Categorized | Current Affairs, Sea and Water, TerritoryUNCLOS Annex VII Arbitration Who, What, Where, When?Posted on 25 March 2013.

What is Annex VII arbitration? Part XV of UNCLOS deals with the settlement of disputes concerning the interpretation or application of the Convention. When parties are unable to settle a dispute by negotiation, conciliation or other peaceful means, the Convention provides for compulsory dispute settlement. Article 287 sets out a choice of compulsory dispute settlement procedures, namely (i) ITLOS; (ii) the ICJ; (c) an Annex VII arbitral tribunal or (d) an Annex VIII special arbitral tribunal for specific categories of disputes. States that do not make a written declaration setting out their choice of procedure are deemed to have accepted Annex VII arbitration. Moreover, if the parties have not chosen the same dispute settlement procedure, the dispute may only be submitted to Annex VII arbitration, in the absence of agreement to another procedure.

An Annex VII arbitral tribunal is composed of five members and is free to determine its own procedure, unless the parties agree otherwise. Annex VII arbitration thus offers greater flexibility than dispute settlement bodies with fixed rules of procedure, namely ITLOS and the ICJ. This may partially account for the increasing popularity of Annex VII arbitration. The PCA is acting as registry in the four pending Annex VII arbitrations.

Philippines/China Maritime jurisdiction of the Philippines in the West Philippines Sea (aka South China Sea)

Initiated: 22 January 2013 by the Philippines

Status of submissions: The Philippines filed a statement of claim on 22 January 2013. On 19 February 2013 China rejected and returned the Philippines Notification and Statement of Claim.

Points of interest:

In response to Chinas rejection of the statement of claim, the Philippines stated that the arbitration would proceed and that the 5-member arbitration panel would be formed with or without China. Presumably, the Philippines had in mind the procedure set out in Article 3 of Annex VII. The provisions on the appointment of arbitrators provide that China has 30days from receipt of the statement of claim to appoint one member to the tribunal, and that if the appointment is not made within that period, the Philippines may, within two weeks of the expiration of that period, request that the appointment be made by the President of ITLOS in accordance with subparagraph (e) of Article 3. Article 3(e) requires the ITLOS President to make such an appointment from a list of arbitrators maintained by the UN Secretary-General within 30days of the receipt of the request and in consultation with the parties. The Department of Foreign Affairs of the Philippines confirmed on Monday 25 March 2013 that they had made such a request to the President of ITLOS, Judge Yanai, and that he has appointed Judge Stanislaw Pawlak (Poland) as an arbitrator on behalf of China.

As for the remaining three arbitrators, subparagraph (d) of Article 3 provides that in the absence of agreement of the parties within 60 days of the notification of claim, they are to be nominated in accordance with subparagraph (e) outlined above. The 60-day period expired on 23 March 2013 and the Philippines have 2 weeks from that date to request the President to appoint the remaining arbitrators.

As for non-appearance, Article 9 of Annex VII provides that absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. In theory then, this arbitration may proceed without the participation of China, though the tribunal must, as a preliminary matter, satisfy itself that it has jurisdiction over the dispute and that the claim is well founded in fact and law. China may have a well-founded objection to the jurisdiction of the tribunal based on a declaration made regarding the dispute settlement provisions of UNCLOS under Article 298. Before considering the Article 298 issue it is noted that the Chinese also reportedly reject the claim on the basis that it violates the consensus enshrined in the Declaration on the Conduct of Parties in the South China Sea. China ratified UNCLOS in June 1996 but made a further declaration under Article 298 in August 2006. The declaration provides:

The Government of the Peoples Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.

Article 298 provides that States may choose not to accept the four compulsory dispute settlement procedures of Article 287 with respect to certain categories of dispute namely (a) disputes involving maritime boundaries or historic titles; (b) disputes concerning military activities and (c) disputes being dealt with by the Security Council. It follows that China is not obliged to accept Annex VII arbitration for a dispute involving sea boundary delimitations or historic titles. However, 298.1(a)(i) provides that in such cases, either party to the dispute may request the creation of a conciliation commission under Annex V. Unlike the procedures set out in Article 287, the decisions of an Annex V conciliation commission are not binding. Article 298.1(a)(ii) provides:

after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section2, unless the parties otherwise agree.

As a result, if the arbitration proceeded without the participation of China, and the arbitral tribunal found that it lacked jurisdiction due to Chinas declaration under Article 298, China would be required to submit the dispute to Annex V conciliation and to negotiate an agreement on the basis of the report of the conciliation commission. Of course, the Philippines may argue that the dispute in question is not covered by the Article 298 declaration, and it is entitled to a forum in which to do so. Article 288(4) of UNCLOS provides that in the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.

Ad Hoc Arbitration Under Annex VII of the United Nations Convention on the Law of the Sea

The 1982 United Nations Convention on the Law of the Sea (UNCLOS), which came into force on November 16, 1994, is an international treaty that provides a regulatory framework for the use of the worlds seas and oceans, inter alia, to ensure the conservation and equitable usage of resources and the marine environment and to ensure the protection and preservation of the living resources of the sea. UNCLOS also addresses such other matters as sovereignty, rights of usage in maritime zones, and navigational rights. As of January 10 2014, 166 States have ratified, acceded to, or succeeded to, UNCLOS. The full text and status of UNCLOS can be accessed through the United Nations Division for Oceans Affairs and the Law of the Sea.

UNCLOS sets forth in Part XV rules for the resolution of disputes between State Parties arising out of the interpretation or application of UNCLOS. Pursuant to Article 287(1) of UNCLOS, when signing, ratifying, or acceding to UNCLOS, a State may make a declaration choosing one or more of the following means for settling such disputes:

the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany;

the International Court of Justice in The Hague, The Netherlands;

ad hoc arbitration (in accordance with Annex VII of UNCLOS); or

a special arbitral tribunal constituted for certain categories of disputes (established under Annex VIII of UNCLOS).

Pursuant to Article 287(3) of UNCLOS, arbitration under Annex VII is the default means of dispute settlement if a State has not expressed any preference with respect to the means of dispute resolution available under Article 287(1) of UNCLOS (and has not expressed any reservation or optional exceptions pursuant to Article 298 of UNCLOS). Likewise, pursuant to Article 287(5) of UNCLOS, if the parties have not accepted the same procedure for the settlement of the dispute, arbitration under Annex VII is the default means of dispute settlement (again subject to same exceptions or reservations pursuant to Article 298).

Since the 1982 Convention came into force in 1994,twelve cases have been arbitrated under Annex VII of UNCLOS. The PCA is acting, or has acted, as registry ineleven of those cases. The cases arbitrated under the auspices of the PCAinclude the following:

The Duzgit Integrity Arbitration (Malta v. So Tom and Prncipe), which was instituted in October 2013 and is still pending;

The Arctic Sunrise Arbitration (the Netherlands v. the Russian Federation), which was instituted in October 2013 and is still pending;

The Atlanto-Scandian Herring Arbitration (Denmark in respect of the Faroe Islands v. the European Union), which was instituted in August 2013 and is still pending;

Philippines v. China, which was instituted in January 2013 and is still pending;

Mauritius v. United Kingdom, which was instituted in December 2010 and is still pending;

Bangladesh v. India(the "Bay of Bengal Maritime Boundary Arbitration"), which was instituted in October 2009 and decided by a final award rendered on July 7, 2014;

Argentina v. Ghana, (the "ARA Libertad Arbitration"), which was instituted in October 2012 and terminated through a tribunal order issued in November 2013 following an agreement between the Parties reached in September 2013;

Barbados v. Trinidad and Tobago, which was instituted in February 2004 and decided by a final award rendered on April 11, 2006;

Guyana v. Suriname, which was instituted in February 2004 and decided by a final award rendered on September 17, 2007;

Malaysia v. Singapore, which was instituted in July 2003 and terminated by an award on agreed terms rendered on September 1, 2005; and

Ireland v. United Kingdom (MOX Plant Case), which was instituted in November 2001 and terminated through a tribunal order issued on June 6, 2008.

