July 24, 2010
Text of ICJ's Advisory Opinion on Kosovo
July 22, 2010
Leaked Memo Criticizes Ban's Leadership of the United Nations
Secretary-General Ban Ki-moon today stressed the value of constructive criticism in the wake of a leaked report by a former senior staff member that attacks his leadership of the United Nations, while pledging to set the record straight on a number of inaccuracies in the document.
In a confidential end-of-assignment report, the former head of the UN’s Office of Internal Oversight Services (OIOS) reportedly accused Mr. Ban of, among other issues, undercutting the independence of her office, thwarting efforts to hire her own staff, and trying to set up a competing internal investigations unit. Mr. Ban told a meeting of his senior advisers today that the report by Inga-Britt Ahlenius – a former Auditor-General of Sweden who took the reins of the UN’s internal watchdog in 2005 – is supposed to be a management tool and that it was regrettable it had been leaked to the press.
“It is meant to allow all senior advisers to learn from the frank thinking and advice of a departing senior manager,” the Secretary-General’s spokesperson, Martin Nesirky, told reporters. “The Secretary-General said he believed in collective leadership. Leadership comes from teamwork. He said he did not expect his senior advisers would always agree with him. “He had always welcomed constructive criticism. But as public servants, there are rules and procedures. In this case, a trust, a bond, had been broken.”
Mr. Ban and his team are currently reviewing the report, Mr. Nesirky added. “Where there is room for improvement we will take action. Where there are inaccuracies – and there are significant inaccuracies – we will set the record straight.” The spokesperson said that the Secretary-General made clear that he had always told Ms. Ahlenius that she had full independence. “But operational independence does not mean being above the rules that apply to all of us.”
Among the reported accusations in the report is that Mr. Ban blocked efforts by Ms. Ahlenius to appoint a former United States prosecutor, Robert Appleton, to a D-2 director level post to head up her investigations division, on the grounds that female candidates had not been properly considered. Mr. Nesirky noted that the Secretary-General has stated that in every senior appointment – in every UN department and agency – there should be at least three candidates for a post, at least one of whom should be a woman. As for the UN’s hiring practices, Catherine Pollard, Assistant Secretary-General for Human Resources Management, told reporters that “all staff hired in the Organization are subject to the staff regulations and rules and the policies and procedures which the Secretary-General lays down. “There is delegation of authority to the head of OIOS to recruit staff,” she noted, but added that there is no scope for creating a senior review body to review staff selections above the D-1 director level just for OIOS owing to the fact that there are only a limited number of senior positions in the Office. Therefore, to select staff at the D-2 director level, the standard review group has been used to review all OIOS appointments, she said. In fact, she added, another senior post was recently filled based on Ms. Ahlenius’ submission to the Secretary-General, which was reviewed by the senior review group with three candidates, all of whom were female. The person selected was the person recommended by Ms. Ahlenius and then endorsed by the Secretary-General.
Responding to another accusation in the report, Angela Kane, Under-Secretary-General for Management, stated that Mr. Ban has been very supportive of OIOS and its investigative capacity. “It is not correct to say that the Secretary-General was attempting to set up another investigative capacity,” she stated, reiterating that the report contains “a number of inaccuracies.”
(From a UN Press Release)
Which country was the first to recognize the United States of America?
It was the Kingdom of Morocco, in 1777. Morocco also has the oldest treaty still in force with the United States -- the 1786 Treaty of Friendship.
Hat tip to Ambassador Aziz Mekouar, Embassy of the Kingdom of Morocco, Washington, D.C.
U.N. Security Council Voices Concern Over Threats to the Rule of Law in Guinea-Bissau
The U.N. Security Council voiced concern at the current security situation and threats to constitutional order in Guinea-Bissau, and stressed the need for the Government and people of the West African nation to work towards stability and the rule of law.
On 1 April, the Prime Minister and of the Chief of General Staff and other senior military officers were briefly detained by some members of the armed forces, constituting what Secretary-General Ban Ki-moon described as “a major setback” to efforts to consolidate stability and carry out key reforms.
“The Council calls upon the Government of Guinea-Bissau to release immediately all those detained in the events of 1 April 2010 or prosecute them with full respect for due process,” the 15-member body said in a statement read out Ambassador U. Joy Ogwu of Nigeria, which holds the Council’s rotating presidency for July.
