Friday, June 25, 2010
Prosecutors at the International Criminal Court stressed today that there must be no impunity for any serious crimes committed during the 2008 conflict in South Ossetia, Georgia, after they wrapped up an official visit to the Caucasus country. A delegation from the ICC prosecutor’s office spent three days in Georgia this week as part of their preliminary examination to determine whether a formal investigation should be opened into the conflict, which pitted Georgian forces against South Ossetian and Russian forces. The fighting in August 2008 killed hundreds of soldiers and civilians and displaced an estimated 160,000 people from their homes.
Georgia is a State Party to the Rome Statute that created the ICC, and as such the Court potentially has jurisdiction over crimes committed on Georgian territory, including the forced displacement of civilians, the killing of peacekeepers and attacks targeting civilians.
In a statement issued today from The Hague, ICC Prosecutor Luis Moreno-Ocampo stressed that the Rome Statute “ensures the end of impunity.” He added that States maintain the primary responsibility to investigate and prosecute serious war crimes, with the ICC only stepping in if there are no genuine proceedings in the domestic court system.
The prosecution delegation received briefings while in Georgia on the progress of national investigations into the conflict. They met the country’s chief prosecutor, the head of the Supreme Court, senior Government ministers and representatives of non-governmental organizations (NGOs). This was the second visit to Georgia by ICC prosecutors, who have also travelled previously to Russia to obtain information on national investigations in that country.
A preliminary examination serves as the first phase in the ICC process and is conducted to assess whether a formal investigation should be opened. The ICC currently has investigations open in five situations: the Democratic Republic of the Congo (DRC), northern Uganda, Sudan’s Darfur region, the Central African Republic (CAR) and Kenya.
(from a UN press release)
On Tuesday of this week, UN Secretary General Ban Ki Moon announced the appointment of a panel of experts to investigate human rights abuses alleged to have been committed by both the Sri Lankan government and the opposition forces of the Liberation Tigers of Tamil Eelam (LTTE) during the final months of Sri Lanka's recent civil war. Sri Lanka rejected the need for an independent investigation and announced yesterday that it will deny visas to the members of the UN panel. Sri Lanka has appointed its own internal panel to investigate, which it claims will be sufficient. Sri Lanka's refusal to cooperate with an independent international body is disheartening and will likely further undermine efforts to restore peace in the country and to gain credibility and acceptance of the Sri Lankan government.
Thursday, June 24, 2010
The American Bar Association is sponsoring a new Internet-based project that is aimed at countering political and cultural traditions that support the oppression of women around the world. The International Models Project on Women's Rights (IMPOWR) will create an online database to collect information on gender-related legal issues, laws and reform efforts in 100 countries. In country experts and outside experts will be able to contribute information. The database will also include links to resources and other materials that can be accessed through the database. The project started earlier this year with a prototype online database involving only Bangladesh and focusing on acid attacks against women. It is scheduled to be fully operational by the end of the year. While it is being sponsored by the ABA, the organizers hope that many legal experts, lawyers and women's advocates from around the world will contribute information so that the database will be truly international.
At the meeting of the World Trade Organization's Dispute Settlement Body on June 22, 2010, the United States blocked Indonesia’s first-time request for a panel to examine its complaint concerning US measures on clove cigarettes. Click here for details.
Aaron Zelinsky notes a strange source of some of the lastest attacks on U.S. Supreme Court Associate Justice nominee Elena Kagan: her praise in 2006 for Aharon Barak, Israel's former Chief Justice. Zelinsky says that this line of attack is as baseless as it is unsound:
In her 2006 remarks, Dean Kagan wasn't sending a dog-whistle to the International-Cabal-of-Judicial-Activists that she would be a mini-Barak. She was declaring that she respected Barak and the values of democracy and human rights he represented. Moreover, the Right's attempt to fit Barak's career and philosophy as an Israeli jurist into the simple lexicon of America's modern political debate is fundamentally misguided.
