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If you followed former Prime Minister Tony Blair’s appearance before the Iraq Enquiry last week, you might find the piece in the Times by Prof. Malcolm Shaw QC, on how the structure of the UK legal administration arguably rendered itself open to bad decision-making, worth reading.
Filed under: Public International Law | 2 Comments »
An interesting – yet at 1 hour 57 min rather lengthy – interview/conversation with the ICC prosecutor Luis Moreno Ocampo is this weeks clip of the week (see on the right side of the website or follow this link). The video will bring little news to those of us familiar with the basic structure and functioning of the ICC but it is nevertheless educational and provides an insight into the work of the ICC.
Filed under: Clip of the Week, ICC, International Criminal Law | Leave a Comment »
Today, the first of two weeks of auditions has ended which the Inter-American Court of Human Rights is holding from 25 January to 4 February.
On this occasion, the Court hears the victims, witnesses and expert witnesses as well as the parties’ oral submissions on two cases. The first one, Cepeda Vargas vs. Colombia, deals with the alleged extrajudicial execution of a Colombian left-wing senator in 1994 in combination with a lack of the due diligence regarding the investigations conducted in this case and the sanctions imposed on the perpetrators. The second case, Chitay Nech vs. Guatemala, is about the alleged forced disappearance of a Guatemalan indigenous people’s leader in conjunction with an alleged lack of due diligence in the investigation of the case and a lack of justice to the detriment of the victim’s kin.
The Court will also hold five public auditions on provisional measures as well as nine private auditions regarding the compliance with earlier cases handed down by the Court (for further information on the schedule and the cases see here).
The most striking incident of this first week of auditions was, undoubtedly, the partial recognition of responsibility through the State of Colombia in the Cepeda Vargas case. The State publicly apologized for the violation of Cepeda Varga’s rights to life, personal integrity, honour and dignity as well as of his liberty of expression and his political rights through state agents and the delayed investigations through the State authorities. The son of the senator, Dr. Ivan Cepeda Castro, stated that after years of statements of denial and depreciation this recognition was a significant step. That said, given the gravity of the defamatory statements, he asked the State to reiterate his statement before the Colombian Parliament through the President of the Republic and to transmit this session through a national TV channel “such that the Colombian people which has listened to the discourses and messages I referred to earlier will be able to hear the statement that the Colombian delegation has made today” (translation provided by the author).
It should be noted that this statement of recognition does not extent to all litigious points. In particular, the State did not recognize its alleged responsibility as an intellectual author of the murder of Senator Cepeda Vargas. The precise scope of the State’s recognition of responsibility as well as the remaining points of controversy will have to be clarified in the final judgment of the Court (for further information on this case see here).
Filed under: Public International Law | Leave a Comment »
The Riga Graduate School of Law announces Scholarships for an LL.M degree in Public International Law and Human Rights funded by the Open Society Institute (OSI). Eligible students currently are invited to apply for the Riga Graduate School of Law (RGSL) Public International Law and Human Rights Programme. The programme provides expertise in Public International Law and Human Rights and also offers courses in European Law. The programme is competitive and very prestigious. The Programme is based at the RGSL located in Riga, Latvia. It is available to individuals with bachelor’s or master’s degree in law or related fields (or will be awarded a degree prior to admission to the programme), obtained in at least four years long studies, if basic knowledge in law and corresponding work experience is acquired; second level professional higher education, professional bachelor’s or master’s degree in law or other related fields, if basic knowledge in law and corresponding work experience is acquired. The 2010/2011 Programme starts in September 2010.
Please find more information here:
http://www.rgsl.edu.lv/index.php?option=com_content&task=view&id=519&Itemid=134
Filed under: Scholarship | 1 Comment »
The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has just published conclusions on the future of the Strasbourg Court and enforcement of ECHR standards: reflections on the Interlaken process. Conclusions are available in French and in English. The Interlaken Conference on the future of the European Court of Human Rights will be held on 18-19 February 2010. Some important points are highlighted as follows:
14. The Strasbourg supervisory mechanism is “subsidiary” in nature. States are responsible for the effective implementation of the Convention and it is the shared duty of all state organs (the executive, the courts and the legislature) to prevent or remedy human rights violations at the national level. This is principally, but not exclusively, the responsibility of the judiciary. Hence the logic of putting into place an effective human rights complaints mechanism at the national level, which would diminish the risk of the Strasbourg Court acting as a fourth instance appellate jurisdiction. Witness the small amount of complaints, comparatively speaking, that reach the Strasbourg Court from Spain and Germany. Appropriate domestic remedies, intensive training of lawyers, prosecutors and judges, the creation of a human rights culture and the impregnation of the Strasbourg acquis within national state structures – especially with respect to the “big sinners” (see paragraphs 6 to 8 above) – would help stem the flood of applications to the Court. Thus, well-functioning national human rights protection mechanisms might make superfluous the idea of creating a separate filtering body within the Strasbourg Court and shift back primary responsibility to national legal systems, where it belongs.
15. One subject of particular significance, discussed at the hearing, was the need to enhance the authority and direct application of the Strasbourg Court’s findings in domestic law. Rather than refer to the erga omnes effect of Grand Chamber judgments of principle, it is probably more accurate to refer to its interpretative authority (res interpretata) within the legal orders of states other than the respondent state in a given case. Here, I have in mind the United Kingdom’s 1998 Human Rights Act, Section 2 § 1 of which specifies that national courts “must take into account” Strasbourg Court judgments, and Article 17 of Ukrainian Law No.3477–IV of 2006, which reads: “Courts shall apply the Convention [ECHR] and the case-law of the [Strasbourg] Court as a source of law”. This subject merits special attention in Interlaken.
Few can predict what will happen at Interlaken but it seems that a change of Strasbourg arhitecture is likely to be agreed upon.
