Lawyers split over Nigerian 'Top 100' lawyers

Nigerian lawyers are up in arms over the first local attempt to rank Nigeria’s top lawyers. A number are arguing that the release of the Top 100 lawyers by City Lawyer Magazine could be considered ‘advertising’ which is against the Rules of Professional Conduct for Legal Practitioners (RPC). Others are threatening to take the magazine to court over the rankings. One lawyer, Kizito Ude, complained that the hot list “confirms the fact that RPC is an instrument of subjugation in the hands of the so called senior lawyers against the young lawyer.’ Another, Terhemen Oscar Aorabee, said that “once I lay my hands on a copy I am going to sue all the 100 plus their publisher.”

Transparent 

However, a number welcome the listings which they see as positive for the Nigerian legal profession’s global reputation. The article quotes the publishers saying that the ratings will provide the most transparent and definitive referral guide on legal excellence in Nigeria and emphasised that the publishers would not accept payment of any kind for listings. 

International arbitration Africa style

Economic advances in Africa have come at an astonishing pace in recent years. According to the IMF, four of the six fastest growing economies in the world in 2014 will be in Sub-Saharan Africa. Foreign direct investment has also increased dramatically over the last decade, from US$11Bn in 2002 to over US$ 56.3Bn in 2013. Excluding Libya, Africa’s growth is projected to accelerate to 5.3 per cent  in 2014. Drivers for growth include oil production, mining, agriculture, services and domestic demand.
Africa’s vast linguistic and jurisdictional diversity can seem challenging to those looking to invest. The law in Africa is a diverse mix of common, civil, customary and religious law;  Common law being the system of judge made case law, whereas Civil law being the codified collection of written statutes.  Religious and customary laws play a large part in African society, and are only law to the extent that they are recognized by the state.  Alongside the manifold legal framework, there are over 700 (known) languages in Africa, but working languages include English, Arabic, Portuguese and French.

Efficient way to resolve disputes

As Africa has developed economically, so too has the demand for effective and efficient means to resolve disputes between contracting parties and to protect investments. This article explores some of the main considerations regarding dispute resolution for parties doing business in Africa and focuses particularly on the growing use of arbitration, which is fast becoming the dispute resolution mechanism of choice across the continent.

Litigation or Arbitration?

A major factor in the rise of arbitration in Africa is the general reluctance of foreign investors to submit disputes to the local courts of an African country. Largely, the concerns are:

• Lack of impartiality – will a particular African court favour the interests of a party from that same country, or an entity owned by that state, over those of a foreign investor?
• Corruption – is this sufficiently guarded against in the local courts? This is a particular concern where investors are subject to onerous, far-reaching legislation from their own State, for example the UK Bribery Act 2010 or the USA’s Foreign Corrupt Practices Act 1977, whilst local parties are not subject to such rigorous anti-corruption regimes.
• Political instability and civil unrest – what will be the effect of any instability on court proceedings?
• Length of proceedings – in Nigeria for instance, cases can take up to 10 years to get through the commercial courts.

Arbitration on the other hand offers a number of advantages:

• Relative ease of enforcement internationally under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) and other international instruments.
• Perceived neutrality of arbitrators and the arbitral process.
• Control over the process – parties can, for instance, often select their own arbitrators to hear the dispute and dictate the procedures to be employed.
• Minimised involvement of local courts, which can only be invoked in specific circumstances under the relevant arbitral law being used.
• Parties can choose a neutral or familiar law or set of rules to govern their arbitration, which may also take into account public international law principles.

For all these reasons, international arbitration is becoming the preferred dispute resolution mechanism for international parties doing business in Africa.

Practical considerations for arbitration in Africa

Choice of seat

A fundamental choice that contracting parties must make in relation to arbitration at the outset is where the seat of that arbitration will be, i.e. which country’s laws will govern the procedure of the arbitration and which country’s courts will oversee it.
There are a number of reasons why parties might choose a seat in an African jurisdiction. It may for instance be more cost effective to resolve disputes close to where the parties are doing business, particularly if there are likely to be many witnesses based there, or an African party may insist that an arbitration is seated in Africa.  However, it should be borne in mind that, despite the growth of arbitration across Africa, some African states have been slow to adopt modern arbitration legislation. Accordingly, it is vital that parties weigh up the options carefully before choosing a seat, taking account of all the circumstances.  Some of the key questions to ask are as follows.

