Reflections on News and International Law

Crossing lines? You betcha...

2013-05-12T16:47:00.000+01:00

Just caught this chestnut over on Opinio Juris about an upcoming NBC television show called 'Crossing Lines' (no doubt some double entendre with an equally groan-inducing sub-header to really drive home the its 'cleverness': "In an era of global crime, justice knows no boundaries..." or "Crime has a passport").

I'm a fan of the 'procedural' crime shows in that I'm amazed how the general public has come to believe that crime scene investigators have the ability to solve cases in the span of a couple of days, armed with a Glock sidearm, Buck Rogers technology and a fashion wardrobe from Milan. (Hmm... maybe Crossing Lines refers to plausibility too?) Anybody thinking that this translates from television to reality needs to sit further back from the screen. As with most crime investigation, international criminal law is lamentably slow and difficult. But where it is unique is its foundation: the sovereign nature of international law. Good luck telegraphing that in an hour! (47 minutes with commercial breaks... I wonder why my lectures don't have commercial breaks)

I wonder how quickly we'll be introduced to equally cringe-worthy fictional approaches to real problems facing the ICC... although I doubt NBC (being in America and subject to an overly zealous FCC) will be broadcasting anything close to the reality of international crime. I'm not sure Little Johnny will want to eat his Hungry-man frozen dinners while hammering back 10 litres of Special Edition American Idol Coca-Cola (sorry, I'm civilized and can understand the metric system) while being confronted with the true nature of genocide, crimes against humanity and war crimes that may accurately include depraved sexual violence against women and children as tactics of war. Hell, I studied these at length in my LL.M Masters, and was known to need a stiff libation (That's a posh drink if you were wondering... poison of choice: 16-year old Lagavulin) in order to live with the horrors I was exposed to.

Then again, it looks like the one thing this 'international police force based out of the ICC' will not be dealing with may be reality...

Big shout out to Kevin Jon Heller at the University of Melbourne for bringing this into the fray... You might have just made my Sunday. (Or as you call it in Australia: Monday)

And just for shits and giggles, here's the trailer: (Ooh... at 1m 57s, it looks like one of them might be a Jedi.)

Remembrance Day 2012

2012-11-11T16:53:00.001+00:00

Weary should we be of war, not only for its immediate measurable force against peace, but for the immeasurable toll on those asked to carry it out. Our thoughts go out to the fallen, the missing, the physically and mentally scarred, the families who endure, and to all their brothers and sisters in arms.

In honouring their memories and legacy, so to do our thoughts turn to all victims of armed conflicts of the past, and, unfortunately, the persisting present. In the words of the controversial US Union Army General WT Sherman, "War is hell." Indeed no truer a reflection of conflict has been uttered. So long as we allow the baser elements of our character to overrule our capacity for understanding and compassion, we will continue to add to cumulative sadness, despair and languish that should not be the sum total of our humanity.

In striving to achieve a global consensus on the plurality of ideas and peaceful co-existence, we shall continue to remember the sacrifice that is made on all sides of any war.

So too should we remember our ability to overcome these cancerous episodes of history. From last year, a poem from Carol Ann Duffy, Poet Laureate of the United Kingdom of Great Britain and Northern Ireland:

The Christmas Truce

Christmas Eve in the trenches of France,

the guns were quiet.

The dead lay still in No Man’s Land –

Freddie, Franz, Friedrich, Frank . . .

The moon, like a medal, hung in the clear, cold sky.

Silver frost on barbed wire, strange tinsel,

sparkled and winked.

A boy from Stroud stared at a star

to meet his mother’s eyesight there.

An owl swooped on a rat on the glove of a corpse.

In a copse of trees behind the lines,

a lone bird sang.

A soldier-poet noted it down – a robin

holding his winter ground –

then silence spread and touched each man like a hand.

Somebody kissed the gold of his ring;

a few lit pipes;

most, in their greatcoats, huddled,

waiting for sleep.

The liquid mud had hardened at last in the freeze.

But it was Christmas Eve; believe; belief

thrilled the night air,

where glittering rime on unburied sons

treasured their stiff hair.

The sharp, clean, midwinter smell held memory.

On watch, a rifleman scoured the terrain –

no sign of life,

no shadows, shots from snipers,

nowt to note or report.

The frozen, foreign fields were acres of pain.

Then flickering flames from the other side

danced in his eyes,

as Christmas Trees in their dozens shone,

candlelit on the parapets,

and they started to sing, all down the German lines.

Men who would drown in mud, be gassed, or shot,

or vaporised

by falling shells, or live to tell,

heard for the first time then –

Stille Nacht. Heilige Nacht. Alles schläft, einsam wacht …

Cariad, the song was a sudden bridge

from man to man;

a gift to the heart from home,

or childhood, some place shared …

When it was done, the British soldiers cheered.

A Scotsman started to bawl The First Noel

and all joined in,

till the Germans stood, seeing

across the divide,

the sprawled, mute shapes of those who had died.

All night, along the Western Front, they sang,

the enemies –

carols, hymns, folk songs, anthems,

in German, English, French;

each battalion choired in its grim trench.

So Christmas dawned, wrapped in mist,

to open itself

and offer the day like a gift

for Harry, Hugo, Hermann, Henry, Heinz …

with whistles, waves, cheers, shouts, laughs.

Frohe Weinachten, Tommy! Merry Christmas, Fritz!

A young Berliner,

brandishing schnapps,

was the first from his ditch to climb.

A Shropshire lad ran at him like a rhyme.

Then it was up and over, every man,

to shake the hand

of a foe as a friend,

or slap his back like a brother would;

exchanging gifts of biscuits, tea, Maconochie’s stew,

Tickler’s jam … for cognac, sausages, cigars,

beer, sauerkraut;

or chase six hares, who jumped

from a cabbage-patch, or find a ball

and make of a battleground a football pitch.

I showed him a picture of my wife.

Ich zeigte ihm

ein Foto meiner Frau.

Sie sei schön, sagte er.

He thought her beautiful, he said.

They buried the dead then, hacked spades

into hard earth

again and again, till a score of men

were at rest, identified, blessed.

Der Herr ist mein Hirt … my shepherd, I shall not want.

And all that marvellous, festive day and night,

they came and went,

the officers, the rank and file,

their fallen comrades side by side

beneath the makeshift crosses of midwinter graves …

… beneath the shivering, shy stars

and the pinned moon

and the yawn of History;

the high, bright bullets

which each man later only aimed at the sky.

I'm a little bit country, They're a little bit rock'n'roll...

2012-09-24T20:55:00.001+01:00

A fellow international lawyer sent this to me yesterday, and thought I'd pass it on for consideration by anybody reading this blog...

Canada, U.K. to cut costs by sharing embassies abroad

So the gist of this initiative is, in light of the economic limitations of the current recession, the United Kingdom and Canada are going to pool their collective diplomatic resources and offer a sort of '2-for-1' deal on diplomatic and consular services. On its face, this partnership has appeal. The shared histories and cultural similarities lend themselves to the possibility that their foreign presence in a host country would get equal reception. However, a shared history does not mean a collective present, and the last decade of the foreign activity by both these nations is the strongest evidence of this.

Before getting to the possible legal consequences, let's consider the biggest elephant in the room: The Iraq War. The Canadian position was to seek a peaceful resolution to repeated violations of weapons restrictions by the Saddam Hussein regime. The UK supported the American position that not only were there violations, but that a full-scale weapons programme had resulted in usable WMDs in country. While Canadian policy dictated involvement only upon the approval of a resolution under the UN Security Council, the UK joined the USA in the 'Coalition of the Willing'. The effect of this can be considered as a major divergence in shared foreign policies between Canada and the UK, and the results are in multitude.

Given the recent protests in the Middle East over the blasphemous video posted by some idiot in California, we have seen how embassies are often the locus of protestations over perceived wrongdoing in other countries (host states). In this example, the only means of having opposition heard to the release of this (and I use this term so unbelievably loosely) 'film' was for the protesters to attend the US embassy. This should not be mistaken as possibly endorsing the actions that followed - in fact, the killing of the US ambassador and staff in Libya, and the destruction of the Egyptian embassy was not only unacceptable, but also put Libya and Egypt into a position of having breached international diplomatic law. The concern to be drawn out from this in the present context is the possibility of one nation (either the UK or Canada) being the subject of violent protest by citizens of the host state necessarily puts at risk the diplomatic staff of the other.

In the link above, the story mentions that Australia has had certain arrangements with Canada for services to be rendered for Australians through the Canadian embassy. This practice has been commonplace, particularly when states cease diplomatic relations, i.e., the closing of the US embassy in Iran meant that the Swiss embassy was nominated to represent US interests in Iran, and the Pakistani embassy represented Iranian interests in the USA, following the breaking of diplomatic relations in May 1980. In these instances, the embassy itself still maintains its national sovereign identity, while providing a conduit between non-communicative states. This independence is vital, not only for security purposes, but also in fulfilling the criteria for justifying the functional necessity immunities attributed to embassies.

