In association with the International Commission of Jurists

Organizations

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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29 Jul

As I was doing some research for my posts on the al-Bahlul amicus brief, I came across a superb student note in the Michigan Journal of International Law written by Alexandra Link. It's entitled "Trying Terrorism: Material Support for Terrorism, Joint Criminal Enterprise, and the Paradox of International Criminal Law," and here is the (very long) abstract: In 2003, the United States...

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25 Jul

Last week, the ECJ handed down its judgment on the Yassin Abdullah Kadi appeal, marking the end of a decade long legal battle involving the Security Council’s consolidated anti-terrorism lists, and their implementation in the EU. The decision is available here.   As I noted in a post last fall, Kadi was delisted by the UN Ombudsperson in October of 2012, and so this judgment does not affect his status. Instead, this appeal against the ECJ’s decision in Kadi II raises the issues of effective judicial protection and standard of judicial review.  In an earlier decision, the ECJ had already established that “Courts of the European Union … ensure review, in principle the full review, of the lawfulness of all Union acts … including review of such measures as are designed to give effect to resolutions adopted by the Security Council.” (Para. 97)  These rights include respect for the rights of the defense and the right to effective judicial protection. What is notable about this latest decision is that:
  • The Court finds that judicial review is indispensable to ensure a fair balance between the maintenance of (i) international peace and (ii) international security (para.131), suggesting that Courts will play a role in the collective security going forward, particularly where fundamental rights are at stake.
  • Despite the improvements in the listing / delisting process represented by the creation of the UN Office of the Ombudsperson, the Court decides that UN processes do not “provide to the person whose name is listed on the Sanctions Committee Consolidated List … [with] the guarantee of effective judicial protection.” (133)
  • This decision may set a new standard for the review of Security Council acts in other fields.
Another notable aspect of the judgment is its emphasis on a high level of procedural and substantive review.  The ECJ stated that:
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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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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. 
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18 Jul

In the wake of the Pre-Trial Chamber's categorical rejection of Libya's admissibility challenge, the Libyan government asked the Appeals Chamber to suspend its obligation to transfer Saif Gaddafi to the ICC pending its appeal of the decision. The Appeals Chamber has now rejected that request and ordered Libya to surrender Saif to the Court. Here are the critical paragraphs of its decision: 24. Libya...

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17 Jul

[Daniel Seah is a PhD candidate at the Faculty of Laws, University College London.] Has the Association of Southeast Asian Nations (ASEAN) finally had its own post-ontological moment?  No longer are we condemned to participate in the banality of questioning ASEAN’s legal existence as an international organization (IO). After all, since 2008, its international legal personality was expressly conferred in Article 3 of the ASEAN Charter, a constituent treaty.  Now is the time to ask a more useful question: what are the legal consequences that flow from ASEAN exercising its international legal personality? Nowhere is an answer to this question more clearly thrown into relief than in the conferral of competences by member States upon ASEAN, which is the focus of this post. IOs are not created equal; there is a great variety in their functions and objectives. Establishing the objective international legal personalities in these IOs is the easy bit. More difficult are the issues that bear on how the legal personality has been exercised by an IO; and what legal consequences arise for the IO and its member States, as separate legal persons. Because an IO at international law is a legal person, it (or its bodies) can act on behalf of member States although some of these acts are not expressly conferred in the constituent treaty - I call these “implied conferrals”. The word “conferral” is not a legal term of art. It had been variously defined as “capacities” (CF Amerasinghe) to indicate the consequences of international legal personality; “international delegations” (Curtis Bradley & Judith Kelley) to explain a range of legal (and non-legal) decision-making exercised by IOs; or “competences” on which the European Union (EU) is authorised to act in particular areas such as the common commercial policy. In this post, I instance the early practice of the ASEAN Intergovernmental Commission on Human Rights (AICHR) as an example of implied conferrals.
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12 Jul

