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LJIL Symposium: A Response to Professor Gregor Noll and Professor Roger O’Keefe

by Maarten Den Heijer

[Maarten den Heijer is assistant professor of international law at the Amsterdam Center of International Law and member of the editorial board of the European Human Rights Cases (EHRC) and contributor to the Dutch Journal for Human Rights]

Praise is due to the collaboration between Leiden Journal of International Law and Opinio Juris in providing this platform for reflection and discussion – in this instance on my paper on diplomatic asylum and Julian Assange. I much enjoyed reading the responses of Gregor Noll and Roger O’Keefe and am greatly appreciative for their genuine and refreshing engagement with my arguments. I take the liberty to just briefly reflect on what I consider their most provocative points.

Although threading on different paths of reasoning, both Gregor and Roger caution against presenting the 1950 Asylum Case as still reflecting the international law on diplomatic asylum as it stands today. The primacy accorded to territorial sovereignty by the ICJ judges at that time and their framing of a grant of asylum to a fugitive from the authorities of the receiving state as necessarily constituting an intervention in the domestic affairs of that state, so they argue, beg further reflection at the least.

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LJIL Symposium: Roger O’Keefe’s comment on Maarten Den Heijer’s “Diplomatic Asylum and the Assange Case”

by Roger O'Keefe

[Dr. Roger O’Keefe is a University Senior Lecturer at the University of Cambridge and the Deputy Director of the Lauterpacht Centre for International Law]

Maarten Den Heijer’s excellent and enjoyable article ‘Diplomatic Asylum and the Assange Case’ provides a welcome account of an area of international law in which vagueness and uncertainty have too long been the order of the day. On its own terms, which accept as read the International Court of Justice’s statements in the Asylum case, it is coherent and by no means unpersuasive. Whatever one might say as to the merely subsidiary role of international judicial decisions in the determination of rules of international law, it takes a certain doctrinaire obduracy or plain arrogance to dismiss out of hand what the ICJ has declared. All the same, the Court is not beyond unreflective restatement of the received wisdom, and it is not impertinent to engage in the heuristic exercise of proceeding from first principles on any point pronounced upon by the Court. One point that might profit from just such an exercise is the question of the lawfulness of the grant of diplomatic asylum by a sending state, by which is meant that state’s grant of harbour within its inviolable diplomatic premises to a fugitive from the competent authorities of the receiving state.

The starting point of any such analysis from first principles must be the Lotus presumption. A state is at liberty to do what it is not prohibited by a positive rule of international law from doing. In this light, there is no need to identify a positive right on the part of the sending state to accord diplomatic asylum. Rather, one needs to point to a positive prohibition on the practice. The two most likely sources of any such prohibition are, first, diplomatic law and, secondly, the prohibition on intervention in the affairs of another state. But it is not self-evident that either prohibits a sending state from according diplomatic asylum, at least as a general rule.

It is difficult to identify in diplomatic law a positive prohibition on the use by the sending state of the inviolability of its diplomatic premises to prevent the authorities of the receiving state from securing custody of a wanted individual. The VCDR contains no specific prohibition on the practice. Nor do the inconsistency of state practice and the ambivalence of its accompanying opinio juris suggest any such rule. Any prohibition on the practice of diplomatic asylum, insofar as it derives from diplomatic law, must be deduced from other rules of this body of international law.