So what does this mean in law? Well, we are not discussing normal diplomatic relations here. No normalized, peaceful relations should result in legal foibles. Where I am concerned is the impact of the UK-Canada embassy arrangement where relations a tenuous between one of these two states and the host state in which the embassy in question is located. An example can be used here to consider the position:

An embassy is located in Pergatoria (a clearly fictitious state) from which the UK and Canada maintain their diplomatic presence.
A Canadian civilian broadcaster (Canada being arbitrarily picked for the sake of the example, and without attributing any correlating scenario) shows a television programme where aspersions are cast over the Pergatorian national sport of Goofball as being 'a simple game for such clearly simple peoples'. This insult results in mass protests throughout Pergatoria's capital, Miltonville, wherein they surround the embassy, burning flags and effigies of Canada's leaders.
The Canadian Government stands by the domestic right for the broadcaster to make independent content decisions, and refuses to condemn the TV programme as 'uninformed and biased'. In response to this violation of international law (see Article 22(2), Vienna Convention on Diplomatic Relations 1961), Canada ceases diplomatic relations with Pergatoria, and decides to close their half of the embassy and withdraw.
However, the growing crowd outside does not take any notice of this development, and continues to threaten the peace surrounding the embassy, including threats made against the UK staff present inside.
The United Kingdom, in no way involved in the Canadian broadcast, has its interests threatened and must consider the reaction of the British Government to this 'guilt-by-association'. It is considered whether they may reasonably expect British diplomatic activity to not be seen in a negative way given their perceived alignment with the Canadian Government's position by virtue of sharing diplomatic premises. The UK is currently engaged in bilateral discussions for trade between themselves and Pergatoria, an agreement that would be of vital prosperity for both nations.
The UK, considering the inability to remain present in the embassy, orders its staff out of Pergatoria. This communicates an intention to cease negotiations. Given the urgent need to reach an agreement, Pergatoria takes unnecessarily large actions upon its own people to secure the safety of the embassy, leading to mass arrests and trials for violent disorder.
Capitalizing on this turn of events, a domestic opposition group within Pergatoria (supported by regional adversary states) portrays their government as being supportive of the Canadian Government at the expense of its own nationals, and calls for violent protests throughout Pergatoria. These protests lead to great loss of life and spirals Pergatoria into civil war, destabilising the entire region.
The UK cannot distance its perception by Pergatoria's citizens from either the Pergatorian Government or the Canadian Government. Its ambassadors are expelled from other regional states, and UK foreign interests (including investments) are lost due to the activity and perception of de facto allegiance with the Canadian Government.

Okay, I think I've talked myself into what can only be described as the 'seventh-circle-of-hell-worst-case-scenario'. However, these events are not impossible given the intention to merge two sovereign diplomatic missions into one while both maintain diplomatic relations with the putative host state. Allowing embassy agency for one state through the premises of another is acceptable, as there appears to remain an arm's-length distance from the agent and the represented. This is not so where two states operate their missions from one premise, and brings into question the degree of reliance upon protections and immunities that arise from the Vienna Convention on Diplomatic Relations.

Thoughts?

Hasta La Vista, Lieber Code

2012-09-13T00:23:00.002+01:00

Interesting story over on ScienceBlog caught my attention today. Turns out some boffins at the University of Washington decided to conduct a study into the human-robot interaction, specifically seeing the effects of anthropomorphic morality attributed to humanoid robots. The paper can be found here.

What was interesting (to this international law student) was the implications this may have on the laws of armed conflict and individual criminal responsibility where a battlefield robot malfunctions killing non-combatant civilians. Who would be held accountable? What if the malfunction were due to systems failure that could not have been reasonably foreseen to occur? What if the robot was a cyborg sent back from the future to kill John Connor before he could lead the resistance? ("...Come with me if you want to live...")

Hollywood fantasies aside, this is a very topical debate - think less Arnie, more predator drones - facing both law makers and military commanders. As the eternal evolution of technology marches on, weaponry has gotten 'smarter', delivery systems have become 'autonomous', and eventually, even the human soldier is destined for the electronic upgrade. However, this technological advance carries with it some worrisome consequences, ranging from the moral to the economical and back again.

If a robot falls in the field, does it make war more humane?
War - the conduct of war, the horrors of conflict, and the legacy it leaves - is both a tragic and unfortunate constant throughout human history. After millennia of vicious and indiscriminate combat, wherein civilians and soldiers were equal targets, leaders and legal philosophers began to develop rules of conduct with the aim of preventing unnecessary suffering in times of war. As such rules formalised, many regarded this development as making wars humane, aspiring to eliminate the indirect effects while maintaining war as a viable political solution.

In the 20th century, after the horrors of both the First and Second World Wars, the international system was restructured to remove war as a legitimate option, save for the most dire circumstances. The Charter of the United Nations restricted member states to only acts of self-defence in response to armed attacks (Art 51 - which does not convey a right upon members, but recognises the 'inherent' right to self-defence). In conjunction with the Hague and Geneva Conventions, as well as the advent of contemporary international criminal law, the international system was working towards this 'humane' war theory started centuries before.

However much efforts are aimed at minimising human casualties, war is, for lack of a more apt description, 'hell'. Unfortunately, the level of civilian casualties has escalated since the two World Wars in comparison to the declination of combatants over the same period. Advances in warfare technology and conflict laws have worked to make war safer for those who fight (not that this is a bad outcome itself), but they have not prevented 'collateral damage' in a measurable and demonstrative manner.

Enter the robot warrior. Capable of incredible feats of strength, stamina and (probably?) fairly resistant to bullet damage, this future warrior envisaged will bring many advantages to the nation it serves, but none more important than the potential for zero loss of life for its human counterpart. So how could such a development be bad?

New scientific developments in military hardware invariably gave certain armed forces superiority in the sea, the air and on land, i.e., stealth fighters, GPS, night vision. There is nothing like war to spur on scientific hyperactivity. As these technologies approach the complexity of robotic technologies, the research and development costs skyrocket, and delivery times are measured in decades. These elements highlight the reality of the drastically different capabilities of adversaries.

What spurs my imagination from the international legal standpoint is the incredible lack of rules or a framework for policy developments. Most UNSC resolutions, treaties, agreements, etc., focus their attention on the rules regarding technologies developed already, and rarely are forward-looking towards tomorrow's futureweapons. Given that there has been abysmal failures this year on weapons treaties (Though, I do not intend to denigrate the efforts made, but that the realism of the international system makes solutions difficult), the likelihood of a multilateral concerted effort to regulate unmanned warfare is slim to nil, and slim just went home.

It is suggested that those countries with the capabilities of robotic weaponry take the early opportunity to lay the groundwork for legal regulations, in a manner similar to the efforts made during the space race. Indeed, those states with nuclear technologies were amongst the first to regulate and limit the proliferation of nuclear-capable states. Some criticism is levelled in that respect to the fact that there is inherent hypocrisy in those countries with weapons telling those countries without how and whether they may possess military capabilities that equalise balances of power. However, those countries with robotic capabilities in warfare are in a unique position of being faced with unanticipated ethical and moral decisions, and are best suited to speak on those experiences.

Regardless, the dangers posed to civilians in robotically-populated war zones necessitates an international conversation to understand the levels of liability and consequence for the deployment of such technologies, moreover when such technology results is unarmed or non-combatant casualties through operator failures or mechanical errors. The next decade of warfare technology is close at hand, and it should not be left too late to decide the rules that will be applied in the laws of and in war for their usage and failures. From the positivist in me, if there is no law recognising the existence of these silicon combatants, there can be no accountability legally for when they commit acts that would otherwise be committed by human beings and considered war crimes.

Not Chuck Taylor as in Converse shoes...

2012-04-26T13:56:00.000+01:00

THIS JUST IN... Charles Taylor has been found guilty on the first 11 counts of the indictment against him at the Hague. This is everything short of exerting actual command and control over the RUF in Sierra Leone. He aided and abetted in the commission of horrific crimes against humanity that have left tens of thousand dead, and many more maimed, raped and/or mutilated in the conflict. Given such acts, it falls on any student of law to question whether she or he might be capable (or even have the stomach) to defend such a person in court.

The following is a very interesting piece on Taylor's defence counsel, Courtenay Griffiths from the BBC:

Courtenay Griffiths: Defending

Charles Taylor

By Dave Lee and Paddy MaguireOutlook, BBC World Service

Courtenay Griffiths has no doubt over the morality of defending alleged war criminals.

Courtenay Griffiths has acted for the defence in some of the UK's most controversial cases.

He has defended the IRA following bombing attacks in the UK, as well as representing one of the youths cleared of murder charges relating to the death of Damilola Taylor - the 10-year-old boy who was killed on a London housing estate in 2000.

Most recently, his position as lead defence lawyer for former Liberia President Charles Taylor has seen his cross-examination of supermodel Naomi Campbell and other high-profile witnesses make headlines across the world.

Talking over the phone from The Hague, he discussed his career with the BBC World Service's Matthew Bannister.

He explained that although defending people like Mr Taylor is considered controversial, his conscience remains clear.

"Our system of justice cannot operate unless there is a semblance of equality between prosecution and defence. Otherwise it becomes an inquisition and that would soon lose the confidence of the public.

"It is right and proper that a defendant, however heinous the crime committed, has the right to the best representation."

“Start Quote

One of the first times I went to court in south London, I arrived in court suited and booted, brief in my briefcase - only to be told 'Oh, the defendants sit at the back of the court sir'.”

Courtenay Griffiths

Despite the serious allegations of war crimes levelled against Mr Taylor, Mr Griffiths maintains it is irrelevant to his right to a good defence.

"The morality of Charles Taylor is none of my business.

"That's between him and his God, whichever God he chooses to worship. My job is to present his case in court. I'm certainly not going to be making moral judgements about any of my clients. I've defended, for example, terrorists - but to make a moral judgement about such defendants is to forget that, you know, one man's terrorist is another man's war hero.

It is this strong belief in fair representation for the accused that drives Mr Griffiths, and that his own view on whether his client is innocent or guilty has never had any bearing on how he works.

"My job is to present a case, and it's for the jury or for the judge to decide that issue. Consequently it's not a question that I ask. I may have my own suspicions, but at the end of the day I'm not the person returning the verdict, so consequently my views are totally immaterial."

'Bizarre racism'

Mr Griffiths' determined attitude to his work is a product of a challenging and diverse upbringing.

In 1955, his father moved from Kingston, Jamaica, to Coventry in pursuit of work as a carpenter.

Several years later, in 1961, the rest of the family followed. It was no small relocation - Mr Griffiths was the second youngest of eight brothers and one sister.

"The first time I saw my father was when we got off the boat train from Dover at Charing Cross, a station in London," he remembers.

Almost immediately he was being subjected to, in his words, "bizarre racism". The sight of 11 black people walking through the centre of post-war Coventry was enough to stop most people in their tracks.

"All the white citizens in Coventry would stop my parents and ask: 'Can we touch them? It's good luck.' That was kind of disconcerting.

"It was a completely novel event for them. Constantly we'd virtually stop traffic in Coventry anytime we ventured out."

But the arguably naive racism of passers-by soon made way for more serious attacks which had a lasting impression on a young Courtenay.

"I personally remember one afternoon being in the Precinct - that ugly concrete structure in the middle of Coventry - and must have been about 14 or 15 at the time.

