Posts Tagged International Law

The Wasat & My Guest Post On The African Union and Terrorism

I have been meaning to make the promotion of a recently created blog on North Africa and the Middle East, al-Wasat, edited by my good Twitter friends Andrew Lebovich (@tweetsintheME) and Aaron Zelin (@azelin) for a while, and I can think of no better occasion (although, at the risk of appearing slightly self-interested, I must admit) then now that they have published my first guest post there on the African Union’s recent efforts to put together a comprehensive counterterrorism regional treaty and what it could mean for the international law of terrorism.

Regardless at the exercise of shameless self-promotion I just indulged in, I would like to say a few words about the blog al-Wasat, regardless of the fact that they have been crazy enough (I mean, kind enough) to publish one of my posts. al-Wasat, which means ‘The Center’ in Arabic, is a blog recently created by two friends and experts in the field of counterterrorism and North Africa (Andrew) and radical Islam (Aaron). They have managed to gather other experts (PhD students and others) to contribute to their blog which covers the news coming out of these regions of the world, offering pertinent and refreshing analysis of what happens there.

This kind of blog is interesting to follow, even for lawyers. We have to remind ourselves – well, I sometimes do anyway (French law students are the worse on that matter) – that we do not operate in a vacuum, and reading these blogs written by experts give us the material necessary to reflect on what we are trying to achieve and how to apply our knowledge to reality. Because, after all, that is what law is really about.

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Reality Check – Sovereignty Got A Lot More Complex with Globalization

Those pesky American neo-cons have done it again!

As Peter Spiro writes over at Opinio Juris, the oh-so-very-conservative think tank the Heritage Foundation has published a new “report,” or rather “pamphlet” – to use the term adequately used by Peter Spiro – on American Sovereignty and why it is important.

The Report is presented on what appears to be (I have to admit I am not a regular visitor) the in-house Heritage Foundation blog, ‘The Foundry’. The author of the post, Anna Leutheuser, presents the purpose of the report: to raise the alarm about American sovereignty “under attack”:

As Groves illustrates, our sovereignty is still under attack today, though through less overt means: “International organizations and courts seek to reshape the international system.  Nations are to give up their sovereignty and be governed by a ‘global consensus.’  Independent, sovereign nations will be replaced by ‘Transnational’ organizations that reject national sovereignty.”  This trend is evident everywhere, and will not be halted without a renewed attachment to the idea of American sovereignty.

Oh, dear. And check out the cover of the report of Uncle Sam tied down like Gulliver by the Lilliputians (I’m guessing that’s the evil foreigners trying to force treaties down the United States’ unwilling throat…):

 

Why Does Sovereignty Matter to America? Report Cover

Read the rest of this entry »

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An Intolerable Affront

Sudanese President Omar Al-Bashir in Nairobi today, photo by AFP

Cate and I have been monitoring this since the news that Sudanese President Omar Al-Bashir would be visiting Kenya today broke yesterday evening (Central European Time), and have been tweeting about it since (follow us @cminall and @xrauscher_, respectively), but I was holding out to see what was going to happen today, and notably what the Court’s reaction would be, before posting. Now that the day is coming to an end, and the Court has reacted, I have no more reasons to wait.

As you may or you may not yet know, Sudanese President Al-Bashir made a surprise visit to Kenya today as Kenya celebrated the signing into law of its new Constitution, and was able to enter and leave the country untouched. Omar Al-Bashir is indicted by the International Criminal Court for war crimes and crimes against humanity since March 2009, and for genocide – the crime of crimes – since last July.

By inviting him into the country and not arresting him, Kenya failed to meet its international obligations, and this on two different planes:

First of all, the situation in Sudan was referred to the International Criminal Court by the United Nations Security Council. In its Resolution 1593 referring the situation in Sudan to the ICC, the Security Council, at §2,

recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

It could be very well interpreted that Kenya is in breach with its obligations as a UN member. However, some could argue that the use of the word “urge”, preceded with the “recognizing that States not party to the Rome Statute have no obligation…” (thank you John Bolton for that one), makes it non-binding. Read the rest of this entry »

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A First Blog Review

These days, I’m a little overwhelmed with my work at the CICC and my LLM dissertation that is due in two weeks. So instead of giving you a full-fledged entry tonight, I thought of doing a little blog review. I’ve been reading a lot of interesting stuff lately, and for lack of reflecting on an entire issue, I thought I’d share and comment a little on a few posts out there in the blogosphere.