Should the seat of the arbitration be the country where the parties are doing business?

There is some advantage to selecting the country where the parties are doing business as the seat of the arbitration.  For instance, the relevant witnesses may be based in that country, therefore making managing any proceedings logistically easier and more cost-effective than if witnesses were required to travel oversees to provide their evidence. It is also the jurisdiction in which most relevant documents are likely to be located, thus avoiding potential complications around removing those documents from that country.  Conversely, having an arbitration seated in an African party’s home state carries the risk in some jurisdictions that the local courts will favour the local entity when ancillary relief is sought. In addition, because arbitration is relatively new to some jurisdictions, the local courts may not be as favourable towards the arbitral process as others, and may seek to hinder it. If this is perceived to the case, a compromise might be still to seat the arbitration in Africa, but in a neutral jurisdiction instead.

What is the applicable arbitral law in the African state?

A key issue in determining the applicable arbitral law is what, if any, arbitration law is in force in the country of seat. An international investor may for instance prefer a state whose arbitration law follows the international norms to which there are accustomed, for example, the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on International Commercial Arbitration (the “Model Law”), or the Uniform Act adopted by members of the Organisation pour l'Harmonisation en Afrique du Droit des Affaires (“OHADA”).

(i) The UNCITRAL Model Arbitration Law

The Model Law is a standard arbitration law prepared and adopted by UNCITRAL that seeks to harmonise arbitration regimes worldwide. In order for it to apply in a particular state, it must be incorporated by a State into its own laws. The Model Law has been adopted in 10 African jurisdictions to date (Tunisia, Egypt, Kenya, Uganda, Rwanda, Nigeria, Zambia, Zimbabwe, Madagascar and Mauritius). The Model Law provides a number of useful features, for example:
• parties are free to agree the procedure for appointing arbitrators;
• the procedure for arbitrators to conduct an arbitration must be just and fair from the outset until conclusion;
• local Courts can assist in the arbitration proceedings on a limited basis and as required; and
• it provides for effective enforcement of an arbitral award - the courts can only refuse to enforce an award in limited circumstances.

(ii) OHADA

OHADA is an organisation of 17 African countries, the majority of which are francophone. The OHADA Uniform Act on Arbitration (the “Uniform Act”) will be directly applicable in countries that are OHADA member states and will supersede any domestic arbitration legislation. Enforcement of awards under OHADA is only possible for awards from OHADA members. If you are seeking to enforce an award from a non-OHADA state in an OHADA state or vice versa, you will have to rely on the local laws of the country of enforcement, or relevant international instruments, such as the New York Convention. The Uniform Act is less comprehensive than the Model Law, but shares many of its features, eg parties can choose the procedure for appointing arbitrators, each party must be treated equally and given the opportunity to present its case and an award may only be set aside or enforcement of it refused on certain limited grounds. Unlike under the Model Law however, arbitrators have no express power to award interim measures. However, the Uniform Act is subject to any rules of an arbitration institution that the parties may choose and many of these sets of rules give arbitrators the power to award interim measures.

(iii) Countries that have not adopted the Model Law and are not OHADA members

If a country has not adopted the Model Law and is not a member of OHADA, the arbitration will be subject to the local arbitration law of that state. Most African countries have some form of arbitration law, but their content and application may vary greatly. In this regard, some jurisdictions may be considered “pro” arbitration, whereas others may be seen as arbitration un-friendly, or a bit of both.  In Ghana, for instance, the Ghanaian courts have the power to initiate or recommend a referral to arbitration where the judge is “of the view that the action or a part of the action can be resolved through arbitration” (section 7(1) of the Ghana Alternative Dispute Resolution Act 2010).  However, despite its apparently pro-arbitration law, the resolution of disputes involving the national or public interest, the environment, or the enforcement and interpretation of the constitution by arbitration is prohibited.  Accordingly, parties should consider the governing arbitration law very carefully before committing to a particular jurisdiction.

Where can an award be enforced?

