June 5, 2010
The diplomatic disaster created by Israel's attack on a Turkish ship continues. Turkish diplomats warn that Israel risks losing its relations with Turkey unless it apologizes for the attack, consents to an international investigation, and lifts the blockade of Gaza.
Israel seems unlikely to do any of those actions. It claims that the midnight helicopter raid on a Turkish ship in international waters was necessary to prevent the flotilla from reaching Gaza. It denies that there is a humanitarian crisis in Gaza that warrants such relief efforts, and it argues that ships can deliver goods through a port where goods can be inspected.
A professor at a school in California suggested that the entire incident sounded like a complicated fact pattern for the Jessup International Moot Court Competition, and that each side in the dispute has both winning and losing arguments, just as they would if this were an imaginary dispute being argued by law students. Is the blockade an unlawful collective punishment? Was the Turkish ship really in international waters? Was the use of deadly force a disproportionate response? Do you have a right of self-defense if you're the one who went on the ship in the middle of the night after being lowered there by a helicopter?
An Irish ship is the next to sail toward Gaza in hopes of breaking the blockade, so this drama will continue. Other ships are sure to follow, and Israel's actions will be closely watched. The Israeli and Irish governments agreed that the ship should go instead to the Port of Ashdod, but the pro-Palestinian activists on the ship rejected that compromise reached on their behalf.
In the Turkish situation though, it is distressing to see that what was a promising relationship between Israel and Turkey is now on the brink of collapse. Skillful diplomatic skills are needed now more than ever to save that relationship.
South Korea Asks U.N. Security Council to Act Against North Korea
South Korea submitted a letter yesterday to the U.N. Security Council, asking that the Council "respond in a manner appropriate to the gravity of North Korea's military provocation" after North Korea sank the Cheonan, a South Korean war ship, on March 26, 2010.
Any Security Council action would need to survive a veto by the People's Republic of China, one of the five permanent members of the Security Council and a neighbor of North Korea.
According to the New York Times, immediate action is not expected on South Korea;s request because the Security Council is still working on a sanctions resolution against Iran and a response to Israel's attack of a Turkish ship that was part of a flotilla for Gaza.
June 4, 2010
Another Reason Why We Love Being International Lawyers . . .
The Mexico Committee of the American Bar Association Section of International Law has had to reschedule its monthly telephone conference that was to have taken place on June 11, 2010.
On that day, Mexico will play South Africa in the World Cup, so no one on the Mexico Committee was able to participate in the conference call . . . .
For more information about the Mexico Committee of the ABA Section of International Law, click here.
Special Court for Sierra Leone
Justice Jon Kamanda of Sierra Leone has been re-elected to serve as President of the Special Court for Sierra Leone (SCSL).This will be his second term as the Presiding Judge of the appeals chamber, a post that automatically makes him the President of the SCSL.
Justice Emmanuel Ayoola of Nigeria, who previously served as the court's President, was re-elected as Vice-President.
The SCSL is an independent tribunal established jointly by Sierra Leone's Government and the United Nations in 2002. It is mandated to try those who bear the greatest responsibility for atrocities committed in Sierra Leone after November 30, 1996.
Last September, the eight prisoners convicted and held by the SCSL were transferred to Rwanda to serve their sentences because no prison in Sierra Leone meets the required international standards. The remaining trial, involving former president Charles Taylor, is continuing at The Hague, where it was moved for security reasons.
(adapted from a UN Press Release)
June 3, 2010
Does R2P Do More Harm than Good?
William Magnusun recently published an article entitled, "The Responsibility to Protect and the Decline of Sovereignty: Free Speech Protection Under International Law" in the Vanderbilt Journal of Transnational Law, arguing that the responsibility to protect (R2P) doctrine has solved one problem in international law while opening up another. He states:"After World War II, countries began to accept that human rights violations inside of a country were the concern of the international community as a whole, and human rights treaties proliferated. These treaties were weak, though, and generally unenforceable. After the crises in Rwanda and Somalia, countries came together to create the doctrine of a responsibility to protect, under which the international community had an obligation to protect the rights of all individuals in cases of genocide or crimes against humanity. But the doctrine left out a whole slew of other important individual rights, including the freedom of speech. . .This selective choosing of rights does harm to the legitimacy and power of international law." To read more, you can access the article on SSRN here.
