Syria and Domestic Prosecutions: Upholding hope, one case at a time (Part 2 of 2)

National Prosecutions based on Universal Jurisdiction: the cases of Germany, Sweden, and “France”

Last June, Germany’s chief prosecutor issued an international arrest warrant for Jamil Hassan, head of Syria’s powerful Air Force Intelligence Directorate, and one of Syria’s most senior military officials. This move comes as a 2017 Human Rights Watch report mentioned [p.36] that, so far, very few members of the Assad government had been the subject of judicial proceedings in Europe based on universal jurisdiction.

At the time these charges (based on command responsibility) were filed with Germany’s Federal Court of Justice, Patrick Kroker (European Center for Constitutional and Human Rights, hereinafter “ECCHR”) commented that this moment was“historical”, adding: “That this arrest warrant has been signed off by the highest criminal court in Germany shows that they deem the evidence presented to the prosecutor is strong enough to merit urgent suspicion of his involvement.”

N.N., a Syrian activist present at the side-event held today mentioned in Part 1 of my post, underlined several times the importance of these arrest warrants. Until their issuance, he said, many Syrians never would have thought that high-level representatives of the Syrian regime would have charges laid against them. For many this is a great sign of hope, a demonstration that we are “not only listening to stories but also doing something about it.” He mentioned this point in part as an answer to a participant at the event who wondered what it could mean to the people still in Syria to see prosecutions happening in Europe, but not in Syria or before the ICC.

Mr. Patrick Kroker, Legal Advisor& Project Lead for Syria at the ECCHR (Berlin) explained the work done by his organization to initiate prosecutions in Germany linked to the Syrian conflict. With regard to Germany, the progress over the past few years has been spectacular: 11 cases have been brought to trial. As well, three were brought to trial in Sweden, one in Switzerland, and another in Austria (for an excellent overview of proceedings linked to Syria, see the Amnesty International page “Justice for Syria” here).

Continue reading

Syria and Domestic Prosecutions: Upholding hope, one case at a time (Part 1 of 2)

Credit: Lynsey Addario

As of July 2018, more than 500 000 people had been killed as a result of the conflict in Syria, according to the British-based Syrian Observatory for Human Rights. With the UN Special Envoy for Syria having recently resigned, signs of hope seem dire for many Syrians and their supporters, there and abroad.

A side-event held today, on Day 3 of the 17th Assembly of State Parties (ASP) to the International Criminal Court, brought distinguished panelists together to discuss the role of prosecutions held in Europe through universal jurisdiction for international crimes, using Syria as an example. More than only about accountability, the resounding message about these prosecutions was that their role was to give out and to inspire the people to be strong, fight for justice and, maybe, eventually, be able to move on.

Earlier this week, during a keynote address at a reception held before the launch of the ASP, Ms.Catherine Marchi-Uhel aptly said that the ICC is the center piece of the international justice system. However, she also reminded the audience that the role of the international jurisdiction as a springboard for national prosecutions is often overlooked.

Yet, despite the hopes, symbolism and assistance to the rebuilding of judicial institutions that national prosecutions can bring (as I mentioned in my previous blog post on Quid Justitiae in the context of the present ASP), the political context may simply not allow it and, in the case of Syria, there is obviously no need to elaborate on why prosecutions at the national level are not possible.

In the case of Syria, one of the worst situations since World War II, as Ms Marchi-Uhel underlined, the pathway to the ICC is blocked, as a UN Security Council (UNSC) resolution to refer the case to the ICC was vetoed in 2014. With the ICC option gridlocked, Marchi-Uhel said that the international community needed to be creative to find new strategies to supplement the Rome Statue system: there was a need to think outside the international justice box. This is why, in 2016, the UNGA decided to create the International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in the Syrian Arab Republic since March 2011 (IIIM) to collect and analyse evidence of international crimes committed in Syria (see the IIIM official website here). Not a court or tribunal, it is “a building block for comprehensive justice” and can “turn limitations into opportunities”. This was definitely a smart move, as the call for Syria to be referred to the International Criminal Court by the United Nations Secretary-General Antonio Guterres did not seem to have resonated any more than previous attempts made through the UNSC.

