In association with the International Commission of Jurists

Symposia

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...

|
13 Aug

[Elizabeth Stubbins Bates is a PhD candidate in Law at SOAS, University of London.] States must disseminate international humanitarian law (IHL) as widely as possible, and integrate it into programmes of military instruction. These obligations exist in international and non-international armed conflict (with differences between treaty and customary international law for the latter) and are among the few IHL duties on...

|
12 Aug

[Žygimantas Juška is a member of the defense team of Radovan Karadžić] One of the most high-profile cases before the International Criminal Tribunal for the Former Yugoslavia (ICTY)—Prosecutor v. Radovan Karadžić—provides an opportunity to propose changes for the standby counsel model. Nevertheless, the ICTY has struggled to balance the effectiveness of standby counsel and its huge financial burden on the Tribunal. The ICTY previously...

|
09 Aug

[Marta Bo is a Ph.D. candidate at the University of Genova, Italy and a member of the Peace and Justice Initiative. She wrote this post while she was a Visiting Fellow at the British Institute of International and Comparative Law] Over the past few years, several proposals have been made to put an end to the culture of impunity persisting among Somali...

|
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...

|
05 Aug

[Dr. Gilad Noam teaches international criminal law at the Hebrew University and is also a practicing attorney at Israel's Ministry of Justice] What is the underlying nature of a dispute between a State and the Prosecutor of the International Criminal Court (ICC) on issues of complementarity?  Are the proceedings in which a State challenges the admissibility of a situation or a...

|
02 Aug

[David Benger is a student of Political Science at Brandeis University and International law at the Grotius Center for International Legal Studies at the University of Leiden. David can be reached at dabenger@gmail.com] One of the central debates surrounding the International Criminal Court has been the battle between the rights of the accused and the interests of justice. This discussion has been...

|
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.”
|
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.
|
19 Jul

[Chelsea Purvis is the Robert L. Bernstein International Human Rights Fellow at Minority Rights Group International (MRG).  Opinions expressed here are her own and do not necessarily reflect those of MRG.] The African region has long been perceived as a recipient, not a creator, of international human rights law.  But over the past decade, African institutions have enshrined emerging human rights norms in treaties and issued ground-breaking jurisprudence.  Africa should be recognized as a generator of innovative human rights law.  Human rights institutions outside the continent, however, have largely failed to engage with African-made human rights law. An example of innovative African law-making is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which came into force in 2005.  The Maputo Protocol builds on existing women’s rights law: Like the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the Maputo Protocol obligates States parties to combat discrimination against women in all areas of life.  And like the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the Maputo Protocol prohibits physical, sexual, and psychological violence against women.  But the Protocol goes further than these earlier treaties.  For the first time in any international instrument, it prohibits verbal and economic violence against women. The Maputo Protocol contains notable protections for women’s reproductive rights, including an affirmative right to abortion in certain circumstances.  It also takes a conceptual leap forward in its treatment of culture and tradition.  Many sources of women’s rights law treat African cultures as uniformly negative for women. The Maputo Protocol, as Johanna Bond has argued, adopts the more nuanced approach advanced by scholars from the global South.  It recognizes the positive role culture can play in women’s lives but enshrines a woman’s right to shape her culture.  The Protocol also recognizes that certain culturally-authorized practices or beliefs are necessarily harmful to women—it prohibits, for example, female genital mutilation and exploitation in pornography. Another ground-breaking source of African human rights law is a 2010 decision by the African Commission on Human and Peoples’ Rights. 
|