Stressing that genuine security sector reform requires the creation of “effective professional and accountable” security forces and respect for the rule of law, the Council called on the Government to create the conditions for reform of the security services. It also called on the security forces, in particular the military, to fulfil their commitment to abide by civilian control and called on both to implement current programmes for security sector reform on schedule.
Mr. Ban had warned in his report that the important progress made in the country could rapidly be compromised unless “drastic changes” are made to advance crucial reforms, including the reform of the defence and security sectors, and to stabilize the country. In its presidential statement, the Council also expressed serious concern about the continued growth in drug trafficking and organized crime, which threatens peace and security in Guinea-Bissau and in the wider region. It called on the authorities in Guinea-Bissau to create the necessary environment to ensure that actions to tackle these threats are effective.
Last week Joseph Mutaboba, the Secretary-General’s Special Representative for Guinea-Bissau, told the Council that while recent events have spotlighted the fragility of efforts to consolidate stability, the country’s challenges can be overcome if they are tackled immediately.
(From a UN Press Release)
ICJ Rules 10-4 that Kosovo's Declaration of Independence Does Not Violate International Law
The International Court of Justice (ICJ) ruled today in an Advisory Opinion that Kosovo’s unilateral declaration of independence from Serbia in February 2008 did not violate international law. The U.N. General Assembly had asked the ICJ to give an Advisory Opinion on the legality of the independence declaration by the Provisional Institutions of Self-Government (PISG) of Kosovo.
By 10 votes to four, judges at the ICJ concluded that the declaration does not breach either general international law, a Security Council resolution from 1999 following the end of fighting in Kosovo, or the constitutional framework that was adopted by the Secretary-General’s Special Representative on behalf of the UN Interim Administration Mission in Kosovo (UNMIK). UNMIK was established after Western forces drove out Yugoslav forces amid inter-ethnic fighting in 1999. Ethnic Albanians outnumber ethnic Serbs and other minorities by about nine to one in Kosovo.
Secretary-General Ban Ki-moon called for dialogue between all sides in the wake of the ICJ advisory opinion. In a statement issued by his spokesperson, he “strongly encourages the parties to engage in a constructive dialogue… [and] urges all sides to avoid any steps that could be seen as provocative and derail the dialogue.” Mr. Ban will forward the opinion to the General Assembly, which will then determine how to proceed.
(Adapted from a UN Press Release)
Updated Background Paper on Kosovo
The U.S. State Department updated its Background Note on Kosovo. Click here to see it. It has a good timeline of legal events in Kosovo leading to its unilateral declaration of independence. The United States formally recognized the Republic of Kosovo as a sovereign and independent state on February 18, 2008. As of July 2010, 69 countries had recognized Kosovo’s independence, including 22 of 27 EU member states, all of its neighbors (except Serbia), and other states from the Americas, Africa, and Asia.
The International Court of Justice will soon start the public session at which it will issue its judgment in the Advisory Jurisdiction Case.
ICJ Advisory Opinion on Kosovo Expected Today
The website for the International Court of Justice is running a bit slow at the moment -- the ICJ today releases its ruling in the Advisory Jurisdiction case on the legality of Kosovo's declaration of independence. Click here for more information on the public hearing today.
Optional Protocol on Safety of UN Personnel Enters Into Effect
A protocol that expands an international treaty aimed at protecting United Nations staff members and other humanitarian workers will enter into force within a month after the United Kingdom became the latest country to ratify it. The UK became party to the 2005 Optional Protocol to the Convention on the Safety of UN and Associated Personnel yesterday, joining 21 other countries which have already done so over the past four years. The optional protocol will now enter into force in 30 days.
The optional protocol provides legal protection to staff delivering emergency humanitarian assistance and to those providing political and development assistance in peacebuilding situations. It extends the legal protection offered by the 1994 convention on the same subject, which only applies to personnel engaged in peacekeeping operations.
Last year alone, 28 civilian UN staff members were killed, according to the UN Staff Union, and at least 97 aid workers were killed, while 60 others were wounded and 92 more were abducted.