[Otto Spijkers is Assistant Professor of Public International Law at Utrecht University and Arron Honniball is a Student of the LL.M. Public International Law at Utrecht University] As the Millennium Development Goals (MDGs) approach their target date of 2015, the international community has begun developing post-2015 goals; the Sustainable Development Goals (SDGs). A number of concurrent work streams were established, including the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda (HLP). It was emphasised throughout the resulting report of the HLP and at the launch event on May 30, 2013 that various global public consultations shaped that report and will continue to shape the SDGs development process. In this post we wish to assess whether there is a meaningful opportunity for global public participation in the formulation of the SDGs. Are citizens, individually or organized, provided with an opportunity to influence the development, implementation and/or evaluation of the SDGs? For international lawyers and political scientists, it is especially interesting to look at this “experiment” in global public participation. Are we witnessing the start of a new process of global policy-making, with global public consultation as one of its principal steps? Such process would proceed roughly as follows: First the UN conducts a global public consultation; then a group of experts use the results of the consultation as the basis for a comprehensive report, and this report is then the basis of a UN-led negotiation process, which will ultimately lead to commitments accepted by the community of States.
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11 Jul

[Scott Robinson is a recent J.D. graduate from the University of Western Ontario, Faculty of Law] In at least seventy-six states it remains illegal to engage in same-sex conduct; in at least five of these, it still attracts the death penalty. It is no secret that, at the hands of both state actors and private individuals, LGBTQ persons around the world continue to face widespread and often systematic discrimination on account of their sexual orientation and gender identity. Further, nowhere within international human rights law is sexual orientation or gender identity explicitly codified as prohibited grounds for discrimination. While “great weight” should be ascribed to the views of human rights treaty bodies that have read-in protection over the years, such views remain but non-binding recommendations directed at states, tied to existing treaties silent on LGBTQ rights. Indeed, it is clear that international law is utterly failing to address “one of the great neglected human rights challenges of our time”. A robust, comprehensive LGBTQ treaty is needed—perhaps a “Convention on the Elimination of All Forms of Discrimination against LGBTQ Persons”. Treaty-precedents like the CERD and CEDAW (especially when viewed in light of more recent human rights treaties), demonstrate that an LGBTQ non-discrimination treaty is possible in form. Documents like the Yogyakarta Principles, certainly demonstrate that a pointed LGBTQ treaty is possible in substance. The real question, however, is how to achieve a treaty anytime in the near future, given the fierce resistance to LGBTQ rights witnessed to date, particularly within the UN system. There exists no General Assembly Resolution or Declaration on LBGTQ persons, nor is one likely any time soon (any purported attempts at such having essentially been abandoned in the past). Perhaps more formidably, actors such as the Holy See and Islamic and African blocs of states have balked at the very notion of LGBTQ rights at every possible opportunity at the UN—events at the Human Rights Council as recently as a few weeks ago stand as a testament to this continued opposition. At this point in time, it seems as though the only viable option for achieving an LGBTQ treaty is by engaging in what has become known as the “Ottawa Process” for treaty negotiation and adoption.
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10 Jul

I am a huge fan of Human Rights Watch's Ken Roth, but his description of the specific-direction requirement in yesterday's New York Times is not simply misleading, it's flat-out wrong. Here are the relevant paragraphs of his op-ed (emphasis mine): Aiding-and-abetting liability has long been understood to require proof beyond a reasonable doubt that the accused knew that his conduct had...

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09 Jul

In the tooting my own horn department, the estimable David Bosco, who authors the outstanding "The Multilateralist" blog at Foreign Policy (and who is also my American University colleague in the School of International Service), conducted an interview a few weeks ago with the Heritage Foundation's Brett Schaefer and me on the United Nations.  The idea was to ask how...

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02 Jul

Someone needs to explain this to me. The ICTY's official Twitter account just tweeted the following: Witness in Mladić trial, Dražen Erdemović, is testifying with facial and voice distortion. — ICTY (@ICTYnews) July 2, 2013 A witness normally testifies "with facial and voice distortion" in order to prevent the defendant from knowing his or her identity. So here we have the ICTY tweeting...

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