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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.

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.

Emerging Voices: Teeth but No Bite–Can SADC Curb Election Fraud in Zimbabwe?

by Drew Cohen

[Drew F. Cohen is a law clerk to the Chief Justice of the Constitutional Court of South Africa.  He is also a contributing columnist for US News and World Report where he writes about comparative constitutional law, international human rights and global legal affairs.]

Recently, Botswana called on the South African Development Community (SADC) to open an investigation into voting irregularities in the recent Presidential election in Zimbabwe where the incumbent Robert Mugabe won with 61-percent of the total votes amid voluminous allegations of ballot fraud.  Two members of the Zimbabwe Electoral Commission, concerned with voting irregularities, have already resigned.  And Zimbabwe’s Movement for Democratic Change (MDC), the major opposition party, is currently gearing up to legally challenge the election results.

Botswana’s request for SADC to intervene is an intriguing one.  One the one hand, Botswana stressed that any initial inquiry should be limited to fact-finding (i.e. an independent audit) out of fear that launching a more invasive investigation into the alleged voting irregularities would hamper relations between the two countries.  On the other hand, SADC has been gaining traction in the region as an sharp, effective check against state-sanctioned human rights abuses as well as a mechanism to uphold the rule of law.

A bit of background about the SADC Treaty – which provides a binding framework to adjudicate disputes amongst Member States – is useful to understand how the organization could be deployed to ferret out, remedy and, in the future, prevent instances of election fraud.

SADC was constituted under a Treaty signed in Windhoek in August 1992 by a number of Southern African states, including Zimbabwe and Botswana.  The treaty was ratified by the signatory states and came into force in 1993.  The Preamble of the Treaty states that its Members are committed, inter alia, to ensuring “through common action, the progress and well-being of the people of Southern Africa.”  Article 4 of the Treaty, in turn, requires SADC and its Members to act, broadly, in accordance with the principle of “human rights, democracy and the rule of law”.  To give effect to that principle, SADC can create “appropriate institutions and mechanisms,” pursuant to Article 5(2)(c).  This provision, in conjunction with Article 4 of the Treaty, would presumably provide the legal basis for Botswana’s proposed commission to investigate Zimbabwe’s presidential election results.

In the event that Member States are unable to resolve their disputes through internal executive and legislative institutions…

Emerging Voices: Is The R2P Doctrine the Greatest Marketing Campaign International Law Has Ever Seen?

by Peter Stockburger

[Peter Stockburger is an attorney with the international law firm of McKenna Long & Aldridge LLP and an Adjunct Professor with the University of San Diego School of Law where he teaches international law and appellate advocacy.  The views of this post are the author’s own views and are not attributable to either McKenna Long & Aldridge LLP or the University of San Diego School of Law]

Much has been written about the Responsibility to Protect (“R2P”) doctrine.  Operationally, many have questioned the doctrine’s practical impact in places such as Syria.  Legally, the doctrine’s legacy has been questioned in places such as Libya and the Ivory Coast.  But in both, the R2P doctrine is generally described in one of two ways:  (1) either as an emerging norm of customary international law or (2) as a new binding principle of customary international law.  But what if it is neither?

The purpose of this post is to query whether it is possible that the R2P doctrine represents one of the greatest marketing campaigns ever attempted within the field of public international law.  Specifically, I pose the question of whether the R2P doctrine is, at its core, the re-packaging of already existing State obligations under both positive and customary international law put together for the purpose of facilitating political consensus and widespread legal compliance rather than operational or legal novelty.

This inquiry begins with the 2001 report written by the International Commission on Intervention and State Sovereignty (“ICISS”) entitled “The Responsibility to Protect.”  In it, the ICISS identifies the R2P doctrine as a new legal doctrine and defines it as follows – the concept of State sovereignty under international law “implies responsibility,” and if a population is suffering “serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.”  In other words, the ICISS argues that the long-standing customary principle of non-intervention, enshrined in Article 2(4) of the United Nations Charter, encompasses a new exception – the “international responsibility to protect” – which may be triggered when there is “serious harm” as the result of “internal war, insurgency, repression or state failure[.]”  The questions raised by this statement are too numerous to list.  What does “serious harm” mean?  Who defines “internal war, insurgency” and/or “repression?”  The ICISS goes on to note that the substantive mandate of the R2P doctrine could also include natural disasters and/or economic disparity

Despite this broad mandate, the ICISS also limits the legal novelty of the R2P doctrine by arguing the United Nations Security Council “should be making the hard decisions in the hard cases” about “overriding state sovereignty.”  On its face, this statement represents already existing principles of international law relating to the Security Council and its Chapter VII authority to regulate matters of international peace and security.  However, this statement does beg the question…

