Write On! Environmental Crimes Conference

This installment of Write On!, our periodic compilation of calls for papers, includes calls to submit papers for the 2nd Environmental Crimes Conference as follows:

The Common Good Foundation in partnership with Durrell Wildlife Conservation Trust, The Center for World Indigenous Studies, The Jersey Law Commission, and The Resolution Journal, is hosting the 2nd Environmental Crimes Conference on October 1st and 2nd 2020 in St. Helier, Jersey, Channel Islands, United Kingdom.

The purpose of the conference is to bring together professionals from diverse disciplines around the world to discuss emerging trends and responses to environmental crimes.

The deadline for abstract submission is Friday, March 6, 2020 at midnightNotifications of acceptance will be delivered by the end of March 2020. Publication opportunities will be available for accepted presenters. Additional information and the form for abstract submission can be found here.

Read On! Revista Temas de Derecho Constitucional: Asilo y Migracíon

I am pleased to announce the publication of the Constitutional Court of Colombia’s Revista Temas de Derecho Constitucional on Asylum and Migration. The edition includes articles in Spanish and English on collective expulsions, the Cartagena Declaration, Stateless children and birth registration, constitutional protection of asylym, socio-economic and cultural rights of migrants, provision of health care, etc. My article is titled “The Provision of Asylum as a Peace Mechanism and Recent Challenges Within Asylum Case Processing of Venezuelan Applicants in the US and Canada”. It discusses misapplication of the credibility standard, “credibility fatigue”, uneven evaluation of evidence, and failure to recognize a nexus to the protection category of political opinion. The conclusion confirms systemic dysfunction and the importance of appeals judges correcting arbitrary decisionmaking. Asylum as a peace mechanism is weakened. The Revista is available here:http://sidn.ramajudicial.gov.co/SIDN/DOCTRINA/TEXTOS_COMPLETOS/Revista%20Temas%20de%20Derecho%20Constitucional/HTML/146/index.html

TEACHING TRANSITIONAL JUSTICE AFTER CONFLICT AND TERROR: CASES OF KOSOVO AND NORWAY

Kristin Bergtora Sandvik and Kjersti Lohne

How can education help to realize the multiple goals and visions of transitional justice, and how can transnational justice be adapted to new educational objectives?

During November 2019, scholars from the University of Pristina and the University of Oslo met at the Faculty of Law in Pristina to discuss the role of universities in educating for peace. Taking this dialogue between two very different experiences of mass violence – Kosovo with war and oppression, and Norway with a terror attack as its point of departure – this blog discusses what it means to teach transitional justice in a new decade, and the merits of applying transitional justice perspectives to new domestic contexts that are not used to think of themselves as ‘transitional’.

Transitional justice has primarily been a toolkit for post-conflict justice such as the Kosovo context. As noted by Human Rights Watch 20 years on, civilians paid a hefty price: In 1998 and 1999 between 90% of the Kosovar population of 2 million was displaced by Serbian forces and around 13 000 people were killed. An estimated 1653 remain missing. Sexual violence and torture were widespread. Only few individuals have been tried and convicted for their role in the atrocities. Trauma and the effects of political violence and impunity continue to shape Kosovar society today.

22 July 2011, the Norwegian terrorist Anders Behring Breivik detonated a car bomb in the Oslo government district, which killed eight people, injured about 200 and led to significant material destruction. Breivik then travelled to the Labour Party’s Youth Organization (AUF) summer camp at Utøya Island, where dressed up as a police officer, he massacred 69 individuals, including 50 children. Thousands of survivors, relatives, rescuers and bystanders remain deeply affected. Since 2011, numerous terrorists have claimed 22 July as a source of inspiration (herehere or here).

Kosovo and Norway cannot be directly compared: The type of crime, scale of violence and suffering is vastly different, and so is the state’s ability to respond. Moreover, while Breivik was Norwegian, the war in Kosovo was between different entities, which affects how respective communities deal with the legacy of violence in its aftermath. However, a dialogue between the two contexts is both timely and appropriate. The experience of Norway after the 22 July 2011 terror attack, and that of other countries recovering from similar mass casualty terror attacks, suggests that transitional justice might have a place in the aftermath of violent political extremism in otherwise established democracies. The political nature of this type of violence engenders difficult questions as to who is an insider and outsider in a given domestic context, and narratives of belonging, responsibility and harm shift over time.

