“Mapiripán Massacre Scandal” Affair

A scandal happened recently relating to an Inter-American Court of Human Rights (IACHR) case, raising interesting issues of lawyers’ ethics, among others. Here is a summary of the facts drafted by Lawyers Without Borders Canada (LWBC), coming from the statement they have made concerning the recent events.

“A recent testimony of Ms. Mariela Contreras is at the root of the present affair. Ms. Contreras declared before the Colombian justice system in 2002, and before the Inter- American Court on Human Rights (IACHR), in 2005, that she had lost her husband and two sons in the massacre perpetrated by paramilitaries in July 1997 in the village of Mapiripán, with the complicity of regular military forces. On October 25th, 2011, she testified at Court that she had in fact lied and fraudulently benefited from the monetary compensation paid by the Colombian State as a result of the historical ruling in this case.”[i]

LWBC has not been personally involved in the case, so critics were not aimed at the organization in particular. LWBC is however closely linked to the Colectivo de abogados « José Alvéar Restrepo » (CAJAR), with whom they are partners in several projects. CAJAR is a Colombian human rights law firm, and they were representing some victims in the Mapiripan case in front of the IACHR, Ms. Mariela Contreras being one of those alleged victims. LWBC has thus expressed…

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Is the Pedestal-ing of the “Rule of Law” Cause for Concern?

The “rule of law” has been put on a pedestal in international political and development discourse. No other “idea” (I am not quite sure what it is) shares its privileged place in our legal imagination. No other idea, Brian Tamanaha says, has achieved such a “global endorsement”.[1] Thomas Carothers laments that:

One cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world’s troubles.[2]

More mental energies need be expended to put the “rule of law” in its place. Internal tensions and ignored controversies need to be better exposed. To begin, we should adopt the most formal, ‘thinnest’ understanding of the rule of law: that laws ought to be prescribed, forward looking, written and made public, relatively clear, non-conflicting, and that adjudicative forums ought to be accessible and impartial.

Understood that way, the ‘rule of law’ is an end-point. It is not a contained principle but a set of general prescriptions that are desirable because of what they do and afford to legal subjects. A legal system that adheres to formal rule of law prescriptions affords individuals the ability to make proper self-regarding decisions, because the consequences of potential courses of action are more ascertainable. Firms don’t make hallowed “life choices”, but that same certainty and stability may induce firms to invest or transact where…

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Israel’s other refugee question

This past August, visiting Israel for the first time and staying with a friend in south Tel Aviv, I was immediately struck by the number of African faces I saw in her neighbourhood. These Africans, I was informed, were migrants mostly from Eritrea, Darfur, and Southern Sudan (now the Republic of South Sudan) who were seeking protection in Israel under the 1951 Refugee Convention. You see, until that point, my knowledge of Israel’s refugee issues extended only to the question of the right of return of the Palestinians expelled in 1948 and their descendants. As a “final status” issue in Palestinian-Israeli negotiations and one that cuts to the core of the national identities of both factions, it is easy to understand how this new class of African refugees can escape the attention of human rights lawyers and advocates abroad.

I was in Israel taking part in a program on law and internal diversity, a partnership of McGill and the Hebrew University of Jerusalem, so thankfully I was able to explore Israel’s refugee policies in greater detail in a course on migration and diversity. For conceptual clarity, an asylum seekers is a person who is making a claim under the Refugee Convention and and a refugee is one whose claim has been accepted by the receiving country. It is notoriously difficult to collect statistics on migration flows,…

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Bush, torture, and politics trumping law

Human rights and anti-war activists greeted former U.S. President George W. Bush’s visit to British Columbia last month with calls for his arrest. The demonstrators correctly asserted that Canada has a responsibility to investigate Bush for his role in the torture of detainees in U.S. custody.

A visit by former Vice President Dick Cheney in September received a similar welcome, as have other visits by Bush administration officials. Already in 2004, a group called Lawyers Against the War tried to bring torture charges against Bush by filing criminal charges.

The number of voices calling for investigation and prosecution is growing and now includes several mainstream human rights organizations, including Amnesty International and Human Rights Watch. On the political stage, federal NDP Immigration critic Don Davis urged the government to deny Cheney entry into Canada.

The evidence against Bush and Cheney also continues to mount. The Canadian Centre for International Justice teamed up with the New York based Center for Constitutional Rights to file a 70-page draft indictment against Bush ahead of his visit to Canada. The indictment was accompanied by 4000 pages of evidence that described the U.S. program of extraordinary rendition, the torture of detainees at Guantanamo Bay, and secret CIA detention sites.

Bush himself has on various occasions admitted to authorizing torture techniques, such as waterboarding. In an interview with American journalist Matt Lauer, Bush claimed…

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Les droits de la personne sont-ils vraiment un “concept occidental”?