Continue reading

The Crime of Aggression: Still a live issue

Liechtenstein hosted a panel this morning at the Assembly of States Parties (ASP) titled “The ICC’s Jurisdiction Over the Crime of Aggression”. This panel sought to discuss the significance and broader context of the crime of aggression. Panelists included IntLawGrrl Jennifer Trahan, Professor at the Center for Global Affairs at New York University, David Donat Cattin, Secretary-General of Parliamentarians for Global Action, and Donald Ferencz, the Convenor of the Global Institute on the Prevention of Aggression. This panel complemented many of the comments that States made at the General Debate session held yesterday that continued after this panel on the activation of the crime of aggression.

Many States Parties made supportive statements on the activation of the crime of aggression during the General Debate on Day 1 that continued after Liechtenstein’s panel today on Day 2. Austria spoke on behalf of the European Union (EU) in support of the activation of the crime of aggression, and all EU member states commented that they supported Austria’s statement. Most notably, however, France was quite critical of the Kampala Amendments as promoting division amongst States Parties when the focus should be universality. China as well was critical of the Amendments, stating that the International Criminal Court (ICC) should not undermine the Security Council, as it is this body that is responsible for upholding international peace and security. Given that China is a permanent member of the Security Council and is not a party to the ICC, this comment is not surprising. Many states commented that they are in the process of ratifying the Amendments, which was a welcome announcement, including Paraguay and Greece.

During the panel, Jennifer Trahan began the discussion with an analysis of the text of Article 8bis of the Rome Statute which enumerates the crime of aggression. As discussed in my previous post, Trahan stated that the language in Article 8bis derives from the London Statute of the Nuremberg Tribunal and that the crime of aggression is not meant to encompass all violations of Article 2(4) of the UN Charter, but manifest violations. Manifest violations, she clarified, are those that are super clear and not in a grey zone. She also discussed the novel jurisdictional regime that exists within the crime of aggression with regard to state and proprio motu referrals compared to the other three international crimes:  non-States Parties to the Rome Statute are completely excluded from the Court’s jurisdiction over the crime of aggression; not all States Parties are automatically covered by 15bis jurisdiction; and there is an opt-out method for States to opt out of the Court’s jurisdiction over the crime.

ASP

Photo credit: coalitionfortheicc.org

David Donat Cattin held a very positive view on the activation of the crime of aggression and discussed some of the progress being made for further ratifications. He referenced the Austrian delegate’s support for the activation of the crime of aggression on behalf of the EU and hoped that this statement would have an impact on other EU member states to encourage their ratification. He also mentioned that the Dominican Republic will be voting on whether to ratify the amendment in the next year. He added that the Central African Republic is likely to join because they are subjected to foreign interference on all sides. He also mentioned that South Africa highlighted the historic significance of the Kampala Amendments at the General Debate, so this may indicate its ratification in the next year.

Donald Ferencz completed the panel with some very engaging comments that started with this statement: “the rule of law is for the little people”. He commented that a state like Liechtenstein, who has ratified the Amendments, is likely not about to commit the crime of aggression, but two permanent members of the Security Council who are also States Parties to the Rome Statute (referencing the UK and France) have not ratified the Amendments. This sends the message that this law/crime is not for bigger states like the UK and France, but is for the smaller states, who are unlikely to be the ones committing the crime in the first place. This was quite an interesting comment in light of France’s statement regarding the Kampala Amendments promoting division at the General Debate yesterday.

One quite interesting debate that evolved out of the panel concerned how to hold state officials liable for the crime of aggression when the state is not a party to the Rome Statute, with specific reference to the Russian invasion of Ukraine. This question was first brought up by Sabine Nolke, Canadian Ambassador to the Netherlands. A few intervenors were of the view that, in the case of Russia, war crimes committed in Ukraine (because Ukraine is a party to the Rome Statute) can be prosecuted and the Court could consider the fact that Russia committed an act of aggression as an aggravating factor in the prosecution of war crimes and in sentencing. Nolke and members of the panel, however, cautioned against this view because it suggests that war crimes committed in non-aggressive wars are less grave or less prosecutable. She and the panelists stressed that war crimes are war crimes no matter the context, and they should not be treated differently based on whether or not there is an aggressive war.

States’ comments during the General Debate and the discussion during this panel indicate that, although there seems to be a large degree of support for the activation of the crime, ratification is still a live issue and questions of jurisdiction are far from settled.

