Jus cogens: Recent Developments in International Law

Courts & Tribunals: Kenya withdraws nomination of Effie Owuor to International Criminal Court

On 16 November 2023 the Kenyan Embassy withdrew the nomination of Effie Owuor as a candidate for election to the International Criminal Court (ICC). Kenya nominated Owuor on 18 October 2005. In accordance with Article 36(4)(a) of the Rome Statue of the ICC, Kenya provided a Statement in support of Owuor, which accompanied the letter of nomination. The election of judges to the ICC will occur on 26 and 27 January 2024 at the fourth session of the Assembly of States Parties to the Rome Statute.

Further Information:
ICC Nominations for Judges
ICC Details of Owuor Nomination
Nomination of Effie Owuor by Kenyan Embassy
Article 36(4)(a) Statement in Support of Owuor Nomination
Letter of Withdrawal Of Owuor Nomination By Kenyan Embassy

Courts & Tribunals: ICTY Judges Begin Fourth Term of Office

On 17 November 2005, the International Criminal Tribunal for the Former Yugoslavia (ICTY) permanent judges began their fourth term of office. The 16 permanent judges are elected by the UN General Assembly and serve for a term of four years. In addition, 27 ad litem judges also serve at the ICTY. Ad litem judges sit on one or a number of specific trials for a period of up to three years and cannot be re-elected. Ad litem judges are appointed by the UN Secretary General on recommendation of the President of the ICTY.

The ICTY permanent judges for the fourth term of office are:

• Theodor Meron (United States of America)
• Fausto Pocar (Italy)
• Patrick Lipton Robinson (Jamaica)
• Carmel A. Agius (Malta)
• Liu Daqun (China)
• Mohamed Shahabuddeen (Guyana)
• Mehmet Güney (Turkey)
• Andresia Vaz (Senegal)
• Alphonsus Martinus Maria Orie (Netherlands)
• Wolfgang Schomburg (Germany)
• O-Gon Kwon (South Korea)
• Jean-Claude Antonetti (France)
• Kevin Parker (Australia)
• Iain Bonomy (United Kingdom)
• Bakone Justice Moloto (South Africa)
• Christine Van den Wyngaert (Belgium)

In addition, on 17 November 2005, the permanent judges of the ICTY elected a new President and Vice President of the Tribunal to serve two-year terms. Effective immediately, the Tribunal selected Judge Fausto Pocar (Italy) to serve as President of the Tribunal and Judge Kevin Parker (Australia) to serve as Vice-President.

Further Information:
ICTY homepage
General Information regarding the operation of the ICTY
Biography of Judge Pocar
Biography of Judge Parker

Courts & Tribunals: Three Accused Arrested by ICTR in Past Three Months

On Monday, 14 November 2005, Callixte Kalimanzira, the Minister of Interior of Rwanda in April and May 1994, made his initial appearance before the International Criminal Tribunal for Rwanda ("ICTR") and plead not guilty on charges of genocide, complicity in genocide, and direct and public incitement to commit genocide.[1] In the past three months, three individuals have surrendered or been arrested by the ICTR to face charges in connections with the 1994 genocide in Rwanda. Besides Kalimanzira's surrender on 8 November 2005, the ICTR arrested Joseph Serugendo, former member of the Comité d’Initiative and Interahamwe militia, on 16 September 2005, and Michel Bagaragaza, director general of the office controlling the Rwandan tea industry in 1994, surrendered to the ICTR 16 August 2005. Since the ICTR's inception, 72 accused persons have been arrested by the Tribunal.

Further Information:
International Criminal Tribunal for Rwanda, Case No: ICTR-05-88-1, Trial Chamber Two, "Minutes of Proceedings"
International Criminal Tribunal for Rwanda (Official Site)
Legal Texts of the ICTR
Status of ICTR Cases
Status of ICTR Detainees

Courts & Tribunals: ICTY Trial Chamber Acquits Halilovic

On 16 November 2005, Trial Chamber I, Section A, of the ICTY delivered its' judgment in the case Prosecutor v. Sefer Halilovic (Case IT-01-48). The Halilovic trial lasted from 31 January 2024 to 31 August 2005. The indictment against Sefer Halilovic was based on murders alleged to have been committed by troops belonging to the Army of the Republic of Bosnia and Herzegovina (“ABiH”) in the villages of Grabovica and Uzdol in the Jablanica and Prozor areas in Herzegovina in September 1993 during  “Operation Neretva”. The Prosecution alleged Halilovic was the commander of Operations during Operation Neretva and the troops involved were under his command and control. The indictment alleged Halilovic incurred criminal responsibility under the ICTY Statute by not taking effective measures to prevent the killings of civilians and by failing to investigate the killings and punish the perpetrators.

