The Need to De-Link RtoP from International Criminal Law

In an article in the most recent volume of the Virginia Journal of International Law (http://www.vjil.org/articles/when-are-international-crimes-just-cause-for-war), I explore the relationship between the Responsibility to Protect (RtoP) doctrine and international criminal law. In particular, I question whether RtoP as articulated in the 2005 World Summit Outcome Document (Outcome Document) appropriately limits the doctrine’s applicability to situations involving genocide, war crimes, ethnic cleansing, and crimes against humanity. Although RtoP was originally conceived as an alternative to the controversial doctrine of “humanitarian intervention,” it has evolved into a much broader set of proposed norms of state responsibility. Limiting recognition of states’ responsibilities to international crimes (plus the undefined “ethnic cleansing,” which often amounts to a crime against humanity) thus undercuts the promise of RtoP, which should aim to encourage states to protect their populations from a much wider range of harms, including, for example, those stemming from economic and environmental factors. Moreover, the Outcome Document’s recognition that states bear a responsibility to protect their populations from international crimes essentially states the obvious.

Given the controversy surrounding humanitarian intervention, the Outcome Document’s recognition that the international community may take collective action, through the Security Council, when national authorities fail to protect their populations from international crimes represents an important step on the road to developing a norm of legitimate military intervention in pursuit of humanitarian goals. However, limiting the “just cause” for such intervention to international crimes was a mistake. As just war theory attests, just cause for intervention depends on the gravity of actual or threatened harm, not on whether the elements of an international crime are met. In fact, the reliance on international crimes results in an intervention threshold that is both over- and under-inclusive. It is over-inclusive because not all international crimes are sufficiently serious to constitute just cause for intervention. Small-scale war crimes, for instance, are unlikely to meet any just cause threshold. The threshold is also under-inclusive because the restriction to international crimes precludes military intervention under RtoP in circumstances where it is likely justified under relevant moral norms. This is because international crimes generally require an evil intent that is not necessary for military intervention to be morally justified. Such intervention may be justified, for instance, in certain cases of very large-scale harm due to natural disaster.

Linking RtoP to international crimes not only fails to identify an appropriate threshold for RtoP’s application, but also threatens to undermine the international criminal law regime in several ways. First, in light of the widespread belief that intervention requires widespread harm, linking RtoP to international crimes promotes the idea that international crimes also require large-scale harm. In fact, however, international criminal law should be available to address smaller scale crimes, in particular war crimes, in order to fulfill the preventive and expressive functions of the law. Moreover, linking RtoP to international crimes may encourage states to resist identifying events as international crimes for fear of triggering a responsibility to intervene, thereby impeding the development of international criminal law. Finally, by obscuring the question of when harm is grave enough to warrant humanitarian intervention, RtoP fails adequately to differentiate such intervention from the crime of aggression. Although the Outcome Document limits humanitarian intervention to Security Council-authorized actions, some states have indicated that they do not accept that limitation. When states engage in unilateral humanitarian intervention, it will be particularly important to have a widely accepted just cause threshold to guide international prosecutors.

You might wonder why it matters how the Outcome Document articulates RtoP, which, after all, is not binding in any way. In my view, RtoP represents an important rhetorical means of framing arguments about the moral, and perhaps legal, legitimacy of intervention for humanitarian purposes. RtoP has already proven a powerful tool for norm promotion on the contested issue of military intervention, and, to a lesser extent, has served to encourage other forms of intervention. Fixing RtoP’s just cause threshold is therefore important not because RtoP currently dictates intervention outcomes, but because it helps to frame international discourse regarding the legitimacy of intervention. Labeling something an “RtoP situation” influences decision makers, at least some of the time. Moreover, if its powerful supporters are successful, RtoP may eventually become a legal norm that governs intervention.

Welcoming back Margaret deGuzman

It’s our great pleasure today to welcome back previous IntLawGrrls contributor Margaret M. deGuzman.

Meg is associate professor of law at Temple University Beasley School of Law in Philadelphia, where she teaches criminal law, international criminal law, and transitional justice.  Her scholarship focuses on the role of international criminal law in the global legal order, with a particular emphasis on the work of the International Criminal Court (ICC).  Her recent publications have addressed such issues as how the concept of gravity of crimes affects the legitimacy of international criminal law, the relationship between international criminal law and the responsibility to protect doctrine, proportionate international sentencing, and the selection of cases and situations for ICC investigation and prosecution.  She is currently participating in an international expert group studying the proposed addition of criminal jurisdiction to the mandate of the African Court on Human and Peoples’ Rights.

