1 00:00:02,440 --> 00:00:09,060 Without further ado. Thank you for coming. She's going to be speaking on a delegation of powers, of authority and international criminal law. 2 00:00:10,180 --> 00:00:17,830 So to start with qualification, I'm not an expert in international law, but in recent years I've had growing interest. 3 00:00:18,490 --> 00:00:23,560 I'm coming from criminal law and I have a growing interest in the area of international law and international criminal law. 4 00:00:24,250 --> 00:00:29,920 And so the question I want to ask today is a question that I think is it's an important 5 00:00:29,920 --> 00:00:34,750 question that keeps on coming up in the context of international criminal law. 6 00:00:35,260 --> 00:00:40,900 And very often defendants that are being tried by international tribunals challenge that sort 7 00:00:40,990 --> 00:00:47,050 of the court demanding to know by what right does the court or the tribunal judge them. 8 00:00:47,800 --> 00:00:50,770 Now, in part, this is a question, a legal question that we can always say, 9 00:00:50,770 --> 00:00:54,999 you know, go to the Rome Statute, you'll find how we we got their jurisdiction. 10 00:00:55,000 --> 00:00:58,360 But in fact, this is a moral question and it is a very important one. 11 00:00:58,360 --> 00:01:05,499 And in this paper, I'm trying to answer this challenge now, the challenge is based on the traditional position, 12 00:01:05,500 --> 00:01:13,930 according to which it is the states as political communities that have the power and legitimacy to punish wrongdoers using criminal law. 13 00:01:15,520 --> 00:01:20,110 It is therefore necessary to explain why then can international courts and 14 00:01:20,110 --> 00:01:25,510 criminal how can they gain the authority to judge people for certain crimes? 15 00:01:26,770 --> 00:01:30,909 Since many international courts were created by agreement of states and treaties, 16 00:01:30,910 --> 00:01:38,860 it is often assumed that the authority of those courts is grounded in delegation of powers by the states to the international court. 17 00:01:38,860 --> 00:01:48,610 The Tribunal, however, David Luban argues that the start of international courts cannot be based on delegation of powers, 18 00:01:48,940 --> 00:01:58,660 therefore it must be based instead. And the idea of universal jurisdiction, which he justifies by reason of the fairness of the court, 19 00:01:59,290 --> 00:02:03,520 that is, its ability to ensure high quality justice. 20 00:02:04,510 --> 00:02:08,190 Lubin, I will argue, is wrong on both accounts, 21 00:02:08,760 --> 00:02:16,719 so you cannot simply based on their ability to provide high quality justice and there is no difficulty in justifying 22 00:02:16,720 --> 00:02:22,720 the sovereignty of the courts and the basic and the basis of delegation of powers by states as a matter of principle. 23 00:02:23,320 --> 00:02:30,700 Nevertheless, I think that his account is an important starting point because the quality of justice of international courts 24 00:02:31,090 --> 00:02:40,090 provides the reason or reason which may enable states to delegate power to those courts in certain circumstances. 25 00:02:40,330 --> 00:02:48,010 In essence, what I will try to do is I think there is no problem with delegation of power as a basis for for the sovereignty of the court. 26 00:02:48,400 --> 00:02:52,540 And what I will try to look at is all those who argued against the delegation 27 00:02:52,540 --> 00:02:56,830 of the court and show why there is really all their arguments are flawed. 28 00:02:57,490 --> 00:03:02,710 And the second part of this paper, I used the International Criminal Court, the ICC, 29 00:03:03,130 --> 00:03:08,710 as a case study demonstrating how the sovereignty of the court can be based on delegation of powers. 30 00:03:09,280 --> 00:03:13,929 The ICC is a good representative, not only because it is a permanent court. 31 00:03:13,930 --> 00:03:20,380 It's the latest development in the area of international application of international criminal law, 32 00:03:20,980 --> 00:03:28,690 but also because it gains jurisdiction both from direct agreement, from states and from referrals from the Security Council. 33 00:03:29,270 --> 00:03:36,160 Therefore, if I can show the delegation of powers can be growing, can ground the sort of the court impliedly, 34 00:03:37,030 --> 00:03:42,759 it may also justify the authority over a wide range of international courts and tribunals, 35 00:03:42,760 --> 00:03:46,089 whether they're established by treaties or by the Security Council. 36 00:03:46,090 --> 00:03:51,069 I should also say it's not that I'm saying that there is no other basis to to establish. 37 00:03:51,070 --> 00:03:55,090 If so, I'm just trying to argue that I think that the what seems to be an obvious 38 00:03:55,660 --> 00:04:01,360 basis delegation of power is also a good basis for the authority of the court. 39 00:04:02,170 --> 00:04:10,090 So traditionally it is the states, as political communities, that have the power and legitimacy to punish the wrongdoer using criminal law. 40 00:04:10,810 --> 00:04:18,100 Consequently, all four principles of governance jurisdiction of states authority requires some connections between the state. 41 00:04:18,400 --> 00:04:25,900 In the coin, the principle of territoriality looks at the connection between the geography, the geographic location of the crime in the state. 42 00:04:26,350 --> 00:04:34,300 The principle of active nationality concentrates on the connection between the wrongdoer and the state of his or her nationality. 43 00:04:34,630 --> 00:04:41,260 The principle of passive nationality looks at the relationship between the victim and the state of his or her nationality. 44 00:04:41,620 --> 00:04:46,330 And the protective principle gives states jurisdiction over crimes committed against 45 00:04:46,780 --> 00:04:52,510 governmental or state interest based espionage or tax fraud or money counterfeiting. 46 00:04:52,810 --> 00:05:01,870 Counterfeiting of their state currency. However, alongside domestic criminal law, the last century has seen the development of international. 47 00:05:01,970 --> 00:05:07,340 Criminal law. And this development involves two types of changes to the domestic based authority. 