New Zealand Yearbook of International Law
Last Updated: 9 February 2019
Title: International Criminal Law
Publisher: Martinus Nijhoff
Pages: xl + 1086 (Volume 1) + 602 (Volume II) + 713 (Volume III)
Editor: M. Cherif Bassiouni
This, the third edition of Professor Cherif Bassiouni’s pioneering collection of works on International Criminal Law which was first published in 1986, reemphasises its dominance in the field. Indeed, it is now so comprehensive that it has almost become encyclopaedic in dimensions. At approaching two and a half thousand pages, it is hard to conceive how one could read it cover to cover, as a book, rather than dip into it, and I have to confess I have taken the latter course.
The collection is again presented as a set of three volumes. The first is devoted to ‘Sources, Subjects, and Contents’ and discusses criminalization and the international crimes, the second to ‘Multilateral and Bilateral Enforcement Mechanisms’, which discusses the various modes of international cooperation, and the third to ‘International Enforcement’, which focuses on the international tribunals. The three volumes contain in total detailed discussion of 81 separate topics written by 55 specialist authors and nearly all are entirely new.
Volume I begins with a very useful piece by Bassiouni himself, in which he maps the boundaries of what he refers to as the ‘bits and pieces’ (p18) that makes up international criminal law. It provides a way for Bassiouni to marshal the material into a semblance of order, which appears to be the main goal of the collection, and for the reader to orientate themselves with regard to the material contained in the rest of the collection. The second part of this chapter is devoted to the subjects of international criminal law, and the author’s sweep is broad examining individuals, legal entities, states and so forth. Chapter two contains two pieces, a detailed discussion of the principle of legality by Bassiouni which attempts to tie down the role of discretion in international criminal law making, and a thoughtful discussion of the doctrinal foundations of international criminalization by Robert Cryer. In my view we cannot have enough of this kind of thing, because the discipline is long on discussion of cases and principles and short on grand theory. In chapter three Bassiouni looks at the crimes himself, providing the only comprehensive listing of all the various treaties that make up the substantive crimes. In chapter four the book turns to the crimes themselves. They are ranked from most to least harmful based on their harm to international values. Thus, starting with aggression, we descend in copious detail through each of the core crimes – war crimes, genocide and crimes against humanity with some topics being split into a number of articles. The method adopted is largely historical. Sometimes the general normative framework is set out, sometimes the more specific penal aspects are dealt with. There is some repetition – Bassiouni’s Chapter 4.1, which introduces International Humanitarian Law, might usefully have been combined with his closing Chapter 4.8 on the normative framework of IHL. Chapter six deals with crimes against fundamental human rights (which are by implication distinct from the earlier core crimes) and runs through prohibitions on slavery, apartheid, torture and attacks on civilians. Chapter seven discusses ‘terror-violence’ where the interests protected include those of states and the international community. It begins with a general introduction by Bassiouni and then breaks down into hostage-taking, financing, piracy, and civil aviation. Some of these crimes appear to be awkwardly categorised. Why, for example, is attacks on civilians (basically terrorism) in chapter five and not chapter six, and why is piracy lumped in under terror violence? Chapter six deals with the crimes which tend to be neglected in the literature – those dealing with the protection of social interests. The drug control system is dealt with, as are transnational organised crime, corruption, protection of cultural property and environmental crimes. The various articles in this chapter describe institutional systems as much as the crimes themselves.