Kosovar and Norwegian educators both grapple with a contemporary context where the production of knowledge and truth claims – as well as the legitimacy and authority of higher education itself – are contested. At a fundamental level, this concerns how we live together, respect each other’s humanity and work towards consensus on versions of the past and of the future.

Integrating transitional justice and education

Transitional justice is many things to many people. The most widely applied definition is the one offered by the UN, seeing transitional justice as a first and foremost a process, and referring to ‘the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’. Observant scholars have taken issue with how transitional justice processes are incrementally framed in legal discourse. The UN Office of the High Commissioner for Human Rights (OHCHR), for example, refer to transitional justice as ‘judicial and non-judicial mechanisms, including prosecution initiatives, reparations, truth-seeking, institutional reform, or a combination thereof’, and assert that ‘Whatever combination is chosen must be in conformity with international legal standards and obligations’.

At the same time, influential actors such as the International Center for Transitional Justice (ICTJ) stress that transitional justice is about ‘putting victims and their dignity first’ and asking ‘the most difficult questions imaginable about law and politics’. They see such difficult yet necessary questioning as signaling ‘the way forward for a renewed commitment to make sure ordinary citizens are safe in their own countries – safe from the abuses of their own authorities and effectively protected from violations by others’. The Humanitarian Law Center understands transitional justice to be about ‘dealing with the past to build the future.’ In a similar vein, and as stated by one of the Kosovar workshop participants, transitional justice is about helping ‘to reveal the truth and what has happened’.

Within this diversity of transitional justice objectives, the role of education is gaining increasing traction – both as a question of developing didactics for teaching transitional justice, and of conceptualizing education as a key sector alongside other societal institutions and sectors subject to transitional justice processes. However, this is a relative new development, and much work still needs to be done. As Elizabeth A. Cole and the ICTJ have pointed out, ‘The field has moved from discursively recognizing the importance of education (though placing it beyond the ambit of transitional justice practice temporally and philosophically) to trying to find models for active engagement with it’. 

The case of Kosovo

As a nation, Kosovo remains in a precarious position as it grapples with its past, present and future. With respect to terror attacks, the challenge for otherwise established democracies in Europe also take on temporal and continuous elements: each new attack shapes possible futures by way of creating cultures of fear, but also by legitimating the exclusion of ‘deserving’ victims or individuals deemed ‘complicit’ merely by way of their membership in ethnic, social or religious groups. How do we educate students about restoration, accountability and justice when we are always suspended somewhere between the last terror attack – and the next?

Asking our hosts this question, the answer is that we must hold onto the idea that transitional justice, regardless of the violent context, must come from below.

First, we must accept that this will be messy, unfinished and not always successful – also in an educational context. An important but often overlooked part of what it means to do transitional justice from below is the productive role of mistakes – and the importance of discussing them. As suggested by participants to the conference, mistakes do happen – there are perhaps even necessary pathways to learning. Yet, mistakes – or lack of professionalization – can hamper or completely undermine the transitional justice effort too. Participants noted that the most obvious examples concern recovery and identification of dead bodies or the restoration and protection of cultural heritage. As explained by a practitioner working with survivors of sexual violence, there are specific instances where the overarching principle is to ‘do no harm’ and where no mistakes are permitted: ‘we can’t make mistakes – that would compromise the women’.  To retain a conscious relationship with the role of mistakes and professionalization alike was thus a recurring topic in Kosovo.

However, these statements also point to the possible tensions between the emphasis on transitional justice being locally embedded and professionalized at the same time – which again lead to broader questions about the role of the state. From the Kosovar perspective, learning to carry out the tasks of transitional justice in parallel with doing nation-building takes time – in part because externally funded institutions come and go. From the perspective of established democracies that are increasingly characterized by post-welfare, neoliberal governance, questions about local ownership and professionalization are as pertinent.

A final concern was the challenging role of education in a time of contested knowledge production. In post-conflict settings, there are often contestations over history. Today, technology too exacerbates tensions over truth claims and historic narratives in Kosovo and Norway alike. Among participants, including students, there was concern of ‘history repeating itself’, with visible signs of tensions and ‘othering’ across the European continent. Participants reflected on why this is happening again, and what can be done about it. Some participants suggested that human rights offered a language – a normative baseline – for continuing dialogue in spite of conflicting ‘truths’ and world views – even in the classrooms. Holding on to human rights as a normative bulwark in education may strengthen its foundation also beyond the classroom. This speaks to a fundamental tenet of teaching transitional justice, namely the importance of continuing, recognizing that ‘not to stop’ is an objective in and of itself.

