Munch’s magic Oslo “Scream”

blackOSLO –  Remember the famous Edvard Munch image of The Scream? Well, that’s it at left. At least, that’s how it looked to me on first glimpse at the Munchmuseet, a highlight of this Norwegian capital.

A while back, thieves stole The Scream and another painting, Madonna, from this museum. Both eventually were recovered and again placed on display. But The Scream suffered damage. And so when I entered the small room where it hangs, I found nothing but darkness, so much that I began to leave. Suddenly, an unseen guard said:

‘No, wait. Magic will happen.’

As I inched again into the room, a motion-sensor was triggered, and The Scream emerged from the blackness. The 1893 oil painting’s bright colored swirls madonnawere more brilliant, more moving in person than in any reproduction –  so much more expressive than Munch’s black and white lithograph of the same image. True magic.

A ban on photography in that room precludes showing any but the “before” picture. But the photo at right of the other formerly stolen painting, Madonna, serves to remind of Munch’s eerie genius.

(Cross-posted from Diane Marie Amann. Thanks to IntLawGrrl Cecilia Marcela Bailliet and her colleagues at the University of Oslo PluriCourts project for the opportunity to visit and take part in a brilliant conference.)

Trying to Classify the Conflict in Eastern Ukraine….

On 23 July the International Committee of the Red Cross (ICRC) released a statement declaring inter alia that the conflict in eastern Ukraine was of a non-international nature. Yet, one may rightly question whether the conflict has become international, bearing in mind the recent events.

There are chiefly two ways to draw the conclusion that a non-international armed conflict has turned into an international one (see International Criminal Tribunal for the Former Yugoslavia (ICTY), Tadic Appeals Judgment, 15 July 1999, para 84). First, the armed conflict falls within the remit of Common Article 2 to the 1949 Geneva Conventions because two or more High Contracting Parties, i.e. States and in this instance, Russia and Ukraine,  have recourse to armed force against each other. In fact, the Geneva Conventions have, as the commentary explains, an extremely low threshold of application:

[i]t makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims.

‘The occurrence of de facto hostilities is sufficient’ to trigger the applicability of the Geneva Conventions. There is no intensity threshold. Recent reports refer to the destruction by Ukrainian forces of columns of Russian military vehicles crossing the border into Ukraine (here), Russian helicopters firing at Ukrainian border guards (here), and Russian soldiers being captured (here). If that information is true then the conflict is deemed to be international, as a result of which all four Geneva Conventions and the 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I) are applicable.

Second, the conflict that was initially of a non-international nature, opposing the ‘rebels’ to the State forces (by the way, IHL does not question the legitimacy of the government) has been internationalised by the actions of Russia. The ICTY explained in the Appeals Judgment in Tadic that a conflict can become international ‘if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.’ (para 84) In other words, the intervention of a foreign State could be direct and/or indirect.

Direct intervention consists in the active participation of the armed forces of a foreign State, engaged with the armed opposition group against the State forces. In the case at hand one would need to demonstrate that the Russian armed forces have been directly engaged along the forces of the self-proclaimed Donetsk People’s Republic (DPR) against the Ukrainian armed forces. The criteria used are (1) the actual presence of troops in the area of the conflict and (2) whether the armed forces of the foreign State are in command of the armed opposition group (see e.g. Naletilic and Martinovic, Judgment, 31 March 2003, para 189). In relation to the conflict in eastern Ukraine it must be shown that Russian troops are directly involved. There have been for a while allegations that elements of the Russian armed forces are present in eastern Ukraine and even that Russian soldiers have been wounded or killed in action. Further it is alleged that a column of military forces displaying the insignia of the DPR entered Ukraine from Russia. Counter-claims that these are only volunteers or active-duty soldiers currently on leave, unrelated to the Russian State, have also been made. Remarkably, in Naletilic and Martinovic the ICTY did not accept that similar soldiers were volunteers, stressing that ‘it is the Republic of Croatia that did in fact organise the sending of the vast majority of them, while attempting to conceal their presence by asking them, for example to replace their uniforms and insignia for those of the [armed opposition group]’. (para 195) In the same decision the ICTY also noted that the troops were still receiving a salary from Croatia which had admitted to the presence of regular units in Bosnia-Herzegovina (para 195). Whether the Russian troops alleged to be in eastern Ukraine draw Russian wages is unknown but likely. That being said, unlike for the presence of ‘unmarked troops’ in Crimea, Russia has long denied any involvement in the conflict in eastern Ukraine (e.g. here). More importantly, it must be shown that the Russian armed forces are in command of the armed opposition group. This is an allegation that does not seem to have been made by any involved parties all the more as there has been some changes in the leadership of the armed opposition groups, replacing Russians by individuals from the DPR (here). Thus it is not possible to claim that the conflict in eastern Ukraine is international due to the alleged direct intervention of Russia.