The rule regularly highlighted in this regard, as it is by Maarten [at 413-4], is article 41(3) VCDR, which provides in relevant part that the premises of the mission ‘must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law’. In this regard, pace Maarten [at 413], ‘incompatible with’ plainly means ‘inconsistent with’ or, synonymously, ‘contrary to’: incompatibility is not a question simply of whether the impugned conduct ‘falls outside the scope of ordinary diplomatic functions’, whatever ‘ordinary’ may mean. In turn, the functions of a diplomatic mission within the meaning of article 41(3) VCDR are the subject of article 3(1) VCDR, which states that these functions ‘consist inter alia in’ the activities specified in subparagraphs (a) to (e). As indicated by the words ‘inter alia’, the list given in subparagraphs (a) to (e) is not exhaustive, and it is not utterly inconceivable that one of the functions of a diplomatic mission may, in appropriate cases, be the furnishing of diplomatic asylum. But be that as it may. More to the point is that the only one of the five functions of a diplomatic mission specified in article 3(1) with which the grant of diplomatic asylum could be considered incompatible is that mentioned in article 3(1)(e), namely ‘promoting friendly relations between the sending State and the receiving State’. But, contrary to what Maarten considers arguable [at 413-4], it is evident from the consistent practice of states that not every act on the part of a foreign diplomatic mission of which the receiving state disapproves is to be characterised as incompatible with the promotion of friendly relations between sending and receiving states. Something positively inimical to the interests of the receiving state is seemingly required. To this end, it is of course perfectly plausible that harbouring a fugitive from the criminal justice system or other authorities of the receiving state is to be considered an inimical act. Yet it is hard to admit that this is so unless such harbouring is itself contrary to international law. In other words, it is not easy to accept that an act in itself internationally lawful is incompatible with the promotion of friendly relations between the sending and receiving states.

This brings us to the prohibition on a state’s intervention or interference in the internal or external affairs of another state. (more…)

LJIL Symposium: A Comment on Maarten Den Heijer’s “Diplomatic Asylum and the Assange Case”

by Gregor Noll

[Gregor Noll is a Professor of International Law at the Faculty of Law at Lund University in Sweden, and is an expert in International, Theory of International, and Refugee and Migration Law.]

With admirable calm and clarity, Maarten den Heijer’s text considers the relationship between territorial sovereignty and diplomatic inviolability played out in diplomatic asylum. Describing both poles as ‘legal trump cards’ in their own right, he argues the insolubility of their conflict in law. He writes ‘that the status quo, although not guaranteeing a uniform of “just” practice of diplomatic asylum, provides a befitting equilibrium between the right of the receiving and sending states’. This equilibrium, befitting or otherwise, ‘puts incentives into place for avoiding and resolving disputes by diplomatic means’. As it were, the international law of diplomatic asylum is incapable to offer more at this historical stage.

I greatly appreciate den Heijer’s ability to keep that conflict alive throughout his eminently readable text. At large, I have no quarrel with his conclusion. Yet I feel a bit hesitant to align myself fully with it yet. This is mainly for two reasons, both related to the way he tells the story of diplomatic asylum.

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LJIL Symposium: A Response to Professor Gabby Blum and Professor Chris Kutz

by Janina Dill

[Dr. Janina Dill is a Hedley Bull Fellow at the Department of Politics and International Relations and Research Fellow in Politics at Merton College, Oxford]

I am very grateful to Gabby Blum and Chris Kutz for their thoughtful comments on my paper. We agree on the fundamental challenge: killing combatants in accordance with the principle of distinction under International Humanitarian Law (IHL) is morally problematic. In my paper I engage the preferred remedy of a growing number of philosophers, which is to distinguish between individuals who are liable to being killed and those who are not. I show why it is impossible for IHL to regulate warfare accordingly. Nonetheless, I accept such an individual rights-based approach to justifying killing as morally appropriate in war. Professor Blum disagrees on the grounds that “killing in battle is not designed to be an execution”. That is, of course, true. Acts in war are an appropriate means to mete out neither moral nor legal punishment. But can we therefore dismiss as irrelevant the moral status of the individuals whose deliberate killing IHL sanctions?

The impetus behind Blum’s own proposal is the conviction that combatants’ lives are no less valuable than others’. From this acceptance that all human life is of prima facie equal value generally springs the notion that individuals have a right to their own life that they can forfeit only through their own conduct. Blum holds that in war posing a threat is enough to be subject to the threatened combatant’s right to (presumably lethal) self-defense. It has to be an actual, immediate threat, not the kind of presumed potential threat that IHL is satisfied with, but it “does not matter if someone threatening is also morally guilty, because we have a right to defend ourselves even against the morally-innocent attacker,” or so Blum argues. I do not have the space to problematize the terms innocent and guilty here, but even if the would-be defender had no involvement in bringing about the situation in which he is threatened, his right to use lethal force against a likewise completely innocent attacker would at least be questionable.

