (FARC) and the Urabenos, due to the comparative weakness of the Nicaraguan Navy. Colombia…..has a large, modernized navy, while Nicaragua’s navy is small and relatively low-tech.’

intersight

Source: www.InSightCrime.org

According to The Economist newspaper, in an article published on 8 December 2012, ‘Nicaragua celebrated (the Judgement) by dispatching ships to patrol its new waters. “By now [the navy has] established sovereignty in that whole territory,” said Daniel Ortega, its president’.  This comment was from an article that also included the map below.[5]  That map, as well as the title of The Economist article, makes reference to Colombian (and ‘former Colombian’) ‘territorial waters’.  When coupled with the quote from Daniel Ortega, in which he refers to the Nicaraguan navy having established ‘sovereignty in that whole territory’ judged by the ICJ to be within Nicaragua’s continental shelf and EEZ, an uninformed reader may gain the wholly erroneous impression that the waters in question now have the status of Nicaraguan territory.  The same impression is gained from a reading of McCleskey’s article on the possibility of the Court’s ruling advantaging Colombian drug cartels and those trafficking their wares.  The two articles reinforce each other’s fundamental misunderstanding of the juridical status of the waters subject to the ICJ’s Judgement.

The Economist

Source: The Economist, 8 Dec 12

The impression that may be gained from the two articles and the manner in which they have been presented is that law enforcement activities targeting drugs traffickers in the region will be significantly affected by the Colombian navy’s inability now to operate in those waters affected by the dispute before the ICJ.  This, to put if very simply and starkly, is just plain nonsense.  The authors of these two articles seem to lack an adequate level of understanding of the juridical nature of the waters in question.  The legal or juridical status of the waters is as continental shelf or EEZ.  These are both resource zones whose legal significance is restricted to activities of an economic nature.

There is absolutely nothing in the law of the sea preventing the Colombian navy operating throughout this region up to, but admittedly not within, the outer limit of the Nicaraguan territorial sea (which is a mere 12 nautical miles from the Nicaraguan coast).    Maritime law enforcement operations are not affected by the range of rights and obligations contained in the 1982 UNCLOS, the instrument that is the formal source of both continental shelf and exclusive economic jurisdictions.  The existence of neither continental shelf nor exclusive economic jurisdictions results in rights or obligations that significantly curtail naval operational activities.  Navies do have to operate taking into account the rights of those vessels engaged in legitimate resource exploitation activities, within both jurisdictions, but the chances of navies’ obligations in this respect resulting in any serious undermining of their ability to conduct drug interdiction operations are virtually nil.  The relevant parts of 1982 UNCLOS are also now widely recognised as forming a part of the customary international law of the sea and are, therefore, binding on all States – even those that are not themselves party to the convention.  Colombia has the right to deploy its navy up to the limits of the Nicaraguan 12 nautical mile territorial sea and, in order to give meaning to that right, Nicaragua is under a correlative obligation not to prevent it doing so.  The waters above the continental shelf and forming the EEZ are, for non-economic purposes, to be regarded still as having the status of the high seas.

Closing Remarks

One of the most worrying issues within the law of the sea at present is the potential for coastal States to assume rights and to impose obligations on others that are no part of the consensus arrangements that were codified in 1982 UNCLOS.  That convention was a package deal that balanced the extension and enhancement of coastal state jurisdiction with the freedom to use the high seas for navigation and other legitimate activities.  The suggestion that navies should remove themselves from other States’ areas of continental shelf jurisdiction or EEZs serves profoundly to undermine that balance and the pattern of rights and correlative obligations that define zones of maritime jurisdiction.  Statements, such as that made by President Ortega to the effect that the Nicaraguan navy had secured the new ‘territory’ granted to Nicaragua by the ICJ, are arguably irresponsible political rhetoric; they are arguably also deserving of some measure of challenge from other States.  When respectable internationally renowned publications like The Economist fail to use the correct terminology when describing issues of this nature, there is also a need for their errors to be highlighted; if they are not they may add to the gradual spread of erroneous assumptions about vital rights and obligations at sea.

This ICJ Judgement should in no substantial manner adversely affect the way in which the Colombian navy goes about its lawful business interdicting illicit narcotics traffickers in the waters of the south-western Caribbean.  Indeed, there may even be some hope of enhanced cooperation in the region now that this dispute is legally settled.  Both Colombia and Nicaragua have clear national interest in putting an end to this traffic through their waters – and the United States also has a major interest in supporting them both.  Perhaps now that the territorial and maritime boundary dispute is resolved, a responsible diplomatic approach by the US to bring the two parties together in a spirit of cooperation will see drug interdiction improved in these waters.  In resolving the dispute, the ICJ has probably done much to stabilise and normalise relations between Nicaragua and Colombia.  In the long term, far from benefiting the drugs cartels, this Judgement may well serve to create the conditions for a further curtailing of their activities.

[1]  Professor at University of Greenwich, United Kingdom

[2]   Territorial and Maritime Dispute (Nicaragua v Colombia), Judgement, 19 November 2012.

[4]   See article by Associated Press ‘Colombia’s president: We will no longer recognize World Court in border disputes’ at www.todaycolombia,co/2012/11/29

[5]    ‘An islet for a sea: Colombia smarts from a loss of territorial waters’, The Economist, 8 December 2012.

