Jekyll or Hyde: Curtailed justice at the ICC?

The Security Council’s ability to suspend ICC investigations destabilizes the necessary independence of the court. Through Article 16 of the Rome Statute, the SC moves the ICC beyond a legal ideal into a political reality where diplomatic peace and justice can sometimes conflict. For reasons laid out below, this legal/political tension suggests that Article 16 is a Jekyll and Hyde provision. To consider Article 16 as a positive aspect of the Rome Statute, its dual character must be monitored through a continuous case-by-case assessment. This article will consider the implications of Article 16 and the possible consequences arising from Resolution 1422.

Article 16 – On Compromise and Politics

Article 16 represents a compromise between the SC and the ICC.  In its earlier form, Article 16 prevented the ICC from commencing a prosecution on any situation being dealt with by the SC unless the SC decided otherwise [here at 1509].  This broad provision would have jeopardized independence of the ICC and left it susceptible to the political motivations of the SC.  Viewed through a lens of compromise, the current version of Article 16 is a more palatable alternative. It arguably strikes an essential balance between recognition of the Security Council’s primacy over international peace and security and the Court’s independence. While the article still alters the independence of the ICC, it allows for investigations to continue unless the Council formally decides to stop the process.…

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Les assassinats ciblés au regard du droit international: légaux ou pas?

Depuis que les États-Unis ont déclaré leur « guerre contre la terreur » suite aux événements du 11 septembre 2001, de multiples attaques ciblant spécifiquement une personne ou un groupe ont été exécutées sur le territoire d’un État étranger. Notamment en ce qui concerne le conflit israélo-palestinien, au cours duquel la Force israélienne de défense a rendu publics ses agissements, n’hésitant pas à organiser l’assassinat de dirigeants de groupes de l’opposition palestinienne présumés avoir commis des actes terroristes. Les assassinats ciblés forment donc un problème préoccupant sur le plan juridique à une époque où les techniques et stratégies de guerre ne cessent d’évoluer.

Nils Melzer, conseiller juridique au Comité international de la Croix-Rouge et auteur du livre Targeted Killing in International Law, définit un assassinat ciblé comme l’utilisation d’une force létale par un sujet de droit international et dirigée à l’encontre d’une personne individuellement sélectionnée n’étant pas détenue.  Cette force doit être intentionnelle (plutôt que négligente ou insouciante), préméditée (plutôt que simplement volontaire) et délibérée (dans le sens que la mort de la personne ciblée est le but ultime de l’opération, à l’opposé du cas où la mort bien qu’intentionnelle et préméditée demeure le résultat accidentel d’une opération poursuivant un tout autre but)[1]. Ces attaques posent d’épineux problèmes lorsque considérées en vertu du droit humanitaire international et du droit international des droits humains. La communauté juridique internationale est d’ailleurs divisée sur la question…

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More Atrocities in the Congo

Drifting from my previous posts on international family law, I will focus today on the recent Human Rights Watch report on the Lord’s Resistance Army atrocities in the Congo.  I have chosen to highlight this report for two reaons.  First and foremost, I believe that the direct and indirect victims of the situation in the Congo deserve—at the very least—the world’s attention.  Secondarily, I believe the report points out the nuanced and interdependent relationship between human rights and humanitarian law.

The 73-page report is heartbreaking.  It contains information from 128 interviewees interviewed by three Human Rights Watch staffers.  The accounts of murder, violence against children through child soldiers, rape, torture, abduction, and unimaginable brutality are not easy to read.  I did, however, feel a duty to pay attention to these accounts.

Astonishingly (at least to this Western writer), the 312 murders and 250 abductions went relatively unnoticed for months.  The area’s remoteness slowed communication, assistance, and investigation.  This persistent isolation surely devastates the local population, who were unimaginably terrorized by these atrocities.  Thanks to the courageous interviewees and interviewers, the world can take notice and seek some measure of justice.