Emerging Voices: The Transformative Influence of International Criminal Law in Domestic Perspective

by HJ Van der Merwe

[Dr. HJ van der Merwe is a Lecturer in Public Law Studies at the Law Faculty of the University of the Western Cape, South Africa]

The degree to which states are able and willing to dynamically reflect international criminal norms within their domestic legal systems is crucial to the success of the project of international criminal justice. This is exemplified by the existence of the complementarity-centred International Criminal Court (“ICC”), which aims to establish a system of international criminal law (“ICL”) where domestic jurisdictions are primarily responsible for and capable of prosecuting core international crimes. It may be argued that the dawn of the ICC-era of international criminal justice has brought with it the goal of a global transformation as regards the pursuit of accountability and respect for human rights that occurs primarily from within states. However, various legal and political hurdles continue to inhibit the effective incorporation and enforcement of international criminal norms on the domestic level. A constructive way to engage with these challenges is to conceptualise the interaction between international criminal norms and domestic legal systems in terms of its ability to produce a kind of transformative synergy (my doctoral thesis elaborates on the idea that ICL holds transformative value i.e. the ability and potential to produce change that may be beneficial to the civitas maxima or the abstract notion of an international community in which the collective interest transcends that of individuals). This argument is presented here by way of closer examination of developments relating to international criminal justice within post-apartheid South Africa.

International criminal law as transformative

International criminal law is historically and ontologically purpose and value driven. It exists due to a widely held belief in the notion that a supranational framework of criminal law can address problems of state criminality and mass violence, as well as play a role in the future deterrence of these phenomena. Whether one agrees with this notion or not, the fact remains that this supranational framework for criminal liability under international law has received increasing support from and within states, especially since the end of the Cold War. This development alludes to the international community’s desire, based on an increasing commonality of basic human values, to transform the global landscape by altering the status quo characterised by injustices that have gone unabated under the system of traditional Westphalian sovereignty. The existence and enforcement of international criminal norms may be viewed as an effort to protect the values of the international community as well as to project these values onto groups of individuals (perpetrators of international crime and also perhaps their supporters) which have not yet embraced such values, as it is believed that this would be to the benefit of all. These norms are not only repressive, but also expressive of the international community’s values. As such, they aim to shape a new consensus and to create new social expectations within the international community. Consequently, it may be said that a transformative purpose lies at the heart of modern ICL.

Transformative value from a South African perspective

As a consequence of its post-apartheid openness towards international law as well as its history of systematic oppression under apartheid, democratic South Africa has acceded to the ideal of international (criminal) justice, both indirectly by way of its Constitution (which provides for, and regulates, the domestic application of international law) and directly through national legislation. Notable in the latter respect is the Implementation of the Rome Statute of the International Criminal Court Act (“ICC Act”), which has transformed the crimes of the Rome Statute into South African criminal law. The recent South African judgment in Southern African Litigation Centre and Another v National Director of Public Prosecutions and Others (“SALC”) is particularly illustrative…

Emerging Voices: International Cooperation for the Domestic Prosecution of International Crimes

by Sven Pfeiffer

[Sven Pfeiffer is an Associate Expert at the United Nations Office on Drugs and Crime. The views expressed in this post are those of the author, writing in his personal capacity, and do not necessarily reflect the views of the United Nations.]

National authorities are increasingly involved in the fight against impunity for perpetrators of genocide, war crimes and crimes against humanity. Since the entry into force of the ICC statute, many states have enacted new laws or used existing ones to investigate and prosecute these international crimes. As this trend continues, domestic courts increasingly require the cooperation of foreign judicial authorities to gather evidence, interview witnesses or ensure the presence of accused.

Such inter-state cooperation is often impossible in the absence of applicable extradition and mutual legal assistance treaties. The idea that a multilateral convention could fill this legal gap was recently brought to the attention of the UN by several countries, at the initiative of the Netherlands, Belgium and Slovenia. At the 2013 Commission on Crime Prevention and Criminal Justice, these countries called for a discussion on the matter, but not all of its members agreed that the Commission was the right body to deal with genocide, war crimes and crimes against humanity. In this post, I explore the arguments for the proposed convention and identify the most controversial aspects of the proposal, namely the definition of crimes, the extent of domestic jurisdiction and states’ international obligation to prosecute.

Let us first take a closer look at the extent of the legal gap and at how an international cooperation convention could close it. Many countries can extradite and provide mutual legal assistance only on the basis of an international treaty. In addition, even where countries can do so on the basis of their domestic law, treaty provisions may speed up the transmission and execution of requests, e.g. by mandating the establishment of central competent authorities or by establishing minimum requirements concerning the form and content of assistance requests.