This blogpost and the author’s attendance to the 17thAssembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Partnership logo

SSHRC-CRSH_FIP

The Crime of Aggression: 1 Year Later

ICC

Photo credit: BBC: https://www.bbc.com/news/world-africa-29548753

This year’s Assembly of States Parties (ASP) marks the first time the Court and States Parties will discuss the crime of aggression since its activation last year, and it will be interesting to hear what States Parties have to say about it. One issue that may be addressed includes the relationship between the Court and the Security Council given that the Security Council must first determine that an act of aggression has occurred before the Court can prosecute the crime of aggression (there is, however, an exception to this if 6 months have passed since the Security Council was made aware that an alleged act of aggression has occurred and has not made a determination). The implementation of the Kampala Amendments is another potential issue because there has been debate surrounding whether the amendments should be universally implemented for all States Parties to the Rome Statute or only for those that ratify the amendment. A third potential issue of discussion is how the Court will fund the addition of this crime to its jurisdiction given the already constrained budget.

The crime of aggression is the fourth crime enumerated under the Rome Statute of the International Criminal Court. Twenty years ago, States could not agree upon the definition of the crime of aggression when the text of the Rome Statute was negotiated, thereby excluding crimes of aggression from the Court’s jurisdiction.

The definition was finally agreed upon in 2010 through the Kampala Amendments, but negotiating States decided that the Court would still not have jurisdiction over the crime of aggression until one year after 30 member states had ratified the Amendments and it was promulgated by the Assembly of States Parties (ASP).

As Palestine was the 30th State to ratify the Amendments in June 2016, the ASP agreed to activate the Court’s jurisdiction over the crime of aggression during their meetings in December of 2017. The Court’s jurisdiction officially became active on July 17, 2018.

The key issue and reason for the delay in agreeing to the text of the crime was the lack of agreement on whether the Court could exercise jurisdiction for the crime of aggression over the nationals of States Parties to the Rome Statute who had not ratified the Amendments. The wide view on this issue is that the Court has jurisdiction when the crime occurs on the territory of a State which has ratified the Amendment. Still, there are those, including Canada, that believe that the Court would not have jurisdiction over state referrals or proprio motu investigations when the alleged crime is committed by nationals of non-ratifying States or on their territory.

The crime of aggression essentially allows for individual criminal responsibility for violations of Article 2(4) of the Charter of the United Nations. Article 2(4) prohibits “the threat or use of force against the territorial integrity or political independence of any state”. However, not all violations of the prohibition on the use of force will constitute a crime of aggression: only the most serious and dangerous forms.

The Rome Statute is the first modern criminal tribunal to include the crime of aggression, but the International Military Tribunals (IMT) in Nuremberg and Tokyo included prosecutions and convictions for crimes against peace, which criminalized those involved in waging wars of aggression or wars in violation of international treaties. The language of the crime of aggression was borne out of and based on the Charter of the IMT.

The crime of aggression has not been prosecuted yet and there is no precedent for the Court to follow. It will be interesting to see how the Court interprets the crime once the first charges are made, and if it takes any guidance from the IMTs or develops its own interpretation.

Stay tuned for updates!

This blogpost and my attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Partnership logo

SSHRC-CRSH_FIP

CCIL 2018: “The Role of International Criminal Law and the ICC in Responding to the Alleged Crimes Perpetrated Against the Rohingya”

On November 1 and 2, 2018, the Canadian Council on International Law (CCIL) held its annual conference in Ottawa, Canada. This conference is touted as one of the premier international law conferences in the world, bringing together scholars and practitioners from across Canada, the United States and Europe. This year’s topic was “International Law at the Boundaries,” which recognized the role of non-state actors and ideas that seek to push international law to its limits.

One particular panel discussed three important, and even novel, issues within international criminal law: (1) jurisdiction over crimes committed by a non-state party; (2) sexual and gender-based violence; and (3) the role of social media in contributing to these crimes. “The Role of International Criminal Law and the International Criminal Court (ICC) in Responding to the Alleged Crimes Perpetrated against the Rohingya,” examined the ongoing situation in Myanmar and the ICC’s role in holding perpetrators of international crimes accountable. Fannie Lafontaine of Laval University’s Faculty of Law and the Canadian Partnership for International Justice chaired the panel of three speakers: Payam Akhavan of McGill University’s Faculty of Law, Valerie Oosterveld of Western University’s Faculty of Law, and Kyle Matthews of the Montreal Institute for Genocide and Human Rights Studies.