June 2, 2010
Pakistan Jails Two Men on Allegations of Same-Sex Marriage
Pakistan has imprisoned two men on charges of having a same-sex marriage. The men deny the charges and say that they were just friends at a birthday party. Click here for a report (and video) from CNN, including some comentary on a Pakistani Supreme Court case from 2009.
US State Department Releases Report on Compliance with Child Abduction Convention
During Fiscal Year 2009, the Office of Children’s Issues of the Department of State experienced a significant increase in the number of reported international parental child abduction cases. The Convention provides a civil mechanism for many parents who seek the return of their children. To date, the United States partners with 68 other countries under the Convention. The report can be found online at travel.state.gov/childabduction.
Donors Urged to Fund Extraordinary Chambers in the Courts of Cambodia
Secretary-General Ban Ki-moon appealed to donors to provide urgent funding to the United Nations-backed court tasked with bringing justice to the people of Cambodia for the heinous crimes committed by the Khmer Rouge regime in the late 1970s.
The Extraordinary Chambers in the Courts of Cambodia (ECCC), composed of both national and international judges and staff, were set up in 2003 under an agreement between the UN and the Royal Government.
The court is facing a shortfall of more than $21 million for 2010, including $14.6 million for the international component and at least $6.5 million for the national component. Neither of these figures includes future commitments for staff salaries and entitlements. For 2011, the total budget of $46.8 million is unfunded, except for $1.1 million pledged by the Cambodian Government for the national component.
(excerpt from a UN Press release)
June 1, 2010
Belgium, Denmark, and Finland Agree to Detain Persons Convicted by the ICC
Three European countries signed an agreement with the International Criminal Court (ICC) to enforce the ICC sentences of imprisonment. This brings to five the number of countries that are willing to detain people convicted by the ICC.
Representatives of Belgium, Denmark, and Finland signed the agreement during a ceremony in Kampala, Uganda, where the ICC review conference is taking place. Austria and the United Kingdom have previously entered into similar agreements with the court to enforce sentences.
The ICC is based in The Hague in the Netherlands and tries people accused of genocide, war crimes, and crimes against humanity. Investigations are ongoing into five situations: Uganda, the Democratic Republic of the Congo (DRC), the Central African Republic (CAR), the Darfur region of Sudan, and Kenya.
Four suspects are in the court’s custody and another eight suspects are at large. Two trials are under way.
(adapted from a UN Press Release)
Egypt Opens Rafah Border Crossing for Gaza
Thousands of people in Gaza have raced to cross the Rafah border after Egypt temporarily opened a crossing into the Palestinian territory. Egyptian President Hosni Mubarak ordered the Rafah Crossing to be opened for several days. Click here for more information.
More Reaction to Israel's Raid on the Humanitarian Ships Headed for Gaza
The United Nations Human Rights Council is holding an urgent debate in Geneva, taking up the issue of Israeli's raid on a convoy of ships carrying humanitarian aid and heading for Gaza.
Deputy UN High Commissioner for Human Rights Kyung-wha Kang expressed shock “that humanitarian aid would be met with such violence, and we unequivocally condemn what appears to be a disproportionate use of force.” She again appealed for an end to the blockade of the Gaza Strip, causing the suffering of 1.5 million Palestinians, which she characterized as “an affront to human dignity.” Ms. Kang expressed hope that “the Israeli Government will take the necessary decisive actions to demonstrate to the international community a clear commitment to abide by international law.”
The High Commissioner for Human Rights Navi Pillay said that “nothing can justify the appalling outcome” of the military operation, which killed at least 10 people and injured dozens of others. She joined Secretary-General Ban Ki-moon, the Security Council and others in calling for a probe into the operation, underscoring the need for accountability. Ms. Pillay called on the Israeli Government to heed the “almost unanimous international view that the continued blockade of Gaza is both inhumane and illegal.” The blockade, she pointed out, “lies at the heart of so many of the problems plaguing the Israel-Palestine situation, as does the impression that the Israeli Government treats international law with perpetual disdain.” Without the blockade, the High Commissioner noted, “there would be no need for flotillas like this.”