"Something happened, and I was taken by a police officer, a very large chap I remember, to the police box in the centre of town.

"Me with my public education was trying to argue the toss with him. He was having none of it. He grabbed me round the collar, pushed me up the face: 'Listen blackie, you're in police custody now, don't mess around'.

"Whenever there was an incident in Coventry involving black youths, the first port of call would be our house because there was eight boys living in that house."

'Pint of Guinness'

Spurred on by these events, he saw law as a way out of the life he and his family were living, a life supported by the sole bread winner in their house, his father.

"He was always talking about the famous barristers in Jamaica, in particular Norman Manley who was a British QC before he later became prime minister of Jamaica.

"He always extolled those virtues to us. I think a major influence was also the church in that some of the best advocacy or oratory I've ever seen in my life was done by uneducated black men who could rouse a congregation of hundreds of people into hysteria, just by their mere presence and delivery."

Media attention erupted after Mr Griffiths cross-examined Naomi Campbell

As one of the few black men in the British judicial system, his early endeavours in the courts were challenging.

"One of the first times I went to court in south London, I arrived in court suited and booted, brief in my briefcase - only to be told: 'Oh, the defendants sit at the back of the court sir'.

"Meaning, because I was black, I had to be awaiting a charge, or had to be up on a charge. I couldn't conceivably be a barrister representing anyone in that court."

He found the best way to deal with such prejudices was to tackle them head on, more often than not with humour.

"Often, I'd open my address to the jury by saying: 'With my white wig and black gown I look like a pint of Guinness, don't I? Good head though...'.

"They would look at me initially, there would be a sense of apprehension, then I would burst into laughter and then they'd feel confident enough to laugh as well."

Public eye

Mr Griffiths' early cases would be conducted in front of an audience of few. Now, however, the televised courtroom has seen him thrust into the public eye. It's a distraction that he says does not cross his mind.

"When you're cross-examining, you need to focus on the witness. You need to see the witnesses' reactions to your questions, not merely in terms of the answer, but in terms of their facial expressions, body language and so on.

Outlook

Outlook is a daily programme from the BBC World Service bringing you the incredible personal stories from behind the headlines
It is first broadcast at 2205GMT and repeated throughout the following day

"Then you need to listen to the answer you're given, to see what opportunities arise out of that answer.

"You're also controlling all the notes you've made and you've got the paper on the lectern in front of you - you tend to be focusing on that.

"What's happening in the public gallery with the television cameras and the rest of the media doesn't really enter into my mind."

However, he does admit that the medium of television does suit what he describes as a "performing art".

"And like every other performing art, you have to prepare well and you have to practise that skill.

"What you see in court today which everybody is lauding, my cross-examination of Carol White and Naomi Campbell, people seem to forget that it took me 30 years to develop those skills. On top of that, people don't see me working in my study until two, three in the morning."

You can hear the full interview with Courtenay Griffiths by Outlook on the BBC World Service by clicking here.

Did you hear the one about the Grand Prix in the desert?

2012-04-20T18:06:00.000+01:00

Amongst the myriad of stories littering the news today, I was surprised to see one in particular. It appears that (hold your breath for this one) there are some concerns over the safety of F1 teams in Bahrain ahead of Sunday's Grand Prix. Funny, in the midst of civil unrest and political turmoil, F1's front runner for Captain Oblivious Bernie Ecclestone is out denouncing the naysayers, and Jackie Stewart is toeing the party line right behind him. Throw a petrol bomb at a Force India team vehicle and it will play as if nothing has happened. Are we truly to believe that there is no patronage occurring here to encourage the race to continue as planned?

From the dissenters out protesting (as I have now come to loathe an over-romanticised usage with the term 'rebels'), they are planning 'Three Days of Rage'. Yep, just like every other Grand Prix in history... Except this time, tanks and military will be involved in 'crowd control'. Lunacy.

I had a debate with a friend recently, where he defended the decision to reinstate the race in this year's events as being 'just a race'. Jackie Stewart equally defended the Bahraini government as 'the most democratic in the region'. I am not advocating any particular political system there, but to say such a thing is like saying an F1 driver is the best astrophysicist amongst drivers - it claims to be good at something that it is clearly not. But I digress, as this is not a post about the politics of the Middle East.

What this post is about is something much less complex... The (sports/film/TV/just-because-I-am) celebrity opinion on real issues. Having seen the comments by some of the drivers competing this weekend, I can't help but question why reporters are even asking drivers what they think about the controversy. If Massa had anything of merit to contribute to the issue, he wouldn't be driving a race car... Angelina Jolie recently released a film, "In the Land of Blood and Honey", inspired by the conflict in Yugoslavia in the 90's, wherein a love story exemplifies the horrors that occurred. Somehow poignant, given the rerelease of Titanic (now in 3D!!!). No event can be whittled down to two people, or as Bogey put it,"...it doesn't take much to see that the problems of [two] little people don't amount to a hill of beans in this crazy world."(Casablanca, 1942 - currently celebrating its seventieth anniversary of being 'awesome')

That's not to say that celebrities are somehow barred from charitable or political action, a point proven by the election of two film 'stars', Reagan and Schwarzenegger. However, both undertook the process by getting educated on the matters, participating in the actual debates, and actually being elected to be politicians, even if they banked on their celebrity status to garner votes. Had either just said, "I'm awesome and popular and you've paid £13 to see me be a cowboy/Terminator, so hand me the keys to the office", I doubt the public would have said anything other than 'what a stunt'(or something that sounds similar).

Back to pit lane...

Jackie Stewart stating than he also goes to the Chinese Grand Prix is not some brilliant retort. What it actually means is Jackie doesn't make his travel plans based on the political influences that news agencies are imposing on F1. I doubt that Sir Jackie really even cares, and that's okay. It's not his, Ecclestone's or any drivers' responsibility to advocate political or human rights reforms, nor is it anywhere in their job descriptions. What we the (petrol-head race-weekend loving) public ask is a good show, fast cars, and dramatic high-octane car racing. If I want political punditry, I would switch to BBC Parliament (or, for a rosier look at everything, 10 O'Clock Live on Channel 4).

I don't hold these guys to account for having some pretty shallow opinions on Bahraini civil rights, although I wish they could answer the question with: "Look, I drive this race car. I'm pretty good at that. Ask me about the car. That's what I have a qualified opinion about. And as far as I'm concerned, if there's a race, then I race. Otherwise I screw my chances of gaining points in the standings, piss off my sponsors, lose my ride... etc.".

I don't look towards these guys as moral arbiters, wise sages disseminating existential philosophy to humanity in order to enlighten the human condition. I resent any bestowing of titles such as 'role-model' upon any sports personality/celebrity simply on the basis of their popularity. Role-models are persons of a certain moral virtue to aspire and inspire the best in those that follow them. I don't expect Tiger Woods to be a moral person, and as such, I'm not disappointed when I find out what he does in his personal life. I could care less... er, actually no I couldn't.

So, to be clear, don't go out and admonish F1 for having their desert dash this weekend in proximity to political controversy. For the things that matter to them, these guys pretty much don't think about anything but speed. Stop evaluating that skill as corresponding to some 'renaissance-man polymath' ability: they drive car, it drive good, I win race.

As far as the complex matter that is the Bahrain civil order, one thing is certain: their plight takes longer than a weekend to understand, let alone resolve. Save the criticism for those in a position to do something and choose to do nothing. Jefferson, eat your heart out.

So George Clooney Got Arrested...

2012-03-19T11:26:00.002+00:00

This story here brought some amusement to my day. It would seem as though, given the ever-evolving story surrounding the Invisible Children's KONY 2012 movement, a lot of people, in a lot of different countries, are talking about how best to take action to seek justice.

What I think ought to be the starting point on any conversation about humanitarian efforts is how important it is to understand any conflict or emergency. This brings me back to our man Mr. Clooney. GC has been very active for as long as I can remember in bringing attention to some of the worst atrocities ongoing in the world. Where his actions have had greatest impact are on the ability of those 'actors' within the international system that are able to truly change any given situation. These actors, or as they are otherwise known - states, are where the true power of the international system lies. States - and states alone - are the only participants who are endowed with consequential powers, and are solely capable of any sense of enforcement for international norms.

However, spurred by the establishment and work of some great humanitarian organisations, such as the International Committee of the Red Cross in the 19th century, independent groups have gathered without regard to geographic divisions in order to bring attention to the plight of others worldwide. These independents are known as Non-Governmental Organisations ('NGOs'). This great energy is typically manifested much in a similar way to the Invisible Children in that donations are made to contribute towards lobbying efforts to states, as well as establishing relief efforts on the ground. One of the first I can remember in my short time on this planet was LiveAid, a transatlantic concert (or concerts rather) to raise money for aid work in Africa.

Nearly thirty years on, we are still seemingly raising monies for causes in Africa. And that fact is amongst the reasons why I struggle with supporting such massive resources being managed by territorially-external NGOs who each passionately believe that they have the answer to Africa's problems. A key element that applies to many fundraising efforts is a comparison of the value of life in Africa in relation to my daily consumption of coffee, and how if I give up just one coffee a day, I save the life of a 'poor starving African child'. If I click like on Facebook, and poster the streets of England/America/Canada/etc., then we will all have a hand in 'solving' the issue of child conscription in Uganda. Therein lies the fallacies purported by typical NGOs. An emotional blackmail occurs that is intended to cause me to forgo some seemingly trivial aspect of my developed-world daily routine, and in exchange, I shall be entitled/endowed with the powers to give and protect life.

Ahem. No I will not.

Interestingly, the media & film creation pie is disproportionately represented as its smallest expenditure. Then again, this is but the tip of the iceberg with this organisation's issues...

