In association with the International Commission of Jurists

Regions

22 Aug

[Margaret K. Lewis is Associate Professor of Law at Seton Hall Law School] The current trial of former high-ranking official Bo Xilai has shined the international spotlight on China’s criminal justice system. Headlines are simultaneously emphasizing the Chinese leadership’s concern that its rule is “vulnerable to an economic slowdown” after China’s meteoric rise to become the world’s second largest economy in terms of nominal GDP. What is lacking in both the media and academic literature is an in-depth discussion of the role criminal law has played in China’s stunning economic growth to date as well as the role it might play in the future. This inquiry is particularly timely on the heels of a once-a-decade leadership transition and as China’s ability to maintain a robust growth rate is facing rising skepticism. As explained in more detail in my article here, not only has the PRC leadership historically used criminal law in service of economic ends but also, going forward, criminal law will likely play a multifaceted role in the leadership’s strategy to sustain growth during what promise to be turbulent times. The debate about the role of law in China’s development has thus far largely focused on the Washington Consensus’s support for a market economy’s need for clear and enforceable contract and property rights, often referred to as the “rights hypothesis.” The law and development literature’s emphasis on empowering private actors by creating a neutral bureaucracy subject to objective judicial review has shifted the debate from the most basic function of law: creating order. And creating order starts with the coercive power of the state exercised through criminal law. Not only is criminal law a direct way for the government to deprive people of money, liberty, and life, it is cheaper and faster than building the civil and administrative law systems on which the rights hypothesis relies. If a these systems are not credible enough to deter activities that are detrimental to economic growth, the government can invoke the heavy hand of criminal law.
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20 Aug

The Faroe Islands has announced it has filed a referred the European Union to arbitration under the UN Convention for the Law of the Sea.  Apparently, it is a dispute over herring. “The Faroe Islands have today referred the use of threats of coercive economic measures by the European Union, in relation to the Atlanto-Scandian herring, to an arbitral tribunal under...

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16 Aug

[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...

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15 Aug

I've spent a lot of time thinking about treaties. And I've read lots and lots of them over the years. From time to time, however, I encounter something I find truly novel on the treaty front. A case in point, was this story in IT World yesterday.  It refers to pending negotiations between the United States and Germany on an agreement...

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07 Aug

[Aqsa Mahmud graduated from the University of Michigan Law School and currently practices as a government attorney in Washington, DC] The international community’s application (or nonapplication) of Responsibility to Protect (R2P) to the recent Arab conflicts highlights notable limits to R2P. R2P is a relatively new doctrine that holds States responsible for protecting their populations and, where the sovereign fails, allows...

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06 Aug

On July 10, counsel for Al-Senussi filed a motion with the Pre-Trial Chamber complaining that Libya had announced it would begin Al-Senussi's trial no later than the end of Ramdan -- August 7 -- despite the fact that Libya's admissibility challenge was still pending before the ICC. On August 5, Libya filed its response, arguing that it has no obligation...

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31 Jul

[Frances Nguyen is a recent J.D. graduate of Lewis & Clark Law School.] Forced marriage is a complicated subject. The multilayered acts of brutality frequently overlap with sexual slavery, enslavement, rape, and arranged marriage. This can create confusion leading scholars, courts, and legal practitioners to either disregard forced marriage or shelve it into the box of “other inhumane acts” under crimes against humanity. The purpose of this post is to facilitate a proper discussion and address the legal complexities of forced marriage. More importantly, this post is calling for a robust recognition of forced marriage as an international crime. Instead of putting it under the general rubric of “other inhumane acts” it should be explicitly listed and placed alongside other sex and gender-based crimes under the International Criminal Court (ICC)’s Rome Statute.  In doing so, the criminalization of forced marriage by the international community will gain ground. This will lead to greater punishment against the perpetrators and properly accord the victims justice. Victims of forced marriage often endure severe long-term physical and emotional trauma due to their continuous and exclusive relationship with their perpetrators. For example, Fatmata Jalloh was selling pancakes on a rural road in Sierra Leone when a rebel soldier kidnapped her and made her his wife. “I was a child. I didn’t know anything about love at that time. But he said, “If you don’t take me [as your husband], I’ll kill you,” Jalloh said. As his wife, Jalloh was forced to perform sexual acts and domestic duties for two years until Sierra Leone’s civil war ended. “There was no way not to do it. If I would leave, I would have no food. He would kill me.” Jalloh’s story is representative of many young women and girls who were forced to become “bush wives,” women who were forced into marriage and essentially became domestic and sexual slaves to militia soldiers. From 1991 to 2002, Sierra Leone was embroiled in a civil war, which resulted in the national government fighting against rebel groups. At least 50,000 people died, while an estimated 100,000 suffered from mutilation. While massive atrocities were prosecuted by the Special Court for Sierra Leone (SCSL), forced marriage remained a neglected issue until 2008 when the SCSL in Prosecutor v. Brima, Kamara, and Kanu formally recognized forced marriage as a crime against humanity as an “other inhumane act.”
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30 Jul