Crucially, this innocent threat/innocent defender scenario is rarely encountered in war. What if the would-be defender was guilty himself of posing a threat? The likeliest case in war is that the combatant supposedly exercising self-defense at the same time poses a threat to his attacker. Normally, in this case we decide who actually has a right to self-defense by making a judgement about the difference in moral status. That the victim of an assault uses force to fight back does not give her attacker a moral right to defend himself. If we refuse to take moral status into account and insist on the symmetry between combatants on both sides, such cases of “mutual self-defense” reduce the principle to absurdity.

I do not argue that we should change IL either to reflect the liability approach or to challenge the symmetry between belligerents. Moreover, I wholeheartedly agree with Blum that it would be legally and morally preferable if IHL allowed the killing of fewer combatants and demanded that those who can be are spared. While such proposals have met with criticism by military practitioners, they certainly raise fewer concerns of practicability than distinction according to individual liability. Yet, they do not solve the problem this paper grapples with: the fact that IHL does not and, I argue, cannot vouchsafe the protection of individual rights in war.

In his considered engagement with my paper Professor Kutz raises two questions that, in the kindest possible way, query my grasp on reality. (more…)

LJIL Symposium: A Comment on Dr. Janina Dill’s “Should International Law Ensure the Moral Acceptability of War?”

by Christopher L. Kutz

[Christopher L. Kutz is a Professor of Law at University of California, Berkeley, and is the Director of the Kadish Center for Morality, Law and Public Affairs]

Janina Dill has written a smart and provocative paper, providing a powerful argument against what one might call “naive moralism” in the ethics of war.  In this, she is responding to a body of recent and influential work, of which American philosopher Jeff McMahan’s writing forms the core, which has offered an individual-centered moral analysis of the rules of war, meant to supplant the state-centered view of classical Just War Theory (JWT).  Against some of the natural conclusions one might draw from a moralized theory, Dill argues that the essentially collective nature of the ethics of war should be preserved, on epistemic grounds.  In particular, the collective liability of combatants, and immunity of civilians, is best explained by the difficulty of refining a moral analysis in many plausible cases of conflict.

According to classical JWT, the ius ad bellum and the ius in bello are strictly separated, in the sense that the legality or legitimacy of the war as a whole rides independently of the liability of the individual participants in the war.  On this view, whether or not a belligerent state (and its leaders) are fighting a legal or illegal war, soldiers of those states are liable to be targeted just in virtue of their membership in the armed forces; by contrast, civilian non-combatants are immune from deliberate targeting whatever political support they have manifested for even an aggressive war.  Thus, in World War II, British and Wehrmacht soldiers stood on the same legal footing (attackable, and only liable for individual war crimes), as do pacifist British citizens and Nazi-supporting German civilians (immune from attack).  This collective, status-based approach to targetability is notably different from the individualized assessment of liability to attack that characterizes the criminal law, in which individuals are only targetable when they present particular threats to the lives or vital interests of others; and the permission to use lethal force is only granted to those defending vital interests (of themselves or others), and often not when that defense is the result of the defendant’s own wrongdoing (p. 8).

In a number of recent books and papers, Jeff McMahan has argued that there are no plausible direct moral foundations for JWT, because on any compelling moral analysis — that is, any analysis sufficiently compelling to make claims about liability to lethal attack plausible — liability must be determined by individual culpability.  And when we take individual culpability into account, it is hard to avoid the conclusion that many individual soldiers — namely those permissibly defending themselves and others — are not so liable, while many non-combatants are.  McMahan himself avoids any direct action-guiding conclusion from his analysis, because of the prospect that absent clear rules of collective distinction, too much horror will result from an attempt by combatants to make the relevant distinctions.