Having administered most of the UNCLOS Annex VII arbitrations to date, the PCA has gained unique experience in dealing with, among other things, diverse organizational, procedural, and substantive issues that may arise in such arbitrations.

Through an exchange of letters between the Secretary-General of the PCA and the Registrar of ITLOS, the PCA and ITLOS have agreed to cooperate with respect to relevant legal and administrative matters. Under the arrangement, the PCA and ITLOS have undertaken to exchange documents, particularly those connected with disputes under Annex VII of UNCLOS, and to explore cooperation in other areas of concern

Summary of Treaty

GENERAL DATA

Official TitleUnited Nations Convention on the Law of the Sea (UNCLOS)

Type of AgreementMultilateral

Place of SignatureMontego Bay, Jamaica

Date of Signature10/12/1982

Date of Entry Into Force16/11/1994

DurationIndefinite

Objective of AgreementTo establish, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilisation of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.

International organisation established by the treatyInternational Sea-Bed Authority

RemarksThe Convention was adopted by the Third United Nations Conference on the Law of the Sea and opened for signature, together with the Final Act of the Conference, at Montego Bay, Jamaica, on 10 December 1982. The Conference was convened pursuant to resolution 3067 (XXVIII)1 adopted by the General Assembly on 16 November 1973. The Conference held eleven sessions, from 1973 to 1982. The Conference also adopted a Final Act 2 with, annexed thereto, nine resolutions and a statement of understanding.

The Convention establishes a comprehensive legal framework to regulate all ocean space, its uses and resources. It contains, among other things, provisions relating to the territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone and the high seas. It also provides for the protection and preservation of the marine environment, for marine scientific research and for the development and transfer of marine technology. One of the most important parts of the Convention concerns the exploration for and exploitation of the resources of the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (the Area). The Convention declares the Area and its resources to be "the common heritage of mankind". The International Seabed Authority, established by the Convention, administers the resources of the Area.

The Convention and Part XI of the Convention are to be interpreted and applied together as a single instrument.

The mechanism established by the Convention provides for four alternative means for the settlement of disputes: the International Tribunal for the Law of the Sea (Annex VI to the Convention), the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the Convention.

Upon becoming a party to the 1982 United Nations Convention on the Law of the Sea, the European Community and the other States parties agreed, inter alia, to strike a balance between the rights and obligations of coastal states and those of countries carrying on fishing activity on the high seas. The main aim of such balance is the sustainable exploitation of fish resources.

Following the extension of the exclusive economic zones to 200 miles in the 1970s, distant-water fishing fleets had to reorganise their activities and consequently intensified their drain on resources. Combined with technical advances, this led to an alarming overexploitation of most stocks.

Stable international legal relations and the implementation of real cooperation represent a major challenge for the future of Community high-sea fishing. The European Union has consequently played an active part in the development of three new instruments which supplement and add further detail to the provisions established by the Convention on the Law of the Sea, namely:

- the Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas, adopted by the FAO in 1993; - the Code of Conduct for Responsible Fisheries, adopted by the FAO Conference in November 1995, which followed on from the Cancn Declaration of 1992; - the Agreement for the implementation of the provisions of the United Nations Convention on the Law of the Sea relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, known as the 'New York Agreement', adopted in 1995.

The European Union's accession to these instruments has had important implications on the fishing activities of the Community fleet in international and third-country waters, either through closer cooperation with the developing countries to help them become more effective in fisheries matters, or through support for the international community's efforts to combat illegal, unreported and unregulated fisheries (IUU), in particular within the framework of RFOs.

Under the same Decision (98/832/EC) of 23/03/1998, the Council also decided to conclude the 28 July 1994 Agreement on the implementation of Part XI of the Convention.

It should be noted that although the provisions on the International Tribunal of the Law of the Sea are to be found in the 1994 Agreement on the implementation of Part XI of the Convention, nevertheless, the Tribunal is established by the UNCLOS itself

Relation and Association with Other Agreements-Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS) -Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks

OJ ReferenceL179, 23/06/1998, p.3

DepositaryUnited Nations

Contracting PartiesEuropean Community, Afghanistan, Albania, Algeria, Angola, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bhutan, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Brunei, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Cook Islands, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Cte d'Ivoire, Democratic Republic of Congo, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Ethiopia, Federated States of Micronesia, Fiji, Finland, Former Yugoslav Republic of Macedonia, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hungary, Iceland, India, Indonesia, Iran, Iraq, Ireland, Italy, Jamaica, Japan, Jordan, Kenya, Kiribati, Kuwait, Laos, Latvia, Lebanon, Lesotho, Liberia, Libya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Marshall Islands, Mauritania, Mauritius, Mexico, Moldova, Monaco, Mongolia, Morocco, Mozambique, Namibia, Nauru, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Niue, Norway, Oman, Pakistan, Palau, Panama, Papua New Guinea, Paraguay, Philippines, Poland, Portugal, Qatar, Republic of Korea, Romania, Russia, Rwanda, Saint Christopher and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Saudi Arabia, Senegal, Serbia and Montenegro, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, Somalia, South Africa, Spain, Sri Lanka, Sudan, Surinam, Swaziland, Sweden, Switzerland, So Tom and Prncipe, Tanzania, Thailand, Togo, Tonga, Trinidad and Tobago, Tunisia, Tuvalu, Uganda, Ukraine, United Arab Emirates, United Kingdom, Uruguay, Vanuatu, Vietnam, Yemen, Zambia, Zimbabwe

Authentic TextsArabic, Chinese, English, French, Russian, Spanish

Subject MattersExternal Relations

Clause(s)Accession clauses

Article 307 Agreement

Amendment and review

Article 312 Agreement

Entry into force conditions

Article 308 Agreement

Non-affection clause

Article 311 Agreement

REIO

Article 305.1 Convention

Ratification Conditions

Article 306 Agreement

Settlement of disputes

Article 279-299 Convention

ManagementAssembly Council International Sea-Bed Authority Secretariat

EU PARTICIPATION

Date of Signature 07/12/1984

Conclusion Date01/04/1998

Ratification StatusCONF

Conclusion DecisionCouncil Decision of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof; OJ L179 of 23/06/1998, p.1

Date of Entry Into Force 01/05/1998

ReservesA declaration of EU competence exists for this treaty. To consult the text click on "to load all the summary data of the treaty".

CompetenceMixed

Voting Right(s)EC exercises voting rights of its MS contracting parties (if EC votes MS no and vice-versa)

Article 4 Annex IX

Legal BasisTreaty EC: Article 43 Treaty EC: Article 130 Treaty EC: Article 113

View Full Text of Treaty View Other Relevant Treaty Information View Consolidated Version of Treaty

Last Update : 13/10/2009

Shocker! Russia Walks Away from UNCLOS Arbitration and Will Ignore Netherlands Petition Over Greenpeace Detentions*

by Julian Ku

[Update below] It looks like China has started a trend. In a surprising statement (at least to me), Russia has announced it will not participate in the ITLOS arbitration brought by the Netherlands related to the detention of Greenpeace activists last month.

The Russian side has informed the Netherlands and the International Tribunal for the Law of the Sea that it does not accept the arbitration procedure in the Arctic Sunrise case, and is not planning to take part in the tribunals, the ministry said in a statement Wednesday, adding Moscow is still open to the settlement of the case. The statement did not elaborate.

The ministry insisted Russia is not obliged to recognize the authority of the maritime tribunal, saying the Russian government does not have to participate in disputes that concern sovereign rights and jurisdiction.