48 00:05:09,500 --> 00:05:14,720 The first is the widening of jurisdictions of state to include to include offences 49 00:05:15,020 --> 00:05:19,640 that are not connected to the state in accordance with one of the four principles. 50 00:05:20,270 --> 00:05:27,770 This extension is either justified by treaties or when it comes to some heinous crimes by reference to universal jurisdiction. 51 00:05:28,640 --> 00:05:34,610 The second change whose origin dates back to the end of World War Two, 52 00:05:35,120 --> 00:05:40,460 is the development of international tribunals that have authority to judge certain crimes. 53 00:05:41,330 --> 00:05:47,420 The most recent development in this front is the creation of a permanent tribunal, the International Criminal Court. 54 00:05:48,110 --> 00:05:51,860 Currently, the court judges for offences in only four offences. 55 00:05:52,700 --> 00:05:56,630 Genocide, war crimes. Crimes against humanity and torture. 56 00:05:56,900 --> 00:05:58,940 And in the near future, a fifth offence, 57 00:05:58,940 --> 00:06:05,660 offence and the crime of aggression will also be added to the list and hopefully will be added to the list of tribal offences. 58 00:06:06,920 --> 00:06:11,300 Though both areas of development of international criminal law begs the same question. 59 00:06:11,360 --> 00:06:15,260 Right. By what right do those courts of tribunal judge us? 60 00:06:15,500 --> 00:06:22,760 I think they deserve separate discussion. And in this discussion I will only concentrate on the international courts and tribunals. 61 00:06:23,810 --> 00:06:28,370 I also think that there is an interplay and interrelation between those two. 62 00:06:29,210 --> 00:06:32,930 Those two questions, inevitably. So by what? 63 00:06:33,410 --> 00:06:38,540 So and what moral ground can international tribunals ground their authority and legitimacy? 64 00:06:39,260 --> 00:06:47,330 David Luban is one of the very few to offer an answer to this question, and although I disagree with him, I think his account is an instructive one. 65 00:06:48,110 --> 00:06:53,149 He develops a fairness based justification for what he terms pure international criminal law, 66 00:06:53,150 --> 00:06:56,300 which in effect are those four offences we were talking about. 67 00:06:57,860 --> 00:07:05,389 His argument is developed in two stages. First, he argues that the basis for the legitimacy of international tribunals in general 68 00:07:05,390 --> 00:07:10,490 and the ICC in particular must be grounded in the idea of universal jurisdiction. 69 00:07:11,150 --> 00:07:17,960 Although he recognises that the ICC operates on a theory of delegated jurisdiction whereby state parties, 70 00:07:18,380 --> 00:07:25,910 then state parties transfer to the ICC their own territorial or nationality based jurisdiction over pure international crimes. 71 00:07:26,300 --> 00:07:27,320 He argues that, 72 00:07:27,320 --> 00:07:35,150 and I'm quoting it is far from obvious the criminal jurisdiction is something the state can legitimately delegate to whoever it chooses. 73 00:07:35,870 --> 00:07:44,670 If it can delegate criminal jurisdiction to the ICC, then why not to the Kansas City dogcatcher, the World Chess Federation or the Rolling Stones? 74 00:07:44,690 --> 00:07:56,480 I'm all for Rolling Stones. Thus a more stable basis is needed, and this could be found according to Leuven, in the idea of universal jurisdiction. 75 00:07:57,380 --> 00:07:58,550 In the second stage, 76 00:07:58,670 --> 00:08:07,580 Lubin goes on to justify universal jurisdiction on what he terms the manifest fairness of the procedures and punishment of the international court. 77 00:08:08,030 --> 00:08:13,999 His point is that it is the ability of these courts to provide champagne quality justice. 78 00:08:14,000 --> 00:08:17,270 That is a grounds for the sorting legitimacy of these tribunals. 79 00:08:17,540 --> 00:08:22,090 I must say I've presented this paper in the States and when I said champagne quality justice, 80 00:08:22,100 --> 00:08:25,850 I had a few things coming up asking me, is that good quality justice? 81 00:08:25,880 --> 00:08:30,680 So as Europeans, I appreciate that you are you appreciate that it is right at least good champagne. 82 00:08:32,540 --> 00:08:41,540 So Lupin goes on to explain that the need to comply with the requirement of natural justice means that, and I'm quoting again, 83 00:08:41,960 --> 00:08:46,520 only tribunals that have some kind of internationally recognised state authorisation, 84 00:08:46,850 --> 00:08:54,140 paradigmatic clear authorisation by multilateral groups of states such as the UN are likely to be able to satisfy them. 85 00:08:54,530 --> 00:08:59,840 Evidence must be gathered from foreign war zones by trustworthy and impartial investigators. 86 00:09:00,080 --> 00:09:05,120 Evidentiary chain of custody must be maintained. Defence counsel and judges recruited and paid. 87 00:09:05,510 --> 00:09:10,850 Defence witnesses subpoenaed across borders, appealing pinholes created in staffed rules, 88 00:09:10,850 --> 00:09:15,020 written safe humane prison found in long term confinement monitored. 89 00:09:15,230 --> 00:09:18,260 Realistically, only states can carry these discs. 90 00:09:18,680 --> 00:09:26,719 Therefore, he admits, that is ultimately why it will not do to grant criminal jurisdiction to the Rolling Stones in the World, 91 00:09:26,720 --> 00:09:37,549 Chess Federation has said. So even if we accept Ruben's premise that delegation of jurisdiction cannot ground authority of the ICC, 92 00:09:37,550 --> 00:09:42,770 which is and must be founded on the notion of universal jurisdiction, something that they will come back to later. 93 00:09:43,460 --> 00:09:46,460 It seems to me that Lubin is confusing two distinct issues, 94 00:09:46,940 --> 00:09:53,570 and this confusion is camouflaged by Logan's use of the terminology of legitimacy to address issues of authority. 95 00:09:54,560 --> 00:09:58,520 His discussion involves what I think are two distinct notions of authority. 96 00:09:58,940 --> 00:10:03,980 The first is what I call jurisdictional authority. And the second is decision authority. 