Hostname: page-component-586b7cd67f-2plfb Total loading time: 0 Render date: 2024-11-24T03:37:56.093Z Has data issue: false hasContentIssue false
  • English
  • Français

Comparing the Impact of the Interpretation of Peace Agreements by International Courts and Tribunals on Legal Accountability and Legal Certainty in Post-Conflict Societies

Published online by Cambridge University Press:  24 April 2014

ALEXIA SOLOMOU
Get access Rights & Permissions [Opens in a new window]

Abstract

This article compares and contrasts the interpretation of the Lusaka Ceasefire Agreement 1999 by the International Court of Justice, the Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone by the Special Court for Sierra Leone, and the General Framework Agreement for Peace in Bosnia and Herzegovina by the European Court of Human Rights. In doing so, it critically analyses the approach of the three different tribunals and attempts to explain the differences identified on the basis of the jurisdictional scope of each tribunal and the substantive law each has been tasked to apply. This comparison is both substantive and procedural. The article then examines the impact of these three tribunals on two specific aspects of the rule of law: legal accountability and legal certainty, both internationally and in the countries under examination. It is argued that, while these tribunals have enhanced legal certainty and accountability on the international level, any contribution they have made to the domestic rule of law has been questionable.

Keywords

international courts and tribunalslaw of treatiespeace agreementsrule of lawtransitional justice
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Courts and Tribunals
Information
Leiden Journal of International Law , Volume 27 , Issue 2 , June 2014 , pp. 495 - 517
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Ceasefire Agreement (Lusaka Agreement), <http://peacemaker.un.org/drc-lusaka-agreement99>, accessed 10 January 2014.

2 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF/SL) (also known as the ‘Lomé Agreement’), 7 July 1999, <http://peacemaker.un.org/sierraleone-lome-agreement99>, accessed 10 January 2014. The Lomé Accord was ratified by the Parliament of Sierra Leone on 15 July 1999 with the Lomé Peace Agreement (Ratification) Act 1999.

3 General Framework Agreement for Peace in Bosnia and Herzegovina, 14 December 1995, (1996) 35 International Legal Materials 75.

4 C. Bell, Peace Agreements and Human Rights (2000), 19–35; C. Bell, On the Law of Peace: Peace Agreements and Lex Pacificatoria (2008), 127–61; Bell, C., ‘Peace Agreements: Their Nature and Legal Status’, (2006) 100 AJIL 373, 373–412CrossRefGoogle Scholar.

5 Levie, H. S., ‘The Nature and Scope of the Armistice Agreement’, (1956) 50 AJIL 880–905CrossRefGoogle Scholar; Elaraby, N., ‘Some Legal Implications of the 1947 Partition Resolution and the 1949 Agreements’, (1968) 33 Law and Contemporary Problems, 97–109CrossRefGoogle Scholar.

6 V. P. Fortna, Peace Time: Cease-Fire Agreements and the Durability of Peace (2004); Gray, C., ‘After the Ceasefire: Iraq, the Security Council, and the Use of Force’, (1994) 65 British Yearbook of International Law 135–74CrossRefGoogle Scholar.

7 For example the Dayton Agreement runs to approximately 150 pages, including 11 Annexes, covering areas including: the military aspects of the peace settlement, regional stability, elections, an inter-entity boundary line, elections, the Constitution, arbitration, human rights, refugees and displaced persons, a Commission to preserve national monuments, civilian implementation, and an international police task force.

8 See Part II on ‘Governance’, Lomé Agreement, supra, note 2, including provisions, for example, on the transformation of the RUF/SL into a political party (Art. III), enabling members of the RUF/SL to hold public office (Art. IV), and enabling the RUF/SL to join a broad-based government of national unity through cabinet appointment (Art. V).

9 See, e.g., the Dayton Agreement, supra, note 3. For an analysis of this agreement see Ni Aolain, F., ‘The Fractured Soul of the Dayton Peace Agreement: A Legal Analysis’, (1997–98) 19 Michigan Journal of International Law 957Google Scholar.

10 For a comparison between Appendix 4 and Appendix 2, see Bell, ‘On the Law of Peace’, supra, note 4, at 341–4 and at 310–37 shows that inter-state agreements are far fewer in number than intra-state peace agreements in current practice.