Filed under: Public International Law | 1 Comment »
Annual Conference of the British Branch of the ILA
COMPLIANCE
Thursday 15 & Friday 16 April, 2010, Oxford
Deadline for abstracts: Friday 12th February 2010
The Annual Conference of the British Branch of the International Law Association will be hosted this year by Oxford Brookes University on 15th and 16th April 2010. Please note that, unusually, this year’s conference is on Thursday and Friday (not Saturday). The theme for this year’s conference is compliance. The normative evolution, acceptance and development of international law continues, yet so too does the phenomenon of non-compliance. Papers are invited on the practical and theoretical issues raised by questions of compliance understood broadly, across all areas of international law.
Practitioners, academics and doctoral students are invited to submit paper proposals within the conference theme. Institutional affiliation, seniority, nationality or gender will be immaterial to the selection process. Abstracts of no more than 500 words should be submitted by Friday 12th February 2010. Submissions should include the author’s name and contact details (including email address) and be sent, preferably by email to dsedman@brookes.ac.uk, or by post to Dr Dawn Sedman, Department of Law, Headington Hill Hall, Oxford Brookes University, Oxford OX3 0BP. Applicants will be notified of the results of the selection process around 22nd February 2010. At that stage full details of the conference will be sent out, including registration and accommodation information.
Meanwhile, please keep the dates!
Thanks to Dawn Sedman for drawing our attention to this.
Filed under: Call For Papers, Conference | Leave a Comment »
In today’s Wall Street Journal Marcus Walker speculates that the admission of Turkey to the EU may be the only possibility left if Europe is to maintain its standing as an important international actor. The article somewhat echoes another article in this week’s Economist noting the need for the EU to become more realistic in its dealings with e.g. China. One probably shouldn’t get one’s hopes up and expect EU grandstanding and pompous rhetoric to chance any time soon though.
Filed under: EC-Law, EU Common Foreign and Security Policy, EU-Law, EU/EC Law | 1 Comment »
ESF-LiU Conference
’The Responsibility to Protect: from Principle to Practice’
The European Science Foundation and Linkoping University have organised a conference on the controversial Responsibility to Protect concept. The conference will take place in Linkoping, Sweden, from the 8th – 12th June 2010.
The conference will examine the conceptual challenges which R2P poses and how policy concerns impact upon R2P’s translation from theory to practice. Accordingly, the conference will consider the international legal basis of the concept and survey the pertinent issue of R2P as value added.
The conference will feature papers delivered by persons regarded as the world’s leading experts on R2P. The following list is a mere sample of the highly respected speakers:
The Conference promises to give unrivalled insight into the workings of R2P and an outlet in which the concept’s outstanding ambiguities can be freshly considered and debated.
Interested persons should apply to attend the conference by the 8th March 2010. Application details and full overview of the conference can be located at: http://www.esf.org/index.php?id=6494
Filed under: Conference, Responsibility to protect | Leave a Comment »
OUP has uploaded another 106 articles to the online edition of the Max Planck Encyclopedia of Public International Law. Here is a description of the last round of uploads:
Following the January 2010 update, 106 new articles have been added, including 23 new articles on Regional Organizations, bringing the total for this category to 102. Amongst the articles are nine on European Community law, most of which were only finalized after the ratification of the Lisbon Treaty. These include articles on the European (Economic) Community, the European Community and Union Law and International Law, and the European Central Bank. Other noteworthy additions are articles on the United Nations, Islam and international law, and Prisoners of War.
For more information on the MPEPIL please visit the relevant website. Thanks to Nik Speller for drawing my attention to this.
Filed under: Public International Law, Publications, Relevant Literature, Scholarship | Leave a Comment »
Book review: Gentian Zyberi, The Humanitarian Face of the International Court of Justice: Its Contribution to Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles, School of Human Rights Research Series, Volume 26, Antwerp: Intersentia, 2008. – xiii, 523 pp.
This monograph is one of the first on the contribution of the International Court of Justice to Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles. Although such a book has been long awaited by academics, students and practitioners of human rights and public international law worldwide, it has been worth waiting for this volume despite its minor weaknesses. Both the choice of title – ‘The Humanitarian Face of the International Court of Justice’ – and its high academic standard and length indicate the author’s effort to present the topic comprehensively, broadly and in a novel way. Written by Gentian Zyberi, an assistant professor at the University of Utrecht, the book offers a clear, in-depth and fresh insight to the contribution of the International Court of Justice to international human rights and humanitarian law. The book derives from the author’s dissertation, defended on 3 April 2008 at the University of Utrecht.
The book is divided into six chapters, which adopt a well-structured clear approach with the chapters coherently following each other, although more chapters might have lightened the reader’s load as they are fairly long. At the beginning, the author explains that the book’s primary objective is to research ‘the contribution and the role of the World Court in interpreting and developing international human rights and humanitarian law rules and principles’ (p. 3). The research was conducted through detailed analysis of the jurisprudence of the International Court of Justice relating to human rights and humanitarian law. The author argues that his research aims ‘to increase the understanding of one important and potentially binding element of the international legal system, the World Court …’ (p.6.).
Following the introductory chapter, the second chapter is divided into three parts. The first part briefly presents the background to the International Court of Justice and places it in the framework of international dispute settlement mechanisms. The second part deals with the possibilities for and limitations of the Court. In other words, it attempts to highlight both the open doors and the hurdles facing the Court for it to assume a more active role in contributing and shaping the rules and principles of international human rights and humanitarian law. For instance, the author argues that all United Nations organs and agencies should be able to access the Court’s advisory function (p.60). Part three comes to a number of conclusions on the Court’s possibilities and limitations in the fields of international human rights and humanitarian law. The structure of the book might have benefited from the first part of this chapter constituting a self-standing chapter.