Hmm. This formulation sounds familiar somehow. Actually, Russia is citing its UNCLOS declaration, which excludes dispute settlement under UNCLOS concerninglaw-enforcement activities in regard to the exercise of sovereign rights or jurisdiction. But it echoes the Chinese objection as well.

I had written a post on the Netherlands memorial in support of its action against Russia in the International Tribunal for the Law of the Sea seeking provisional measures, but I forgot to publish it. Which is just as well. Because it looks like Russia is going to ignore whatever arbitration proceedings are constituted under Annex VII (following the Chinese example). I cant tell from this report, but it may be that Russia may ignore the ITLOS provisional measures hearing that is likely to be scheduled soon as well.

As Greenpeaces attorneys rightly point out, If the Russian Federation believes the Tribunal lacks jurisdiction, the normal and proper thing to do would be to raise this at the hearing, This would apply to China and the Philippines as well. If Russia does simply walk away, this is another body blow to the dispute settlement under the UNCLOS system, especially considering that Russia has accepted the jurisdiction of the ITLOS in past disputes.

*After this post went up, I noticed that Russia has also dropped the piracy charges against the Greenpeace activists, charging them now with hooliganism. This doesnt seem to affect their position on ITLOS arbitration, though. But perhaps settlement will be easier?The Jurisdictional Rubicon: Scrutinizing Chinas Position Paper on the South China Sea Arbitration Part IIPublished on January 30, 2015 Author:Diane Desierto

Yesterday I set out the background to thePosition Paperissued by the China, on December 7, 2014, on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines [hereafter, China Position Paper] and examined Chinas first objection to the jurisdiction of the arbitral tribunal. In this post, I consider the other Chinese objections.

Second Chinese Objection: Did the Philippines violate the duty to negotiate in regard to the subject-matter of this dispute, when it initiated the arbitration?The China Position Paper effectively maintains that the exclusive dispute settlement mechanism between the Philippines and China on the South China Sea is friendly consultations and negotiations (China Position Paper, paras. 30-39). This position would appear tenable, if one were to tacitly accept the characterization of the arbitrations subject-matter as one involving claims for maritime delimitation, rather than merely the interpretation or application of UNCLOS to the maritime limits drawn in the 9-dash line map as well as to the submerged geographic features described therein.

Notwithstanding the disputed characterization of the arbitrations subject-matter, however, it is difficult to see where a duty to exclusively pursue negotiations or friendly consultations exists. Ordinary textual examination of the bilateral instruments and multilateral instrument (e.g. the 2002 ASEAN Declaration on the Code of Conduct of Parties in the South China Sea) referenced in the China Position Paper, appears to militate against the notion of an exclusive choice of dispute settlement through friendly consultations and negotiations. Nothing in the language of the instruments therein definitively rules out compulsory arbitration under Part XV of UNCLOS which as UNCLOS Part XV also explicitly stresses, is likewise a peaceful means of dispute settlement in international law. Moreover, UNCLOS Part XV Article 283(1) carefully stresses that [w]hen a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. (Italics added.) This describes a remarkably low threshold for an applicant State to be able to demonstrate the failure to reach settlement (e.g. either failure of negotiations or failure to reach settlement through other peaceful means), before being able to access compulsory arbitration through an Annex VII tribunal under UNCLOS Part XV, Article 286. One can well anticipate that the Philippines could substantiate its prior recourse to peaceful means of dispute settlement through various diplomatic notes verbale sent to China, as well as to the United Nations, diplomatic protests at the UN as expressed during the 2012 Scarborough Shoal incidents, as well as other ongoing public statements of protest against continuing escalations that have occurred since the filing of the Statement of Claim in January 2013 (e.g. March 29, 2014 incident at Ayungin Shoal/Second Thomas Shoal; Chinas reported construction, through reclamation, of a man-made island or airstrip at Fiery Cross Reef; as well as to potentially note Vietnams protests and standoff with China on its deployment to, and operation of, an oil rig at the disputed Paracels Islands).

While I am not privy to the history, if any, of the formal diplomatic negotiations or other informal negotiations between the Philippines and China in relation to the subject-matter of the arbitration, one can draw instructive authority from ICJ jurisprudence when seeking to determine any alleged preconditional weight to negotiations (or, as in UNCLOS Part XV Article 286, other peaceful means), before a State can pursue recourse to inter-State adjudication. In its Advisory Opinion in Interpretation of Peace Treaties, the Court considered that diplomatic exchanges between a number of States could demonstrate the existence of a situation in which the two sides hold clearly opposite views concerning the performance or non-performance of certain treaty obligations, leading to a conclusion that international disputes have arisen and that parties have not succeeded in settling their disputes by direct negotiations (Interpretation of Peace of Treaties, Advisory Opinion, ICJ Reports 1950, p. 65, at pp. 74 and 76). The Court emphasized in Georgia v. Russia that where a precondition of negotiation is duly established, the precondition of negotiation is met only when there has been a failure of negotiations, or when negotiations have become futile or deadlocked. [Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1 April 2011, para. 159]. All that is required would be to show that no reasonable probability exists that further negotiations would lead to a settlement. [South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, ICJ Reports 1962, p. 345]. Negotiations should be conducted in good faith, with a genuine intention to achieve a positive result [North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; FRG v. The Netherlands), ICJ Reports 1969, at para. 85]; as well as acting in good faith to pay reasonable regard to the legal rights of the other. [Fisheries Jurisdiction (United Kingdom v. Iceland), ICJ Reports 1974, at p. 33].

It will be up to tribunal to determine and resolve questions of fact on negotiations or other peaceful means resorted to before recourse to adjudication in each case, such as the questions of whether negotiations have indeed taken place, and whether they failed, became futile, or were deadlocked. [Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010, at p. 64, para. 133; Georgia v. Russia, supra, at para. 160]. The evidentiary standard to show failure to reach settlement, at least insofar as UNCLOS Article 283(1), does not appear excessively difficult to hurdle.

Third Chinese Objection: Is the Philippine Statement of Claim, in reality, a maritime delimitation that China expressly excluded from UNCLOS Part XV compulsory arbitration through its 2006 Declaration?The China Position Paper restates Chinas 2006 written declaration under UNCLOS Article 298 (The Government of the Peoples Republic of China does not accept any of the procedures provided for in section 2 of Part XV of the Convention, with respect to all categories of disputes referred to in paragraph 1(a), (b), and (c) of Article 298 of the Convention.), referring to disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities, and disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations (China Position Paper, para. 58).

As previously discussed, it should be clear that Philippine Statement of Claim stops far too short of any claim to maritime delimitation in the South China Sea, when it merely seeks a ruling on the consistency of the maritime limits unilaterally drawn by China in its 9-dash line map with the permissible maritime zones under UNCLOS. The Philippine Statement of Claim does not ask the arbitral tribunal to draw any maritime boundaries with China or other claimants in the South China Sea, but rather seeks to interpret and apply UNCLOS to Chinas extant maritime limits or areas unilaterally drawn in the 9-dash line map. As the International Court of Justice emphasized in Maritime Delimitation in the Black Sea (Romania v. Ukraine): Delimitation is a function which is different from the apportionment of resources or areas. [Maritime Delimitation in the Black Sea (Romania v.Ukraine), Judgment, ICJ Reports, 2009, at para. 163.] As formerICJ President Judge Shi Jiuyong lectured in 2010, the following are the operational steps followed by the Court when resolving a dispute calling for maritime delimitation:

Normally, the Court must first consider whether any part of the maritime delimitation is already the subject of formal or tacit agreement between the parties if so, the Court must not disturb that aspect of the delimitation.

The Court must then determine the relevant coasts for the delimitation and determine which base points are to be used for the construction of a provisional equidistance line. The choice of base points is to be made on a purely legal basis with any inequities arising from such a choice to be dealt with at a later stage.

In most cases, the Court will then proceed to draw a provisional equidistance line (unless the special/relevant circumstances are such as to warrant the application of an entirely different method).