Observations

The post-violence contexts of Kosovo and Norway are very different. What can we do with these types of exchanges? We suggest that if imagined and articulated correctly, the juxtaposition between violent conflict and violent extremism opens a space for critical discussions about citizenship, belonging and the imagination of the nation-state as inclusive, accountable—and just.  After all, education is of significant structural and societal importance as a site of justice and injustice alike, and as such, carries potential as both a key form and site of reparation and transitionPablo Freire has noted that by focusing on participants’ life experiences, such an approach may affirm participants’ dignity and recognize that all in the room are teachers and learners alike. While the pedagogy of teaching transitional justice in a violent extremism context is made complicated by the lack of a clear ending – and the impossibility of guaranteeing non-repetition – learning from practitioners and thinking with the perspectives of transitional justice offers a road forward.

This blog was initially posted at http://blog.associatie.kuleuven.be/ltjb/teaching-transitional-justice-after-conflict-and-terror-cases-of-kosovo-and-norway/

Kristin Bergtora Sandvik and Kjersti Lohne are co-organizers of an initiative called LAW22JULY – where LAW stands for learning, accountability, witnessing – based at the Faculty of Law at the University of Oslo in Norway. The flagship project is LAW22JULY: RIPPLES (Rights, Institutions, Procedures, Participation, Litigation:Embedding Security) starting in 2020. 

Colombia’s Constitutional Court issues landmark decision recognising victims of reproductive violence in conflict

A month ago, on 11 December 2019, the Colombian Constitutional Court issued an important decision recognising that women and girls who suffered forced contraception and forced abortion by their own armed groups should be recognized as ‘victims of armed conflict’. The decision is one of very few in the world to specifically recognise reproductive violence as a form of harm committed against women and girls in times of conflict. It thus sets important legal precedent in recognising a form of gender-based violence that has long remained invisible. Although the full written decision has not yet been made available, a summary of the decision has been published. In what follows, I analyse this summary.

Helena’s case

The case was brought by Women’s Link Worldwide on behalf of Helena (pseudonym), a young woman who had been forcibly recruited into the FARC at the age of 14. While with the FARC, she was forced to take contraceptives (injections) and forced to undergo an abortion when she became pregnant. She suffered significant and long-lasting health consequences as a result of the unsafe conditions in which these procedures were forcibly carried out. Continuing to suffer negative health consequences, Helena fled and was in hiding for many years until the peace deal with the government was signed. In 2017, she submitted an application to be recognised as a victim and to seek reparations under Colombia’s Law on Victims and Land Restitution (Law 1448). This law, adopted in 2011, recognizes victims of the armed conflict and confirms their rights to truth, justice and reparations. It includes provisions on the restitution of land and other reparations, and requires that special attention be paid to the needs of specific groups and communities, such as women, survivors of sexual violence, trade unionists, victims of forced displacement, and human rights defenders.

The agency charged with the registration of victims under this reparations framework (UARIV), however, subsequently denied Helena’s claim for victim status. In doing so, UARIV had relied upon an article in Law 1448 that denied victim status to members of illegal armed groups (Article 2(3)), and held that, in any case, Helena’s claim was submitted outside of applicable timelines set out in Law 1448. Helena fought this decision; while the first instance court did grant her access to government-provided medical support, her claims for recognition as a victim and for reparations under Law 1448 were dismissed in both first and second instance. She thus appealed her case to the Constitutional Court, who heard the matter in 2019, and issued this landmark decision at the end of last year. Importantly, Helena’s case was selected for review by the full panel of nine judges, rather than being decided upon by a panel of three judges. This illustrates the importance the Constitutional Court attached to the issues.

Constitutional Court’s decision

In its December 2019 decision, the Constitutional Court firstly found established that Helena was the victim of grave violations of her fundamental rights. The Court subsequently held that in dismissing her application to be registered as a victim of the armed conflict, UARIV violated Helena’s fundamental rights on two grounds. Firstly, UARIV had violated Helena’s rights as a victim by failing to interpret the applicable rules in accordance with established constitutional principles of most favourable interpretation, good faith, pro personae, and the primacy of substantive law. Secondly, UARIV failed to properly substantiate its decision by neither acknowledging the acts of forced abortion and forced displacement Helena suffered, nor by recognising that Helena’s specific circumstances constituted force majeure, preventing her from submitting an application within designated timelines.