Akhavan discussed the ICC’s jurisdiction over the crimes committed against the Rohingya. This has been an area that has required some thought because Myanmar is not a party to the Rome Statute of the ICC, and therefore the Court does not have jurisdiction over crimes committed on its territory unless a referral by the United Nations Security Council is made (which has not happened yet and has been suggested to be unlikely). Akhavan highlighted how the ICC’s jurisdiction is currently being established through the crime of forced deportation as an underlying act of the crime against humanity. Forced deportation involves the crossing of international borders, and because the act of deporting the Rohingya ended on the territory of a state that is a party to the Rome Statute—Bangladesh—the Court has jurisdiction to try those responsible for forcing the Rohingya into Bangladesh.

Oosterveld ended the panel with a discussion of sexual and gender-based violence in the context of the Rohingya. She discussed the many ways that Rohingya women and girls are targeted and then humiliated through public gang-rapes to promote terror, and even ‘branded’ by their perpetrators biting them. Men and boys suffered similar treatment in detention from their captors trying to gain information.

Continue reading

Violent Extremism and Terrorism in the Scope of Women, Peace and Security: an Uncomfortable Relationship

scchambers

Credit: UN Photo/DN (http://www.un.org/en/sc/about/)

The most recent and very controversial resolution of the United Nations Security Council(UNSC) Women, Peace and Security (WPS) agenda, Resolution 2242 of 2015, has started to be implemented by the member states: a very recent example is Bosnia and Herzegovina. To date, Bosnia and Herzegovina has adopted three National Action Plans (NAPs) to implement the WPS agenda in its legal, judicial and administrative bodies for the periods of 2010-2013, 2014-2017and 2018-2022. Although the first two NAPs have not engaged with counterterrorism (CT) or countering violent extremism (CVE), the third NAP has a specific section regarding the measures for CT and CVE. In the NAP of 2018-2022, greater involvement of women in the initiatives for CT/CVE is highly encouraged.

The engagement of women with the CT and CVE programmes has developed in a very problematic way. The international framework on CT and CVE was established by UNSC Resolution 1373 (2001), immediately after 9/11. Fionnuala Ní Aoláin’s review of 43 UNSC Resolutions regarding the CT/CVE agenda pointed out that the agenda made only a handful of references to women and/or sexual harms. Thus, the CT and CVE agendas were gender-blind. Whereas the WPS agenda, at least initially, was trying to bring a gender lens to the peace and security concepts, CT/CVE resolutions have remained detached from the UNSC WPS purposes and agenda.

Very recently, this detachment has been terminated, not through the application of a gender-sensitive lens to the CT/CVE, but through the engagement of the WPS agenda with the CT/CVE programmes. With the adoption of UNSC Resolution 2242, CT/CVE discourse has been introduced to the WPS agenda.

In Resolution 2242, the SC

“(…) expresses deep concern that acts of sexual and gender-based violence are known to be part of the strategic objectives and ideology of certain terrorist groups, used as a tactic of terrorism, and an instrument to increase their power through supporting financing, recruitment, and the destruction of communities (…)”

To tackle this, the SC

“(…) urges Member States and the United Nations system to ensure the participation and leadership of women and women’s organizations in developing strategies to counter terrorism and violent extremism which can be conducive to terrorism(…)”

Integration of CT/CVE with the WPS agenda through “strategic essentialism” presented women as “an untapped resource for countering violent extremism” (page 31). Feminist scholars have been concerned with the language in the resolution which essentializes women “as wicked purveyors of extremist violence or virtuous saviours of sons, husbands and communities” (page 282).

Bosnia and Herzegovina’s latest NAP echoes this language of Resolution 2242. “Women and children” are depicted as the main victims of violent extremism and terrorism.  The NAP acknowledges the presence of “radical communities” in Bosnia and Herzegovina and encourages international partners, the non-governmental sector, academia and religious communities to cooperate in order to “protect” the main victims of violent extremism and terrorism: “women and children”.

A major problem with both Resolution 2242 and the Bosnian NAP of 2018-2022 is the “over-simplistic understanding of the causes of extremism, and the solutions”(page 108). Such an approach seems palliative; the reasons for the emergence of violent extremism and terrorism in societies are simply ignored and instead the aim is onlyto treat the symptoms.

