Posts by Daniel Haboucha
BY Daniel Haboucha
FILED UNDER
Constitutional Law
Legal Theory
Public International Law
Why promulgating international law is a key US interest
Political realists tend to be wary of international law, seeing it as an artificial and foreign encroachment on domestic sovereignty. Goldsmith and Posner argue that states’ commitment to international law is illusory; states will only comply with any particular provision of international law as long as their self-interest so warrants, and will abandon it as soon as this ceases to be the case.[1] Such views are especially prominent in the US, where constitutional obstacles and political conservatism have kept the US from playing as active a role in the international legal order as one might expect for a country of its stature. For instance, the US is one of only two countries (along with Somalia) that has not ratified the Convention on the Rights of the Child, and one of only three countries (along with Sudan and Israel) to have withdrawn its signature from the Rome Statute of the International Criminal Court; both are major treaties which the US itself played an active role in drafting. There has even been sporadic (if mostly marginal) talk over the years of withdrawing from the United Nations.
US conservative opposition to international law can best be summarized in the words of John Bolton, former ambassador to the UN:
It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest
…
Depoliticizing international criminal law
Realists frequently challenge the legitimacy of public international law as a bona fide legal discipline, contending that it is merely a political tool wielded by powerful states to enforce their diktats on the third-world. To Louis Henkin, “law is politics;”[1] elaborating on that theme, John Austin posited that international law is not really “law” because breaches do not engender legally-enforceable sanctions.[2] Such positions merit due attention, as they pose a serious challenge to efforts to promote adherence to international legal norms.
To respond effectively to Austin and Henkin, it is necessary to consider not only whether international law is possessed of “teeth”, but also the extent to which these teeth operate consistently and independently of political intervention. I will focus here on what I consider to be the two most significant developments in international criminal law over the last two decades: the creation of the International Criminal Court (ICC) through the Rome Statute of 1999, and the rise and fall of the doctrine of universal jurisdiction across various national legal systems. In many respects, both appear to have been rather successful in promoting individual accountability. For the first time, there exists a permanent and independent entity at the global level capable of prosecuting individuals charged with grave violations of international humanitarian law. Similarly, at the national level, many individual states have begun asserting the authority to prosecute such…
The duty to recognize Palestine
Last week, culminating two years of intensive state-building efforts, Palestine Liberation Organization Chairman Mahmoud Abbas formally applied to the United Nations for the admission of the state of Palestine as its newest member. While the outcome and consequences of this controversial bid are yet to be seen, I wish here to consider its legal implications and particularly the third-party obligations to which it gives rise.
The international community has repeatedly affirmed its commitment to Palestinian self-determination. In general terms, its normative obligations to the Palestinian people can be divided into three categories. First, there is a moral duty, arising both from humanitarian interest and from the international community’s exceptionally pronounced role in the protracted conflict between Israelis and Palestinians, to advance peace and reconciliation between the two parties. Second, there is a general legal duty, stemming from the preambles of the UN Charter and the International Covenant on Civil and Political Rights to promote respect for the Palestinians’ human rights, which have been recognized as including the collective right to self-determination.[1] Third, there is a specific legal duty, rooted in the Geneva Conventions, to protect the rights of Palestinians living under Israeli occupation by ensuring Israeli compliance with international humanitarian law (IHL).
Effects of UN recognition on the parties’ compliance with international law
Israeli settlements in the West Bank, often built on stolen private land,[2] have…
Is it ever legal to kidnap your enemies?
Palestinian engineer Dirar Abu Sisi was indicted in Israel last week on nine terrorism-related charges, after over a month in prison. Because of the gag order that has been imposed on his case, many of the details remain unknown, but speculation abounds. Did Abu Sisi develop advanced weapons for Hamas to use against Israel? Is he even a member of Hamas? Does he know the whereabouts of abducted Israeli soldier Gilad Shalit?