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December 1, 2012

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International Tribunal, Law of the Sea, Piracy

Danger on the High Seas: Piracy in the Modern Setting and its impact on the Phillipines

Written by: Ruben Ayson[1]

Maritime piracy is a growing global issue today. Eugene Kontorovich of the Northwestern University Law School has characterized modern piracy as an “epidemic.”[2] Until two decades ago, piracy was not seen any more as a menace to international shipping. It has unfortunately come back to haunt us, this time not as the pirates of days past but equally in a very violent way, using modern means and methods to the extent that it has become today a major source of concern for crews, ship-owners, insurers, coastal communities and concerned international organizations. The new face of this historic crime exacts worldwide human and financial costs, and poses an existential challenge to the piracy laws developed throughout the centuries. As with ancient civilizations fighting for survival against the pirate scourge,[3] the proliferation of piracy today poses drastic economic and security threats to many nations.

Piracy today includes new tactics employed to carry out a crime predating recorded history. Speedboats and automatic rifles, rather than frigates and swords, recently became the pirate’s weapons of choice.[4] While looting cargo or stealing ships outright remain standard practice, Somali pirates today also kidnap sailors for ransom.[5]

The modern pirate is different from his historical counterpart in many ways. Modern pirates have adapted to the globalized world in terms technical, political, economic, and social developments. In truth, “today’s pirates are considerably more sophisticated than their counterparts of yesteryear.”[6] Today’s pirates make use of the modern technologies that are available to them. They strategically plan each attack with the help of publicly available information about their target. They “often carry satellite phones, global positioning systems, automatic weapons, [and] antitank missiles.”[7] Some pirates now hijack “mother ships,”[8] which they use as bases from which to launch attacks against other vessels up to more than 1,000 miles from shore using “rocket-propelled grenade[s], ladders and extra barrels of fuel.”[9] The use of modern methods and technology has shifted the character of piracy making them precise and effective operations rather than acts which happen by chance. Therefore, the new face of piracy requires more modern means for combating it.

The shipping industry has long been considered one of the most dangerous in the world. Recently, however, piracy has risen up in the list of menaces faced by seamen.[10] According to the January 31, 2012 figures of the worldwide piracy center of the International Maritime Bureau (IMB), Somali pirates are currently holding captive 10 vessels and 159 hostages.[11] One hundred and two incidents of piracy and armed robbery have been reported to the IMB Piracy Reporting Centre (PRC) in the first quarter of 2012.[12] Eleven vessels were hijacked with 212 crew members taken hostage and four crew killed. A further 45 vessels were boarded, with 32 attempted attacks and 14 vessels fired upon – the latter all attributed to either Somali or Nigerian pirates.[13]

These pirates have a great effect on the world economy and trade. Hundreds of seafarers have been held hostage and forced to suffer physical and mental ill-treatment.[14] The Philippine Coast Guard has said that for the last few years, there were already 5,000 ships worldwide attacked by pirates and more than 1,000 seafarers, including Filipinos, have been taken as hostages, or used as human shields against rescuing government and military forces.[15]

This is a very serious problem, and more so for a country like the Philippines. The Philippines, an archipelago, relies heavily on the shipping industry. The Maritime Industry Authority (MARINA) of the Philippines said the country has 140 ships on the international register, and about 90 percent of these ships pass through the pirate hotspots of the Indian Ocean, Gulf of Somalia and Aden.[16]

Another facet of the issue pertains to the deployment a large number of Filipino seamen in the worldwide maritime industry. Figures from the Philippine Overseas Employment Administration show that in 2010, the Philippines deployed 347,000 shipboard personnel, around 5.06 percent higher than in 2009.[17] Despite the increasing risks of piracy, there does not seem to be any shortage of Filipinos wanting to apply for a job in the maritime industry.[18] Based on the projections of the Philippine manning industry, a record number of 400,000 Filipino seafarers will have been deployed worldwide by the end of 2011 despite the crisis in Europe.[19]

This large amount of Filipino seamen deployed can be explained from an economic standpoint. Filipino seafarers, who are better paid than other overseas Filipino workers, send higher than average remittances. In 2007, seafarers sent home $2.2 billion, about 15 percent of the $14.5-billion total remittances from Filipino workers overseas. That is comparatively huge since they make up only three percent of the 8.7 million Filipinos working and living abroad.[20] MARINA said with the Filipino seafarers raking in more than US$3.8 billion in revenue for the country in 2010 and more this year, the threats of piracy need urgent interventions from stakeholders.[21]

Filipino seafarers, comprising one-third of the world’s seafarers or numbering some 300,000, are among the most exposed to risks in the shipping world.[22] With the Philippines providing a large number of seafarers in the world, their vulnerability to piracy is high.[23]A third of all the world’s seafarers are from the Philippines, so it is not surprising that there is another less welcome statistic – in the past year, more Filipinos have been taken hostage than any other nationality.[24] The statistics prove to be staggering and grim. One Filipino shipping crewmember has been taken hostage every six hours somewhere in the world, according to an official running count by the Department of Foreign Affairs (DFA) of the Philippines.[25] Every time there’s a report of a ship hijacked off the coast of Somalia, almost always there’s a Filipino involved.[26] Since 2006 470 Filipinos have died at the hands of pirates.[27]Out of some 400,000 Filipino seafarers, who make up a quarter of the world’s seagoing workforce, 769 were captured between 2006 and 2011.[28] Filipinos are not being particularly singled out by the pirates, it is just that so many people from the Philippines work in the maritime industry.[29] It is because of this that the Philippines has a great interest in ensuring the safety of its seamen and in the measures, both legal and remedial, for preventing and prosecuting piracy.