Before joining the Temple faculty, Meg clerked on the Ninth Circuit Court of Appeals and practiced law in San Francisco for six years, specializing in criminal defense. Her cases involved charges ranging from insider trading and trade secret theft to mail fraud and drug trafficking.  Meg also served as a legal advisor to the Senegal delegation at the Rome Conference where the ICC was created and as a law clerk in the Office of the Prosecutor of the International Criminal Tribunal for Former Yugoslavia.

Meg holds a Ph.D. from the Irish Centre for Human Rights, National University of Ireland (2015). She received her J.D. from Yale Law School as well as an M.A.L.D. from the Fletcher School of Law and Diplomacy at Tufts University and a B.S.F.S. from the Georgetown University School of Foreign Service. She was a Fulbright Scholar in Darou N’diar, Senegal.

Meg’s first post on the new site will discuss the need to de-link RtoP from international criminal law. Welcome back!

Why international law matters in outer space – Part 2: because, military!

In the first part of this blog post yesterday, I described the extent to which we are dependent on space technologies for our daily activities, and the role of international law.  But what about military activities? Right from the beginning of the space race between the USSR and the USA in the 1960s military technology has been at the forefront, and until recently it was what drove most innovation in space. Indeed, GPS was a US military invention, and they decided to share it’s benefits for civilian use. Intelligence gathering by remote satellite imaging, as well as communications, GPS for aviation and marine operations, and many drone and weapons technologies are highly dependent on high-tech satellite networks. How does international law apply to this 21st century environment?

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The notion of “space warfare” may not be something that belongs to a long time ago in a galaxy far, far away; in fact many people refer to the Iraq war in the 1990s and the US-led “Operation Desert Storm” as the first space-led war. There was a significant reliance on satellite imaging and telecommunications as an integral part of that operation. These days most Western naval, air and army units rely on multiple forms of space technology, as do Russia and China. In the last year the US has increased it’s “big data” reliance , making such satellites very precious assets.  Recently, North Korea has been launching objects which many worry are not just rockets, but rather anti-satellite weapons. Where space used to be considered the ultimate military “high ground”, it is now accessed by many more States, and if these space assets can be targeted by adversaries, dependence can lead to vulnerability during a conflict.

Worryingly, a recent report on 60 Minutes titled “The Battle Above” painted a fairly dire picture of outer space as a “wild west” when it comes to military activities, asserting that there is essentially no law regulating this new potential battlefield and that it is every country for itself. And even when speaking to people who specialise in “space security”, I have heard many express the concern that military activities in outer space take place in a legal vacuum.

I would beg to differ, and thankfully I am not alone.

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Reproductive Rights & The Inter-American System: Fieldwork Report

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In the Inter-American region, and in many other parts of the world, women’s reproductive rights are under attack. Just last month a ten-year old Paraguayan girl was denied an abortion after she was raped by her stepfather and subsequently became pregnant. In 2013, Beatriz was denied an abortion in El Salvador, despite carrying an anencephalic fetus and also suffering from lupus. In Costa Rica, AN and “Aurora” were denied therapeutic abortion procedures after learning their fetuses would not be viable outside of the womb. And, in 2002, a Chilean woman with HIV was sterilized without her knowledge after giving birth to her son. These examples represent some of the most extreme women’s reproductive rights violations in Latin America, where draconian laws reinforce and perpetuate discrimination and violence against women. In response to violations such as the examples noted above, international human rights treaty monitoring bodies have increasingly proven to be forums for the advancement of women’s reproductive rights. One such entity, the Inter-American System of Human Rights, has issued recommendations and judgements on cases involving violations such as forced sterilization, denial of abortion in the case of rape, and prohibition of in vitro fertilization (IVF) procedures.
In the summer of 2014, fieldwork research was conducted as part of a doctoral thesis entitled, “Strengthening Women’s Reproductive Rights in the Inter-American Human Rights System: Gender, Reparations and Reproductive Justice.” Upon completion of interviews with actors engaged in work on reproductive rights in the Inter-American System, a report entitled, “Women’s Reproductive Rights in the Inter-American System of Human Rights: Conclusions from the Field, June-September 2014,” was distributed to interview participants. The objectives of the report were (1) to examine the María Mamerita Mestanza Chávez v. Peru (2003), Paulina del Carmen Jacinto Ramírez v. Mexico (2007), and Artavia Murillo et al. v. Costa Rica (2012) cases, in order to understand how reproductive rights cases develop, and the subsequent challenges and advancements; (2) and to learn from these cases in order to suggest recommendations for how actors can make better use of the Inter-American System as one of several avenues for fulfilling women’s reproductive rights.  The report identifies three main challenges to the implementation and enjoyment of women’s reproductive rights: (1) limited understanding and institutionalization of ‘gender'; (2) ineffective or nonexistent collaboration between actors; and (3) inadequate development, implementation, and compliance-monitoring of reparation measures. The report also recommends strategies in order to achieve a more efficient Inter-American System when dealing with reproductive rights: (1) creating a tradition of gender-based reparations; (2) using the Convention of Belém do Pará consistently and constantly in litigation efforts; and (3) institutionalizing gender training in the Inter-American System.