Chapter three concentrates on the book’s core subject, the ICJ’s contribution to the Interpretation and Development of International Human Rights Law Rules and Principles. It is again divided into three parts, and again they could have been self-standing chapters. The second part analyses the jurisprudence (both contentious cases and advisory opinions) of the International Court of Justice relating to the interpretation and development of rules and principles of international human rights law by examining 16 contentious cases and 11 advisory opinions selected by the author as directly addressing international human rights law (p.86). It is not clear, however, what methodology was employed to select cases ‘having a direct relation to international human rights law’. The analysis of the jurisprudence begins with an examination of an advisory opinion on the Interpretation of Peace Treaties involving Bulgaria, Hungary and Romania, and ends with an analysis of a case concerning certain criminal proceedings in France. Despite its academic quality, this chapter starts at p.65 and ends at p. 248 and is too long for the reader to follow the argument of the book. Chapter three ends with some general conclusions relating to the International Court of Justice’s contribution to interpreting and developing international human rights rules and principles.
Chapter four examines the contribution of the Court to the Interpretation and Development of International Humanitarian Rules and Principles. It first sets out the background for a subsequent detailed analysis of the Court’s jurisprudence. In its second part, the chapter presents and analyses the jurisprudence of the Court relating to humanitarian issues, starting with the Corfu Channel cases. This chapter convincingly argues that the contribution of the International Court of Justice ‘clarifies and develops rules and principles of international humanitarian law … through a legal process that has also been characterized as the ‘humanization of international humanitarian law’, and ‘integrates international humanitarian law concepts and principles within the wider framework of international law’ (p.332). The chapter finally submits that the Court ‘contributes to maintaining the unity of international humanitarian law and its uniform application by the international judicial bodies operating in this field’ (p.332).
Chapter five has four parts. They examine the relationship between the Court and other International Courts and tribunals, and also the relationship between the Court and the International Quasi-judicial bodies. The chapter argues that ‘international law can never be a panacea as, besides its inherent limitations, law is only one aspect of complex inter-state relations, which are always transforming and developing, it nevertheless remains an essential aspect of international intercourse’ (p. 430).
Finally, chapter six concludes with a synthesis of the previous chapters and argues that states should make the International Court of Justice a focal point of the international legal order by providing access to it for international criminal tribunals and the United Nations Human Rights Council. One wonders how realistic such a proposal is, but it should be welcomed for its novelty. The author concludes that ‘through its case law the Court has been able to wed international law to humanitarian demands for the protection and respect of individual human rights and human life and dignity’ (p. 434) and assesses that ‘the Court’s record so far provides sufficient reason to hope that the ICJ shall continue to render a useful contribution to the interpretation and development of international human rights and humanitarian rules and principles’ (p. 448).
This work distinguishes itself from other monographs on public international law and international human rights and humanitarian law in that it offers the reader a good point of departure for exploring the contribution of the International Court of Justice to interpreting and developing international rules and principles of international human rights and humanitarian law. In other words, in many ways it fills a gap by providing a systematic, in-depth and detailed study of the influence and contribution of the International Court of Justice in international human rights and humanitarian law.
One may note that the book could have been written in a manner more critical of the current international framework, including the jurisprudence of the International Court of Justice. It appears, however, that this was not the main objective of the book, which was written as an introduction and basis for further study, analysis and research. These minor weaknesses, however, do not overshadow the intellectual and scholarly value of the book.
The author of this book has invested much research, practical experience, time and patience in its preparation and has produced an important addition to the academic literature in English on public international law and international human rights and humanitarian law, particularly on the jurisprudence of the International Court of Justice. It is an excellent starting point for advanced research and academic work in international law and an indispensable reference tool for students and practitioners. It can only be hoped that the author will find the time and patience to also publish this edition in Albanian (his mother tongue) and in French to make it accessible to a wider audience.
Filed under: Book review, Public International Law, Publications | 1 Comment »
Newcastle Human Rights Research Group Symposium Announcement: Human Rights – A Drop of Liberation or Fig Leaf of Legitimation?
Date: 23 January 2010, Newcastle Law School, Newcastle University, UK.
Confirmed Speakers
Professor David Kennedy, Harvard University – ‘The International Human Rights Movement: Still Part of the Problem?’
Professor Keith Ewing, Kings College London – ‘The Final Futility of the Human Rights Act’
Professor David Bonner, University of Leicester – ‘If you cannot change the rules of the game, adapt to them: United Kingdom responses to the restrictions set by Article 3 ECHR on “national security” deportations’
Professor Christine Bell, University of Ulster – ‘Human rights activism, expertise and academic inquiry: beyond legitimation v emancipation – a self-critical reflection’
Steven Wheatley, Reader, University of Leeds – ‘The problematic authority of international human rights law.’
This symposium draws upon the proliferation of academic commentary asserting that the international human rights system is in a state of crisis in the first decade of the twenty-first century, a discourse which requires an evaluation of both the impact and future direction of the human rights project. With papers from world leading authorities on human rights, this symposium provides a forum for the re-evaluation the effectiveness of human rights as an element of international law and in the domestic context of the United Kingdom at the end of a decade when the human rights project has faced renewed and novel challenges. Moreover, this Symposium draws together skeptics and supporters as well as disparate strands of transatlantic scholarship.
A limited number of places for delegates are available on a first-come-first-served basis, at a cost of £30 per head (or £10 per head for full-time postgraduates), inclusive of lunch and refreshments. Full details of the Conference Programme are available on the Newcastle Law School Website: http://www.ncl.ac.uk/nuls/research/groups/humanrightsgrp.htm
For further details regarding this symposium, please contact Dr Rob Dickinson (r.a.dickinson@ncl.ac.uk) or Dr Ole W. Pedersen (ole.pedersen@ncl.ac.uk).