The Court acknowledged that, on its face, Article 2(3) of Law 1448 allowed for the denial of victim status to ex-combatants who demobilised as an adult, and that, under this interpretation, Helena would have to seek reparations through other mechanisms, not including Law 1448 (as Helena fled the FARC after she turned 18). However, the Court also questioned whether this exclusion in Article 2(3) was consistent with Colombia’s obligations towards victims of the armed conflict, noting in particular the coercive nature of the practice of forced contraception and abortion within the FARC and that these acts were often perpetrated upon girls under 18, or upon young women who had only just reached the age of maturity.

According to the Court, denying Helena the right to be recognised as a victim under Law 1448, therefore, would violate her rights to access justice and to timely and adequate protection measures. Noting the principal obligation on the state to recognise victims of sexual violence as victims in such a way as to guarantee their rights to integral reparations, the Court also held that as a victim of sexual violence committed within an armed group, Helena would not have access to other avenues of reparations beyond Law 1448. As such, for the Court, registration in the Register of Victims constituted her only available avenue to adequately repair her fundamental rights.

Importantly, the Court held that the exclusion stipulated in Article 2(3) could not become an obstacle to reparations for victims of sexual violence who, as ex-combatants, were forcibly recruited into those illegal armed groups at a young age. Such a rigid interpretation of Article 2(3), according to the Court, would thus create an unconstitutional lack of protection and vulnerability. The Court also reiterated the state’s obligation to provide immediate, comprehensive, gender-sensitive and specialised health care to all victims of sexual violence by armed actors for such time as deemed necessary to overcome the physical and psychological health consequences of such violence.

For this reason, the Court relied upon the principle of declaring a ‘constitutional exception’ (la excepción de inconstitutionalidad) as provided for in Article 4 of Colombia’s Constitution to overrule the applicability of Article 2(3) of Law 1448 to Helena’s case. Pursuant to this principle, when faced with a conflict between an ordinary legal norm and a constitutional norm, the Court may declare a constitutional exception to preserve rights guaranteed by the constitution in a specific case. In this case, the Court held that relying upon this principle was the only way to guarantee Helena’s fundamental rights and to find an adequate balance between Colombian law and Colombia’s international legal obligations under international humanitarian law and international criminal law. Not doing so, the Court stressed, would give rise to consequences that it held to be unconstitutional. As such, the Court rendered Article 2(3) of Law 1448 inapplicable to this specific case.

The Court thus ordered:

  • that the decision by UARIV not to include Helena in the Register of Victims be declared void;
  • that within 10 days of the date of its decision, UARIV admit Helena to the Register of Victims on the basis of her having suffered forced recruitment as a child, sexual violence (including forced use of contraceptives and forced abortion), and forced displacement;
  • that within 15 days of the date of its decision, UARIV reinstate the provision of psychosocial and medical assistance to Helena to address the emotional, mental health and physical effects of having suffered sexual violence;
  • that in the provision of integral reparations to Helena, UARIV take a gender-sensitive approach to ensure her fundamental rights; and
  • that the health services provide and guarantee access to Helena to immediate, comprehensive, gender-sensitive, specialised care for as long as necessary to address the physical and psychological consequences of the violations she suffered.

Significance of the decision

In finding in favour of Helena’s registration as a victim of the armed conflict, this case establishes that ex-combatants who were forcibly recruited into illegal armed groups and suffered sexual violence, as well as reproductive violence, within those armed groups may seek victim status and thus have access to reparations under Law 1448 – a right they did not have before – regardless of the age at which they demobilised or fled. Beyond the significance of this finding for the claimant in this specific case, therefore, this decision also sets important legal precedent in recognising that victims of sexual and reproductive violence within armed groups are victims of armed conflict. This follows earlier jurisprudence by the International Criminal Court in the Ntaganda case (here and here; see also this 2017 post by IntLawGrrl Rosemary Grey). The Colombian decision is also one of very few in the world to specifically recognise reproductive violence as a distinct form of harm committed against women and girls in times of conflict.