As human rights law is increasingly utilized as a tool in the advancement of women’s reproductive rights, it is essential for actors to engage in every opportunity to reflect on advancements and missed opportunities. The intention of this report is to play a small role in that process of reflection.

Report in both English and Spanish. The author welcomes any questions, comments, and additional information @ c.o-connell [at] sussex.ac.uk.

Image credit: Cristy C. Road

Introducing Ciara O’Connell

CiaraImageIt’s our great pleasure today to introduce Ciara O’Connell as an IntLawGrrls contributor. Ciara is a PhD Candidate and Associate Tutor in Law Studies at the University of Sussex (UK), and she holds a Master of Laws in International Human Rights Law from the Irish Centre for Human Rights. Her research focuses on strengthening women’s reproductive rights in the Inter-American System of Human Rights, with an emphasis on the role of gender in the design and implementation of reparations.

Ciara was a visiting scholar at the International Institute for the Sociology of Law in Onati, Spain, and at the Centre for International Governance and Justice at Australian National University as part of Professor Hilary Charlesworth’s project, “Strengthening the international human rights system: Rights, regulation and ritualism.” Her publications include: Litigating Reproductive Health Rights In The Inter- American System: What Does A Winning Case Look Like?, What a ‘Private Life’ Means for Women (Intersentia: 35 Years of the Inter-American Court of Human Rights, 2015), and Bringing It Home: The Inter-American System and State Obligations – Using a gender approach regionally to address women’s rights violations domestically (Intersentia: Inter-American and European Human Rights Journal, 2010).

Ciara is a member of the Centre for Cultures of Reproduction, Technologies and Health (CORTH) at the University of Sussex and the Inter-American Human Rights Network (IAHRN) at the University College London. Previously, she interned with the National Economic and Social Rights Initiative (NESRI), volunteered as a researcher with the Women’s International Network for Guatemalan Solutions (WINGS), and served as an assistant editor with the Interdisciplinary Journal of Human Rights Law.

Ciara’s first post introduces her recent fieldwork report entitled, “Women’s Reproductive Rights in the Inter-American System: Conclusions from the Field, June-September 2014.” Heartfelt welcome!

Documenting Human Rights in South Sudan

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Victoria Akur (left) and Grace John (right), members of South Sudanese CSOs, with Milena Sterio (middle).

On behalf of the Public International Law and Policy Group (PILPG), a Washington, D.C.-based non-governmental organization (NGO), I participated in a four-day workshop in Nairobi, Kenya.  The workshop was entitled “South Sudan Human Rights Documentation Initiative” and it built on existing PILPG Work in South Sudan.  This particular workshop brought together approximately forty participants: several PILPG members, including yours truly as a consultant, members of various South Sudanese civil society organizations (CSOs), a United Nations representative, as well as members of a partner organization, the Centre for the Study of Violence and Reconciliation (CSVR), a South African NGO.

The workshop was structured over four long days of presentations, interactive dialogs, exercises and guided simulations.  The specific topics covered during the workshop included specifics of documentation in general, such as purposes of documentation, preserving documents, various investigation options and tools, and involving women in human rights documentation efforts.  One day of the programming was organized by the CSVR, with a specific focus on the psycho-social effects of trauma, and the effects of violence and trauma on documentation efforts.  The outcome of the workshop will be the drafting of a joint agreement on a human rights documentation roadmap, as well as the beginning of ongoing discussions with representatives of South Sudanese CSOs regarding how international groups and NGOs can assist in future documentation efforts.

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Kenyan coffee (it helped during long days of workshops).

