Some Legal Issues Concerning the ICC-AU ‘Crisis’: A Reply to Abreha Z Mesele

Abreha Z. Mesele has written (ICC and African Union: Selective Justice?) an informative piece on the recently inflamed ICC-African Union altercation; or rather African Union’s ringing condemnations of the practice of ICC, calling it big-powers’ instrument of ‘pummelling the weak ones’.  In this piece I would like to offer some of my views on the issue, by way of a response to Abreha’s paper. Abreha has accomplished the task of laying out the essential introductory ground-work, and so I will refrain from any redundancy and delve straight into discussing the issues that I think are overlooked or misrepresented in the general discussion on the topic and in Abreha’s piece specifically.

I would like to discuss three important (loosely interrelated) points. First, I dispel the suggestion that the ICC is primarily funded by powerful states (read: the US) and to that extent serves as an instrument of their desires. Second, I will argue that powerful states would still be able to shield themselves from the ICC by using the powers of the Security Council, even if the Statute of the ICC had not bestowed upon the Security Council powers to defer cases from consideration by the ICC. Thirdly, I present two possible interpretations to resolve the apparent contradiction between article 27 (waiver of immunity) and article 98 (requirement of consent in waiving immunity) of the ICC Statute that Abreha pointed at. I will end my discussion with a rather pessimistic but practicable note (as opposed to the idealist but paralyzing suggestions we often hear) on the way forward regarding the ICC-AU ‘crisis’.

ICC Financing and Big-Power Instrumentality

Misperceptions about the financing of the ICC are one of the more important factors influencing attitudes toward the practice of the court. Contrary to widely held assumption (also subscribed to by Abreha), the ICC is not funded by ‘big/super powers’ (which is mainly a code word for ‘the US’), and to that extent the ICC is not an instrument at the disposal of the will of the US. The ICC is funded mainly by the regular contributions of all of its 122 member states, although one could say the bigger powers contribute more as their contribution follows what is called the ‘assessed contributions’ formula of the UN. The US in particular is not a party to the ICC Statute and therefore does not contribute to the court’s budget. There is a possibility for non-members to contribute to the funding of the ICC voluntarily, but the United States has never volunteered. In fact, a law in the United States expressly prohibits the government from making contributions to the ICC. The other circumstance the US would be said to cover the costs of the court is when the Security Council makes a referral to the ICC. In such cases, the UN itself covers the costs of the cases and therefore the US would indirectly bear a portion of the costs as a member of the UN. But such costs are incurred from the regular budget of the United Nations to which the United States and all other nations contribute in lump sum, and therefore no state wields particular dominance over the specific programmes that such general contributions accomplish. All member states of the ICC, including the big Western and other states, contribute to its meagre budget of around 100 million Euros a year. The biggest financial contributor to the ICC is in fact Japan, contributing not more than 20 per cent of the court’s annual budget; I guess that says it all about the relative insignificance of a financing-based critique of ‘big-power instrumentality’ against the ICC.

Big-Powers and the ICC: the Powers of the Security Council

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The ICC and Ethiopia - Still Missing from The Statute

Human rights are to be respected and protected by States through all appropriate measures, so goes the rhetoric.  States must also make solutions available at domestic level to any citizen who claims his/her rights were violated. Individual victims of human rights violation also have the right to seek justice from regional or international institutions. In some countries such violations are committed grossly & systematically that the normal procedures through domestic justice appear to be not enough to address them.

 

Mostly, such systematic & gross violations of human rights are committed at state level for perceived end causes of, say, crushing opposition, sustaining absolute power and maintaining territorial integrity that involves cross border wars, although less common nowadays. The systematic genocide in Chile during the regime of Augusto Pinochet, in Uganda during the Id Amine regime, in South Africa during the Apartheid regime, and in Ethiopia during the Dergue regime were all orchestrated and executed at state levels.

 

One of the most significant developments made in the direction of dealing with mass grave human rights violations & fighting impunity was the establishment of the International Criminal Court (ICC) pursuant to the Rome Statute of the International Criminal Court, which was adopted at a conference in Rome, on 17 July 1998. The Statute, entered in to force on 1 July 2002, resulted in the formation of the Court which is based in The Hague, Netherlands. Today a total of 121 countries are states parties to the Rome Statute. Out of them 33 are African states.