The Human Rights Watch report calls for justice by addressing several stakeholders.  It first demands that the LRA cease its attacks and release its prisoners.

The report then addresses the governments of the Congo, Uganda, Central African Republic, and Southern Sudan, calling on these governments…

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Disentangling politics and law in East Jerusalem

Israeli construction in East Jerusalem is nothing new; since 1967, when Israel conquered the territory along with the rest of what had come to be known as the West Bank from neighbouring Jordan and extended Israeli administration over the entire city, Israel has settled close to 200,000 of its Jewish citizens in Jerusalem’s eastern sector (which has an Arab population of approximately 230,000).[1] Due to the acceleration of Israeli construction in recent months and renewed political will within the US administration to aggressively advance the Israeli-Palestinian peace process, East Jerusalem construction has increasingly become a source of tension between Israel and its Western allies and a focal point of media attention.

The status of Jerusalem is one of the most contentious issues in the Middle East and has no clear-cut solution. I would not presume to offer one. I will, however, attempt to disentangle and analyze some of the various legal and political considerations that are implicated in Israel’s construction in East Jerusalem.

Historical overview

Faced with rising internecine conflict between Jews and Arabs in Mandatory Palestine and the incompatible nationalist aspirations of both groups, Britain in 1947 placed the question of Palestine before the United Nations. The UN General Assembly proposed to partition Palestine (Resolution 181) into two sovereign states, with Jerusalem a corpus separatum to be administered by an international regime under the control of the UN. This proposal was never implemented; during…

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An Interview with South African Refugee Lawyer Fatima Khan

Professor Fatima Khan is a refugee lawyer and the Executive Director of the University of Cape Town Refugee Law Clinic. The clinic is funded by United Nations High Commission for Refugees (UNHCR), the University of Cape Town, the Atlantic Philanthropies and the Sigrid Rausing Trust. The clinic houses a centre for applied research, and has provided legal assistance to refugees and asylum seekers since 1998.  Ms. Khan lectures on Refugee Law to undergraduate and graduate students at the University of Cape Town, and is currently editing and co-authoring a bound volume that will analyze refugee legislation in various global jurisdictions.

[You may stream or podcast a 20 minute interview with Ms. Khan here]

Philip Duguay: You are a scholar who studies interpretation of international refugee law across various national jurisdictions. Where does South Africa lie on the spectrum in terms of its acceptance and implementation of the 1951 UN Convention on the Status of Refugees? In other words, how much weight does the Convention carry in South African case law?

Fatima Khan: The Convention carries a lot of weight in terms of South African law. The entire Convention has been accepted into South African law. However, I must say that South African refugee law is far more progressive and advanced than the Convention, which is in my view a ‘Euro-centric’ document. The definition of the refugee in South African law, for example, is far more extensive than the…

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Sliding Through the Cracks: U.S. Private Military Contractors and International Humanitarian Law

“Some of the newest armed non-state parties operating in unstable states and conflict situations come from an unusual source: the private sector.”[1]

Expansion of U.S. involvement in Iraq and Afghanistan has made private military and security contractors (PMSCs) virtually indispensable. In her book One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy, Allison Stanger reveals that last year, PMSCs accounted for 48 percent of the U.S. Defense Department’s workforce in Iraq and 57 percent in Afghanistan.[2] “Without a multinational contractor force to fill the gap,” she argues, “we would need a draft to execute these twin interventions.”[3] Hired help it seems, is the only way for a thinly stretched U.S. military to sustain current operations.

“On a superficial level, the shift means that most of those representing the United States … will be wearing the scruffy cargo pants, polo shirts, baseball caps and other casual accoutrements favored by overseas contractors rather than the fatigues and flight suits of the military.”[4] A closer look reveals that today’s private contractors do everything from providing security services at U.S. embassies[5] to performing “enhanced interrogations” – a.k.a. torture[6] – at Abu Ghraib and loading bombs onto remotely piloted Predator drones that lethally target members of Al Qaeda.[7]

This growing involvement in core military operations has sparked debate over the role, status and accountability of private contractors under international humanitarian law (IHL). In her contribution to the International Review of the Red Cross,…

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Bil’in (Village Council) c. Green Park International Inc: an Overeaching Assertion of Jurisdiction?

