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12 Mar

[Rhodri C. Williams is a US human rights lawyer living in Sweden and working for the International Legal Assistance Consortium. He writes on human rights issues on his own blog, TerraNullius.] In the crisis triggered by Russia’s poorly concealed incursion in Crimea, there are plenty of grounds to believe that Moscow’s international law arguments are largely a smokescreen, albeit one arguably enabled the West’s own blurring of legal lines in the course of two decades of liberal interventionism. Lying behind Russia’s normative protestations, however, are concrete assertions of political interest that will have to be addressed in order to achieve a sustainable resolution. In this sense, an emerging normative challenge relates to the extent to which international law and practice on self-determination would facilitate such a process. Russia’s has a number of arguable political interests in the Crimean peninsula. The most obvious relate to security, and Crimea’s role as a warm water port of longstanding strategic significance to the Russian Navy. However, a far broader claim relates to Russia’s asserted right to protect both its citizens and Russian speaking minorities throughout a “near abroad” corresponding to the boundaries of the former Soviet Union. Like any country, Russia has a legitimate interest in the fate of its citizens and an arguable interest in supporting kin minorities. However, the unilateral and open-ended imposition of Russia’s own “protection” in a neighboring state is taken by many in the region as a thinly veiled excuse for a new round of post-Soviet revanchism. Indeed, comparisons have inevitably been drawn to “Hitler’s substitution of ethnicity for state borders” in the lead-up to World War II. The issues raised by Russia’s “ethnic” claims in Crimea, eastern Ukraine and beyond play on debates about the alignment of states and nations that have been with us since the 19th century, but which gained an explosive new life since the end of the Cold War. Ironically, the original political emergence of these issues arguably came with the Crimean War of the 1850s, in which France and Britain sought to prevent Russia from encroaching on Ottoman Turkish-held territories in the Balkans. However, while both Ukraine and the Balkans have subsequently provided spectacular examples of the failure to peacefully manage diversity, the Åland Islands of Finland – the little known northernmost theatre of the Crimean War – give some grounds for hope. The “Åland example”, as described in a recent book by the Åland Islands Peace Institute, has significant resonance for Crimea. Perhaps most obviously, Åland, like Crimea, occupies a strategic location in a region long troubled by ethno-linguistic cleavages. Åland is an archipelago in Finland that projects toward Sweden across a narrow strait in the Baltic Sea. Like the rest of Finland, Åland was part of Sweden until 1809, when the country was incorporated into Russia. Eager to consolidate an outpost within striking distance of Stockholm, the Russians built a fortress at Bomarsund on Åland. Thus, the issue of strategic location arose early, with the British and French war aims focused on destroying both Bomarsund and Sevastapol in Crimea, and preventing them from being militarized again. Since the Crimean War, Åland – in contrast to Sevastapol – has remained demilitarized, in a local regime rooted in the 1856 peace settlement. The “ethnic issue” on Åland remained dormant for another 60 years until 1917, when Finland became independent. Until then, the tiny Åland population had aligned itself with the minority of mainland Finns (at the time about 10%) that spoke Swedish as their mother tongue, but that would quickly change. In 1918, the first Finnish Constitution granted the Swedish language formal equality with Finnish, paving the way for an enduring cultural autonomy that has guaranteed linguistic and cultural rights for Swedish-speakers without granting them either political veto powers or control over their territories. Meanwhile, the Ålanders had already begun to agitate for secession to Sweden and succeeded in bringing their case to the newly founded League of Nations. The result was a 1921 compromise solution in which sovereignty was retained by Finland, but on the condition that Åland was to be granted an extensive territorial autonomy, or local self-rule. In order to assuage Sweden’s security concerns, Crimean War-era demilitarization was affirmed and expanded. As described in the Peace Institute’s book, all this led to a surprisingly durable regime, sanctified by international law obligations (compiled here), but fundamentally anchored in consent. The authors attribute the longevity of Åland’s arrangements to a number of factors. A key departure point was the astute balance of dissatisfaction set by the original League of Nations decision. Finland was granted sovereignty without control, Åland self-rule without self-determination, and Sweden security guarantees without territorial gains. This may have contributed to a dynamic whereby all parties acted on “the basic premise of accepting a compromise and learning to live with it” (196).
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12 Mar