Filed under: Conference, Human Rights, Scholarship | Leave a Comment »
Accountability Now!
A Symposium on Human Rights and International Justice
Tuesday, 12th January 2010, 2-4pm
Main Theater, Abu Dis Campus, Al-Quds University, Palestine
On occasion of the one year anniversary of Israel’s 22-day-long offensive on the Gaza
Strip, and the momentum towards accountability created by the report of the UN Fact-Finding Mission on Gaza Conflict (the Goldstone report), Al-Quds University hosts the symposium “Accountability Now!”. The event provides a forum for discussion of the practical and attainable steps that need to be undertaken in order to begin the process of justice for the violations of international law committed in the context of the Gaza offensive as well as those generated throughout Israel’s 42-year-long occupation of the Palestinian territories.
The symposium, organized by the Al-Quds Human Rights Clinic, will include the launch of a letter campaign. The two open letters drafted by human rights activists and students, address the UN Secretary General, Ban Ki-Moon, and the US President Barak Obama, highlighting the importance of accountability and justice for the peace process and thereby urging that all necessary measures are applied to monitor and scrutinize the implementation of the conclusions and recommendations of the Goldstone report.
Additionally, the Clinic and the School of Law are showing a photography exhibition titled, “War on Human and Law: Israel’s violations of IHL in the War on Gaza”.
Topics:
– Accountability and International Justice: The Universal Significance of the Goldstone Report
– Peace and Justice: Inseparable Notions for Ending the Occupation of Palestine
– The Role of Civil Society in Advancing the Process of Justice in the Occupied Palestinian Territories
– Direction Needed for the Palestinian People to Obtain Justice
Speakers:
– Professor Richard Falk, UN Special Rapporteur on the situation of Human Rights on Palestinian Territories occupied since 1967 (via video-conference)
– Raji Sourani, Director, Palestinian Center for Human Rights, Gaza Strip (via video-conference)
– Adv. Ingrid Jaradat, Director, Badil
– Nada Kiswanson, UN Advocacy Officer, Al-Haq
For further information and to confirm participation in the conference, contact: Valentina Azarov (valentinaazarov@gmail.com) or Saleh Hijazi (hijazisaleh@gmail.com).
Filed under: Conference, Human Rights, International Criminal Law, International Humanitarian Law, Middle East Crisis, international justice | 1 Comment »
According to a report by Kevin Jon Heller on Opinio Juris, the well known international legal scholar and practitioner Professor Sir Ian Brownlie, CBE, QC, FBA died in a car accident in Egypt. No other reports of this tragic incident have been published yet.
Sir Ian Brownlie was international Chichele Professor of Public International Law (after 1999 as Emeritus) at the University of Oxford and a Fellow of the All Souls College. Over the years he helped shape public international law through numerous notable publications and practical achievements. Most famous among his publications is perhaps the ‘Principles of Public International Law’, which first came out in 1966 and was published in its 7th edition in 2008, and which – rightly – has been called ‘[t]he most well established and authoritative textbook on international law on the market.’ Sir Ian Brownlie was a practicing barrister since the mid 1960s and appeared before numerous international tribunals, including the International Court of Justice, the European Court of Human Rights and the European Court of Justice. Until his resignation in 2008 he was a member of the International Law Commission, which he chaired since 2007 and where he inter alia functioned as special rapporteur on the effects of armed conflict on treaties, producing 4 reports between 2005-2008. Moreover, Sir Ian Brownlie was a Fellow of the British Academy, a member of the International Law Association and of the Institut de Droit International.
Filed under: In Memoriam, Public International Law | 6 Comments »
Al-Haq, a Palestinian NGO based in the West Bank, has recently published a paper authored by Michael Kearney and Stijn Denayer on “Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute” (a matter we have previously covered here).
The Palestinian declaration for a self-referral to the ICC has become a particularly important case study due to the implications that are expected to arise out of its resolution. To note only a few, the ICC that has often been nicknamed the ‘Court for Africa’ is hereby being granted another opportunity to challenge this perception of its practice and unofficial mandate. Further, it is also a challenge for the international community that is being asked to confirm its recognition of Palestinian statehood as it has done in numerous precedent (such as Palestine’s representation in the UN, its embassies worldwide and its participation as a state in the proceeding on the ICJ Wall Opinion), by accepting that Palestine should also be considered a state for the purpose of the Rome Statute. Another aspect of the importance of this case is the affront that the rejection of the declaration would arguably present to the ICC, one of the most forceful (at least in theory) international accountability mechanisms in existence, as much as to a notable extent also to the whole premise of international law and the effectiveness of its enforcement mechanisms. The ICC Prosecutor has yet to decide on the case.
The abstract is as follows:
In early 2009 the Palestinian Authority submitted a declaration under Article 12(3) of the Rome Statute recognizing the jurisdiction of the International Criminal Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ In the first instance this paper argues that whereas the existence or otherwise of a state of Palestine remains moot at best for the purpose of international law and international relations broadly speaking, a compelling argument can be made that for the purposes of the Statute only, a determination by the Court that Palestine is a state that can engage with the Court would be valid and in line with the Court and the Statute’s statutory requirements. The paper, drawing on the criteria being relied upon by the Office of the Prosecutor in order to decide whether the PA, as an institution established by the PLO, has the necessary ‘capacity’ to transfer its jurisdiction to the Court, then addresses the extent of the PA’s jurisdiction over international crimes. It demonstrates that the PA can legitimately prosecute individuals responsible for crimes within the jurisdiction of the ICC regardless of the nationality of the individuals concerned and that the PA has the ability to enter into international agreements. It concludes by asserting that the ICC may validly consider Palestine to be a state for the purposes of Article 12(3) of the Rome Statute and may accept the transfer of jurisdiction from the PA to the Court in line with the Statute and the principles of international law.