Piracy significantly affects modern day society as it causes great damage and loss to world trade and economy. Pirates have acted boldly and without fear as they take advantage of the state’s and international community’s inaction. With many of the world’s goods, especially necessities like oil and fuel, passing through sea lanes, the threat of piracy simply cannot be ignored. It persists as a modern day menace due to a number of factors, primary of which is the difficulty to catch pirates as they can easily escape detection and capture in the vast oceans of the world. Many countries, even the big naval powers, do not have the resources to constantly monitor every square mile of water. Ultimately from the practical point of view piracy will be lessened if there is greater political will to stop it and if there is better coordination and cooperation between states that are affected by it.

But that is only one aspect of the problem. Effective laws and procedures, and their strict enforcement, will go a long way in eradicating piracy. But as it is, the existing legal framework proves to be an insufficient mechanism to alleviate the problem. International laws and treaties have not been fully implemented and are too fragmented. Also, while piracy is covered by universal jurisdiction, there is a seeming lack of cases prosecuted, as states have found it to be too burdensome to proceed with cases which entail additional cost and effort on the part of those who have apprehended or are in custody of pirates.

There must be a concerted attempt on the part of states to improve the existing legal framework on piracy as well as ensure that these improved laws are enforced. The establishment of an international tribunal on piracy will be a very important stride as this will provide a proper venue where affected parties will be able to seek redress. No longer must pirates be able to roam the seas with impunity and evade the long arms of the law. They must be brought before the courts of law, and justice must be meted out against them so that they will realize that they are not above the law. And having such a tribunal will show to modern pirates that the international community is united and is serious is combating piracy.

[1] Ruben S. Ayson Jr., a lawyer from the Philippines and currently works for the government of the Republic of the Philippines as an Associate Solicitor in the Office of the Solicitor General. He can be contacted for further information at: sir.ayson@gmail.com

[2] Eugene Kontorovich, “A Guantanamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists, 98 Cal. L. Rev. 243, 243 (2010)

[3] Pirates plagued the coasts of ancient Greece. Sandholtz & Stiles, supra note 3, at 32; Jesus, supra note 3, at 364.

[4] Joshua Michael Goodwin, Note, Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, 39 Vand. J. Transnaional. L. 973, 982 (2006).

[5] Jeffrey Gettleman, Pirates Tell Their Side: They Want Only Money, N.Y. TIMES, Oct. 1, 2008, at A1, available at 2008 WLNR 18637664.

[6] Michael H. Passman, Protections Afforded to Captured Pirates Under the Law of War and International Law, 33 Tul. Mar. L. J. 1, 6 (2008).

[7] Jack A. Gottschalk et al., Jolly Roger with an uzi: The rise and threat of modern piracy 22 (U.S. Naval Institute Press, 2000).

[8] See the International Chamber of Commerce’s Commercial Crime Service website, which maintains a section on Piracy Prone Areas and Warnings, and which is available at http://www.iccccs. org/home/piracy-reporting-centre/prone-areas-and-warnings. As of April 2010, the website warned that Somalis hijack ocean going fishing vessels for piracy operations, using these as mother ships from which to launch smaller boats to attack other vessels.

[9] Joshua Michael Goodwin, Note, Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, 39 Vand. J. Transnaional. L. 973, 982 (2006).

[10] Every 6 hours, pirates seize a Filipino seaman http://pcij.org/stories/every-6-hours-pirates-seize-a-filipino-seaman/, (last visited June 28, 2012)

[11] Anti-piracy group: In last 5 years, 65 seafarers died of torture, disease http://www.filipinosabroad.com/ofw-news/anti-piracy-group-5-years-65-seafarers-died-torture-disease.html, (last visited June 28, 2012)

[12]ICC- IMB Piracy and Armed Robbery Against Ships Report – First Quarter 2012

[13] Ibid.

[14] Supra, note 10.

[15]Threats of piracy beset maritime industry, Filipino seafarers http://www.filipinosabroad.com/ofw-news/threats-piracy-beset-maritime-industry-filipino-seafarers.html, (last visited June 28, 2012)

[16] supra, note 13.

[17] Record number of Pinoy seafarers deployed in 2011, http://www.filipinosabroad.com/ofw-news/record-number-pinoy-seafarers-deployed-2011.html, (last visited June 28, 2012)

[18] Somali piracy takes heavy toll on Philippine sailors, http://www.bbc.co.uk/news/world-asia-pacific-15259042, (last visited June 28, 2012)

[19] Supra, note 16.

[20] Every 6 hours, pirates seize a Filipino seaman http://pcij.org/stories/every-6-hours-pirates-seize-a-filipino-seaman/, (last visited June 28, 2012).

[21] Threats of piracy beset maritime industry, Filipino seafarers http://www.filipinosabroad.com/ofw-news/threats-piracy-beset-maritime-industry-filipino-seafarers.html, (last visited June 28, 2012).

[22] PHL can be model for maritime best management practices to deter piracy, http://www.mb.com.ph/node/300768/phl-can-be-model-maritime-be

[23] Ibid.

[24] supra, note 18.

[25] supra, note 19.

[26] supra, note 18.