The Court will then consider whether the provisional equidistance line (or other line chosen) needs to be modified to achieve an equitable solution, having regard to a number of special/relevant circumstances. Circumstances related to coastal geography (in particular length of the coastline, shape of the coastline and presence of islands) are the most relevant in this context. However, the Court may also have regard to a range of other circumstances such as historic title, socio-economic considerations, distribution of natural resources, security and conduct of the Parties.

The Court may apply an ex post facto disproportionality test to verify whether the delimitation line as modified is equitable and if it is not, make any further necessary modifications.

Finally, the Court will also need to specify starting and end points to the delimitation and will need to avoid encroaching on the rights of third States.

None of the above steps appear to have been sought or requested at all from the Annex VII arbitral tribunal under the Philippine Statement of Claim. As seen from the items of relief sought in Part V therein, the Philippines has not asked the arbitral tribunal to rule on the claims to title of any of the claimants to the South China Sea; neither is the tribunal requested to draw a maritime boundary anywhere. What is ultimately at issue in the Philippine arbitration is the clarification of the consistency of the maritime limits drawn in the 9-dash line map, with the maritime limits prescribed under UNCLOS. Contrary to the China Position Papers insistence that this is really a matter of territorial sovereignty and maritime delimitation, what the Philippine Statement of Claim appears to seek to clarify, ultimately, is the nature of any potential corroborative evidentiary weight to be attached to Chinas 9-dash line map, should an actual maritime delimitation be initiated in the future between disputing parties. This nowhere involves territorial sovereignty, since, as the ICJ rightly noted in Burkina Faso v. Mali, maps cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rightsmaps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real factsmaps can still have no greater legal value than that of corroborative evidence endorsing a conclusion at which a court has arrived by other means unconnected with the maps. [Case Concerning the Frontier Dispute (Burkina Faso v. The Republic of Mali), ICJ Reports 1986, p. 554, at pp. 582-583, para. 54 and 56.].

A Promising Initial Step or Sobering Conclusion?Taking all of the foregoing analysis in perspective, there do not appear to be strong persuasive reasons articulated thus far that would justify denying the Annex VII arbitral tribunals jurisdiction for the Philippines narrowly-framed Statement of Claim. At the same time, however, it should be clear that the arbitration is, at best, a preliminary step to clarify issues that could potentially obviate any future, mutually-consensual, proportional, and equitable maritime delimitation among the claimants in the South China Sea. It cannot, and ought not, be seen as the settlement of maritime boundaries between any of the claimants in the region. The China Position Paper accuses the Philippine Statement of Claim to be a cunning packaging of its actual case for maritime delimitation (China Position Paper, para. 14), while the Philippines describes this arbitration as one finally seeking a just and durable solution grounded on international law. Both descriptions exceed the reality of the narrow and restrictive terms and items of relief sought in the Philippine Statement of Claims.

The actual limited content of the arbitrations subject-matter should be sobering enough to remind all parties concerned to manage domestic expectations, and any geopolitical perceptions of the legal significance of this case for the region. On the one hand, China might actually have more to gain from participating directly in the arbitration to be able to fully ventilate its legal position and submit all its evidence, not just on the jurisdictional objections, but to also be able if such objections are overcome to respond fully on the historical and legal claims on the merits and likewise challenge the Philippines corpus of evidence. On the other hand, the Philippines not having planned for the final delimitation of maritime boundaries with all claimants in the region, and having to likewise reckon with inevitableenforcement issues should China refuse to recognize any arbitral award issued by the Annex VII tribunal ought likewise to expect (and inform their constituents of) the long-term continuation of the worlds most complex maritime dispute, so long as boundaries in this region remain unsettled between all six neighboring claimant States. Any favorable arbitral award issuing in favor of the Philippines on this particular Statement of Claim will still not yield a final solution, even if some of the claimant States (such as Viet Nam) are starting to signify some interest in the arbitration, but still without filing any actual official intervention in the case. Crossing the jurisdictional Rubicon is just the cusp of the real beginning for actual international dispute settlement through final and stable maritime boundary delimitation in the South China Sea.

The ICC and Africa: In defense of the AfricanUnionRuto Required to attend ICC Trial (for themoment) Legacy of Nuremberg

Novelty of the Trial

The Nuremberg Trial of the main war criminals was a legal novelty in several aspects. For the first time, states with completely different forms of government and constitutions sat in judgement together on a defeated enemy. Instead of taking revenge, they pursued legal action, and for the first time in history, individuals were held personally responsible on the basis of international criminal law.

The Heritage of Nuremberg

The Charter of the United Nations of June26, 1945, was the attempt at securing world peace by means of international law. The Nuremberg Trial of the main war criminals and the London Statute of August8, 1945, which was the basis for the trial, were of fundamental importance for the development of international criminal law and for its implementation. Thus, the International Military Tribunal held in Nuremberg provided a model for the establishment of today's International Criminal Court in the Hague.

The "Nuremberg Principles"

On December11, 1946, the General Assembly of the United Nations during its first session unanimously adopted a resolution affirming "the principles of international law recognised by the Charter of the Nuremberg Tribunal and by the judgement of the Tribunal". Four years later, the International Law Commission submitted seven principles to the UN which were to be taken into account in the preparation of a code of crimes against peace and against the security of humankind. The Nuremberg Principles no longer referred only to National Socialist crimes, but claimed universal applicability.

The "Nuremberg Principles" are:

1. Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

2. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

3. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

4. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

5. Any person charged with a crime under international law has the right to a fair trial on the facts and law.

6. The crimes hereinafter set out are punishable as crimes under international law:

1. Crimes against peace,

2. War crimes,

3. Crimes against humanity.

7. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in PrincipleVI is a crime under international law.

8. 9. The Nuremberg Trials

10. The Indictments

11. 12.

13. In early October 1945, the four prosecuting nations -- the United States, Great Britain, France and Russia -- issued an indictment against 24 men and six organizations. The individual defendants were charged not only with the systematic murder of millions of people, but also with planning and carrying out the war in Europe.

14. Twenty-one of the indicted men eventually sat in the dock in the Nuremberg courtroom. One of those named, labor leader Robert Ley hanged himself before the trial began. Another, the industrialist Gustav Krupp, was judged too frail to stand trial. Martin Bormann, who as Adolf Hitler's private secretary was one of the most powerful Nazi leaders, was nowhere to be found. He was tried in absentia and sentenced to hang if he should ever turn up. Bormann apparently died as the Soviets entered Berlin -- his remains were identified there in 1972 and he was declared dead by a German court the following year.

15. Lt. Col. Murray Bernays, an attorney in the U.S. War Department who collected evidence on crimes committed against GIs, had devised a scheme to try the Nazis as conspirators in waging aggressive war and to try Nazi organizations as a means of reaching hundreds of thousands of members. His ideas were promoted by Secretary of War Henry Stimson and eventually incorporated into the indictment.

16. The Indictment of Nazi Organizations The indictment of Nazi organizations was designed to deal with the problem of what to do about the hundreds of thousands of people who had been members of organizations such as the SS and the Gestapo. The idea was to find them to have been criminal organizations, then hold hearings to determine the extent to which a member was guilty.

17. At the conclusion of the trial against the 21 individuals, the International Military Tribunal spent a month hearing testimony about the organizations.

18. The indictment of the organizations, however, raised a fundamental legal question: the legitimacy of creating a system of guilt by association. Although members of the criminal organizations were later tried by German denazification courts set up by the U.S. occupation government, no one was ever punished solely on the basis of the tribunal convictions.

19. Three of the six indicted organizations were found guilty. They were: the SS, the Gestapo and the Corps of the Political Leaders of the Nazi Party.