97 00:10:05,210 --> 00:10:11,900 Jurisdiction authority involves identification of the moral basis for recognising the jurisdiction of a body. 98 00:10:12,920 --> 00:10:18,800 The seizure authority involves the ability to hand down an authoritative judgement 99 00:10:19,490 --> 00:10:23,780 in order for decision or a judgement to be to have the quality of authority, 100 00:10:24,110 --> 00:10:35,120 it must respond to two claims. First, the body has jurisdiction authority, and second, that the jurisdiction on authority is exercised in a fair way. 101 00:10:36,050 --> 00:10:41,570 Thus, jurisdiction authority is a prerequisite for decision authority. 102 00:10:41,570 --> 00:10:45,920 It's one of the two conditions in order to have decisional authority. 103 00:10:46,670 --> 00:10:54,620 And the other hand, the recognition of jurisdictional authority is not logically dependent on the existence of fair process, 104 00:10:55,280 --> 00:11:01,519 although in practice the ability to provide fair process and thus decision authority is an important 105 00:11:01,520 --> 00:11:07,220 consideration in deciding whether to recognise the jurisdictional authority of a given body. 106 00:11:07,470 --> 00:11:14,360 Right? So one of the things that we need to take to bear in mind when we think that to give to to grant jurisdiction authority 107 00:11:14,360 --> 00:11:19,130 is the ability of that court at the end of the day to produce something that will be authoritative judgement. 108 00:11:21,140 --> 00:11:28,940 When Rubin argues that the ICC is legitimately legitimacy, is dependent on the Court's compliance with the demands of natural justice. 109 00:11:29,420 --> 00:11:33,530 He's correct in so far as he's referring to legitimacy in the sense of decision. 110 00:11:33,530 --> 00:11:38,930 Authority for decisional authority requires the existence of a fair criminal process. 111 00:11:39,650 --> 00:11:45,710 However, legitimacy in the sense of jurisdictional authority cannot be grounded in compliance with natural justice. 112 00:11:46,130 --> 00:11:54,709 Such a claims amounts to arguing that the existence of the second aspect of decisional authority is also the answer to the first aspect, 113 00:11:54,710 --> 00:11:58,280 and thus both aspects connecting to one right. We just have the issue. 114 00:11:58,280 --> 00:12:05,750 Fair justice jurisdiction cannot be gained simply by ensuring natural procedural justice. 115 00:12:05,990 --> 00:12:11,959 The ability to endure to ensure a just process is insufficient to provide any domestic court jurisdiction 116 00:12:11,960 --> 00:12:17,750 over a person with regards to whom there is no other basis for jurisdiction to use that example in, 117 00:12:17,750 --> 00:12:23,720 I'm quoting If an English court delivers champagne quality, good champagne quality, 118 00:12:23,780 --> 00:12:32,120 due process in Polish courts did not this would not give an English court the right to try a Polish thief for theft committed in Poland. 119 00:12:33,050 --> 00:12:38,240 Nor can such claims to procedural propriety giving to national courts in authority 120 00:12:38,480 --> 00:12:42,800 they would otherwise look at defendants challenged by what right do you try me? 121 00:12:43,040 --> 00:12:47,800 Must be answer for a trial to be legitimate in the sense of decision authority. 122 00:12:48,350 --> 00:12:54,530 The answer our procedures, respect to the means of natural justice is not an answer to this challenge. 123 00:12:55,670 --> 00:12:56,840 But more importantly, 124 00:12:57,590 --> 00:13:06,590 I'm not convinced by Rubin's first claim that there is a problem with the idea that states can delegate their jurisdiction to international tribunals. 125 00:13:07,190 --> 00:13:16,250 His reasoning, which I think reflects the US position, seems to be that if we allow states to delegate their jurisdiction to international tribunals, 126 00:13:16,550 --> 00:13:20,360 then what is there to stop states from delegating their powers to clearly 127 00:13:20,360 --> 00:13:25,250 inappropriate bodies such as the World Chess Federation or the Rolling Stones? 128 00:13:26,240 --> 00:13:31,610 Lubin compares the delegation of powers to international tribunals, to delegation of powers to private body. 129 00:13:32,210 --> 00:13:37,370 Therefore, it would be useful to examine the possible underlying claims against delegation of powers 130 00:13:37,370 --> 00:13:42,890 to private body and see if they are similarly applicable to international tribunals. 131 00:13:44,180 --> 00:13:48,889 This discussion will also help us flesh out both the special features of the 132 00:13:48,890 --> 00:13:53,300 international tribunals and the important role of the state in punishment. 133 00:13:54,080 --> 00:13:59,059 Looming objection can thus be based on one of three or four distinct underlying claims. 134 00:13:59,060 --> 00:14:06,500 I will look here only at two claims. One is to look at the role of the state as an is instrumental. 135 00:14:07,220 --> 00:14:11,540 It may be based on a lockean view that the state are instrumental in punishing 136 00:14:11,540 --> 00:14:15,530 those who deserve to be punished because they are best placed to do the job. 137 00:14:16,400 --> 00:14:22,880 That is, it assumes that the wrongdoer deserves to be punished for attribute to this or consequentialist reasons it doesn't really matter. 138 00:14:23,180 --> 00:14:32,419 And claims that the states are better placed to determine what the wrongdoer justly deserves and subsequently accurately inflict that sanction 139 00:14:32,420 --> 00:14:41,510 and those who justly deserve the negation of power to punish the private bodies who inevitably are not similarly able to make these decisions, 140 00:14:41,510 --> 00:14:50,720 would therefore be objectionable. If this is a basis for Rubin's rejection of delegation as a basis for international tribunals jurisdiction, 141 00:14:50,750 --> 00:14:54,829 then it is viable only if we cannot differentiate between delegation of powers to 142 00:14:54,830 --> 00:15:00,650 private body and delegation of powers to public bodies such as international tribunals. 143 00:15:01,350 --> 00:15:06,670 It. Proven himself provides us with the basis for making such distinction. 