It is vital that an award granted in an arbitration is capable of being enforced in the relevant jurisdictions – particularly if the other party has assets globally.  Accordingly, another primary consideration when deciding whether to seat an arbitration in an African State is whether that State has acceded to any treaty or convention which provides reciprocal arrangements for the enforcement of arbitral awards, such as the New York Convention or OHADA. 32 of the 54 African states have acceded to the New York Convention. This means that an arbitral award granted in arbitrations seated in those states can be enforced in other states that have also acceded to the New York Convention. The Courts of the country where enforcement is sought have only limited grounds on which to reject enforcement, namely if:
• “the agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law where the award was made.” (Article V(1)(a)); or
• “the recognition or enforcement of the award would be contrary to the public policy of that country.” (Article V(2)(b)).

Other key considerations

Other considerations for parties when choosing the seat of arbitration include:
• Whether judges in a State’s courts are trained in the practice and procedure of arbitration, so that they support the arbitration process and enforce arbitration agreements and awards.
• Anti-arbitration injunctions should only be granted in exceptional cases that warrant the making of such orders, and must deal expeditiously with proceedings involving arbitrations.
• Recognition and enforcement of arbitral awards must be the norm, with refusal only to be made in the circumstances set out in Article V of the New York Convention.
• Security, political stability and corruption (whether real or perceived) should be evaluated.
• The procedure for enforcement of or challenges to arbitral awards should be relatively simple and expeditious.  By way of example, in Nigeria, except for ICSID awards, which are enforced directly by the Supreme Court as the court of first instance, arbitration cases take between four and 10 years to reach the Supreme Court before a final decision is issued in favour of enforcement of the award, or confirming the arbitrability of the subject matter of the dispute.

Selecting a key arbitration centre

Africa has a number of established arbitration centres.  These centres are an attractive alternative to the more traditional arbitration centres of London or Paris, and may well be less costly. Key examples include:
• Mauritius: The London Court of International Arbitration – Mauritian International Arbitration Centre (“LCIA-MIAC”) was formed as a joint venture between the LCIA and Mauritius in 2012, following the enactment of arbitration legislation in Mauritius. The LCIA-MIAC has its own set of rules which are based largely on the LCIA Rules and so may suit those parties who are familiar with arbitrating through the LCIA but want to resolve any disputes in Africa.

• Egypt: The Cairo Regional Centre for International Commercial Arbitration (“CRCICA”) was established in 1979 and its rules are based on the UNCITRAL Arbitration rules (as revised in 2010), with minor variations relating mainly to the CRCICA’s role as an arbitral institution and an appointing authority. The CRCICA has four branches within Egypt, including one dedicated to specialist maritime arbitration.

• Côte d'Ivoire: If one of the parties is resident in an OHADA state or the business carried out under the contract is performed wholly or partially in an OHADA state, the Uniform Act provides for arbitration administered by the Common Court of Justice and Arbitration (“CCJA”) in Abidjan.

• Rwanda: The Kigali International Arbitration Centre was launched in 2012. Its rules place an emphasis on reducing costs for parties and include measures similar to the recently amended rules of the International Chamber of Commerce (“ICC”), such as the availability of an emergency arbitrator to provide urgent interim relief prior to the constitution of the arbitral tribunal.

Choosing another international arbitration centre or seat

Some parties will prefer to use more traditional arbitration centres such as the LCIA in London or the ICC in Paris.   For instance, in 2012, 5.5 per cent of referrals to the LCIA were made by African parties (including two per cent  from Nigeria), an increase from 4.5 per cent  in 2011.
However, a popular alternative for international investors in Africa is now the Dubai International Finance Centre (the “DIFC”). Dubai is a convenient geographical location for African parties, with frequent direct flights to and from Africa and also enjoys a status as an international commercial hub. The DIFC has reported a threefold increase in enquiries received from African parties in the last year, showing that as the popularity of arbitration has risen in Africa, so too has the demand from African arbitrating parties to arbitrate in Dubai.