Volume II is devoted to enforcement mechanisms and thus is a treasure trove of what is for many (other than the professionals who work in the enforcement system) arcane material. Bassiouni discusses the various modalities examined in the opening article of chapter one. He makes the point that whether the system is direct (through international judicial institutions) or indirect (through national institutions), the modalities remain essentially the same; only the source of obligation changes (p3). Yet most of the modalities he then goes on to examine are recognisable as part of the indirect system which suggests how important national law is to international criminal law. The opening chapter also discusses the aut dedere aut judicare principle. Plugging a crucial gap, the chapter includes articles on the legality and legitimacy of the globalisation of law enforcement mechanisms by Ziccardi and Nino (which unfortunately is overly preoccupied with suppression of terrorism) and increased cooperation of law enforcement with intelligence agencies after 9/11 by Becker. Then it shifts to more doctrinal business. Chapter two deals with the fundamental issue of jurisdiction, and for me, Blakesly’s treatment of extraterritorial jurisdiction is one of the highpoints of the whole collection because it is so comprehensive. It is joined by articles on universal jurisdiction and equally important the problem of competing and overlapping jurisdictions and a comparatively short piece on immunities. The chapter concludes with a short piece on the EU and Schengen. Chapter three then shifts attention to the equally central doctrine of extradition. The approach here is to look at different state practice, first US and then European. It concludes with a short commentary on the UN Model Treaty on Extradition. Much is obviously omitted here but one wonders just how large such a collection can become? Chapter four examines judicial and mutual legal assistance. Again the approach is national/regional with the US MLATs examined first, then the UN Draft Model Law. Prost’s examination of the Commonwealth system is another highlight, and should be of interest to all readers of this Yearbook. It is followed by an examination of the European system and the different models that are used in Europe and finally a European perspective on cooperation in respect of terrorism. The final chapter, chapter five, deals with the neglected subject of recognition of foreign penal judgments, beginning with an introductory piece by Bassiouni who highlights the European system’s development of the doctrine, and then introductory pieces on transfer of proceedings and a special piece on Lockerbie, and an introductory piece on the transfer of prisoners. The last piece looks at US practice on execution of foreign sentences.
Volume III turns to what is for most students of international criminal law is more familiar territory: direct international enforcement of international criminal law. It is a very difficult subject to cover in just one volume and the collection takes a selective approach. Chapter one looks at the history focussing on the need for accountability. Chapter two examines the various international tribunals in separate articles: Yugoslavia, Rwanda, the ICC, and after an introduction to the mixed models, Sierra Leone, Cambodia and East Timor. National prosecution gets equal treatment with general pieces, an overview, and the separate pieces on The French, Belgian, Dutch, Timor, and US Practice. Chapter four, which is far bulkier, looks at various issues of substantive and procedural law that have become prominent in the direct system: command responsibility, joint criminal enterprise and the responsibility of peacekeepers. Bohlander’s treatment of the judicial development of the general part of international criminal law is another highlight as it shows how international criminal law is building a coherent system of transferable general principles and thus is becoming self-consciously systematic. The list continues with ne bis in idem, plea bargains, a disappointingly short treatment of evidence and two pieces on sentencing, followed by a piece on victim’s rights.
Such a long work is bound to throw up typographical errors and they are present along with rather irritating font changes in footnotes. The absence of a unifying general index is a more critical lapse in such a comprehensive work.
No library on international criminal law could reasonably omit this collection. One wonders, however, how long it can survive as a set of separate long pieces before it becomes too unwieldy – the pressure to move towards an encyclopaedia format must be strong. However, the collection expresses Bassiouni’s view that there is a broad all encompassing system of international criminal law and the third edition goes a long way towards substantiating that view.
University of Canterbury
Title: Human Rights in the South Pacific: Challenges and Changes
Pages: xxv + 337
ISBN-10: 1-84472-109-4 (hbk)
Author: Sue Farran
In this book, Sue Farran looks at the challenges facing effective protection and promotion of human rights in 16 island countries and territories of the South West Pacific – Cook Islands, Federated States of Micronesia, Fiji Islands, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Pitcairn Islands, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu. The aim of the book (p 6) is to consider the present state of human rights in Pacific island countries, taking into account the challenges that have to be confronted and the changes that have occurred in taking rights forward in the region.