First of all, Alex Lobov’s post at Zeitgeist Politics is an interesting read and sums-up well Sakineh Mohammadi Ashtiani’s ordeal in Iran, sentenced to death by stoning, and culminates with a plea against the death penalty in the United States and in the world. Here is an excerpt:

Sakineh Mohammadi Ashtiani is a young Iranian woman who was sentenced to death by stoning in Iran, a sentence that sparked an international outcry over  a practice that many see as archaic and barbaric. Since the initial sentence was handed down, the twists and turns in events since then have moved rapidly.

The initial sentence was handed down by a court in Tabriz in May 2006, she was charged with committing adultery (despite the alleged incident occurring after the death of her husband) and was sentenced to 99 lashes, which was carried out. Then, in September she was convicted by another court, the details of which are still rather shaky, of adultery and of being an accomplice in the murder of her husband. But wait, is she being put to death for adultery? Or for murder? Or for both?

I’ve been thinking of using this story to write a post about international law and the death penalty, but I have not had time as of yet. Stay tuned: maybe I’ll find time this weekend.

Secondly, a very interesting story by Colum Lynch in his Foreign Policy Turtle Bay blog about the Tea Party in the United States and their rather “hostile” (something of an understatement) attitude towards the United Nations. Going far beyond the obvious, Colum Lynch tracks back the roots of the American heartland’s hostility to the UN and multilateralism in general, ever since the days of Founding Father George Washington. Read the rest of this entry »

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Another Victory for NGOs in the International Legal System: The Cluster Bomb Ban

Good news this weekend: the Convention on Cluster Munitions, signed by 107 States and ratified by 38 as of today, has entered into force today. It is now binding international law. But it is also a great victory for non-governmental organizations (NGOs), and the confirmation of a recent trend: the influential role civil society is starting to play in the elaboration of international law.

First of all, a few words on the Convention on Cluster Munitions. It was negotiated in Dublin in May 2008 following a diplomatic conference on Cluster Munitions, attended then by 127 States, and signed in December of the same year in Oslo. The purpose of the Convention is to ban the use of cluster bombs, a specific type of anti-personnel weapon that disperse large numbers of either explosive submunitions or bomblets over an entire area (see the ICRC Cluster Munition FAQ or the New York Times Cluster Munition Page for more information on cluster bombs), the military purpose being to “contaminate” the area and make it unusable by the enemy forces.

As you probably can imagine, it can raise depending on its use some major issues with regard to international humanitarian law, as it seems almost fundamentally incompatible with the principle of distinction between combatant (essentially military) and non-combatant  (civilian) targets. It is hard to imagine it being used in an exclusively military zone that will never be used again by civilians, especially considering that these cluster bombs can still go off 30-40 years after being dropped, killing or mutilating civilians by accident. According to the Cluster Munition Coalition, one third of all recorded cluster munitions casualties are children, and 60% of the casualties are injured while undertaking their normal activities. These bombs are still in use by a certain number of conflicts in the world today, including the United States in Iraq in 2003, Israel in Lebanon in 2006, as well as by both sides in the Russian-Georgian conflict of 2008. Read the rest of this entry »

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Why Does the Kosovo Opinion Not Grant Kosovo Its Independence?

Last week, the International Court of Justice delivered its advisory opinion (PDF file) on the legality of Kosovo’s declaration of independence. It considered that Kosovo’s declaration of independence was not illegal but did not go as far as officially recognizing Kosovo’s independence in a positive manner. This caused a lot of confusion for many people – including the mainstream media – trying to understand what the ICJ said. This post attempts to clarify what the Court said, why it said what it said, and what the consequences are.