As I recently noted, the Appeals Chamber has rejected Libya's request to suspend its obligation to surrender Saif Gaddafi to the ICC pending resolution of its admissibility appeal. Libya, of course, has no intention of complying with that obligation. Indeed, it admitted as much today: According to Libya’s Justice Minister Salah al-Marghani, Seif, who is being detained in the Libyan city...

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29 Jul

[Leslie Schildt is a criminal prosecutor at the Monroe County District Attorney's Office in Rochester, New York and previously worked in the Office of the Prosecutor at the International Criminal Court in the Hague.] Earlier this year, the United Nations created its first ever offensive combat force – the “Intervention Brigade.”  It enters the Democratic Republic of Congo (DRC) as part of MONUSCO, the long-standing United Nations peacekeeping operation in the DRC.  According to Security Council Resolution 2098, the Intervention Brigade will act unilaterally or alongside the Congolese army.  The Brigade is a creature of Chapter VII of the UN Charter, which governs peace enforcement operations.  The force will execute “robust, highly mobile ... targeted offensive operations” to find, engage, “neutralize,” and disarm the heavily armed rebel forces.  This is an unprecedentedly aggressive humanitarian combat force that arguably is the first of its kind. The Intervention Brigade raises serious questions regarding how the offensive mission might affect the non-combatant peacekeepers in MONUSCO.  To understand the potential dangers to peacekeepers and how to avoid them, one must first understand the core legal distinctions between peacekeepers and peace enforcers. UN peacekeeping operations operate under three bedrock principles: (1) Consent of the main parties, (2) impartiality, and (3) non-use of force except in self-defense and in defense of mandate.  Consent of the parties requires commitment and acceptance from the main parties to the conflict.  Without consent, “the peacekeeping operation risks becoming a party to the conflict; and being drawn towards enforcement action.”  Impartiality requires the peacekeepers’ even-handed treatment of all parties to the conflict, but not neutrality in execution of their mandate.  Indeed, where one party commits blatant violations, “continued equal treatment of all parties by the United Nations can in the best case result in ineffectiveness and in the worst may amount to complicity with evil.” (Brahimi Report)  Peacekeepers also cannot use force except in self-defense or in defense of mandate.  “Defense of mandate” may accommodate offensive use of force in some circumstances (e.g., to protect civilians under imminent threat), but peacekeepers certainly cannot lawfully conduct offensive seek-and-disarm missions. Because peacekeepers are not “used outside the humanitarian function to conduct hostilities,” they remain protected as civilian non-combatants.  During an armed conflict, “all persons who are neither members of the armed forces of a party to the conflict . . . are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.”  This attribute enables combatants to distinguish lawful enemy targets from protected persons.  However, it is another matter entirely when peace enforcement units conduct aggressive seek-and-pacify operations.
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23 Jul

Outside of Kigali, no one really doubts that the Rwandan government and military have financed, supplied, and at times even directed M23's actions in the DRC. But it's still nice to see the US government acknowledging that fact: It is the first response by Washington to recent M23 clashes with Congolese government forces near Goma, the largest city in the DRC's...

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