Jus cogens: Recent Developments in International Law

This Week in Public International Law Scholarship (No. 21)

This Week in Public International Law Scholarship, a juscogens.net feature, highlights new and notable books and articles concerning public international law. For comments or suggestions, please contact [email protected].

Books:

Sally J. Cummins (ed.), Digest of United States Practice in International Law 1991-1999

Francesco Francioni & Tullio Scovazzi (eds.), Biotechnology and International Law

Louis Pojman, Terrorism, Human Rights, and the Case for World Government

John Quigley, The Genocide Convention: An International Law Analysis

C.L. Ten, Theories of Rights

Isidoro Zanotti, Extradition in Multilateral Treaties And Conventions

Articles:

African Journal of International and Comparative Law (United Kingdom), Volume 14, PART 1, 2006

• Katherine Fallah, Perpetrators and Victims: Prosecuting Children for the Commission of International Crimes
• Yusuf Aksar, The UN Security Council and the Enforcement of Individual Criminal Responsibility: The Darfur Case

Chicago Journal of International Law, Volume 7, Number 1, Summer 2006

• Eric A. Posner & John Yoo, International Law and the Rise of China
• David Luban, Calling Genocide by Its Rightful Name: Lemkin's Word, Darfur, and the UN Report

Journal of International Law and International Relations (Canada), Volume 2, Number 1, Winter 2005

Symposium Issue: The UN at Sixty: Celebration or Wake?

• Ellen Hey, The High-level Summit, International Institutional Reform and International Law
• Ian Johnstone, Discursive Power in the UN Security Council
• Nicholas J. Wheeler, A Victory for Common Humanity? The Responsibility to Protect after the 2005 World Summit
• Mary Ellen O'Connell, The Counter-Reformation of the Security Council
• Jutta Brunnée and Stephen Toope, Norms, Institutions and UN Reform: The Responsibility to Protect
• Bertrand G. Ramcharan, UN Policies and Strategies: Preventing State Failures and Rebuilding Societies
• Simon Chesterman, From State Failure to State-Building: Problems and Prospects for a United Nations Peacebuilding Commission
• Catherine Lu, Introducing New Orders and Modes: Lessons from Machiavelli

Chicago-Kent Journal of International and Comparative Law, Volume 6, Spring 2006

• Mark Calaguas, Military Privatization: Efficiency or Anarchy?

Law and Practice of International Courts and Tribunals (Netherlands), Volume 5, Number 2, 2006

• Muller, Daniel, Procedural Developments at the International Court of Justice
• Ciampi, Annalisa, The International Criminal Court

Journal of Conflict and Security Law (United Kingdom), Volume 11, Number 2, Summer 2006

Symposium: Studies on the Customary Law Study

• Rowe, P., The Effect on National Law of the Customary International Humanitarian Law Study
• Fleck, D., International Accountability for Violations of the Ius in Bello: The Impact of the ICRC Study on Customary International Humanitarian Law
• Turns, D., Weapons in the ICRC Study on Customary International Humanitarian Law
• Cryer, R., Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study
• Krieger, H., A Conflict of Norms: The Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study

International Criminal Law Review (Netherlands), Volume 6, Number 2, 2006

• Williams, Sarah, The Role of the Amicus curiae before International Criminal Tribunals
• Bagaric, Mirko, International Sentencing Law: In Search of a Justification and Coherent Framework
• McKay, Leanne, Characterising the System of the International Criminal Court: An Exploration of the Role of the Court Through the Elements of Crimes and the Crime of Genocide
• Kirsch, Stefan, The Trial Proceedings before the ICC
• Badar, Mohamed Elewa, "Just Convict Everyone!" Joint Perpetration: From Tadic to Stakic and Back Again

Tilburg Foreign Law Review (Netherlands), Volume 13, Number 2

• JUDITH LICHTENBERG, THE CRIME OF AGGRESSION AND THE INTERNATIONAL CRIMINAL COURT

European Journal of International law (United Kingdom), Volume 17, Number 3, 2006

• Bruno Simma and Dirk Pulkowski, Of Planets and the Universe: Self-contained Regimes in International Law
• Steven Wheatley, The Security Council, Democratic Legitimacy and Regime Change in Iraq
• Marko Milanovic, State Responsibility for Genocide
• Patrick Dumberry, New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement

Emory International Law Review, Volume 20, Number 1, Spring 2006

• Johan D. van der Vyver, Municipal Legal Obligations of States Parties to the Convention on the Rights of the Child: The South African Model
• Martin Guggenheim, Ratify the U.N. Convention on the Rights of the Child, But Don't Expect Any Miracles
• Don S. Browning, The United Nations Convention on the Rights of the Child: Should It Be Ratified and Why?
• David Weissbrodt, Prospects for Ratification of the Convention on the Rights of the Child
• John W. Egan, Comment, The Future of Criminal Jurisdiction over the Deployed American Soldier: Four Major Trends in Bilateral U.S. Status of Forces Agreements
• Andrea E. K. Thomas, Comment, Nongovernmental Organizations and the International Criminal Court: Implications of Hobbes' Theories of Human Nature and the Development of Social Institutions for Their Evolving Relationship

ILSA Journal of International and Comparative Law, Volume 12, Number 2, Spring 2006

• Ralph Wilde, Enhancing Accountability at the International Level: The Tension Between International Organization and Member State Responsibility and the Underlying Issues at Stake
• Andrea Schulz, The 2005 Hague Convention on Choice of Court Clauses
• Michael Dennis, Application of Human Rights Treaties Extraterritorially to Detention of Combatants and Security Internees: Fuzzy Thinking All Around?
• Geoffrey Corn, Filling the Void: Providing a Framework for the Legal Regulation of the Military Component of the War on Terror Through Application of Basic Principles of the Law of Armed Conflict
• Daniel Kornstein, International Law and the Humanities: Does Love of Literature Promote International Law?
• Jane Dalton, What is War? Terrorism as War after 9/11
• Mary Ellen O'Connell, When is a War Not a War? The Myth of the Global War on Terror
• Amb. Andrew Jacovides, U.N. Reform and the International Court of Justice: Introductory Statement
• Andrew Strauss, Is International Law a Threat to Democracy: Framing the Question
• Carol Gould, On the Uneasy Relation Between International Law and Democracy
• Christopher Ford, Compliance Assessment and Compliance Enforcement: The Challenge of Nuclear Noncompliance
• Gustavo Zlauvinen, Nuclear Non-Proliferation and Unique Issues of Compliance
• Jordan Paust, The Importance of Customary International Law During Armed Conflict

Journal of Legal Studies in Business, Volume 11, 2004

• Lucien J. Dhooge, PEREMPTORY NO MORE: JUS COGENS AND HUMAN RIGHTS VIOLATIONS BY TRANSNATIONAL CORPORATIONS PURSUANT TO THE ALIEN TORT CLAIMS ACT

Oregon Review of International Law, Volume 8, Number 1, Winter 2006

• John R. Morss, Mirko Bagaric, The Banality of Justice: Reflections on Sierra Leone's Special Court

Security Council Compendium (No. 9)

Security Council Compendium, a juscogens.net feature, provides a comprehensive, concise summary of the work of the United Nations Security Council in an organized, central location and an unbiased, objective manner. For comments or suggestions, please contact [email protected].

Security Council Resolutions

S/RES/1703 The situation in Timor Leste (18 August 2024)

Synopsis of Resolution 1703: Resolution 1703 extends the mandate of the United Nations Office in Timor-Leste (UNOTIL) until 25 August 2006.

Resolution 1703 Resources:

• UNOTIL Official Website

S/RES/1704 The situation in Timor Leste (25 August 2024)

Synopsis of Resolution 1704: With Resolution 1704 and the expiration of the UNOTIL mandate (see Resolution 1703), the Security Council "decides to establish a follow-on mission in Timor-Leste, the United Nations Integrated Mission in Timor-Leste (UNMIT), for an initial period of six months, with the intention to renew for further periods, and further decides that UNMIT will consist of an appropriate civilian component, including up to 1,608 police personnel, and an initial component of up to 34 military liaison and staff officers." The mandate of UNMIT includes:

• "To support the Government and relevant institutions, with a view to consolidating stability, enhancing a culture of democratic governance, and facilitating political dialogue among Timorese stakeholders;"
• "To support Timor-Leste in all aspects of the 2007 presidential and parliamentary electoral process, including through technical and logistical support, electoral policy advice and verification or other means;"
• "To ensure, through the presence of United Nations police, the restoration and maintenance of public security in Timor-Leste through the provision of support to the Timorese national police (PNTL)";
• "to liaise on security tasks and to establish a continuous presence in three border districts alongside armed United Nations police officers assigned to district police stations"; and,
• "To assist the Government of the Democratic Republic of Timor-Leste in conducting a comprehensive review of the future role and needs of the security sector";

Resolution 1704 also instructs the Secretary-General and the Government of Timor-Leste to conclude a status-of-forces agreement within 30 days of adoption of Resolution 1704. Interestingly, pending the conclusion of such an agreement, "the agreement between the Government of the Democratic Republic of Timor-Leste and the United Nations Concerning the Status of the United Nations Mission of Support in East Timor (UNMISET) dated 20 May 2024 shall apply provisionally, mutatis mutandis, in respect of UNMIT."