As part of the case, the Court received 17 expert briefs from national and international human rights organisations, women’s rights organisations, academics and international experts, including one from the author of this blog post (written jointly with Ciara Laverty). In our amicus request filing, we offered the Court a comprehensive overview of the way in which reproductive violence long remained invisible in international law, how it is increasingly being recognised, and why it should be recognised as a specific and distinct form of harm, including when committed within armed groups.

Reproductive violence is a widespread yet understudied phenomenon that occurs in times of both conflict and of peace. It can have serious physical, mental, emotional and other consequences that persist long after the violence has occurred. It is a form of victimisation connected to but also different from sexual and other violence, due to the distinct harm it inflicts and the underlying value it is said to violate, i.e. reproductive autonomy. Although reproductive violence affects individuals of all genders, there are distinct forms of harm and violence that are inflicted only upon women and girls because of and directly targeting their sex-specific biological reproductive capacities, such as forced contraception, forced abortion and forced pregnancy.

Historically, however, there have only been few instances where such violence has been independently recognised and considered. This left reproductive violence relatively invisibilised in international law. Nonetheless, current developments reflect a growing recognition that reproductive violence constitutes a distinct form of violence that should be independently recognised as violating specific, individual rights and may also constitute (international) crimes in certain circumstances. This decision by the Colombian Constitutional Court recognising the specific victimisation of female ex-combatants through forced contraception and forced abortion thus contributes to providing greater legal recognition to a form of gender-based violence that has long remained invisible in international law.

Importantly, in addition to claiming her rights as a victim through the constitutional action that was the subject of this decision, Helena has also requested participation as a victim in case 007 before the Special Jurisdiction for Peace. As such, further jurisprudence, including on individual criminal responsibility for acts of reproductive violence such forced contraception and forced abortion, may be forthcoming in Colombia.

Stay tuned!

Approaching the Ninth Year of the Syrian War- Why Has International Law Been So Futile?

The beginning of a new year did not stop the bloodshed in war- torn Syria.  On January 1st, a rocket attack was launched by the Syrian government forces on a school-full of students and teachers- in Idlib, the country’s last opposition stronghold. According to reports, at least eight civilians were killed, among them four children. In addition to the continuing armed attacks, and especially since the renewal of the Syrian government’s attack on Idlib in November 2019, hundreds of thousands have fled their homes, many of them having already been displaced in the course of former attacks.

When the Syrian conflict is on the verge of its ninth year, and being one of the longest civil wars in the twenty- first century, one question still pokes out: why have the international community and international law been unable to suggest effective solutions for this seemingly endless conflict, if not completely stopping it?

The answer is complex and rests on both legal and political reasons. It is well known that international law, as Sir Hersch Lauterpacht famously recounted, rests “in the end of law.” Several interpretations can be ascribed to this statement, and one of them is that international law is among the weakest branches of law. Its Achilles’ heel is enforcement, that is, in many cases, international law has no significant ability to enforce its rules.

Inability to enforce is a major characteristic of the international community’s activities is Syria. In December 2016, The United Nation’s General Assembly has set up “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.” The mechanism’s mandate is to prepare the ground for fair and independent criminal proceedings (either in national or international tribunals) with regards to violations of international humanitarian law and human rights violations committed during the Syrian conflict.

However, neither has an independent national court nor an international tribunal met the challenge; and President Assad (though not the only person accountable for international crimes but perhaps the most notorious one in Syria) is under no threat of arrest for such crimes. The international criminal court- the ICC- probably the most “natural” court for such proceedings is incapacitated in this case. Because Syria is not a party to the Rome Statute (which is the ICC’s founding treaty), an investigation of the Syrian conflict can be authorized only by a UN Security Council’s decision. Such a decision cannot be reached when Russia vetoes it, as it has consistently done since 2015.

The Russian and the Chinese veto has also impeded other UN Security Council’s initiatives regarding this conflict, such as a draft resolution from December 2019, suggesting to add a crossing point in Turkey for Syrian refugees (in addition to the two that already exist in Turkey and single ones in Jordan and Iraq).

Yet, it is not only the UN’s structure and mechanism that inhibit international community’s actions to alleviate the suffering in Syria. It is also the superpowers’ contrasting political interests in the area that prevented an international armed operation. While Russia is interested in protecting Assad’s government, the US and other Western superpowers had no will to risk the lives of their soldiers in order to protect civilians in a foreign country. Therefore, they could and did also use the pretext of the prohibition under international law to invade the territory of an independent state, without its authorization.