Rather, to truly aid not just in the situations in Africa, but all humanitarian crises throughout the world, one must undertake rigorous study, striving to understand all aspects of the cultures and communities in question. Contrast this knowledge with that of academics researching economics, law, medicine, politics, history, etc. in order to build a more complete picture of the situation on the ground. And what emerges is stunning... throwing money at these situations without actual understanding only serves to alleviate the guilt one feels when considering the suffering that exists thousands and thousands of kilometres away. (Not that we shouldn't feel anything, but debilitating guilt is an unbelievable dramatization of the relationship)

Let me be clear: Unless you are in the Forbes Magazine Richest Billionaires listings, you and I are single-handedly unable to solve these issues. Many critics of such a mentality point out how narrow-minded that position is, but then employ tactics that suggest 'without your help' all is lost. The reality is you can do something: educate yourself, without a government or NGO filter. Travel to these areas of the world, that is if you can afford to. Read documentation from all sides of a conflict, and critically analyse them to establish your own personal position. And then... well, normally this is where some powerful electronic music would kick in and provide you with an answer.

There is no one answer. And that is where we should start the conversation. Not with a poster campaign, not even with an act of civil disobedience. To state that all George Clooney did was get arrested protesting outside the Sudanese embassy in Washington, D.C. is untrue. He had met earlier in the week with a Senate foreign relations committee, as well as taking time to discuss the matter with President Obama. Mr Clooney has taken his research and experiences in the region, and delivered these reports to the leadership of the USA, or more succinctly, George gave essential information to those with the power to make change - his state - in order to influence and better formulate the American foreign policy regarding Sudan.

As to his arrest, well, this is a particular element of international diplomatic law, and its subsequent incorporation into US domestic law. Interestingly enough, his actions were contrary to Washington D.C. Code § 22-1115 (1981). § 22-1115 reads in pertinent part as follows:

"It shall be unlawful to display any flag, banner, placard, or device designed or adapted to intimidate, coerce, or bring into public odium any foreign government, party, or organization, or any officer or officers thereof, or to bring into public disrepute political, social, or economic acts, views, or purposes of any foreign government, party or organization . . . within 500 feet of any building or premises within the District of Columbia used or occupied by any foreign government or its representative or representatives as an embassy, legation, consulate, or for other official purposes . . . or to congregate within 500 feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of said District." (Quoted from

Boos v. Barry, 485 U.S. 312 (1988), at 316)

This law is part and parcel of the series of laws surrounding the inviolability of the diplomatic mission premises, as found in the Vienna Convention on Diplomatic Relations 1961, Article 22(2):

"2.The receiving State is under a special duty to take all appropriate steps to protect the premises

of the mission against any intrusion or damage and to prevent any disturbance of the peace of the

mission or impairment of its dignity."

The key elements here are that the receiving State "is under a special duty", and in the instance of Friday's events, the "impairment of its dignity". While one can appreciate the intentions of Clooney's protest, and indeed the concerns raised are at a critical juncture, this law (as ought to be with the application of all laws) is not concerned with why there was a protest outside the Sudanese embassy, just that a protest took place, and after an order to disperse peacefully, certain members of the protest were taken into custody. What remains, and certainly to Clooney's credit, is the first time in a long time in Washington, a relatively small civil protest of a foreign government made international headlines.

And that is what Clooney and other celebrities can do, and often have done. They bring the erstwhile invasive celebrity-covering press and have them cover a real news story, such as the ongoing humanitarian crisis in Sudan. They bring the force of media towards otherwise forgotten stories and remind decision-takers that more action is necessary, even if it cannot help in an election year. This is attention that is welcomed from my perspective, as the general public often has no frame of reference, or worse, no idea whatsoever, that these issues exist in today's modern world.

Finally, Clooney mentioned at the press conference after making bail that this was his first arrest, and hopefully his last. The role of the spokesperson for these causes is one of responsibility. Passion only gets you so far, before your personal baggage catches you up. I'm impressed with the reasons for Clooney's arrest, and while not condoning criminal action, I understand within context how this occurred. As for Jason Russell's naked booze-infused self-love through the streets of San Diego, significantly less so. I'm sure he will be portrayed in the future as a martyr for his cause.

I don't think that's what we meant by demanding transparency...

However, when it comes to situations like crimes against humanity and war crimes being committed in Sudan, South Sudan, DR Congo, Uganda, Central African Republic, etc., there are already too many martyred victims who were truly defenceless against the horrors befalling their existence. Make no mistake, these situations require global awareness, local solutions and immediate action. But social media, powerful as it is, does not register on the radar of powers possessed of our respective nations, and through the conventional pathways of policy, only then can real solutions emerge.

I'm sorry to say, 'like'-ing, retweeting, 1+'ing, blogging (yes I recognise the irony), will never solve these problems. Education, direct participation in policy and development, or actually volunteering directly in conflict zones are the only real contributions one can make. So keep drinking that cup of coffee, you're going to need it if you're going to get caught up on the entire story.

It's as much commitment as you gave that video with the turtle and kitten. I'm sure it will solve a humanitarian crisis too.

2012-02-27T03:19:00.002+00:00

This was an interesting topic raised by Professor Kevin Jon Heller over at Opinio Juris. (A far better maintained contribution to international legal discourse)

My response is listed below the entry. (Please respond there to continue discussions)

Iran wants to close the Strait of Hormuz in Protest: Some quick thoughts

2011-12-29T02:56:00.000+00:00

A fellow international lawyer and I were tucking into a bit of a session of current events on Skype when the topic of the day, Iran's proposed blockade of the Strait of Hormuz, reared his head... Here are my first impressions. (I will try and get a more academic position hammered out after I complete my first semester papers in January) Please forgive the Platonic nature of the writing - I suspect Plato would have been a big fan of the general instant message technologies.

Me: ...it's ironic that the mouth of the Gulf is only 15 NM.... but by now, there's far too much custom laid down where Iran has allowed transit. Even if they do attempt to lock it down, you will immediately get a response from the US 5th and the UAE to reopen the Strait

Other PIL Lawyer: Yes of course. Iran must know that as well though. What I'm wondering then is what is their plan? Bluff, attempt to actually block it, or first proverbial salvo in a complete break down in the obedience of the rule of law by Iran.

Me: I think with the Arab spring going the way it is, the isolation of Iran is becoming more concrete. The recent commentary on Syria indicates that it is, or is close to, destabilisation. As a result, Iran's losing its influence in the region, and is becoming desparate to reinforce their political capital.

Other PIL Lawyer: So you see this as a middle-eastern falklands showdown in the making then!

Me: Unfortunately, it would seem that even in attempting to avoid a conflict with Iran, that nation will end up 'calling out' the West for a fight. The immediate danger here is customary law. If Iran is permitted to control Hormuz without response, it would become arguable (and most likely just arguable) that a custom is created. The key here would be instant non-recognition of any blockade or control of the waters. This would be similar to the Gulf of Sirte in Libya. The US and others persistently violated the boundaries claimed in order to prevent the establishment of custom. However, in those cases, it was typically an air force fly-over or a navy destroyer entering the disputed waters. Here, it most likely will be heavy oil tankers, unarmed and unable to prevent transport. The US Navy 5th Fleet will have to escort every tanker through the Strait, which will cement the notion that the US military is used solely for resource security, and destroy whatever credibility one associates with nation building efforts. So (1) bad PR day for the US Navy. (2) Iran will not dare fire upon a US Navy vessel. However, it is more likely that they will target (and by target, I don't necessarily mean destroy) vessels flying other national flags, ie. Liberia, Guinea or Senegal.... This will be selected outside of the NATO countries as not to enable an Art 5 action against Iran. Again, however, this will end up at the UNSC for consideration, and given the necessity of all veto countries to secure oil resources through the Strait, a resolution will pass invoking Ch VII, declaring an Art 42, authorising force to secure the open and free passage of merchant vessels through the region. This in turn will open up an Art 5 for NATO under their new operational considerations (Afghanistan; Libya). So again, we're basically in conflict. (3) In the alternative to an out-and-out grudge match between Iran and NATO (US), the Arab League will use more of its recently-found gusto to try and break Iran into submission. This will further provoke the situation, and must likely result in a deniable op by Iran SpecOps into a neighbouring country with catastrophic results. This may also include incursion in Afghanistan to directly affect NATO interests in-country. (4) Iran backs down: In the event they do, it will be a rouse. The Strait of Hormuz is not their endgame in this scenario. By drawing the military into the region, there will be an increased chance of 'accidents' between the powers. Beyond that, the redeployment of the 5th may also leave other parts of the Gulf susceptible to problems. As the 5th is based out of Bahrain, it may be considered that Iran may attempt to reignite sectarian violence within the country, which would highlight the Shia-Sunni divide, which is ultimately the core of the true problem in the Gulf.

And there you have it... I will elaborate on this a bit more once my table is cleared from the work due mid-January. As always, I post this in the hopes of provoking discussion. Comments and criticisms are more than welcome!

Canada snubs UN tribute to Jong-il - Canada - Canoe.ca

2011-12-24T00:08:00.000+00:00

Canada snubs UN tribute to Jong-il - Canada - Canoe.ca

I'm not really sure how to receive this news. I have my reservations about recent foreign policy decisions taken by the Ministry of Foreign Affairs in Canada, admittedly over the conduct of our diplomats and representatives in relation to North Korea. However, this time round, I agree with the snub, although this is in direct contradiction with a recently-leaked foreign policy plan that places relations with North Korea as a priority. So, just to clarify, a nation we consider to be a priority to normalize relations with is treated with as 'forceful' an action as possible in the General Assembly as walking out during the official recognition of the death of their leader?

It's complicated. The GA President invoked perceptively affectionate wording in relation to Kim Jong Il's passing, leaving many with an undesirable compulsion to wash the phrasing from their minds. Kim's brutal and isolated regime has legitimately been accused of effectively stifling the North Korean people in developmental hell, while expending resources (better spent on food and infrastructure) on an ill-advised and stalled nuclear weapons program. Some 200,000 citizens are being held in prison labour camps for political crimes. Announcements that his son, Kim Jong Un, is to inherit the leadership brings to mind "meet the new boss, same as the old boss". From grandfather to father to son, the Kim dynasty has held authoritarian power over the North Koreans for well over a half-century. This much is clear, Kim Jong Il will not be regarded outside of North Korea as 'glorious leader', rather he will most likely become couched in history with the likes of Idi Amin and Ghaddafi. The people were the furthest thing from Kim Jong Il's concern.