The controversy surrounding the case stems largely from the circumstances leading to Abu Sisi’s detention: according to credible reports, he was abducted by Israeli agents from a train while visiting his wife in Ukraine. The similarity in the fates of their loved ones, both abducted and detained (or, in the words of some, kidnapped) by enemy forces in the course of Israeli-Palestinian hostilities was surely not lost on Shalit’s father or Abu Sisi’s wife, who spoke by phone earlier this week.
Disregarding for the moment the apparent Israeli violation of Ukrainian sovereignty and the corresponding breach of art. 2 of the United Nations Charter, which will surely have diplomatic repercussions for Israel if the reports are shown to be true (Ukrainian Prime Minister Nikolai Azarov said on a recent visit to Israel that he “doesn’t want to imagine” that possibility), I wish to consider here the legality of abduction missions within the framework…
Self-determination and the “right” to resist occupation
The fundamental, collective human right to self-determination is arguably the cornerstone of the entire international legal order.
Self-determination is understood as the right of all national groups (in practice, groups recognized as such by themselves and by others) to be governed and represented (popularly or otherwise) by a sovereign state (or federation) functioning as the highest source of domestic legal authority. Affirmation of the right to self-determination is prominently featured in art. 1(1) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It is deemed to be an inherent right; that is, it does not derive from the international legal order but rather is presupposed by the latter: art. 1(2) of the United Nations Charter recognizes the principle of self-determination as a basis for the existence of the UN.
It is often assumed that the right to self-determination gives peoples living under foreign military occupation an absolute right to resist against the occupying power. It is interesting to note, therefore, that nowhere in international humanitarian law (IHL) – the primary body of law dealing with military occupation – can such a right be found or even inferred. Moreover, certain IHL provisions actually seem to preclude a general right to resist occupation. For example, IHL gives an occupying power not only the right, but the obligation to ensure…
In a showdown between the United Nations and Hezbollah, the rule of law could fall by the wayside
Political tensions in Lebanon have risen dramatically of late, threatening to erupt yet again into an all-out conflagration between the Sunni-led March 14 alliance, which heads the government, and the pro-Syrian March 8 alliance, which includes Hezbollah. Following a Lebanese newspaper report earlier this month on a massive drill by Hezbollah forces simulating a takeover of the entire country, many analysts are fearful of a resumption of the 2008 clashes in which Hezbollah effectively seized military control of several Lebanese cities, including the capital, in a successful bid for increased political influence.
The current escalations relate to the investigation being carried out by the Special Tribunal for Lebanon (STL) into the 2005 assassination of former prime minister Rafiq Hariri, who actively opposed the Syrian occupation of his country and had been contemplating a return to politics at the time of his death. His bloody assassination galvanized the nationalist, anti-Syrian movement in Lebanon, sparking massive public demonstrations and international outcry which led in a matter of weeks to the end of Syria’s 29-year occupation of the country. STL was established at the behest of the Lebanese government and pursuant to UN Security Council Resolution (UNSCR) 1757, which referred to the assassination as a “terrorist crime.”
This is the first time an international tribunal of this kind has been set up to investigate and prosecute an act of terrorism.…
BY Daniel Haboucha
FILED UNDER
Comparative Law
Constitutional Law
Human Rights
Public International Law
Is proselytizing a basic human right?
Former British prime minister Tony Blair addressed McGill students on Friday as part of his Faith and Globalization initiative, asking them, “Does religious faith become a means of providing civilizing values to civilization and thereby be a force of progress, or does religious faith become a badge of identity in opposition to those who aren’t of the same faith?” That is, is the continuing proliferation of religious identities good, bad, or simply inevitable? He proceeded to say that he sees this as the dominant question of the 21st century.
Previously, I have attempted to explore the limits of freedom of religion in Canadian and international law; I now return to this subject in order to consider the question of whether freedom of religion encompasses the right to proselytize one’s faith. While an exhaustive examination of the issue would doubtless require a far more detailed analysis than I am able to provide here, I hope to provide at least an overview of the relevant considerations.