Another key attraction of the Middle East for parties contracting in Africa is the availability of enforcement under the Riyadh Convention. Eight out of the 20 Riyadh Convention member states are African countries. These are largely Islamic countries. Five of these states (Algeria, Djibouti, Mauritania, Morocco and Tunisia) have also acceded to the New York Convention, so parties arbitrating in these countries may have multiple options for enforcing an award. Selecting a Riyadh Convention state may be particularly appropriate where a party is an Islamic entity. Crucially, however, under the Riyadh Convention, enforcement of an award can be refused if the judgment or award is contrary to Shari’a law or the constitution, public policy or good morals of the country where a party is seeking enforcement.

Bilateral Investment Treaties (“BITs”)

An important consideration for international investors in Africa is whether any BIT is applicable to their investment. A BIT is an international treaty between two countries which protects investments by parties from those states, made in each other’s states. BITs generally provide protection from expropriation and guarantee fair and equal treatment, as well as providing for international arbitration as the method for resolving any disputes. BIT disputes are often dealt with by the International Centre for the Settlement of Investment Disputes (“ICSID”), which was set up by the World Bank in Washington DC and can provide protection where states are parties to the ICSID Convention - which 48 African States are. Investors and host states must have agreed to submit disputes to ICSID, and this can be done by way of a BIT or contract between parties. Currently there are around 760 BITs in place in Africa, for the most part entered between African states and non-African states. Egypt for example has entered over 100 BITs.

In contrast, South Africa has recently sent notices of termination of its BITs to Belgium, Luxembourg, Germany, Spain, Switzerland and The Netherlands, which appears to buck the growing trend of international arbitration across the African continent.  Once the relevant notice periods expire, new investments from these countries will no longer be protected under the BITs and disputes will not automatically be resolved by international arbitration. South Africa intends eventually to replace all its BITs with domestic legislation. The  Promotion and Protection of Investment Bill (the “Investment Bill”) will apply to all foreign investments. The Investment Bill provides for a narrower definition of expropriation than that contained in existing BITs and does not make any mention of “fair and equal treatment” of investments by the host State, which is guaranteed by most BITs. The Investment Bill also denies investors the right to have disputes resolved by international arbitration, unless otherwise agreed. Instead, disputes must ordinarily be submitted to the South African courts or domestic arbitration or mediation. At the time of writing, there was no publicly available information about when the Investment Bill might come into force, but a period of public consultation on the Investment Bill ended on 31 January 2014.

Recent developments

As a result of the economic boom in Africa, dispute resolution solutions, and particularly international arbitration, are constantly evolving. Key recent developments include:

• The Democratic Republic of the Congo (“DRC”) adopted the New York Convention in June 2013, but has made four reservations to its adoption.  Two of those reservations are particularly significant. First, enforcement will only be available in the DRC where awards post-date the DRC’s accession. Second, immovable property situated in the DRC is excluded from the application of the New York Convention, thereby excluding mining rights from its ambit. Notwithstanding those points, it is likely that the adoption of the New York Convention will increase the attraction of the DRC as an arbitration destination.

• A number of new arbitration centres are expected to open soon. In Kenya, the Nairobi International Arbitration Centre is expected to start receiving cases at some stage this year. The International Chamber of Commerce has also recently announced that it plans to establish an arbitration centre in Ghana.

• In a recent decision, the Nigerian Court of Appeal in Nigerian National Petroleum Corporation v. Statoil (Nigeria) Limited and Others refused to grant an injunction to halt arbitral proceedings, as to do so would undermine the parties’ agreement to submit the dispute to arbitration. This has been welcomed as evidence to show that courts in Africa are supportive, rather than obstructive to the arbitral process. 

Africa as an arbitration destination

Hand in hand with the increasing opportunity in Africa for foreign investors is the need for there to be a means of resolving disputes that is both neutral and cost effective. International arbitration in Africa is starting to fulfil this need. Investors should be encouraged by this trend, but must be wary of the important considerations when choosing a jurisdiction in which to seat an arbitration.

The increasing number of arbitration centres in Africa shows that countries are seeking to attract foreign investment, while at the same time providing easy access to an independent arbitral forum. States are also, generally, showing a greater willingness to accede to internationally recognised enforcement regimes and the local courts are becoming increasingly familiar with arbitration as a valid method of resolving disputes. If the 21st Century is indeed to be “Africa’s century”, the development of international arbitration in Africa must be a key part of this.