[27] Anti-piracy group: In last 5 years, 65 seafarers died of torture, disease http://www.filipinosabroad.com/ofw-news/anti-piracy-group-5-years-65-seafarers-died-torture-disease.html, (last visited June 28, 2012).

[28] Ibid.

[29] Somali piracy takes heavy toll on Philippine sailors, http://www.bbc.co.uk/news/world-asia-pacific-15259042, (last visited June 28, 2012).

 

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November 8, 2012

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Human Rights, Human Trafficking

An Overview of the Italian Response to Child Trafficking

Written by: Noemi Fantoni [1]**

All forms of trafficking in human beings including sexual exploitation of children are universally prohibited.  In order to comply with its international obligations, Italy introduced a number of changes in its criminal legislation, so that it continued to protect the principle of the “best interest of the child.” The offence of sexual exploitation of children was introduced into the Italian Criminal Code only in 1996, by art.609-bis of the Law No. 66 which punishes violent behavior against children. Subsequent legislation was passed again in 1998 which prohibited sex tourism and juvenile prostitution.[2] It was, however, only in 2003 that Law No. 228/2003 on Measures against Trafficking Persons (also called Anti-Trafficking Law) was amended as to include a specific provision of the offence of sexual exploitation of children. This was in order to ensure compliance of the Italian legislation with the treaties and other regional and international obligations that Italy submitted to.   

So what does the Italian legislation aim to accomplish with regards to trafficking of minors? Article 18 of the Immigration Consolidation Act requires creation of a Social Assistance and Integration Programme, which took more than 2 years to bring into existence.  Currently the Programme also serves to penalize the crime of trafficking by using the trafficking definitions found in the Palermo Protocol. All the measures which form the Programme are managed by the Inter-ministerial Committee. The Programme provides several tools, such as:[3] a free Help-line (a national hotline against trafficking) and the “Voluntary Repatriation Programme” which is run by the Italian branch of the International Organisation for Migration (IOM) in collaboration with the Ministry of Interior which provides programs for temporary assistance and long term social protection.[4]

The main objectives of the free Help-line are to provide detailed information on legislation and services granted to trafficked persons in Italy and, upon request, refer them to the specialised anti- trafficking (THB) agencies. In most cases, the territorial branches of the free Help-line are managed by the same NGOs and public institutions responsible for the implementation of projects funded within the Article 18 Programme. Information is provided in the various languages spoken by the target groups and it is free and active 24 hours since January 2007. The hotline provides assistance and information not only to victim of THB for sexual exploitation but also to victims of trafficking for the purpose of labour exploitation.[5]

All local branches provide information in various languages on several issues (immigration law, social and health services, programme of social assistance and integration, etc.); provide psychological support; provide legal advice; assess if the conditions for the application of the Article 18 procedures are in place; provide information about the available accommodation solutions; and place or refer victims to the accredited Article 18 agency located in the geographical area where the victim resides.

Another instrument which has aided Italy in combatting child trafficking is the Osservatorio Nazionale Tratta,[6] an Italian online portal which offers information on various aspects of the THB phenomenon. The portal was established by Department of Equal Opportunity within the European Equal-Project Observation and Resource Centre for THB, coordinated by the Association on the Road in partnership with other NGOs and governmental bodies. The portal is the most updated secondary source on THB issues within Italy (SIRIT – Sistema Informatizzato di Raccolta Informazioni sulla Tratta), where it is possible to complete individual courses for victims accepted under social protection under Article 18 or Article 13 of the Anti-Trafficking Law but its access is restricted. It gathers national statistical data from different institutions and offers an overview of the national and international legal framework against trafficking for monitoring and analyzing this phenomenon.[7]  This is connected with the Anti-Mafia National Direction (Direzione Nazionale Anti-Mafia – DNA) and its local Districts (Direzioni Distrettuali Antimafia  – DDA) which specifically concerns itself with of all crimes in Articles 600 and 601 of the Criminal Code (slavery, servitude, trafficking).[8]

In the last decade, several awareness-raising campaigns have been run in collaboration with the General Directorate of the Italian Cooperation for Progress of the Ministry of Foreign Affairs, together with the Department of Rights and Equal Opportunities[9] and with some of the most relevant Italian NGOs. The direct participation of children in awareness-raising efforts is considered particularly relevant by the government, civil society, and NGOs fighting child trafficking.[10] Moreover, the Department for Rights and Equal Opportunities collects some key information on victims of trafficking through project reports that organisations and local authorities send to the Department every six months and on an annual basis.

In fact, the Department for Equal Opportunities every year calls upon the public for project proposals to provide and guarantee proper assistance and protection to trafficked persons. From 2000 to 2010, Department for Equal Opportunities helped to fund a total of 710 projects, in all the Italian regions (out of them 613 long term projects were financed under Article 18 and 97 short term projects under the Anti-Trafficking Law).[11]

In 2010 the Department for Equal Opportunities started to work for the implementation and set up of a National Action Plan, although it became into force only a year after.  The Plan analyzed the specific needs of trafficked/exploited children; it has a gender based approach, has cross-cutting issues to the national strategy to be developed and including minimum standards for protection and standard operating procedure for the referral of victims to the proper service providers. Nevertheless until now the Italian government has not yet appointed a National Rapporteur or equivalent mechanism. The technical board, called the Observatory and National Resource Centre on Trafficking in Human Beings, has the purpose of designing new tools and knowledge and monitoring systems on the different forms of exploitation linked to trafficking, proposing at the same time, liaison tools for different kinds of organisations working at different levels for the protection of trafficked persons and working in combating the phenomenon, for the purpose of influencing  positive policies and interventions in the sector.