At the same time, it must be made clear that he was the leader of North Korea. Irrespective of our external views (as well as the apparent domestic adoration resulting from decades of propaganda and 'thought-police' style control), it appears that the passing of their leader has hit North Koreans hard. I acknowledge that, should external news and information flood into NK for the first time since the 50s, the people of North Korea would come to understand the true nature of the regime for themselves. However, in the short-term, disrespect for the 'glorious leader's' life may play in NK as spiteful and indicative of whatever barbaric untruths the West is portrayed as being. Without context, the snub in the UN by (amongst others) Canada only fosters poor foreign relations with a country to whom we are technically engaged in a cease-fire status.

This leads back to the original point of this entry - was the snub appropriate? UNGA President al-Nasser should have made the comment more a matter of procedure, possibly offering condolences for the passing of the head of state of a country (that very well could have been any country in the UN), rather than extolling the emotional concern over the loss of specifically Kim Jong Il. Moreover, it would have been an opportunity to reach out to the isolationist nation with an invite to re-engage with the world at large. It should have been more an address geared towards the concern for the peoples of North Korea during a time of grave questions and uncertain answers. It is perhaps regrettable that the phrasing was as it was.

However, in 'snubbing' the UNGA President's tribute, Canada's representatives may have inadvertently driven our two nations further apart. After boycotting the UN arms conference that was chaired by North Korea (by virtue of the rota system within the UN), this renewed animosity may indicate an emerging trend for these frosty relations. And what may be even more concerning is the glaring contradiction that Canada's actions evidence in contrast to the government's declared intentions of prioritizing North Korean relations above others. If this is prioritizing, imagine what we might have done if we didn't care!

Then again, there are some key points to remember:

1. The foreign news ban in North Korea means it is unlikely the population of NK will ever know about our 'overwhelming assistive' political protest against their repression.

2. Our protest and those other nations that walked out of the GA hall during al-Nasser's tribute embolden the powers-that-be in NK that no solution involves them, so why abdicate power?

3. Continued protests by Canada specifically may actually not amount to a 'hill of beans' in the view of North Korea.

On this final point, I am amused by the Canadian Senate's debate as to replacing the beaver with the polar bear as our national animal. I invite readers to consider the points raised in the BBC's coverage of this embarrassingly-ineffectual event, specifically those points regarding Canada's role as being "appreciated for its quiet virtues - its sense of fair play, its ability to compromise, its open-mindedness and its generosity." I love the polar bear, but to use it as a metaphor for reinventing Canada in the image of our more absolutist southern cousins is - frankly - absurd. We should continue to be the nation we have always been, "humble and industrious", being an advocate of peace that communicates with all nations in the hope of bridging the great divides.

For the record, I think the Senate should get back to dealing with the real problems facing Canadians. Possible topic: Mixed Messages in Foreign Policy.

A Controversial State of Affairs

2011-09-17T02:25:00.001+01:00

With Mahmoud Abbas set to request statehood recognition before the Security Council next week, a tense standoff had begun to coalesce.

As had been reported by many news outlets, Palestine likely has two-thirds if the General Assembly in support of enhanced observer status should they decide to make such a request. However, President Abbas, reacting to an Israeli refusal to freeze settlement development, is running a full court press to attain a leveraged position in future negotiations.

While support exists from France, Russia & China, the UK remains coy as to its intentions. Certainly, former PM Blair (as a member of the Middle East Quartet) has urged the Palestinians to abandon their UN course, with the American government leaving on their British cousins to refuse (veto) the request. America has historically declared that any motion submitted would be vetoed, pitting tradition against the assurance made by President Obama that the veto shall not be used against Palestine.

Realistically, next week may result in a number of calamitous scenarios. If the US, supporting the Israelis, weilded the veto, the regional attitude of the Middle East may worsen towards America. Israel will be seen as hardliners against equal footing at the negotiations, preferring the status quo for the balance of power. Palestine may be seen, despite claims of further interest in negotiating, to be attempting to circumvent bilateral agreements (possibly risking any concessions made in the Oslo Accords). Worse still, Israel may feel inclined to reverse the progress made over the last twenty years by further annexing or reclaiming political controls over Palestine.

The harsh reality is that the USA will veto the request, which in turn will further inflame tensions regionally and globally. However, the political fallout may dramatically shift the manner of the relationship between America and Israel. Enhanced Observer status will bring with it some bargaining power in the General Assembly, but will not make a dent in the issues surrounding peaceful statehood aspirations. What is clear is that Palestinians are growing tired of on-again, off-again talks that result in temporary measures that change with the political landscape of Israel.

Hard and measurable progress seems to be the only means of guaranteeing good-faith negotiations - rightly so. The decades of talking are at an impasse that has precipitated the PA (Palestinian Authority) into such a bold and controversial move. Should all hell abstain from breaking loose by the end of this week, one thing is certain: where previously the debate started with temporary stays on Israeli settlement, the future of negotiations are likely to be less of a friendly conversation, more a sluggers competition between the old faithful and the brooding up-and-comer.

A line is being drawn in the sand, and it's beginning to look like 1967.

See you in a week...

Calls for extradition of Lockerbie bomber from US, UK

2011-08-26T20:13:00.000+01:00

A couple of days ago, I happened across a story where lawmakers in the USA were calling for the Libyan Transitional Council to hand over Abdelbasset al-Magrahi as soon as possible to stand trial for the Lockerbie bombing in 1988. It should be noted that, until his compassionate-grounds release from a Scottish prison, al-Magrahi maintained his innocence. By accepting the release from the Scottish authorities, al-Magrahi was required to accept his guilt in the bombing, ceasing all appeals on the matter.

Whether or not al-Magrahi actually committed the acts he was convicted of has become a non-issue. His acceptance of early release was founded upon a legal finding of guilt during fair and open trial within jurisdiction, and subsequent incarceration in Scotland. Without these elements, the criminal legal systems of most democratic countries could not be said to have the authority to convey early release orders for convicted persons. Therefore, it must be seen that al-Magrahi, having been afforded all the rights and opportunities of defence, was safely convicted and put in prison for the crimes.

However, another element of criminal legal orders in democracies is the concept of double jeopardy.

Returning to the catalyst news story, these US senators are in effect asking for a person convicted, jailed and released to be handed over, and re-incarcerated for the same crime. They are claiming that al-Magrahi's release was either a fraud or political capital-gain perpetrated by the Scottish government, or in the alternative, that it remains clear that the compassion shown for al-Magrahi's prognosis in fighting cancer was mistaken and should be resolved by undoing the Scottish decision.

A few issues are clear here:
1. The authority over the jurisdiction of Scotland, in criminal legal matters, remains with the Scottish Lord Advocate under the arrangements of devolution (per s.48(5) Scotland Act 1998 c.46). The decision was the Lord Advocates alone to make, independent of political wishes, in consultation with those persons deemed appropriate to consult. However, the decision itself is only for the Lord Advocate to make.

2. A person who has been released from prison after serving time for a conviction should not have to face trial for the same crime again, with few exceptions. It is reasonable to consider that despite the prolonged survival of al-Magrahi, nobody can 'fake' cancer or intentionally contract cancer for the purpose of perpetrating a fraudulent compassionate-grounds release. Equally considerable is the reality that medical predictions of a cancer patients expected survival period is a prediction that we frequently celebrate when it is proven wrong. That al-Magrahi was told he had weeks or months to live does not mean that, come the expiration of this period, al-Magrahi should take actions to guarantee this timeline (i.e., commit suicide). He always retains his right to control his medical treatment of cancer. He is under no circumstances required to die within the specific medically-predicted period in order to minimize the detriment to international affairs.

3. It would be incredibly condescending for US foreign policy to reach out to the new Libyan authorities and state that this is a priority in showing their commitment to democracy. The Libyan rebels proved their commitments by rising up against Gaddafi, with tens (possibly into the hundreds) of thousands losing their lives in hope of a more open and free existence. This was not done in order to substitute one master for another. Beyond this, the priorities of the Libyan government have been stated as ending hostilities, running elections and establishing a new constitution and the rule of law. Satisfying a foreign power's political blood lust is pretty low down, even if that power provided air support and logistical support for their revolution.

4. By calling for action, these senators are not only expressing complete disregard for the legal authority of Scotland over Scotland (pretty sure Glaswegians are not eligible to vote for American politicians), but they are also communicating a lack of confidence in the new Libyan authority to exercise authority over their own territory. This is a questionable authority until normality is restored in Libya, but it would seem that they are committed to arresting criminal perpetrators for a range of different crimes, as well as attempting to fulfil the international warrants issued from the International Criminal Court (of which the US is not a member). However, what is most needed in Libya right now is reconstructive support, not foreign interference during a difficult time.

It would be a shame if the US assistance to the Libyan rebels were to be sullied by demanding violations of democratic legal norms such as double jeopardy in order to achieve political gains. Any such interference would play strongly into the hands of those states that objected to NATO involvement in Libya, allowing them to have credibility in claiming that assistance is only rendered for the interests of the United States, not for the interests of the people in need of protection.

Please note that this request is not restricted to US lawmakers, with the UK Foreign Minister William Hague, the UK Deputy Prime Minister Nick Clegg and UK Conservative MPs calling for al-Megrahi's return.

Battle for Tripoli: The Longest Yard

2011-08-22T16:42:00.000+01:00

BBC News - Battle for Tripoli - Awoke this morning to the news that Libyan Rebels (a term that I think is somewhat no longer applicable as they control most of the country) had entered and taken most of Tripoli. Sure enough, I had seen quite a large interest last night from the Twitterverse in bringing attention to this significant development. However, I did not expect such a dynamic and rapid siege in the last stronghold of the Ghaddafi camp.

Firstly, it is telling that the media reports have changed their tone. Now that the Ghaddafi-loyal administration does not control the flow of information and censorship of outgoing reporting, vast swathes of reports are coming in from all around Tripoli at a frenzied pace. It is commendable how quickly they have sought to disseminate reports, especially given the short period of time they have had to gather information. Unfortunately, the breakneck speed of 24-hour news means that we will now be inundated with "This just in..." followed almost immediately by "Let's go to this person from this organisation for comment". In the last hour, I have not seen an interview with anybody from the Rebels' side, and no commentary from civilians in Tripoli itself. I'd really like to know what they are making of all this, and wonder on what information these pundits are making rather blanket commentaries. I certainly welcome the comments of fellow academics where appropriate, but I cannot help but feel that blind commentary is at risk of shaping this event into something it is not. There is an irony in a media that has so recently been subject to censorship and blatant misguidance, once freed, reporting a story in their own words rather than in a dispassionate and unfiltered manner. We need to hear from the people themselves. After all, this is what they are fighting for in the first place.

