IntLawGrrls

To commemorate the 6th of April 1994, the IRMCT should prosecute the Rwandan Patriotic Front (RPF) for its crimes in 1994 and fight for the freedom of the ICTR acquitted and released persons in Niger – who remain victims of 1994[1]

/ Beth S. Lyons / Leave a comment

[1] See, In Memory of the Acquitted and victims of selective justice and impunity (modernghana.com) by Chief Charles A. Taku.

Today, 6 April, is 30 years since the Rwandan Patriotic Front (RPF) shot down the plane carrying two Hutu Presidents, Juvenal Habyarimana of Rwanda and Cyprien Ntaryamira of Burundi, killing them and the plane’s crew members.  These assassinations was the event which triggered the killings of Tutsis, Hutus and Twas throughout Rwanda in 1994, as the RPF – which had invaded from Uganda in 1990 – continued its military advances, culminating in its control of Kigali in July, 1994.

In November 1994, after the independent Commission of Experts investigated and reported on grave violations of international humanitarian law in Rwanda, the UN Security Council, in UN Security Resolution 955,  established the International Criminal Tribunal for Rwanda (ICTR).  Its objective was to prosecute persons responsible for serious violations of international humanitarian law committed by Rwandan citizens in Rwanda and in neighboring countries, on both sides of the conflict  from 1 January – 31 December 1994.   Rwanda was the only country which opposed the Resolution and China abstained (UNSC, 3453rd session).

The ICTR selectively investigated and prosecuted only Hutu defendants; no members of the RPF and no Tutsis were prosecuted.  It completed its work in 2015, and was replaced by the International Residual Mechanism for the Criminal Tribunals (IRMCT or MICT)  which continues to function today.

On 5 April 2024, the IRMCT  President, Prosecutor and Registrar (’IRMCT Principals’) issued a statement  to commemorate the “30 years since the start of the 1994 Genocide against the Tutsi in Rwanda.”   The statement recalls the Appeals Chamber decision in June 2006, which took judicial notice, under ICTR Rule 94,  of the Rwandan genocide.  The Appeals Chamber concluded, at paragraph 35, that “[t]he fact of the Rwandan genocide is a part of world history, a fact as certain as any other, a classic instance of a ‘fact of common knowledge.’”  This holding was strongly contested by the Defence teams in Arusha, but was the cornerstone of the Prosecution’s theory.   

The “fact” of the Tutsi-only genocide has continued to dominate Rwanda’s propaganda about what happened thirty years ago.  It has been reflected in Rwanda’s genocide laws, its prosecution and punishment of “genocide deniers,” its political imprisonment of its opponents, its campaigns against Hutus in the diaspora and its continued egregious human rights abuses. 

In the IRMCT Principals’ statement, dated 5 April 2024, it certainly appears as if they have adopted and given their imprimatur to the RPF’s false narrative of 1994 and its policies of criminalizing the Hutus, while shielding the RPF from prosecution.   The other truths about what happened in 1994 are collateral damage and they are conveniently buried.

One of these forgotten truths is the crimes of the RPF in 1994, including its systematic killings of Hutus, which were reported in the  Gersony Report.  The Report, prepared by a UNHCR team led by Robert Gersony, found systematic killings of Hutus by the RPF’s army, the Rwandan Patriotic Army (RPA).  Gersony briefed the UN Commission of Experts on Rwanda in October 1994.  The Commission of Experts’ Report concluded that individuals from both sides perpetrated serious breaches of international humanitarian law.  

When this evidence is coupled with the failure of the ICTR to prosecute any Tutsi or RPF member for crimes in 1994, one cannot help but ask:  Isn’t this UN judicial body taking sides in the conflict in Rwanda in 1994?  The IRMCT’s Statement strips away any pretense of judicial independence, and support for the principle of applying the rule of law to all. 

This criticism of the IRMCT’s lack of judicial independence is not new: the ICTR prosecutions were selective justice, from the beginning.  And, in June 2023, in her report to the Security Council, the IRMCT’s President referred to the “disturbing trend of genocide denial.”   Allegations of “genocide denial” have been Rwanda’s justification for  imprisonment, torture and killings of government opponents.  Former political prisoner and opposition Presidential candidate, Victoire Ingabire Umuhoza, who dared to talk publicly about the two genocides – of the Hutus and Tutsis – was sentenced to a fifteen year prison term.  The explicit wording of the statement confirms that the IRMCT is more concerned with consolidating a legacy of “victor’s justice” than a legacy of  judicial fairness.

On the date of 6 April, the IRMCT Principals must commit to finishing the ICTR’s mandate, under Resolution 955.   IRMCT should focus on the unfinished justice for the killings of Hutus, Tutsis and Twas by the RPF in 1994 and hold the RPF accountable for its crimes – for the 1st time – in an international tribunal.    The IRMCT’s powers are conferred in  Resolution 1966 (2010), which established the IRMCT and contains its Statute.  It is true that the IRMCT Statute, Article 1(5) does not confer any power to issue new indictments, thus limiting any action to those which have been already issued by the ICTR.  However, this section appears to contradict the IRMCT Statute, Article 1(1), referencing the ICTR Statute, which  confers competence based on jurisdiction and is not limited by indictments.  This legal issue needs to be addressed, but the point is – if there is a political will, the IRMCT Principals can seek clarification and/or amendment of its Statute from the Security Council.  Finding a way to prosecute the RPF (who were never indicted) would be a fitting commemoration of the events of 1994.