Incorporating both short term and long term strategies, the Anti-Trafficking Law provides victims with three to six months of assistance while Article 18 guarantees victims shelter benefits for one year, subject to judicial review. As a matter of fact the law does not specify how often a permit can be renewed, and so it can technically be renewed until the child has reached the age of 18. Article 18[12] grants a special residence permit to foreigners, whatever their age, who are presumed to have been victims of violence or severe exploitation, whose life is at risk as a result of their desire either to escape from the control of criminal organisations or to cooperate with police and prosecutors. A residence permit may be granted without the victim reporting the traffickers, because exploitation and the associated danger for the victim are a sufficient condition for it to be obtained. Foreign child victims of trafficking receive an automatic residence permit until they reach 18 years old. The Italian legal system does not allow the deportation of foreign children below the age of 18, unless the minor constitutes a danger for public or a danger to state security.[13] A similar provision has been recently enacted for unaccompanied minors who are EU citizens.

In the end these victims receive a residence permit for education or for work, allowing them to remain in Italy.[14] The persons (including children) who are part of this Programme benefit from social services, educational provisions, and labour information in order to find a permanent job, while the Anti-Trafficking Law establishes a special aid programme granting on a temporary basis suitable accommodation and food and healthcare.

While the legislation in Italy is multidimensional (it also includes provisions for prosecutions, etc), focusing on the needs of victims and creating preventative efforts, allows for the Italian local communities to engage in combatting this crime, in addition to protecting vulnerable youth, who at times, against their own will, are far away from home.  The world has a responsibility to help those who cannot help themselves and because of their vulnerabilities are targeted so that criminals can make a profit.

[1] Noemi Fantoni is a graduate of the University of Torino (LLM) in 2012 and is currently a trainee with the European Union Parliament in Civil Liberties and Justice Unit. Noemi has worked with various NGO’s relating to child rights, most recently in Mongolia with Amici dei Bambini. She can be reached at noemi.fantoni@gmail.com for more information regarding Italian Child Trafficking laws.

** Unless otherwise noted, the author has translated the laws from Italian into English for the purposes of this post.

[2] Law No. 269, on 3rd August 1998, Norme conto lo sfruttamento della prostituzione, della pornografia, del turismo sessuale in danno di minori, quali nuove forme di riduzione di schiavitù. (http://www.normattiva.it/atto/caricaDettaglioAtto?atto.dataPubblicazioneGazzetta=1998-08-10&atto.codiceRedazionale=098G0337).

[3] Associazione On the Road, Isabella Orfano and Marco Bufo, The Italian system of assistance and integration of victims of trafficking in human beings, page. 9. (available in http://ec.europa.eu/anti-trafficking/download.action;jsessionid=GRPqPPcYfFkbL7CT7yWgyTVWNvG9gzjhwBBZkH81Rn22j7tLyXZ6!-1401219818?nodeId=e06d5560-83ce-4df1-ae98-832b58224819&fileName=The+Italian+system+of+assistance+and+integration+of+victims+of+).

[4] Idem., page.6.

[6] Web site of Osservatorio Nazionale Tratta –ONT- (www.osservatoriotratta.it).

[7]International Centre for Migration Policy Development (ICMPD), Study on the assessment of the extent of different types of Trafficking in Human Beings in EU countries, April 2010, page.184.

[8] Giuseppina Valentina D’Angelo and Isabella Orfano, European Commission, Italian Report, Law enforcement agencies and NGOs co-operation in the prevention and victim assistance of trafficking in human  beings for the purpose of sexual exploitation (THBSE), Agis Programme 2005,  COOP-TRAF JLS/2005/AGIS/156, page. 19. (available: c.europa.eu/anti-trafficking/download.action;jsessionid=5RLNPvCFWpkSvnKPpy7x9vWPFnhN51WwLLQB9r1JDGqhGpjRLh1F!511069867?nodeId=3c5774ae-4f5a-4bc8-b1c3-7abe2b7e7d32&file).

[9] Prime Minister’s Office, which is the central public authority in charge of promoting and coordinating policies and actions on anti-trafficking, with specific regard to a human rights based and victim centered approach. 

[11]European Commission, Fight Against Trafficking Human Beings, Italy. (available in: c.europa.eu/anti-trafficking/showNIPsection.action;jsessionid=2z1KPlFG8gJLTvHYG66lJ3nXh5T7w8TjmQDpPCSCn9hLLprgYVJ1!511069867?sectionId=688).

[12] The implementation of the programme, pursuit by article 18 of the Law No. 286/1998 (the Immigration Consolidation Act),  are co-financed by the State (70%) and local authorities (30%), coordinated by a special Inter-Ministerial Committee and provided by local authorities  and/or accredited non-profit organizations. The Programme is managed by the Inter-ministerial Committee for the Implementation of Art. 18 of the Law No. 286/1998 (the Immigration Consolidation Act ), the managing body of the Programme, that is composed of representatives of the Department for Rights and Equal Opportunities, the Ministry of Justice, the Ministry of Welfare and the Ministry of Interior. Idem., page. 34.

[13] Article 19, par. 2, of Italy/Decreto legislativo n. 286/1998 (25.7.1998) available at http://www.giustizia.it/cassazione/leggi/dlgs286_98.html (02.07.2008).