Secondly, it has been reported that Saif al-Islam (Gaddafi's son and official spokesperson) has been detained in Tripoli. This news is welcomed, although its source is not from an official communication from his captors. This is expected to come today. If his transfer to the International Criminal Court (under the international warrant issued earlier this year) it would signal great support for the efforts of the ICC and its work. As the Chief Prosecutor Luis Moreno-Ocampo is coming to the end of his term, this event will certainly be a highlight of his time in office. However, again we should be cautious to usurp these developments from those who have fought hard to secure a brighter future. These decisions remain solely with the people of Libya as to if, when and how they wish to hand over detained parties to the ICC.

I will say, though, that on a personal note, I find the prospect of ICC support from countries emerging from civil conflicts to be telling of shift in international discourse. While countries including the US, Russia & China (3/5 of the Permanent seats on the UNSC w/veto power) have yet to support the ICC by ratifying the Rome Statute, 115 out of 193 UN Member States are party to the Court, many of them domestically incorporating (in some fashion or another) the enumerated crimes within their own criminal legal order.

It is difficult to deny the existence of these crimes, although perhaps less difficult to debate whether a right exists universally for external prosecutions. What does exist is a reality in Libya that would not have been envisaged less than a year ago. This country will need international support over the coming transition, a will to establish institutional reforms, trade and involvement in regional and international affairs.

However, throughout this period, we (the international community) should respond to the needs of the Libyan people, and refrain from manipulating the situation in order to fulfil the role we want Libya to play. While the rule of law is encouraged in any national system, it is for those persons subject to the rule of law to determine its establishment and constitution.

It will be interesting to see the developments over time. What would be more interesting would be to hear directly from those people who have, for so long now, been without a voice. The have achieved half the battle in removing their silencer: Gaddafi. The other half will be getting us to shut up long enough to hear what they have to say.

As I said, it will certainly be interesting.

Universal Jurisdiction: Denying Impunity and Seeking Justice

2011-05-04T00:05:00.000+01:00

Note from author: Given the recent operation by US Special Forces in Pakistan that resulted in the death of Osama Bin Laden, as well as the 'capture and kill' nature of the mission, some have asked whether Bin Laden should have been held for trial in the US or the International Criminal Court in the Hague. While not a direct response to these enquiries, the following is a paper I had written evaluating the basis for justifying jurisdiction over certain crimes in the international system. This should provide an overview of the accepted uses of international criminal law currently available, as well as an analysis of the role of nations in bringing legal action against perpetrators of these crimes. I will follow on with a more tailored narrative shortly, commenting on the Bin Laden situation in regards to criminal prosecution.

Notwithstanding the underlying altruistic principles of justice that have led to the development of universal jurisdiction, the development of its stable and consistent implementation has been fraught with legal compromise and political turmoil. In seeking to create reliable safeguards against crimes deemed to be against all mankind, universal jurisdiction provides a legal basis upon which a variety of judicial bodies may exercise authority over the prosecution of the perpetrators. In doing so, universal jurisdiction forgoes many of the qualifying prerequisites of other jurisdictional models, and provides a duty to nation-states to apprehend and prosecute where a state has the ability. Going beyond physical jurisdiction, questions still remain over the foundation of universal jurisdiction, primarily the varying definitions between international treaties and municipal ratification. The political consequences of these inconsistencies are frequently felt more by those driving universality, as the pure concept would reflect on those claiming righteousness in its application.

Universal Jurisdiction over certain criminal acts

The justification of universal jurisdiction, as is defined by the Harvard Research Draft Convention on Jurisdiction[1], lies within the gravest criminals, serious enough to earn the title hostis humani generis, or enemies of all mankind. Herein is the crux of universal jurisdiction. To exercise authority over the criminals, the crimes accused must possess an offense not just against a sovereign state, but transcending this, be offensive to all civilised humanity. This jurisdiction provides accountability to the international community as a whole seeking to prevent threats to peace and mankind.

Historical Background

The first crime subject to universality is that of high seas piracy. One of the oldest customary international laws of the world, piracy was perceived as a serious threat to safe navigation. Originating in the execution of pirates, the process of sanctioning such egregious actions has evolved within customary international law, and now finds effect in multilateral treaties. Following on from the Convention on the High Seas[2], conferences (UNCLOS II, 1960 and UNCLOS III, lasting from 1973 until 1982) regarding the law of the sea solidified the international will to repress piracy[3], resulting in the UNCLOS[4]. The effects of the Cold War extended even here, as the United States and the Soviet Union argued at length over terms, neither compromising on any points. However, the constitutive elements of piracy were well established, and existed in deference to the sovereignty of territorial seas. These elements, the geographic ‘high-seas’ location of a pirate ship and the motive of private ends for piratical acts, leave open areas of contention that, in the latter half of the 20^th century, modern incidents of political-ends piracy may not be covered.

General Overview

It is the definition of crimes that both dictates and hampers the application of universal jurisdiction[5]. For there to be a universal crime, there must be a global consensus regarding the nature and extent. In modern piracy, an increasing trend in political motives has exceeded the limitations of the definition of piracy laid out in UNCLOS 1982, and “governments may use the discrepancies between their municipal piracy law and the international law [to label] politically-motivated individuals as ‘pirates’ subject to international sanction; or conversely, may shield the otherwise piratical activities of certain individuals by cloaking their activities with a political motivation.[6]” These ‘discrepancies’ extend beyond piracy into fields where the universality concept is employed.

War Crimes

The International Military Tribunals of Nürnberg and Tokyo, following the outcome of the Second World War, employed the universality concept as justification for judicial authority. In the charter of the Tribunals, specific crimes were listed as being within the competence of the court. These crimes were crimes against peace, war crimes, and crimes against humanity[7], also addressing the grave violations of the Hague Conventions[8]. Further developments led to the crime of genocide receiving specific interest, culminating in the Convention on Genocide[9]. Despite obligations towards preventing these crimes and punishing those responsible, application of these duties stalled throughout much of the Cold War.

The concept of universal jurisdiction still developed through a number of treaties and conventions signed throughout the stalemate of the Cold War. In the spirit of the International Military Tribunals, and number of resolutions were adopted by the General Assembly of the United Nations[10], most employing language calling on Member States’ condemnation for crimes against humanity. Further goals were set with the Geneva Conventions, focusing on the treatment of victims of war. The UN Convention Against Torture[11], the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights all speak towards the international will.

Implementation

However, a great deal of the efficacy is dependent on the instruments of municipal incorporation used to ratify international agreements. As is similar in the context of municipal piracy laws, a spectrum of laws have been created by various governments. The problem with variable means is that the intention of preventing these crimes is given different treatment in different countries.

In the twenty years since the fall of the Soviet Union, momentous changes have eschewed out significant developments of universal criminal jurisdiction. In succession, two courts were established with UN Security Council resolutions, the International Criminal Tribunal for the former Yugoslavia (ICTY)[12] and the International Criminal Tribunal for Rwanda (ICTR)[13]. These ad hoc tribunals, with their court structure and operating rules, laid the groundwork for a truly international prosecution mechanism, the International Criminal Court (ICC). Founded under the Rome Statute[14], the ICC provides for the prosecution of international crimes, as agreed upon by 139 countries[15], 110 which have ratified[16] the duties proscribed. In conjunction with other “truly international tribunals”, a total of 279 indictments have resulted in 91 convictions over the past 11 years[17]. However, where international treaty intentions become altered is exemplified by examining various countries’ models of ratification. Three of the four trends in prosecuting war crimes[18] use differing municipal ratification, from exact recitation of the text (United Kingdom), to clarification and domestic reference (Germany), to the ‘hybrid-model’ incorporating international law, customary international law and general principles of law (Canada) [19]. All these methods aim to fulfil the international obligations, but do so in ways that alter the original treaty text.

Legal Implementation

Legal Compatibility and Instituting Proceedings

As a result of the variations, as well as differing legal systems throughout the world[20], treatment of those subject to universal jurisdiction depends under which authority proceedings are commenced. While some cases have started in absentia, the majority of countries currently require the presence of the offender within their borders in order to institute proceedings, this being the sole requirement for a country exercising jurisdiction over a suspect[21]. In the in absentia cases, two countries exercising such universal jurisdiction were Belgium and Spain.

In the Arrest Warrant case[22], a Belgian magistrate issued an arrest warrant in absentia for the Minister of Foreign Affairs of the Democratic Republic of Congo. However, in the International Court of Justice, the warrant was challenged successfully, with the Court declaring Belgium’s position of violating the immunities granted to officials of state. Belgium was instructed to rescind the Interpol-circulated warrant[23].

In contrast, Spain’s pursuit of cases under universal jurisdiction has extended its reach (in absentia) to Chinese officials, including former president Jiang Zemin, in relation to alleged atrocities in Xīzàng, or as it is more commonly known: Tibet. Two law suits, admitted into Spanish courts under the ratifications of the Genocide Convention, the Convention against Torture and the Rome Statute, cover the accumulated violations by the Chinese government in Tibet from the 1970s through 2003 (has been proceeding since 2006), and the latter extending the alleged violations to include the 10 March 2008 campaign crackdown in Tibet[24]. The outcome of these cases is still pending.

Other notable in absentia cases involve the United States’ military treatment of prisoners[25]. Proceedings have been sought in Germany (2004 & 2006), France (2007) and are currently beginning in Spain. The major hurdle in each of these cases is immunity from prosecution for state officials, in this instance, Donald Rumsfeld, the former Secretary of Defense, leading the German prosecutor decided not to prosecute[26], and neither the French[27]. The Spanish case is currently ongoing.