What about indirect intervention? The relevant test, that of ‘overall control’ of a foreign State, is spelled out in the Tadic case:

[C]ontrol by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training).  … The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts. (para 137)

The overall control test has been reiterated on numerous occasions before the ICTY (e.g, Naletilic and Martinovic, para 184; Blaskic, Judgment, 3 March 2000, para 100) as well as adopted by the International Criminal Court in Lubanga (ICC, Lubanga, Judgment, 14 March 2012, para 541). Admittedly, the application of the test is not easy as it must be proven that the State has not only ‘provided financial and training assistance, military equipment and operation support’ but also ‘participated in the organisation, co-ordination or planning of military operations.’  (Naletilic and Martinovic, para 198).  The first part is generally fulfilled by showing that financial and logistical support, and military training is provided. Whilst there are few doubts that Russia has provided such assistance to the armed opposition group, it is certainly more difficult to ascertain that it has taken an active part in the military operations. The ICTY has developed a number of indicators to gauge whether a foreign State is ‘organising, coordinating or planning the military actions’. These can be chiefly put into two categories. In terms of personnel, the foreign State and the armed opposition share personnel (Blaskic, paras 114-117), the wages are paid by the foreign State (Blaskic, para 101) and the military structure and ranks are similar, if not identical (Tadic, para 151). In terms of decision making, decisions are coordinated via e.g. meetings (Blaskic, para 118), the foreign State issues orders for troop movements and military strategies (Tadic, para 151; Naletilic, para 201), the troops are pursuing the same goal (Naletilic, para 200; Blaskic, paras 108-110) and the foreign State harbours ambitions in respect of the territory where the armed conflict takes place (Blaskic, paras 103-106). These are only indicators, i.e. it is not a finite list and there is no need to prove that all ‘indicators’ are fulfilled. At this stage there is simply too much conflicting information on the events in eastern Ukraine to be able to form an informed opinion on whether Russia’s alleged indirect intervention has turned the conflict into an international one.

To complicate matters, the conflict can be split into several armed conflicts depending on the time, the place and the parties involved. As the ICTY explained in the Tadic Appeals Judgment, the conflict can, ‘depending upon the circumstances, be international in character alongside an internal armed conflict’. (para 84) For example, whilst confrontation between Ukrainian and Russian State forces would lead to the conflict being classified as international in one part of the Ukrainian territory, hostilities between the Ukrainian armed forces and the forces of the self-proclaimed Donetsk People’s Republic would be categorised as a non-international armed conflict.

As a conclusion, due to the large amount of claims and counter-claims that riddle the news media on the conflict in eastern Ukraine it is difficult to draw straight-forward, persuasive conclusions as to whether the conflict is international or has been internationalised.

Go On! Registration ends 12 Sept. for Institute for Global Law and Policy 2015 Workshop in Doha, Qatar

The Institute for Global Law and Policy (IGLP) at Harvard Law School invites you to apply to participate in its 2015 Workshop in Doha, Qatar, from January 2-11, 2015:

At the 2015 Workshop (January 2-11) we will continue to seek ways to deepen the network of collaboration among our Workshop alumni as well as continue to strengthen and renew our core program with new themes and new participants. Our aim is to build on the momentum of our first five Workshops as we strive to develop the premier site for networked innovation in the fields of global governance and economic policy among young scholars and policymakers from across the world. The full program for the 2015 IGLP Workshop, including Workshop Streams, will be announced soon.

IGLP: The Workshop is an intensive residential program designed for doctoral and post-doctoral scholars and junior faculty. This initiative aims to promote innovative ideas and alternative approaches to issues of global law, economic policy, and social justice in the aftermath of the economic crisis. Our aim is to strengthen the next generation of scholars by placing them in collaboration with their global peers as they develop innovative ideas and alternative approaches to issues of global law, economic policy, social justice and governance.