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Making the WTO Accession Work for Ethiopia: Lessons from Cambodia and Nepal

 

World Trade Organization (WTO) was established with the main objective of liberalizing multilateral trade, based on the belief that the liberalization of trade brings multiple of benefits to the world population. To this end, the preamble to the Agreement Establishing the WTO (Marrakesh Agreement), provides that “[t]he Parties to this Agreement, recognizing that their relations in the field of trade and economic [endeavor] should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand.” Countries   also join it on the belief that a liberal trade regime will confer these benefits upon those who become members. Moreover, it is noted that the establishment of the WTO in 1995 represented a shift from a multilateral trading system based on diplomacy under the General Agreement on Tariffs and Trade (GATT) regime to one that operates under the rule of law. On the other hand, it is argued that the guidelines of accession process under Article XII of the Marrakesh Agreement are vague and making the accession process demanding and time consuming. It is also contended that the absence of clear guidelines of accession to the WTO has been allowing current Member states to impose “WTO+” obligations on acceding countries, which is more burdensome especially on least developing countries.

 Nepal and Cambodia are among the poorest countries in the world and they were   the first least developed countries (LDCs) to be acceded to the WTO since it was founded in 1995. Their application for membership was motivated by a desire to ensure predictable market access and become eligible for the special concessions available to LDCs under WTO rules. Moreover, the countries hoped to use accession to the WTO as an incentive for accelerating domestic economic, legal and institutional reforms to create a stable business environment and attract foreign direct investment. However, an analysis of their terms of accession confirms the general trend of exacting significant “WTO+” concessions by the developed members from acceding countries although they were agreed to facilitate and accelerate negotiations with acceding LDCs at the 2001 Launch of the Doha Round of trade negotiation.

 Currently, Ethiopia is also in the process of accession to the WTO. Needless to state, WTO accession is not an end in itself but a means to achieve greater national economic development objectives. On the other hand, the process of accession and terms of commitments have been found so demanding and the potential prospects of being a member of the WTO are mixed with potential challenges. As what is accepted during the bilateral negotiation phase finally  binds an acceding country, it would be wise to carefully and strategically negotiate favorable terms rather than rushing to agree to all onerous terms which compromises the national development objectives instead of bringing the anticipated benefits of membership. To this end, learning from the experiences of other countries, notably LDCs, which have passed through the same process while acceding to the WTO, would be significant.

 This article examines the experiences of Cambodia and Nepal during the accession process, accession commitments, and accession implementation with a view to identifying some lessons that can be helpful to other acceding LDCs, particularly Ethiopia, devise successful strategies and avoid some of the mistakes in an effort to gain maximum benefit from their WTO membership. The article contains three parts. Part one deals with the WTO Accession process so briefly. The second part assesses the experiences of Nepal and Cambodia during their accession process, accession negotiations and accession implementation. The last part produces some lessons that can be relevant to Ethiopia and other LDCs from the experiences of Nepal and Cambodia as well as possible recommendations. The study mainly employs secondary data.

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ጠላፊው vs አጋቹ - ኢትዮጵያ vs ስዊዘርላንድ

ዛሬ በጠዋቱ ዜናው በሙሉ ከአዲስ አበባ ወደ ሮም ሲጓዝ የነበረን 202 ሰዎችን ያሳፈረ የኢትዮጵያ አውሮፕላን 'መጠለፍ' ጉዳይ ነበር፡፡ የኢትዮጵያ ኮሙንኬሽን ጉዳዮች ሚኒስትር ‹ጠላፊው ካርቱም ላይ የተሳፈረ ሰው ይመስላል› ቢሉም በመጨረሻ አውሮፕላኑ ካርቱም ላይ ከነጭራሹ እንዳላረፈና ጠላፊውም ረዳት ፓይለቱ እንደሆነ ተረጋግጧል፡፡ ረዳት ፓይለቱ ለምን ይሄን ተግባር እንደፈፀመ ሲጠየቅም ኢትዮጵያ ውስጥ መኖር ስጋት ላይ እንደጣለው በመግለፅ፤ ሲዊዘርላንድ ጥገኝነት እንድትሰጠው ጠይቋል፡፡

 ይህ ከሆነ ከጥቂት ሰዓታት በኋላ የስዊዘርላንድ አቃቢ ሕግ መስሪያ ቤት እንደገለፀው ግን ጉዳዩ ጠለፋ (Hijacking) ሳይሁን እገታ ( Hostage Taking) ነው ብሏል፡፡ በሌላ በኩል ረዳት ፓይለቱ ወደ ኢትዮጵያ ተላልፎ እንዳይሰጥ ስዊዝን ተማፅኗል፡፡ ሁለት የህግ ጥያቄዎች አሉ፡

1. ጠለፋ ወይስ እገታ?