In his detailed analysis of Bil’in (Village Council) c. Green Park International Inc, James Yap argues that the plaintiffs will have a great chance of overturning Cullen J.’s decision to decline jurisdiction. Since our own Alexandra Dodger introduces this intricate case very well, I direct those who are unfamiliar with it to her entry. While I welcome the decision for its potential to end the impunity with which Canadian corporations operate overseas, I believe that the Court of Appeal would not overturn Cullen J.’s decision if it did hear the matter. I agree with the outcome because the connection between the dispute and Québec is far too superficial for a Québec court to legitimately claim jurisdiction over the action. However, the issues raised by the application of forum non conveniens to this case should make us think twice before dismissing the plaintiffs’ action as an abusive or exaggerated assertion of jurisdiction.

The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later points out

this lone and apparent…

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A Trend Toward the ‘Humanization’ of Conflict Law?

Israeli Targeted Killing and the relationship between international humanitarian law and human rights

The modern laws of warfare were born in the nineteenth century from Europe’s fears “about the escalating severity of war”[1]. As the decades passed, war’s means, methods, aims and tactics have changed. Suicide bombers that melt into the civilian population have replaced ordered battalions of uniformed soldiers. Strikes from unmanned Predator drones have supplanted direct confrontations on the battlefield. Wars are fought not only against states, but also against colonial domination, racist regimes and abstract social phenomena, most notably the “war on terror”.

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Should International Law Accountability Extend to US Drone Operations?

Opinio Juris recently cited remarks by Philip Alston, the United Nations’ Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, in which he argued that the United States should publicly discuss its unmanned drone activities in Waziristan. The United States Government’s terse response is that the “Predators are targeting combatants in armed conflict.” Insufficient, says Alston, because the drones are striking numerous targets including civilians, without being subjected to international law scrutiny. This begs the obvious question of whether or not the drone attacks are justified. As it’s an interesting question, I hope to read more about it. However, this piece will explore Alston’s conception of international law accountability vis-à-vis the drone attacks. I argue that the drone operations should face international law scrutiny, but in a less publicized fashion

Alston’s argument seems prima facie justifiable. If an actor’s military operations are killing civilians and worry UN investigators, surely the member state government should either issue a convincing public defence  of the operations or end them. Yet, if US government lawyers do the former, they may risk compromising key military operations. Why is this, and if it is the case, how can the drone operations face international law scrutiny?

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Last Week in International Law

1. Prosecutor v. Karadzic

Proceedings against Radovan Karadzic began on October 28, 2009, despite the accused’s refusal to attend court. The case was supposed to start on October 26 but Karadzic, who is representing himself, asked for at least eight more months to prepare his case. The court gave him 24 hours to change his mind. After he failed to appear on Tuesday, judges ordered the Prosecution to open its case and warned Karadzic to appear in court or risk having counsel assigned to him and being tried in absentia.

For more information, see the Reuters article or our own Lee Rovinescu’s analysis of the situation.

2. R. v. Munyaneza

On October 29, 2009, Justice André Denis of the Quebec Superior Court handed down a life sentence to Désiré Munyaneza, the Rwandan genocidaire who helped organize and perpetrate the mass-murder of Tutsis in the Butare area. On May 22, 2009, Justice Denis found Munyaneza guilty of two counts of genocide, two counts of crimes against humanity and three counts of war crimes. Having concluded that the killings were premeditated, Justice Denis held that Munyaneza would not be eligible for parole for 25 years.

Munyaneza was the first person to be charged under Canada’s Crimes Against Humanity and War Crimes Act. The Act incorporates universal jurisdiction, allowing Canada to prosecute any individual present in Canada for genocide, war crimes and crimes against humanity.

3. United States of America v.…

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