20. Three of the organizations were not convicted. They were: the SA (Hitler's street thugs, known as brownshirts, whose power had dwindled in the 1930s); the Reichsregierung (Reich Cabinet) and General Staff and High Command of the German Armed Forces. The latter two organizations were determined to cover relatively few members so that it was deemed better to deal with them as individuals.

21. The Charges The four powers divided the prosecution work, giving the United States the complicated and most difficult job of proving Count One -- the conspiracy charge.

22. Count One: Conspiracy to Wage Aggressive War The "common plan or conspiracy" charge was designed to get around the problem of how to deal with crimes committed before the war. The defendants charged under Count One were accused of agreeing to commit crimes.

23. The concept of conspiracy was not a part of continental law, and remained controversial throughout the trial.

24. Some historians have argued that this count caused prosecutors to over-emphasize the coherence of Nazi policymaking. It also gave the defense an additional reason to emphasize the confused Nazi command structure and allowed the defendants to buttress their contentions of ignorance of the regime's brutality.

25. Count Two: Waging Aggressive War, or "Crimes Against Peace" This evidence was presented by the British prosecutors and was defined in the indictment as "the planning, preparation, initiation, and waging of wars of aggression, which were also wars in violation of international treaties, agreements, and assurances."

26. This charge created problems for the prosecutors. Although Hitler had clearly waged an aggressive war, beginning with the invasion of Poland in 1939, Count Two was based on allegations that the Germans had violated international agreements such as the Kellogg-Briand Pact of 1928. Signatories to that agreement had renounced war as an instrument of national policy (as opposed, say, to defensive war), but the pact did not define "aggressive war" and did not spell out the penalties for its violation.

27. (The Anschluss and the invasion of Czechoslovakia were not held to be aggressive wars because Hitler had manipulated the political situation in each nation in order to avoid an invasion.)

28. The Soviet Union also had broken the Kellogg-Briand Pact by invading Finland, Poland and the Baltics, and had schemed with Hitler to sign the Nazi-Soviet Non-Aggression Pact in 1939 (which secretly divided Poland).

29. Robert Jackson, the chief U.S. prosecutor, wanted the International Military Tribunal to create new international law that would outlaw aggressive war. Clearly, the premise that it is possible to outlaw war is a questionable one.

30. Count Three: War Crimes The Russian and French prosecutors presented evidence on atrocities committed in the East and West, respectively.

31. Count Three was intended to deal with acts that violated traditional concepts of the law of war -- e.g. the use of slave labor; bombing civilian populations; the Reprisal Order (signed by Field Marshal Wilhelm Keitel, a defendant, this order required that 50 Soviet soldiers be shot for every German killed by partisans); the Commando Order (issued by Keitel, it ordered that downed Allied airmen be shot rather than taken captive).

32. The violations of international law under Count Three were more clearly rooted in precedent than the other counts.

33. International laws of war had developed during the 18th and 19th centuries. The Hague Conventions of 1899 and 1907 dealt with the conduct of war by outlawing certain types of weapons (dum-dum bullets, poison gas) and outlining treatment of POWs and civilians. The Geneva Conventions of 1864 and 1906 dealt with treatment of the sick and wounded. (After 1929, the treatment of POWs was promulgated by the Geneva Convention.) Naval law developed separately and originally dealt with problems of piracy, rescue, false flags and the like.

34. War crimes were defined under the London Charter (the document drafted by the Allies before the trial began) as "murder, ill treatment or deportation to slave labor or for any other purpose of civilian population or in occupied territory, murder or ill-treatment of prisoners-of-war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages or devastation not justified by military necessity."

35. Count Four: Crimes Against Humanity The Russians and the French again divided responsibility along East-West lines.

36. Count Four was applied to defendants responsible for the death camps, concentration camps and killing rampages in the East.

37. Initially, crimes against humanity were understood to be crimes committed by a government against its own people, and there was some question as to whether the concept could be applied internationally. Their inclusion in the London Charter was a novel extension of the concept.

38. The London Charter defined these crimes as "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crimes within the jurisdiction of the International Military Tribunal, whether or not in violation of domestic law of the country where perpetrated."

39. Selection of Defendants The list of the accused was to some extent arbitrary. The defendants represented the major administrative branches of the Third Reich and included prisoners held by each of the four prosecuting nations. Apparently, little attention was paid to the availability of evidence against them. Attention was generally paid to how well known they were and how much power they had wielded. However, Hans Fritzsche, who was held by the Russians, had been a relatively minor official in Josef Goebbels' propaganda ministry but was included, along with Admiral Erich Raeder, to appease the Russians.

The Nuremberg Defense refers to a legal strategy employed by many of the defendants at the Nuremberg war crimes trials seeking to convict Nazi perpetrators of war crimes and crimes against humanity committed during the Second World War. Many of those defendants claimed that they were not guilty of the charges against them as they were "only following orders."

Contents

[hide] 1 Eichmann's speech 2 Post-war usage 3 Principle IV 4 See also 5 Footnotes

[edit] Eichmann's speechAdolf Eichmann was one of the most prominent Nazis to use this defense at his trial (held in Israel in 1961).

I cannot recognize the verdict of guilty. . . . It was my misfortune to become entangled in these atrocities. But these misdeeds did not happen according to my wishes. It was not my wish to slay people. . . . Once again I would stress that I am guilty of having been obedient, having subordinated myself to my official duties and the obligations of war service and my oath of allegiance and my oath of office, and in addition, once the war started, there was also martial law. . . . I did not persecute Jews with avidity and passion. That is what the government did. . . . At that time obedience was demanded, just as in the future it will also be demanded of the subordinate.

[1]

[edit] Post-war usageThe Nuremberg Defense has since become a political and psychological meme. The term is now essentially synonymous with the phrase "I was only following orders", a phrase that has been used in defending accused war criminals for centuries.

The phrase can refer to any attempt to deflect personal responsibility for a crime onto institutions like an army or the state.

Occasionally, the Nuremberg Defense is referred to as the Eichmann defense.

Article 33 of the Rome Statute, which established the International Criminal Court, allows the Nuremberg defense to relieve an individual of criminal responsibility provided: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful.

[edit] Principle IVThis principle, one of many drawn up in the run up to the Nuremberg trials, states:

"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."

Nuremberg Principle IV was disputed in Canada when Jeremy Hinzman attempted to claim refugeee status there after deserting the US army. Hinzman and his supporters argued that because the war in Iraq may be in breach of international law, it could possibly end with him and other troops being tried for war crimes. Although he was denied refugee status, one Justice presiding over the case stated, in reference to personal responsibility during wartime:

"An individual must be involved at the policy-making level to be culpable for a crime against peace ... the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper."

This has, however, long been the established rule for questions of the legality of war. A soldier is responsible for just conduct in war, and policy-makers are responsible for the just cause for war. However, if it can be found that policy-makers are pushing or forcing subordinates to act unjustly in war, they can be responsible for that as well. Even soldiers who are fighting in an unjust war must still be treated as legal combatants, and not held responsible for the war itself.

Principles of theNuremberg Tribunal, 1950

No. 82

Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal. Adopted by the International Law Commission of the United Nations, 1950.

Introductory note: Under General Assembly Resolution 177 (II), paragraph (a), the International Law Commission was directed to "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal." In the course of the consideration of this subject, the question arose as to whether or not the Commission should ascertain to what extent the principles contained in the Charter and judgment constituted principles of international law. The conclusion was that since the Nuremberg Principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them. The text below was adopted by the Commission at its second session. The Report of the Commission also contains commentaries on the principles (see Yearbook of the Intemational Law Commission, 1950, Vol. II, pp. 374-378).

Authentic text: English Text published in Report of the International Law Commission Covering its Second Session, 5 June-29 Duly 1950, Document A/1316, pp. 11-14.

Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle V

Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle Vl

The crimes hereinafter set out are punishable as crimes under; international law:

a. Crimes against peace:

i. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

ii. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

b. War crimes:Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

c. Crimes against humanity:Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII

Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.The Influence Of The Nuremberg Trial On International Criminal Law

Executive Summary

The first forty years after Nuremberg was a period of slow progress in developing international criminal law. There is no doubt that international criminal law has developed in recent years. Indeed if international criminal law is defined as the prosecution of individuals for international crimes such as war crimes or Crimes Against Humanity then there was no such law for most of the twentieth century. On the eve of the twentieth century attempts to regulate warfare in The Hague Conference of 1899, and again in 1907, were constrained by notions of State sovereignty. As the Nuremberg judges pointed out in 1946, The Hague Convention nowhere designates such practices [methods of waging war] as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders.(1)

The Nuremberg trials established that all of humanity would be guarded by an international legal shield and that even a Head of State would be held criminally responsible and punished for aggression and Crimes Against Humanity. The right of humanitarian intervention to put a stop to Crimes Against Humanity even by a sovereign against his own citizens gradually emerged from the Nuremberg principles affirmed by the United Nations.

The awareness of the inadequacy of the law and the willingness to do something to enforce such new principles was slow in coming. The failure of the international community to develop binding norms of international criminal law was glaringly illustrated by the slow pace of various UN committees charged in 1946 with drafting both a code of crimes against the peace and security of mankind and the statutes for an international criminal court.

While the law limped lamely along, international crimes flourished. The horrors of the twentieth century are many. Acts of mass violence have taken place in so many countries and on so many occasions it is hard to comprehend. According to some estimates, nearly 170 million civilians have been subjected to genocide, war crimes and Crimes Against Humanity during the past century. The World Wars lead the world community to pledge that never again would anything similar occur. But the shocking acts of the Nazis were not isolated incidents, which we have since consigned to history. Hundreds of thousands and in some cases millions of people have been murdered in, among others, Russia, Cambodia, Vietnam, Sierra Leone, Chile, the Philippines, the Congo, Bangladesh, Uganda, Iraq, Indonesia, East Timor, El Salvador, Burundi, Argentina, Somalia, Chad, Yugoslavia and Rwanda in the second half of the past century.(2) But what is possibly even sadder is that we, meaning the world community, have witnessed these massacres passively and stood idle and inactive. The result is that in almost every case in history, the dictator/president/head of state/military/leader responsible for carrying out these atrocities despite in Nuremberg has escaped punishment, justice and even censure.

Not until the world was shocked by the ethnic cleansing in the former Yugoslavia and the genocide in Rwanda could the UN, no longer paralyzed by the Cold War, take action. Nations that had been unwilling to intervene to block the carnage now recognized that some action was essential. For the first time since Nuremberg, a new international criminal tribunal was quickly put in place on an ad hoc basis by the UN Security Council. Under the impetus of shocked public demand, it became possible for the UN Secretariat to draft the statues for the International Criminal Tribunal for Yugoslavia in about 8 weeks the same time it had taken to agree upon the Charter to the International Military Tribunal at Nuremberg. The ICTY began functioning in 1994. It led to the speedy creation of a similar ad hoc tribunal to deal with genocide and Crimes Against Humanity in Rwanda.

Up until the present the international community has been very reluctant to enforce international criminal law. It has only been done a couple of times in history, without doubt due to the specific circumstances and the political climate at the time. The idea of establishing a permanent international criminal court is not new though. Attempts in that direction were taken as nearly as the end of World War I, but the international community never reached agreement on the matter.

The ICCs predecessors are primarily the Nuremberg and the Tokyo Tribunals created by the victorious Allies after World War II. These tribunals have been accused of being unfair and merely institutions for victors justice, but nevertheless they did lay the groundwork for modern international criminal law. They were the first tribunals where violators of international law were held responsible for their crimes. They also recognized individual accountability and rejected historically used defenses based on state sovereignty. These principles of international law recognized in the Nuremberg Charter and Judgments were later affirmed in a resolution by the UN General Assembly.

The International Law Commission (ILC), a body of distinguished legal experts acting at the request of the General Assembly, completed its draft statue for a permanent international criminal court in 1994. In 1996, the ILC finally completed its draft code of crimes against the peace and security of mankind. This new momentum reflected widespread agreement that an international criminal court, with fair trial for the accused, should be created as an essential component of a just world order under law.

After years of work and struggle, the promise of an International Criminal Court with jurisdiction to try genocide, war crimes and Crimes Against Humanity has become a reality. In 1998, the statute of the Court was approved in Rome and it has entered into force the first of July of 2002, when the required number of country ratifications was attained. The Court holds a promise of putting an end to the impunity that reigns today for human rights violators and bringing us a more just and more humane world.

Since the capture of Saddam Hussein in December 2003, there has been intense speculation as to the type of court that will be used to try the former Iraqi president. It now appears that Hussein will be tried by the Iraqi Special Tribunal that was established late in 2003. This Tribunal, which is yet to commence operation, has jurisdiction over the crimes of genocide, war crimes and Crimes Against Humanity committed since 1968. Although it would seem desirable that the former Iraqi dictator be tried by an Iraqi court, it is not yet clear whether the Iraqi Special Tribunal and the Iraqi legal profession have sufficient resources and expertise to conduct a trial of this complexity. Questions also remain as to whether the trial and sentencing of Hussein will conform with international human rights standards and whether it will serve the ends of justice and reconciliation in Iraq.

TABLE OF CONTENTS

1. International Criminal Law in the Past

2. Tribunal Milestones

3. The Agreement of London

3.1 Copy of the Agreement

4. The Nuremberg Tribunals

4.1 The International Military Tribunal (IMT)

4.2 Principles of the Nuremberg Tribunal, 1950 NO. 82

4.3 Twelve Subsequent Trials at Nuremberg

5. The Influence of Nuremberg

5.1 Influence on the Development of International Criminal Law

5.1.1 The United Nations

5.1.1.1 Codification of Law via the United Nations

5.1.2 The Geneva Conventions

5.2 War Crimes Trials after Nuremberg

5.2.1 Tokyo

5.2.2 Yugoslavia

5.2.3 Rwanda

5.3 The International Criminal Court (ICC)

5.3.1 Historical Introduction

6. The Case of Saddam Hussein

6.1 A Brief Background to the Iraqi Crises

6.2 What Crimes Is Saddam Hussein Accused Of?

6.3 What Kind of Trials?

7. Conclusion

1. INTERNATIONAL CRIMINAL LAW IN THE PAST

International Criminal Law as a concept has exited between nations states for centuries. Its function is to regulate and prevent criminal international violations, thereby securing and maintaining international legal order and peace. Historically, for activities to be considered international crimes they had to violate domestic regulations. Malekian writes: [i}t may be possible to conclude that the basis of international criminal law is the evolution and enforcement of the concept of domestic criminal law. Criminals were extradited to a large extent in order that domestic criminal law be effectively implemented. This cooperation resulted in, e.g., the conclusion of numerous bilateral and multilateral treaties for the extradition of criminals. (3)

International humanitarian law took its modern form after World War II in order to create a deterrent to the repeat of the horrors that took place in the trenches and concentration camps. Important conventions were agreed on including the European convention on Human Rights (4), the Genocide Convention (5), the Universal Declaration of Human Rights (6)and the four Geneva Conventions and Additional Protocols (7) (that protect the civilians and victims of war). By including criminal provisions and obligations for nations these also gave strong notions of a development in international criminal law.

War and law have had a constant relationship between each other ever since the existence of conflict as a collective phenomenon. The regulation of the state of war, whether stemming from tradition, custom, certain codes of conduct and, ultimately, law, has evolved throughout the centuries together with the notion of war.