2. በረዳት ፓይለቱ ላይ የዳኝነት ስልጣን (Legal Jurisdiction) ያለው አካል ማነው? ኢትዮጵያ ወይስ ስዊዘርላንድ?

እነዚህን ጉዳዮች የሚፈቱልን ሁለት አለማቀፍ ሕጎች አሉ (ኢትዮጵያም ስዊዘርላንድም የሁለትም የሕጎቹ ፈራሚ ሀገራት ናቸው)፡፡

1. Convention for the Suppression of Unlawful Seizure of Aircraft – Hijacking Convention on Hijacking – 1970 &,

2. International Convention Against the Taking of Hostages – Convention on Hostage taking - 1983.

በነዚህ ሁለት ሕጎች መሰረትም የረዳት ፓይለቱን ሁኔታ (Situation ) እንይ፡፡

1ኛ. ጠለፋ ወይስ እገታ?

ከላይ በመጀመሪያ የጠቀስነው የHijacking Convention 'ጠለፋ'ን በአንቀፅ አንድ ላይ እንዲህ ይፈታዋል:

Any person who on board an aircraft in flight:

unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or is an accomplice of a person who performs or attempts to perform any such act commits an offence [of Hijacking].

በሌላ በኩል ከላይ በሁለተኝነት የጠቀስነው የHostage taking convention 'እገታ'ን በአንቀፅ አንድ ላይ እንዲህ ይተረጉመዋል፡

Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of hostage-taking.

የኢትዮጵያዊው ረዳት ፓይለት ተግባርም ጥገኝነት ለማግኝት ያደረገው ማስገደጃ መሳሪያ በመሆኑ የስዊዘርላንድ አቃቢ ሕግ መስሪያ ቤት እንዳለው ተግባሩ ለእገታ የቀረበ ሲሆን፤ ተጠያቂነቱም ከእገታ ጋር በተያያዘ ይሆናል ማለት ነው፡፡

2ኛ. ኢትዮጵያ ወይስ ስዊዘርላንድ?

ጉዳዩ 'እገታ' ነው ካልን በጉዳዩ ላይ ተገቢ የሆነው ሕግ አለማቀፉ የፀረ እገታ ሰምምነት (Hostage taking convention) ነው ማለት ነው፡፡ በዚህም መሰረት በረዳት ፓይለቱ ላይ የዳኝነት ስልጣን ያለው የየትኛው ሀገር መንግስት ነው? የሚለው ቀጣዩ ጥያቄ ነው፡፡

ሕጉን ጠቅሰን ብናልፍ ይሻላል፡፡ ዓለማቀፉ የHostage taking convention በአንቀፅ አራት ላይ እንዲህ ይደነግጋል፡

State shall take such measures as may be necessary to establish its jurisdiction over the offence and any other act of violence against passengers or crew committed by the alleged offender in connection with the offence, in the following cases:

A. when the offence is committed on board an aircraft registered in that State (በዚህ መሰረት ኢትዮጵያ ስልጣን ይኖራታል);

B. when the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board (በዚህ መሰረት ደግሞ ስዊዘርላንድ ስልጣን ይኖራታል ማለት ነው).

ስለዚህም በጉዳዩ ላይ የሁለት ሀገሮች የዳኝነት ስልጣን ያለ ሲሆን፤ ኢትዮጵያ የአውሮፕላኑ ባለቤት በመሆኗ፣ ስዊዘርላንድ ደግሞ አውሮፕላኑ በግዛቷ በማረፉ ስልጣን አላት ማለት ነው፡፡ በዚህ ጊዜ ማን ቀዳሚ ስልጣን ይኖረዋል? የሚለው የሚወሰነው ተጠርጣሪውን (በአሁኑ ጉዳይ ረዳት ፓይለቱ) በቁጥጥር ስር ቀድሞ በማዋል የሚወሰን ሲሆን በአሁኑ ጉዳይ ላይ የዳኝነት ስልጣኑ የስዊዘርላንድ ነው ማለት ነው፡፡