11 Art. 2(1)(a), VCLT. See Bell, ‘Peace Agreements: Their Nature and Legal Status’, supra, note 4, at 379, Bell argues that this definition ‘places emphasis on a positivist notion of the treaty as a “formal instrument” defined by formalist criteria, rather than as a substantive “source of obligation”, although these two concepts are both present to some degree’ and to that effect she cites S. Rosenne, Developments in the Law of Treaties, 1945–86 (1988), 14–15 (emphasis added).

12 Art. 1, VCLT.

13 Art. 3(a) and 3(b), VCLT. See also Bouthillier, Y. and Bonin, J. F., ‘Article 3’ in Korten, O. and Klein, P. (eds.), The Vienna Convention on the Law of Treaties: A Commentary: Volume I (2011), 66–76Google Scholar.

14 See Bell, ‘Peace Agreements’, supra, note 4, at 393.

15 Ibid., 391.

16 R. Teitel, Transitional Justice (2000), 197–201.

17 ‘The Law After War’ or ‘Postwar Justice’; see Bass, G., ‘Jus Post Bellum’, (2004) 32 Philosophy and Public Affairs, 385–412CrossRefGoogle Scholar; Stahn, C. and Kleffner, J. (eds.), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace (2008)CrossRefGoogle Scholar; Stahn, C., ‘Jus in bello, jus ad bellum – jus post bellum? - Rethinking the Conception of the Law of Armed Force’,(2006) 17 EJIL 921CrossRefGoogle Scholar; Stahn, C., ‘Jus post bellum: Mapping the discipline(s)’,(2008) 23 American University International Law Review 311Google Scholar; see also The Jus Post Bellum Project of Leiden University <http://juspostbellum.com/>, accessed 10 January 2014.

18 See Art. 2 of the VCLT.

19 Unless an international tribunal is specifically mandated by its Statute to apply principles other than those of public international law, such as for example contracts between host states and foreign investors applied by the International Centre for the Settlement of Investment Disputes (ICSID), or even domestic law of the relevant country concerned by international criminal hybrid tribunals, such as the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers of the Court of Cambodia (ECCC), or the Special Tribunal for Lebanon (STL) etc.

20 See Part V, VCLT.

21 Articles on Responsibility of States for Internationally Wrongful Acts 2001, <http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf>, accessed 10 January 2014.

22 Art. 53 and 72 of the VCLT and Art. 26 and Chapter III of the Articles on State Responsibility.

23 T. Franck, Power of Legitimacy Among Nations (1990), 35–7; O. Schachter, International Law in Theory and Practice (1991), 7.

24 See, e.g., the pulling out by the rebel group ‘Forces Nouvelles’ from the Linas-Marcoussis Peace Accords of 24 January 2003 (S/2003/99) on the basis that the president of Ivory Coast, Laurent Gbagbo had failed to honour the provisions of the peace agreement in 2004. This led to the establishment of the United Nations Operation in Cote d’Ivoire (UNOCI) under UN Security Council Resolution 1528 (S/RES/1528 of 2004).

25 See Lusaka Agreement, supra note 1; H. Solomon and G. Swart, Conflict in the DRC: A Critical Assessment of the Lusaka Ceasefire Agreement (2010); Boshoff, H. and Rupiya, M., ‘Delegates, Dialogue, and Desperadoes: The ICD and DRC Peace Process’, (2003) 12 (3)African Security Review 29–37CrossRefGoogle Scholar; Masire, K., ‘Commentary on the Lusaka Agreement: Prospects for Peace in the Democratic Republic of Congo’, (2010) 10 (1)African Security ReviewGoogle Scholar.

26 See Lusaka Agreement, supra note 1, at Art. III(12).

27 Ibid., Annex A, Art. 11(4).

28 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (also known as the ‘Adidjan Peace Agreement’), 30 November 1996, <http://peacemaker.un.org/sierraleone-peace-agreement-RUF96>, accessed 10 January 2014.

29 Lomé Agreement, supra note 2; Alao, A. and Ero, C., ‘Cut Short for Taking Short Cuts: The Lomé Peace Agreement on Sierra Leone’, (2001) 4 (3)Civil Wars 117CrossRefGoogle Scholar; Binningsbo, H. M. and Dupuy, K., ‘Using Power-Sharing to Win a War: The Implementation of the Lomé Agreement in Sierra Leone’, (2009) 44 (3)Power Sharing in Africa 87Google Scholar.