Coming to Trial, Universal Jurisdiction and State Sovereignty

The controversial nature of domestically-exercised universal jurisdiction is not limited to cases wherein the accused is absent. Employing self-declared legitimate universal jurisdiction is the war crimes case of Adolf Eichmann in Israel. Eichmann was allegedly abducted by Israeli Security Services (Mossad) from Argentina and flown to Israel to stand trial. After negotiations fell apart between Argentina and Israel over the violation of Argentinean sovereignty, an urgent session of the UN Security Council was convened, where Israel was instructed to make reparations[28]. Israel claimed that the kidnapping was conducted by ‘volunteers’ (thus removing state liability for the action) and that Eichmann travelled to Israel by his own will, and that Argentina was in violation of international law by not apprehending and prosecuting Nazi war criminals like Eichmann. He was eventually sentenced to death.

Similarly, in the US case of Sosa v Alvarez-Machain[29], bounty hunters hired by the US Drug Enforcement Agency apprehended the accused from Mexico for the death of a D.E.A. agent, delivering him to the United States. It was suggested that the combination of both the crimes alleged and the reluctance of Mexico to prosecute culminated in the justified exercise of universal jurisdiction on the part of the US.

Immunities from Jurisdiction (Ratione Personae and Ratione Materiae)

Cases exercising universal jurisdiction occasionally target current or former state officials, considered ‘protected persons[30]’. Some have questioned the immunities bestowed upon officials of state and the potential impunity from prosecution. In the Pinochet[31] case, General Pinochet’s ratione materiae immunity as the former head of state for Chile was the immediate defense put forward when pending extradition to Spain on a warrant for torture and forced disappearances. While the domestic implementation ratifying the UK’s participation in the Convention against Torture had yet to enter into force[32], Lord Millet suggested that customary international law was part of the common law, and therefore any temporal limitation was invalid. It was also suggested that immunities were not intended to provide protection for war crimes or torture. To date, 15 heads of state have been indicted or prosecuted and sentenced for international crimes[33]. However, the question remains if universality serves as an effective deterrent to these crimes. However, a number of cases have occurred where, unofficially or otherwise, state officials have avoided travel for fear of being subject to arrest and prosecution. The most recent case concerned the former Israeli Foreign Minister Tzipi Livni[34] named on an arrest warrant issued in the UK. The warrant was rescinded quickly, as she was not actually within the UK at the time of issuance. She did, however, cancel travel plans to the UK coinciding with the time of the warrant, though any connection has been denied.

Under the international treaty of the Rome Statute[35], Article 27 effectively removes immunity for state officials both from criminal responsibility[36] and subjection to the ICC’s jurisdiction[37]. Such delimitation is restricted to those countries who have become Member States to the Statute. Many countries, the United States in particular, have focused on limiting the jurisdictional powers of the ICC, citing the potential misuse of universal jurisdiction at the expense of fair-trial principles and prosecutorial discretion[38]; whereas some have stated that any concern by the US is perhaps a matter of sovereignty over their own citizens[39].

Conflicts between law and politics

Such resistance is not unique, and is most certainly not isolated. However, the paths eschewed by countries like the United States have an impact on the development of customary international law of universal jurisdiction[40]. Despite altruism for this form of jurisdiction, what is clear is “something has emerged” despite the cynicism of the goals[41].

State Sovereignty

The immediate concern is the extraterritorial exercise of a country’s authority, reaching into conflicts and disputes alien to their situations and applying what is their domestic legislation. As a customary rule, “one state may not investigate crimes and arrest suspects in the territory of another state without that other state's consent[42]”. However, in being unwilling or unable to prosecute, a bystander state may have a responsibility under the Statute of the ICC[43] and the subsidiarity principle[44] to violate the unwilling/unable territory’s sovereignty.

Alternative to Intervention?

Since 1990, humanitarian intervention operations have increased worldwide. After Yugoslavia and Rwanda, there are suspicions that universal criminal jurisdiction was not only as a deterrent against the crimes, but that it may provide an alternative to humanitarian intervention[45]. However, the “unintended consequence […] is to have produced a system which is actually more comfortable with the idea of intervention, because it sees it hedged about with relatively neutral institutions of justice[46]”. In response to the reflexive nature of this type of jurisdiction, the United States has taken significant steps to provide Americans with impunity against the exercise of universality by foreign authorities.

US Political and Legislative pressure for immunity from the ICC

Ironically, despite support for the ICTY and ICTR by way of permanent Security Council powers, the emergence of the ICC has raised US concerns over the jurisdiction of the court over Americans[47]. After being signed by President Clinton, it was subsequently communicated that the United States would not ratify the treaty, and not be bound by the terms. Legislation followed that undermined the effectiveness of the Rome Statute. In the American Servicemembers’ Protection Act[48] and the Nethercutt Amendment[49], military, economic and social pressure was to be applied to ensure that any country that has ratified the treaty receiving foreign aid from the United States would, inter alia, agree not to exercise duties under the Rome Statute over US citizens. This, along with Bilateral Immunity Agreements, served to provide impunity to US soldiers from prosecution, not only in war, but also in peacekeeping efforts worldwide, often being a condition for any such services required.[50]

Conclusion

While the global trend is leaning towards the ICC judicial system, the rift between international good will and a consensus of realization of the concept have laid down a number of challenges. Reconciling varying municipal courts exercising unique treaty interpretations with international law may be difficult. The balance between the customary law regarding state officials’ immunity, sovereignty and an unencumbered jurisdictional concept has yet to be struck. However, it appears to be in the genuine interest of many nations to adhere to agreements that aim to protect mankind from international crimes. Modern universal jurisdiction may not be a pure application of the concept, but it represents the cooperation of the majority of countries in the world, and has begun to pass from its treaty roots into a developing customary practice.

Bibliography

Articles

“Spain to hear Tibetan lawsuit against Chinese leaders”, AFP (August 5, 2008) (Retrieved from http://afp.google.com/article/ALeqM5gBp60203lXfhA_H1mJ2DFLRG98iA on 10 January 2010 at 0810 GMT)

K. Ambos “International core crimes universal jurisdiction and s153F of the German Crim Procedure Code” [2007] Criminal Law Forum 43.

K. Anderson, “The rise of international criminal law: intended and unintended consequences”, 2009 E.J.I.L. 331

C. Bakker, “Universal jurisdiction of Spanish courts over genocide in Tibet” [2006] Journal of International Criminal Justice 595

I. Black & I. Cobain, “British court issued Gaza arrest warrant for former Israeli minister Tzipi Livni”, The Guardian, Monday 14 December 2009 (Retrieved from http://www.guardian.co.uk/world/2009/dec/14/tzipi-livni-israel-gaza-arrest on 14 January 2010 at 0830 GMT)

B. Dubner “The Law of International Sea Piracy”, 11 N.Y.U. J. Int’l L. & Pol. 471

K. Gallagher, “Universal Jurisdiction in Practice” [2009] JICJ 7 1087

Harvard Research Draft Convention on Jurisdiction with Respect to Crime (1935) 29 A.J.I.L. Supp. 435

G. Hafner “An Attempt to explain the position of the USA towards the ICC” [2005] J.I.C.J. 323

H. Kissinger, “The Pitfalls of Universal Jurisdiction”, Foreign Affairs, July/August, 2001

M. Lippman, “Trial of Adolf Eichmann and the Protection of Universal Human Rights under International Law” Vol 1 No 1, Houston Journal of Intl Law, 1982.

R. O’Keefe, “Universal jurisdiction: clarifying the basic concept” 2004 J.I.C.J. 735, at 740.

J. Rikhof, “Fewer places to hide? The impact of domestic war crimes prosecutions on international impunity”, Crim. L.F. 2009, 20(1), 1-51

K. Roth, “The Case For Universal Jurisdiction”, Foreign Affairs, September/October 2001

C. Ryngaert, “Applying the Rome Statute's complementarity principle: drawing lessons from the prosecution of core crimes by states acting under the universality principle”, Crim. L.F. 2008 19(1), 153

T. Treves, “Piracy, law of the sea, and use of force - developments off the coast of Somalia” [2009] E.J.I.L. 20(2), 399-414.

Legal Cases

Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of Congo v. Belgium) ICJ Reports 2002, Joint Separate Opinion of Judges Higgins, Koojimans and Buergenthal

Prosecutor General at the Federal Supreme Court, Re: Criminal Complaint against Donald Rumsfeld et al., 3 ARP 156/06-2, (April 5, 2007)

Letter from French prosecutor Jean-Claude Marin to FIDH lawyer Patrick Boudoin, November 16, 2007 [in French]. (Retrieved from http://www.fidh.org/IMG/pdf/reponseproc23nov07.pdf on 10 January 2010 at 2213 GMT)

United States v. Alvarez-Machain, 542 U.S. 03-339 & 03-485 (2004)

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3)[2000] 1 AC 147

Treaties, Legislation and other UN Documents

Criminal Justice Act 1988

Rome Statute of the International Criminal Court, 37 ILM 1002 (1998)

Convention on the High Seas, 1958

United Nations Convention on the Law of the Sea, 1982

London Charter of the International Military Tribunal, 1945

United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973)

Resolutions 3(I), 95(I), 96(II), 170(II), 2184(XXI), 2202(XXI), 2338(XXII), 2583(XXIV), 2712(XXV), 2840(XXVI), 3020(XXVII), United Nations General Assembly

Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/39/51 (1984)

“The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International

Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991”, Security Council Resolution 837 UNDOC S/RES/827 (1993)

“The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations in the territory of neighbouring States, between 1 January 1994 and 31 December 1994”, Security Council Resolution UNDOC S/RES/955 (1994)

Ratification information regarding the Rome Statute 1998, United Nations Treaty Collection, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en#9.

U.N. Doc. S/4349 Re Adolf Eichmann situation between Argentina and Israel (24 June 2010)

Textbooks and other secondary materials

M. Shaw, International Law (6^th edn Cambridge University Press, Cambridge 2008)

A. V. Lowe, International Law (1^st edn Oxford University Press, Oxford 2007)

[1] Article 10, Harvard Research Draft Convention on Jurisdiction with Respect to Crime (1935) 29 AJIL Supp 435.