Dill accepts the McMahanian moral analysis, but she rejects the revisionary conclusion, that we should seek to tune our doctrines of war to more individualistic determinations.  Instead, she looks to alternative moral foundations for the collective character of war. To my mind, the most interesting aspect of a very interesting and perceptive article is her working through these alternatives.  She considers first the idea that war might nonetheless be given a consequentialist justification: that the gross principle of distinction, if applied in good faith by just and unjust belligerent nations alike, would be a “lesser evil” resulting in net fewer unjustified deaths.  But as she argues, there is no reason to think the material outcomes of current JWT do a better job than any alternative in minimizing unjustified deaths, since military victory is a consequence of material rather than moral factors.  More importantly, an individual moral analysis would result in the conclusion that aggressor soldiers should simply “keep still,” and cease presenting any threat to others.  Whatever one might say on behalf of JWT, one cannot think it approximates an outcome whose ideal case is the sudden pacifism of all of one side’s combatants, plus all of the others who are no longer at risk.

The conclusion she draws is subtle.  Dill treats as central the “epistemically cloaked” nature of the choices presented by war, where the fog of war makes individual liability determinations implausible, and the tendency of even aggressors fighting (wrongly) in good-faith belief of permissibility makes war inevitable.  In such cases, when nations turn to war, IHL properly guides actors towards morally superior outcomes, even if it does not make those outcomes defensible in absolute terms. As she says, if something is indefensible, it cannot be made defensible by epistemic considerations.  But the benefits of a rule-of-law approach to war, with over- and under-inclusive bright lines, may itself be morally valuable, in serving to constrain the overall enterprise while recognizing its systematic, i.e. Collective, character.  This is, essentially, a Razian analysis of the value of using non-moral norms to coordinate a complex multi-personal enterprise, rather than the sort of full-bore collectivist analysis that some of us have gestured at.  Regular war is less evil than irregular war, but this is a distinction to tolerate, not to celebrate.

I am in great sympathy with Dill’s discussion and conclusion, but might raise a couple of questions.  (more…)

LJIL Symposium: A Comment on Janina Dill’s “Should International Law Ensure the Moral Acceptability of War?”

by Gabriella Blum

[Gabriella Blum is the Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School.]

In her rich and sophisticated essay, Janina Dill takes on the principle of distinction in international humanitarian law (IHL). She finds that while the principle obscures questions of justness (or unjustness) of cause or individual contribution to the war effort, and thus digresses from an ideal moral vision which accords each individual her dues, it is the best practicable principle in times of war. A more morally just targeting doctrine may have distinguished just combatants from unjust combatants or else ignored the combatant/civilian distinction altogether and just focused on individual contribution to the war. Yet, (un)justness of cause is mired in uncertainty (what Dill terms “an epistemically-cloaked forced choice”) and the complexity of the battlefield makes it impossible to determine individual contribution to the war. Consequently, any attempt to design a more nuanced doctrine of targeting will end up being impossible to administer and too vague to offer real guidance for belligerents, thereby violating the rule of law – a moral principle of its own. The simple principle of distinction under IHL thus ends up being, in Dill’s view, morally just on its own terms.

Dill’s arguments engage with some long-standing debates within the law and ethics of armed conflict, successfully navigating the disciplines of philosophy and law, seeking coherence within each while reconciling their potential conflict. It is impossible to do justice to the many nuances and moves in her argument in this short commentary.

Instead, I will attempt to defend my own proposal for amending the distinction principle within Dill’s framework, thereby engaging with her arguments.

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LJIL Symposium Vol 26-2 and 26-3: Introduction

by dov jacobs

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

In the upcoming days, you will find food for thought with regard to four articles featured in issues 26-2 and 26-3 of the Leiden Journal of International Law, covering a wide range of contemporary discussions in international law.

The first discussion stems from Janina Dill’s article entitled “Should International Law Ensure the Moral Accountability of War?. In this piece, the author discusses recent just war theories that argue the need of international humanitarian law (IHL) to regulate killing in war in accordance with individuals’ liability by moving away from the collective dimension of protected status. The author posits that such proposal is not realizable, and suggests ways to improve the current system. In their thoughtful discussions of the article, Gabriella Blum of Harvard Law School, and Christopher Kutz of Berkeley Law, invite the author to forward her argument yet further. Specifically, Gabriella Blum suggests that individual human rights can and should be taken into account in the context of war, while Christopher Kutz questions Dr. Dill’s premise that the collective approach to war in IHL is in contradiction with the general evolution of International Law towards taking into account individual rights.