Legislative provisions on religious proselytism vary widely from one country to another. Most western countries impose no specific constraints on proselytization, leaving its regulation to social norms of conduct or religious bodies themselves. A number of countries, such as Greece and Nepal, ban the activity outright and threaten transgressors with criminal sanctions. Many countries impose limits on who can proselytize: it is illegal for non-Muslims to…
Between sovereign states, good fences don’t necessarily make for good neighbours
Israeli Prime Minister Benjamin Netanyahu announced this week that he intends to expedite the construction of his country’s contentious security barrier. Right, you’re probably thinking, that’s old news. Israel has been building the wall in the West Bank for eight years now. That’s not the barrier I’m referring to though. I’m talking about the proposed 266-km fence which Israel plans to start building in the coming weeks along its border with Egypt. Its primary purpose, according to Israeli government sources: to keep out African asylum-seekers .[1]
There are currently around 25,000 African asylum-seekers in Israel, predominantly from the war-torn countries of Sudan and Eritrea, with hundreds more arriving monthly. They began arriving in significant numbers around the year 2000, with massive increases beginning in 2005 as the Egyptian government found itself unable to cope with the tens of thousands of refugees residing on its territory and initiated harsh and often violent crackdowns. Israel, as the only Western country with a land border with an African state, was an attractive option for many given its proximity, strong economy, government-sponsored education, and rule of law. Israel, with an already-delicate demographic balance, has been thoroughly overwhelmed by the number of claimants coming into the country (more, relative to its population, than virtually any other Western country), and is undertaking major reforms to its (previously non-existent) asylum system. To date, a miniscule…
Israel v. Palestine: Coming soon to a courtroom near you
Shortly after September 11, 2001, former US general Charles Dunlap wrote an essay warning of the risk that “lawfare” – the application of international law to inflict strategic damage on an opponent with the aim of achieving military objectives – could be used against the US in its emerging War on Terror.[1] In a subsequent article, he elaborated on two mechanisms by which lawfare could be employed as an unconventional means of confronting democratic states off the battlefield: first, by exposing real or alleged violations of international law on the part of an opponent to weaken domestic public support, destabilize the government, and penalize decision-makers; second, by promoting an understanding of international law that results in the formulation of operational policy that is unnecessarily constrained and detrimental to the opponent’s military capabilities. The harm that results from both, he concludes, is ultimately self-inflicted and could be avoided by strict adherence to the rule of law.[2]
The consequences envisioned by Dunlap constitute only part of lawfare’s potential impact. With increasing frequency over the last decade, litigation as a means of pursuing strategic military or political objectives has been employed in the Middle East conflict against state, non-state, and private actors alike.
The most common tactic involves attempts to indict Israel’s leadership in foreign or international forums for alleged breaches of international humanitarian law. One of the most high-profile cases…
What’s wrong with banning the niqab?
Let’s start with the obvious: it violates the religious freedom of Muslim women who choose to wear the niqab for reasons of faith. Even those who would defend a ban, such as noted constitutional lawyer Julius Grey, acknowledge that this would violate religious freedoms – however, freedom of religion in Canada is never absolute, and the question is whether or not the government would be able to adequately justify such an infringement.
It is widely speculated that Bill 94 – proposed legislation that would bar the niqab from being worn in government offices, hospitals, and schools in Quebec – will face fierce legal challenges despite the overwhelming public support it receives in Quebec and the rest of Canada. There are three principle avenues by which one might pursue a legal challenge to this legislation.
The first is to sue the government in Quebec Superior Court, invoking the Canadian Charter of Rights and Freedoms. The Canadian Charter stipulates that everyone is fundamentally entitled to freedom of conscience and religion, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (as determined using the two steps outlined in the Oakes Test).
The second avenue is to bring a complaint to the Quebec Human Rights Commission alleging discrimination on the basis of the Quebec Charter of Human Rights and Freedoms. The Quebec…