The IGLP is pleased to announce that we are currently accepting Participant applications for the 2015 IGLP Workshop, which will be held in Doha, during the first week of January 2015. We particularly encourage those who have not previously participated in the IGLP Workshop to apply as Participants.

The application deadline for the 2015 IGLP Participant application is September 12, 2014Click HERE to apply. 

To learn more, visit: http://www.harvardiglp.org/iglp-the-workshop/

The UN Committee on the Elimination of Racial Discrimination Expresses Concern Over Public Education in Chicago

by Brian Citro, Acting Director, International Human Rights Clinic, University of Chicago Law School and Bill Watson, PILI Fellow, International Human Rights Clinic, University of Chicago Law School

On August 13th and 14th in Geneva, Switzerland, an international committee of experts reviewed the United States’ compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Four committee members separately questioned a delegation of U.S. officials about the racially disparate impact of last year’s Chicago public school closings—the largest wave of school closings in U.S. history. The closings were one of the most frequently cited specific instances of racial discrimination in the United States addressed during the review process.

CERD is one of only a few international human rights treaties the United States has ratified. Unlike U.S. constitutional law—which generally prohibits only intentional discrimination based on race—CERD prohibits any government action that has a disparate impact on a racial minority. Under CERD, the United States must therefore ensure equal enjoyment in practice of several political, economic, social, and cultural rights listed in the treaty, including “the right to education and training.” The treaty is binding on all levels of government—whether federal, state, or local—and requires the federal government to “review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination.”

In advance of last week’s review, the International Human Rights Clinic at the University of Chicago Law School, the Chicago Teachers Union, the Pozen Family Center for Human Rights at the University of Chicago, the Collaborative for Equity and Justice in Education, and Blocks Together (BT) jointly submitted a “shadow” report to the Committee. The report provided the Committee with sobering statistics on the racially disparate impact of the Chicago school closings. While African American students represent only 40 percent of Chicago students, 80 percent of the students impacted by the closings were African American. Moreover, roughly 90 percent of the closed schools had a majority African American student population, and 71 percent had a majority African American teaching staff.

Although the City claimed that all students displaced by the closings would receive a better education, its promise failed to materialize. Instead, 34 percent of students affected by the closings were moved to a lower performing school and more than 50 percent were forced to attend a school on probation for poor performance. Students remained surrounded by violence as they walked to school, and there were reports of altercations and tension in the receiving schools between new and old students. Moreover, in the build up to the school closings, the City largely failed to respect African American parents’ right to participate in public affairs, protected under CERD. Recommendations from parents and experts during public hearings prior to the closings were largely ignored: the City closed eleven of the thirteen schools that hearing officers recommended stay open.

Unfortunately, these problems exemplify issues of de facto segregation and racial disparities in achievement in public education across the United States; the Chicago school closings are merely a case study in government action exacerbating preexisting segregation and achievement disparities. The fact is that, as of 2010, 74 percent of African American students in the United States attended majority-minority schools. Many of these schools are underfunded and under-resourced, with a high proportion of uncertified or out-of-field teachers. High school graduation rates for racial minorities remain lower than for White students and only 56 percent of African American high school graduates enroll in postsecondary education, as compared to 72 percent of White graduates.

The ultimate result of the CERD Committee’s review will be a series of “concluding observations” that give an official interpretation of the United States’ compliance with the treaty. Concerns raised by the Committee about public education in the United States—and specifically Chicago—will very likely find their way into these observations. It will then be up to civil society to work to ensure the United States Government and the City of Chicago fulfill their obligations under CERD to ensure all students enjoy a quality education free from racial discrimination.

“Ferguson”: Caitlyn Clark’s poem to America, at John Legend concert

Stunned to listen to this poem by Caitlyn Clark, recited on stage at a John Legend’s Hollywood Bowl concert 2 days ago. It’s moving, heartfelt, raw, and real. She wants to make revolution not with the children who have been felled but with those who still live and can bring change to our troubled times. And, I am most proud to say, she is my cousin, daughter of my favorite first cousin, who, as she tells the world in this amazing video, did 6 months’ active duty at Bagram Prison, Afghanistan. ¡Brava, Caitlyn!

