The press is announcing that war crimes suspect Radko Mladic has been arrested in Serbia. The president of Serbia has confirmed this information in a press conference. He claims that this "closes a chapter" in the history of Serbia and its cooperation with the ICTY (although he did mention that Hadzic is still out there). I think this is wishful thinking. Because 1) the turbulent history of the Balkans and Serbia's role in it will not just disappear with Mladic's rendition to the ICTY. There will be a long trial which will delay any closure for many years. and 2) is sending Mladic for trial in The Hague really the way to deal with the past? I know that the ICTY has primacy over the case, but if I were Serbia, I would actually fight that and request to try him, under international supervision, in Serbia. The trial would definitely have more meaning in my opinion.
It will also interesting to hear the world leaders praise the arrest and the fact that Maldic will be brought to justice... just weeks after they praised the killing of Bin Laden as "justice being done"...
Finally, it will of course be important to see the effect of the arrest on ongoing cases at the ICTY. Let's see Mladic, for example, prove that he is not the author of the diaries that were entered into evidence in a number of cases. Also, if I were Karadzic's counsel, I would request a suspension of his trial and a joinder of cases, given the JCE that is claimed against both of them. That would create quite a procedural mess...
Thursday, May 26, 2011
Tuesday, May 24, 2011
Follow-up post on Amnesties in Uruguay: when popular sovereignty defies human rights actvitists
I'll be posting in Libya in the coming days, but for now a short follow up on the Amnesty law in Uruguay
A while back, I posted on the Uruguay amnesty law which has been universally condemned by rights groups and, at the time, found unconstitutional. In March, the Inter-American Court of Human Rights apparently condemned the law as well and in April, the Uruguay senate voted to overturn the law.
Well, last week, a vote in the House of Representatives to repeal the law failed. Apparently, there is some support for that law in the country, which, as I mentioned in my initial post, was approved twice by referendum.
Whatever one thinks of the law itself, there is clearly a clash of logics here. On the one hand, the universalist approach to human rights and on the other, the question of popular sovereignty. Indeed, this law is clearly not being imposed from the top by a dictatorial regime. It is, as far as I can tell, a reasonably functioning democracy. This certainly raises the question of the limits of outside intervention when a population chooses a certain path for itself and I find it disturbing that, in an era where "local ownership" is the new catchphrase, human rights activists are so adamantly trying to force a certain mechanism on a country which so clearly does not want it.
A while back, I posted on the Uruguay amnesty law which has been universally condemned by rights groups and, at the time, found unconstitutional. In March, the Inter-American Court of Human Rights apparently condemned the law as well and in April, the Uruguay senate voted to overturn the law.
Well, last week, a vote in the House of Representatives to repeal the law failed. Apparently, there is some support for that law in the country, which, as I mentioned in my initial post, was approved twice by referendum.
Whatever one thinks of the law itself, there is clearly a clash of logics here. On the one hand, the universalist approach to human rights and on the other, the question of popular sovereignty. Indeed, this law is clearly not being imposed from the top by a dictatorial regime. It is, as far as I can tell, a reasonably functioning democracy. This certainly raises the question of the limits of outside intervention when a population chooses a certain path for itself and I find it disturbing that, in an era where "local ownership" is the new catchphrase, human rights activists are so adamantly trying to force a certain mechanism on a country which so clearly does not want it.
Monday, May 23, 2011
International Law Reporter is back!
I have been frustratingly unable to blog in recent weeks, despite some nice topics to cover (most notably at the ICC). I hope I can rejoin the world of blogging soon, when the workload relents...
In the meantime, a short announcement. The International Law Reporter, a invaluable source of information on recent publications for many years, had announced that it was shutting down last February. Apparently, Jacob Katz, probably by popular demand, has changed his mind, and the blog has resumed work this week.
Let's hope it lasts!
In the meantime, a short announcement. The International Law Reporter, a invaluable source of information on recent publications for many years, had announced that it was shutting down last February. Apparently, Jacob Katz, probably by popular demand, has changed his mind, and the blog has resumed work this week.
Let's hope it lasts!
Friday, May 13, 2011
new Article on Kosovo Advisory Opinion: searching for the responsibility of the UN and Kosovo
Regular readers of this blog will know that I was critical of the ICJ's advisory opinion as soon as it was released last July. I criticized it in a live blogging session from the ICJ on the day it was issued, and in subsequent posts, both here and on the Hague Justice Portal.
In an article just published in the Leiden Journal of International Law by myself and Yannick Radi, we explore more systematically and systemically the flaws of the opinion, considering that most of the difficulties that arise stem from the fact that the ICJ accepted to answer a question relating to non-State entities, i.e, the authors of the declaration of independence, rather than its core ratione personae jurisdiction, that are States and the UN.
You can follow the full extent of our reasoning in the article, and, for those who have a little less patience, the summary that we published on EJIL Talk!.
For those who have even less patience, one of the core arguments we make is that the acts of the Kosovo assembly, as established under the authority of the UNSC, can be attributed under international law to the UN, thus raising the rather interesting question of whether the UN can unilaterally declare the independence of a State. Pushing the logic even further, we argue that the ICJ implicitly recognises a new legal entity, Kosovo, to which the declaration could be alternatively attributed. I won't elaborate here, and let you read the article to see how we pulled this one off!
In an article just published in the Leiden Journal of International Law by myself and Yannick Radi, we explore more systematically and systemically the flaws of the opinion, considering that most of the difficulties that arise stem from the fact that the ICJ accepted to answer a question relating to non-State entities, i.e, the authors of the declaration of independence, rather than its core ratione personae jurisdiction, that are States and the UN.