In Halilovic, the Trial Chamber found that murders were committed both in Grabovica and Uzdol. However,  the court found the Prosecution failed to establish that Sefer Halilovic was appointed as commander of Operation Neretva. The Trial Chamber also determined that the Prosecution failed to prove beyond a reasonable doubt that Halilovic was either the de jure or de facto commander of Operation Neretva. By failing to prove Halilovic had effective control over the troops involved in the killings of civilians, the Trial Chamber determined Halilovic did not incur criminal responsibility for the crimes charged and, thereby, acquitted Halilovic of all charged crimes.

Further Information:
Indictment Against Sefer Halilovic
Prosecutor v. Halilovic Trial Chamber Motions
Prosecutor v. Halilovic Trial Chamber Orders
Prosecutor v. Halilovic Trial Transcripts
Prosecutor v. Halilovic Trial Chamber Judgment

International Organizations: World Summit on the Information Society Concludes

On 18 November 2023 the Tunis Phase of the World Summit on the Information Society (WSIS) concluded with the adoption of two Summit documents: the Tunis Agenda for the Information Society and the Tunis Commitment. The first phase of the WSIS took place in Geneva in 2003. The UN General Assembly, under Resolution 56/183, endorsed the creation of WSIS and its two phase format in December 2001. The UN General Assembly endorsed the creation of the WSIS as a result of a proposal of the International Telecommunication Union (ITU). The ITU, an international organization within the United Nations System, held the leading role in the organization of the WSIS.

The Tunis phase of the WSIS focused on three major issues: financial mechanisms to bridge the "digital divide," internet governance, and follow-up and implementation of the Geneva and Tunis decisions. The internet governance agenda resulted in the creation of the Internet Governance Forum (IGF). One of the IGF's main function is to "discuss public policy issues related to key elements of Internet Governance in order to foster the sustainability, robustness, security, stability and development of the Internet." Prior to the opening of the Tunis phase, and during the completion of preparatory meetings of the WSIS, Venezuela made a proposal, which was ultimately rejected, to include the phrase "international management of the internet" in the outcome document. The IGF itself will have no oversight function and will have no involvement in the daily operation of the Internet.

Further Information:
World Summit on the Information Society (Official Site)
Tunis Agenda for the Information Society (WSIS-05/TUNIS/DOC/6)
Tunis Commitment (WSIS-05/TUNIS/DOC/7-E)
UN General Assembly Resolution 56/183
International Telecommunication Union

Recent Scholarship: Foreign Law and the U.S. Supreme Court

In Roper v. Simmons, 543 U.S. __ (2005), faced with analyzing the legitimacy of the juvenile death penalty, the majority opinion of the U.S. Supreme Court notes:

"Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in [Trop v. Dulles, 356 U.S. 86 (1958)], the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”

The Court's usage of "foreign law" produced a number of commentators, including:

• Vicki C. Jackson, CONSTITUTIONAL COMPARISONS: CONVERGENCE, RESISTANCE, ENGAGEMENT, 119 Harv. L. Rev. 109 (2005)(full text link)
• Jeremy Waldron, FOREIGN LAW AND THE MODERN IUS GENTIUM, 119 Harv. L. Rev. 129 (2005)(full text link)
• Ernest A. Young, FOREIGN LAW AND THE DENOMINATOR PROBLEM, 119 Harv. L. Rev. 148 (2005) (full text link)

Recent Scholarship: Torture and Positive Law

Jeremy Waldron, "Torture and Positive Law: Jurisprudence for the White House," 105 Colum. L. Rev. 1681 (2005)

From the Columbia Law Review, an article that "argues that the prohibition on torture is not just one rule among others, but a legal archetype—a provision which is emblematic of our larger commitment to non-brutality in the legal system. Characterizing it as an archetype affects how we think about the implications of authorizing torture (or interrogation methods that come close to torture). It affects how we think about issues of definition in regard to torture. And it affects how we think about the absolute character of the legal and moral prohibitions on torture. . . .the Article concludes not only that the absolute prohibition on torture should remain in force, but also that any attempt to loosen it . . .would deal a traumatic blow to our legal system and affect our ability to sustain the law's commitment to human dignity and nonbrutality even in areas where torture as such is not involved."

Further Information:

Columbia Law Review
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, LEGAL STANDARDS APPLICABLE UNDER 18 U.S.C. §§ 2340-2340A: MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL, December 30, 2023 (discussing federal criminal prohibition against torture)