Hat tip to Aaron Zelinsky
Wednesday, June 23, 2010
A ten minute excerpt of the 2010 Final Round in the Philip C. Jessup International Law Moot Court Competition is available on the website for the International Law Students Association (ILSA). The excerpt stars Sarah Lynch pleading as the second respondent for the 2010 World Champions, Australian National University. Click here to view that video and to visit the ILSA Web Page.
Judge Marilyn J. Kaman of Minnesota is the Publications Officer of the American Bar Association Section of International Law. In November 2002 Judge Kaman was one of the first four American jurists to be selected by the United Nations to serve as an international judge abroad for that organization. Judge Kaman's mission assignment was in Kosovo (Serbia-Montenegro) and involved hearing cases of war crimes, organized crime, ethnically-motivated disputes and trafficking of human beings. Judge Kaman returned to her judicial duties from her unpaid leave of absence in July 2003.
On June 18, 2010, Judge Kaman was elected by the U.N General Assembly to a one-year term as an ad litem judge of the U.N. Dispute Tribunal, a in-house body created within the United Nations in 2007 to strengthen the U.N. system of dealing with internal grievances and disciplinary cases.
She joins Jean-Francois Cousin of France and Nkemdilim Amelia Izuako of Nigeria on the Tribunal. Their terms of office were extended by one year at an earlier meeting of the U.N. General Assembly. All of their one-year terms begin on July 1, 2010.
The General Assembly decided to appoint the three judges for a one-year term to address a backlog of cases being transferred from the old system to the new U.N. Dispute Tribunal. Click here to read more about Judge Kaman's election.
Congratulations to Judge Kaman on her election.
The U.S. Supreme Court issued its decision in Holder v. Humanitarian Law Project, 561 U.S. ___ (June 21, 2010) earlier this week, rejecting 6-3 plaintiffs' claims that U.S. law prohibiting the knowing provision of "material support or resources" to foreign organizations that engage in terrorist activity consitutes an infringement on free speech and association rights under the First Amendment to the U.S. Constitution, among other constitutional claims. While the case has more to do with U.S. law than international law, it certainly does have implications for international law and lawyers and international efforts to resolve disputes peacefully.
The U.S. statute at issue defines "material support or resources" in pertinent part to mean "any property, tangible or intangible, or service, including . . . expert advice or assistance." 18 U.S.C. sec. 2339B. While the litigation was pending, Congress further clarified these terms. It defined "training" to mean instruction or teaching designed to impart a specific skill, as opposed to general knowledge, and "expert advice or assistance" to be advice or assistance that derived from scientific, technical or other specialized knowledge. The U.S. Secretary of State is given the authority to designate an entity a "foreign terrorist organization." In this regard, in 1997, the Secretary of State designated the Kurdistan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) as terrorist organizations within the meaning of the statute. U.S. courts have upheld that designation because both groups have engaged in terrorist attacks, although both groups also engage in political and humanitarian activities.
Plaintiff Humanitarian Law Project (HLP) is a human rights organization with consultative status at the United Nations. HLP claims that it seeks to facilitate only the lawful, nonviolent purposes of the PKK and LTTE by providing monetary contributions, other tangible aid, legal training and political advocacy, but cannot do so for fear of prosecution under 18 U.S.C. sec. 2339B. More specifically, HLP would like to train members of these organizations how to use humanitarian and international law to peacefully resolve disputes and to obtain relief from international bodies and engage in political advocacy on behalf of Kurds in Turkey and Tamils in Sri Lanka.
The U.S. Supreme Court stated that HLP's proposed activities would be prohibited by the statute because they involve the provision of expert advice and training that imparts a specific skill. The Court further stated that HLP is free to engage in independent advocacy, i.e., "to say anything they wish on any topic . . [and to] speak and write freely about the PKK and the LTTE, the governments of Turkey and Sri Lanka, human rights and international law." Congress has not suppressed pure political speech. What HLP cannot do is engage in speech under the direction of or in coordination with foreign terrorist organizations. The Court held that HLP may not train these organizations to use international law to peacefully resolve disputes or provide advice regarding the petitioning of the UN for aid relief.