You can follow the full extent of our reasoning in the article, and, for those who have a little less patience, the summary that we published on EJIL Talk!.
For those who have even less patience, one of the core arguments we make is that the acts of the Kosovo assembly, as established under the authority of the UNSC, can be attributed under international law to the UN, thus raising the rather interesting question of whether the UN can unilaterally declare the independence of a State. Pushing the logic even further, we argue that the ICJ implicitly recognises a new legal entity, Kosovo, to which the declaration could be alternatively attributed. I won't elaborate here, and let you read the article to see how we pulled this one off!
Wednesday, May 4, 2011
The Astonishing Defense of Bin Laden's Death by the Security Council
Cross-posted on the Invisible College
I won't retrace and repeat the numerous online discussions on the general question of the legality of Bin Laden's killing. You can find some thoughts on various blogs, such as EJIL Talk!, over at Lawfare, Opinio Juris and Justice in Conflict.
One issue which has not been put forward in what I've read is whether UN Security Council Resolutions could be a basis for the legality of the killing. Indeed, discussing the issue with a colleague this afternoon, we wondered whether some UNSC Res, adopted under Chapter VII could be used to justify the killing. It might seem a little far fetched, because, although Res. 1368 implicitly approved the use of force as part of the right to self-defense after the 9/11 attacks, all Resolutions I've seen in relation to Bin Laden or Al Qaeda take measures to freeze assets and call for combating terrorism, but don't explicitly allow the killing of an individual. But it is true that these Resolutions do clearly recognize the organisation and its leader as threats to peace and security and could be loosely interpreted as allowing to take these measures to stop this threat. But all in all, I didn't believe that this argument was really valid and that the SC had ever had the intention to authorize such actions...
...And then tonight, I saw this astonishing statement from the President of the Security Council, made on behalf of the Council. Here are some notable excerpts from the statement:
So, reading these paragraphs together in plain English, and if I'm not mistaken, 1) the Security Council approves the death of Bin Laden 2) considers that his death fits the definition of "bringing someone to justice" and "holding him accountable" and 3) considers that his death complies with international law.
Let's put aside the questionable fact that the SC would explicitly approve the death of an individual, even Ben Laden, and the question of the conformity with International Law, which is nonetheless interesting coming from the main executive organ of the United Nations. What strikes me is proposal number 2. How can a body, which has repeatedly called for the promotion of international criminal justice, and the values of the rule of law and due process that underly it, seriously make such a statement? If that is the definition of accountability, surely we can free some office space in The Hague and just close down the ICC, the ICTY, the Special Court for Sierra Leone and the Special Tribunal for Lebanon. All we need is a naked wall, a blindfold and a firing squad. While we're at it, we might as well abolish our national criminal law systems. To be clear, I'm not saying that Ben Laden should not have been killed. I'm well aware of the realities of politics. I'm just denouncing the hypocrisy of defending values and then approving actions that run counter to them in the same breath. If you believe in the rule of law and due process, then you cannot approve the killing of Ben Laden, however politically or logistically justified it may be.
I won't retrace and repeat the numerous online discussions on the general question of the legality of Bin Laden's killing. You can find some thoughts on various blogs, such as EJIL Talk!, over at Lawfare, Opinio Juris and Justice in Conflict.
One issue which has not been put forward in what I've read is whether UN Security Council Resolutions could be a basis for the legality of the killing. Indeed, discussing the issue with a colleague this afternoon, we wondered whether some UNSC Res, adopted under Chapter VII could be used to justify the killing. It might seem a little far fetched, because, although Res. 1368 implicitly approved the use of force as part of the right to self-defense after the 9/11 attacks, all Resolutions I've seen in relation to Bin Laden or Al Qaeda take measures to freeze assets and call for combating terrorism, but don't explicitly allow the killing of an individual. But it is true that these Resolutions do clearly recognize the organisation and its leader as threats to peace and security and could be loosely interpreted as allowing to take these measures to stop this threat. But all in all, I didn't believe that this argument was really valid and that the SC had ever had the intention to authorize such actions...
...And then tonight, I saw this astonishing statement from the President of the Security Council, made on behalf of the Council. Here are some notable excerpts from the statement:
“In this regard, the Security Council welcomes the news on 1 May 2011 that Osama bin Laden will never again be able to perpetrate such acts of terrorism, and reaffirms that terrorism cannot and should not be associated with any religion, nationality, civilization or group.
...
“The Security Council further reaffirms its call on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of terrorist attacks and its determination that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable."
...
“The Security Council reaffirms that Member States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law."
So, reading these paragraphs together in plain English, and if I'm not mistaken, 1) the Security Council approves the death of Bin Laden 2) considers that his death fits the definition of "bringing someone to justice" and "holding him accountable" and 3) considers that his death complies with international law.
Let's put aside the questionable fact that the SC would explicitly approve the death of an individual, even Ben Laden, and the question of the conformity with International Law, which is nonetheless interesting coming from the main executive organ of the United Nations. What strikes me is proposal number 2. How can a body, which has repeatedly called for the promotion of international criminal justice, and the values of the rule of law and due process that underly it, seriously make such a statement? If that is the definition of accountability, surely we can free some office space in The Hague and just close down the ICC, the ICTY, the Special Court for Sierra Leone and the Special Tribunal for Lebanon. All we need is a naked wall, a blindfold and a firing squad. While we're at it, we might as well abolish our national criminal law systems. To be clear, I'm not saying that Ben Laden should not have been killed. I'm well aware of the realities of politics. I'm just denouncing the hypocrisy of defending values and then approving actions that run counter to them in the same breath. If you believe in the rule of law and due process, then you cannot approve the killing of Ben Laden, however politically or logistically justified it may be.
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