The UN Staff Union issued a statement welcoming the move by the UK and the other countries and urging all other Member States to ratify both the optional protocol and the convention.
(From a UN Press Release)
UN Special Rapporteurs Urge United States Not to Forcibly Return Guantanamo Detainees to Countries Where They May Be Tortured
While welcoming United States efforts to close the Guantánamo Bay detention facility, two independent United Nations human rights experts have called on the Government to ensure that it does not forcibly transfer anyone to another State where the person could be subject to torture.
The UN Special Rapporteurs on Torture, Manfred Nowak, and on Human Rights and Counter-Terrorism, Martin Scheinin, drew attention to two recent decisions by the US Supreme Court, which paved the way for the transfer of two Algerian detainees held in Guantánamo.
“We are extremely worried that the lives of two Algerian detainees could be put in danger without a proper assessment of the risks they could face if returned against their will to their country of origin,” the experts stated in a news release.
The decision by President Barack Obama, upon taking office in January 2009, to close the facility was hailed by Secretary-General Ban Ki-moon and UN human rights chief Navi Pillay, who were encouraged that the US leader has given the highest priority to ensuring respect for fundamental rights.
“While we appreciate the efforts of the authorities to close the Guantánamo detention facility, the risk assessment should be a meaningful and fair process, and the courts should be part of it,” said the Special Rapporteurs.
One of the two men in question, Abdul Aziz Naji, has already been repatriated to Algeria, according to media reports. He was among a group of six Algerian nationals held in Guantánamo, who feared that, if returned to Algeria, they could be subject to torture or other forms of ill-treatment by the security services or non-State actors.
“Diplomatic assurances are unreliable or difficult to monitor and cannot substitute the sending country’s obligation to assess the real risk facing the individual,” said the experts, who added that this could become the first involuntary transfers of Guantánamo detainees of the Obama administration.
UN Special Rapporteurs carry out their work in an independent and unpaid capacity and report to the Geneva-based Human Rights Council.
(From a UN Press Release)
Burkina Faso and Niger Submit Border Dispute to the International Court of Justice
The West African countries of Burkina Faso and Niger have submitted a dispute over their common border to the International Court of Justice (ICJ) as part of a wider agreement by the two States to resolve the situation peacefully.
The countries asked the ICJ to delineate the border between the two nations from the Tong-Tong marker to the start of the Botou bend.
The ICJ was also asked to observe the two countries’ agreement on the results of the work of a joint technical commission set up by Burkina Faso and Niger on two other sections of their shared border.
The decision to refer the matter to the ICJ is in line with a special agreement signed by the two countries last year in Niamey, the capital of Niger.
(From a UN Press Release)
ICTY Appellate Chamber Orders Re-Trial of a Former Prime Minister of Kosovo
The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has ordered a re-trial of a former prime minister of Kosovo. Ramush Haradinaj, who was also a well-known commander in the Kosovo Liberation Army (KLA) during its conflict with Serb forces in 1998-99, had been acquitted in 2008 of murder, rape, torture, abduction, cruel treatment, imprisonment and the forced deportation of ethnic Serbian and Kosovar Roma civilians. But the Appellate Chamber ruled yesterday that a re-trial was necessary because the ICTY trial chamber had erred in not doing more to ensure the testimony of certain witnesses, given “the serious witness intimidation that formed the context of the trial.” The original trial had heard how many witnesses felt unsafe and subsequently two men were tried on contempt of court charges for attempting to intimidate witnesses.
Mr. Haradinaj, 42, and his two co-accused, Idriz Balaj and Lahi Brahimaj, were ordered to be placed in custody at the UN Detention Unit in The Hague pending their re-trial at a future date. The three men are accused by prosecutors of being part of a joint criminal enterprise between March and September 1998 that aimed to consolidate the KLA’s control over the Dukagjin area of north-western Kosovo by unlawfully removing, mistreating and killing ethnic Serbian and Kosovar Roma civilians, as well as Kosovar Albanians perceived to have been collaborating with Serbian forces.
In the 2008 decision by the trial chamber, both Mr. Haradinaj and Mr. Balaj, 38, were acquitted of all charges. But Mr. Brahimaj, 40, was convicted of the cruel treatment and torture of two people at the KLA headquarters in Jablanica/Jabllanicë and sentenced to six years in jail.