144 00:15:07,030 --> 00:15:13,480 Only state authorised or supported tribunals but not private body are able to ensure fair procedures in punishment. 145 00:15:14,170 --> 00:15:22,000 If he is right about this and I think he is right about this, and then it appears that his objection to the delegation based society is removed. 146 00:15:23,020 --> 00:15:28,660 Moreover, I don't think that Rubin's rejection and delegation of power is really based on this kind of argument, 147 00:15:29,050 --> 00:15:35,200 because Rubin himself thinks that international criminal tribunals can legitimately punish wrongdoers for certain crimes, 148 00:15:35,800 --> 00:15:45,100 meaning that he must think that this, at least for these offences, international tribunals are at least as well placed as national courts. 149 00:15:45,820 --> 00:15:55,420 The second argument I want to look at is a state centred justification for against delegation of powers to punish private parties. 150 00:15:56,020 --> 00:16:01,690 This argument is based on the claim that states have a power to punish because and one variation in, 151 00:16:01,690 --> 00:16:06,999 I'm quoting punishment is a conventional device for the expression of attitude, 152 00:16:07,000 --> 00:16:11,650 of resentment and indignation and of judgements of disapproval and probation, 153 00:16:12,220 --> 00:16:18,820 and the part either of the punishing authority himself or those in whose name the punishment is inflicted. 154 00:16:19,810 --> 00:16:23,800 And of course, since punishment is an expression of the judgement of the community, 155 00:16:24,040 --> 00:16:29,320 only the state which is the modern representative of the community, can make such representation. 156 00:16:29,920 --> 00:16:36,370 A different variation advanced by death argues that punishment is not an expressive exercise, 157 00:16:36,370 --> 00:16:42,340 but rather a communicative one, which involves holding the wrongdoer to account and punishing him. 158 00:16:42,700 --> 00:16:50,170 Yet for similar reasons to the ones I've just explained, his account to require is that the state will be the one to punish. 159 00:16:50,530 --> 00:16:53,799 Now I tend to agree with stuff with that position. 160 00:16:53,800 --> 00:16:58,240 The trial says to rules holding the wrongdoer to account and punishing him. 161 00:16:58,600 --> 00:17:07,210 I also think that to achieve this, it is essential that the state resources in private bodies would be in charge of the process and its execution. 162 00:17:07,900 --> 00:17:11,830 Nevertheless, this does not prevent delegation of jurisdiction altogether. 163 00:17:12,520 --> 00:17:19,209 It does not prevent delegation of jurisdiction to other public bodies visiting international tribunals or possibly 164 00:17:19,210 --> 00:17:28,390 tribunals of other states to act on behalf of in condemning the name of the state with primary jurisdiction and community, 165 00:17:28,690 --> 00:17:31,960 as long as they can ensure fair process in punishment. 166 00:17:32,680 --> 00:17:35,770 But according to this explanation, specifically, 167 00:17:36,040 --> 00:17:44,560 the state whose primary jurisdiction must have priority as the main representative or representative of its community, subsequently, 168 00:17:45,280 --> 00:17:51,790 permission to delegate jurisdiction must be limited only to instances where the state with primary 169 00:17:51,790 --> 00:17:57,490 jurisdiction is unable to call the wrongdoer to account itself because it's a failed state, 170 00:17:57,820 --> 00:18:06,070 or because a wrongdoer has fled the country, or where the state is unable to ensure due process because of difficulties collecting evidence, 171 00:18:06,070 --> 00:18:08,440 getting witnesses or anything along these lines. 172 00:18:09,010 --> 00:18:17,200 In such cases, it seems wrong that the wrongdoer would gain a windfall advantage and avoid being called to account altogether. 173 00:18:18,430 --> 00:18:26,650 Note also that this explanation requires an agreement to be delegated to the delegation of power by the state with primary jurisdiction. 174 00:18:26,660 --> 00:18:30,040 So it's not you can just transfer. There has to be a clear agreement. 175 00:18:30,040 --> 00:18:35,919 The state who has primary jurisdiction has to give this jurisdiction to someone else when it cannot do so as a direct, 176 00:18:35,920 --> 00:18:39,880 immediate representative of the people. We will return to this point later. 177 00:18:41,440 --> 00:18:48,069 So the essence of the two arguments I looked at is that Lupin's objection is based 178 00:18:48,070 --> 00:18:52,870 on an assumption that recognising the permissibility of some types of delegation, 179 00:18:52,870 --> 00:19:00,490 i.e. to public international tribunals, inevitably means the states are permitted to delegate jurisdiction to whomever he chooses, 180 00:19:00,910 --> 00:19:05,230 and such an unlimited permission to delegate jurisdiction is clearly objectionable. 181 00:19:05,620 --> 00:19:11,830 It is objectionable because there are private bodies to whom delegation of power to punish is clearly inappropriate. 182 00:19:12,650 --> 00:19:18,940 As I argued in a waiver, none of these of the reasons behind the objection to the delegation of powers to private 183 00:19:18,940 --> 00:19:25,240 bodies require the conclusion that all delegations of power a priori are prohibited. 184 00:19:28,030 --> 00:19:29,020 Alternatively, 185 00:19:29,650 --> 00:19:39,040 the objection to the delegation of jurisdiction may be masking a different fear that the body to whom the jurisdiction is delegating is delegated, 186 00:19:39,040 --> 00:19:41,890 may be incapable or unwilling to act justly. 187 00:19:42,370 --> 00:19:51,760 This would also explain why Lubin argues that the ability to produce champagne quality justice is so important for the tribunal's legitimacy. 188 00:19:52,720 --> 00:19:59,290 But if this is a real fear, then the solution is found not in a prohibition of delegation of power all together, 189 00:19:59,710 --> 00:20:05,260 but rather with ensuring that the powers are delegated only to bodies that uphold natural justice. 