It appears the right-wing has settled on a shiny new historical comparison to justify the targeted killing of Anwar al-Awlaki. Here is Jack Goldsmith in the New York Times: An attack on an enemy soldier during war is not an assassination. During World War II, the United States targeted and killed Adm. Isoroku Yamamoto, the architect of the Japanese...
Moreno-Ocampo has always had the reputation of being more politically savvy than legally savvy. Frankly, he seems completely politically tone-deaf to me. Witness his recent comments on the implications of a possible UN General Assembly decision to give Palestine "observer state" status: A few blocks away from the UN this week, the man at the centre of the controversy said...
“I don't see it as a debate. It is common sense that in situations of what we have been experiencing, strategically we should be sequencing these issues, prioritizing and looking at what is best in the short-term and what is best in the long-term. It is very legitimate in any process that we must create an enabling environment that can guarantee justice can be done...If you start asking for justice even before you create that enabling environment, it is not even a debate, it is foolery...We must sequence them.”I subsequently challenged him on the effectiveness of his argument to which he responded that Argentina was the ideal example of a state which had successfully sequenced peace and justice. The “sequencing argument” has become a popular feature in the rigid and harshly dichotomous “peace versus justice” debate. The argument is attractive because it represents an attempt to find ground between the polarizing views that there is “no peace without justice” and “there is no justice without peace.” While the sequencing argument is closer to the latter in suggesting that justice may have to follow peace it largely acknowledges that justice is necessary in the long term. Unlike scholars of a realist bent who are sceptical of any attempt to achieve justice in conflict and post-conflict contexts, the point is not to reject accountability and reconciliation but to create an environment in which pursuing justice enforces rather than destabilizes peace. The sequencing argument is rather nuanced and intuitive. It weaves together the two major strands of thinking on peace: positive peace and negative peace. Negative peace, the cessation of large-scale, direct violence, is required before justice can be pursued. If justice is sought prior to the “silencing of the guns”, then it risks prolonging the conflict. However, once a negative peace is secured, justice should be pursued. Only by identifying and rectifying past wrongs – including human rights abuses – can a more encompassing, positive peace be achieved. In short, the sequencing argument suggests a trajectory of:
violent conflict –> negative peace –> justice and accountability –> positive peaceProponents of the sequencing argument have, however, not thoroughly scrutinized how their theory translates into practice. On the ground, the sequencing argument presumably looks a little like this: in order to achieve a cessation of violence, parties enter inclusive peace negotiations to achieve a power-sharing agreement and peaceful transition. The parties discontinue active conflict while even the most brutal and unsavoury of leaders are guaranteed amnesties as an incentive to cease violent activity. Once stability is assured and the time for accountability is ripe, those amnesties are revoked and the leaders of the conflict are brought to account, ushering in positive peace and justice.
The United States has formally referred military-commission charges against Abd al-Rahim Al-Nashiri for his alleged involvement in a number of terrorist attacks between 2000 and 2002. Here is Bobby Chesney's helpful description of the charges: Charge 1: Using Treachery/Perfidy (10 USC 950t(17)) – the idea here is that the use of a civilian boat, civilian clothing, and so forth to...
"We are satisfied that the applicant has made out a case showing that the Amnesty Commission and the Director of Public Prosecutions have not accorded him equal treatment under the Amnesty Act. He is entitled to a declaration that their acts are inconsistent with Article 21(1) (2) of the Constitution and thus null and void. We so find. We order that the file be returned to the court, which sent it with a direction that it must cease the trial of the applicant forthwith."The importance of the Kwoyelo trial, both legally and politically, is rather obvious. Had Uganda successfully tried and convicted Kwoyelo (and they still might), it would have given the government a plank upon which to build a complementarity challenge to the ICC's jurisdiction, something the government had expressed interest in doing. However, the spectre of a successful trial also instigated fears in northern Uganda. Former senior rebel commanders explained their uneasiness of potentially becoming the Government's next targets for trial if Kwoyelo was denied amnesty. The instability incurred by revoking thousands of amnesties would be absolutely devastating to a region and people eager to move forward. Of course, the granting of an amnesty and the defeat of the government's case against Kwoyelo is equally as controversial. International human rights groups sent representatives to monitor the trial and provide assistance to government lawyers. Predictably, Human Rights Watch argued that amnesties “for crimes such as war crimes and crimes against humanity run counter to international law and practice.” In the wake of the Kwoyelo verdict, Amnesty International released a statement which declared that:
“What we are witnessing here is simply pervasive impunity for serious crimes and human rights violations...Neither Thomas Kwoyelo, nor others accused of committing war crimes should be granted amnesty.”Human rights groups and fervent human rights advocates and scholars have been engaging in what amounts to talking amnesties out of reality. They claim not only that it is morally and legally wrong to grant amnesties but ominously warn that doing so is to risk ever becoming a functioning, liberal democracy. However, that granting amnesties for crimes such as those allegedly committed by Kwoyelo “run contrary to international law and practice” is not obvious. To borrow from the decision in an Appeal's Chamber ruling at the Special Court for Sierra Leone: a duty to prosecute international crimes and a prohibition on the use of amnesties may be crystallizing, but has not yet crystalized.
Over the last year, we've hosted a number of discussions centered on immunity issues and how US courts deal with them. For the most part, however, these discussions focused on individuals claiming immunity from becoming the subject of criminal or civil proceedings. Last week, however, the 11th Circuit gave us a very different type of immunity case -- the sovereign...
I've been following the Kenyan confirmation hearing relatively closely, and I've continually found the reporting at allAfrica.com -- which aggregates articles from numerous leading African newspapers -- to provide extremely good coverage of the proceedings. An article today from the Nairobi Star, however, caught my eye for all the wrong reasons (my emphasis): A dissenting judge of the International Criminal Court...
Kate Sheppard has an interesting post at Mother Jones today discussing a series of WikiLeaks cables that detail Chevron's attempts to convince the Ecuadorian government to end the lawsuit against it. Here are the two key cables she discusses: This from a March 2006 cable written by US officials in Quito: "In previous meetings, Chevron reps have suggested that the ...
[Ed. note: David Caron is the C. William Maxeiner Distinguished Professor of Law at the UC Berkeley School of Law and the President of the American Society of International Law. This post is also published in the ASIL Newsletter.] The continuing influence (the “tail”) of historic events such as 9/11 has numerous dimensions. In international law, the event and the responses...
Fantastic news: New York – A federal appeals court vacated an order Monday by a New York judge that barred an $18 billion judgment in Ecuador against Chevron Inc. for contaminating the Amazon. The three-judge panel of the 2nd U.S. Circuit Court of Appeals had previously expressed skepticism that a New York judge could wield jurisdiction outside...
Something I learned about while I was in China is that China claims, as a matter of international law, that it has "indisputable sovereignty" over most of the (oil-rich) South China Sea. This graphic illustrates the scope of China's sovereignty claims. China hasn't had a navy that could enforce this claim, until now. So Vietnam and the Philippines have been...