In addition, Resolution 2242 leaves the meanings of “violent extremism” and “terrorism” open. Similarly, Bosnia and Herzegovina barely specifies the measures for tackling violent extremism and terrorism. This prevents us from gaining any insight into the meaning and scope of “violent extremism” and “terrorism” in the Bosnian context. Expansion of the WPS agenda and alignment of the CT/CVE  and WPS agendas “does not mean that women will be included in defining what constitutes terrorism” and violent extremism. This very point creates concerns for feminist scholarship since the ambiguous and “customizable” scope of violent extremism and terrorism might lead to the securitization and instrumentalization of the WPS agenda, and to the legitimization of the SC.

This is not the first time that international security has intervened in the WPS agenda. In an earlier resolution, Resolution 1960 of 2010, the SC brought forward “targeted sanctions” against perpetrators of sexual violence in armed conflict, which was a “counterproductive development in the contemporary collective security approach to women, peace and security”. Such security-oriented interventions sideline gender equality and aim to “empower” women with the only purpose of providing security in the affected societies.

As Diane Otto has pointed out, any so-called successes in the feminist theory and practice should always be weighed against their consequences. Integration of the CT/CVE into the WPS agenda is presented as a success by the UNSC since this integration could reduce the impacts of terrorism and violence extremism on women. However, as WILPF reminds us, “inclusive” strategies are more often than not used to justify the use of force.

Although Resolution 2242 has already been adopted in Bosnia and Herzegovina and many other countries through NAPs, legal, judicial, and administrative bodies and women’s rights NGOs should cautiously put the NAPs into practice by constantly examining the potential impacts of CT and CVE programmes on women.

Human Rights and the U.S. Gun Violence Crisis: A New Approach

With the most recent mass shootings at Thousand Oaks Bar in California and the Tree of Life Synagogue in Pittsburgh, Americans are once more reeling from the shock and horror of seeing their compatriots mowed down while undertaking normal daily activities. Innocent men, women, and children have been killed or injured whilst worshiping; enjoying a concert; spending an evening out with friends; attending school; or simply being in the wrong place at the wrong time. Each time shots ring out, the media is full of conversations about “gun rights” and the Second Amendment. But what about human rights? What about the right to life; the right of association; the right to health; the right to safety and security; the right to attend school and receive an education?

11.02.2018- Gun Panel Photo by Mary ButkusOn November 2 and 3, more than 150 people attended a conference at the School of Law entitled, The U.S. Gun Violence Crisis: An Interdisciplinary and Human Rights Approach. Co-sponsored by the Whitney R. Harris World Law Institute at Washington University School of Law, the Washington University Institute of Public Health, The Public Interest Law & Policy Speakers Series, and the American Branch of the International Law Association (International Human Rights Committee), the event brought together leading scholars and experts in the fields of law, psychiatry, sociology, medicine, and public health policy to focus on new approaches to the U.S. gun violence epidemic.

11.02.2018- Gun Panel Photo by Mary ButkusMike McLively, director of the Urban Gun Violence Initiative at Giffords Law Center to Prevent Gun Violence, opened the conference by highlighting the scope and scale of the U.S. gun violence epidemic. He noted that more than 30,000 people die each from gun violence – violence that is, for the most part, easily prevented by simple and common sense regulation or even executive action. He noted that more than 60 percent of those killed by gun violence have committed suicide with a gun; deaths that were largely preventable through simple measures like waiting periods to purchase firearms. Others noted the disproportionate impact of gun violence on communities of color and young people, as well as the exportation of the U.S. gun violence crisis to third countries through the trafficking of weapons from the United States. The usefulness of international human rights regimes in reframing thinking about this issue, and the important work already being done on this issue by U.N. bodies was noted by several participants. Barbara Frey, in particular, has worked on this issue for many years at the U.N. in her capacity as the alternate U.S. member of the U.N. Sub-Commission on the Promotion and Protection of Human Rights and as Special Rapporteur to the Sub-Commission on the issue of preventing human rights abuses committed with small arms and light weapons.