On the date of 6 April, the IRMCT Principals should commit to ending the  travesty of justice of the continued illegal detention of Hutu ICTR acquitted persons, and those who have completed their sentences.     These include the seven men in the “safe house” in Niger –François-Xavier Nzuwonemeye, Prosper Mugiraneza, Protais Zigiranyirazo, Anatole Nsengiyumva, Alphonse Nteziryayo, André Ntagerura, and Innocent Sagahutu.  These men are stateless, and are being “held hostage” by the inability of the IRMCT (whose predecessor, the ICTR, adjudicated their cases and is responsible for them) to resolve the gross violations of their human rights.  Two examples:  (1) Dr André Ntagerura, whose 2004 acquittal was affirmed by the Appeals Chamber in 2006, has been forced to live in a “safe house” for two decades because no country, in which he will be safe, will accept him; (2) Major F.X. Nzuwonemeye, who was acquitted on appeal in 2014, has now completed four more years in ICTR custody (at the United Nations Detention Facility [UNDF] and in “safe houses”) than the twenty year sentence rendered by the Trial Chamber — for crimes for which he was acquitted.

As the IRMCT continues to take no significant actions to resolve these grievous violations of human rights, the date of 6 April will continue to commemorate this travesty of justice – which obliterates any legacy that the IRMCT would like to claim.

Lead Counsel Chief Charles A. Taku and Co-Counsel Beth S. Lyons represented Major F. X. Nzuwonemeye at trial and won (with their Defence team) an acquittal for him on appeal in February 2014 in the “Military II” case.

Come hear prominent Iranian human rights advocate at ASIL Annual Meeting

/ Stephanie Farrior / Leave a comment

“Out of tragedy, she created hope”
         –Iranian human rights defender, speaking of Roya Boroumand

If you are attending the ASIL Annual Meeting this week:

Come hear Roya Boroumand — courageous, tenacious and inspiring Iranian human rights advocate — who is being honored this year with the Goler T. Butcher Medal. The Butcher Medal, one of the ASIL’s highest honors, is awarded to a distinguished person each year “for outstanding contributions to the development or effective realization of international human rights.”

Through the human rights center she and her sister established after their father – an Iranian lawyer and pro-democracy activist — was assassinated in Paris by agents of the Iranian regime, Roya Boroumand has worked tirelessly to defend human rights in Iran in her extensive advocacy at the United Nations and elsewhere. She and her sister named the organization — the Abdorrahman Boroumand Center for Human Rights in Iran — for their father:

“[W]e have to send a message to those who killed that physically eliminating people doesn’t eliminate their ideas. This name is going to come and haunt you.”

Roya Boroumand’s work in support of frontline Iranian human rights defenders has been especially important since the massive protests in Iran that were sparked by the killing of Mahsa Amini while in the custody of the Iranian “morality police” for allegedly wearing her hijab “improperly.”

This work includes meticulous documentation of the repression of protestors, campaigning for the rights of Iranian human rights lawyers working in what is an extremely difficult environment, and briefing government officials to raise international awareness of violations of international human rights law in Iran.  

Roya Boroumand will engage in conversation on “International Law, Theocracy and the Struggle for Human Rights in Iran” at the ASIL Annual Meeting on:
Thursday, April 4, 2 pm-3 pm

A Call Upon States to Realize Child-Specific Remedies in Conjunction with International Solidarity for Children

/ Cecilia Marcela Bailliet / Leave a comment

The preamble of the UN Convention on the Rights of the Child calls for children to be brought up in “the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.” These values form a foundation for a life in dignity and with aspirations for the future.  At present, many children around the world face trauma, exploitation, attack, and death through direct actions of both state and non-state actors as well as neglect or omission in spite of an obligation to protect.  There is a need for the international community to recognize child-specific remedies in solidarity with their aspiration for peace and enjoyment of human rights. What is at stake is the viability of the international community to uphold humanity at the universal level.

In the past two decades, the escalation of the typology of child-specific violations arising in both peace and war situations is astounding: forced transfer to impose a new nationality, maiming, forced early marriage, sexual exploitation and abuse, forced recruitment, denial of food, water, and/or medicine that inhibit growth and development, denial of education as a form of oppression/discrimination, separation from parents pursuant to immigration processes, arbitrary detention in conjunction with Counter Violent Extremism policies, and trafficking.  

Children’s vulnerability is multiplied by their inter-sectoral identities correlated with gender, race, ethnicity, religion, class, migrant status, and other identities. Although there is much attention on the risk of grave violations to children in the situation of armed conflict, there appears to be a lack of recognition of states’ obligation in relation to preventing and responding to child specific violations at all times. 

The media has provided heartbreaking imagery of the sacrifice of children’s rights throughout the 21st century: In 2018, the United States adopted a zero tolerance policy in which separated more than 2000 children from their parents at the border, some of whom were never reunited again. In 2020, during the pandemic, domestic abuse of girls in Latin America escalated significantly, followed by increased risk of trafficking and other sexual exploitation.[1] Since 8 February 2022, Russian Federation agents have taken at least 19,546 children to that country from Ukraine.[2] On October 7th, 2023, 32 children and babies were taken hostage by Hamas and UNICEF reported that since then over 1,000 children in Gaza have had one or both legs amputated while Save the Children stated that 10,000 children had been killed in airstrikes and ground operations.[3]

Moreover, the trend towards emergence of criminal actors to fill voids filled by defeated combatant groups in post-conflict countries, results in a transfer of risk of exploitation and abuse resulting in escalating chance of being subject to liability and incarceration for these connections.[4] The Global Risks Report 2024 highlighted the possibility of increased criminality and corruption within fragile states that will impact vulnerable groups, and this would include children.[5]