The idea of a Crime of War, or war crime, is not new to the modern legal vocabulary. Unorthodox practices during a war have been branded as war crimes in many scenarios of conflict. However, these war crimes were not in themselves punishable in any international court (mainly due to the practical non-existence of such legal apparatus before the United Nations) and were very much a notion without a consequence, a general concept floating above the aftermath of wars, and not affecting individuals as such but rather relying on the concept of state responsibility. It is only since the development of a doctrine of human rights, of fundamental, documented universal principles, that such crimes have materialized into a legal cast due to the development of the notion of Crimes Against Humanity and its derived breaches. The concept of Crimes Against Humanity has been a product of very recent historical, political and social developments which has brought war crimes under a different light in international law, and very much under the scope of Human Rights, which have impregnated the law of war as an international, codified phenomenon in many ways. As a provision, it was the initial step that began a whole new approach from part of the international community towards certain abuses against civilians during periods of war and also during peacetime. Certain practices became theoretically illegal in a very broad sense within the international community, criminalizing governments, collectives and individuals, whether military or civilian, and covering the commission of crimes both in an individual basis as well as in a collective sense. Conventions have arisen after the appearance of this idea, as well as resolutions and other relevant legislation emanating from international bodies and organisms (mainly the UN). The ultimate reason for these provisions to arise, in theoretical terms and laying aside political considerations, has been the protection of the human being as an individual, regardless of geographical, political or social factors and circumstances, and hence has become a Human Right, so to say, in its own right.

Crimes Against Humanity as a new principle saw its birth after the Second World War, as a result of the atrocities committee by the Nazi forces before and during the armed conflict. The establishment of the United Nations in 1945 was in a way the embodiment of the generalized fear for those atrocities ever being committed again, and this institution had a major role in the development of legal doctrines involving concepts such as Crimes Against Humanity, appearing for the first time in a legal and a conceptual form before the Nuremberg Trial in 1945, during the London Agreement of 1945 and its annexed charter setting the grounds for the establishment of a military tribunal.

2. TRIBUNAL MILESTONES

1907Fourth Hague Convention is held in The Hague, the Netherlands. The convention is the first international agreement outlining the basic rules for land warfare. Among the provisions are prohibitions on mistreating prisoners and protecting the lives and property of civilians.

1945At the end of World War II, the victorious Allies form the International Military Tribunal to try Nazi German leaders on war crimes charges. Of the 22 men tried by the tribunal, based in Nuremberg, Germany, 19 are convicted.

1946Allies set up a tribunal in Tokyo to conduct war crimes trials involving 28 Japanese defendants. The defendants face the same charges as those in Nuremberg Crimes Against Humanity and waging aggressive war.

1948United Nations General Assembly approves the Convention on the Prevention and Punishment of the Crime of Genocide, one of the so-called Geneva Conventions. The agreement specifies that religious or racial genocide is an international crime, and that those who incite genocide or participate in it are to be punished. The following year, diplomats from around the world adopt four new conventions that strengthen the rights during wartime of civilians and prisoners of war. War crimes are defined as offenses that represent grave breaches of the convention.

1950U.N. International Law Commission unveils the seven Nuremberg Principles. The basic premise of the principles is that no accused war criminal in any place or time is above the law.

1992Bosnia-Herzegovina, one of the remaining Yugoslav republics, declares independence. A three-sided civil war breaks out among Bosnias Moslems, Croats and Serbs. Serbs initiate a policy of ethnic cleansing, or forcibly removing people from their homes in an effort to create ethnically pure regions, and detain many non-Serbs in concentration camps.

1993The U.N. Security Council agrees to establish the International Criminal Tribunal for the former Yugoslavia (ICTY), to be based in The Hague, to try war crimes cases.

1994Inter-ethnic strife explodes in Rwanda. More than 500,000 people, most of them members of the Tutsi minority, are massacred by the Hutu majority over a four-month period. In November, the Security Council agrees to establish the International Criminal Tribunal in Rwanda (ICTR) in Arusha, Tanzania.

1995A cease-fire is negotiated in Bosnia in October, and combatants sign a peace treaty, in Dayton, Ohio. Troops from the North Atlantic Treaty Organization (NATO) begin patrolling in Bosnia in December.

1996The ICTY imposes its first sentence on Drazen Edemovic, a Bosnian Croat who served in the Bosnia Serb army. Edemovic pleads guilty, so he is sentenced without a trial to ten years in prison.

1997In May, the first full-length ICTY trial concludes with the conviction of Bosnian Serb Dusan Tadic on eleven charges of war crimes.

1998After fifty years of discussion and documentation on the need for an international criminal court, the Rome Statute of the International Criminal Court was adopted on July 17, 1998.

1998Augusto Pinochet, the former Chilean dictator, was arrested by British authorities. He was extradited on charges of genocide, torture, and other crimes during his rule in the 1970s 80s.

1999Slobodan Milosevic, Milan Milutinovic, Vlajikovic, and Nikola Sainovic were indicted by The Hague.

2002The ICC entered into force on July 1, 2002, establishing an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole.

2003U.S.-led military coalition ousts Saddam Hussein from power. He is captured on December 13, 2003.

3. THE AGREEMENT OF LONDON

Robert H. Jackson made a preliminary visit to London in late May 1945 where he conferred with Foreign Minister, Anthony Eden, and British Attorney General, David Maxwell Fyfe. These meetings ultimately helped to show that there was no significant difference between the American and British goals for the trials. However, before meeting with the British the American delegation felt that they would have a difficult time in convincing opponents that the American plan for holding a trial, rather than executing the war criminals, would be the best option. They expected to have the greatest difficulty with the British because they would naturally want to assume the leadership role in the trial.

On Monday, June 18, 1945, Jackson and seventeen members of his staff, including Major General William J. Donovan, the director of the O.S.S., and Ensign William E. Jackson, Justice Jacksons son, departed to begin negotiations for a charter with the British, French, and Russians in London. On June 21 representatives from the United States and Britain met on an informal basis to exchange information. The representative from the British Foreign Office, Sir Basil Newton, informed the American delegation that the government had accepted the invitation to the conference and would arrive on June 25. The British and Americans agreed that the trial should be held on the Continent, probably in Munich but Justice Jackson pointed out that the location would depend on availability of the facilities. At a second meeting on June 24 Sir Basil Newton informed both delegations that the Russians had accepted the invitation but had asked for the first official meeting to be delayed until June 26. Throughout the negotiations the Americans and the Russians would almost continually be at odds with each other.

The British delegation consisted of Sir David Maxwell Fyfe, Sir Thomas Barnes, the Treasurer-Solicitor and Patrick Dean, of the British Foreign Office. The French delegation consisted of Judge Robert Falco and Professor Andr Gros. General I.T. Nikitchenko and Professor Trainin made up the Russian delegation.

The Anglo-American system of law differed considerably from the continental system that the French and the Russians used. The first point of contention was over the function of the indictment. In Anglo-American law this is the statement of charges against a criminal to inform him of the crime he is being charged with. In the Soviet system the indictment includes all of the evidence that will be utilized during the trial. In this case, the Americans won. A second point of disagreement between the Americans and the Russians was whether organizations, such as the SS and the Gestapo, could be tried as criminal entities. The Russians said no and the Americans said yes. Giving the Americans the responsibility for proving this portion of the case solved this problem. Conflicts also arose in regard to the definition of international law and what constituted both international law and the laws of a sovereign nation. The negotiating countries faced many disagreements of this nature. Adjourning the conference, preparing new amendments and then debating these amendments at the next session helped to solve each problem but on many major points of contention the American delegation overrode opposition from the other nations.

Throughout the negotiations Justice Jackson attempted to keep an open mind, which probably eased tensions, but the Agreement of London basically created a system that the Americans approved of and the other nations went along with. The negotiators ran into many points of disagreement but in the end, Justice Jackson and his British, French and Russian counterparts were able to overcome differences in judicial practice to form the tribunal.

