The following is a guest-post by David Glazier, Associate Professor of Law at Loyola Law School in Los Angeles. Our thanks to him for providing it. As Kevin noted on Wednesday, the Department of Defense approved military commission charges against Abd Al Rahim Hussayn Muhammad Al Nashiri, alleged USS Cole bombing mastermind, clearing the way for his arraignment and subsequent trial. ...
Luke Peterson passed along a tip about this interesting declaration attached to the U.S.-Rwanda Bilateral Investment Treaty: Articles 3 through 10 and other provisions that qualify or create exceptions to these Articles are self-executing. With the exception of these Articles, the Treaty is not self-executing. None of the provisions in this Treaty confers a private right of action. Articles 3...
Moreno-Ocampo has always had the reputation of being more politically savvy than legally savvy. Frankly, he seems completely politically tone-deaf to me. Witness his recent comments on the implications of a possible UN General Assembly decision to give Palestine "observer state" status: A few blocks away from the UN this week, the man at the centre of the controversy said...
“I don't see it as a debate. It is common sense that in situations of what we have been experiencing, strategically we should be sequencing these issues, prioritizing and looking at what is best in the short-term and what is best in the long-term. It is very legitimate in any process that we must create an enabling environment that can guarantee justice can be done...If you start asking for justice even before you create that enabling environment, it is not even a debate, it is foolery...We must sequence them.”I subsequently challenged him on the effectiveness of his argument to which he responded that Argentina was the ideal example of a state which had successfully sequenced peace and justice. The “sequencing argument” has become a popular feature in the rigid and harshly dichotomous “peace versus justice” debate. The argument is attractive because it represents an attempt to find ground between the polarizing views that there is “no peace without justice” and “there is no justice without peace.” While the sequencing argument is closer to the latter in suggesting that justice may have to follow peace it largely acknowledges that justice is necessary in the long term. Unlike scholars of a realist bent who are sceptical of any attempt to achieve justice in conflict and post-conflict contexts, the point is not to reject accountability and reconciliation but to create an environment in which pursuing justice enforces rather than destabilizes peace. The sequencing argument is rather nuanced and intuitive. It weaves together the two major strands of thinking on peace: positive peace and negative peace. Negative peace, the cessation of large-scale, direct violence, is required before justice can be pursued. If justice is sought prior to the “silencing of the guns”, then it risks prolonging the conflict. However, once a negative peace is secured, justice should be pursued. Only by identifying and rectifying past wrongs – including human rights abuses – can a more encompassing, positive peace be achieved. In short, the sequencing argument suggests a trajectory of:
violent conflict –> negative peace –> justice and accountability –> positive peaceProponents of the sequencing argument have, however, not thoroughly scrutinized how their theory translates into practice. On the ground, the sequencing argument presumably looks a little like this: in order to achieve a cessation of violence, parties enter inclusive peace negotiations to achieve a power-sharing agreement and peaceful transition. The parties discontinue active conflict while even the most brutal and unsavoury of leaders are guaranteed amnesties as an incentive to cease violent activity. Once stability is assured and the time for accountability is ripe, those amnesties are revoked and the leaders of the conflict are brought to account, ushering in positive peace and justice.
John Bolton and Dan Blumenthal have an op-ed in tomorrow's WSJ offering a new argument against U.S. ratification of the UN Convention on the Law of the Sea. It's all about China. ...
Like many OJ readers, I am anxiously reading the newspapers on the sovereign debt crisis in the Eurozone. My international law teaching is almost entirely international economic law, so I have reasons to follow these events closely. In important ways, crises of these kinds make one feel as though our fates lie in the hands of central bankers, and the...
The United States has formally referred military-commission charges against Abd al-Rahim Al-Nashiri for his alleged involvement in a number of terrorist attacks between 2000 and 2002. Here is Bobby Chesney's helpful description of the charges: Charge 1: Using Treachery/Perfidy (10 USC 950t(17)) – the idea here is that the use of a civilian boat, civilian clothing, and so forth to...
"We are satisfied that the applicant has made out a case showing that the Amnesty Commission and the Director of Public Prosecutions have not accorded him equal treatment under the Amnesty Act. He is entitled to a declaration that their acts are inconsistent with Article 21(1) (2) of the Constitution and thus null and void. We so find. We order that the file be returned to the court, which sent it with a direction that it must cease the trial of the applicant forthwith."The importance of the Kwoyelo trial, both legally and politically, is rather obvious. Had Uganda successfully tried and convicted Kwoyelo (and they still might), it would have given the government a plank upon which to build a complementarity challenge to the ICC's jurisdiction, something the government had expressed interest in doing. However, the spectre of a successful trial also instigated fears in northern Uganda. Former senior rebel commanders explained their uneasiness of potentially becoming the Government's next targets for trial if Kwoyelo was denied amnesty. The instability incurred by revoking thousands of amnesties would be absolutely devastating to a region and people eager to move forward. Of course, the granting of an amnesty and the defeat of the government's case against Kwoyelo is equally as controversial. International human rights groups sent representatives to monitor the trial and provide assistance to government lawyers. Predictably, Human Rights Watch argued that amnesties “for crimes such as war crimes and crimes against humanity run counter to international law and practice.” In the wake of the Kwoyelo verdict, Amnesty International released a statement which declared that:
“What we are witnessing here is simply pervasive impunity for serious crimes and human rights violations...Neither Thomas Kwoyelo, nor others accused of committing war crimes should be granted amnesty.”Human rights groups and fervent human rights advocates and scholars have been engaging in what amounts to talking amnesties out of reality. They claim not only that it is morally and legally wrong to grant amnesties but ominously warn that doing so is to risk ever becoming a functioning, liberal democracy. However, that granting amnesties for crimes such as those allegedly committed by Kwoyelo “run contrary to international law and practice” is not obvious. To borrow from the decision in an Appeal's Chamber ruling at the Special Court for Sierra Leone: a duty to prosecute international crimes and a prohibition on the use of amnesties may be crystallizing, but has not yet crystalized.
Former IMF Chief Dominique Strauss-Kahn has asserted immunity under international law from the lawsuit filed by Nafissatou Diallo, the maid who is accusing him of sexually attacking her. “Mr. Strauss-Kahn enjoyed absolute immunity under customary international law not only while he was head of the IMF, but also for the period of time after he had resigned from his post and...
We'd like to officially welcome the ICRC's new blog, Intercross, which can be found here at the ICRC website. It looks terrific and should be a great source for many different communities. As the saying goes ...