The paper can be downloaded from Al-Haq’s website, and SSRN.
Filed under: Human Rights, ICC, International Criminal Law, Middle East Crisis, Publications, international justice | 2 Comments »
Yesterday, on 27 December 2009, one year had passed since the commencement of the devastating atrocities of Israel’s 22-day-long assault on the occupied Gaza Strip (otherwise known as Israel’s Operation “Cast Lead”). There has indeed been a notable amount of writing done about the conflict and its context over the past year (we have also covered this topic here, here and here, inter alia). On its one year anniversary, this brief tribute will focus on the current state of the justice and accountability process through the lens of international law by first considering the significance and credibility of the Goldstone mission report, examining the first phase of the accountability process in light of the international law applicable to post-conflict responsibilities of the parties to the conflict and concluding on where the victims of these atrocities stand today.
The significance and credibility of the Goldstone fact-finding mission
The first point that I would like to present and briefly discuss concerns the legal character and role of a UN fact-finding mission, such as the Goldstone mission, which is presently the leading body for accountability and justice for the Gaza conflict as well as Israel’s belligerent occupation of the Palestinian territories as a whole. This point comes to challenge the misinterpretation of the role and legal character of the mission upheld by some governments and other international actors, holding inter alia that the Goldstone mission is politicised, biased towards Israel and rash in its conclusions. What these actors have neglected to consider is the role and significance of the mission to the justice and peace process, and most importantly the objective credibility that is attributed to its conclusions on the substance of the violations of international law that were generated by both parties during the assault.
It is important to note that UN fact-finding missions have a non-judicial character, in fact such missions are designed to collect evidence of criminality and, therefore, they do not pretend to arrive at judicial conclusions on the basis of the investigation that they conduct. Prof. Bassiouni, a renowned international scholar on victims rights and post-conflict justice, has analogised the role of fact-finding missions with that of truth-commissions arriving at the conclusion that UN fact-finding missions, like truth Commissions, should not be deemed a substitute for prosecution. The role of both bodies – that often run in conjunction with prosecutions – is to establish a record of what has happened. [1] Finally, even if we analogise with the standards of a criminal investigation, a judicial criminal investigation is rarely able to gather the information on a case in a comprehensive manner and present a case that is without some factual ambiguities. Therefore, international justice, like national justice, can never be held to the standards of perfection.
The methods used by the Goldstone investigation, the skill of its experts and the vast amounts of information of various forms examined by the mission reflect a high level of precision in its empirical research attesting to its impartiality, and being a clear measure of its credibility. Therefore, despite not being a judicial fact-finding team and in certain areas being only indicative of the amount of alleged violations that occurred during Israel’s 22-day-long Operation in the Gaza Strip, the 542-page report produced by the mission unquestionably succeeds to present enough evidence to substantiate a prima facie case that begs to be answered and warrants a more thorough investigation to be conducted in accordance with international standards, and where appropriate, for prosecutions to be launched.
The Post-Conflict Responsibilities of the Parties to the Conflict: Israel and Palestine after Operation “Cast Lead”
We are presently in the first phase of the accountability process, as prescribed by international law and confirmed by the Goldstone mission report. Namely, the phase of enforcement of the post-conflict responsibilities of the parties to the conflict. Post-conflict responsibilities adhere to the objective of peace-building through justice, which as Justice Goldstone has also noted, needs to happen as close to the victims as possible. The principal actors that are implicated in the accountability process in the aftermath of a conflict are the parties to the conflict.
The obligation to investigate, prosecute and compensate is at the heart of the definition of post-conflict responsibilities of the parties to the conflict. The obligation is found both in international humanitarian law (IHL) – enshrined in all four Geneva Conventions – and in international human rights law (IHRL), the provisions of which delimit the specific standards for such investigations and ensure a victim-oriented approach in the prosecution process as much as in affording reparations and compensation to victims and their families.[2] The obligation to prosecute in both IHL and IHRL is premised on ensuring that institutions, structures and culture on the national level combine to form the rule of law.
Overall, although international law is conscious and affirming of the significance of national or local handling of accountability for atrocities as an important step in the justice process, it is also weary of the fact that a domestic system is unlikely to be able to take on a program of accountability on its own. International law, therefore, explicitly demands that the international community should assume an active monitoring role, both to ensure the fairness and credibility of the process as well as to reinforce the notion that even where the process is wholly internal, the international community has a strong interest in accountability.[3]
The UNGA Resolution of 5 November 2009 (named the “declaration against impunity” by the President of the GA) voted in by 114 member states, puts into motion the first phase of the chronology for the accountability process devised by the Goldstone report. It endorses the report’s findings and recommendations for further action and “calls upon the Government of Israel to take all appropriate steps, within a period of three months, to undertake investigations [...]” and “urges [...] the undertaking by the Palestinian side, within a period of three months, of investigations [...]”. The Resolution entrusts the Secretary General of the UN to report to the GA at the end of the three month period, i.e. on the 5 February 2010.