Truly, the concept of Responsibility to Protect (RtoP, also called humanitarian intervention) can be raised as a counter argument to justify such an international intervention. This was argued when the Syrian government attacked the rebels, civilians included, with chemical weapons. However, again, the superpowers clung to the weakness of the RtoP doctrine under international law, and the warnings raised against it being exploited for unworthy purposes, such as colonial expansion.

The conclusion is almost as despairing as the ongoing misery of the conflict. The Syrian conflict stands out in its singularity in comparison to former similar bloody conflicts, such as the civil wars in former Yugoslavia and the genocide in Rwanda. In those cases,  the international community was more united and managed to act both militarily (against Milosevic tyrant regime in Serbia) and legally after the fact by establishing the ad hoc tribunals for trying those accountable for international crimes (in the Hague- for the conflict in former Yugoslavia and in Arusha, Tanzania, for the conflict in Rwanda). However, in the Syrian case, none of such initiatives was implemented, as the different and contrasting interests of the superpowers worked against such actions and international law was used or perhaps misused to justify the inaction.

 

Syrian war cover

 

 

 

 

The Legality of the United States’ Strike on Soleimani

On January 2, 2019, the United States carried out a drone strike at Baghdad airport in Iraq in which Qassem Soleimani, a high-level Iranian military leader, was murdered.  This post will analyze the legality of this particular United States’ use of force under international law as well as under U.S. domestic law.  Moreover, this post will discuss (negative) policy implications of this strike.

International Law

By launching an air strike on the territory of a sovereign nation (Iraq), which targeted a top-level military official of another sovereign nation (Iran), the United States used force against two other sovereign nations.  Such use of force is prohibited under Article 2(4) of the United Nations Charter, and the United States thus violated its international law obligations under the Charter, unless the United States can demonstrate that the military strike was conducted pursuant to a Security Council authorization or in self-defense.  In this case, the United States acted alone, without seeking Security Council approval.  Thus, under international law, the only way that the United States could justify the drone strike and the resulting killing of Qassem Soleimani is through self-defense.

The traditional law of self-defense, as reflected in Article 51 of the United Nations Charter, allows a state to use force in self-defense if it has been subjected to an armed attack.  Moreover, the use of force in self-defense must respect the requirements of necessity and proportionality.  In this instance, even assuming that Soleimani was planning activities which would have been harmful to the United States’ national security interests, the United States had not suffered an armed attack by Soleimani/Iran and cannot rely on the traditional law of self-defense.  More recently, scholars (for a good recap of the law of anticipatory and pre-emptive self-defense, see here and here) and some states (United States in particular) have advanced more aggressive variants of self-defense, including preventive self-defense, pre-emptive self-defense, and the “unable or unwilling” standard.  The George W. Bush administration argued that force could be used in self-defense in a pre-emptive manner, against both terrorists as well as countries which harbor terrorists.  The strike against Soleimani could potentially be justified under pre-emptive self-defense, especially if evidence demonstrated that Soleimani was engaged in activities which posed a threat toward the United States.  However, pre-emptive self-defense is not a widely accepted interpretation of the international law of self-defense; it is not part of treaty or customary international law; even subsequent United States’ administrations have adopted different views on self-defense.  Thus, pre-emptive self-defense remains a controversial interpretation of the international law of self-defense.  The Obama Administration adopted a different approach by arguing that the United States could use force in compliance with the international law of self-defense against a state which was unable or unwilling to control non-state actors operating from within its territory, if such actors posed an imminent threat to the United States. Under the Obama Administration view of the right of self-defense, the United States’ strike against Soleimani cannot be easily justified because, even if Soleimani posed an imminent threat to the United States (it remains to be seen whether Soleimani was presently engaged in activities which would have posed an imminent threat against the United States), he was not a non-state actor, but rather an Iranian military official. It is thus questionable that the strike was lawful under the Obama Administration paradigm of self-defense paradigm.  Finally, the United States could possibly claim that it was acting in collective self-defense pursuant to Iraq’s request for help- that Iraq had requested assistance from the United States in acting against Soleimani/Iran.  As of now, there is no evidence that this was the case.  The U.S. troops were in Iraq to lend support in the fight against ISIS, and it appears that the United States launched this attack without Iraq’s knowledge or approval.  In fact, in response to the Soleimani strike, the Iraqi Parliament has voted a resolution which would expel U.S. troops from Iraq.  Thus, the collective self-defense argument has no merit for now.  The only way in which the Soleimani strike can be possibly justified under self-defense would be through the Bush Doctrine/preemptive self-defense.  As argued above, pre-emptive self-defense is not part of well-accepted international law as of today, and the Soleimani strike is illegal under international law.