It is notable that UNICEF described the war in Gaza as a “War on Children” and that Gaza had become a “Graveyard for Thousands of Children”.[6] It is surprising that the ICJ Order of Provisional Measures on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) (26 January 2024) includes references to children only in the citation of the criteria of forced transfer of children as part of the definition within the convention[7] (but which was not included in the provisional orders issued), and the citation of the statements delineating the trauma and harm suffered by the children in Gaza made by the United Nations Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Mr. Martin Griffiths, on 5 January 2024[8] and the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), Mr. Philippe Lazzarini, on 13 January 2024.[9]

Judges Xue and Bhandari recognized children among the victims of the hostilities in their Declarations.[10] Judges Sebutinde and Judge Ad Hoc Barak also made reference to children as among the victims of hostilities but had additional focus, the former in relation to her opinion that South Africa could try to persuade Hamas to Immediately and unconditionally release the remaining hostages[11], and the latter referring to the historical case of the Nazi “Kinder Aktion” in 1944 and the fact that Israeli children were shocked and traumatized by the attack of October 7th.[12]  These reflections implicate the fact that children are often at the center of violence, hence it follows that they should be given priority in the design of peace.

The provisional orders issued by the ICJ were not child-specific-they were neutrally drafted in way in which children can be included: Israel must take all measures to prevent the commission of[13]:

killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.

Israel must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.[14]

A question arises as to what will be included in the reports filed by Israel in accordance with the provisional orders.  Will they provide information on any child-specific measures they may take in conjunction with their obligation to prevent genocide?

Realization of International Solidarity for Children requires recognition of state obligations in accordance with the UN Convention on the Rights of the Child Article 38 (4):“to ensure protection and care of children who are affected by an armed conflict”, but the challenge is also to provide (according to Article 39) “physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.”

In comparison, the Inter-American Court of Human Rights issues child-specific provisional orders in cases involving violations affecting children, this may include orders of provision of psychological or physical support to child victims, including requiring transfer to institutions for proper care, supervision of detention, guarantee of sanitation and medical care, provision of education (including scholarships), in particular follow up for placement of orphans.[15]  The Inter-American Court of Human Rights espouses the Convention on the Rights of the Child Article 6(2) obligation upon states to “ensure to the maximum extent possible the survival and development of the child”.[16] This includes physical, mental, spiritual, moral, psychological and social development.[17] The Court has held states responsible for two-fold violations of human rights of children, by failing to prevent children from living in misery, deprived of dignity, at risk of experiencing human rights violations, and deprived of the expectation to pursue a life’s project.

It may be suggested that reports on implementation of the Provisional Measures should also include information on physical and psychological recovery and reintegration of Palestinian and Israeli children who are deeply traumatized and injured. There is an urgent need to strengthen child-centered approaches within policies and programs supported by the international community.  Only when children are placed at the center can they participate in transition and consolidation of peace processes with actual enjoyment of human rights. Perhaps a child-centered approach can restore our humanity after decades of inhumane practice and policies by state and non-state actors around the world.

[1] https://reliefweb.int/report/world/surge-violence-against-girls-and-women-latin-america-and-caribbean

[2] https://press.un.org/en/2023/sc15395.doc.htm#:~:text=internationally%20recognized%20borders.-,KATERYNA%20RASHEVSKA%2C%20Legal%20expert%20at%20the%20Regional%20Center%20for%20Human,and%20children%20deprived%20of%20parental

[3] GAZA: More than 10 children a day lose a limb in three months of brutal conflict | Save the Children International  and Gaza: 10,000 children killed in nearly 100 days of war – occupied Palestinian territory | ReliefWeb

[4] The New Dynamics of Child Recruitment in Colombia (insightcrime.org)

[5] https://www.weforum.org/publications/global-risks-report-2024/in-full/?utm_source=google&utm_medium=ppc&utm_campaign=globalrisks&gad_source=1&gclid=CjwKCAiAzc2tBhA6EiwArv-i6fLVIf8DtlS7FcnZTQ3kB4ywd0Ld0ijz9wZ6pJ4LxR6pkMTCiSdGkhoCZhsQAvD_BwE

[6] Gaza has become a graveyard for thousands of children (unicef.org)

[7] Para. 43

[8]  Para. 47: “For children in particular, the past 12 weeks have been traumatic: No food. No water. No school. Nothing but the terrifying sounds of war, day in and day out.”

[9] Para 49: “This war affected more than 2 million people  the entire population of Gaza. Many will carry lifelong scars, both physical and psychological. The vast majority, including children, are deeply traumatized. Overcrowded and unsanitary UNRWA shelters have now become ‘home’ to more than 1.4 million people. They lack everything, from food to hygiene to privacy. People live in inhumane conditions, where diseases are spreading, including among children. They live through the unlivable, with the clock ticking fast towards famine. The plight of children in Gaza is especially heartbreaking. An entire generation of children is traumatized and will take years to heal. Thousands have been killed, maimed, and orphaned. Hundreds of thousands are deprived of education. Their future is in jeopardy, with far-reaching and long-lasting consequences.”

[10] Para 3 in both the Declaration of Judge Xue and the Declaration of Judge Bhandari.

[11] Dissenting Opinion Judge Sebutinde at para 34.

[12] Paras 5 and 25, Dissenting Opinion Judge Ad Hoc Barak

[13] Para. 78

[14] Para 80.