The Court rejected HLP's argument that its support for these groups would advance only legitimate activities, not terrorism. In so doing, the Court quoted a Congressional finding that "[F]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." Any support provided by HLP "frees up other resources within the organization that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups." The Court also relied on an affidavit from the Executive Branch strongly supporting that Congressional finding. In response, the dissent charged that the majority did not adequately examine whether provision of the kind of expert and advice at issue would really facilitate the groups illegitimate activities.
While the Court is correct that money is fungible and Congress may certainly prohibit the provision of monetary and other tangible material support to foreign terrorist organizations, its holding prohibiting the provision of expert legal advice and assistance should be troubling to all lawyers, but especially those who practice international law and who work for the peaceful resolution of international disputes. For a democracy to function and individuals' rights to be protected, persons must be able to seek and obtain legal advice and assistance without government interference. If the international community wants to end international conflicts and civil wars, we must be willing to allow the parties to the conflict to avail themselves of advice and assistance regarding how to use international processes to peacefully end disputes.
The Court's holding can probably best be explained by its context - the fight against terrorism, which the Court refers to as "an urgent objective of the highest order," and by the Court's traditional deference to the political branches when it comes to "sensitive and weightly interests of national security and foreign affairs." However, this author is disappointed that the Court did not find a way to protect a form of speech aimed at faciliating the peaceful resolution of disputes, while still allowing the government to protect against terrorism.
In an update to previous posts, human rights lawyer and law professor Peter Erlinder is back in the United States after spending 21 days in a Rwandan jail on charges of denying the 1994 Rwandan genocide. Mr. Erlinder denies the charges, claiming only to have been preparing a defense for presidential opposition candidate Umuhoza. Mr. Erlinder was released on bail due to medical issues. He has now returned to St. Paul Minnesota where he teaches at the William Mitchell College of Law.
In an interview upon his return to the United States, Mr. Erlinder stated his belief that his insistence on contacting the U.S. embassy during a search of his hotel room prevented his "disappearance" and led to his official arrest instead. Whether or not he is correct, his statement does lend support to the importance of consular notification rights for all foreigners arrested or detained abroad and the need for law enforcement officials in the United States to do a better job of honoring those rights so that Americans may continue to avail themselves of consular notification rights when traveling outside the country.
Tuesday, June 22, 2010
Secretary-General Ban Ki-moon today appointed a panel of experts to advise him on accountability issues relating to alleged violations of international human rights and humanitarian law during the final stages of the conflict in Sri Lanka that ended last year. The three-member panel will advise Mr. Ban on implementing the commitment on human rights accountability made in the Joint Statement issued by the Secretary-General and Sri Lankan President Mahinda Rajapaksa after the UN chief visited the island country in May 2009.
Indonesia’s Marzuki Darusman will serve as the chair of the expert panel, and the other two members are Yasmin Sooka of South Africa and Steven Ratner of the United States. The panel is expected to wrap up its responsibilities within four months of starting work. The experts will examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka,” according to a statement issued by Mr. Ban’s spokesperson.
Government forces declared victory over the rebel Liberation Tigers of Tamil Eelam (LTTE) last year after a conflict that had raged on and off for nearly three decades and killed thousands of people. The conflict ended with large numbers of Sri Lankans living as internally displaced persons (IDPs), especially in the north.
Today’s statement stressed that Mr. Ban “remains convinced that accountability is an essential foundation for durable peace and reconciliation in Sri Lanka. Through the panel the Secretary-General expects to enable the UN to make a constructive contribution in this regard.”
Last week B. Lynn Pascoe, the Under-Secretary-General for Political Affairs, visited Sri Lanka and held talks with Mr. Rajapaksa, senior Government officials, Opposition leaders and representatives of the Tamil and Muslim communities and civil society groups. He also visited conflict-affected areas where IDPs are being resettled. Mr. Pascoe said that political solutions that tackle the underlying grievances which fuelled the conflict are necessary to heal the wounds left by the civil war.