At yesterday’s Human Rights Council debate, which heard from dozens of speakers, Ambassador Aharon Leshno-Yaar of Israel expressed regret over the loss of life in yesterday’s incident, stressing the need for support of moderate parties to build on the momentum generated by the recent start of proximity talks between Israelis and Palestinians. He pointed the finger at a Turkish group called Insani Yardim Vakfi (IHH) for what he said was a pre-meditated act against Israeli forces. The flotilla, he said, was not on a humanitarian mission but was rather seeking to provoke and incite, and convoy passengers had used knives and clubs, shooting two Israeli soldiers.
For his part, Imad Zuhairi, representing Palestine, called for legal action to be taken over the operation, saying that Israel’s actions would not help to strengthen the ongoing peace process. Mr. Zuhairi called for a fact-finding commission to look into the raid and underscored the need for Israel to free all those who have been detained and allow the relief supplies on the convoys to reach Gaza.
Also speaking out against yesterday’s events was General Assembly President Ali Treki, who said in a statement issued in New York that he is “deeply shocked over this inhuman and totally unacceptable aggression and use of force against humanitarian personnel from around the world, and which is a flagrant violation of all principles and rules of international law.” Dr. Treki urged an “end to impunity,” underlining the importance of an immediate and independent probe into yesterday’s events. He also repeated the call by UN officials and others to lift the blockade.
For its part, the World Health Organization (WHO) again appealed for unimpeded access of life-saving medical supplies into Gaza.
Hundreds of items of equipment – including CT scanners, x-ray machines and laboratory supplies – have been waiting to enter the area for up to a year, said Tony Laurance, who heads the agency’s Gaza office. "It is impossible to maintain a safe and effective health-care system under the conditions of siege that have been in place now since June 2007,” he said. “It is not enough to simply ensure supplies like drugs and consumables. Medical equipment and spare parts must be available and be properly maintained.” Mr. Laurance also said the blockade prevents the sending of medical equipment, such as defibrillators, out of Gaza for routine safety inspections. “Such disruptions and the fragmented supply chain brings and an unpredictability in scheduling live-saving procedures at a time and place when they are need to save lives,” he stressed.
(adapted from a UN Press Release)
Japan's Prime Minister to Resign
The prime minister of Japan, Yukio Hatoyama, has reportedly told senior officials of the ruling Democratic Party that he plans to resign. The announcement comes after his approval ratings fell after he broke a campaign promise to move a U.S. military base off of the island of Okinawa. Click here to read more. Hatoyama's resignation comes just eight months after his party won the general election. He is the fourth Japanese prime minister to resign in four years.
FSIA Does Not Bar Suit Against Somali Official
The U.S. Supreme Court ruled today in Samantar v. Yousef that the Foreign Sovereign Immunities Act (FSIA) does not provide immunity from suit for a Somali official accused of human rights violations. In that case, plaintiffs brought suit against Samantar, a former First Vice President and Minister of Defense, and later Prime Minister, of Somalia in the 1980s. Plaintiffs alleged that they were victims of torture and extrajudicial killings at the hands of Somali military personnel and that Samantar knew or should have known of the abuse and taken steps to prevent and stop it. In his defense, Samantar argued that he was immune from suit under FSIA as an official of a foreign state who was acting in his official capacity.
In an opinion delivered by Justice Stevens, the Supreme Court held that neither the language nor the history or purpose of the FSIA suggests that the immunity from suit provided to states should be extended to individuals. The text of FSIA states that it applies to political subdivisions of states and their agencies or instrumentalities, and there is no indication that its protections should be extended to individuals. Because this is a suit against an individual, the Court suggested that it is more appropriately governed by common law principles rather than FSIA. All of the justices agreed with the judgment, although three (Alito, Scalia and Thomas) wrote concurring opinions.
Will Patterson is New Executive Director at ILSA
Will Patterson starts work today as the new Executive Director of the International Law Students Association (ILSA), the organization that brings us the Philip C. Jessup International Law Moot Court Competition. He replaces Amity Boye.
To learn more about ILSA, and to support its work, click here.
IAEA Head Welcomes Final Document from NPT 5-Year Review
The head of the International Atomic Energy Agency ( IAEA) has welcomed the unanimous adoption at the end of the latest review of the Nuclear Non-Proliferation Treaty (NPT) of a document that contains steps towards achieving a nuclear-free Middle East.
The final document issued last week calls on U.N. Secretary-General Ban Ki-Moon and the co-sponsors of a 1995 resolution proposing a Middle East free of nuclear and other weapons of mass destruction to convene a conference to be attended by all States in the region.