[15] The Rights of the Child in the Inter-American Human Rights System (oas.org) (2008) Provisional measures adopted by the Court to protect the human rights of children and adolescents

[16] Ibid

[17] United Nations Committee on the Rights of the Child, General Comment No. 5 of November 27, 2003, para. 12.

The Liminal in the Limelight – Climate Change and Sea Level Rise Lay Claim to the Mainstream Vocabulary of International Law

/ Rashmi Raman / Leave a comment

Climate justice and climate change in the face of rising sea levels and global warming have, for decades now, existed as urgent and profoundly important topics for study in international law. It is only with the sudden coming of age, through the experience of a global pandemic, and the mounting pressure from states and intergovernmental scientific bodies, of the institutions of international law in the last year, that climate change and its implications for international law are now well and truly under the limelight. An important part of this coming of age for climate change and adaptation laws is through the adoption, by the International Law Commission, of the topic “Sea-level Rise in Relation to International Law” for its program of work. A second part of the coming of age for climate change in international law is through the route of international courts and tribunals. States parties have brought three separate requests for Advisory Opinions before international courts and tribunals in this past year, creating an important judicial space for the obligations of states to respond to climate change related situations.

In this post, I argue that these two developments in 2023, have created the momentum required for the topic climate change and sea level rise to escape from the liminalities of the vocabulary of mainstream international law where they have existed as exceptions to the accepted idea of state responsibility, human vulnerability, legal stability, and to instead find expression within the newly reopened context of “core” international law, such as the creation of states in international law, theories of recognition, state responsibility, law of the sea, and the multiple and often overlapping treaty regimes that govern each of these areas.

At its 70th Session in 2018, the ILC recommended that the UNGA Resolution 73/265 of December 2018 on sea level rise be adopted as a topic for a study by the ILC. The ILC, which turns 75 in 2024 has tabled for its 2024 session, the syllabus and sub-topics on sea level rise in relation to its effects on statehood and sovereignty on the one hand and its effects on vulnerabilities and fragilities created on people by sea level rise. Interestingly and for the purposes of the argument I suggest here, on moving from the liminal to the limelight, it is astonishing to note how quickly the ILC adopted this topic of study – perhaps the quickest adoption in the Commission’s history. States voted quickly and in a landslide vote, to support the adoption of the topic, clearly showing that in their own national, regional and international experiences, its importance, and centrality to the construction of other related areas of international legal obligations, could no longer be denied.

On 12 December 2022, the International Tribunal on the Law of the Sea (ITLOS) received a request for an advisory opinion from the Commission of Small Island States on Climate Change and International Law (COSIS-CCIL), on the obligations of states parties to the United Nations Convention on the Law of the Sea with respect to climate change. COSIS-CCIL membership includes Niue, Palau, St. Lucia, Antigua and Barbuda, Tuvalu and Vanuatu.

Soon after, on 9 January 2023, Chile and Colombia jointly filed an application for an advisory opinion before the Inter-American Court of Human Rights, seeking clarity on the legal obligations on states parties to the American Convention on Human Rights to respond to the climate emergency in the individual and collective capacities.

Three months later, on 29 March 2023, a long debated resolution A/RES/77/276 to request an advisory opinion of the International Court of Justice ‘on the obligations of states in respect of climate change’ was adopted by the United Nations General Assembly.

In addition, the European Court of Human Rights has under hearing, three contentious cases on various aspects of the legal obligations of states parties to the (European) Convention on Human Rights and Fundamental Freedoms. The construction of these events, while unrelated, and stemming from independent motivations to approach the courts in question, certainly creates an undeniable structure for viewing the subject matter for consideration before international courts and tribunals in 2023. Elsewhere, I am working on a symposium on the importance of these advisory opinions for states in the Global South. Has the state practice already changed appreciably to now create new customary international law obligations that have rapidly developed in such areas as legal sovereignty (new state practice on recognition theories that may diverge from the requirement of physical territory to establish statehood, as the Falepili Union Treaty  between Australia and Tuvalu might suggest)? Is there room to stretch the grammar of state responsibility to include protection of persons in the event of slow-onset, imminent disaster created by sea level rise? What will be the state practice repercussions of reopening the conversation on legal stability in the ILC’s study? These are only some of the many possibilities that confront us as we await the outcome of the work of the ILC and the courts in 2024.

It has been argued that critical methodologies for constructing a narrative to showcase the gaps in international law do so by searching the silences of the extant positivist framework; they do so by rephrasing the story in terms of its situatedness and urge us to view the liminal as an inevitable aspect of the mainstream. So too for the liminalities and the disciplinary precarity that the ILC’s study group forces us to consider. In reopening the conversation on establishing baselines, uti possidetis, permanent sovereignty over natural resources, on the requirement of physical territory to construct legal statehood, the conversations are urging us to include the inevitabilities associated with sea level rise as part of the language of mainstream international law. This is a vindication of critical methodology.

Koskenniemi has advised moderation and dismisses the radical possibility that the fundamental grammar of international law is flexible enough to accommodate the constantly changing vocabulary. The magical expanding and simultaneous closing of state practice, for Koskenniemi, are simply the destiny of international law.