30 Preamble, Lomé Agreement.

31 Dayton Agreement; Symposium: The Dayton Agreements: a Breakthrough for Peace and Justice? in the European Journal of International Law: Gaeta, P., ‘The Dayton Agreements and International Law’, (1996) 7 EJIL 147CrossRefGoogle Scholar; Figa-Talamanca, N., ‘The Role of NATO in the Peace Agreement for Bosnia and Herzegovina’, (1996) 7 EJIL 164CrossRefGoogle Scholar; Yee, S., ‘The New Constitution of Bosnia and Herzegovina’, (1996) 7 EJIL 176CrossRefGoogle Scholar; Sloan, J., ‘The Dayton Peace Agreement: Human Rights Guarantees and their Implementation’, (1996) 7 EJIL 207CrossRefGoogle Scholar.

32 Art. I(1) of the Constitution, which can be found at Annex 4 of the Dayton Agreement.

33 Art. I(3) of the Constitution, Annex 4 of the Dayton Agreement.

34 Preamble to the Constitution of Bosnia and Herzegovina, Annex 4 of the Dayton Agreement.

35 Art. IV of the Constitution of Bosnia and Herzegovina, 1995.

36 Art. V of the Constitution of Bosnia and Herzegovina, 1995.

37 Art. VI(1): ‘The House of Peoples shall comprise 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs).’ Art. IV(2): ‘The House of Representatives shall comprise 42 Members, two- thirds elected from the territory of the Federation, one-third from the territory of the Republika Srpska.’ Art. V (preambular provision): The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska.’

38 Nyustuen, Achieving Peace or Protecting Human Rights: Conflicts between Norms Regarding Ethnic Discrimination in the Dayton Peace Agreement (2005), 192; O’Brien, ‘The Dayton Agreement in Bosnia: Durable Cease-Fire, Permanent Negotiation’, in W. I. Zartman and V. Kremenyuk (eds.) Peace Versus Justice: Negotiating Forward- and Backward-Looking Outcomes (2005), 105.

39 See, generally, Chapter XIV of the Charter of the United Nations, 26 June 1945, XV UNCIO 335 (hereinafter ‘UN Charter’) and, specifically Art. 92 of the UN Charter, <http://www.un.org/en/documents/charter/>, accessed 10 January 2014.

40 Statute of the International Court of Justice, 26 June 1945, XV UNCIO 355 (hereinafter ‘ICJ Statute’), <http://www.icj-cij.org/documents/?p1=4&p2=2&p3=0>, accessed 10 January 2014.

41 Art. 34(1) of the ICJ Statute.

42 According to the ICJ a legal dispute arises when the claim of one party is positively opposed by the other: South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) [1962] ICJ Rep. 319, at 32; Applicability of the Obligation to Arbitrate under s.21 of the United Nations Headquarters Agreement of 26 June 1947 [1988] ICJ Rep. 12, at 27.

43 Arts. 34(1) and 36(1) of the ICJ Statute. The bases of jurisdiction of the ICJ are: (i) Special Agreement, see Art. 36(1) of the Statute, (ii) Compromissory Clauses in treaties and Conventions, see Art. 36(1) of the Statute, (iii) Compulsory Jurisdiction in Legal Disputes, Art. 36(2)–(5) of the Statute, (iv) General Dispute Settlement Treaties, Art. 37 of the Statute.

44 Art. 36(2) of the ICJ Statute.

45 Art. 38(1)(a)–(c) of the ICJ Statute.

46 Art. 38 (1)(d) of the ICJ Statute.

47 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, [2005] ICJ Rep. 168, at para. 98; Gathii, J. T., ‘Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda)’, (2007) 101 (1)AJIL 142Google Scholar; Okowa, P. N., ‘Case Concerning Armed Activities on the Territory of the Congo’, (2006) 55 International and Comparative Law Quarterly 742CrossRefGoogle Scholar.

48 Armed Activities, supra note 47, para. 99.

49 Ibid.

50 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of 29 November 2001, paras. 42 and 43.