The subject matter of the book is important with a number of human rights issues currently on the agenda in the region. The Fiji Islands spring immediately to mind with human rights (and democracy) challenges continually arising under the military regime. Along with Fiji, the Solomon Islands and Tonga have also experienced periods of civil unrest in recent times. Throughout the region, women and children struggle on a daily basis to fully realise their human rights, particularly the right to live free from violence. Poverty and the right to live in dignity are also common challenges. As Farran notes (p 301), Pacific Island countries appear to be uneasily suspended between local and global cultural structures, with the consequence that human rights law has struggled to find a firm footing in the region.
Rather than a chapter on each country or each human right, the book is divided into thematic chapters. The first three chapters set the scene. Chapter One introduces the diversity and complexity of the region. Chapter Two considers the distinctive quality of rights as human rights and the various sources of law which are relevant to shaping and securing rights in the plural legal systems of Pacific island countries and territories. Chapter Three considers the theoretical hurdles to effective protection of human rights, and discusses the universalism/relativism debate in the Pacific context.
The next three chapters consider three particular human rights in some detail. Chapter Four looks explicitly at the right to property, including three particular forms of property – land, intellectual property and the ocean. The tensions between group rights and individual rights, and the pressures of development in island countries with limited resources are also considered. Choosing this right as the first for more detailed consideration is significant. The right to property is left out of many international and domestic human rights instruments, but as illustrated in this chapter, is of key importance in the Pacific given the close links to the land and resources. Chapter Five focuses on the right to equality, and looks in depth at the tensions between custom and human rights, with particular focus on the rights of women. It grapples with the big question of the extent to which a liberal approach to diverse cultures means that illiberal cultural practices should be tolerated. Chapter Six looks at the right to be free from discrimination on a number of grounds, particularly sexual orientation, ethnicity and religion. It also raises the interesting question of whether the people(s) of the Pacific are themselves victims of discrimination and so should be afforded special protection in some way. This involves discussion of the rights of minorities and the rights of indigenous peoples.
The final two chapters consider institutions, structures and future directions. Chapter Seven considers rights advocacy and enforcement, looking at the roles played by various actors including legislative assemblies, courts, civil society, the ombudsman, human rights commissions, and regional organisations. Chapter Eight concludes with speculation on the way forward. Future developments foreshadowed include a possible regional human rights mechanism, and the need to further bridge the gap between Pacific and international perceptions of rights. Perhaps the most interesting part of the book is Farran’s subsequent three-page conclusion (pp 303-305) in which she expresses some “personal views” on the future of human rights in the region. Of particular note in this section is her caution that there may not be sufficient cultural or linguistic consensus on what rights Pacific islanders as a group truly value. And, intriguingly, given the absence of any substantive discussion, Farran singles out the freedom to give and receive information as the one human right above all others which is important for the region.
Sue Farran is currently a Senior Lecturer at the School of Law, University of Dundee, Scotland and was previously an Associate Professor at the University of the South Pacific, Emalus Campus, Vanuatu. This book draws heavily on Farran’s experiences living and working in the Pacific. As she herself notes (p viii), the lens through which the issues are viewed is that of a white, female, non-Pacific islander. That said, Farran does an excellent job of canvassing a wide range of perspectives and avoiding diatribe.
The book is well-researched with a lot of detailed country examples to support the assertions made. Many chapters contain discussions of relevant case law. The text itself is also complemented by a useful table of cases (in alphabetical order) and a legislation table (grouped by country). The bibliography is lengthy indicating the huge range and depth of sources. Although much work has recently been done to consolidate legal resources in the region (for example the PACLII database, available at www.paclii.org), many are still scattered and difficult to find. This book locates in one place a number of very useful human rights resources and references.
Just one or two quibbles. In terms of content, an additional chapter on one of the economic and social rights (such as right to an adequate standard of living) would have nicely complemented the three chapters on the right to property, the right to equality and the right to be free from discrimination. As for style, the editor has struggled with some of the Pacific language, with Samoan matai being rendered “matia” and Niue becoming “Nuie.” Data tables have also not fared well, with a number of formatting problems.