This post will explore the purposes and importance of documentation efforts in South Sudan.  South Sudan is a war-torn country.  It gained its independence from Sudan in 2011, through a public referendum where the majority of South Sudanese voted in favor of separating from Sudan.  The referendum came at the heels of a decades-long independence war during which South Sudanese rebels fought against the Khartoum regime.  South Sudanese independence, although initially celebrated, did little to quell the ongoing conflict.  The independence in many ways exacerbated already existing tribal and ethnic rivalries, resulting in new violence and civil conflict pitting two major South Sudanese groups against each other: the Dinka and the Nuer.  The Dinka-Nuer conflict, deeply rooted in South Sudanese colonial history and reflected in the independence rebellion itself, has by now involved other minority groups who have been forced to align each other with either the Dinka or the Nuer and to thereby take a more active role in the fighting.  The current South Sudanese president, Salva Kiir Mayardit, is Dinka, and the government regime is composed of mostly ethnic Dinkas.  The Nuer feel particularly vulnerable under this regime, and have reported that police and security forces working on behalf of the government have targeted not just Nuer fighters, but civilians as well.

Documenting human rights violations in this type of climate appears as the first step toward peace-building and reconciliation; ultimately, documented human rights violations can lead toward accountability and can serve a particular role in potential prosecutions of perpetrators of human rights abuses.

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Urban safari at the Nairobi National Forest.

Other countries have already implemented various human rights documentation efforts.  Various groups have worked on documenting human rights abuses in places such as Brazil, Guatemala, Argentina, Cambodia, etc. These efforts, which were briefly discussed during the Nairobi workshop, can serve as models for South Sudan and can provide successful examples of documenting and archiving human rights abuses, and using them toward both reconciliation and accountability.  In addition to serving as a first step toward accountability, documenting human rights violations can serve other purposes, such as building a fair and neutral historical narrative about the South Sudanese conflict, memorializing various types of violence, building long-lasting peace and promoting reconciliation. All of these different purposes of human rights documentation were discussed at the workshop. The ultimate conclusion of the workshop was that documenting human rights violations for all its possible purposes was of particular importance in South Sudan, and that the country’s CSOs would take the lead in this project.

Why international law matters in outer space – Part 1

Most of us don’t think about outer space when we think of international law, but the technologies that allow us to expand our exploration and use of our space environment also drive our modern global society, and international law is at the cross section.  Our daily activities, from email, phone calls and Facebook to every automatic bank transaction you make, are dependent on satellite technologies. When you take a plane, the air traffic control is dependent on GPS. Even disaster management is dependent on satellite imaging.

In this two-part blog post, I want to introduce the key aspects of why international law matters in outer space, the first part focusing on civilian and commercial activities in space, and the second on military activities.

The space environment is often described as increasingly “congested, contested and competitive“, as was reported to the UN General Assembly’s First Committee (Disarmament and International Security) in 2013.

Congested because there are more and more States becoming “space faring nations”, and more and more satellites are launched each year. Currently there are about 1,200 operational satellites orbiting above us, as well as half a million pieces of “space junk”, including debris from various collisions and left-over rocket pieces, but also decommissioned satellites that have run out of fuel. The film “Gravity”, for all its shortcomings, painted the scenario for us of the risks involved with space debris. Our propensity to trash our natural environment has spread out into space.

Contested because although space is big, our near-Earth environment where satellites can fall into useful orbital paths, is limited. Every space object that is launched must be registered according to the 1974 Convention on Registration of Objects Launched into Outer Space, and in order to “claim” an orbital slot and a frequency band on which to send it’s signals back to earth, and claim a right to non-interference with that slot, satellites must be registered with the International Telecommunications Union (ITU). But the most interesting orbits for internet and communications are geostationary, meaning that a satellite orbits the Earth at the same rate as the spin of the Earth, so that it looks like it’s stationary above one point. These orbits are focused around the equator, but obviously it has not been the Equatorial States who have been launching satellites over the last few decades. Since 1976 these and other developing nations have been protesting that their potential access to space is extremely limited by the over-use of limited natural resources, namely the orbital slots and radio frequencies, by a small number of Western States.

Competitive because as you may have noticed it’s no longer just States launching things into space, and attempting to outdo each other with high value technologies, there are now lots of commercial entities entering the space market. Elon Musk’s visionary SpaceX company has already shuttled supplies to the International Space Station and hopes to shuttle astronauts as well; Richard Branson’s Virgin Galactic enterprise hopes to take tourists into zero-gravity; Google bought a start-up satellite company called Skybox which it intends to use to provide continuous global internet access everywhere on the planet, partly in response to the garnering success of a company called O3B (Other Three Billion), which aims to provide internet to remote and less affluent parts of the world. Telecommunications companies procure, launch and operate satellites at huge costs and with huge insurances to cover possible liability if something goes wrong. Moreover, there are entities showing interest in potential technologies like mining asteroids or the moon for precious resources, and we’re not too far off that becoming a reality.

With technologies developing so rapidly, and the so-called “democratization of space”, how does international law regulate this congested, contested and competitive environment?

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