As Justine has noted in her post a few days ago, paragraph 56 is particularly interesting in its display of how the Court defined the question (it goes without saying that the emphasis is mine):

56. The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession”, and whether there was a rule of international law which conferred a positive entitlement on any of the organs named. By contrast, the General Assembly has asked whether the declaration of independence was “in accordance with” international law. The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence. If the Court concludes that it did, then it must answer the question put by saying that the declaration of independence was not in accordance with international law. It follows that the task which the Court is called upon to perform is to determine whether or not the declaration of independence was adopted in violation of international law. The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, afortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act ⎯ such as a unilateral declaration of independence ⎯ not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The Court has been asked for an opinion on the first point, not the second.

It must be noted that for many international lawyers, this strict interpretation of the question that was asked to the Court by the General Assembly of the United Nations – “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” – in Resolution 63/3 on 8 October 2008 is particularly frustrating, as we all (more or less) secretly expected a much bigger bombshell to come out of the Peace Palace in The Hague (no pun intended). Read the rest of this entry »

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Europe, Torture, and Counter-Terrorism

A new report is currently making headlines in Europe concerning European intelligence services using information obtained through torture to combat terrorism.

Yesterday, Human Rights Watch published a report that criticized British, French and German intelligence agencies for using information obtained by their counterparts in countries that practice torture, such as Algeria, Jordan, or the United Arab Emirates. I only have had time to skim through the report, available here, but it looks like an interesting report recalling current international law on torture, and raising the legal, practical and moral questions of governments using intelligence obtained through torture in the fight against terrorism, with interesting bits on the “ticking-bomb scenario” and the “no-questions asked” approach adopted by European intelligence agencies.

This raises several issues for the European countries singled out. First of all, politically speaking, the United States’ have been heavily criticized for its policy of extraordinary renditions and transfers of prisoners towards countries that practice torture in order to obtain information, not to mention whatever happens in Guantanamo Bay and Bagram Air Base. That European countries, so far having been spared these kind of accusations, are now found to be also guilty of profiting from torture-obtained intelligence is more than just embarrassing.

From a legal point of view, it raises the issue of the respect of these countries of their obligations under the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CoT). Article 15 of that Convention in particular states that:

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

The HRW Report does recognize that the CoT is silent on the use of torture evidence as the basis for decisions by the executive branch and its agencies (p. 12). But its argues – in my opinion, quite accurately – that the narrow interpretation of article 15 that allows for intelligence services and law enforcement authorities to “use foreign torture information for operational purposes (…) misrepresents the letter and the spirit of the Convention Against Torture,” pointing out that it goes against the ergo omnes obligations concerning the eradication of torture which is the main purpose of the CoT.

And to keep things interesting, recently elected British Prime Minister David Cameron has just announced that he agreed to the creation of an inquiry on the alleged complicity of British agents in the torture of suspected terrorists.

Torture and the fight against terrorism is a delicate subject. How far are our societies ready to go to guarantee our security? Or, reversely, how much are we ready to sacrifice in the name of our principles? There is no easy answer, but it looks as if the HRW Report is an interesting and well-researched contribution to the debate concerning the methods used in combating international terrorism. The result of the British inquiry will be interesting to follow, and one could hope that France and Germany will both follow suit.

Update: here is Jurist.org’s entry on the HRW Report and the UK’s inquiry, which as always sums up very well the story.

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New Law Journal: The Harvard National Security Journal

Professor Kenneth Anderson over at Opinio Juris has posted today an entry concerning the recent publishing of an essay on targeted killings. Being interested in targeted killings, and having written an essay last month on the legal issues this policy raises, I went on to read it, and discovered in the process that Harvard University had apparently created a new law journal covering National Security issues, the Harvard National Security Journal.

I took a quick look at it, and found it very interesting. It defines itself as “a student-edited online journal dedicated to improving scholarship and discourse in the field of national security.” It’s presented under the form of a blog, and a rather good-looking one at that. I wish my blog looked like that.

Specializing in international security issues, I’ll definitely keep an eye out for this new journal, and am already looking forward to the next issue. I would recommend anyone interested in national and international security issues to take a look at it!

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