The second discussion revolves around Maarten den Heijer’s article, Diplomatic Asylum and the Assange case, where he argues that granting such asylum contradicts a number of principles of international law. Gregor Noll, from Lund University, and Roger O’Keefe, from Cambridge University, challenge the author’s premises, both in relation to his historical analysis and in relation to his evaluation of the legal framework.

The third discussion focuses on Devika Hovell’s proposals in A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making. In the article, the author discusses the ways in which domestic and regional judges (EU, ECHR) deal with United Nations Security Council Resolutions and suggests the need to go beyond the classical notions of bindingness and hierarchy.  She proposes instead a more subtle and elaborate “dialogue model”. Erika de Wet, of the Universities of Amsterdam and Pretoria, and Piet Eeckhout, from University College London, draw attention to the limits of the author’s model within the current international law structure and in context of the states’ international legal obligations. In a nutshell, the professors argue dialogue is not always possible.

Finally, the fourth discussion is an interchange between Zoran Oklopcic and Brad Roth, from Wayne State University, on the former’s challenge in “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary to the latter’s allegedly “empty” concept of self-determination. Brad Roth defends his “empty” notion of self-determination, pointing out the difficulties of actually identifying the substance of such principle.

Aside from the in-depth and engaging appraisal of the specific issues contained in the articles, the various discussions all either directly or indirectly touch upon what has historically been at the heart of international law: (more…)

Syria Insta-Symposium

by Jessica Dorsey

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the ongoing situation in Syria. We also are going to follow in our own footsteps from our Kiobel symposium, by inviting young academics and practitioners to submit guests posts for possible publication.

We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new and emerging voices. So if you want to write a guest post for Opinio Juris about Syria of approximately 500 to 1000 words, please do so in the next couple days and send it to me and An Hertogen at opiniojurisblog [at] gmail [dot] com. Our editorial team will review the posts and publish as many as we deem appropriate.

Not Even the Brits Can Make the Case Bombing Syria Is Lawful

by Deborah Pearlstein

Good thing nothing much happened while I was away on summer vacation… So as I wrote here last spring, there’s no clear basis under international law for a U.S. use of force in Syria – no UN Security Council resolution, and no apparent claim at this stage that the United States is acting in self-defense. The only theory of legality in play seems to be the one put forward by the British government, right before Parliament voted to reject the use of force in Syria. Namely, that force may be justified as part of an emergent customary norm permitting humanitarian intervention (see, e.g., NATO intervention in Kosovo).

The statement from the UK Prime Minister’s Office says a state may take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided” a set of conditions hold. Those conditions: (1) “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;” (2) it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved;” (3) the force used is “necessary and proportionate to the aim of relief of humanitarian need…”

But it just can’t support U.S. action here. Here’s why.
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Emerging Voices: Peace-Time Crimes Against Humanity and the ICC

by Efrat Bouganim-Shaag and Yael Naggan

[Efrat Bouganim-Shaag, LL.B, The Hebrew University of Jerusalem (2012); Yael Naggan, LL.B and B.A. in International Relations graduate from The Hebrew University of Jerusalem (2013)]

Last February, a report by the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea concluded that there are “nine patterns of violation” of rights, which “may amount to crimes against humanity, committed as part of systematic and/or widespread attacks against civilian population”. The violations mentioned were, inter alia, in respect of the right to food, torture, arbitrary detentions, discrimination, the right to life and enforced disappearances. Following this report, a UN special panel has recently begun to investigate human rights violations in the DPRK. Persecutions, arbitrary detentions and torture reportedly committed in Eritrea are another example of state-sponsored human rights violations, possibly amounting to crimes against humanity (see, e.g., here and here). These all-too-common situations, in which the civilian population in a given country is continuously subjected to human rights violations which could amount to crimes against humanity, presumably warrant the International Criminal Court’s attention.