(Adapted from a UN Press Release)
Argentina's President Signs Same-Sex Marriage Legislation
Click here for video (in Spanish) of the signing ceremony and moving, heartfelt remarks of Argentina's President upon signing legislation that makes Argentina the first country in Latin America where same-sex marriage is legal throughout the country. (In Mexico, same-sex marriage is lawful in Mexico City but not in other parts of the country.)
One commentator wrote this about the President's remarks: "Amazing words. No TelePrompTer. No reading of notes."
Hat tip to Rex Wockner
July 21, 2010
U.S. Mandates Reporting on Conflict Minerals
An unlikely amendment to the recent financial reform law adopted by the United States this week includes a requirement for publicly-traded U.S. firms to report on their purchase and use of so-called "conflct minerals." Sometimes compared to blood diamonds, conflict minerals include tantalum, tungsten, tin and gold from the Democratic Republic of Congo which are often used in laptops, cellphones and medical devices. These purchases are funding the devasting 15-year-old Congolese war that has displaced 1.4 million persons and has spawned particular concerns about high levels of sexual violence.
The new law requires U.S. companies to disclose to the Securities and Exchange Commission whether their products contain conflict minerals and, if so, what steps they are taking to ensure that these minerals do not come from the Congo. The difficulty for international business is that it is often hard to trace the origin of the minerals. Many of these minerals are smuggled out of the Congo, are mixed with minerals from other countries, and then sold through a series of middlemen in countries around the world.
To deal with the problem of tracing the minerals, in 2009, U.S. House Representative James McDermott (D-Wa) introduced H.R. 4128 entitled the Conflict Minerals Trade Act. Under the bill, U.S. Commerce Department-sanctioned auditors would audit mineral mines to determine whether they are conflict free. It would also map mines to show which ones fund conflict. This bill has not yet been adopted. Of note, curbing trade in conflict minerals has bipartisan support. Sen. Sam Brownback (R-Kans.) has also introduced legislation to deal with the problem and was the sponsor of the amendment to the financial reform bill.
Opponents of the law argue that it will result in a de facto embargo of minerals from eastern Congo, which in turn will cause huge job losses for mine workers. Those workers will then be recruited by the warring parties.
The law does not currently contain any penalties if companies report taking no action, but does require that companies post certain information on their websites so that consumers can make informed choices when purchasing products. The U.S. State and Treasury Departments are reportedly considering imposing sanctions on U.S. companies that do use conflict minerals.
While increased attention and efforts to end the war in the Congo are certainly laudable, unilateral sanctions tend to be more easily evaded and therefore less effective. It therefore would be better if the international community increased its collective efforts to bring an end to the conflict in the Congo. The United Nations currently has 21,000 peacekeepears in the Congo, but this force has not been sufficient. A U.N. group of experts suggested in a report last May that financial institutions that bankroll exporters and manufacturers could be made more accountable. These financial institutions could be encouraged to devise ways to reduce illegal payments to armed groups. The panel further suggested that such action would complement the present UN-backed pilot scheme to introduce five "centres de negoces" (buying centres) in which deposits can be traded and tagged free from illegal taxes or armed groups.
New Sanctions Against Iran Having Effect
Despite some predictions to the contrary, the latest round of sanctions against Iran adopted by the United Nations and the United States appear to be having a significant effect on Iran's ability to ship critical goods into and out of the country. According to a Washington Post article today, many international insurance companies are refusing to insure Iranian shippers for fear of running afoul of the sanctions. The new sanctions have also led fuel suppliers in Europe and the Middle East to refuse to refuel Iranian planes. Of particular note, the preemient maritime insurer Lloyd's has stated that it will no longer underwrite gasoline shipments to Iran. Without insurance to cover possible damages, most ports will refuse entry to Iranian ships. The Iranian government has proposed a possible solution by underwriting the insurance itself, but it is not clear whether there are sufficient resources available and whether this suggestion will be an acceptable resolution.
On a related note of concern to those in university communities, the Washington Post reports that the U.S.-based Educational Testing Service has stopped registration for its tests in Iran because the U.S. sanctions prevent it from accepting payments from that country. The company's Test of English as a Foreign Language is required for acceptance to many universities worldwide, and the move could significantly hinder the ability of Iranians to study abroad.