(from a UN Press Release)
If you are a member of the American Bar Association Section of International Law, and if you happen to also have a professional profile on LinkedIn, you can join the LinkedIn group for the ABA Section of International Law.
You can also join a number of committee subgroups on the ABA International LinkedIn. The latest subgroup (created a few minutes ago) is for International Human Rights Law.
The UN Human Rights Council has appointed several new special rapporteurs who will focus on monitoring human rights as they relate to certain issues or countries.
- Christof Heyns becomes the Special Rapporteur on extrajudicial, summary or arbitrary executions, succeeding Philip Alston;
- Heiner Bielefeldt replaces Asma Jahangir as the Special Rapporteur on freedom of religion or belief;
- Kishore Singh takes over from Vernor Muñoz Villalobos as the Special Rapporteur on the right to education.
- Calin Georgescu is now Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, succeeding Okechukwu Ibeanu;
- Fatsah Ouguergouz replaces Akich Okola as the Independent Expert on the situation of human rights in Burundi; and
- Marzuki Darusman is the new Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (DPRK), taking over from Vitit Muntarbhorn.
Special Rapporteurs and Independent Experts report to the Human Rights Council and serve in both an independent and unpaid capacity.
(adapted from a UN Press Release)
Monday, June 21, 2010
Radio Australia reported that Vanuatu’s parliament has unanimously passed a motion calling for the International Court of Justice to investigate the legality of West Papua becoming part of Indonesia. According to Radio Australia, the motion was jointly sponsored by Prime Minister Edward Natapei and opposition leader Maxime Carlot Korman.
The resolution will ask the U.N. General Assembly to ask the international court to look into the manner in which the mainly Melanesian and Christian western half of New Guinea island was incorporated into the Asian and Islamic country of Indonesia in the 1960s. The U.N. General Assembly would make such a request under the ICJ's advisory jurisdiction.
The passage of the motion by all Vanuatu members of parliament has been welcomed by the diplomatic representative of the Free Papua Movement in Port Vila, Andy Ayamiseba, who said that he hopes that other Melanesian countries follow Vanuatu's example.
Hat tip to the East-West Center in Honolulu
Iceland deserves credit for eliminating barriers to same-sex marriage, which will become legal in the Nordic country this weekend, the United Nations human rights chief says.
Navi Pillay, UN High Commissioner for Human Rights, wrapped up her official visit to Iceland with a statement on Friday commending Iceland “for the significant progress it has achieved through recent legislation removing legal impediments to same-sex marriages.”
Iceland will become the ninth country to legalize same-sex marriage following legislation that passed the country’s parliament earlier this month. Same-sex marriage is already legal in Belgium, Canada, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden, as well as in some areas of the United States and Mexico.
In her statement Ms. Pillay also praised Iceland for strengthening the independence of its judiciary and freedom of expression, and she welcomed efforts to set up an independent human rights institution.
During her visit – the first ever trip to Iceland by a UN human rights chief – Ms. Pillay met Foreign Minister Össur Skarphédinsson, Justice and Human Rights Minister Ragna Árnadóttir and other senior Government officials, as well as representatives of civil society and academia. She also addressed the University of Iceland in the capital, Reykjavik.
(from a UN Press Release)
Delegates gathered at United Nations Headquarters in New York today to explore ways of improving the implementation of a global treaty aimed at protecting oceans and the resources they hold from a range of threats, including pollution, climate change, illegal fishing and crimes.
Experts attending the five-day meeting of the UN Informal Consultative Process on Oceans and the Law of the Sea will assess the needs for national and regional capacity-building as they seek to come up with the appropriate knowledge to help States protect Oceans in accordance with the provisions of the UN Law of the Sea Convention.
In his report to the General Assembly on oceans and the law of the sea, Secretary-General Ban Ki-moon points out that because seas are interconnected, assistance intended to strengthen capacities to manage ocean-related activities can ultimately benefit all States.