Concrete examples for the need of a treaty basis for cooperation were discussed at a side event during the 2013 UN Crime Commission. For instance, in the absence of treaty provisions, Dutch authorities found it difficult to gather evidence from other countries against Frans van Anraad, a Dutch national who was eventually convicted of complicity in war crimes. With reference to proceedings in Uganda against leaders of the Lord’s Resistance Army, it was highlighted that international cooperation was crucial, not only to investigate atrocities or extradite perpetrators operating across national borders, but also to protect witnesses who have fled abroad and to ensure their appearance in court. The difficulties experienced by Rwandan authorities in obtaining extradition of genocide suspects now residing in Europe provide another example (see here).

In practice, identifying applicable treaty provisions that are binding on all would-be cooperating states can be difficult. Multilateral conventions dealing specifically with extradition and mutual legal assistance have a limited, often regional, membership. There is a good chance that the counterpart country is not among the parties to these conventions. On the other hand…

Emerging Voices: The Joint Obligation to Protect Witnesses in the Fight against Transnational Organized Crime

by Laura Salvadego

[Laura Salvadego is a Postdoctoral Fellow at the Department of Law, University of Ferrara. This work has been developed during a research stay at the New York University School of Law - Center for Research in Crime and Justice, funded by Unicredit bank and by 5 per thousand contributions given to the University of Ferrara in 2010]

The need to ensure appropriate protection of witnesses plays a crucial role in the fight against transnational organized crime both at the universal level and in the European context. Rules concerning cooperation among states in this context suggest the existence of a joint obligation to protect witnesses that is functional to punishment of the authors, which in turn is perceived as a goal of the international society as a whole. Indeed, criminal networks of organized crime originate a threat to the entire international society (cf. Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, at 2), particularly because of their transnational ramifications. The global nature of threat requires that states’ efforts are integrated in a common and coordinated repressive project of multilateral nature (Kramer, at 4).

The idea that witnesses in criminal trials enjoy specific rights has gradually gained acceptance in international law (Fenwick, at 318), leading to the explicit acknowledgement of a positive obligation for states to adopt specific legislative and operative measures to assure witnesses’ self-determination and safety (Cf. Council of Europe, Rec. No. R (97) 13Council of the European Union, Res. No. 95/C 327/04 and, among others, Ecthr, Artico v. Italy, para. 33 ff.).

It is actually possible to construe an overall, coherent “statute” for witnesses under international law, drawing from the various rules set by a number of different instruments dealing with the matter. Thus, for example, the 2000 United Nations Convention on transnational organized crime and its Protocols, set forth innovative rules concerning measures to be adopted by Parties to provide for protection and assistance of witnesses subject to reprisals and intimidation (Article 24).

The extent of the required protection and the resulting burdensome obligations for states are justified by the particular vulnerability of this category of persons, whose protection from the trial is functional to the fight against transnational organized crime. In fact, adequate repression of criminal offences would be widely thwarted if the high risk of negative consequences for witnesses’ health and safety could influence their deposition in the trial and, as a consequence, the outcome of the criminal proceedings. Witnesses’ fact-finding contribution is essential to contrast transnational criminal networks; however their fruitful participation is extremely difficult to obtain without appropriate mechanisms to neutralize dynamics of intimidation largely widespread in this context.

Imposing to adopt “appropriate measures within its means” for the purpose of granting witness’ protection, the Palermo Convention sets up a particular due diligence obligation (see Pisillo Mazzeschi, “Due diligence” e responsabilità internazionale degli Stati, 1989) that is not easy to appreciate. In fact, no specific and analytical indication is given concerning the so called…

Emerging Voices: Pirates of the Indian Ocean–Enforcement in the Seychelles

by Tamsin Paige

[Tamsin Paige is an M.Phil (Law) Candidate, Australian National University College of Law]

Piracy originating from the coast of Somalia hit its peak in 2011, with 236 attacks occurring in the Red Sea, Gulf of Aden and the Somali region of the Indian Ocean in that year, according to the IMB’s 2012 piracy report. So far in 2013 the IMB has reported only 9 attacks originating from Somalia, resulting in two hijackings, indicating that significant headway has been made through counter-piracy efforts. As part of my thesis examining the role the law has played in the rise and fall of piracy, in Somalia and throughout history, I had the privilege of being invited by the Seychelles Attorney-General to spend January 2013 observing piracy prosecutions in the Seychelles and conducting confidential interviews with those involved in the investigation, prosecution and incarceration of Somali pirates. This fieldwork yielded a wealth of interesting data, some of which I will share here.