“For it is impossible to prove that a rule, principle or doctrine (in short, an argument) is both concrete and normative simultaneously. The two requirements cancel each other. An argument about concreteness is an argument about the closeness of a particular rule, principle or doctrine to state practice. But the closer to state practice an argument is, the less normative and the more political it seems….Different doctrinal and practical controversies turn on transformations of this dilemma. It lies behind such dichotomies as “positivism/naturalism”, “consent/justice”, “autonomy/community”, “process/rule”, etc., and explains why these and other oppositions keep recurring and do not seem soluble in a permanent way. They recur because it seems possible to defend one’s legal argument only by showing either its closeness to, or its distance from, state practice. They seem insoluble because both argumentative strategies are vulnerable to what appear like valid criticisms, compelled by the system itself.” (Martti Koskenniemi, The Politics of International Law, European Journal of International Law, Volume 1, Issue 1, 1990, Pages 4–32, https://doi.org/10.1093/oxfordjournals.ejil.a035781)

Is the world turning a blind eye to international crimes in Nagorno-Karabakh?

/ Parisa Zangeneh / Leave a comment

On October 3rd, the Armenian parliament ratified the Rome Statute of the International Criminal Court in the midst of what may be the commission of international crimes against the ethnic Armenian community in Nagorno-Karabakh, a region in territory contested between Armenia and Azerbaijan. Yet the world seems to be doing little to stop this from happening. In recent weeks, news stories have unfurled containing images and reports of Armenians fleeing in terror from their ancestral homes in the region. The international community’s inaction raises the possibility of Azeri officials getting away with what may be international crimes while the world watches.

Nagorno-Karabakh has been subject to a blockade of its main commercial artery, the Lachin Corridor, since December 12th, 2022. The Armenian community has fled a situation that could foreseeably have led to widespread death and destruction. Prior to the exodus, the community faced dwindling food supplies, lack of essential medicine, and fuel shortages. Over 100,00 Armenians have fled to Armenia. The Independent reports that the last bus has left Nagorno-Karabakh, leaving behind a ‘‘ghost town’’. UN official Stephane Dujarric stated on October 2nd that, ‘’The UN team heard from representatives of local communities that 50-1,000 ethnic Armenians remained in Karabakh.’’ Intergenerational families have experienced the loss of their ancestral homes, crushing uncertainty, and what appears to be forcible displacement.

The mass exodus of Armenians should be treated as a matter of international peace and security by world powers, especially the United States and the United Nations. Armenia’s ratification of the Rome Statute is a step towards countering a situation of potential impunity of Azerbaijani government officials.  However, if the world does not do something, Azerbaijan will get away from what may amount to international crimes. Azerbaijani officials must be held accountable for their conduct against the Armenian community of Nagorno-Karabakh, and the ICC will provide an avenue of accountability for what are clear indicators of actions that should attract world condemnation.

The rhetoric coming from American officials is less than what would be expected. Secretary of State Anthony Blinken, stated that he is ‘deeply concerned by Azerbaijan’s military actions’, but this language is not strong enough. Indeed, an Irish-American member of America’s political elite, Samantha Power, has avoided using the word genocide in describing the situation. Politico reports that Power, an expert in genocide studies and foreign policy, has stated that she has received ‘“very troubling reports of violence against civilians”’.

International law experts have also raised the call for the international community to act on what may be grave violations of international law. Warnings against potential international crimes have been going on for months, yet Azerbaijani actions have continued. On August 7th, former ICC prosecutor Luis Moreno-Ocampo argued in a report that genocide was being committed in Nagorno-Karabakh.  The first sentence of his report reads: ‘There is an ongoing Genocide against 120,000 Armenians living in Nagorno-Karabakh, also known as Artsakh.’ Moreno-Ocampo could not be clearer. Genocide scholar Melanie O’Brien agrees that genocide has been committed, while international lawyer Priya Pillai argues that crimes against humanity may have been committed ‘’due to the coercive environment created by the months-long blockade and the recent armed attack’’ if connected to a widespread attack. As Svante Lundgren and Nicholas Kristof note, well-reputed organizations such as the International Association of Genocide Scholars have also been warning against potential genocide being committed in Nagorno-Karabakh for months. In February, the International Court of Justice ordered Azerbaijan to remove blocks from the Lachin Canal amid allegations of ethnic cleansing. David Scheffer has questioned whether a Truth and Reconciliation Commission should be established – but will this fill the void for those who crave international justice?

The actions of the Azerbaijani government warrant scrutiny by an international judicial institution, which would strengthen the world’s response to the catastrophic events in Nagorno-Karabakh. Those responsible must not be permitted to exercise impunity for their conduct. Now is the time for decisive action.

International Solidarity for Children

/ Cecilia Marcela Bailliet / Leave a comment

One of the markers of the deep polarization between people interviewed in the media addressing the impact of both the hostage taking and the killing of children in Israel and Gaza is the repeated implied reference to the principle of Tu Quoque– that breaches of international humanitarian law, being committed by the enemy, justify similar breaches by a belligerent. This is principle is considered to be universally rejected in international humanitarian law, given that its obligations are considered to be unconditional and not based on reciprocity. It is imperative that the concept of international solidarity replace the narrative of revenge and division that is manifested in cycles of violence that is devasting children in Israel and Palestine.  

International solidarity is an expression of unity by which peoples and individuals enjoy the benefits of a peaceful, just and equitable international order, secure their human rights and ensure sustainable development.[1] It supports recognition of overlapping cross-border local to global solidarity network initiatives demonstrating a common empathy and shared aim between different peoples. This in contrast to unitary solidarity which is exclusionary as it centers on a common nativist, national segregated community orientation.  International Solidarity is intended to promote respect for, protection, and fulfilment of human rights and fundamental freedoms for all individuals, without distinction as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, disability or other status. All individuals, including children, have the right to participate meaningfully in, contribute to and enjoy a social and international order in which all human rights and fundamental freedoms can be realized. The aim is to promote solidarity between Israeli and Palestinian children and to encourage their right to engage in solidarity initiatives to build peace and enjoy human rights.