Barristers can be fearless, but they must keep to the rules

Conviction of Lawrence McNulty over his defence of Munir Farooqi helps maintain integrity of criminal justice system

How fearless can a barrister afford to be when representing a defendant at a criminal trial? That was the question I asked here exactly six months ago. The answer, we learned this week, is not as fearless as Lawrence McNulty was when he represented Munir Farooqi at a terrorist trial in the summer of 2011. A disciplinary tribunal of the inns of court has nowconvicted McNulty on four charges of professional misconduct arising from Farooqi’s trial, while acquitting the barrister of a fifth.

The five-person tribunal, chaired by a retired circuit judge, decided that McNulty should be suspended from practice for four months. However, that sentence is itself suspended pending an appeal by the barrister against the tribunal’s findings, which is unlikely to be resolved by the high court before next year.

Four months off work is not as severe as the disciplinary penalty given last week to a vet whose love of animals went further than was decent: Oliver Fraser Lown was struck off for professional misconduct. Even so, McNulty’s suspension shows how seriously the bar regards behaviour that risks prejudicing the administration of justice.

In a closely-typed 31-page ruling, the tribunal recalled that Farooqi had been convicted with two others of engaging in conduct in preparation for acts of terrorism. It was the Crown’s case that the defendant had used a market stall in Manchester to radicalise vulnerable young men and encourage them to engage in violent jihad in Afghanistan and Pakistan. The main evidence against Farooqi came from two undercover police officers, who had posed as isolated and vulnerable individuals. They recorded conversations with the defendants over the course of a year.

At the trial, McNulty argued that the undercover officers had set a trap for his client. That meant, according to the barrister, that Farooqi could rely on a defence of entrapment. But the judge, Mr Justice Henriques, ruled that no such defence existed as a matter of law. If it had existed, then McNulty would have been required by law to raise it before the trial had started rather than after two-and-a-half months of evidence and argument.

The main disciplinary charge against McNulty related to his delay in asking for the case to be thrown out on grounds of entrapment. Other charges related to what he had said in his closing speech to the jury.

Dismissing Farooqi’s appeal against conviction and sentence last summer, the then lord chief justice Lord Judge said that McNulty made a personal attack on Henriques and others that was “quite astonishing”. The judge continued:

The comparison drawn between the judge and a dishonest seller of worthless goods was intolerable. The suggestion that some of the counsel for the co-defendants whose approach to the trial was different to his own should be regarded as “sucking-up” to the judge was reprehensible …

This was not fearless advocacy, with the advocate necessarily standing firm in the interests of his client in the best traditions of the bar. Advocacy of the kind employed by Mr McNulty would rapidly destroy a system for the administration of justice which depends on a sensible, as we have emphasised, respectful working relationship between the judge and independent minded advocates responsibly fulfilling their complex professional obligations. It is difficult to avoid reflecting that this behaviour, particularly during the later stages of the trial, had as its ultimate purpose the derailment of the trial by the creation of pressure on the judge to discharge the jury before they retired to consider their verdicts or to procure favourable verdicts by illegitimate means.

These findings by the court of appeal were deliberately kept from the disciplinary tribunal. But, after a six-day hearing, the tribunal members found that McNulty had failed to give the necessary notice of his application to have the charges stayed:

We have asked ourselves whether we are satisfied so that we are sure that the lack of disclosure to the court and to the prosecution was the result of one or more deliberate tactical decisions on Mr McNulty’s part. Having observed him giving evidence for the better part of two days, and noting his apparent total command of his own faculties and the material in the case, we are sure that it was. We have also come to the conclusion that the conduct complained of was prejudicial to the administration of justice because the trial proceeded on a false basis, the prosecution were unable to deal in evidence with matters underlying the applications and the risk of an adjournment was created.

Turning to the allegation that McNulty had deliberately contravened the judge’s ruling by advancing an argument based on entrapment to the jury in his closing speech, the disciplinary tribunal found the charge proved. McNulty’s “allegations were completely unfounded and his conduct had the potential to undermine public confidence in the legal profession and the administration of justice”, it said.