Further, a number of legal and factual questions come out of this statement that have yet to be directly addressed. For instance, what does the GA mean by “Palestinian side”? Whilst doubts remain as to whether the armed groups in Gaza are attributable to the Gaza authorities[4], the implications of the submission of the declaration for a self-referral to the ICC, under Art. 12(3) by the Minister of Justice of the Palestinian Authority based in the West Bank (a matter we have previously covered here) and the extent to which the Palestinian Authority (that largely does not have de facto control over daily life in the Gaza Strip) sees itself as implicated in the post-conflict responsibilities of the parties to the conflict are unclear. Moreover, should the accountability process focus only on the conclusions of the Goldstone report? After all, the report does not look into the crime of aggression or the justification of the use of force by Israel. It also sidesteps a number of legal issues pertaining to Israel’s prolonged belligerent occupation regime in the Palestinian territories and its violation, inter alia, of the prohibition of apartheid and colonialism in international law.[5]
It should be recalled that the investigation mechanisms used by Israel to investigate previous atrocities, such as the war with Hezbollah in Lebanon in 2006 or the events of the second intifada, have not met the international standards manifesting a general unwillingness to conduct a genuine, professional investigation.[6] On 11 December 2009, Israel announced that after having looked into the 36 cases considered by the Goldstone report that its conclusions are that 30 of the claims are unfounded and the other 6 were white-washed as operational mistakes (other actions taken by Israel in the course of its internal military investigations of the misconduct during the Gaza conflict were covered here). On the other hand, the Hamas government has thus far altogether defaulted to initiate investigations or even express a clear intention to do so. From a purely theoretical perspective, it is also uncertain whether the two parties to this conflict can be considered to be subjected to the same IHL obligations, and that further certain normative modifications may be expected to arise out of the fact that this is a conflict between an occupying power and an occupied and besieged population.
Nevertheless, the exhaustion of national investigation channels is in most cases a prerequisite to the invocation of international mechanisms. Only in default of these mechanisms can international mechanisms be invoked. In light of the fact that many states and other actors continue to express some level of disdain for the Goldstone process and the mission’s report, states should become aware of their obligations in international law, not to recognize the present-day culture of impunity and continuing violations of international law by Israel and the Palestinian side, each to its own extent, but to take positive measures to ensure the cessation of violations and to demand and facilitate the parties’ compliance with international law.
——————-
Endnotes:
[1] See, e.g., Bassiouni, Cherif, “Searching for peace and achieving justice: The need for accountability”, Law and Contemporary Problems, Vol 59, No 4, 1996; Bassiouni, Cherif. “Appraising UN Justice-Related Fact-Finding Missions”, Journal of Law and Policy, Vol 5, No 35, 2001.
[2] Aldana-Pindell, Raquel. “An emerging universality of justiciable victims rights in the criminal process to curtail impunity for state-sponsored crimes”, Human Rights Quarterly, Vol 26, 2004.
[3] See, Kritz, Neil. “Coming to terms with atrocities: A review of accountability mechanisms for mass violations of human rights”, Law and Contemporary Problems, Vol 59, No 4, 1996.
[4] Goldstone report, para. 1954.
[5] See, on the question of apartheid and colonialism, Human Sciences Research Council, “Occupation, Colonialism, Apartheid?: A re-assessment of Israel’s practices in the occupied Palestinian territories under international law”, June 2009, available at: http://www.hsrc.ac.za/Document-3227.phtml
[6] See, e.g., For further details on the Or Commission of Inquiry, see Adalah’s publication at: http://www.adalah.org/eng/commission.php; B’Tselem update 11.11.09, Military investigations of harm to civilians in Operation Cast Lead are insufficient, available at: http://www.btselem.org/English/Gaza_Strip/20091111_IMP_Investigations_of_Cast_Lead_Operation.asp; Goldstone report, para. 1961.
** This post is based on a presentation by the author given at an OHCHR event on the Goldstone report and Accountability that took place at the UNDP offices in Jerusalem on 14 December 2009.
Filed under: Human Rights, International Humanitarian Law, International and national law, Middle East Crisis, international justice | 1 Comment »
A merry christmas to all our readers worldwide.
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So the long-anticipated Copenhagen Summit is over. The politicians and protesters have all gone home and there is a sense of anticlimax in the air. The result of the Summit is the so-called “Copenhagen Accord”, a non-binding commitments amongst countries to decrease their carbon emissions. Observers have now started asking what are the implications of this result for the future of the climate change regime and indeed the future of the planet. Read more »
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Yesterday, 21 December, Brasil’s President Lula da Silva presented a human rights action plan which includes the creation of a national truth commission. The Commission will have the purpose to elucidate the human rights violations during the military dictatorship between 1964 and 1985. Since the end of the dictatorship in 1985, no systematic investigation of the grave human rights violations that haunted the country, including torture and forced disappearences, has been carried out. According to the national Human Rights Secretary, the Commission will, among other things, conduct interviews with the victims and their relatives to collect systematic information on the violations, which will be used to create a public data base.
The Commission will not act as a commission of inquiry nor will it act as an ad-hoc criminal tribunal. Currently, an act of 1979 grants amnesty to the perpetrators of torture and similar crimes during the dictatorship. A legal dispute on this act is currently pending at the Brasilian Supreme Court. El País has the full story.
Filed under: Public International Law | 1 Comment »
The Goettingen Journal of International Law (GoJIL) just released its third issue with which the Journal completes the first Volume. The contents is the following:
Articles
Marco Benatar: The Use of Cyber Force: Need for Legal Justification?
Marie-José Domestici-Met: Humanitarian Assistance Looking for a Legal Regime Allowing its Delivery to Those in Need Under any Circumstances
Jiaxiang Hu: Market Access or Market Restrictions – Analysis on the Regulations of PRC on Administration of Foreign-funded Banks
Nele Matz-Lück: Framework Conventions as a Regulatory Tool
Current Developments in International Law
Cornelia Janik, Thomas Kleinlein: When Soering Went to Iraq…: Problems of Jurisdiction, Extraterritorial Effect and Norm Conflicts in Light of the European Court of Human Rights’ Al-Saadoon Case
Marko Milanovic: The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity
Book Reviews
Kenneth Anderson: Does Anyone Really Want a Parliament of Man?