[14] Associazione On the Road, Isabella Orfano and Marco Bufo, The Italian system of assistance and integration of victims of trafficking in human beings. Page. 4. (available in http://ec.europa.eu/anti-trafficking/download.action;jsessionid=GRPqPPcYfFkbL7CT7yWgyTVWNvG9gzjhwBBZkH81Rn22j7tLyXZ6!-1401219818?nodeId=e06d5560-83ce-4df1-ae98-832b58224819&fileName=The+Italian+system+of+assistance+and+integration+of+victims+of+).

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November 1, 2012

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Human Rights, Human Trafficking

Calculating the Truth in Human Trafficking

Written by: Dr. T.M. Steinfatt[1]

People gain interest in social issues in various ways. My interest in numbers of trafficking victims began in 1988 during research on health communication and AIDS in Thailand. These HIV/AIDS studies resulted in the book Working at the Bar, a detailed study of the beliefs and behavior of Thai sex workers.[2] In the late 1980s an estimate began circulating in Bangkok that 800,000 children under 18 were working in the Thai sex industry. It originated in print from a single individual employed in Bangkok by the Children’s Rights Protection Center (CRPC) who stated that of 2,000,000 Thai sex workers, 800,000 were children. A Bangkok Post editorial of January 17, 1989, questioned the basis for the estimate, joined by several Thai language media outlets. “Estimate” has two distinctly different meanings in English.

Empirical estimates are based on observed data and can usually be checked for accuracy. But estimate can also mean a guesstimate, a wild guess, as in estimating that the moon is made of green cheese. Many people, including the general public and many of those who write for and edit Western and international media sources, regularly fail to distinguish between the two. The 800,000 children “estimate” was taken essentially as fact in much of the media, and repeatedly publicized to billions of people across the globe. Simple repetition of the claim, with one media outlet quoting another as the source and then being quoted itself as the source, led to belief in and presumed credibility of the claim, severely damaging Thailand’s international reputation.

As an example in 2001, large numbers of sex trafficking victims were said to exist in Cambodia. The statement, presented jointly by several Cambodian NGOs at the 2001 Second World Congress Against Commercial Sexual Exploitation Of Children in Yokohama, Japan, claimed the existence of 80,000–100,000 trafficked women and children per year in Cambodia, with “10,000–15,000 child prostitutes” in Phnom Penh alone.[3] In comparing these numbers with worldwide estimates it seemed unlikely that Cambodia could have 80,000–100,000 of the 700,000 such persons estimated to exist by the US State Department’s first Trafficking in Persons (TIP) Report.[4] This would amount to 11–14% of the estimated 700,000 of the world’s cross-border international trafficking total within about 00.194% of the total world population. The most recent TIP Report was released in June 2011.[5]

Numerous other sex trafficking reports on Cambodia cited similar figures at that time. For example, in 2001 the Child Rights Foundation of Cambodia under the heading of “Trends in Sexual Slavery” reported the number of trafficked women and children as “17,000 in Phnom Penh, 30% under 18 years old, 80,000–100,000 nationwide.”[6] Many NGO and media reports published throughout the past decade quote the 80,000–100,000 numbers. Those few providing a reference source for these numbers cite one of those mentioned above, often.[7]

Most current published estimates of the numbers of sex workers, under-aged workers, and trafficked women and children in Cambodia cannot be relied upon. In following the references for the source of the 80,000 to 100,000 figures back to the earliest dated source[8] no study or empirical data in any form can be located to support the number. As with the false claim of 800,000 child sex workers in Bangkok, the presumed propaganda value of large trafficking numbers may be at work.[9] This author is forced to conclude that these 80,000–100,000 numbers are simply bogus, that they were fabricated at some point by someone, and the bogus numbers were simply reprinted, circularly citing other such reprints as the source.

These unsupported estimates of trafficking numbers in Cambodia led to our research there beginning in the summer of 2002 and our first paper.  A Fulbright to Cambodia from January to August of 2003, an extension of that Fulbright, and a research grant from USAID led to additional research and our second empirical paper.  In early 2007, UNIAP/UNESCO in Bangkok announced a competition to determine best methods of measuring human trafficking. My methods proposal received the top award in the UNIAP/UNESCO final competition for best methods of measuring human trafficking, held in Bangkok in November 2007. Data collection for that research, supported by a United Nations grant, began in May 2008 and ended that December, with the final report published by UNIAP/UNESCO in January 2011.  Those studies provide numbers concerning sex trafficking in Cambodia only.

They do not provide numbers representing all forms of trafficking victims. Abuse of female domestic laborers and spousal abuse victims are not included in these numbers, nor are any of the persons trafficked for maritime labor, for begging, for factory labor, or for any male trafficking victims. A 32 point detailed theory and rationale for the methods used in our studies to obtain data on sexual trafficking may be found in our 2011 UNIAP Report. 

Empirical evidence of the size and location of sex trafficking can be obtained through observational research. That evidence indicates sizeable numbers of victims, but substantially smaller numbers than are commonly spread as rumors and propaganda. The numbers of sex workers and of those trafficked is several levels of magnitude smaller than much NGO propaganda usually suggests. The solution is not to promulgate and propagate fake numbers, but to learn to locate and talk with those who are oppressed, listen to what they want and will accept, and to consider carefully both the effect of often brutal interventions on those persons’ lives, and the likely consequences for the returning workers who escaped the raids in terms of future police actions against them and their workplaces.