States, International Organizations, and Non-State Actors have a duty to respect the right of international solidarity and not breach obligations under international law. The UN Convention on the Rights of the Child, Article 38 (4) sets forth the obligation to take precaution in relation to children in conflict: “In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.” State and Non-state actors, including Hamas, are obligated to respect human rights and humanitarian law. This includes ensuring that children are not subject to attack (or taken hostage), that they are not forcibly displaced or separated from their parents, that they be given humanitarian assistance (including food, water, and medicine), that they are not subjected to arbitrary house raids or arrest and detention, that they not be used as human shields, and that they enjoy a clean and healthy environment. The current conflict has not only resulted in the severe psychological trauma and anxiety, but also deaths and injuries of children in Gaza and Israel.[2]

The urgency of pursuing full negotiations to secure the release of the hostages, with special priority for the children, women, elderly, and disabled persons is underscored.

Martin Luther King observed “The ultimate weakness of violence is that it is a descending spiral begetting the very thing it seeks to destroy, instead of diminishing evil, it multiplies it. Through violence you may murder the liar, but you cannot murder the lie, nor establish the truth. Through violence you may murder the hater, but you do not murder hate. In fact, violence merely increases hate. Returning violence for violence multiplies violence, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.”[3]

Moreover, the spread of anti-Semitic and Islamophobic hate speech has incited violence in other countries, including the murder of a Palestinian 6 year old child and a Jewish woman in the United States.[4] As the Spokesperson for the OHCHR Ravina Shamdasani stated[5]:

“We call on political and other leaders to speak out, unequivocally, against such speech, and to take clear measures to stem any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. This is a time for the international community to come together in solidarity, advocating for the protection of all civilians, no matter where, no matter what.”

 King Abdullah suggested a vision of international solidarity that would be child centered at the Cairo Summit for Peace: “Our collective and unified message to the Israeli people should be: We want a future of peace and security for you and for the Palestinians, where your children and Palestinian children should no longer live in fear. .  .The only path to a safe and secure future for the people of the Middle East and the entire world—for the Jewish people, for Christians, for Muslims alike—starts with the belief that every human life is of equal value . . .”[6]

It is important that international and national actors within governments, international and regional organizations, civil society, and faith-based groups cooperate to pursue a cease- fire to be followed up by a peace and solidarity transitional justice mechanism that would be inclusive of participation by children. Positive News provides an overview of ten civil society groups that work for Israeli-Palestinian peace.[7] A future peace and solidarity mechanism should collect and share children’s stories of common losses as well as interdependent future aspirations to establish mutual recognition, empathy, and trust among the children of Israel and Palestine.  It should deconstruct the polarizing narratives in order to create a common commitment to promote a culture of sustainable peace and international solidarity.  This may help to promote support for expansion of peace and solidarity educational programs for Israeli and Palestinian children in the future.

[1] The revised Draft Declaration on Human Rights and International Solidarity, available at: G2306905.pdf (un.org)

[2] Children in Gaza ‘developing severe trauma’ after 16 days of bombing | Israel-Hamas war | The Guardian

[3] Where Do We Go from Here: Chaos or Community?. p. 67

[4] 6-Year-Old Boy Dead in Anti-Muslim Attack Near Chicago, Police Say – The New York Times (nytimes.com) 

US synagogue head killed as police warn against speculation over motive | Crime News | Al Jazeera

[5] Israel and the Occupied Palestinian Territories | OHCHR

[6] Remarks by His Majesty King Abdullah II at the Cairo Summit for Peace At the Cairo Summit for Peace | King Abdullah II Official Website

[7] Bridging the divide: 12 groups working for Israel-Palestine peace – Positive News – Positive News

Nobel Peace Prize for 2023- Press Release

/ Cecilia Marcela Bailliet / Leave a comment

The Norwegian Nobel Committee has decided to award the Nobel Peace Prize for 2023 to Narges Mohammadi for her fight against the oppression of women in Iran and her fight to promote human rights and freedom for all.

“Zan – Zendegi – Azadi”
“Woman – Life – Freedom”

The Norwegian Nobel Committee has decided to award the Nobel Peace Prize for 2023 to Narges Mohammadi for her fight against the oppression of women in Iran and her fight to promote human rights and freedom for all. Her brave struggle has come with tremendous personal costs. Altogether, the regime has arrested her 13 times, convicted her five times, and sentenced her to a total of 31 years in prison and 154 lashes. Ms Mohammadi is still in prison as I speak.

In September 2022 a young Kurdish woman, Mahsa Jina Amini, was killed while in the custody of the Iranian morality police. Her killing triggered the largest political demonstrations against Iran’s theocratic regime since it came to power in 1979. Under the slogan “Woman – Life – Freedom”, hundreds of thousands of Iranians took part in peaceful protests against the authorities’ brutality and oppression of women. The regime cracked down hard on the protests: more than 500 demonstrators were killed. Thousands were injured, including many who were blinded by rubber bullets fired by the police. At least 20 000 people were arrested and held in regime custody.
The motto adopted by the demonstrators – “Woman – Life – Freedom” – suitably expresses the dedication and work of Narges Mohammadi. 

Woman. She fights for women against systematic discrimination and oppression.