51 Annex to Letter dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations addressed to the President of the Security Council, UN Doc. S/2000/786 (2000).

52 UNSC Resolution 1315, UN Doc. S/RES/1315 (2000).

53 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Annex to the Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (2000), 2178 UNTS 137, <http://www.sc-sl.org/LinkClick.aspx?fileticket=CLk1rMQtCHg%3d&tabid=176>, accessed 10 January 2014.

54 Statute of the Special Court for Sierra Leone, enclosure to the Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (2000).

55 SCSL Statute; see further Dickinson, L. A., ‘The Promise of Hybrid courts’, (2003) 97 AJIL 295CrossRefGoogle Scholar.

56 Art. 2, SCSL Statute.

57 Art. 3, SCSL Statute.

58 Art. 4, SCSL Statute.

59 Art. 5(a), SCSL Statute.

60 Art. 5(b), SCSL Statute.

61 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (2000), para. 9.

62 Art. 1, SCSL Statute.

63 Office of the United Nations High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States: Amnesties (2009), 11: The United Nations position is that ‘amnesties are impermissible if they: (a) Prevent prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes against humanity or gross violations of human rights, including gender-specific violations; (b) Interfere with victims’ right to an effective remedy, including reparation; or (c) Restrict victims’ and societies’ right to know the truth about violations of human rights and humanitarian law’.

64 The Prosecutor v. Morris Kallon, Brima Bazzy Kamara, Decisions – Preliminary Motion based on Lack of Jurisdiction, Abuse of Process, Amnesty and Lomé Accord, and Application in Respect of Jurisdiction and Defects in Indictment, Case Nos. SCSL-2004–15-PT and SCSL-2004–16-PT, 13 March 2004, at para. 1; Meisenberg, S., ‘Legality of Amnesties in International Humanitarian Law: The Lomé Amnesty Decision of the Special Court for Sierra Leone’, International Review of the Red Cross 8 (2004) 837–51CrossRefGoogle Scholar; Macaluso, D., ‘Absolute and Free Pardon: The Effect of the Amnesty Provision in the Lomé Peace Agreement on the Special Court for Sierra Leone on the Jurisdiction of the Special Court for Sierra Leone’ 27 Brooklyn Journal of International Law (2001–02) 347Google Scholar, 347–80.

65 Ibid., para. 1 and 22, see further, the Kallon Preliminary Motion.

66 Art. 10 of the Statute of the SCSL provides: ‘An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of crimes referred to in Articles 2 to 4 of the present Statute shall not be a bar to prosecution’.

67 Ibid., para. 2, 22, and 54.

68 Ibid., paras. 37–44, citing and disagreeing with Kooijmans, P. H., ‘The Security Council and Non-State Entities as Parties to Conflicts’, in Wellens, K. (ed.), International Law: Theory and Practice, Essays in Honour of Eric Suy (1998), 333–46Google Scholar.

69 Ibid., paras. 45–8.

70 Ibid., para. 49.

71 Ibid., para. 49.

72 Ibid., para. 64.

73 Ibid., paras. 71.

74 Ibid., para. 72.

75 Ibid., para. 73.

76 1949 Statute of the Council of Europe, ETS 001 (1949).

77 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5 (1950), as amended by Protocol No. 11, ETS 155 (1994).

78 For a list of the member states and observer states of the Council of Europe, see: http://hub.coe.int/web/coe-portal/navigation/47-countries.

79 Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 9 (1952); Protocol No. 4 to the Convention, ETS 46 (1963); Protocol No. 6 to the Convention, ETS 114 (1983); Protocol No. 7 to the Convention, ETS 155 (1984); Protocol No. 12 to the Convention, ETS 177 (2000); Protocol No 13 to the Convention, ETS 187 (2002).