190 00:20:05,980 --> 00:20:09,600 Put another way, the problem is not just jurisdictional authority perceive, 191 00:20:10,160 --> 00:20:16,390 but to bring the decision authority or the second aspect in order to achieve decision authority, the fair process. 192 00:20:16,930 --> 00:20:22,690 Therefore, the solution does not have to exclude the possibility of recognising jurisdictional authority altogether, 193 00:20:23,200 --> 00:20:29,829 whether it has to revolve around an assurance that it is recognised only where the 194 00:20:29,830 --> 00:20:34,870 body is capable of ensuring the fair process and subsequently decisional authority. 195 00:20:36,130 --> 00:20:40,120 Now, therefore, there is no reason, as a matter of principle, 196 00:20:40,690 --> 00:20:45,879 that to prevent states from delegating their power to punish states are thus 197 00:20:45,880 --> 00:20:50,950 permitted to delegate power to other national as well as international tribunals. 198 00:20:51,280 --> 00:20:59,229 The decision when the power should be delegated is one to be taken by the state whose primary jurisdiction it not. 199 00:20:59,230 --> 00:21:09,820 Any delegation of power is morally justified because powers are delegated with the ultimate view of enabling just judgement. 200 00:21:10,540 --> 00:21:18,249 Or put a different way, states grant jurisdiction authority to international tribunals, which the views of those tribunals will also possess. 201 00:21:18,250 --> 00:21:28,030 Decisional sovereignty. An essential condition for the delegation of power is the procedural fairness of the court. 202 00:21:29,170 --> 00:21:33,489 Clearly, where a state is unable to call the wrongdoer to account by itself, 203 00:21:33,490 --> 00:21:40,660 it may delegate those powers to another national or international tribunal able to do so in other circumstances. 204 00:21:40,900 --> 00:21:46,360 In deciding whether power are to be delegated, a state should bear in mind, 205 00:21:46,690 --> 00:21:52,030 and I'm not giving here at least of the consideration that it should bear in mind, but it is something that I think are important. 206 00:21:52,930 --> 00:22:02,050 The importance of the role, its role as a representative of the people, the role of the trial is to hold the wrongdoer to account and to punish him. 207 00:22:02,470 --> 00:22:07,150 The state may be best suited to communicate this message generated from its own people 208 00:22:07,450 --> 00:22:11,830 as immediate representative of the people and being composed of its own people. 209 00:22:12,130 --> 00:22:18,040 It may be able to convey a focussed and direct message of condemnation of that specific community. 210 00:22:18,760 --> 00:22:22,959 The fact that the trial is further conducted in the territory of that state means it 211 00:22:22,960 --> 00:22:27,880 is also able to convey a direct message to the victims and to the society at large. 212 00:22:28,180 --> 00:22:29,640 This can be easily accessed. 213 00:22:29,650 --> 00:22:37,020 One of the common problems that exist, or one of the common claims that the African countries have against the ICC is, you know, 214 00:22:37,030 --> 00:22:43,389 you were conducting or the Sierra Leone court, you're conducting your justice somewhere else in a different continent. 215 00:22:43,390 --> 00:22:47,770 We don't know what happens. The people in all the villages have no access to what's going on. 216 00:22:47,770 --> 00:22:53,649 So having it in the place where things happen makes a huge difference because it's it's accessible to the 217 00:22:53,650 --> 00:23:01,100 community and that has an important role for them supporting a state centred justification for punishment. 218 00:23:01,120 --> 00:23:06,069 These considerations may be decisive to prohibit delegation of power by the 219 00:23:06,070 --> 00:23:10,060 state where it is able to justly hold the wrongdoer to account and punish him. 220 00:23:10,930 --> 00:23:15,730 But even for if one does not agree with the state centred justification of punishment, 221 00:23:15,820 --> 00:23:22,060 these are important considerations that ought to be taken into account when making the decision to delegate the powers. 222 00:23:23,080 --> 00:23:30,950 It is worth noting that the idea of delegation of jurisdiction to other tribunals is not really foreign to state if in practice. 223 00:23:31,300 --> 00:23:38,440 Indeed, it is a common legal practice in the context of development of the domestic application of international criminal law. 224 00:23:38,830 --> 00:23:43,810 Delegation of powers from one state to another through treaty agreements is very common. 225 00:23:44,350 --> 00:23:53,260 These treaties, which were created to improve international cooperation, require parties who have custody of an alleged wrongdoer to prosecute him. 226 00:23:53,650 --> 00:24:00,070 If they cannot cannot extradite the suspect to the state that has primary jurisdiction over the crime. 227 00:24:00,880 --> 00:24:08,140 The possibility of the state of custody to prosecute when it has no connection to the crime is best explained in terms 228 00:24:08,140 --> 00:24:14,950 of delegation of jurisdiction by the state whose primary jurisdiction to the state who has custody of the wrongdoing. 229 00:24:16,210 --> 00:24:24,910 So what I've tried to show so far is just that there is no limitation in principle preventing that delegation of power. 230 00:24:24,940 --> 00:24:31,890 What I want to do in the second part. To examine whether we can justify or establish the authority of the ICC. 231 00:24:32,430 --> 00:24:38,700 I'm the of powers. Now, if we accept the point that in principle there is no problem, 232 00:24:39,180 --> 00:24:45,900 can we would we be able to ground more and authority of the ICC on the basis of delegation of powers? 233 00:24:46,500 --> 00:24:53,879 Legally, the ICC gains jurisdiction over a person in a number of ways by agreement of the states and territories. 234 00:24:53,880 --> 00:24:57,630 A crime is committed, or of which the alleged perpetrator is a national, 235 00:24:58,350 --> 00:25:08,860 or when alleged crimes are referred to the prosecutor of the ICC by the Security Council, the agreement can be given in advance a permanent agreement. 