Domestic Law

Under United States’ law, the President can use force against another sovereign nation pursuant to his constitutional authority as Commander-in Chief, or pursuant to specific congressional authorization to use force.  Congress has not authorized the president to use force against Iran.  Congress did authorize the president to use force against those who planned the September 11 attacks in 2001 (2001 AUMF), as well as to use force against Iraq in 2002 (2002 AUMF).  It is very difficult to link Soleimani to Al Qaeda/Taliban terrorists who planned the 9/11 attacks.  It is equally difficult to claim that Soleimani was operating in Iraq, and that the strike against him would somehow support the U.S. troops present in Iraq pursuant to the 2002 AUMF. Thus, the 2001 and 2002 AUMFs did not authorize the president to use military force in this particular instance.  The relevant question therefore becomes whether the president had inherent constitutional authority to act.  Although considerable debate exists about the scope of presidential power regarding the use of military force without congressional authorization, the executive branch, through several Office of Legal Counsel memoranda, has argued that the president has the authority to use force when: 1) there is an important national security interest in doing so; and 2) the use of force falls short of “war” in the traditional sense.  The executive branch has thus advanced the view that “military operations will likely rise to the level of a war only when characterized by ‘prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.’” Pursuant to this view, the executive branch has opined that the U.S. military activities in Haiti in the 1990s, the military strikes in Libya in 2011, as well as in Syria in 2018, did not cross the “war” threshold.

Moreover, the War Powers Resolution of 1973 imposes an additional limitation on the president’s authority to conduct military operations without explicit congressional approval.  The War Powers Resolution specifies that the president may introduce U.S. armed forces into hostilities only if there is a 1) declaration of war; 2) specific statutory authorization; or 3) a national emergency created by an attack against the United States.  The War Powers Resolution also requires that relevant military operations be terminated after a defined period of time (60 days), unless Congress specifically authorizes further military action, as well as that the president report to Congress within 48 hours of engaging in hostilities.  In this instance, the Trump Administration has actually provided a classified report to Congress under the War Powers Resolution, two days after the drone strike which killed Soleimani.  As of now, the report is classified and it is impossible to know what type of rationale the administration has provided to Congress. Presumably, the Trump Administration believes that the strike falls within the War Powers Resolution limitations on presidential authority to conduct military attacks as the Administration has provided a post-strike report to Congress.

In light of the above, the strike against Soleimani would be legal under U.S. domestic law only if the strike was in the U.S. national security interest, if the strike did not constitute “war,” and if the strike did not lead U.S. troops into “hostilities” under the War Power Resolution.   It is debatable whether the strike was in the U.S. national security interest now – although many experts agree that Soleimani had been a threat to the United States, it is unclear if he was presently involved in planning attacks against the United States.  Moreover, it is uncertain whether the strike falls short of “war.”  In addition to the executive branch test mentioned above (“prolonged and sustained military operations”), Office of Legal Counsel memoranda have suggested that the use of force may constitute “war” if such force is used against another sovereign nation without such nation’s consent, and if there is a high likelihood of escalation.  In this instance, the relevant question to ask is whether the strike is likely to lead U.S. troops to enter prolonged and sustained military operations with a high likelihood of escalation (the strike was clearly conduct4ed without Iraq’s consent).  If the answer to this inquiry is positive, then the president’s action would be illegal under U.S. law.  Finally, it is unclear whether the military strike against Soleimani constitutes a “hostility” under the War Powers Resolution.  The Obama and the Trump administrations have taken the position that providing aerial refueling and intelligence support to the Saudi-led coalition in Yemen falls short of introducing U.S. troops into “hostilities.” It may be argued that the killing of another nation’s military leader is an action much more likely to lead U.S. troops to enter “hostilities” than an action conducted to provide aerial refueling or intelligence support.  In sum, it is debatable whether the military strike which killed Soleimani is legal under domestic law.  In order to reach this determination, one would have to conclude that the strike was in the U.S. national security interest, that it did not amount to war, and that it would not lead U.S. troops to enter into hostilities.  In light of the ongoing crisis with Iran, and the fact that Iran is state with a strong military, as well as with developing nuclear technology, it is likely that the strike will lead to an escalating military conflict.  Thus, it is more than reasonable to conclude that the strike was not conducted pursuant to domestic legal authority, because the president did not seek requisite congressional authorization and did not have inherent constitutional authority to act.