Understanding the number of persons trafficked in areas targeted for intervention is a requirement in reducing that number by a substantial amount. If numbers of trafficked persons are not known, no accurate measure of the efficacy or of possible negative effects of specific individual anti-trafficking interventions can be known. Obtaining accurate counts of trafficking victims in specific locales and at specific points in time allows evaluation of effectiveness of any anti-trafficking measure applied there. Such numbers create the potential to judge whether trafficking is increasing or decreasing, where, and by about how much, through comparison with later counts. Such data allows tentative inferences based on empirical methods concerning the effectiveness or ineffectiveness of trafficking approaches applied or not applied in the interim. If one does not know the trafficking numbers then there is no good basis for judging effectiveness of interventions. It is not sufficient to know that a particular intervention resulted in a number of captured traffickers and a listed number of trafficked women and children removed to the care of an NGO.

The problem of human trafficking cannot be effectively addressed unless we understand its actual size and which remedies can effectively reduce it. Accurate knowledge of the size and extent of trafficking are needed in order to plan and implement a practical and effective anti-trafficking strategy. Both overestimates and underestimates of the number of victims will result in the failure to allocate resources efficiently, and they may result in the ultimate failure of many anti-trafficking interventions. Overestimates of trafficking numbers may produce prevention and intervention programs that are overly extensive an in the wrong locations, wasting funds provided for anti-trafficking efforts. If guessed numerical estimates are given credence, and the guesses are kept high for funding reasons following an intervention, then an intervention that was effective may be branded as ineffective. Some strong anti-trafficking programs may subsequently be discarded due directly to inaccurate guessed numerical estimates. The effectiveness of interventions cannot be understood accurately without grounded empirical evidence of their effect, whether positive, negative, or neutral. It is important to understand how such guessed estimates appear in the public record in order to consider the validity of such numbers if and when they appear.

[1] Professor at the School of Communication at the University of Miami (Fl). He is also a Fullbright Scholar. For a more complete reading of Professor Steinfatt’s research see “Measuring the Number of Trafficked Women in Cambodia: 2002” Globalization Research Center, University of Hawaii-Manoa (November 13-15,2002). “Measuring the Extent of Sex Trafficking in Cambodia – 2008, SIREN Trafficking Estimates, UNIAP, (January 2011). “Measuring the Number of Trafficked Women and Children in Cambodia: A Direct Observation Field Study” (October 5, 2003).  “Sex Trafficking in Cambodia: Fabricated Numbers versus Empirical Evidence” Crime Law Soc Change (October 28, 2011 online).  He can be reached at: tms@miami.edu
[2] Steinfatt, T. M. (2002). Working at the bar: sex work and health communication in Thailand. Westport: Greenwood Press.
[3] NGO Statement. (2001). NGO Statement to the 2001 Consultative Group Meeting On Cambodia. Available at: http://www.bigpond.com.kh/users/ngoforum/cg2001/child.htm
[4] U.S. Department of State. (2001). Trafficking in Persons Report 2001. Available at: http://www.state. gov/g/tip/rls/tiprpt/2001/index.htm
[5] U.S. Department of State. (2011). Trafficking in Persons Report 2011. Available at: http://www.state. gov/g/tip/rls/tiprpt/2011/index.htm
[6] CRF. (2001). CAMBODIA: after the first world congress against commercial sexual exploitation of children: contribution to the second world congress in Yokohama, Japan. Phnom Penh: Child Rights Foundation (December). P.14
[7] CRF. (2001). CAMBODIA: after the first world congress against commercial sexual exploitation of children: contribution to the second world congress in Yokohama, Japan. Phnom Penh: Child Rights Foundation (December).
[8] Sophea, M. (1998). Notes of presentation made by Mr. Mar Sophea, National Program Coordinator of IPEC for Cambodia, in, the workshop on Combating the Trafficking of Children and their Exploitation in Prostitution and other forms of Child Labor in Mekong Basin Countries, 31st January 1998, Bangkok. Phnom Penh: ILO/IPEC.

[9] Steinfatt, T. M., (2006). Trafficking, Politics, and Propaganda. Encyclopedia Entry in M. Ditmore (Ed.) Encyclopedia of Prostitution and Sex Work, vol. 2. Greenwood Press, pp. 494–498.
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October 8, 2012

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Crime of Aggression, International Criminal Court, Rome Statute

An Assessment of Kampala: Final Comments

 Written by: Professor William Schabas [1]

The Kampala Review Conference of the Rome Statute provides a much-needed shot of legal adrenaline to the International Criminal Court. Several of the achievements at Kampala were relatively minor and inconsequential. Fortunately, they are dwarfed by the stunning accomplishment of the amendments of aggression, adopted in extremis early Saturday morning. Until about 1030 PM Friday night, I could not find anybody prepared to wager a significant sum of money on the likelihood of a positive outcome.

While much credit is due to the impressive diplomatic skills, and determination, of Christian Wenaweser, Prince Zeid and Stefan Barriga, who were the architects of the negotiations, personalities alone do not account for the result. At the Rome Conference, and for some years afterwards, I used to say that the Court was protected by a guardian angel. But this was just a metaphor for the fact that the Court, and international criminal justice, is – to paraphrase Victor Hugo – ‘an idea whose time has come’. And nothing can stop it. For some years, with the Court’s activity in the doldrums, I had lost sight of the guardian angel. But he/she was certainly in evidence last Friday and Saturday.