This book will be of interest to anyone working in the South West Pacific region. It will be of particular use to those working in the broader human rights and democracy areas including students, academics, judges, diplomats, policy makers and politicians, civil society representatives and international aid workers. It is useful both as a reference work and also as offering some scholarly consideration of the underlying thorny questions in human rights. It will also have a broader appeal to those working in human rights in other parts of the world, as it contains a number of interesting reflections on the challenges faced by post-colonial small island states in giving effect to internationally accepted human rights standards while retaining their unique cultural identity.
Overall, Farran makes a highly constructive contribution to the field of human rights in the Pacific. The book contains some very useful insights on a number of issues likely to be of future focus in the region. The book also succeeds in locating the human rights concerns of Pacific islanders within the wider theoretical and international domain while at the same time maintaining a focus on the importance of the unique identity of Pacific island nations and people. Farran’s book is accessible, thought-provoking, well-researched, and serves as much more than a textbook of the human rights landscape in the South West Pacific.
University of Canterbury
Title: Common Law of International Organizations
Publisher: Martinus Nijhoff
Pages: xxvi + 606
ISBN-10: 90 04 16699 8
Author: Finn Seyersted
The law of international organisations of states, or intergovernmental organisations, has enjoyed much popularity in legal literature; law libraries are filled with literature regarding the law governing particular organisations or groups of organisations. Other books and articles concern themselves with specific problems regarding intergovernmental organisations. However, despite the number of intergovernmental organisations exceeding state actors by tens of thousands, the law between states has been thoroughly scrutinised, while there exist few books, if any, which sufficiently survey the law that all intergovernmental organisations have in common. In such a global context, comparative studies of only certain organisations cannot adequately cover the law of all intergovernmental organisations. For that reason, it is enlightening to read Finn Seyersted’s Common Law of International Organizations. It is not merely a collection of analyses of constitutional instruments, but a compilation of the customary law applying to all intergovernmental organisations (notably, non-governmental organisations are not included in this work). Consequently, it may be the only authoritative text in this area which approaches the topic from such a global, all-encompassing angle.
Before joining the University of Oslo, Seyersted worked many years for the Norwegian Ministry of Foreign Affairs and was, in this role, involved with many international organisations, e.g. as the first deputy permanent representative of Norway to the UN. This hands-on experience and his preference for the Scandinavian school of legal realism strongly influenced his practical academic stance as well as this book. According to Torfinn Rislaa Arntsen, who completed this work after Seyersted passed away in late 2006, he is noted for having maintained that ‘any legal theory that cannot conform to law in practice is of questionable value.’ Accordingly, Seyersted does not dwell extensively on theoretical issues of the nature of the law of intergovernmental organisations, but seeks to find the practical commonalities between such organisations. Instead of working upwards from the smallest unit in the legal framework – the individual organisations themselves – he approaches the matter globally. Indeed, the former approach is his most prominent contention with current literature on this topic. Large parts of the introductory part are devoted to his major criticism that legal scholars – particularly from European and Latin American Roman Law countries, but also from Anglo-Saxon and Scandinavian jurisdictions – define as their basic point of departure that all law surrounding intergovernmental organisations must be derived from their respective constitutional instruments. This method, according to Seyersted, is highly theoretical and neglects the practical reality of the lack of provisions contained in such instruments, and the customary law that has developed to accommodate this deficiency. Most constitutional instruments deal mainly with constituting internal matters of an organisation, which are only certain aspects of the internal law governing intergovernmental organisations. In addition, constitutions are generally hardly concerned with external interactions of the organisation. Therefore, in order to harmonise their point of departure with practical reality, scholars tend to interpret implied powers into constitutions that enable organisations to act beyond the limited scope of their constituting provisions. Yet, these implied powers are only ever called upon when needed, in such an arbitrary and undefined manner that, according to the author, no legal theory could emerge as to the relevant rules that govern intergovernmental organisations. Seyersted submits that instead of relying on fictitious implied powers, the study of customary law surrounding intergovernmental organisations reveals inherent powers, powers that exist independently of constitutional provisions. The study of these inherent powers, as well as of non-inherent but delegated powers, enables the author to develop a consistent picture of the law of international organisations.