Resolution 1704 Resources:

• UNOTIL Official Website
  

Security Council Meetings

S/PV.5514 (18 August 2024) Timor-Leste [S/RES/1703; Vote 15-0-0]

S/PV.5515 (22 August 2024) Middle East situation, including the Palestinian question [no action]

S/PV.5516 (25 August 2024) Timor-Leste [S/RES/1704; Vote 15-0-0]

S/PV.5517 (closed) (28 August 2024) Sudan [Communiqué]

Statements By Security Council President (held by Ghana August 2006)

None issued.

Statements to Press By Security Council President

SC/8814 (22 August 2024) DEMOCRATIC REPUBLIC OF CONGO

SC/8818 (25 August 2024) BURUNDI

SC/8820 (29 August 2024) CYPRUS

Security Council President and Secretary-General Letters

S/2006/665 (17 August 2024) Letter dated 17 August 2024 from the Secretary-General addressed to the President of the Security Council (Darfur, Sudan)

S/2006/675 (21 August 2024) Letter dated 21 August 2024 from the Secretary-General addressed to the President of the Security Council (Israel/Lebanon - cessation of hostilities)

Reports of the Secretary-General

S/2006/662 (17 August 2024) Report of the Secretary-General on children and armed conflict in the Sudan

S/2006/670 (18 August 2024) Report of the Secretary-General on the implementation of resolution 1701 (2006) - Lebanon

Security Council Monthly Programme of Work (August 2006)

2006 Archived Webcasts of Security Council Meetings

International Courts & Tribunals at a Glance (No. 13)

International Courts & Tribunals at a Glance, a juscogens.net feature, aims to provide timely notice of recent happenings and trial developments in an organized, central location and an unbiased, objective manner. For comments or suggestions, please contact [email protected].

International Court of Justice (ICJ)

Cases currently being heard/under deliberation:

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)

• Case Resources

Pulp Mills on the River Uruguay (Argentina v. Uruguay)

• Case Resources

International Criminal Tribunal for the Former Yugoslavia (ICTY)

Overview of Court Proceedings

Overview of Court Documents

Court Schedule

ICTY Weekly Press Briefing (23 August 2024)

Vojislav Seselj Assigned Counsel by Trial Chamber (21 August 2024)

From the ICTY: "The Trial Chamber in the case against accused Vojislav Seselj decided today to assign him defence counsel for the further conduct of his case. In coming to its decision, the Trial Chamber described numerous instances where Vojislav Seselj behaved in an obstructionist, disruptive and disrespectful manner, and intimidated and made slanderous comments about witnesses. The Trial Chamber ordered that Vojislav Seselj will participate in the proceedings against him through his defence counsel only. It will consider permitting his personal involvement on a case-by-case basis if it is in the interests of justice. In its decision, the Trial Chamber carefully reviewed international jurisprudence on the question of an accused’s right to defend himself. It cited jurisprudence that this right can be restricted in the interests of justice if the accused fails to cooperate in good faith with the court, or is willfully disruptive and disrespectful. The Trial Chamber reviewed Vojislav Seselj’s behaviour in court during pre-trial proceedings, some of his statements and publications prior to his arrival in The Hague, and more than 191 of his submissions to the Tribunal. The Trial Chamber found that from the very beginning of the pre-trial proceedings in his case, Vojislav Seselj has: raised irrelevant matters, used offensive and insulting language in his submissions and against court room participants and others, released confidential documents and information to unauthorized persons, and behaved in a manner that is intimidating to potential witnesses. The Trial Chamber expressed its concern that because of his on-going disruptive behaviour and unwillingness to follow the Tribunal’s rules, Vojislav Seselj is undermining his intention to present his defence. The Trial Chamber noted that he had been warned on numerous occasions that that his behaviour was obstructionist and demonstrated a need for legal assistance."