This time, though, the idea is a narrow one, and it is built around the crime of aggression. One striking difference with the Rome Conference was the relative absence of the NGOs at Kampala. They were there in a formal sense, especially at the beginning of the Conference, when the proceedings looked more like an academic seminar or a political meeting than a treaty negotiation. But many of them were quite indifferent to the incorporation of aggression into the Statute. I am struck by the resemblance of their attitude to the American position, which treats aggression as a bit tangential from the core mission of the Court, which is to promote human rights through the prosecution of the other core crimes, namely genocide, crimes against humanity and war crimes. Even the High Commissioner for Human Rights, who actually attended part of the Kampala Conference, has yet to issue a statement signaling the achievement of incorporating the crime of aggression in the Rome Statute.

Nothing could be more mistaken, however. The wise judges at Nuremberg described aggressive war as the supreme crime, encompassing the evil of all the others. What Kampala does is refocus our attention onto the importance of the prohibition of war – on the jus ad bellum. This is an important and helpful correction, and it is to be hoped that the message of Kampala will slowly percolate through the human rights discourse.

Those who are keen on the aggression issue are very troubled by the seven-year delayed entry into force. It would be a mistake to exaggerate the significance of this. Entry into force of amendments to treaties always takes time. The amending procedure is quite arcane, and even without the seven-year rule this would take a long time in any case. Although the amendment requires thirty ratifications and a positive decision by the States parties, this should not pose a serious problem, and both conditions should be fulfilled by 1 January 2017 or shortly thereafter.

Then, the result will be much better than had the Conference to what many thought was the appropriate amending process. Because the amendment will apply to all States parties, and not just those who have ratified it, provided of course they have not made an opt-out declaration. There may be some of these, but there is no cause for pessimism here. There will be a high political price to pay for any government that considers making an opt-out declaration. It is a price that many will prefer not to pay.

Nor should we lose sight of the incentive that the amendments create for States that have not joined the Court. According to article 15bis, a non-party State is immune from the Court’s jurisdiction over the crime of aggression. The Court cannot punish crimes committed by its nationals or on its territory. Some States will welcome this because it will insulate their nationals, but many will realize that they are being deprived of the deterrent power of the Rome Statute, in that aggression committed on their territory and against them totally escapes the jurisdiction. Hopefully, some of them will appreciate the interest in joining the Court because of this added layer of protection.

I am reminded of the importance that the first President of the Court, Philippe Kirsch, attached to the work on the crime of aggression. My recollection is that he felt it was important not only to show to States that the reference to aggression in article 5(1) had some substance behind it. He also explained that incorporating aggression in the Statute would help convince some States to join the institution. He was right at the time, and his vision has now borne fruit.

Those who are unhappy with the Court’s new mandate will try to pick holes in the legality of the amendments. It is true that they reflect some creative approaches, but everything passes what Roger Clark calls the ‘straight face test of advocacy’. Legal academics who support the Court, and the amendments, can assist judges in the future with reassurances that the amendments actually work. The Statute as adopted in Rome had its share of ambiguities. The Kampala Conference was able to find a workable way forward.

Beyond the adoption of the aggression amendments, there is really not much else to say about the Kampala Conference. It is of course positive to have repaired an oversight in the war crimes provisions. However, the amendment to article 8 is symbolic, and it is doubtful that it will ever lead to prosecutions. There have, to date, never been any international prosecutions for the use of such weapons. It is occasionally pointed out that Saddam Hussein used poison gas at Halabja, but it is absurd to suggest that the failure to recognize the use of such weapons as an international crime means that there is an impunity gap for such atrocities. They can be prosecuted as crimes against humanity and even genocide. Years from now, people will point the prohibited weapons issue at Kampala with irony, noting that the States Parties were able to address the prohibition of relatively archaic weapons that are rarely if ever used in modern combat, but that they could not deal with the important issues: anti-personnel mines, cluster munitions, depleted uranium weapons and, of course, nuclear weapons.

The Conference agreed to leave article 124 alone. The importance of this provision was always exaggerated, especially by the human rights NGOs. Amnesty International called it a ‘licence to kill’, but never attempted to provide evidence that could back up such a hyperbolic claim. Arguably, article 124 helped smooth the ratification of two States parties. If it can do this trick again over the next five years, then it will be worth leaving it in the Statute. And if it cannot prompt further ratifications, then how can it be claimed that any harm was done?

What the Conference failed to do was talk about the Court and its performance. There may have been good policy reasons for doing so. Perhaps Kampala was not the right place for a stocktaking on the activities, results and operations of the Court. But this subject cannot be avoided forever.

[1] Written on June 17, 2010, and posted after the close of the Kampala Conference. The original post can be found at: http://iccreviewconference.blogspot.com/. Professor Schabas regular blog can be found at: http://humanrightsdoctorate.blogspot.com/ 

 William Schabas  is Professor of international law at MiddlesexUniversity in London. He also holds appointments at LeidenUniversity, where he is professor of international criminal law and human rights, the National University of Ireland Galway, where he is emeritus professor of human rights and chairman of the Irish Centre for Human Rights, and the Law Institute of the ChineseAcademy of Social Sciences, where he has the title of honorary professor. He is a member of the RoyalIrishAcademy, an Officer of the Order of Canada, and recipient of several honorary degrees.