Epstien_WLM_0156Lee Epstein, Ethan A.H. Shepley Distinguished University Professor, spoke insightfully about the history of the relationship between the Second Amendment in the U.S. Supreme Court and the evolution of conversations around gun rights. Professor Epstein noted that the relatively recent emergence of an individual right to bear arms can be traced to a flurry of recent law review articles advocating for this position. She suggested that further social science research and legal research could therefore contribute to the solution of the current crisis.

alpers_wlm_0227.jpgFinally, Philip Alpers, founder of GunPolicy.org, concluded by offering a comparative analysis of the crisis and its resolution in Australia as a result of legislative action, gun buybacks, and a change in legal and popular culture with respect to guns and gun ownership.

During the second day of the conference, speakers met to discuss the conference, as well as a Report on the topic prepared by Harris Institute Fellow Madaline George and myself. The Harris Institute’s Report, which concludes that the U.S. government has failed in significant respects to adequately protect the human rights of individuals living in the United States from gun violence, will be published in the coming months. The papers from the conference will appear in a special symposium issue of the Washington University Journal of Law and Policy in 2019. The Institute has already presented testimony on the U.S. Gun Violence Crisis to the Inter-American Commission on Human Rights and is working on testimony before other human rights bodies as well.

To learn more about the Harris Institute’s Gun Violence Initiative, visit our website.

Experts' Meeting at Washington University School of Law

Ethics and the Law: Journalists and International Criminal Tribunals (part 2)

LONDON – Can journalists give evidence at international criminal trials without compromising their objectivity? What is the probative value of journalistic evidence? What does it feel like to be cross-examined by Slobodan Milošević?

These were some of the questions discussed at the event Ethics and the Law: Journalists and International Criminal Tribunals hosted on 25 October at London’s Frontline Club. The fourth of a series of events on “Ethics and the News”, the panel discussion was organised by the Ethical Journalism Network and Global Rights Compliance, and chaired by Channel 4 Head of News and Current Affairs Dorothy Byrne.

In part 1 of this post, we described how journalists recounted their experience of testifying at high-profile international criminal trials. At the same event, legal practitioners also gave their thoughts on the role of journalists in such trials.

The lawyers’ view

The next speaker is the Rt Hon. Lord Justice Adrian Fulford, who was elected to serve as a judge before the ICC for a term of 9 years. Tapping into his wealth of experience, Sir Adrian acknowledges the shortcomings of international justice: trials are too lengthy, trials are too costly, not enough cases are brought before the ICC. The current system of international criminal trials, he says, is an intimidating slow-moving machine, something akin to “a Gilbert & Sullivan operetto” taking place in large surroundings, and could benefit from more imaginative ways of giving evidence to make the process less intimidating for witnesses. It is increasingly difficult to get people to testify, Sir Adrien says, but journalists tend to make good witnesses, as the essence of their role is to bear witness to events.

Wayne Jordash QC, of Global Rights Compliance, is more ambivalent: to him, journalistic evidence does not have any heightened probative value. While Jordash emphasizes the role of journalists as watchdogs as crucial (perhaps now more than ever), and agrees that photo and video evidence is critical, he suggests that journalists’ additional testimony does not have a huge bearing on a case. However, journalism is crucial in another, often ignored way: in pushing the information out and catching society’s attention. Through their reporting on human rights violations in the news, war journalists help keep human rights violations in the news cycle – this, Jordash says, helps mount and maintain support, which can in turn lead to better funding to combat such violations.

Continue reading

Ethics and the Law: Journalists and International Criminal Tribunals (part 1)

Seyi Rhodes Journalists Event

Seyi Rhodes recalls giving evidence at the Gbagbo trial before the International Criminal Court.

LONDON – Can journalists give evidence at international criminal trials without compromising their objectivity? What is the probative value of journalistic evidence? What does it feel like to be cross-examined by Slobodan Milošević?

These were some of the questions discussed at the event Ethics and the Law: Journalists and International Criminal Tribunals hosted on 25 October at London’s Frontline Club. The fourth of a series of events on “Ethics and the News”, the panel discussion was organised by the Ethical Journalism Network and Global Rights Compliance, and chaired by Channel 4 Head of News and Current Affairs Dorothy Byrne.

The toll it takes to testify

The event started with the screening of a short, harrowing extract of the 1992 documentary Omarska’s Survivors: Bosnia 1992.

As the lights come back on, we hear from the first panelist, former Guardian and Observer reporter Ed Vulliamy. He is familiar with those images – in fact, he was there when they were filmed, as he and British journalist Penny Marshall managed to gain access to the infamous Omarska concentration camp and exposed the dire conditions of living for prisoners there.