መውጫ፡

ኢትዮጵያ ተጠርጣሪው ተላልፎ እንዲሰጣት (Extradition) በፀረ እገታ ሰምምነቱ አንቀፅ 7ና 8 መሰረት መብት ቢኖራትም ኢትዮጵያና ስዊዘርላንድ የአሳልፎ የመስጠት ስምምነት (Extradition agreement) ስለሌላቸው (እኔ እስከማውቀው ድረስ) ተላልፎ የመሰጠት ጉዳዩ ብዙም አድል የለውም፡፡ የስዊዘርላንድ አቃቢ ሕግ መስሪያ ቤትም ከአሁኑ ክስ ለመመስረት ጉዳዩን እያጣራ እንደሆነ መልለጫ ሰጥቷል፡፡ 

በመጨረሻም:

ረዳት ፓይለቱ ጥፋተኛ ሆኖ ከተገኝ በስዊዘርላንድ የወንጀል ሕግ SR 311.0 አንቀፅ 185 መሰረት ከ3 ዓመት እስከ 20 ዓመት (እንደ ነገሩ ሁኔታ) የሚደርስ ቅጣት ይጠብቀዋል፡፡ በሌላ በኩል 'ድንገት' ተላልፎ ለኢትዮጵያ ቢሰጥ ደግሞ በኢትዮጵያ የወንጀል ሕግ አንቀፅ 507/1 መሰረት ከ15 አስከ 20 ዓመታት እስር ይጠብቀዋል ማለት ነው፡፡ 

እንግዲህ ምን ይደረጋል፤ ፈጣሪ ከእሱ ጋር ይሁን? :) 

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Have you heard about the Budapest Memorandum? It’s Totally Worthless

Speaking of the current Russia-Ukraine crisis, here is an interesting but less visible international legal dimension to the story.

Ukraine used to be part of the Soviet Union, during which time it had possessed huge stockpile of nuclear weapons arsenal – actually the third largest stockpile in the world at the time. Russia would not have ventured into Crimea today had Ukraine maintained possession of those nuclear weapons. What happened in 1994 was dramatic, and a bit embarrassing for Ukraine. At the end of the Cold War Ukraine agreed to an international deal that would deprive it of the entire nuclear weapon stockpile in its territory, mostly being transferred to Russia. In exchange, Russia, the US, and UK signed a binding pledge, the so-called Budapest Memorandum, guaranteeing the security of Ukraine. Now, what is interesting about this Memorandum is that it actually contained zero added-value as it offered Ukraine nothing other than what general international law already provided. Let me walk you through all the five articles of this Memorandum (yes it contained only five articles).

Article one states that Russia, USA and UK reaffirm their commitment to ‘to respect the independence and sovereignty and the existing borders of Ukraine’. Why is this promise useless? Because article 2(4) of the UN Charter, which has since become customary international law and even arguably a peremptory norm, already prohibits states from using ‘the threat or use of force against the territorial integrity or political independence of any state.’ Respecting the territory, independence and sovereignty of Ukraine is a customary international rule, and no additional treaty is needed for that.

Article two of the Memorandum basically repeats the above point, stating that the three powerful states will ‘refrain from the threat or use of force against the territorial integrity or political independence of Ukraine’, and adds that ‘none of their weapons will ever be used against Ukraine except in self-defence or otherwise in accordance with the Charter of the United Nations.’ This article seems to waste two clauses to say one and the same thing: what is the difference between ‘refraining from threatening or attacking’ another country and promising one’s ‘weapons won’t be used against’ such other country?  Or the difference between saying ‘I will not attack you’ and ‘none of my equipment will be used to attack you’?  One may say the first formulation concerns the actions of the attacker only while the later formulation creates responsibility on such party for the consequences of its weapons, by whomever the weapons may be used. That is to say, the first clause guarantees Russia, USA, and UK wont attack Ukraine, while the subsequent clause guarantees that the nuclear weapons of these states won’t be used by themselves or any other state against Ukraine. In either case, in as long as the Memorandum only envisages scenarios where the three states would have some control over the use of their nuclear weapons, either by themselves or through proxies, the general international law prohibition on the treat or use of force adequately covers it. A state would be held through the rules of state responsibility even if it uses other states (or non-state actors for that matter) as its proxy to attack another state. In sum, in article two of the Memorandum, Russia, USA, and UK promised not to attack Ukraine – but international law would not have allowed them to even if they had not made that promise.