[Ilya Nuzov is an Assistant Researcher with the Geneva Academy of International Humanitarian Law and Human Rights and a PhD student in International Law at the University of Geneva. His main research area concerns transitional justice in Eastern Europe.]   Much has been said in recent discussions on the Ukraine crisis in an attempt to qualify the ongoing Russian intervention as one kind of violation of international law or another and to ascertain possible legal and political repercussions for either state. (See previous posts in this symposium by Robert McCorquodale, Greg Fox, Remy Jorritsma). This post seeks to bring to the foray what it considers a fundamental issue driving the rift between the two brotherly nations and standing in the way of their reconciliation and democratization. Namely, the failure of either Russia or Ukraine to meaningfully work through the Soviet past internally, as well as with respect to each other, through the institution of any of the transitional justice measures previously employed and recommended by the international community. See a description of these by the Office of the High Commissioner of Human Rights here. The importance of coming to terms with the past in the post-communist space cannot be overstated. Nations that have transitioned most successfully from authoritarian communist regimes in the former Soviet Union and Eastern Europe, including East Germany, are ones that have implemented robust judicial and non-judicial mechanisms designed to methodically work through the past in order to heal societies and rebuild institutions modeled on democratic principles and the rule of law. Upon its reunification, Germany, which has achieved remarkable economic success while ushering in democracy and restoring trust in public institutions, has employed prosecutions, vetting procedures and a commission of inquiry in order to rid its institutions of the authoritarian legacy, restore societal trust and reconcile Germans who collaborated with the communist regime with those who were persecuted by the infamous Stasi. The same cannot be said with respect to either Ukraine or Russia. Leaving aside the monumental work of NGOs like Moscow-based Memorial, both countries rank near the bottom of the spectrum of post-communist states in terms of official government efforts to work through the past after the fall of the Soviet Union. In Russia, the most noteworthy reforms were instituted in the early 1990’s and addressed primarily rehabilitations of victims of Soviet-era repressions. In 1991, Yeltsin approved Federal Law of the Russian Federation On the Rehabilitation of the Victims of Political Repressions, No. 1761-1 rehabilitating all victims of political repressions after 1917 and offering, albeit miniscule, financial reparations. No one has ever been held accountable for human rights abuses in Russia. What has been optimistically called the ‘trial of the CPSU’ was nothing more than a constitutional law challenge by some communists in December 1991 of Yeltsin’s decree that suspended and later banned the Communist Party and its Russian Federation branch. Although the proceedings did manage to unearth thousands of pages of secret archives detailing past atrocities, at the end of the day the trial was condemned as a bureaucratic farce that failed to acknowledge the collective trauma of the past. Today, the archives are under the de facto control of the KGB’s successor, the Federal Security Service, which restricts access even to documents dating back to the 1920s. To further complicate matters, many of Ukraine’s Soviet-era secret police archives have been moved to Moscow and the remaining files, maintained by the Ukrainian Archives Committee, are effectively closed to the public. Compare this with the experience of Germany, which has allowed individual access to Stasi archives under the Stasi Records Act and over five million applications from individual victims of the totalitarian regime have been received since 1992 to view them.
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11 Mar

[Jocelyn McCalla was the Executive Director of the National Coalition for Haitian Rights from 1998 to 2006.]

For the purposes of this discussion I will restrict my remarks to the impact of Sale on Haitian immigration and advocacy; I will not be so bold as to extend them to the impact overall on all immigrants, refugees and asylum-seekers that the United States is dealing with. Secondly, I believe it is important to explore advocacy before Sale as well after Sale. One can't comprehend what happened after 1993 without an examination of the 20 years of advocacy on behalf of Haitians that  preceded the Supreme Court decision, as well as the changing relationship between Haiti and the United States.

Haitian asylum-seekers began fleeing to the United States by sailboats in 1972. From  the very beginning, advocacy on behalf of Haitians in the United States has never been uniquely about rights to due process or access to the asylum system. It always had a dual edge: promoting rights on the domestic front were associated with the promotion of democratic rights in Haiti. Advocates had urged the United States to disassociate itself from the brutal Duvalier dictatorship. They held that it was that regime which caused Haitians to flee: end your support of the regime, side with democracy and refugee flow would dry up… They looked  to the Courts for relief and to the Court of public opinion for support.

The United States tried all sorts of forceful measures to stem Haitian refugee flow but couldn’t. Finally President Ronald Reagan issued the interdiction order authorizing interception at sea and forcible return. Additionally should the asylum-seekers find themselves close to US shores they needed to be within 3 nautical miles of the shore to access legal help. Interdiction worked: of the 23,000 Haitian refugees intercepted at sea, only six were deemed to have prima facie valid asylum claims. All others were returned.

Things came to a head in 1991 following the violent ouster of democratically-elected President Jean-Bertrand Aristide when a federal court judge in Miami triggered a scramble at the highest level of  the US government when it enjoined the US from returning refugees intercepted at sea. The high seas drama – interdiction, Guantanamo, injunction against interdiction -- that followed Aristide’s ouster generated sizeable support for Haitian refugees and the Aristide administration.

Campaigning in 1992, Bill Clinton promised to overturn the interdiction policy. Clinton changed his mind shortly before being sworn in. He offered a quid pro quo: more energetic support for Aristide’s return and democracy in Haiti in exchange for keeping the status quo on interdiction, asylum screening and quarantining HIV positive Haitian asylum seekers at GTMO.