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Michael Lewis, Eric Jensen, Geoffrey Corn, Victor Hansen, Richard Jackson and James Schoettler , The War on Terror and the Laws of War: A Military Perspective (Oxford University Press, 2009) ISBN13: 978-0-19-538921-0ISBN10: 0-19-538921-2
This book is written by six American legal scholars with experience as members of the legal profession in the US armed forces. The foreword by Major General Charles J. Dunlap, Jr. (Deputy Judge Advocate General of the US Air Force), is followed in turn by seven chapters, dealing respectively with the law applicable to the war on terror, targeting of persons and property, detention of combatants, interrogation and treatment of detainees, trial and punishment for battlefield misconduct, command responsibility and responsibility, and last but not least battlefield perspectives on the laws of war. Each chapter addresses a specific operational issue arising in the framework of the Global War on Terror (GWOT) and illustrates how resolution of that issue serves a commitment to preserving the balance between authority and obligation under the laws of war. The book is based on the premise that because the United States has characterized the struggle against terror as an armed conflict – characterization reflected in the decisions of all three branches of the US government – there is no doubt that the US has and will continue to invoke the law of war as a source of authority for military operations against terrorist threats.
The authors’ blend of scholarly perspective with military experience makes the discussion of intricate legal issues relating to the declared ‘war on terror’ more captivating. As Major General Dunlap submits in his foreword, the mindset the authors bring in their discussion is an essential component in developing a genuine appreciation for the purpose and objectives of the law, which in turn is essential to critically analyzing the role of this law in the emerging realities of warfare. Dunlop draws attention to the need of understanding how the law of war is implemented by warfighters in today’s battles against terrorists and extremists.
As Geoffrey Corn notes in the introduction, after 11 September military legal advisers confronted a genuine anomaly: military operations designated by the nation as ‘war’ or ‘armed conflict’ that failed to fit neatly within the accepted common article 2 or 3 law-triggering paradigm of the 1949 Geneva Conventions (GCs). A further complication was the introduction by the Executive branch of the new ‘status’ of ‘unlawful enemy combatants’. Corn finishes his discussion of what law applies to the war on terror in chapter 1 with the proposition that the answer needs to be derived from a new perspective, that is the perspective of the warrior.
The second chapter, focusing on targeting of persons and property, is written by Eric. T. Jensen. It starts with the statement that it is a simple reality of warfare that in order to defeat an enemy it is necessary to attack and destroy the enemy’s combat capability. Jensen concludes that though the transnational armed conflict against terrorists is neither a traditional armed conflict, nor a non-international armed conflict, the law of armed conflict (LOAC) still applies to military operations supporting this fight.
Chapter 3 on detention of combatants and the global war on terror is written by James A. Schoettler, Jr. Schoettler notes that the important distinction between individuals who fall within the categories of combatants who, upon capture would be treated as prisoners of war (POWs) and those who engage in combat activities but are not entitled to be treated as POWs (‘unlawful combatants’ or ‘unprivileged belligerents’) is that unprivileged belligerents do not enjoy combatant immunity, and can be prosecuted by the capturing State under its domestic law for any belligerent acts they have committed. This chapter provides an interesting analysis of orders issued by the Executive branch and US case law on the issue of detention. Schoettler suggests that according to all detainees, to the maximum extent feasible, the standards of treatment accorded to prisoners of war would seem consistent with the law of war theory, upon which military detention is based and which posits that detention (at least absent prosecution) is no punishment.
Chapter 4 on interrogation and treatment of detainees in the global war on terror is written by Dick Jackson. As Jackson points out, interrogation is at the core of the legal debate regarding the al Qaeda and Taliban members detained by the US government. Deficiencies in military interrogation and treatment of detainees by the US were cause for great controversy. However, Jackson concludes that the US Army is left with the standards it began the War on Terror with – the minimum humane treatment standards of Common Article 3 as a legal baseline in all conflicts, supplemented, as a matter of policy, with protections afforded by GC III and GC IV, to treat all those that are no longer taking an active part in hostilities decently and humanely.
Chapter 5 on trial and punishment for battlefield misconduct is co-written by Geoffrey Corn and Eric T. Jensen. Numerous questions relating to trial and punishment of acts of terrorism arose after Military Order Number 1 issued by President Bush. Corn and Jensen conclude that terrorists detained in the fight against transnational terrorism are legitimately subject to military commissions. Yet, they further submit that under the US Military Commissions Act (MCA) terrorists are prosecuted for crimes that are not traditional international law crimes, though they are domestic crimes.
Chapter 6 on command responsibility and accountability is written by Victor M. Hansen. As he points out, the doctrine of command responsibility is the cornerstone of LOAC. It is derived from the expectation that the LOAC is only as effective as the military commanders entrusted with the responsibility to ensure that their subordinates understand and respect this law. According to Hansen, while it may be tempting to seek to condemn a terrorist leader as an ‘irresponsible’ commander, the doctrine is simply inapposite to this context. In contrast, he concludes that the unilateral application of the command responsibility doctrine to a force called upon to fight against a transnational terrorist organization is both a logical and necessary extension of this doctrine into an uncertain realm.
The last chapter on battlefield perspectives on the laws of war is written by Michael W. Lewis. As Lewis notes, any genuine understanding of the role of the law of war in the struggle against transnational terrorism begins with an appreciation of the unique context in which the law of war operates. He draws attention to the fact that at the tactical ‘point of execution’ level, military personnel risk their lives and take the lives of others, based upon instantaneous decisions that seldom allow for reflection or consideration, let alone the benefit of timely legal advice. Therefore, the process of translating the complex legal mandates from the strategic level into practical parameters is critical.