May 31, 2010
Two More Nations Ratify CTBT
The Central African Republic and Trinidad and Tobago are the latest counties to ratify the Comprehensive Nuclear-Test-Ban Treaty (CTBT), which opened for signature in 1996. Click here for a full list of parties to the CTBT.
Indonesia also announced its intention to ratify the treaty. Click here for more information.
U.S. Law Professor Arrested in Rwanda
C. Peter Erlinder is a law professor at William Mitchell College of Law in Minnesota. Click here to read his law school bio. He is the director of the International Humanitarian Law Institute at William Mitchell. Erlinder is also president of ICTR-ADAD (Association des Avocats de la Defense) and past-president of the National Lawyers Guild in New York City.
According ot a report in today's Chicago Tribune, Professor Erliner travelled to Rwanda on May 23 to help defend opposition presidential candidate Victoire Ingabire against charges of promoting genocidal ideology. Ingabire was arrested earlier this year.
Professor Erlinder was arrested on Friday at his hotel in Kigali, the capital of Rwanda. Attorneys were allowed to visit him on Saturday but were denied access on Sunday "and told to pay up if they wanted Erlinder to continue to eat in jail."
Professor Erlinder's daughter Sarah told the Chicago Tribune that she thought that his arrest had very little to do with the 1994 genocide in Rwanda but was related with representing an opposition candidate.
Professor Erlinder started working as a defense attorney for the International Criminal Tribunal for Rwanda in 2003. He also runs the Rwanda Documents Project, which publishes articles that are critical of the government of Presdient Paul Kagame. Click here for an example.
Erlinder was arrested on Friday on charges of denying genocide. The crime carries a possible sentence of 20 years.
Erlinder had warned that he might be targeted by the government of President Paul Kagame.
President Kagame has been lauded abroad for social and economic reforms. The president is running for another seven-year term. The elections will be held on August 9. Some human rights groups are reported to say that Kagame's administration rules with an iron hand and quashes dissent. Click here to read more.
The dean of the William Mitchell College of Law issued the following statement:
Statement from President and Dean Eric S. Janus on Prof. Peter Erlinder’s arrest in Rwanda
On Friday, May 28, we were notified that Professor Peter Erlinder was arrested in Rwanda. At this time, he has not been charged with any crime. Our primary concern is for Prof. Erlinder’s safety and we hope the situation is resolved both fairly and promptly.
William Mitchell is working with the United States Department of State, the U.S. Embassy in Rwanda, and the International Criminal Tribunal for Rwanda to monitor the situation and provide any assistance possible. In addition, we are in contact with representatives from the offices of Sen. Amy Klobuchar, Rep. Betty McCollum, and Rep. Keith Ellison to make them aware of the situation and provide information about Prof. Erlinder’s work in Rwanda.
William Mitchell has a 110-year history of legal education that is engaged with the legal profession, and we support and encourage the legal pursuits of our faculty beyond the college. Prof. Erlinder is in Rwanda to represent Victoire Ingabire, an opposition candidate for President of Rwanda who was arrested over accusations of promoting genocide ideology. In traveling to Rwanda, Prof. Erlinder exemplifies the great tradition of lawyers who take on the representation of unpopular clients and causes. That Prof. Erlinder did so at great personal risk demonstrates the strength of his commitment to justice and due process. We support his commitment to justice, the rule of law, and public service, which are the core of the lawyer’s function in society and values Prof. Erlinder works to instill in the students he teaches at William Mitchell.
We look forward to Prof. Erlinder’s return to the college and will continue to monitor his situation and work with the United Nations and the United States government until the issue is resolved.
Our Blog is Two Years Old this Month
The International Law Prof Blog is two years old this month. We thank the thousands of visitors from more than 100 countries and territories around the world who are regular readers of our blog. Thank you, everyone.
Mark, Cindy, Cyndee, Laurent, and Michael
Australia Expected to File ICJ Action Week Against Japan for Whaling
Australia has reportedly exhausted all diplomatic efforts with Japan over its whaling program. Radio Australia reports that Australia is expected to file a case against Japan this week in the International Court of Justice.
Radio Australia also reports that New Zealand Foreign Minister Murray McCully said that his government share's Australia's concerns over Japanese whaling but that New Zealand would continue diplomatic efforts for the time being rather than joining the case or filing its own case against Japan.
Hat tip to the East-West Center.