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11 Mar

[Ira Kurzban was counsel for the government of Haiti between 1991 until 2004 and was counsel of record in HRC v. Baker and over 10 other class action lawsuits involving Haitian refugees in the United States. Mr. Kurzban continues to serve  as personal counsel for Jean Bertrand Aristide, Haiti’s first democratically elected president.]

On September 30, 1991, the Haitian military, with the help of the Haitian elite, overthrew the democratically elected government of Jean Bertrand Aristide. President Aristide had won Haiti’s first free, fair and open election by 67% of the vote in a field of 17 candidates.

The violence of September 30, 1991 and its aftermath are well known. Estimates range from 1,000 to 3,000 military and paramilitary executions within the first 48 hours of the coup, many in front of the National Palace where supporters of Haitian democracy went to protest the overthrow of their President. Beyond the immediate executions were tens of thousands more over the next several years by DIA/CIA sponsored paramilitary organizations such as the Front for the Advancement and Progress of Haiti (FRAPH). Many of this is documented in trials such as the Raboteau trial where human rights violators were tried in a court of law and brought to justice for the first time in Haitian history.

A second coup, again with the funds and organization of the elite, but also the  support of the United States, French, and Canadian governments, occurred on February 29, 2004 during the second democratically-elected term of Jean Bertrand Aristide.  By the second coup, the Haitian army had been demobilized. One might call this coup, documented in detail in such works as Hallward’s Damming the Flood: Haiti, Aristide and the Politics of Containment  and Sprague, Paramilitarism and the Assault of Democracy in Haiti, as a slow-motion performance where a military wing went from town to town executing police and supporters of democracy while the elites simultaneously financially supported such executions while proclaimed their rights were being violated. The U.S., French and Canadian government contributed at a minimum to the finance and support of  gross disinformation campaigns, anti-democratic organizations, paramilitary groups and covert operations in the second coup.

The decision in Sale v. Haitian Centers Council, a travesty of international and domestic law, and basic human decency, had a significant effect on how Haitian refugees fleeing these two coups were treated. Pre-Sale the U.S. government’s actions were hesitant, unsure, chaotic and erratic. Post-Sale they were ruthless.

In October, 1991, almost  immediately after the coup, Haitians who supported democracy and supported President Aristide began fleeing Haiti in fear of their lives. By mid-October, Haitians were aboard vessels trying to get out of Haiti. By December there were more than 5,000 Haitians who had fled Haiti. At one point in the crisis there were more than 10,000 Haitians in the Guantanamo camps.

The initial response of the U.S post-September 30, 1991 was to decline to return Haitians to the imminent danger they faced. They were taken aboard Coast Guard cutters. The U.S. held them in the cutters and sought to obtain clearance for their trip to the U.S. or their return home.  The U.S. had signed a 1981 interdiction treaty with Haiti that required our country to at least provide  facial compliance with international law by granting “ asylum interviews” aboard Coast Guard cutters prior to forcibly returning refugees to Haiti. The numbers of Haitians on the cutters began to build up. Given the public executions in front of Haiti’s national palace the foreign policy establishment in the U.S. was too embarrassed pre –Sale to immediately return Haitians fleeing the country. By November hundreds of Haitians were simply sitting on the decks of cutters in the Caribbean.  The numbers became too large and by November 18, 1991 the Bush Administration directed the Coast Guard to take the refugees back to Haiti and ignore our 1981 Accords.

The next day the Haitian Refugee Center filed an action for declaratory and injunctive relief in the United States District Court in the Southern District of Florida. They also filed an application for a  temporary restraining order that would prevent the Coast Guard and the U.S. government from removing Haitians on the high seas from being returned.

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09 Mar

[Sina Etezazian is a PhD candidate at Monash Law School, researching the prerequisites for the exercise of self-defense in international law.] Although Russia has now distanced itself from the doctrine of the forcible protection of nationals abroad, and instead has opted to rely on "intervention by invitation" as the main basis of its deployment of force in Crimea, the rescue of...

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09 Mar

[Remy Jorritsma (LL.M.) is a lecturer and teacher at the Department of International and European Law of Maastricht University.] This contribution intends to demonstrate that Ukraine and Russia are involved in an international armed conflict, triggering the application of International Humanitarian Law (IHL). In particular, this post explores two relevant issues: the question of valid consent, and the legal qualification of...

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08 Mar

Readers are no doubt aware that Germain Katanga was convicted by the ICC yesterday. What may be less obvious is that the verdict nevertheless represents the Trial Chamber's complete rejection of the OTP's case against Katanga. The OTP alleged that Katanga was responsible as an indirect co-perpetrator for seven counts of war crimes (using children under the age of fifteen...