Indeed, the framework of the Rome Statute allows for the investigation and prosecution of peace-time crimes against humanity; i.e. those taking place without any connection to an armed conflict.  Nonetheless, a review of the current situations handled by the ICC suggests that crimes of this nature have been somewhat outside of the Court’s focus. In this post we will highlight what we identify as a gap between the Court’s subject matter jurisdiction and its practice.

Under article 7 of the Rome Statute, the definition of crimes against humanity does not require that the acts in question occur in connection with an armed conflict. In all the “situations” presently before the Court the charges brought forward have included crimes against humanity (except for the situation in Mali, in which no charges have been brought as of yet) (see Prof. Sadat’s recent study). Nevertheless, seven out of the eight current situations have to do with armed conflicts; the post-election violence in Kenya being the exception. Furthermore, an overview of the current preliminary examinations being held by the Office of the Prosecutor (as of August 2013) may suggest a similar focus on situations in which armed conflicts have occurred. Even events presently being discussed by the international community as meriting the Court’s attention involve armed conflicts, namely Syria (see, e.g., here and here).

While this trend is not necessarily a negative one, it certainly calls for further consideration…

Emerging Voices: Drug Cartels, Bacrim, and Other Militarized Criminal Organizations–A New Role for the Inter-American System?

by David Attanasio

[David L. Attanasio is a professor of international law at the Jorge Tadeo Lozano University in Bogotá, Colombia]

The last few years have seen a rapidly changing landscape for serious human rights violations in the Americas.  Instead of government abuses committed in the alleged fight against left-wing guerilla groups, militarized criminal organizations now perpetrate many, if not most, serious human rights violations (or what would be such violations were they committed by state actors). While the Mexican drug cartels operating throughout Mexico and Central America are well known, Colombia has a serious problem with similar groups, the so-called Bacrim (criminal bands).  Although less known, Bacrim groups are representative of the regional trend, violently seeking control of drug production and trafficking routes—among other activities.  Reflecting their national significance, the Colombian Constitutional Court recently held that Bacrim victims have the right to reparations similar to those for other armed conflict victims.

The contentious case mechanism of the Inter-American Human Rights system has been an important tool to combat serious human rights violations, as individuals can use it to denounce specific state human rights violations.  But, given the new dynamics of human rights violations in the hemisphere, the mechanism must adapt to the sharp increase in violations committed by non-state, criminal actors.  To do so, the system should embrace a role as a secondary guarantor of human rights.   It should leave states with the primary responsibility for stopping violations by these non-state actors but should review state efforts to protect in a broad range of circumstances.  The dynamics of Bacrim indicate that there is a large risk of inadequate state protection against such militarized criminal organizations, a risk the Inter-American system could help to correct.

Adapting the contentious case mechanism to the changing dynamics of serious human rights violations is difficult because it is designed primarily to enforce state compliance with human rights norms: contentious suits can only be brought against states.  This mechanism is not directly useful to combat violations by non-state actors like militarized criminal organizations.  However, the Inter-American Court has recognized a state obligation to protect since its first merits decision in Velasquez Rodriguez v. Honduras, providing a potential way for the system to engage with non-state human rights violations. The system could adapt to become a secondary guarantor of human rights against militarized criminal organizations by ensuring that states adequately protect against the threats they pose.  While the system would not (and cannot) directly enforce human rights norms against these groups, it could require states to aggressively protect against them.

Unfortunately, current Inter-American Court doctrine allows review of state protection efforts only in a small set of cases: state officials must have known of (or should have known of) a particular threat to the non-state actor’s victim (or a small group to which the victim belonged).  But Bacrim and other militarized criminal organizations are by nature clandestine, at least to an extent. States currently can escape international review and responsibility even when their officials knew that a violent group was operating in a given area and failed to act with available resources.  The narrowness of current review prevents the system from adequately ensuring that states protect against these organizations. If the system is to be an effective guarantor of human rights against Bacrim and similar groups, review must be allowed in a broader set of circumstances.  For example, the mere knowledge of group presence and activity in a particular region should be sufficient for reviewing the measures that local state security forces took to reduce group activity, even when the state lacked knowledge of a threat to the specific victim.