Reactions to Israel's Raid on the Flotilla for Gaza
Israel attacked a flotilla of six ships that tried to break its blockade of Gaza. The Israelis killed 9 activists on those ships, 8 of them from Turkey. The ships were carrying 700 people and 10,000 tons of supplies, including electric-powered wheelchairs, prefabricated homes, and water purifiers.
The attack has set off a diplomatic storm. Click here for a video report from Reuters.
After the attack, Israeli Prime Minister Benjamin Netanyahu cancelled plans for a meeting with U.S. President Barack Obama.
Secretary-General Ban Ki-moon today expressed his shock at the deadly raid on boats loaded with relief supplies headed for Gaza, calling on Israel to fully explain its actions. According to media reports, early this morning in international waters, Israeli forces raided the six-ship aid convoy, also carrying hundreds of activists, with more than ten people having been killed. “I condemn this violence,” Mr. Ban said from Kampala, Uganda, where he presided over the first review conference of the International Criminal Court. “It is vital that there is a full investigation to determine exactly how this bloodshed took place,” he said. “I believe Israel must urgently provide a full explanation.”
The Security Council is scheduled to meet this afternoon in an emergency session to discuss the incident.
The League of Arab States may also hold an emergency meeting tomorrow. Arab League Secretary General Amr Moussa is reported to have said that "Israel's attack indicates that Israel is not ready for peace. Israel attacked the liberty fleet because it feels it is above the law."Egypt summoned the Israeli ambassador. The Israeli Academic Center in Cairo, which aids to build ties in Egypt, has canceled all lectures for the coming week.
The Lebanese prime minister Saad al-Hariri called Israel's attack a "crazy step" that risked inflaming conflict in the region.
Turkey, an Israeli ally in the region, has called off three joint military exercises with Israel. Turkish Prime Minister Tayyip Erdogan has cut short an official visit to Latin America. Turkey summoned Israel's ambassador and said it may recall its own ambassador. Israeli nationals have been advised to avoid travel to Turkey and to keep a low profile if they are already in the country. Demonstrators are reportedly assembling in front of the the residence of Israel's ambassador to Turkey.
The United Nations has repeatedly spoken out against the closure of Gaza and raised concern over the insufficient flow of material into the area to meet basic needs and spur reconstruction. Mr. Ban cautioned in a recent meeting that the closure “creates unacceptable suffering, hurts forces of moderation and empowers extremists.”
Also speaking out against today's raid was UN High Commissioner for Human Rights Navi Pillay, who emphasized that “nothing can justify the appalling outcome of this operation.” She called for a probe into the incident and underscored the need for accountability. “I unequivocally condemn what appears to be disproportionate use of force, resulting in the killing and wounding of so many people attempting to bring much-needed aid to the people of Gaza, who have now been enduring a blockade for more than three years,” Ms. Pillay said. She called on the Israeli Government to heed the “almost unanimous international view that the continued blockade of Gaza is both inhumane and illegal.” The blockade, the High Commissioner pointed out, “lies at the heart of so many of the problems plaguing the Israel-Palestine situation, as does the impression that the Israeli Government treats international law with perpetual disdain.” Without the blockade, she noted, “there would be no need for flotillas like this.”
Richard Falk, the U.N. Special Rapporteur on the situation of human rights in the occupied Palestinian territory, said that “Israel is guilty of shocking behavior by using deadly weapons against unarmed civilians on ships that were situated in the high seas where freedom of navigation exists, according to the law of the seas.” He echoed the calls by the Secretary-General and the High Commissioner for an investigation into today's incident, stressing that it is “essential that those Israelis responsible for this lawless and murderous behavior, including political leaders who issued the orders, be held criminally accountable for their wrongful acts.” Mr. Falk characterized the blockade of Gaza as a “massive form of collective punishment” that is tantamount to a crime against humanity. “Unless prompt and decisive action is taken to challenge the Israeli approach to Gaza all of us will be complicit in criminal policies that are challenging the survival of an entire beleaguered community,” he said.
The French Foreign Minister Bernard Kouchner was reported to have said that the violence could not be justified and that he was "profoundly shocked by the tragic consequences of the Israeli military operation against the Peace Flotilla for Gaza."
Israel denies that it has created a humanitarian crisis in Gaza and says that it allows sufficient food and medicine into the territory. Click here for more statements from the Israeli Ministry of Foreign Affairs.