He notes that effective protection of oceans continued to be hampered by capacity limitations, especially in developing countries.
“These limitations and challenges may constrain the potential for States, in particular developing countries, especially the least developed among them and the small island developing States, to benefit from oceans and seas and their resources pursuant to the UN Convention on the Law of the Sea,” the Secretary-General said in his report.
(from a UN Press Release)
Sihasak Phuangketkeow becomes the fifth president of the 47-member Council, which replaced the earlier UN Commission on Human Rights that was scrapped amid concerns about its effectiveness. He was the candidate of the panel’s Asian members.
Mr. Phuangketkeow told the Council today in Geneva that he wanted to concentrate over the next year on how members can use their “rich diversity” to forge a more united agenda on key human rights issues. Council members “need to draw synergy from such diversity, recognizing that human rights are indeed universal, indivisible and interdependent, and recognizing… that we all share a common stake in the credibility and effectiveness of the Council as a whole,” he said.
Mr. Phuangketkeow succeeds Alex van Meeuwen of Belgium as the Council’s President.
(from a UN Press Release)
The United Nations and its partners in the search for Middle East peace today welcomed Israel’s decision to allow more civilian goods into the Gaza Strip, saying that implementation of the new policy will help meet the needs of the territory’s inhabitants and address Israel’s security concerns. “Full and effective implementation will comprise a significant shift in strategy towards meeting the needs of Gaza’s population for humanitarian and commercial goods, civilian reconstruction and infrastructure, and legitimate economic activity as well as the security needs of Israel,” the Quartet – made up of the UN, the European Union, Russia and the United States – said in a statement.
The group said that it will continue to work with Israel, the Palestinian Authority (PA), and other concerned parties to ensure that the new arrangements are implemented as quickly as possible. The Quartet also pledged to actively explore additional ways to improve the situation in Gaza, encourage involvement of the PA at the crossings and promote greater commerce between the West Bank and Gaza, the statement added. Acknowledging that Israel has legitimate security concerns that must continue to be safeguarded, the Quarter said it believed that efforts to maintain security while enabling movement and access for Palestinian people and goods are critical.
It pledged to work with Israel and the international community to prevent the illicit trafficking of arms and ammunition into Gaza, and urged all those wishing to deliver goods to do so through established channels so that their cargo can be inspected and transferred via land crossings into Gaza. The Quartet deplored the continuing detention of Israeli soldier Gilad Shalit and called for his release ahead of the fourth anniversary of his capture on 25 June. It condemned what it said was a violation by Hamas of its international obligation to provide the International Committee of the Red Cross access to Mr. Shalit, and demanded the Palestinian group does so immediately. Members also reiterated their support for proximity talks toward the resumption, without pre-conditions, of direct bilateral negotiations that resolve all final status issues as previously agreed by the parties.
(adapted from a UN Press Release)
Members of the Security Council arrived today in Kabul to review progress made by the Afghan Government with assistance from the international community, and to demonstrate their continued support for the country’s efforts to ensure a sustainable peace. The visit by the 15-member body is led by Ambassador Ertugrul Apakan of Turkey, and it comes ahead of the conference to be held in the capital on 20 July and co-chaired by the UN Assistance Mission in Afghanistan ("UNAMA").
Next month’s gathering is a follow-up to the London Conference held in January, during which the Government and its international partners jointly endorsed a strategy of transition to greater Afghan responsibility for the affairs of the country. The visit is also taking place just weeks after the holding of the Consultative Peace Jirga – which brought together 1,600 delegates from across the country to discuss the way forward in the peace process – and as the country prepares for the parliamentary elections scheduled for 18 September.
While in Afghanistan, the Council members will meet with President Hamid Karzai, senior members of the Government and other Afghan authorities and institutions, as well as with members of civil society. They will also meet members of the international community and with the International Security Assistance Force (ISAF) and the North Atlantic Treaty Organization (NATO).
(Adapted from a UN Press Release)