The first thing that struck me about the broader regional prosecution process was the importance that was put on the Seychelles involvement and how it was viewed as key to the continued efforts to engage in regional prosecutions of Somali pirates. The esteem in which the Seychelles government is being held for its efforts in counter piracy is tempered by two of the key issues being faced by the legal enforcement regimes: capacity and the repatriation of convicted pirates to United Nations Office on Drugs and Crime (UNODC) established and mentored prisons Somalia.

The repatriation of convicted pirates from Seychellois prisons to UNODC mentored prisons in Somaliland and Puntland are the key to the continued regional prosecutions. In January 2013 it was estimated that convicted and suspected pirates made up 20% of the prison population in the Seychelles. The repatriation program is referred to as the conveyor belt, as the Seychellois government is reluctant to take any more suspected pirates for prosecution unless it can repatriate an equal number of convicted pirates to Somali prisons. However, a number of capturing nations are disinclined to authorise these transfers as the prisons in Somalia did not meet European standards, even though evidence overwhelmingly shows that they more than meet human rights standards. However, more recently there have been indications that the EU has agreed to future repatriation transfers.

The capacity issues that were highlighted by my observations and by the interview participants are in no way restricted to the size of the prisons. The capacity and structure of the court systems in the region, the administrative capacity of the investigatory bodies and the investigatory capacity of the enforcing navies were all raised (along with other issues) as stumbling blocks to the effective prosecution of Somali pirates. Beyond highlighting the need for more nations within the region to engage in prosecuting captured piracy suspects, the issues being faced with the court system were varied.

One participant argued…

Emerging Voices: Counterterrorism and Humanitarianism–Assessing the Current (Im)Balance

by Elizabeth Holland

[Elizabeth Holland is an attorney with the law firm Foley Hoag LLP, where she focuses on international law and corporate social responsibility. The views expressed here are her own.]

There is clear need for effective counterterrorism measures.  Equally compelling is the humanitarian imperative to address civilian need in situations of armed conflict.  It has been questioned, however, whether the balance struck currently by counterterrorism measures impedes unacceptably the ability of humanitarian organizations to operate — particularly in areas controlled by listed armed groups (see, e.g., the Counterterrorism and Humanitarian Engagement Project at Harvard Law School and the Safeguarding Humanitarianism in Armed Conflict report published by the Charity & Security Network.  In the interests of full disclosure: I’ve been involved with both.)

Such a question belies simple answer. Policy and operational considerations are implicated in any analysis of the impact of counterterrorism measures on humanitarian action, and measuring the impact of such legislation is difficult.  A recent report commissioned by the UN Office for the Coordination of Humanitarian Affairs and the Norwegian Refugee Council presented evidence of such negative impact, including “halts and decreases in funding to blocking of projects” as well as “suspension of programmes;” also listed are “planning and programming design not according to needs, as well as the slowing of project implementation.”

What follows will focus on U.S. counterterrorism legislation and measures, their potential impact on humanitarian operations, and possible responses.  This is simply a snapshot – a range of similar measures exist in other major donor states (e.g., Canada, the U.K., Australia), the EU, and the UN.   These measures, as well as requirements found with increasing frequency in agreements with key donor states, as well as more informal listing mechanisms (such as that seen in Afghanistan in the context of DoD contracts) raise issues of criminal, civil and contractual liability for humanitarian organizations.  Often their stringency, including the lack of a humanitarian exemption, make operating in an area controlled by an armed group very difficult for humanitarian organizations.  Not only may the legal risks be significant, but some of the measures imposed on the humanitarian organizations may require cooperation of a sort that jeopardizes their neutrality and independence.

Under the U.S. material support statute (18 U.S.C. § 2339(A),(B)) the provision of material support to a foreign terrorist organization (“FTO”) is categorically prohibited.  There are a number of armed groups — also parties to an armed conflict — who are also listed as FTOs (see, e.g., Al-Shabaab, Hamas, Al Qaida).  The definition of material support is broad, and includes both tangible and intangible property, currency, facilities, transportation, lodging, services, training, and expert advice or assistance.  Though at one point the statute included an exemption for humanitarian assistance, the current version exempts only medicine and religious materials.  This exemption is interpreted narrowly, as the Second Circuit in 2011 explained that “medicine” is limited to exactly that – it does not include medical supplies or medical assistance under the statute.  Such a strict prohibition may not seem questionable. Considered, however, in the context of humanitarian operations, such a categorical approach leaves no room for maneuver, no space for even de minimus or incidental engagement of the type often operationally necessary to conduct humanitarian activities.

In addition to the broad definition of material support, the statute does not require…