• Prosecutor v. Vojislav Seselj , Case No. IT-03-67-PT, Decision on Assignment of Counsel, 21 August 2024
  

Josip Jovic Contempt Case Judgement 30 August 2024 (23 August 2024)

From the ICTY: "The judgement in the Josip Jović contempt of court case will be delivered on 30 August 2024 at 9:00 in Courtroom I. Jović, a former editor of the Croatian daily newspaper Slobodna Dalmacija, is accused of disclosing the identity and testimony of a witness that judges had ordered be protected from the public, as well as violating a court order that specifically instructed him to desist from further publication of the testimony of the witness. Specifically, the prosecution alleges that between 27 November and 29 December 2023 he published the identity of the witness, as well as publishing extracts of the testimony of the witness even after the court ordered him on 1 December 2023 from doing so. In October 2005, Jović was arrested by Croatian authorities and transferred to the Tribunal after he failed to respond to a court order requiring him to travel to The Hague to enter a plea to the charge against him. He entered a “not guilty” plea on 14 October 2023 and was released. The trial was initially scheduled for 3 July 2006. The accused did not appear in court and the trial was therefore postponed and held on 11 July 2006. The prosecution submitted evidence and called no witnesses. The defence examined one witness, the accused himself."

• Indictment Against Jovic

International Criminal Tribunal for Rwanda (ICTR)

Daily Journal

Daily Case Minutes

Judicial Calendar

ICTR Newsletter (June/July 2006)

Latest Decisions

• THE PROSECUTOR v. MICHEL BAGARAGAZA, Case No.: ICTR-2005-86-I, ORDER FOR THE CONTINUED DETENTION OF MICHEL BAGARAGAZA AT THE ICTY DETENTION UNIT IN THE HAGUE, THE NETHERLANDS, 17 August 2024
• THE PROSECUTOR v. Vincent RUTAGANIRA, Case No. ICTR-95-IC-A, DECISION ON APPEAL OF A DECISION OF THE PRESIDENT ON EARLY RELEASE, 24 August 2024

Prisoner Joseph Serugendo Dies (22 August 2024)

The Registrar of the ICTR announced "the death of Joseph Serugendo a convicted person who was a former member of the governing board of the Radio Television Libre des Mille Collines (RTLM) and of the National Committee of the Interahamwe za MRND....On 2 June 2006, Serugendo was sentenced to 6 years imprisonment by Trial Chamber I of the ICTR. In his guilty plea, Serugendo admitted to having provided technical assistance and moral support to the RTLM in order to ensure its ability to continuously disseminate an anti-Tutsi message both prior to and during the genocide. He further acknowledged having used his influence within the MRND and Interahamwe to incite others to kill or cause serious harm to members of the Tutsi population, with the aim of destroying the Tutsi ethnic group. In sentencing him, the Chamber took into account not only the gravity of these crimes, but also Serugendo’s guilty plea and his substantial cooperation with the Prosecution. The Chamber noted that he expressed genuine remorse and a desire to help establish the truth regarding the events in Rwanda. At his sentencing hearing Serugendo expressed “sincere and profound regrets” to the “victims of the genocide perpetrated in my country Rwanda in 1994” and accepted responsibility for “my role in this unspeakable tragedy.” A copy of his Expression of Profound Regrets and his Declaration Addressed to the Rwandan People were admitted into evidence by the Trial Chamber. Serugendo was suffering from a terminal illness which was significant among the mitigating factors in his sentencing....Serugendo was arrested in Gabon on 16 September 2024 and transferred to Arusha on 23 September 2005. He entered into a plea agreement with the Prosecution on 16 February 2006. On 15 March 2006, he pleaded guilty to two counts under an amended indictment, which plea was accepted by the Chamber."

Defence Closes Case in Karera Trial (25 August 2024)

From the ICTR: "On 23 August 2006, the Defence closed its case in the trial of François Karera, the former Prefect of Kigali-Rural. Karera is charged with genocide and crimes against humanity. Hundreds of Tutsi are alleged to have been killed on the instructions or with the encouragement of the Accused in April and May 1994 in Rushashi commune, Nyamirambo sector, and Ntarama Church, all within the Kigali area. The trial began on 9 January 2024 before Trial Chamber I composed of judges Erik Møse, presiding, Sergei Alekseevich Egorov and Florence Rita Arrey. The Chamber heard 18 Prosecution witnesses and 25 Defence witnesses, including the Accused, over 33 trial days, 15 of which were half days."