Consequently, the book offers an analysis of the customary law that has evolved from the actions and interactions of intergovernmental organisations, and identifies both the powers that are inherent to all intergovernmental organisations as well as those that have to be delegated explicitly. That is the law, which Seyersted considers the common law of international organisations, common both in the literal as well as the binding sense of the word.
Having established the purpose and general framework of the book in the introductory chapter, Seyersted devotes one part of the book to each of the categories of law that govern intergovernmental organisations. He distinguishes between the internal law governing the relations between organs, officials and members of an intergovernmental organisation, the external law governing the relation of intergovernmental organisations with public international law, and the external law governing the relations of a private law nature between intergovernmental organisations and both public and private entities.
Throughout the different areas of law which the book discusses, Seyersted’s main contention – the importance of the distinction between inherent and delegated powers as opposed to powers implied by constituting instruments – consistently resurfaces. Part two of the book deals with the internal law of intergovernmental organisations. It first investigates the inherent powers intergovernmental organisations have over their organs and officials and then looks at delegated powers only certain organisations enjoy. It also looks into internal dispute resolution and how internal courts of intergovernmental organisations relate to external or international courts. In this part the extent of Seyersted’s practical approach to the matter becomes apparent. Not only is the law developed from practice to theory, but the choice of discussion topics attests to the focus on practical issues when Seyersted spends an interesting half-chapter on inherent powers on the employment relationship between the organisation and its officials. In part three, the book explores how the intergovernmental organisation and its members relate to public international law. This includes the question of who is, actually, the subject of rights and duties of international law. Moreover, who is responsible for the actions of intergovernmental organisations? As in the second part of the book, Seyersted continues to distinguish between inherent and delegated powers to determine the answers to these questions. Finally, the fourth part of the book discusses the relations of intergovernmental organisations with private parties. It is both a theoretical and practical disquisition on the matter of conflict of laws as it examines the relationship between the law of intergovernmental organisations and national law. Not only does Seyersted discuss the general principles of conflict of laws against the backdrop of intergovernmental organisations, he also provides valuable insights into practical matters, such as the practice when there are no conflict provisions in national statutes.
Overall, Common Law of International Organizations offers a unique view on the structure and legality of intergovernmental organisations. It is well-researched and owing to its practical approach to the topic will be a valuable asset to both intergovernmental organisations and governmental institutions, as well as to international law teachers and scholars alike.
University of Canterbury
Title: ‘No Time for Legal Niceties’? Terrorism, War and International Law
Author: Myra Williamson
The central challenge before policy-makers today is to ensure that the UN Charter, born of the 20th century, fits the security realities of the 21st. Myra Williamson explores the most difficult test-case of its kind – the international community’s response to the Afghanistan situation. In short, she does a good job at it.
Williamson’s objective is to examine international law pertaining to the use of force by states, in general, and their use of force in self-defence, in particular. The main question addressed is whether the US, UK and their allies employed force lawfully against Al Qaeda, Taliban and the State of Afghanistan on 7 October 2001. After meticulous research and rigorous, not to say parsed, reasoning, she concludes that the use of force in Afghanistan was unlawful, something that is not only reprehensible but is fraught with dangerous implications for the future peace and security of the world.
The book is well structured (subject to comment below), with a logical progression of thought, from a review of the changing nature of armed conflict, through a definitional analysis of ‘terrorism’, to the historical evolution on the limitation of force in the modern age (1919-44 and 1945 -2008). It is in light of that broader context that the analysis specifically of the Afghanistan case of 2001 is undertaken.