236 00:25:08,880 --> 00:25:21,090 By joining becoming a party to the Rome Statute or ad hoc after the event by by joining in the ICC retrospectively. 237 00:25:21,930 --> 00:25:29,820 Now, clearly, once we accept that there is no problem in principle that states for states to delegate the power to punish the international tribunal, 238 00:25:30,210 --> 00:25:39,870 then where the ICC jurisdiction derives explicitly from states agreement, the more on bases can follow clearly from that, right? 239 00:25:39,870 --> 00:25:44,100 Because they actually explicitly give the permission or delegate the power. 240 00:25:44,790 --> 00:25:48,600 The delegating state is legally permitted to delegate, the power to punish. 241 00:25:48,750 --> 00:25:56,489 And in so far as its delegation is to a body that is that can provide high quality judgement in here. 242 00:25:56,490 --> 00:26:00,090 I'm assuming that the ICC can provide high quality just in justice. 243 00:26:00,450 --> 00:26:02,730 It is also morally permitted to do so. 244 00:26:03,270 --> 00:26:12,390 The complementary nature of the ICC jurisdiction for there fits well even with state centred justification for punishment. 245 00:26:12,750 --> 00:26:18,440 Leaving the delegating state was primary. It was the primary duty to punish the wrongdoer where possible. 246 00:26:18,450 --> 00:26:21,900 So the ICC only steps in if it fails to do so. 247 00:26:22,920 --> 00:26:27,930 But what if cases where the court gains jurisdiction by by referral from the Security 248 00:26:27,930 --> 00:26:34,559 Council does argues that these are cases that must be viewed as claims of independent, 249 00:26:34,560 --> 00:26:42,060 universal jurisdiction, and as such, they cannot be reduced to claim of delegation of power that is in good company, 250 00:26:42,060 --> 00:26:51,690 including visiting the US as well as some other countries. Take the similar approach when they claim that as a matter of law and the ICC may 251 00:26:51,690 --> 00:26:56,130 not exercise jurisdiction over nationals of non parties without their consent. 252 00:26:56,220 --> 00:27:03,420 Then, even during the second Bush administration enacted a law permitting the US army 253 00:27:03,420 --> 00:27:10,440 to invade Hague if American soldiers will be trialled in front of the ICC. 254 00:27:12,090 --> 00:27:15,600 So can prosecutions be based on referrals from the security? 255 00:27:16,140 --> 00:27:22,470 So so can prosecution based and referrals from the Security Council be explained in terms of delegation of authority? 256 00:27:22,830 --> 00:27:26,520 I believe acting based on indirect delegation of power, 257 00:27:26,970 --> 00:27:35,910 the general line of argument is based on the fact that all states are parties to the UN Charter, which sets out the Security Council and its powers. 258 00:27:36,390 --> 00:27:45,000 When the Security Council acts under Chapter seven of the UN Charter, it is exercising power delegated to it by the Member States. 259 00:27:45,000 --> 00:27:53,600 Collectively, decisions of the Security Council to refer a case to the prosecutor of the ICC are within the remit of the Security Council. 260 00:27:54,420 --> 00:28:01,110 These decisions constitute an example of the delegation of criminal jurisdiction by the States in that case, 261 00:28:01,110 --> 00:28:05,010 who had the primary jurisdiction to the Security Council. 262 00:28:06,000 --> 00:28:13,020 It is therefore sufficient that the crime was committed and the territory of the state and or by a national of a state that is 263 00:28:13,020 --> 00:28:20,670 a member of the UN to enable the Security Council to decide to refer a case to the prosecutor of the ICC for investigation. 264 00:28:21,360 --> 00:28:28,200 Given the permanent nature of the delegation of powers, the State whose primary jurisdiction and who's delegated power in the Security 265 00:28:28,200 --> 00:28:32,760 Council decision is based cannot unilaterally retract from the delegation, 266 00:28:32,970 --> 00:28:36,900 from its delegation, without withdrawal from the UN altogether. 267 00:28:38,400 --> 00:28:46,920 If this is correct and the legal basis for the ICC jurisdiction, even in cases of referrals from the Security Council, is delegated power from states. 268 00:28:47,220 --> 00:28:54,300 Then the moral basis to can and must be based on the delegation of powers and not the universal jurisdiction, 269 00:28:55,050 --> 00:28:58,530 except that in cases it involves referrals by the Security Council. 270 00:28:58,980 --> 00:29:03,870 Usually the state who has primary jurisdiction is opposing the idea of punishing the wrongdoer. 271 00:29:04,590 --> 00:29:07,020 Right. We've already noted that as a matter of law, 272 00:29:07,020 --> 00:29:13,500 it does not detract from the ability of the Security Council to refer a case on the basis of this delegated power. 273 00:29:13,710 --> 00:29:19,620 However, as a matter of morality, can we truly argue that the sword of the ICC is based on delegation of power, 274 00:29:19,920 --> 00:29:25,290 where the state or states with primary jurisdiction clearly oppose this kind of delegation of power? 275 00:29:26,890 --> 00:29:31,480 When the state was primary jurisdiction, opposes a Security Council decision. 276 00:29:31,480 --> 00:29:39,639 It refers it to refer a case to the ICC. It may do so on one of the following reasons it may occur when the wrongdoer acted 277 00:29:39,640 --> 00:29:44,230 in an official capacity and is therefore supported by his state of nationality. 278 00:29:44,830 --> 00:29:52,380 This position may take place in both interstate as well as interstate armed conflicts in inter-state armed conflict, 279 00:29:52,390 --> 00:29:56,140 even if the state of nationality does not think the wrongdoer is acted wrongly. 280 00:29:56,440 --> 00:30:01,630 The state in whose territories the alleged crime has been committed also has primary jurisdiction. 281 00:30:02,890 --> 00:30:10,480 It can be based. So the Security Council decision can be based on and delegated power from the state of territoriality. 282 00:30:13,240 --> 00:30:21,250 But the offences with which we are concerned are not limited to inter-state armed conflict and are similarly applicable in intrastate conflicts. 