(Cross-posted by Diane Marie Amann)

“Rules of War” & 1882 US joinder of 1864 Geneva Convention, 150 years old today

In honor of the 150th anniversary today of the very first Geneva Convention on the laws of war, the International Committee of the Red Cross issued the brilliant video above: Rules of War in 4 very informative minutes. Through simple yet compelling drawings, it covers founding principles of international humanitarian law, such as humanity, distinction, necessity, and proportionality.

As an international story, it focuses on the men who were delegates to the 1863 Geneva Conference and their handiwork, the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field adopted on August 22, 1864.

It thus omits the vc007053U.S. after-story of this treaty; that is, the 1882 U.S. ratification that was the handiwork of a remarkable woman: Massachusetts-born Clara Barton (left), a pioneer nurse during America’s Civil War and, at age 60, a founder of the American Red Cross. (photo credit) For that after-story, see the 2012 IntLawGrrls post entitled Clara Barton, ICRC & crimes v. humanity, peace, by Washington University-St. Louis Law Professor Leila Nadya Sadat.

(Cross-posted from Diane Marie Amann)

Security Council Resolution 2170 against the world’s richest terrorist organization

On 15 August 2014, about a week prior to harsh criticism from the outgoing UN High Commissioner for Human Rights, Navi Pillay ( available here ) for its lack of responsiveness, the UN Security Council adopted Resolution 2170 in response to the terrorist activities of the Islamic State (IS/ISIS/ISIL) and the Al Nusrah Fron (ANF) as well as other entities associated with Al-Qaida.

This resolution imposes three main duties on all states:

1. Action against the export of terrorist fighters

2. Action against the financing of terrorism

3. Sanctions

The first action consists of four sub-duties. Firstly, the duty of all states to take national measures to prevent the flow of foreign terrorist fighters to IS, ANF and connected entities. According to existing estimates, most fighters are foreign- many from Europe, from neighbouring countries and from as far as Indonesia and Chechnya. Secondly, the resolution imposes a duty to bring such individuals to justice. Thirdly, a duty to discourage individuals who are at risk of recruitment and violent radicalization to travel to Syria and Iraq for the purposes of supporting or fighting for IS and ANF. And finally, a duty to prevent direct and indirect supply, sale or transfer to IS, ANF and other individuals and groups associated with Al-Qaida, of arms and related material, as well as assistance and training related to military activities.

The second action, imposes a duty upon all states to prevent and suppress the financing of terrorist acts, including the duty to prevent that economic resources are made available for the benefit of these groups. Since IS and ANF have control over a number of oilfields, this imposes a duty for states to refrain from engaging in energy trade with them.

The third action concerning sanctions, lists the names of six individuals on the sanctions list, and encourages that each state submits a list of individuals and entities supporting IS, ANF and similar gorups.

Combining both human and financial support, as well as direct and indirect support, the broadness of the resolution’s language makes it an effective legal tool for reducing the power of IS/ANF. But only if taken seriously, and if taken seriously by all states. Recognized as the riches terrorist organization in the world, the IS has been able to survive for as long as it has, through donations both from states and from individuals with and without connections to states. The resolution prohibits both. The exact answer to where the money comes from has been controversial and it is difficult to point to publicly accessible proofs. The Iraqi Premier Minister, Nouri al-Maliki said on 17 June 2014 that “we hold Saudi Arabia responsible” for the financial and moral support given to IS. Saudi Arabia’s close ally, the USA, rejected that accusation. However, some researchers have supported al-Maliki’s claim, and pointed not only to Saudi Arabia, but also to Qatar, Kuwait and the United Arab Emirates- states of which the six black listed individuals in the resolution are citizens. Another important source of funding has been oil trade, an action also prohibited under the resolution. According to a US intelligence expert, IS draws as much as $ 1 million per day in oil profit from oil well under its control, in a market where demand is high.

Despite the universal condemnation of the IS and ANF, the content of Resolution 2170 clearly indicates that a number of states and individuals have been directly or indirectly cooperating with them. Clearly, someone is buying their oil, providing them with arms and money, and actively sending or not preventing own nationals from joining them. The resolution can thus be read as placing responsibility on the world community for having allowed for the existence of and for having supported the IS/ANF. It is positive that the Security Council now has used international law to point to the responsibility and duty of all states , but it is regrettable that it has to come after a heavy human cost.

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