Williamson’s critique of the unlawfulness of the military operation of October 2001 rests on five arguments, stylistically reflecting courtroom reasoning:
This is plausible argumentation, certainly backed up with extensive references. Yet there is room to wonder whether the author’s analysis is deep rather than wide, to a fault. A dual critique, perhaps, can be advanced of the work – that in both a temporal and a political sense, its focus could to useful effect have been broader.
Williamson’s temporal focus is solely on a two-month period of September-October 2001. In disregarding the ensuing 12-month period thereafter, the analysis misses the broader context of UN action on Afghanistan of 2002, even November-December 2001.
It can, of course, be argued that, if an action is illegal under international law on 7 October, then it is forever illegal. Yet the author acknowledges, with apparent sanguinity, the Security Council’s retroactive approval of force in the ECOMOG case in West Africa. It follows that there might be a possibility of retroactive Council approval of the October Afghanistan operation.
This raises, surely, the more central point of the Afghanistan legality issue – the relationship between Operation Enduring Freedom and ISAF, hardly touched upon in the book.
Because, if the invasion and regime change were justified in the name of collective (not individual) self-defence, then no authorising resolution is required – simply ex post notification to the Security Council. Yet the Council is empowered – a power it has exercised on occasion in the past - to rejecting the rationale for an armed action. But even if the self-defence action was deemed legal, the right lapses once the Council has taken measures to restore peace and security.
There is probably a stronger case that such a right to self-defence lapsed, not with resolution 1373 (which issued directives for financial measures), but with resolution 1386 (which established the military stabilization force, ISAF).
Either way, whether it is in September or December 2001, the right to continue with armed force in the name of collective self-defence lapsed shortly after the 9/11 events. Yet, as Williamson observes, OEF continues to this day, some 8 years later. Not once has the Security Council specifically authorised OEF during that time, contenting itself with worried exhortations for ISAF and OEF to coordinate.
Secondly, Williamson’s political focus is two-fold. She discusses, with some insight, the choice between ‘updating’ an obsolescent Charter that is allegedly failing the changed security realities of our changed times. The US-Australian-Israeli lament that the new scourge of global terrorism has outpaced and out-finessed a lumbering mid-20th century document is trenchantly dismissed as unduly self-serving, and the Charter is reaffirmed as a living document.
In fact, a broader and more refined series of choices is before us. In short:
The choice between these theoretical scenarios is fundamental to our future. But in the real world, the fact that Obama’s USA has effectively repudiated Iraq but endorsed Afghanistan gives us strong insight into which it will be.
Notwithstanding these comments, Williamson’s book is an excellent one and certainly a more gripping read than any newspaper or journalistic foray into the subject. For she addresses, without compromise, the interface between power and law in today’s world as the Westphalian system of sovereign states cedes to the reach of international law and to global opinion. The latter includes opinio juris, which is hesitantly yet resolutely applying criminal law ever more strongly at the international level.
Little reference is made in the book to New Zealand, and it would have given added value at least for New Zealand readership if a separate chapter had explored our own involvement in Afghanistan. For we are not ourselves without blemish.
There is a strong tendency in this country still to see ourselves as tied to the Western military alliance in a post-colonial way. In times past, we fell over ourselves in our haste to join a foreign adventure (1898) or assured the Mother Country that where Britain went, we went (1919, 1939, 1956). To a large extent we transferred that to the USA in Vietnam (1965) and Afghanistan itself (2001). Participation by smaller nations in alliances led by major powers offers them the alluring siren call of self-exculpation from moral or legal accountability. Just do it, as the saying goes.
While New Zealand remained outside the blatant illegalities of the ’03 Iraq invasion, our peripheral engagement in Suez in 1956 constituted a violation of the UN Charter, and our SAS engagement in Operation Enduring Freedom from ’01 to ’05 connects us directly to the central focus of Williamson’s book – the legality or illegality of the counter-terrorism operation.
We are small, yet to the extent we choose to connect operationally with the major powers, we, too, assume independent national liability for what we do.
Member of Parliament (Green)