The barrister was given four months’ suspension on each of these two charges, to be served concurrently. He was also given two months’ suspension, concurrently with the other sentences, for a “deliberate and misguided attempt to undermine the authority of the judge and to neutralise his summing-up” and for impugning police witnesses by making allegations that he had failed to give them an opportunity to answer.

Delivering a short but powerful speech in mitigation, William Clegg QC said McNulty had lost all sense of judgment in the case and behaved in a way that he had not done previously or subsequently. He referred to the great strain McNulty must have been under, living away from home during a lengthy trial. Adrian Darbyshire QC, representing the Bar Standards Board which regulates the profession, confirmed that there were no allegations of dishonesty against McNulty and that he was not seeking any particular sentence.

This whole case must have cost a great deal of money to prosecute and try, most of which will have to be borne by other barristers. Was it worth it? Despite his counsel’s failings, Farooqi’s trial proceeded to a verdict and his sentence of life imprisonment with a minimum of nine years was upheld.

My answer is that it was certainly worth it, for the reasons expressed by the former lord chief justice. Our criminal justice system relies on advocates who keep to the rules. Any failure to meet the high standards set by the regulators must be exposed for all to see. Nothing else will deter its repetition.

Khmer Rouge leaders guilty of crimes against humanity and jailed for life

Khieu Samphan, 83, and Nuon Chea, 88, are last members of former Cambodian regime deemed fit to face trial

A UN-backed war crimes tribunal has found the Khmer Rouge’s Brother No 2 Nuon Chea and former head of state Khieu Samphan guilty of crimes against humanity and sentenced the two elderly men to life imprisonment, in a move heralded by human rights groups as a “historic victory” for the nation.

The verdict comes nearly 40 years after the regime led by Pol Pot ended its murderous four-year reign over Cambodia, during which time nearly 2 million people – a quarter of the population – died from starvation, exhaustion, execution or lack of medical care as a result of the communist “utopia” experiment.

Khieu Samphan, 83, known as “Mr Clean” for his reported incorruptibility, and Nuon Chea, 88, the Khmer Rouge’s chief ideologue, were both charged with crimes against humanity, homicide, torture, genocide and religious persecution, all committed during a regime that forced Cambodia into “a state of terror”, according to the tribunal’s chief judge Nil Nonn.

The defendants, both of whom have been in hospital at times since the trial began in November 2011, were described by prosecutor William Smith as “dictators who controlled Cambodians by brutal force and fear”.

“They brutalised and dehumanised their own people and kept spilling blood for power,” he said.

Lawyers for the two said they would appeal.

A photograph of Nuon Chea on display in Tuol Sleng prison, believed to have held approximately 14,000 prisoners while in operation under the Khmer Rouge – mostly intellectuals, officials or those deemed traitors. Photograph: Omar Havana/Getty Images

Both men denied the allegations against them, although Khieu Samphan did admit that mass killings took place – blaming Pol Pot’s extreme brand of communism. In closing statements last year to the court, formally known as the Extraordinary Chambers in the Courts of Cambodia, he described himself as a state figurehead who “did not have any power” and did not order any executions, calling the allegations a “fairytale”.

“It is easy to say that I should have known everything, I should have understood everything, and thus I could have intervened or rectified the situation at the time,” he said. “Do you really think that that was what I wanted to happen to my people?”

Nuon Chea, who often appeared in court in his trademark wraparound sunglasses, accepted “moral responsibility” for the deaths of nearly 2 million people but claimed total innocence of all crimes charged against him.

A stupa commemorating Cambodia’s Choeung Ek killing fields filled with thousands of skulls of victims of the Khmer Rouge regime. Photograph: Omar Havana/Getty Images

In a statement read out to the court in 2013, he said he never ordered soldiers “to mistreat or kill people, to deprive them of food, or commit any genocide”, but added: “I would like to sincerely apologise to the public, the victims, the families, and all Cambodian people. I wish to show my remorse and pray for the lost souls.”

The tribunal, launched in 2006 and once heralded as a great opportunity for Cambodia to confront its bloody past, has been bogged down by allegations of corruption and incompetence, spending up to the present day some $200m to convict only one defendant: the Khmer Rouge prison director Kaing Guek Eav, sentenced to life imprisonment in 2011.