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07 Mar

[Mary Ellen O'Connell is the Robert and Marion Short Professor of International Law and Research Professor of International Dispute Resolution at Notre Dame School of Law.] Russian troop movements in Crimea have catapulted international law to the center of a tense political-military drama.  U.S. Secretary of State John Kerry has charged the Russians with an act of aggression.  Russian President Vladimir...

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06 Mar

I am looking forward to the contributions to our "insta-symposium" on Ukraine and international law. I don't have a tremendous amount to add at this point, except to point out that President Obama has been aggressive about accusing Russia of violating international law and about the importance of international law generally.  This has gone beyond merely charging Russia with violation...

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06 Mar

[Dr. Aurel Sari is a Lecturer in Law at the University of Exeter.] Over the last few days, a growing number of commentators and international actors have denounced the deployment of Russian troops in Crimea not simply as a violation of the sovereignty and territorial integrity of the Ukraine, but as an act of aggression. At its extraordinary meeting held on 3 March 2014, the Council of the European Union condemned “the clear violation of Ukraine's sovereignty and territorial integrity by acts of aggression by the Russian armed forces”. On 4 March 2014, United States Secretary of State John Kerry followed suit at a press briefing held at the US Embassy in Kiev. A prima facie case of aggression Assuming for the sake of argument that the activities of Russian armed forces in Crimea do not benefit from the valid consent of the Ukraine (the question is at least arguable: see here and here), a good case can indeed be made that their presence and conduct fits the archetypical example of aggression, namely the ‘invasion or attack by the armed forces of a State of the territory of another State’ as defined in Article 3(a) of United Nations General Assembly Resolution 3314 (XXIX) on the Definition of Aggression of 1974. In so far as aggression is said to constitute ‘the most serious and dangerous form of the illegal use of force’ (Preamble, Definition of Aggression), the situation in Crimea must reach a certain threshold of gravity in order to qualify as an act of aggression. Neither the exact level of this threshold nor the facts on the ground are established beyond all reasonable doubt. However, it is safe to assume that the deployment of Russian forces to maintain public order in Crimea and to blockade and occupy Ukrainian military premises and assets in such a continuous and robust manner as we have seen in the last few days rises above the level of a ‘mere frontier incident’ or ‘less grave forms of the use of force’ (Nicaragua, paras 191 and 195). As such, these acts may reasonably be characterized as aggression on account of their scale and effects. Article 3(e) of the Definition of Aggression As reported earlier, the Ukrainian Association of International Law has come to the same conclusion in its recent appeal regarding the events in Crimea. Amongst other things, the Association suggests that the Russian Federation has committed an act of aggression as a result of being in material breach of the Agreement between Russia and Ukraine on the Status and Conditions of the Presence of the Russian Black Sea Fleet on the Territory of Ukraine of 8 of August 1997 (the Black Sea Fleet SOFA; see here in Russian). This argument raises an interesting question about the application of Article 3(e) of the Definition of Aggression. Pursuant to Article 3(e), the following acts shall constitute an act of aggression:
The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.
Compared to some of the other acts listed in Article 3, the incidents envisaged under Article 3(e) of the Definition may appear relatively benign or even banal. Whereas an armed invasion, attack or bombardment will amount to an act of aggression only if it entails the use of force at a relatively high level of intensity, it seems that even a minor breach of a status of forces agreement could qualify as an act of aggression under Article 3(e) even if it causes no damage or destruction in the host State. Some commentators have therefore questioned whether Article 3(e) should have been included in the Definition at all. The importance of contextual interpretation State practice offers a number of examples where foreign armed forces are present abroad without the consent of the territorial State or another valid legal basis, yet their presence does not come within the Definition of Aggression. A case in point is the accidental ‘invasion’ of Liechtenstein by 170 Swiss troops who got lost in a military exercise in 2007. No one, it seems, has suggested that Switzerland has committed an act of aggression against Liechtenstein, despite the fact that this was not the first such intrusion. Despite the strict terms of Article 3(e), it seems that context is everything. This point was certainly not lost on the drafters of the Definition of Aggression. The Six Power draft submitted on 25 March 1969 by the Australia, Canada, Italy, Japan, the United States and the United Kingdom defined aggression with reference to a prohibited purpose, thus giving rise to protracted debates as to whether the presence of an ‘animus aggressionis’ was a necessary element of aggression (see UN Doc A/7620). Eventually, any express references to aggressive intent were removed from the Definition. However, an implicit reference to intent was retained in Article 2 of the Definition, which declares that the Security Council may conclude that determining the prima facie existence of an act of aggression would not be justified ‘in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.’ Although Article 2 is specifically addressed to the Security Council, Article 3 declares that it must be applied ‘subject to and in accordance with the provisions of article 2’. This point is further underlined by Article 8 of the Definition, which provides that ‘[i]n their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.’
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