The issues discussed in the book have gained greater urgency and have highlighted the need to tackle them in a comprehensive way. As Corn underlines, it has often proven elusive to apply traditional legal rules in a non-conventional conflict. One of the greatest values of the book, as pointed out by Dunlap, lies in that it provides a source of information for the readers without a military background about the views of those tasked with dealing with the threat of terrorism. Indeed, the War on Terror and the Laws of War provides clarity by offering a practical exposition of the challenges facing military officers on the battlefield.
It is a pity though that while the book has an introduction, it does not have a conclusion. Whether that was the authors implied response that the war on terrorism is something that will keep the military busy for a while will remain a puzzling question. The book can serve a wide audience interested in understanding how the laws of war apply in the framework of the war on terrorism. That would include at a minimum scholars of international humanitarian law, military lawyers, other legal practitioners, and students.
You can buy the book here.
Gentian Zyberi
Utrecht, 18 December 2009
Filed under: Book review, International Humanitarian Law, International terrorism, Relevant Literature | 1 Comment »
As we come to the close of 2009, David Pannick’s list of 2009’s unfortunate but amusing court proceedings is worth a read in today’s Times. It includes reference to Silvio Berlusconi’s ongoing fight in the Italian courts as well as wise words from Justice Scalia.
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Our own Gentian Zyberi’s recent paper, ‘Self-Determination through the Lens of the International Court of Justice’, has now been published in the Netherlands International Law Review (2009) No. 56 pp. 429-453. Full abstract:
This article focuses on the role and contribution of the International Court of Justice to developing and interpreting the right of peoples to self-determination. The most relevant cases decided by the Court so far, and briefly noted here, broadly fall within the decolonization context, save for the ongoing advisory proceedings in the Kosovo case. This simple taxonomy is based on a wide separation of the Court’s case law in two main categories, namely decolonization and secession. The analysis of the place of secession under current international law serves to put into perspective the inquiry into whether any of the main principles applicable to the decolonization process, as elaborated by the Court, continue to be valid in the case of secession of a part of a state from an existing independent state. The article ends with a number of concluding remarks on the contribution of the Court to clarifying the right of peoples to self-determination as part of the corpus of international human rights law.
Check it out (although subscription is required).
Filed under: ICJ, International Court of Justice, International Courts, Public International Law, Publications, Scholarship, literature | Leave a Comment »
Barack Obama arrived in Oslo yesterday to receive the Nobel Peace Prize. The granting of this prestigious prize to the US president was controversial for a number of reasons. Some complained that it was too soon for the prize to be awarded to Obama as he had only just taken up office and he was yet to achieve any of his foreign policy aspirations. Others criticised the granting of a peace prize to the Commander in Chief of the worlds only military superpower which is currently engaged in two overseas conflicts. This latter point was directly addressed by Obama in his acceptance speech in Oslo yesterday. The speech includes many moments of rhetorical flourish, typical of Obama, culminating in a call for “faith in human progress [to] always be the North Star that guides us on our journey.” However, there are also several points in the speech which are of particular interest for international lawyers.
Filed under: Public International Law, United Nations | 3 Comments »
The Assembly of States Parties to the Rome Statute concluded its eighth session on 26 November 2009. Among the more important results of the Assembly was the decision that the much anticipated review conference is to be held in Kampala, Uganda between 31 May and 11 June 2010. The review conference will be the first such conference. Its convening is provided for in Art. 123(1) of the Rome Statute. According to this provision the UN Secretary General is to call together the conference 7 years after the entry into force of the Rome Statute, which occurred on 1 July 2002, and the main task of the conference is to consider any possible amendments to the Rome Statute. The conference is to be open to those participating in the Assembly of States Parties, which, pursuant to Art. 112 Rome Statute, consists of representatives of each State Party to the Statute and other States which have signed the Statute (or the Final Act) and which have been provided with an observer status for this purpose. The review conference will be able to adopt amendments to the Statute itself without having to wait for the next meeting of the Assembly of States Parties (cf. Arts. 123(3) and 121(3)-(7) Rome Statute).
According to the Assembly of States Parties the conference should consider the following issues:
The Assembly provided a draft provisional agenda for the conference. Especially the definition of the aggression and the conditions for the exercise of the ICC’s jurisdiction in this regard will be an interesting subject. For some of the preparatory work in this regard see this overview of documents.
Moreover, the Assembly concluded that a working group be established for the purpose of considering the remaining proposals for amendments as from its ninth session in 2010. The Assembly also decided the establishment of an independent oversight mechanism, pursuant to Art. 112(4) Rome Statute, with an initial mandate to provide an investigative capacity for the ICC to address alleged misconduct of elected officials and staff. The remit of the mechanism may be widened by the Assembly during its ninth session. Interestingly, the Committee on Budget and Finance in its report on the work of its thirteenth session suggested that one should rely on the assistance of the UN Office of Internal Oversight, as it would ‘allow the Court to benefit from the experience of that office and progressively build-up its own capacity’. The goal would thus still be the establishment of an autonomous oversight mechanism. Yet the initial connection with the oversight organ of the UN would not be recommendable as it would put into question the fundamental independence of the ICC from the UN (cf. Art. 2 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations).
The Assembly also decided that the ICC may subsidize family visits for indigent detainees up to an amount to be determined by the Assembly in the context of the approval of the programme budget. In the long run, however, a voluntary system of funding family visits is envisaged.
The Assembly decided to establish a liaison office at the headquarters of the African Union in Addis Ababa. This would be the second such liaison office after the office at the UN headquarters in New York. The ICC currently upholds 4 field offices in the Democratic Republic of Congo, Chad, Uganda and the Central Africa Republic.
The Assembly approved a budget of approximately € 103,600,000 for 2010 (an increase of 2.3 % from € 101,229,900 for 2009) and a staffing level of 768 (744 for 2009).
The ninth session of the Assembly will presumably take place in early December 2010.
Filed under: ICC, International Criminal Law | 4 Comments »