EGYPT AND PALESTINE CONFIRM COMMITMENT TO THE TRIBUNAL (28 August 2024)

From the ICTR: "Dean of Arab Ambassadors in Tanzania, H.E. Ambassador Sabry Sabry, Ambassador of Egypt to Tanzania together with H.E. Yousef Habbab, Ambassador Extraordinary and Plenipotentiary of the State of Palestine visited the International Criminal Tribunal for Rwanda (ICTR) between the 22 nd and 25 th of August, 2006. During their visit they confirmed their respective country’s commitment to ensuring peace, security and stability in the Great Lakes region. Ambassador Sabry and Ambassador Habbab paid courtesy calls to the President of the Tribunal, Judge Erik Møse who addressed them on the on-going trials and the Completion Strategy. The Registrar of the Tribunal, Mr. Adama Dieng on his part thanked them for the visit and reiterated the appreciation for the support from the Arab and African countries to the Tribunal. The two Ambassadors attended court hearings in Trial Chamber I in the case of the Prosecutor vs. François Karera, former prefect of Kigali rural."

The Special Court for Sierra Leone (SCSL)

Court Schedule
Court Summary, Week Ended 4 August 2024

Case Resources:

The Civil Defence Forces (CDF) Accused

The Revolutionary United Front (RUF) Accused

The Armed Forces Revolutionary Council (ARFC) Accused

Prosecutor v. Charles Taylor

International Criminal Court (ICC)

Hearing Schedule

ICC Newsletter (July 2006)

ICC holds meeting with representatives of Iteso Cultural Leaders (24 August 2024)

Pre-Trial Chamber I receives documents containing the charges and list of evidence against Mr Thomas Lubanga Dyilo (28 August 2024)

From the ICC: "On 28 August, in the case The Prosecutor vs. Thomas Lubanga Dyilo, the Registry of the International Criminal Court (ICC) registered the document containing the charges and the list of the evidence that the Office of the Prosecutor intends to present at the confirmation hearing. The hearing is scheduled to take place on 28 September at 11 a.m. The documents will be transmitted to the judges of Pre-Trial Chamber I and to the Defence. Thomas Dyilo Lubanga, a Congolese national, is alleged to have committed the crimes of enlisting, conscripting and using children under 15 years of age to participate actively in hostilities in the Democratic Republic of the Congo."

Child soldier charges in the first International Criminal Court case (28 August 2024)

From the ICC: "In his latest report on this issue, the United Nations Secretary General has reported that from January 2004 to May 2006, more than 18,000 children were released from forces and armed groups in the DRC. Thousands more have escaped on their own. Yet children remain vulnerable to new threats, including re-recruitment, and girls especially have found it extremely difficult to reintegrate into civilian life. The case against Thomas Lubanga Dyilo represents almost two years of intense, on-the-ground investigation by the Office of the Prosecutor. Scores of missions to the DRC produced multiple statements. At the confirmation hearing, the Office of the Prosecutor will unveil for the first time evidence showing that Thomas Lubanga Dyilo’s organization enlisted and forcibly recruited children into the ranks of their armed militia, and that Thomas Lubanga Dyilo was instrumental in orchestrating these activities. The Court has 60 days from the last day of the hearing to decide whether there is sufficient evidence to warrant a trial."

ICC holds workshop with local leaders in Amuria district (28 August 2024)

Statement of Fatou Bensouda, Deputy Prosecutor of the International Criminal Court, at the OTP monthly media briefing (28 August 2024)

Situations & Cases:

Situation in Dafur, Sudan

• Application on behalf of the United Nations High Commissioner for Human Rights for Variation of Time, Pursuant to Regulation 35, in respect of a Decision of Pre-Trial Chamber I Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence (18 August 2024)
• Decision of the Registrar Appointing Mr. Hadi Shalluf as ad hoc Counsel for the Defence (25 August 2024)
• Decision on Request for Extension of Time Limit (28 August 2024)

Situation in Central African Republic

Situation in Uganda

• The Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen

Situation in Democratic Republic of Congo

• The Prosecutor v. Thomas Lubanga Dyilo (Pre-Trial Phase)
• The Prosecutor v. Thomas Lubanga Dyilo, Submission of the Document Containing the Charges pursuant to Article 61(3)(a) and of the List of Evidence pursuant to Rule 121(3), 28 August 2024
• The Prosecutor v. Thomas Lubanga Dyilo, Annex 2 [Redacted version of Charges], 28 August 2024