Policy

Finally, even assuming that the strike was lawful under international and domestic law, the strike did not amount to good policy.  First, the strike may portray the United States as a rogue actor in the Middle East, willing to carry out assassinations against those whom its perceives as enemies.  This image of the United States may limit its ability to build strategic alliances with other countries in the Middle East as well as with other global partners.  Second, the strike may provoke revenge and retaliation by Iran.  Iran could attack Americans in the Middle East, could pursue attacks or other aggressive actions against Israel, an important U.S. ally, and could act through various proxies to destabilize the Middle East.  Iran will likely  re-initiate its nuclear weapons development programs, as it has already announced that it is abandoning the Nuclear Agreement which it had signed with the United States and several European countries; this will pose an additional threat in the region.  Third, the strike has already caused a backlash from other countries and non-state/terrorist actors.  As mentioned above, the Iraqi Parliament has voted to expel U.S. troops from Iraq.  United Nations Secretary-General Antonio Guterres has expressed “deep concern” over the U.S. strike against Soleimani; Russia has condemned the strike, and several Americans were killed in a terrorist attack in Kenya.  Fourth, it is unclear how the strike furthers United States’ national security and foreign policy.  As mentioned above, there is no credible information to suggest that Soleimani was engaged in present-day terrorist activity against the United States, and his elimination does not protect the United States any further, nor does it advance any particular foreign policy in the Middle East.  In fact, the strike is likely to cause conflict in this already volatile region and to potentially drag the United States into another war.  In sum, the strike is illegal under international law, very likely illegal under domestic law, and definitely bad policy.

The Human Rights Council’s consideration of gender representation in UN treaty bodies and special mechanisms: Call to submit inputs for the report of the Advisory Committee on current levels of representation of women in human rights organs and mechanisms

On July 11, 2019, the Human Rights Council adopted Resolution A/HRC/41/L.6 on the “Elimination of all forms of discrimination against women and girls.” GQUAL, a global campaign to achieve gender parity in the composition of international tribunals and monitoring bodies, worked with the United Nations Working Group on Discrimination against Women (WG) and the Mission of Mexico in Geneva to develop language for this year’s Human Rights Council (HRC) resolution promoting gender balance in United Nations (UN) international bodies. GQUAL’s efforts were successfully translated in the Resolution which acknowledges for the first time that “women remain underrepresented … in United Nations bodies and mechanisms responsible for developing international human rights norms and standards and monitoring their implementation.”

Additionally, the Resolution calls upon States and encourages the UN and other international institutions to promote, inter alia, balanced gender representation in the membership of international bodies at all levels. In particular, the Resolution calls upon States to develop better procedures at the national level to take gender as a consideration for the appointment and election of candidates. Furthermore, it encourages States and the appropriate UN bodies, including the OHCHR, to deepen their efforts to promote women candidacies through the distribution of information on available vacancies, encouragement to women to put their names forward, and monitoring and reporting on progress in achieving balanced gender representation.

Furthermore, the Resolution instructs the HRC Advisory Committee to draft a report, in consultation with CEDAW and the WG, and including the input of States and other relevant stakeholders, to systematize good practices and recommendations for increasing gender representation in international bodies. As part of the first step towards the preparation of the report, the HRC Advisory Committee has posted a call for inputs and views, including a questionnaire on the issue for stakeholders to submit information.

The call for inputs and views, was released on September 12, 2019 and the deadline to submit is January 12, 2020. The questionnaire to facilitate the submission of inputs for the report is posted here.

Submissions and other information should be submitted to:

Secretariat of the Human Rights Council Advisory Committee
OHCHR – United Nations Office at Geneva
CH-1211 Geneva 10, Switzerland
E-mail: hrcadvisorycommittee@ohchr.org
Fax: +41 22 917 9011

The Resolution and the call for inputs and views by the HRC Advisory Committee provide a unique opportunity for civil society, academia and other interested parties, to submit information and proposals that contribute to improve selection procedures and to realize women’s right to equality in UN bodies.

Also, please contact the GQUAL Campaign should you have an interest in supporting this report at gqual@cejil.org