80 Art. 33, European Convention of Human Rights.

81 Ibid., Art. 34.

82 Ibid., Arts. 33 and 34.

83 Sejdić and Finci v. Bosnia and Herzegovina (Applications Nos. 27996/06 and 34836/06), Judgment of the Grand Chamber of the European Court of Human Rights of 22 December 2009, at para. 2; Milanovic, M., ‘Introductory Note on Sedjić and Finci v. Bosnia and Herzegovina’, (2010) 49 International Legal Materials 281Google Scholar; Bardutzky, S., ‘The Strasbourg Court on the Dayton Constitution: Judgment in the case of Sedjić and Finci v. Bosnia and Herzegovina, 22 December 2009’, (2010) 6 European Constitutional Law Review 309CrossRefGoogle Scholar; Minority Rights Group International, ‘Discrimination and Political Participation in Bosnia and Herzegovina: Sejdić and Finci v. Bosnia and Herzegovina’, 12 March 2010, <http://www.refworld.org/docid/4b9e17b92.html>, accessed 10 January 2014.

84 Art. 14 of the Convention provides: ‘The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

85 Art. 3 of Protocol 1 provides: ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’

86 Art. 1 of Protocol No. 12 to the Convention provides:

1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

87 Sejdic and Finci v. Bosnia and Herzegovina, para. 41.

88 Ibid., para. 45.

89 Ibid.

90 Ibid.

91 Sejdic and Finci v. Bosnia and Herzegovina, para. 45.

92 Ibid., para. 50. In relation to this finding, the Court considered that it is not necessary to examine separately whether there has also been a violation of Art. 3 of Protocol No. 1 taken alone or under Art. 1 of Protocol No. 12 as regards the House of Peoples, at para. 51.

93 Ibid., para. 56.

94 Ibid., para. 47, citing: Progress Report to the European Commission of Bosnia and Herzegovina, 14 October 2009, SEC/2009/1338.

95 Sejdic and Finci v. Bosnia and Herzegovina, para. 47, citing Report by Mr Javier Solana, EU High Representative for the Community and Common Foreign and Security Policy and Mr Olli Rehn, EU Commissioner for Enlargement, on EU's Policy in Bosnia and Herzegovina: The Way Ahead of 10 November 2008; Report by the International Crisis Group on Bosnia's Incomplete Transition: Between Dayton and Europe, 9 March 2009.

96 See the Opinions of the Venice Commission, at para. 22 of ECtHR's judgment.

97 Sejdic and Finci v. Bosnia and Herzegovina, para. 49 citing European Commission for Democracy through Law (Venice Commission), para. 21 of judgment, and Stabilisation and Association Agreement ratified by the European Union, 2008.

98 Armed Activities case, supra, at para. 99.

99 Ibid., at para. 104.

100 Armed Activities case, supra, Separate Opinion of Parra-Aranguren, para. 8.

101 Ibid., para. 8 (emphasis added).

102 Ibid., para. 8 (emphasis added).

103 Ibid., para. 8.

104 Combacau, J. and Alland, D., ‘“Primary” and “Secondary” Rules in the Law of State Responsibility Categorizing International Obligations’, (1985) 16 (December) Netherlands Yearbook of International Law 81CrossRefGoogle Scholar.

105 Lang, A., ‘“Modus Operandi” and the ICJ's Appraisal of the Lusaka Ceasefire Agreement in the Armed Activities Case: The Role of Peace Agreements in International Conflict Resolution’, (2008) 40 International Law and Politics 107Google Scholar, at 124.

106 Ibid., at 125.

107 Mathias, S., ‘The 2005 Judicial Activity of the International Court of Justice’, (2006) 100 AJIL 629Google Scholar, at 638.

108 Sedjic and Finci v. Bosnia and Herzegovina, supra, para. 30, citing Jeličić v. Bosnia and Herzegovina (decision), no. 41183/02, ECHR 2005–XII.

109 Ibid., paras. 30 and 15.

110 Ibid., paras. 30 and 13.

111 Ibid., para. 45.

112 This should be compared and contrasted with Rule 159 of the ICRC Customary International Humanitarian Law Rules which provides that, ‘At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused or sentenced of war crimes’ (emphasis added): Henckaerts, J. and Doswald-Beck, L., Customary International Humanitarian Law (2005), Vol. 1, 611Google Scholar.