It is important for the Inter-American system to take on this role as a secondary guarantor of human rights because of the substantial risk that states will take inadequate measures to protect against militarized criminal organizations.  Action by the Inter-American system could defuse some of this risk.

The nature of these groups and of the human rights violations they commit creates a risk of inadequate state protection for a number of reasons.

Fundamentally, these organizations are not revolutionary or even particularly political in nature, characteristics that might otherwise…

Emerging Voices: Making Room for the Distributive in Transitional Justice

by Matiangai Sirleaf

[Matiangai Sirleaf  is a Sharswood Fellow, University of Pennsylvania Law School. B.A. New York University; M.A. University of Ghana-Legon; J.D. Yale Law School]

The knee-jerk reaction to institute formal transitional institutions like trials or truth commissions following massive violence needs to be seriously rethought.  For one, it is not evident that societies recovering from mass atrocity will undoubtedly want to pursue truth-telling or trials.  For example, surveys conducted in Sierra Leone and in Liberia indicate that punishing perpetrators was a low priority for victims.  Additionally, data compiled for the truth commission in Liberia indicates that less than 5% of statement givers recommended utilizing a restorative or retributive justice approach.  As such, much more attention needs to be given to truly “victim-centered” approaches following mass violence.  One that attempts to respond to the needs of survivors of human rights violations for a more transformative form of justice, which places meeting basic needs (those needs that are central for survival including food, health, shelter, sanitation and education) front and center.  For instance, in Liberia, a survey conducted by the Human Rights Center at U.C. Berkeley found that 45% of respondents indicated that the top priorities for victims were the “provision of housing” and “education, for their children.”  During my field research in Liberia and Sierra Leone, interviewees also did not indicate that any of these priorities were in particularly large supply prior to the conflicts.  If anything, they expressed sentiments indicating that they were already marginalized and the conflicts just further exacerbated their precarious positions.

These findings suggest that the overwhelming faith that scholars and practitioners place in international criminal justice and formal transitional institutions to adequately respond to gross atrocities is misplaced.  Transitional societies particularly following a conflict, are marked by injustice.  In these societies, people do not simply experience injustice through specific acts of violence orchestrated by a couple of bad actors, but mainly through widespread structural forms of violence.  Structural violence can include systematic discrimination in employment, land deprivations, forced deportations or removals, structural inequalities for particular groups or ethnicities in terms of access to political power, in voting or legislative representation, cultural power, or access to education amongst others.  Liberia and Sierra Leone are paradigmatic cases of this.  In Liberia, 60% of the respondents to the Human Rights Center at U.C. Berkeley’s survey indicated that “greed and corruption” were the root causes of the conflict, with 40% attributing it to ethnic conflict, 30% to poverty and 27% to inequality.  Yet, historically, transitional institutions have not been specifically designed to address many of these root causes of conflict.  Indeed, much of the existing literature ignores the particularities of post-conflict societies when designing transitional institutions.

The large number of those seeking redress in post-conflict societies, as well as the enormous number of perpetrators who must also be integrated back into society, means that a thicker conception of justice is required.  One that goes beyond the confines of the legal institutions usually employed and impacts the lived realities of those that have been affected by war in some tangible way.  In post-conflict societies, it is far less likely that a quick-fix mechanism such as a truth commission or a court alone would be able to address the underlying causes of conflict.  Distributive justice approaches are both forward and backward-looking seeking to improve political and socio-economic conditions overall, but without presuming equality or ignoring historical grievances.  The reason for pursuing distributive justice approaches is simple – by addressing real (and perceived) distributive inequities, we can help to prevent future conflicts.  Accordingly, distributive justice efforts cannot afford to be treated as mere afterthoughts (if conceived of at all), where the aim of transitional institutions is to address the underlying causes that led to massive human rights violations.  In short, scholars and practitioners need to broaden the scope of the post-conflict “tool-box” and pay much more attention to the use of distributive justice approaches following mass violence.