In retaliation for the sanctions, Iran's parliament passed a bill calling for cargo inspections of any ship from a country that inspects Iranian vessels under the sanctions. Such a move could seriously delay or impede international shipping traffic through the Strait of Hormuz.
The U.S. sanctions are broader than those imposed by the U.N. Russia, India and China have protested U.S. attempts to impose its laws on their countries and citizens. Things may get evern tougher for Iran soon, however, as the European Union is expected to impose its own more stringent sanctions in the near future.
July 19, 2010
US Appeals Court Tells State Department to Provide More Due Process to Alleged Foreign Terrorist Organizations
On Friday, the U.S. Court of Appeals for the District of Columbia Circuit issued a ruling in which it ordered the U.S. State Department to provide more process to an organization, the Mojahedin-e Khalq Organization (MEK) (also called the People’s Mojahedin Organization of Iran (PMOI)), which is designated as a foreign terrorist organization (FTO) with the meaning of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), as amended. Under AEDPA, the Secretary of State may designate an entity as an FTO if she determines that (A) the entity is foreign, (B) it engages in “terrorist activity” or “terrorism” and (C) the terrorist activity threatens the security of the United States or its nationals. 8 U.S.C. § 1189(a)(1). “Terrorist activity” is defined in section 1182(a)(3)(B)(iii) of the Act and includes hijacking, sabotage, kidnapping, assassination and the use of explosives, firearms, or biological, chemical or nuclear weapons with intent to endanger people or property, or a threat or conspiracy to do any of the foregoing. To “engage in terrorist activity” involves, among other acts, soliciting funds or affording material support for terrorist activities, id. § 1182(a)(3)(B)(iv), while “terrorism” means “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents,” 22 U.S.C. § 2656f(d)(2). Being designated an FTO means that the assets of the organization may be frozen, its members barred from entering the U.S., and its supporters criminally prosecuted.
PMOI challenged its designation as an FTO claiming that it had renounced violence, had handed over its weapons to U.S. authorities in Iran, and had provided extensive information and other cooperation to the U.S. authorities there. The Secretary of State rejected PMOI's request to be removed from the FTO list on the basis of both classified and unclassified information, but did not provide PMOI with access to any of the information or an opportunity to rebut the allegations prior to making the determination. PMOI claimed that the Secretary violated due process for failure to provide it with copies of at least the unclassified information upon which the decision was based and an opportunity to rebut that information. PMOI also challenged the Secretary of State's determination on the basis that it lacked substantial support in the record, but the Court did not reach that issue, deciding instead to remand the case to the lower court on the due process issue. The Court held that PMOI was entitled to access to the unclassfied documents and an opportunity to rebut the information before the Secretary's decision was finalized and made public.
While this decision is a victory for an organization seeking to revoke its designation as an FTO and for the rule of law generally, the Court was careful to emphasize its deference to the Executive Branch in many respects. It reiterated that the determination of what activities constitute a threat to the United States is a political question that is not judicially reviewable. The Court also stated that it would not second guess the Secretary's determinations with respect to the credibility of particular sources.
July 18, 2010
No More Visits to Amsterdam for Legal Drugs?
Last week, Advocate General for the European Court of Justice (ECJ) Yve Bot opined that Dutch towns may ban foreigners from marijuana coffeeshops without violating European Union (EU) rules of free movement of goods and persons. The Dutch town of Maastrict is near the border with Belgium and 70% of the business of its local marijuana coffeeshops came from foreign tourists, primarily from Belgium and France. The mayor of Maastrict ordered at least one coffeeshop closed and the owners brought suit before the Dutch Council of State, claiming the closures violated the EU rules providing for the free movement of goods, persons and services. The Dutch Council of State has requested a ruling from the ECJ. The AG stated that because drugs are generally illegal substances (unless used for medical purposes), they are not governed by the normal rules of free movement. Instead, drugs may be exempted from internal market rules because they may be considered a genuine and serious threat to public order. Although the ECJ is not bound by the reasoning and conclusions of its advocates general, it often finds them persuasive and follows them. The ECJ ruling is expected at the end of the year.