113 Absolute amnesties potentially violate Rule 158 of the ICRC Customary International Humanitarian Law Rules, which provides that: ‘States must investigate war crimes allegedly committed by their national or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes, over which they have jurisdiction and, if appropriate, prosecute the suspects’ See Henckaerts and Doswald-Beck, ibid., at 607. Nevertheless, a caveat has been formulated by the former prosecutor of the International Criminal Court, Luis Moreno-Ocampo, whereby the prosecutor should exercise their discretion when it comes to the prosecution of such crimes, especially when it comes to promoting ‘the interests of peace’ See Policy Paper on the Interests of Justice, ICC-OTP-2007, September 2007, <http://www.icc-cpi.int/NR/rdonlyres/772C95C9-F54D-4321-BF09–73422BB23528/143640/ICCOTPInterestsOfJustice.pdf>, accessed 10 January 2014.

114 The Prosecutor v. Kallon and Kamara, supra, at para. 72.

115 Ibid., at para. 48.

116 For the status of non-state actors in international law, see generally: d’Aspremont, J. (ed.), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (2011)Google Scholar; Noortman, M. and Rygaert, C. (eds.), Non-State Actor Dynamics in International Law (2010)Google Scholar; Bailliet, C. (ed.), Non-State Actors, Soft Law, and Protective Regimes: From the Margins (2012)CrossRefGoogle Scholar. See also the reports by the Committee on Non-State Actors (Math Noortmann, Cedric Ryngaert and Jean d’Aspremont) of the International Law Association, available at: http://www.ila-hq.org/en/committees/index.cfm/cid/1023.

117 Art. III (19), Lusaka Agreement 1999, supra.

118 Judge Koojimans, Separate Opinion in Armed Activities case, supra, para. 52.

119 Ibid., para. 53.

120 Nevertheless, it is now well accepted that groups known as national liberation movements have the capacity to conclude treaties. See J. Crawford, Brownlie's Principles of Public International Law (2012), at 123; Le Y. Bouthillier and J.-F. Bonin, Commentary to the Vienna Convention, supra, at 73; A. Cassesse, International Law (2001), at 77.

121 See Bell, On the Law of Peace, 145.

122 Ibid.

123 See section 2 of Part V of the Vienna Convention on the Law of Treaties, Arts. 46–53 covering the grounds of invalidity of treaties including, error, fraud, corruption of a representative of a state, coercion, and conflicts with a peremptory norm of general international law.

124 Armed Activities case, supra, at para. 99.

125 Armed Activities case, supra, at para. 91.

126 Art. 10 was found not to be in violation of Arts. 55 and 64 of the VCLT (providing that a treaty is void if it conflicts with a peremptory norm), at paras. 62–4 of the Kallon and Kamara decision.

127 Armed Activities case, supra, para. 91 and Counter-Claims Order, supra, paras. 42 and 43.

128 Sedjic and Finci v. Bosnia and Herzegovina, supra, para. 30.

129 This Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (2000), states at para. 24 that ‘With the denial of legal effect to the amnesty granted at Lomé, to the extent of its illegality under international law, the obstacle to the determination of a beginning date of the temporal jurisdiction of the Court within the pre-Lomé period has been removed.’ This amounts to an indirect examination of Art. 9 of the Lomé Agreement by the Secretary-General.

130 For definitions of the rule of law in jurisprudence see: A. Dicey, An Introduction to the Study of the Law of the Constitution (1885); L. Fuller, The Morality of Law (1964); Raz, J., ‘The Rule of Law and Its Virtue’, (1977) 93 The Law Quarterly Review 195Google Scholar. The main proponents of the substantive rule of law are: R. Dworkin, A Matter of Principle (1985) (the rights-based conception); Laws, J., ‘Is the High Court the Guardian of Fundamental Constitutional Rights?’ (1993) Public Law 59Google Scholar; Laws, J., ‘Law and Democracy’, (1995) Public Law 72Google Scholar, Laws, J., ‘The Constitution: Morals and Rights’, (1996) Public Law 622Google Scholar (the role of courts in protecting fundamental rights and the rule of law conceived as encompassing freedom, certainty, and fairness). See further: Jielong, D., ‘Statement on the Rule of Law at the National and International Levels’, (2007) 6 Chinese Journal of International Law 185Google Scholar; Report of the United Nations Secretary General, ‘The Rule of Law at the National and International Levels: Comments and Information Received from Governments’, (2007) UN Doc. A/62/121 (2007) 19; Some talk of a hybrid category, the ‘internationalised rule of law’, see Introduction by the Editors, Zurn, M., Nollkaemper, A., and Peerenboom, R. (eds.), Rule of Law Dynamics in an Era of International and Transnational Governance (2012), 1–17CrossRefGoogle Scholar; A. Nollkaemper, National Courts and the International Rule of Law (2011), at 302.