Les droits de la personne sont-ils seulement une expression moderne des ambitions impérialistes de l’Occident? Sont-ils une façon détournée de permettre aux pays occidentaux d’imposer leurs valeurs et leurs perceptions ? Devrait-on s’en méfier comme des représentants du néo-colonialisme? Manquent-ils de légitimité?

Je ne remets pas en question que l’application des droits de la personne puisse soulever des discussions et des désaccords. Je crois qu’il va sans dire que le concept de « liberté » ne représente pas exactement la même chose pour tous les habitants de la planète. Par contre, est-ce que quelqu’un s’est déjà prononcé contre la liberté? …Et si quelqu’un le faisait n’userait-il pas pour ce faire de sa liberté d’expression?  Les droits de la personne ne sont pas que des concepts juridiques, ils représentent des réalités bien concrètes.

Sans s’étendre dans l’analyse de chaque « droit », il est préférable de tenter de circonscrire le débat aux droits fondamentaux, aux droits qui peuvent trouver une représentation ou une autre dans diverses cultures, mais qui demeurent présents dans les systèmes de valeurs. Pour partir de droits très généraux, voici ma liste[1] : la liberté, l’intégrité, la dignité, la vie. Ces droits en englobent de nombreux autres, mais leur interprétation dépendra des choix culturels.

Il est important de revenir à l’objectif fondamental des droits de la personne : assurer un respect à la dignité de chaque être humain, donner une valeur juridique…

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Fragmented Laws, but Estranged? Belligerent Occupation, International Human Rights Law and Legislative Reform

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The Killing of Gadaffi: the death of a tyrant or the death of a chance at justice?

Gadaffi is dead. Libya’s chief forensic pathologist confirmed in an autopsy that Gaddafi was killed by a single shot to the head.  A previous Legal Frontiers entry explored the question of whether Muammar Gadaffi was a legitimate military target. NATO forces acted under Chapter VII of the UN Charter, some argue using force under the guise of UN Security Council Resolution 1973 and UN Security Council Resolution 2009. As it turns out, NATO troops were not the ultimate armed force to capture and subsequently kill Gadaffi, but the rebel movement, with essential lethal backing from NATO.

Libya’s non-elected interim leaders of the National Transitional Council (NTC) have since officially declared the country’s ‘liberation’ following the death of Muammar Gaddafi and called for reconciliation after more than four decades under the autocratic leader. However, the issue that has emerged since Gadaffi’s death has been whether this ‘liberation’ was achieved in a just manner. This speaks to the ability of the new NTC government to have adhered to the standard of the rule of law. Furthermore, this is especially pertinent in the volatile post-conflict transitional period Libya is currently in where the NTC will now also have to deal with many Gadaffi loyalists.

Several African leaders, such as President Jacob Zuma of South Africa, have voiced their concerns that Gaddafi should “

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Eroding Impunity? Sri Lanka’s ‘Lessons Learnt and Reconciliation’ Commission

Shortly following the end of the brutal decades-long conflict between the Sri Lankan government and the Liberation Tigers of Tamil Ealam (LTTE), international pressure mounted for an independent inquiry into allegations of war crimes and other violations of international law, particularly during the final stages of the war when the UN estimates that “tens of thousands” of civilians were killed between January and May 2009 . While the Sri Lankan government avidly rejected any such claims, about a year following the culmination of the conflict the president announced that he would form the ‘Lessons Learnt and Reconciliation’ Commission (LLRC) with “regard to the difficulties and troubled times that Sri Lanka had to undergo due to the terrorist inspired, manoeuvred and created conflict situation in recent years” and stemming from “the need for restorative justice by the Sri Lankan people.”

While human rights activists and NGOs were initially hopeful that such a commission would play a role akin to that of the ‘Truth and Reconciliation’ Commission of South Africa, the result fell short of expectations.

The differences in the context in which the two commissions came into fruition are clear – one followed democratization of the country and the sweeping in of a new regime, and the other followed the annihilation of separatist forces and the ruling regime’s consolidation of power over the last bits…

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Does the ICTR contribute to long-lasting stability in Rwanda ?

The International Criminal Tribunal for Rwanda was created in November 1994, following a request by the Rwandan government to the Security Council. When  the Security Council adopted the resolution creating the ICTR, it stated that the members were “Convinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the process of national reconciliation and to the restoration and maintenance of peace”. Hence, social reconstruction was one of the objectives behind the creation of the institution.

There are disagreements on what the impacts of criminal prosecution of war criminals have on social reconstruction. While I think criminal prosecution can be helpful for achieving a social balance and helping the country build on that balance, I doubt that it is the case for the ICTR.

Since its creation, the ICTR has not made one indictment against the Rwandan Patriotic Front (RPF), the “winners” of the armed conflict in Rwanda. The RPF had been actively fighting the Hutu government a long time before the 1994 events, and  have been the government ever since winning the war and putting an end to the 1994 genocide.

Still, it has been widely reported that the RPF have also committed their share of international crimes. It is not to say that the ICTR prosecutors are partial…

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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…

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