Article three of the Memorandum guarantees that Russia, USA, and UK would ‘refrain from economic coercion designed to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty.’ This seems to offer something distinct. Although unacceptable, there is no concrete rule under international law that prohibits the use of economic coercion against states (during the preparation of the UN Charter economic coercion was proposed to be prohibited together with the threat or use of force, but the proposal was rejected). However, the 1975 Final Act of the Conference on Security and Cooperation in Europe (Helsinki Accords) to which Ukraine and the three powerful states are members already prohibits the use of economic coercion against states. Article three of the Budapest Memorandum, therefore, is simply redundant.

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ዓባይ ከቅኝ ገዥዎችና ከዓለም አቀፍ ሕግ አንፃር

 

 

ሳፔቶ ሩባቲኖ የተባለ ኩባንያን በማቋቋም ወዲያው የባህር ንግዱን ማጧጧፍ ጀመረ፡፡ ከአሥራ ሁለት ዓመታት በኋላ የኢጣሊያ መንግሥት የጂቡቲን ጠረፋማ አካባቢ እንዲሁ በገንዘብ በመግዛት ከራስ ዱሜራ እስከ ራስ አሊ ከተቆጣጠረችው ፈረንሣይ ጋር ለመሻማት ኩባንያውን ከነካፒታሉ በመግዛት የአሰብን ጠረፋማ አካባቢዎች ተቆጣጠረ፡፡

በሌላ በኩል ደግሞ ግብፅን ስታስተዳድር የነበረችው እንግሊዝ ሱዳን ላይ የተቀሰቀሰውን ኃይለኛ የሙስሊም መሠረታውያን (ፋንዳሜንታሊስቶች) አብዮት ለመከላከል ሁነኛ አጋር ሆና እንድትቆምላት ኢጣሊያ ከቆላማዎቹ የቀይ ባህር አካባቢዎች በመነሳት ወደ ደጋማው የኢትዮጵያ ግዛት (ኤርትራ) ግዛቷን እንድታስፋፋ አበረታታቻት፡፡

ይህ በእንዲህ እንዳለ የሱዳን ሙስሊም ፋንዳሜንታሊስቶች በሱዳን ምሥራቃዊ ክፍል የመሸገውን ለእንግሊዝ ያደረ የግብፅ ጦር በመክበብ በውኃ ጥም ሊፈጁት ሆነ፡፡ 

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Status and Application of Juvenile Related International Frameworks in Ethiopia

The applicability of international frameworks, in general, depends initially on the status a given country gives to international instruments in its legal system. Its commitment begins with the clear statement it makes regarding the status and application of those ratified instruments. This is why usually States determine in their domestic legislations status related issues such as incorporation, hierarchy, implementation mechanisms, implementing institutions, etc of international instruments. This topic briefly discusses the status and applicability of juvenile justice related international instruments, particularly the ACRWC and the CRC, in Ethiopia.

International law does not recognize a specific mode of incorporation of international instruments leaving the room for States to choose their own way of incorporation. Because of this, modes of incorporation differs from one country to the other traditionally falling either in monism (mostly followed by civil law countries), where international law and domestic law are part of the same legal order by virtue of declaration made to that effect usually in the Constitution, and dualism (followed by common law countries), where international law is separate and not directly applicable in the domestic order unless incorporating/enabling legislation is passed to that effect.

Other modes of incorporation are also recognized by other scholars such as Cassese. One is, Automatic Standing Incorporation, whereby states declaring present or future international rules to apply without the need to pass statutes. This mode of incorporation resembles with the monist mode. The second, Legislative ad hoc incorporation requires the legislator to pass specific enabling statute regarding the treaty. The statute, commonly known as ratifying legislation usually include three or four provisions presenting ‘short title’, ‘ratification clause’, ‘scope of application’, and ‘effective date. The third mode of incorporation is called statutory ad hoc incorporation, which requires the legislature to convert every detail of treaty provisions in to national legislation.

The mode of incorporation in Ethiopia appears confusing seemingly utilizing all above discussed modes. Article 9(4) of the FDRE Constitution recognizes the monist mode or automatic standing incorporation mode by declaring every ratified treaty to form ‘an integral part of the law of the land’. Therefore, the Constitution enabled international treaties to apply directly as part of the laws of the land up on ratification.

The dualist or legislative ad hoc, or statutory ad hoc modes of incorporation also seem to exist in Ethiopia. The Federal Negarit Gazeta Establishment Proclamation (the Proclamation) requires publication of every law either duly enacted domestically or ratified to have legal effect. Based on this the practice developed incorporation of treaties in the form of statutory ad hoc mode

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