131 Sarah Nouwen examines this question with regards the International Criminal Court in Uganda: see S. Nouwen, ‘The ICC's Intervention in Uganda: Which Rule of Law Does It Promote?’ in M. Zurn, A. Nollkaemper, and R. Peerenboom, Rule of Law Dynamics in an Era of International and Transnational Governance (2012), 278–304.

132 Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (2004), para. 6; see also the UNGA resolution A/RES/67/1 (2012), ‘Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the International and National Levels’ and A/RES/67 (2013), on ‘The Rule of Law at the National and International Levels’.

133 Jessup, P., ‘The International Court of Justice and the Rule of Law’, (1945) 108 (4)World Affairs 234Google Scholar; R. Higgins, ‘The International Court of Justice, the United Nations System, and the Rule of Law’, Speech at the London School of Economics, 13 November 2006, <http://www.lse.ac.uk/publicEvents/pdf/20061113_Higgins.pdf>, accessed 10 January 2014.

134 Armed Activities case, supra, operative paragraph 345.

135 The Prosecutor v. Morris Kallon, Brima Bazzy Kamara, paras. 71–3.

136 Sedjic and Finci v. Bosnia and Herzegovina, supra, paras. 50 and 56.

137 Armed Activities, supra, p. 281, operative para. 345, operative para. 5.

138 Solomon and Tolbert's argument a contrario: Tolbert, D. and Solomon, A., ‘United Nations Reform and Supporting the Rule of Law in Post-Conflict Societies’, (2006) 19 Harvard Human Rights Journal 29, at 35 (who particularly focus on international crimes, rather than violations of international law in general)Google Scholar.

139 Compare and contrast this approach with that of the Truth Commission for Sierra Leone, 3B Witness to Truth, Report of the Sierra Leone Truth and Reconciliation Commission, Chapter 6, p. 4 (‘The Commission is unable to condemn the resort to amnesty by those who negotiated the Lomé Peace Agreement’).

140 J. Decapua, ‘Sierra Leone: Rights Group – Prosecute Alleged Arms Dealer’, All Africa, 19 June 2013, <http://allafrica.com/stories/201306240115.html>, accessed 10 January 2014.

141 Art. II(2) of the Constitution of Bosnia and Herzegovina, Annex IV of the Dayton Accord.

142 Helfer, L. and Slaughter, A., ‘Toward a Theory of Effective Supranational Adjudication’, (1997) 107 Yale Law Journal 273CrossRefGoogle Scholar; Helfer, L., ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’, (2008) 19 (1)EJIL 125CrossRefGoogle Scholar.

143 Report of the Secretary-General on the Democratic Republic of the Congo and the Great Lakes Region, UN Doc. S/2013/119 (2013); Reports of the Secretary-General of the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, UN Doc. S/2013/96 (2013); UN Doc. S/2021/838 (2012); UN Doc. S/2012/355 (2012); UN Doc. S/2012/65 (2012); UN Doc. S/2011/656 (2011); UN Doc. S/2011/298 (2011); UN Doc. S/2011/20 (2011); UN Doc. S/2010/512 (2010); Report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo, UN Doc. S/2010/164 (2010); UN Doc. S/2009/623 (2009); UN Doc. S/2009/335 (2009); UN Doc. S/2009/160 (2009); UN Doc. S/2008/728 (2008); UN Doc. S/2008/433 (2008); UN Doc. S/2008/218 (2008); UN Doc. S/2007/671 (2007); UN Doc. S/2007/156 (2007); UN Doc. S/2006/759 (2006); UN Doc. S/2006/390 (2006); Report of the Secretary-General pursuant to para. 8 of Resolution 1698 (2006) concerning the Democratic Republic of the Congo, UN Doc. S/2007/68 (2007).

144 See the Statement of the Commissioner for the Enlargement and European Neighbourhood Policy, Štefan Füle, EU-Bosnia and Herzegovina, Sejdić-Finci Positive Progress, 3 December 2013, to the effect of tentative agreement on the new composition and method of the selection of Delegations for the House of Peoples.