283 00:30:21,730 --> 00:30:26,860 Here the country was nationalities. Also the country in whose territories alleged crime took place. 284 00:30:26,920 --> 00:30:33,580 Think of Syria. Right. It's both. The Syrian army is committed crimes, alleged crimes in Syria. 285 00:30:33,900 --> 00:30:38,080 Right. So it's the same nationality in territoriality collapsing to one. 286 00:30:39,430 --> 00:30:45,260 If the state supports the official wrongdoer, then those supporting a state centred justification for punishment. 287 00:30:45,310 --> 00:30:51,310 He argues a delegation cannot be based on a cannot be a basis for the jurisdiction because a community 288 00:30:51,310 --> 00:30:56,560 with primary jurisdiction does not view the wrongdoer conduct as one deserving condemnation. 289 00:30:56,860 --> 00:31:02,799 The state doesn't want to punish. It supports the wrongdoer. Second, the state was primary jurisdiction. 290 00:31:02,800 --> 00:31:07,870 Me opposed the holding to account and the punishment of wrongdoers for some overriding interest. 291 00:31:08,170 --> 00:31:12,730 Once again, this would typically happen in intervention state conflicts. 292 00:31:13,390 --> 00:31:19,570 It would be it could be that an agreement not to punish is a basis for an agreement bringing the conflict to an end, 293 00:31:20,050 --> 00:31:24,580 whereas such an agreement with the dictator would be the basis for the removal from power. 294 00:31:24,580 --> 00:31:25,180 For example, 295 00:31:25,180 --> 00:31:33,130 there was suggestions in Libya before he could before the collapse of the Gadhafi regime that maybe they can reach some kind of agreement. 296 00:31:33,370 --> 00:31:36,250 Similar ideas were raised in the context of Yemen. 297 00:31:36,490 --> 00:31:43,570 Maybe we can reach some kind of agreement where the dictator will leave and we are not going to put didn't take him to trial. 298 00:31:45,850 --> 00:31:48,429 It could also be for other political reasons, 299 00:31:48,430 --> 00:31:54,790 all where a society decided possibly as part of a process of reconciliation that it would be better to put 300 00:31:54,790 --> 00:32:01,809 the past to rest in order to allow for the various groups in society to move forward in these circumstances. 301 00:32:01,810 --> 00:32:08,530 Once again, it seems difficult to argue that the Security Council and the ICC are representing the state 302 00:32:08,830 --> 00:32:14,440 who clearly oppose it in condemning the wrongdoer and holding him to account for his actions. 303 00:32:16,060 --> 00:32:17,710 The answer to the challenge, I think, 304 00:32:18,010 --> 00:32:26,020 to grounding the moral basis for the security of the Security Council is referrals and delegation of power in the face of clear 305 00:32:26,020 --> 00:32:34,599 opposition of states with primary jurisdiction lies in the failure of these states and the states with primary jurisdiction to do that, 306 00:32:34,600 --> 00:32:35,799 which they ought to do, 307 00:32:35,800 --> 00:32:43,900 in which they recognise in principle they ought to do all the crimes that we are dealing with their crimes which has been recognised by customary law, 308 00:32:44,140 --> 00:32:50,140 by all countries, by all states, and are important for the maintenance of international peace and security. 309 00:32:50,690 --> 00:32:58,690 When a state whose primary jurisdiction joins the UN, it gave a general consent to delegate its power to the Security Council, 310 00:32:58,690 --> 00:33:05,140 knowing that the Security Council may act against it if it fails to uphold those principles. 311 00:33:05,920 --> 00:33:14,799 The Security Council intervenes when a state is unable or unwilling to hand down its obligation and to act against those who have acted. 312 00:33:14,800 --> 00:33:22,180 In a way the state whose primary jurisdiction have already agreed in principle to be wrong and deserving of condemnation. 313 00:33:22,960 --> 00:33:29,290 Moreover, when it comes to inter-state conflicts where crimes have been committed by one group against another, 314 00:33:29,920 --> 00:33:38,139 the state's refusal to hold the wrongdoer to account means it refuses to condemn is a representative if conduct 315 00:33:38,140 --> 00:33:45,550 which is condemned by at least part or group that has been victims to those crimes within its own society. 316 00:33:46,510 --> 00:33:54,130 The Security Council therefore steps into the state's shoes with the state's own prior general permission, 317 00:33:54,460 --> 00:34:02,800 because the permission to a delegation of power to the Security Council is a very general intent in in nature and represents a victim. 318 00:34:03,190 --> 00:34:08,739 Presumably this line of argument would mean that we should recognise one exception where the genocide, 319 00:34:08,740 --> 00:34:16,910 where a genocide has been so successful so as to kill all the members of that racial or ethnic group in such circumstances. 320 00:34:17,260 --> 00:34:22,120 There is there is no one left in the state whom the government has a duty to represent their gone. 321 00:34:23,290 --> 00:34:25,870 But it seems perverse to say that. 322 00:34:26,490 --> 00:34:34,290 In places where you've been so successful, you're going to get away just because the success of your crime and you should benefit from your campaign. 323 00:34:35,100 --> 00:34:40,140 At the end of the day, and this is this this is important, but it shouldn't be remembered. 324 00:34:40,590 --> 00:34:44,850 If a state really intends to object to the Security Council's referral, 325 00:34:45,510 --> 00:34:51,360 then it has a right to withdraw its early general permission by abandoning the UN altogether. 326 00:34:51,690 --> 00:34:55,320 So it is power that is delegated. There is a choice here. 327 00:34:56,280 --> 00:35:02,250 The ongoing membership in the UN is an ongoing validation of delegation of power to the Security Council. 328 00:35:02,370 --> 00:35:08,670 At any point the state can remove itself from the UN, remove the delegation under the delegation of power. 329 00:35:09,000 --> 00:35:12,470 It chooses not to do so. It can argue more or less, but its end of the date. 330 00:35:12,510 --> 00:35:17,520 Well, it is willing and it's said it will be willing to accept the Security Council's decision. 