Illness and death have prevented other defendants from standing trial. Nuon Chea and Khieu Samphan, who both face an upcoming genocide trial, originally shared the dock with Khmer Rouge foreign minister Ieng Sary, who died in March, and his wife Ieng Thirith, the social affairs minister, who has dementia and was declared unfit for trial in 2012. The group’s top leader, Pol Pot, died in 1998.

Despite the problems that have plagued the court, Lars Olsen, the court’s spokesman, called the verdict “a historic day” for both the people and legal system of Cambodia.

“The victims have waited 35 years for legal accountability, and now that the tribunal has rendered a judgment, it is a clear milestone.”

A group of 10 victims represented by the International Federation for Human Rights (FIDH) praised the court’s decision, saying: “We will finally be able to mourn our relatives. It was important for us to see those who planned and ordered these crimes be held to account.”

But lawyers for the two defendants said they would appeal against the verdict and sentence.

“It is unjust for my client – he did not know [of] or commit many of these crimes,” said Son Arun, a lawyer for Nuon Chea.

Khieu Samphan’s lawyer Kong Sam Onn added simply: “This is not justice.”

The international criminal court can investigate potential crimes in Gaza

The United Nations general assembly's decision to grant Palestine observer-state status means the ICC has jurisdiction to investigate allegations of crimes

In his opinion piece dated 7 August 2014, Joshua Rozenberg criticised the Bar Human Rights Committee's letter to the ICC prosecutor, which urged her to investigate evidence of serious crimes within the jurisdiction of the Court committed in Gaza, as "naive" and "misleading".

He accuses BHRC of failing to present opposing views to its own position that a 2009 declaration submitted by the Government of Palestine, accepting the jurisdiction of the court, provides the prosecutor with the jurisdictional basis to initiate an investigation. In particular, BHRC is criticised for not highlighting that "one international lawyer disagreed" with our position, arguing that a 2012 decision of the prosecutor "formally rejected" the 2009 declaration.

Neither Rozenberg's opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support of their positions. This is hardly surprising given that the decision does not in fact "formally reject" the 2009 declaration.

Instead, the 2012 decision asserts that the prosecutor does not have the authority to determine whether Palestine is a "state" for the purposes of submitting a declaration to the ICC, it being "for the relevant bodies at the United Nations or the [ICC] assembly of states parties to make th[at] legal determination."

The 2012 decision underscores that the Prosecutor "could in the future consider allegations of crimes committed in Palestine, should competence organs of the Untied Nations or eventually the assembly of states parties resolve the legal issue relevant to an assessment of article 12".

As BHRC highlights in our letter, insofar as any doubts may have previously existed regarding Palestine's status, those have since been resolved by the United Nations general assembly when it granted Palestine observer-state status. Contrary to Rozenberg's representation of the UN General Assembly decision, the UN did not determine that Palestine was not a State prior to that date. And indeed, as Kevin Heller has himself made clear, "the ICC did not have to wait for the UNGA to upgrade Palestine's status; it could – and should – have recognized Palestine long before now."

In those circumstances, as BHRC and numerous other lawyers have argued , the 2009 declaration provides a jurisdictional basis for the prosecutor to "consider allegations of crimes committed in Palestine", in the absence of Palestinian ratification of the Rome Statute: there is no legal requirement for a further declaration in order for an investigation to be initiated.

Given the text of the 2012 decision, the prosecutor's short announcement on 5 August 2014 imposing yet another procedural obstacle to the investigation of such serious crimes is deeply disappointing. BHRC and the legal community look forward to reading a reasoned legal explanation of her position.

In the meantime, BHRC continues strongly to encourage Palestine's ratification of the Rome Statute as the most straightforward basis for ICC jurisdiction over crimes committed on its territory. The news on this front is cautiously encouraging. However, the political pressure being placed on Palestine – including by the British and American governments – and the threats of serious political consequences if it does ratify or submit another declaration undermine Rozenberg's assertion that this action is "an easy answer". Naivety would be to place faith in the politics and not to advance a distinct urgent legal solution for victims of Gaza.