Life. She supports women’s struggle for the right to live full and dignified lives. This struggle across Iran has been met with persecution, imprisonment, torture and even death.

Freedom. She fights for freedom of expression and the right of independence, and against rules requiring women to remain out of sight and to cover their bodies. The freedom demands expressed by demonstrators apply not only to women, but to the entire population.

In the 1990s, as a young physics student, Narges Mohammadi was already distinguishing herself as an advocate for equality and women’s rights. After concluding her studies, she worked as an engineer as well as a columnist in 
various reform-minded newspapers. In 2003 she became involved with the Defenders of Human Rights Center in Tehran, an organisation founded by Nobel Peace Prize laureate Shirin Ebadi. In 2011 Ms Mohammadi was arrested for the first time and sentenced to many years of imprisonment for her efforts to assist incarcerated activists and their families.

Two years later, after her release on bail, Ms Mohammadi immersed herself in a campaign against use of the death penalty. Iran has long been among the countries that execute the highest proportion of their inhabitants annually. Just since January 2022, more than 860 prisoners have been punished by death in Iran.

Her activism against the death penalty led to the re-arrest of Ms Mohammadi in 2015, and to a sentence of additional years behind walls. Upon her return to prison, she began opposing the regime’s systematic use of torture and sexualised violence against political prisoners, especially women, that is practised in Iranian prisons.

Last year’s wave of protests became known to the political prisoners held inside the notorious Evin prison in Tehran. Once again, Ms Mohammadi assumed leadership. From prison she expressed support for the demonstrators and organised solidarity actions among her fellow inmates. The prison authorities responded by imposing even stricter conditions. Ms Mohammadi was prohibited from receiving calls and visitors. She nevertheless managed to smuggle out an article which the New York Times published on the one-year anniversary of Mahsa Jina Amini’s killing. The message was: “The more of us they lock up, the stronger we become.” From captivity, Ms Mohammadi has helped to ensure that the protests have not ebbed out.

Narges Mohammadi is a woman, a human rights advocate, and a freedom fighter. In awarding her this year’s Nobel Peace Prize, the Norwegian Nobel Committee wishes to honour her courageous fight for human rights, freedom, and democracy in Iran. This year’s Peace Prize also recognises the hundreds of thousands of people who, in the preceding year, have demonstrated against the theocratic regime’s policies of discrimination and oppression targeting women. Only by embracing equal rights for all can the world achieve the fraternity between nations that Alfred Nobel sought to promote. The award to Narges Mohammadi follows a long tradition in which the Norwegian Nobel Committee has awarded the Peace Prize to those working to advance social justice, human rights, and democracy. These are important preconditions for lasting peace.    

Oslo, 6 October 2023
 

Go On! Transitional Justice in the US Speaker Series

/ IntLawGrrls / Leave a comment

The first panel of Part IV of the Transitional Justice in the USA Speakers Series is scheduled to take place remotely on Thursday, October 19 (12-1:30 EST) entitled: Do Memory Battles About Contemporary and Historical Racial Injustice in U.S. Undermine the Right to Truth?The Center for International Law and Policy co-organized this panel with the Promise Institute for Human Rights at UCLA | School Of Law and Memria.Org.

This panel explores how local and state efforts to ban books, to forbid education about racism including through critical race theory as well as to limit the discoverability of online information undermine the right to truth and a full accounting of racial violence both as a historical fact and of contemporary realities.  Panelists will explore how this strategic attack signifies a key battle in either promoting or marginalizing a robust memory in the telling of the “American story.”  The panel will ask how the outcome of this struggle for memory may shape a national narrative that justifies, or not, reparations and other forms of justice.  A comparative look will share how such struggles for memory constitute a critical step in advancing the quest for a true reckoning of past wrongs.  

We have a wonderful group of speakers, including: Louis Bickford – Co-Founder, Biografika, and CEO/Founder, Memria.org (who will moderate), Taifha Natalee Alexander – Project Director, Critical Race Theory Forward Project, UCLA School of Law, Karlos K. Hill – Regents’ Associate Professor in the Clara Luper Department of African and African American Studies at the University of Oklahoma, Nadine Farid Johnson – Managing Director of PEN America Washington and Free Expression Programs, Clara Ramírez-Barat – Director of the Warren Educational Policies Program, Auschwitz Institute for the Prevention of Genocide.

There is a registration link to the panel on the Speakers Series website:  http://bit.ly/TJintheUSA   

Toward a Feminist Jus Cogens

/ Mary Hansel / Leave a comment

In the wake of recent reporting on jus cogens by the U.N. International Law Commission (ILC), I thought I would share two feminist critiques of the doctrine.

First, “Magic” or Smoke and Mirrors? The Gendered Illusion of Jus Cogens seeks to demystify and debunk the ILC’s positivist methodology for identifying jus cogens norms and reveals the entrenched gender bias of this approach — instantiated by the baseless exclusion of the prohibition on gender discrimination from jus cogens status.

Abstract: International law scholars have referred to the “magic” of jus cogens norms: their exalted status in terms of legal effects, symbolic impact and ability to shape the international legal order. The doctrine’s “magic,” however, is belied by the smoke and mirrors of the prevailing approach to norm identification. This paper explores how the positivist identification process creates an illusion of methodological soundness that serves to marginalize gender.