A certain weariness shows on the face of Vulliamy, who explains that they reported the atrocities in Bosnia for “three effing years” before things started to change. Vulliamy bore witness to many human rights violations on the ground, and later repeated that exercise in a different, more judicial setting years later, as he became the first journalist since the Nuremberg trials to testify at an international war crimes tribunal. In total, he testified in ten trials for the prosecution at the International Criminal Tribunal for the former Yugoslavia (“ICTY”), including those of Bosnian Serb leaders Radovan Karadžić and General Ratko Mladić.

Would I do it all again?“, Vulliamy wonders out loud. He seems ambivalent. He stresses the difference between objectivity and neutrality; journalists have a duty to be objective, he notes, but as human beings they also cannot stay neutral in the face of horrors and wrongdoing. His answers, however also reveal the personal and mental toll it takes to re-live those experiences in front of a tribunal.

That personal toll is something that two other journalists present that night are all too familiar with.

Continue reading

International Law on Statehood and Recognition: Israeli-Palestinian Conflict and the South Caucasus

Hebrew U Conference

Participants of “Recognition” Conference at Hebrew University

Over the past week, I had the honor of presenting at two different conferences on statehood and recognition issues: the first one was held at Hebrew University in Jerusalem, Israel, and its official title was “Recognition in the Context of the Israeli-Palestinian Conflict,” and the second one was held in Ankara, Turkey, and its focus was on “The Centennial of the Independence of the Three Caucasus States: Historical Background, Contemporary Developments and Prospects of Peace and Prosperity” (the conference was organized by the Center for Eurasian Studies, an independent think tank based in Ankara).  My role at each of these conferences was to discuss statehood and recognition issues under International Law – in the context of the Israeli-Palestinian conflict at the first conference, and in the context of the South Caucasus conflicts at the second conference (as most readers would know, there are ongoing separatist conflicts in Nagorno-Karabakh, South Ossetia, and Abkhazia). Although these conflicts present distinct factual issues, many legal issues pertain to all; this post will briefly discuss such common legal issues in an attempt to shed light on complex issues of statehood and recognition.

Jerusalem view

Jerusalem City View

Statehood and recognition are supposed to be distinct from one another.  The former is a legal theory enshrined in international treaty law: the Montevideo Convention on the Rights and Duties of States establishes four criteria of statehood, which include the presence of a defined territory, permanent population, government, and the capacity to enter into international relations.  The latter is a political act traditionally left to the sovereignty of already-existing states. International law scholars have described two different theories of recognition of states: the declaratory view and the constitutive view. Under the former, recognition is seen as a purely political act having no bearing on the legal elements of statehood. Under this view, outside states can choose to recognize the new state, or not, but that decision does not influence the legal determination of statehood.  Under the latter, recognition is seen as one of the main elements of statehood. Thus, an entity cannot achieve statehood unless it is recognized by outside actors as a state. Under the constitutive view, recognition and statehood go hand-in-hand: an entity vying for statehood must garner the support of other existing states, which must express their desire to formally recognize this entity as their sovereign sister state. In addition to the declaratory and constitutive views, scholars have advanced a third, intermediary view on recognition.  The intermediary view seeks to combine the declaratory and constitutive views while acknowledging what truly takes place in practice.  This view posits that recognition is a political act independent of statehood, but that outside states have a duty to recognize an aspiring state if that entity objectively satisfies the four criteria of statehood.  Upon a closer examination of statehood and recognition, it thus seems evident that the two are related on a theoretical level.  The fourth criterion of the Montevideo Convention establishes the capacity to enter into international relations as one of the fundamental criteria of statehood; an aspiring state cannot possibly enter into international relations unless existing states are willing to recognize the aspiring state as a sovereign partner.  In addition, unless one supports the declaratory view on recognition, it appears that recognition is one of the elements of statehood (under both the intermediary and constitutive views).  And, in practice, recognition and statehood are closely connected. Most aspiring states must garner the support of a sufficient number of existing states, and in reality, the support of most of the Great Powers, in order to be recognized as new sovereign states. Without such recognition, aspiring states remain that – entities aspiring to achieve the supreme status of statehood. To the contrary, recognition and support by the Great Power may elevate an aspiring state to the status of statehood, although such an aspiring state may not satisfy the legal requirements of statehood.