On August 8, 1945, the participating nations gathered to sign the Agreement and Charter for the Prosecution and Punishment of Major War Criminals of the European Axis, or the Agreement of London. The process of creating this charter had taken two months of negotiation but succeeded in establishing a system that all four nations would accept as the dispensing justice.

The final London Agreement created the system on which the surviving Nazi leaders and Nazi criminal organizations would be tried. The statute drew up four counts of crimes for which the German leadership would be tried. The first count involved conspiracy conspiring to engage in the other three counts. Count two was crimes against peace the actual planning, preparing, and waging of aggressive war. That count was generally interpreted as criminalizing the waging of war to alter the status quo. Thus, the Germans could not use the unfairness of the Versailles Treaty to justify making war to bring about is revision.

The third count was war crimes a category that included killing and mistreating soldiers and civilians in ways not justified by military necessity. Count four consisted of Crimes Against Humanity, which was a new idea, dealing with inhuman actions committed against civilians. Included in count four was the mass murder of Jews.

The London Statute called for the indictment of the major war criminals, and after much debate, the IMT came up with a list of 24 names, 22 of whom would, in the event, be tried. Among those listed were Herman Goering, Joachim von Ribbenstrop, Admiral Karl Donitz, General Alfred Jodl, Alfred Rosenberg, Albert Speer, Ernst Kaltenbrunner, Hans Frank, and Julius Streicher. Martin Bormann, who is now believed to have died prior to the indictment, would be tried in absentia. Also indicted were the leading organizations of the third Reich the Reich Cabinet, the Nazi Party leadership, the SS, the Gestapo, the General Staff, and the SA.

Upon signing the London Agreement creating the basis for and existence of the International Military Tribunal, Jackson stated: For the first time, four of the most powerful nations [U.S., France, Great Britain, Soviet Union] have agreed not only upon the principle of liability for war crimes of persecution, but also upon the principle of individual responsibility for the crime of attacking international peace. (8)

3.1 Copy of the Agreement

London Agreement of August 8, 1945Agreement of the government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European AxisWHEREAS the United Nations have from time to time made declarations of their intention that War Criminals shall be brought to justice;

AND WHEREAS the Moscow Declaration of the 30th October 1943 on German atrocities in Occupied Europe stated that those German officers and men and members of the Nazi Party who have been responsible for or have taken a consenting part in atrocities and crimes will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments that will be created therein;AND WHEREAS this Declaration was stated to be without prejudice to the case of major criminals whose offenses have no particular geographical location and who will be punished by the joint decision of the Governments of the Allies;

NOW THEREFORE the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics (hereinafter called the Signatories) acting in the interests of all the United Nations and by their representatives duly authorized thereto have included this Agreement.

Article 1.There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of the organizations or groups or in both capacities.

Article 2.The constitution, jurisdiction and functions of the International Military Tribunal shall be those set in the Charter annexed to this Agreement, which Charter shall form an integral part of this Agreement.

Article 3.Each of the signatories shall take the necessary steps to make available for the investigation of the charges and trial the major war criminals detained by them who are to be tried by the International Military Tribunal. The signatories shall also use their best endeavors to make available for investigation of the charges against and the trial before the International Military Tribunal such of the major war criminals as are not in the territories of any of the signatories.

Article 4.Nothing in this Agreement shall prejudice the provisions established by the Moscow Declaration concerning the return of war criminals to the countries where they committed their crimes.

Article 5.Any government of the United Nations may adhere to this agreement by notice given through the diplomatic channel to the Government of the United Kingdom, who shall inform the other signatory and adhering governments of each such adherence.

Article 6.Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any allied territory or in Germany for the trial of war criminals.

Article 7.This Agreement shall come into force on the day of signature and shall remain in force for the period of one year and shall continue thereafter, subject to the right of any signatory to give, through the diplomatic channel, one months notice of intentions to terminate it. Such termination shall not prejudice any proceedings already taken or any findings already made in pursuance of this Agreement.IN WITNESS WHEREOF the Undersigned have signed the present Agreement.DONE in quadruplicate in London this 8th day of August 1945 each in English, French, and Russian, and each text to have equal authenticity.

For the Government of the United States of America[signed] ROBERT H. JACKSONFor the Provisional Government of the French Republic[signed] ROBERT FALCOFor The Government of the United Kingdom of Great Britain and Northern Ireland{signed] JOWITT C.For the Government of the Union of Soviet Socialist Republics[signed] I.T. NIKITCHENKO[signed] A.N. TRAININ4. THE NUREMBERG TRIBUNALS4.1 the International Military Tribunal (IMT)Three months after the end of World War II the United States, Great Britain, the Soviet Union and France, signed an agreement creating the International Military Tribunal (IMT), known as the Nuremberg Tribunal, for the Prosecution and Punishment of the Major War Criminals of the European Axis. Only four categories of crimes were to be punished:

1. Conspiracy (conspiring to engage in the other three counts),

2. Crimes Against Peace (planning, preparing and waging aggressive war),

3. War Crimes (condemned in Hague Conventions of 1899 and 1907) and

4. Crimes Against Humanity (such as genocide), which by their magnitude, shock the conscience of humankind.

Each provision of the 30-articles was carefully considered in order to reach an accord that seemed fair and acceptable to the four partners representing the United States, Great Britain, France and the Soviet Union. On the eight day of August 1945, the Charter was signed and the first International Military Tribunal in the history of mankind was thereby inaugurated.

A Chief Prosecutor had been appointed for each of the four victorious powers. Designated by President Harry S. Truman as U.S. representative and chief counsel at the IMT Supreme Court Justice Robert H. Jackson planned and organized the trial procedure and served as Chief Prosecutor for the USA. He set the tone and goals: That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to ReasonWe must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanitys aspirations to do justice. (9)

From November 20, 1945, until August 31, 1946, all sessions of the tribunal were held in Nuremberg under the presidency of Lord Justice Geoffrey Lawrence. In its comprehensive judgment, the Tribunal traced the history of international criminal law and the growing recognition in treaties, conventions and declarations, that aggressive war was an illegal act for which even a head of state could be brought to account. There was no longer anything ex facto about such a charge. Leaders who deliberately attacked neighboring states without cause must have know that their deeds were prohibited and it would be unjust to allow them to escape merely because no one had been charged with that offense in the past. The law is not static said the Tribunal, but by continued adaptation follows the needs of a changing world. Aggressive war was condemned as the supreme international crime. (10)

The evidence, based in large part on captured German records, was overwhelming that crimes of the greatest cruelty and horror had been systematically committed pursuant to official policy. The IMT, citing The Hague Conventions and prevailing customs of civilized nations, rejected Germanys argument that rules of war had become obsolete and that total war was legally permissible. Regarding Crimes Against Humanity (such as extermination and enslavement of civilian populations on political, racial or religious grounds), the law took another step forward on behalf of humankind - a step that was long overdue. The findings and judgment of the IMT helped to usher in a new era for the legal protection of fundamental human rights.

The lead IMT defendant, Field Marshal Hermann Goering, after he was sentenced to be hanged, was sentenced to death in absentia. Other defendants were hanged or sentenced to long prison terms. Some were acquitted and released. The Charter was adhered to by nineteen other nations and both Charter and Judgment of the IMT were unanimously affirmed by the first General Assembly of the United Nations. They have become expressions of binding common international law.

4.2 Principles of the Nuremberg Tribunal, 1950 NO. 82

The Definition of what constitutes a war crime is described by the Nuremberg Principles, a document that came out of this trial.

Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal. Adopted by the International Law Commission of the United Nations, 1950. (11)

Under General assembly Resolution 177 (II), paragraph (a), the International Law Commission was directed to formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal. Since the Nuremberg Principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them. The text below was adopted by the Commission at its second session. The report of the commission also contains commentaries on the principles. (12)

Principle IAny person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.

Principle IIThe fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principles IIIThe fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IVThe fact that a person acted pursuant