331 00:35:19,050 --> 00:35:21,660 The failure of state was primary jurisdiction. 332 00:35:21,660 --> 00:35:30,270 Reasoning doesn't waiver lead to recognition of a different exception, where the state acting as a true representative of its people. 333 00:35:30,270 --> 00:35:34,379 And I'm stressing here the true representative enters an agreement with the 334 00:35:34,380 --> 00:35:38,970 wrongdoer in order to bring the conflict to an end or for some other interest. 335 00:35:39,420 --> 00:35:44,580 If an agreement was reached by a body that can just be regarded as representative of the people, 336 00:35:44,880 --> 00:35:48,420 then justice demands the promise that has been given should be followed. 337 00:35:48,930 --> 00:35:56,070 In these circumstances, the state is not failing in its obligation to its people or to the international community. 338 00:35:56,340 --> 00:36:01,950 And therefore, the Security Council ought not intervene and refer a case to the prosecutor of the ICC. 339 00:36:02,310 --> 00:36:06,060 And the idea that they just represent means that sometimes, you know, 340 00:36:06,060 --> 00:36:10,410 it's a decision between two regimes or two groups which are small, they don't represent. 341 00:36:10,410 --> 00:36:14,069 They do it for some personal interests, then it's not the true representation. 342 00:36:14,070 --> 00:36:24,570 But if you take, for example, in the nineties, South Africa, there was a decision not to put to try all the old apartheid leadership. 343 00:36:24,930 --> 00:36:28,680 And this decision was actually the basis. It was part of the Constitution. 344 00:36:28,680 --> 00:36:32,669 It has been challenged in the constitutional court in South Africa. 345 00:36:32,670 --> 00:36:38,310 And the court says, look, this was a decision which was necessary in order to reach the end of the apartheid regime. 346 00:36:38,640 --> 00:36:48,270 It was agreed by people who are true representatives of the various groups in South Africa, including the blacks in South Africa, 347 00:36:48,480 --> 00:36:57,090 and therefore it is a legitimate agreement that must be respected and claims that were made later 348 00:36:57,090 --> 00:37:02,910 on why those leaders of the apartheid regime should nevertheless stand to trial has been rejected. 349 00:37:03,870 --> 00:37:12,209 Now, an alternative explanation for the ways the delegation of powers works in cases involving referral from the Security Council can rely 350 00:37:12,210 --> 00:37:19,770 on a notion of universal jurisdiction that individual states have is part of the internal application of international criminal law. 351 00:37:20,310 --> 00:37:26,100 To make this claim, it is first necessary to show that the moral grounds for universal jurisdiction, 352 00:37:26,580 --> 00:37:33,540 the moral grounds for universal jurisdiction that by individual states only if such moral grounds can be identified, 353 00:37:33,540 --> 00:37:42,899 we can move to the next sort, to the next claim that states may delegate their universal jurisdiction through the Security Council to the ICC. 354 00:37:42,900 --> 00:37:48,959 So we're not looking the Security Council no longer works on the delegated power from states with primary jurisdiction, 355 00:37:48,960 --> 00:37:53,250 but actually from each of the other states because they all have universal jurisdiction. 356 00:37:54,540 --> 00:38:02,309 However, if this is the basis for the ICC juries, jurisdiction and delegation of state held universal jurisdiction, 357 00:38:02,310 --> 00:38:05,740 then really there is no need to go through the Security Council, right? 358 00:38:06,060 --> 00:38:10,110 Presumably each of those states can delegate the power directly. 359 00:38:10,260 --> 00:38:15,000 Each state is a party to the Rome Statute, can delegate the power directly to the Security Council. 360 00:38:16,290 --> 00:38:19,889 But that does not fit well with the current structure of the ICC, 361 00:38:19,890 --> 00:38:28,320 which says delegated powers directly from states can only follow states who had primary jurisdiction based on territoriality or nationality, 362 00:38:28,320 --> 00:38:35,340 active nationality principles. It would make this limitation unnecessary and unwarranted. 363 00:38:36,150 --> 00:38:41,190 Yet even if we choose not to go down this road of delegated, universal jurisdiction, 364 00:38:42,300 --> 00:38:51,210 power and ground the ICC jurisdiction on either direct or indirect delegation of territoriality or nationality based jurisdiction, 365 00:38:51,630 --> 00:38:56,820 the discussion of the moral basis for universal jurisdiction is not made redundant altogether. 366 00:38:57,510 --> 00:39:04,260 Universal jurisdiction may still play an important role in the context of domestic application of international criminal law, 367 00:39:04,770 --> 00:39:07,980 and subsequently a discussion of its moral foundation is needed. 368 00:39:08,550 --> 00:39:12,180 So I'm not arguing that no need for universal jurisdiction all together. 369 00:39:12,180 --> 00:39:19,320 I'm just saying it's not necessary in order to create to identify the moral authority of the international courts. 370 00:39:20,940 --> 00:39:26,070 So I think the moral authority of the international courts can and often is really dealing. 371 00:39:26,410 --> 00:39:30,470 Based on delegation of powers. I think the ICC is a good example. 372 00:39:30,490 --> 00:39:36,070 That does not mean that it automatically is relevant to every international tribunal that has been or that will be established. 373 00:39:36,700 --> 00:39:43,870 But I think it's a good representative because the International Criminal Court is based and those sources 374 00:39:43,870 --> 00:39:51,460 write direct delegation of power by agreement and bases from the Security Council decision referrals. 375 00:39:51,730 --> 00:40:00,490 It can be a basis for a very wide range of other tribunals and example for how delegation of power can base many other cases of authority, 376 00:40:00,490 --> 00:40:03,610 jurisdictional authority of international tribunals. 377 00:40:05,410 --> 00:40:06,580 And thank you very much.