[2] Article 14, Convention on the High Seas, 1958. This was the result, along with 3 other treaties, of the first UN Conference on the Law of the Sea (UNCLOS I), 1956.

[3] Article 100, United Nations Convention on the Law of the Sea, 1982.

[4] Ibid, Articles 100-107.

[5] Ibid, Article 105.

[6] B. Dubner “The Law of International Sea Piracy”, 11 N.Y.U. J. Int’l L. & Pol. 471, at 485.

[7] Article 6(a) (b) (c), London Charter of the International Military Tribunal, 1945.

[8] Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.

[9] United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948.

[10] Resolutions 3(I), 95(I), 96(II), 170(II), 2184(XXI), 2202(XXI), 2338(XXII), 2583(XXIV), 2712(XXV), 2840(XXVI), 3020(XXVII), United Nations General Assembly.

[11] 1984

[12] “The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International

Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991”, Security Council Resolution 837 UNDOC S/RES/827 (1993).

[13] “The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations in the territory of neighbouring States, between 1 January 1994 and 31 December 1994”, Security Council Resolution UNDOC S/RES/955 (1994).

[14] Adopted in the UN General Assembly on 17 July, 1998 by a vote of 120 – 7.

[15] As of 09-01-2010 01:49:46 EDT, United Nations Treaty Collection, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en#9.

[16] Ibid, Ten countries simultaneously deposited their instruments of ratification on 11 April 2002 and consequently qualify as the 60^th State Party required, bringing the Rome Statute into force.

[17] J. Rikhof, “Fewer places to hide? The impact of domestic war crimes prosecutions on international impunity”, Crim. L.F. 2009, 20(1), 1-51, at 9.

[18] Ibid, at 12.

[19] Ibid, at 14.

[20] Amongst which are civil law and common law, but may also include religious legal orders such as Islamic Sharia law.

[21] Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of Congo v. Belgium) ICJ Reports 2002, Joint Separate Opinion of Judges Higgins, Koojimans and Buergenthal at para. 45. (pg 76)

[22] “Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)”, Judgment, I.C.J. Reports 2002, p. 3.

[23] Ibid, at para. 71.

[24] “Spain to hear Tibetan lawsuit against Chinese leaders”, AFP (August 5, 2008) (Retrieved from http://afp.google.com/article/ALeqM5gBp60203lXfhA_H1mJ2DFLRG98iA on 10 January 2010 at 0810 GMT).

[25] Most notably, Abu Ghraib in Iraq and Guantánamo Bay Detention Center in Cuba.

[26] Prosecutor General at the Federal Supreme Court, Re: Criminal Complaint against Donald Rumsfeld et al., 3 ARP 156/06-2, (April 5, 2007).

[27] Citing immunity from criminal jurisdiction for official state acts. See Letter from French prosecutor Jean-Claude Marin to FIDH lawyer Patrick Boudoin, November 16, 2007 [in French]. (Retrieved from http://www.fidh.org/IMG/pdf/reponseproc23nov07.pdf on 10 January 2010 at 2213 GMT)

[28] U.N. Doc. S/4349 (24 June 2010)

[29] United States v. Alvarez-Machain, 542 U.S. 03-339 & 03-485 (2004).

[30] As defined by Article 1, Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973).

[31] R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3)[2000] 1 AC 147.

[32] The UK had only signed the Convention against Torture on 15 March 1985, and ratification (through s.134, Criminal Justice Act 1988) meant any crimes committed prior to CJA 1988 were not within the court’s jurisdiction.

[33] J. Rikhof, “Fewer places to hide? The impact of domestic war crimes prosecutions on international impunity”, Crim. L.F. 2009, 20(1), 1-51, at 39.

[34] I. Black & I. Cobain, “British court issued Gaza arrest warrant for former Israeli minister Tzipi Livni”, The Guardian, Monday 14 December 2009 (Retrieved from http://www.guardian.co.uk/world/2009/dec/14/tzipi-livni-israel-gaza-arrest on 14 January 2010 at 0830 GMT)

[35] Rome Statute of the International Criminal Court, 37 ILM 1002 (1998)

[36] Ibid, Article 27(1).

[37] Ibid, Article 27(2).

[38] H. Kissinger, “The Pitfalls of Universal Jurisdiction”, Foreign Affairs, July/August, 2001.

[39] K. Roth, “The Case For Universal Jurisdiction”, Foreign Affairs, September/October 2001.

[40] J. Rikhof, “Fewer places to hide? The impact of domestic war crimes prosecutions on international impunity”, Crim. L.F. 2009, 20(1), 1-51, at 45.

[41] K. Anderson, “The rise of international criminal law: intended and unintended consequences”, 2009 E.J.I.L. 331, at 333.

[42] R. O’Keefe, “Universal jurisdiction: clarifying the basic concept” 2004 J.I.C.J. 735, at 740.

[43] Articles 17(1)(a), 17(2) and 17(3), Rome Statute of the International Criminal Court, 37 ILM 1002 (1998).

[44] C. Ryngaert, “Applying the Rome Statute's complementarity principle: drawing lessons from the prosecution of core crimes by states acting under the universality principle”, Crim. L.F. 2008 19(1), 153-180, at 156.

[45] K. Anderson, “The rise of international criminal law: intended and unintended consequences”, 2009 E.J.I.L. 331, at 333.

[46] Ibid, at 334.

[47] H. Kissinger, “The Pitfalls of Universal Jurisdiction”, Foreign Affairs, July/August, 2001.

[48] 107^th Congress, s.1610 (2001).

[49] §574, Foreign Operations Appropriations Bill (H.R. 3057)

[50] It should be noted that the current US Administration under President Barack Obama have signalled that a reconciliation may occur between the USA and the ICC.

Assassination and Targeted Killing: The Death of Bin Laden

2011-05-02T12:35:00.001+01:00

Leicester - Woke up this morning to the news that a small US Special Ops group had killed Osama Bin Laden and four others in Islamabad, Pakistan. Indeed, this is a day I had not expected to see. While the practical implications for Al Qaida are most likely disruptive at best, the symbolism of his death can be seen throughout the broadcasts on TV.

It seems that there has recently been a lot of discussion around the targeted killing of certain individuals, without any drawn out analysis of the international position. Certainly, murder is seen as being the intentional ending of a life, with malice aforethought. This is something seen as undesirable and morally repugnant to most civilizations throughout the world. However, the legal restrictions over killing are different in regards to the international order, with the majority of case law centred around the codified limits by the Hague Conventions (1-4) and the Geneva Conventions.

The most coveted protectee is the non-participatory civilian non-combatant who has the misfortune of being caught in any domestic or international conflict. Indeed, the recent Security Council approach to the events ongoing in Libya (Resolution 1973) reflects the international position: "to ensure the protection of civilians and civilian populated areas and the rapid and unimpeded passage of humanitarian assistance and the safety of humanitarian personnel..." Where much of the concern over the consequential NATO-led operation lies is that it may be perceived that the Alliance is conducting air support for the rebel fighters, who at this point may no longer be considered non-participatory.

Yesterday, the Gaddafi government spokesperson Mussa Ibrahim responded to a missile strike on a complex that resulted in the death of Gaddafi's son Saif al-Arab and three grandchildren (pre-teen in age). In the statement he said: "What we have now is the law of the jungle [...] It is clear to everyone that what is happening in Libya has nothing to do with the protection of civilians.” He further commented that: "This was a direct operation to assassinate the leader of this country. It is not permitted by international law or by any moral code or principle." The irony of such a rebuke is made evident considering the recent arrival of former Libyan Foreign Minister Mussa Kussa in the United Kingdom on the basis that he could substantiate the Gaddafi regime's approval and support for the Lockerbie bombing of a Pan-Am jetliner. This highlights the malleable use of international law by State actors.

But where the international law was clear regarding the terrorist bombing of an airliner (Montreal Convention), the law is distinctly less formed around its position regarding assassination. Remarkably, one has to look mostly at International Conventions protecting Diplomatic Persons and UN Staff. Where one may make an argument is under the UN International Covenant on Civil and Political Rights, wherein Articles 6, 7, 9 and 10 denote the protections for life and liberty. In particular, a strong point lies in the Art 7 protection against cruel and inhuman punishment of those persons deprived of liberty. A similar criticism has been levelled against the US government by former Deputy Assistant to the Secretary of State Michael Hammer regarding the treatment of Sgt. Bradley Manning for his role in the ongoing WikiLeaks revelations. However, a direct comparison between a domestic detention and a military operation cannot and should not inform the legal position, as the ICCPR recognises the responsibilities of a State to its citizens, and this morning's operation most likely falls outside the scope of the Covenant.

A more apt comparison could be drawn from the assassination of former Lebanese Prime Minister Rafik Hariri on 2005-02-14. In what may have been cross-border operations designed to kill Hariri, the aftermath has construed involvement as terrorist in nature, and subsequently under the jurisdiction of the Special Tribunal for Lebanon. (Reports suggest indictments may be confirmed this week.) Whether Pakistan would pursue the American Special Forces unit who killed Bin Laden for terrorism (as defined by Pakistan) is unlikely, given the complicity of the Pakistani nation in prosecuting the 'War on Terror'.

Correlating effects of this morning's operation should be communicative to the Gaddafi regime inasmuch as it represents the attitude of the majority of nations towards holding persistent violators of rights and persistent perpetrators of terrorism to account for their crimes. One need only look at the comments being made by world leaders to discern a communal will to do so. While the current situation in Libya is fraught with contentious issues, primary concern rests upon the reality of potential crimes against humanity, genocide and war crimes that may be occurring now and in the near future.

All of this discussion is a bit of an internal legal theory debate. Relating to the true reality of Bin Laden's death is of more practical considerations. That he was buried at sea, preventing a geographical focal point for his followers, is but one of many issues that will have already been considered by the Obama Administration. It is these considerations that are more appropriately dealt with by politics and diplomacy.

The real story, after the subsidence of celebration over reciprocity for 9/11, will be how Al Qaida restructures itself and the global efforts against their organisation. What remains is a real and measurable momentum towards fighting terrorism in Afghanistan, Pakistan, and the Middle East. This will not be the last time, however, where the death of a prominent target by military forces shall be seen as appropriate and necessary towards international peace and security.