Ankara Conference

Conference on Recognition and Statehood Issues in the Caucasus in Ankara, Turkey 

 

Several historical examples support this argument. When Southern Rhodesia (now Zimbabwe) decided to separate from Great Britain and to form an independent state in 1965, most of the world, including the Great Powers, refused to recognize Southern Rhodesia as a state. Consequently, Southern Rhodesia remained isolated from the world and was unable to conduct international relations. The non-recognition of Southern Rhodesia by outside actors prevented it from fully exercising the attributes of legal statehood. In the context of the former Yugoslavia, European Great Powers as well as the United States decided to prematurely recognize Croatia and Bosnia and Herzegovina, although such recognition was granted at a time when the entities in question arguably did not exercise control over their territories or have effective governments, thereby not meeting the traditional requirement for statehood.  Moreover, the United States refused to recognize the Peoples’ Republic of China (PRC) until 1978, although the PRC satisfied the legal criteria of statehood. Turkey was isolated in its own recognition of the Turkish Republic of Northern Cyprus as a state, although this entity did not necessarily fulfill all the legal elements of statehood. Finally, whereas many Western Great Powers have recognized Kosovo, Russia has refused to entertain any possibility of recognizing Kosovo as a state, although Kosovo’s fulfillment of the legal criteria of statehood is at the very least open to reasonable debate. Thus, recognition, whether it is considered a political or legal act, has a direct impact on the pragmatic determination of statehood: whether an entity will be able to truly act as a state on the international scene.  It may be argued that important states, such as Great Powers, support the constitutive view, because they equate recognition with statehood. In other words, Great Powers, as well as other important states, may decide whether to treat an emerging entity as a state based on their own geo-political interests, and not based on whether the entity satisfies the legal criteria of statehood. Thus, Great Powers, as well as many other states, have demonstrated that in practice, recognition remains constitutive of statehood.

Ankara City View

Ankara City View

Another key ingredient in the process of state creation is United Nations’ membership.  Because United Nations’ membership depends on the Security Council, it is thus subject to the geo-political whims of the five veto-wielding Great Powers (United States, Russia, United Kingdom, France, and China).  United Nations’ membership is important because it de facto elevates an aspiring state into a state.  Conversely, the denial of United Nations’ membership prevents the attainment of full statehood by an aspiring entity.  United Nations’ membership is distinct from the legal criteria of statehood (although such membership arguably enables the entertainment of international relations) and distinct from each existing state’s sovereign decision to recognize or not recognize a newly emerging entity.  However, it may be argued that United Nations’ membership reflects the collective recognition practice of the five permanent members of the Security Council, and that, in order to become a state, any entity must garner the support of these Security Council members – because entering the United Nations signifies the international community’s approval of a new sovereign member.

How does all of the above apply to the Israeli-Palestinian conflict and to the South Caucasus? Although Palestine, Nagorno-Karabakh, South Ossetia and Abkahzia may or may not satisfy the four criteria of statehood, and although Palestine may be recognized by over a hundred existing states, each of these entities have been blocked from entering the United Nations because of Security Council veto – in the case of Palestine, the United States has vetoed the Palestinian application for full membership, and in the cases of Nagorno-Karabkah, South Ossetia and Abkahzia, it is likely that the United States would equally veto membership applications.  Thus, none of these entities stand a chance of attaining statehood at the present moment. It may be argued that the Palestinian case for statehood is much stronger, because Palestine has observer status in the United Nations, because the International Criminal Court has opened an investigation into Israel, at Palestine’s request, and because Palestine has been recognized by more than one hundred existing states.  In addition, Palestine has recently sued the United States in the International Court of Justice under the Vienna Convention on Diplomatic Relations; it will be interesting to find out whether the Court takes up the case on the merits and proclaims anything regarding Palestinian statehood issues. However, because of the United States’ veto in the Security Council, Palestine does not have access to the United Nations and has no prospects of attaining the status of a sovereign state.

In sum, unless one supports the declaratory view, recognition and statehood remain connected on the theoretical level, and recognition and statehood are almost always inter-linked in practice.  Although recognition and statehood are distinct processes, it is nearly impossible to analyze the recognition of new states without focusing on the legal theory of statehood.  In addition to the link between recognition and statehood, recognition is always a political process, dominated by global politics and the interests of the Great Powers.