The paper begins by demonstrating that the positivist approach to jus cogens identification, epitomized by the recent work of the ILC, is irredeemably lacking in the rigor and objectivity to which positivism lays claim. The ILC’s methodology fails to set forth clear benchmarks for attaining jus cogens status; cherry-picks evidentiary items relevant to each norm, in lieu of comprehensive assessments; provides minimal guidance regarding how evidentiary items are to be weighted; and draws from an unreliable pool of evidence. Next, the paper reveals that, as a result of these methodological deficiencies, judicial and non-judicial decision-makers have unfettered discretion in selecting which norms do and do not qualify as jus cogens. They may elect to make decisions based on instinct (“I know it when I see it”), assorted normativist theories (including natural law) or self-interest (as State actors are wont to do). The true bases of their decision-making are unknown, and a sense of jus cogens agnosticism is appropriate. The paper then explains how the discretionary selection process is cloaked and obscured by the positivist promise of an objective, rigorous evaluation — such is the illusion of jus cogens. This illusion facilitates the marginalization of gender, consistent with structural and pervasive biases within international law. The paper concludes with a reflection on potential alternatives to positivism that could yield a more inclusive jus cogens.

The novelty of this paper is three-fold. First, although not the first to lament the methodological failings of jus cogens positivism, it seems to be the first to identify and detail these failings. Second, the paper exposes the discretionary basis of jus cogens decision-making, which is obfuscated by the promise of a rigorous evidentiary calculus. This understanding disrupts the positivism-normativism binary that characterizes much of jus cogens scholarship. Third, the paper shows how the positivist illusion results in the exclusion of feminist priorities. Despite the voluminous scholarship on jus cogens, there appears to be a stunning paucity of feminist literature addressing the doctrine; the paper seeks to fill this lacuna.

Published in: Peremptory Norms of General International Law (Jus Cogens): Disquisitions and Disputations (Dire Tladi ed., Brill 2021)

Second, From Crisis to Quotidian: Countering the Temporal Myopia of Jus Cogens surfaces the doctrine’s temporal bias, which favors (seemingly) discrete crises at the expense of systemic inequalities and other “everyday” issues that most impact women, girls and those with marginalized genders.

Abstract: International law’s tendency to prioritize crises is well-trodden ground in the legal literature. What seems to be missing from the crisis discourse, however, is a nuanced understanding of what these crises are that dominate international law’s attention and resources — the criteria by which crises are defined and identified. This paper seeks to address this gap in the literature and asserts that crises are determined by their temporal character. Situations are considered crises when there is a perceived (or even manufactured) dearth of time; accordingly, international law operates pursuant to “emergency time.” This temporal scheme underpins the selection of jus cogens norms, as demonstrated by the ILC’s recent reports identifying norms that have and have not attained jus cogens status. Indeed, most of the norms confirmed as jus cogens directly relate to crisis, while the norms excluded from this status do not. To redress this temporal bias, this paper proposes alternative temporal approaches derived from feminist literature. The application of these temporalities would result in a set of jus cogens norms untethered from crisis and linked instead to systemic, quotidian issues that most impact women, girls and people with marginalized genders; these issues include discrimination, poverty, domestic violence, environmental protection, access to education and healthcare.

Published in: The Times and Temporality of International Human Rights (Ben Warwick and Kathryn McNeilly eds., Hart Publishing 2022)

Please do not hesitate to reach out with questions, comments or thoughts on future work in this area.

Twitter/X: @maryhhansel

LinkedIn: https://www.linkedin.com/in/maryhhansel/

If Black Were White: The Impact of Racial and Cultural Biases on the Ongwen Trial Judgment

/ Beth S. Lyons / Leave a comment

Abstract from unpublished paper (© 2023 Beth S. Lyons.  All rights reserved)

Dominic Ongwen was abducted in 1987 by the Lord’s Resistance Army (‘LRA’) in Northern Uganda when he was 8 or 9 years old and trafficked as a child soldier; he made multiple unsuccessful attempts to escape, and finally succeeded in 2015.  He turned himself in to the International Criminal Court in 2016.  Mr. Ongwen’s defence was that he was not responsible for the crimes of the LRA, based on his mental illnesses and duress, stemming from his abduction and subsequent coercion and indoctrination under Joseph Kony within the LRA.  In February 2021, Trial Chamber IX convicted Dominic Ongwen of 61 charges and two modes of liability.  He was sentenced to 25 years incarceration.  The Trial Judgment was affirmed by the Appeals Chamber in December 2022.

My contention is that if the LRA were a predominantly white cult, or if it functioned in a predominantly white/European country, or if the Defence expert psychiatrists from Uganda were white or if the client, Mr. Dominic Ongwen, were white, the Trial Chamber would have reached a different conclusion about the affirmative defences of mental disease and duress and acquitted him.

This article critiques the judicial racial and cultural biases in the Ongwen Judgment, as related to the affirmative defence of mental disease or defect.  These biases blinded the judges, and prevented them from assessing the evidence in an impartial manner and correctly applying the law.  They were a significant factor in the Trial Chamber’s rejection of Mr. Ongwen’s affirmative defences, mental disease or defect and duress.

For the ICC to be a respected and legitimate organ of international justice, it must apply the rule of law to all, and ensure fairness in its proceedings.  This means, in part, confronting its racial and cultural biases within its structure, as well as within the decisions and judgments which it renders.

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Note to reader:  I am one of the defence counsel in the Ongwen case at the ICC.  The above abstract is from an unpublished paper which I have submitted to a number of law journals.  The paper is quite long (about 26,000 words with footnotes), and exceeds the length requirement of most law journals.   If you have any suggestions for publication, I’d be grateful.  Thanks.  Please contact me at bethlyons@aol.com.