Sudan’s President and ICC’s Most Wanted to Visit Uganda?

Posted on May 11, 2011 by Mark Kersten
al-Bashir Uganda

Reports suggest that Omar al-Bashir will visit Uganda on May 12th (Photo: The Guardian)

UPDATED: Sudanese President Omar al-Bashir will not be in Kampalafor Ugandan President Yoweri Museveni’s presidential swearing in. According to Sudan’s Foreign Ministry, a senior advisor to al-Bashir will be sent instead “due to precommitments” of the President (probably a precommitment to not being arrested!). A Ugandan government spokesperson has now said the invitation was given to Bashir in accordance with regional and diplomatic protocol: “President Bashir was invited as our neighbor. But I think it is up to him to decide whether to come or not. In any case, he is free to delegate [somebody else].” 

I have chosen to leave the post as is. Most of it remains pertinent; the post mostly considers the implications of Uganda’s invitation rather than the possibility of al-Bashir visiting Kampala. This is a small but important victory for rights groups which reacted sharply against al-Bashir’s possible visit. Nevertheless, questions still remain as to why al-Bashir was invited by Museveni and about the wider implications of African-ICC relations. 

It has become a regular occasion that the human rights community gasps at the news that Sudanese President, Omar al-Bashir, gets invited to yet another country and yet another state party of the International Criminal Court. It has become an uncomfortable ritual that defies international criminal justice.

The international community’s outrage will be a little bit louder and their exasperation a bit deeper if, as reports suggest, al-Bashir visits Uganda, a key supporter of the ICC.

It has been a tough week for international criminal justice. Whichever way the cookie crumbles, the assassination of Osama bin Laden wasn’t a good thing for international criminal law. Egypt, in a rather schizophrenic moment, released two statements in one day: the first saying they would join the ICC and another defying the Court by saying it would not arrest President al-Bashir if he visited. This week, al-Bashir visited yet another ICC member-state, Djibouti for the swearing in of President Ismail Omar Guelleh (al-Bashir has also visited two other member-states: Kenya and Chad).

Now Yoweri Museveni, the President of Uganda, has invited al-Bashir to attend his Presidential swearing in set to take place May 12th in Kampala. According to reports, al-Bashir has not confirmed whether he will attend.

Ugandan President Yoweri Museveni has been a key supporter of the ICC (Photo: AFP)

This will come as a surprise, if not a shock, to many observers. First, Uganda has been one of the most enthusiastic supporters of the ICC. It referred the conflict in Northern Uganda between the government and the Lord’s Resistance Army to the Court in 2003. Last summer, Uganda hosted the Kampala Review Conference on the ICC. The ICC even has an office in Kampala.

Second, Uganda has not been in line with other African states in refusing to cooperate with the ICC on detaining al-Bashir. A significant group of African Union (AU) member-states have expressed their vehement opposition to the ICC’s intervention in Darfur and its arrest warrant against al-Bashir.  Uganda has previously said that it would arrest al-Bashir should he visit. On more than one occasion, al-Bashir has decided against visiting Uganda for conferences, presumably for fear of being detained. The relationship between Kampala and Khartoum has often been strained with allegations that both have supported each other’s enemies.

Given the above, why would Museveni invite al-Bashir? It is unclear what his intentions are but it is possible that his decision is in response to the ICC sending a team to monitor the government’s responses to ongoing protests in the country. According to one report, an anonymous source recently said:

“They [the ICC monitors] are here. They are watching this. Don’t forget that the ICC has never closed the northern Uganda file. And now this is happening; Museveni is still being watched.”

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Posted in African Union (AU), Djibouti, Egypt, International Criminal Court (ICC), Sudan, Uganda | Leave a comment

Obama to those Questioning bin Laden Assassination: “Get your head examined”

Posted on May 11, 2011 by Mark Kersten

Earlier this week, President Obama had an interview with CBS’s 60 Minutes. In it, Obama was rather candid about the developments that led to Osama bin Laden’s assassination. The President spoke openly about the dissent among his advisors about the plan to kill bin Laden. He says that the division of opinions amongst those around him was critically important in fleshing out all possible scenarios. Indeed, he says that differences in opinion are important, welcome, and make better policy.

At the end of the interview, however, Obama did something spectacularly hypocritical. Just minutes after acknowledging the importance of diversity of opinions he says:

“Justice was done and I think that anyone who would question that the perpetrator of mass murder on American soil didn’t deserve what he got, needs to get their head examined.”

Say what? Was that George W. Bush speaking? It sure sounds like it.

How is difference in opinion about the mission valuable, but the diversity of opinion about the justness of assassinating bin Laden the result of mental instability?

It’s not. Those who are uncomfortable with, or skeptical of, the legality, justice and legitimacy of killing bin Laden aren’t “crazy”. They have legitimate concerns.

Once more, the discussion that has proliferated about whether assassinations and target killings, like that of bin Laden, are just and legal is critically important. The skepticism of scholars, every-day observers, religious figures, politicians etc. has created a healthy debate. Simply discarding the views of all those who dissented with the US decision on killing bin Laden as being mentally ill is more 1984 than 2011. It is worth adding that it is the fumbled recanting of facts regarding the mission to kill bin Laden that has fueled much of the criticism.

It is a sad day, when freedom of expression is actively being quashed in places like Syria, Libya, Bahrain, that the President of the US equates “anyone who questions” his decision with suffering mental illness.

You would think, and indeed hope, that a President who has worked hard to foster the diversity of views in his country and around the world, would understand the importance of debating and discussing issues as important as the justice of target killings. You’d also think, as a former professor of constitutional law, Obama would be more careful with his words.

Here’s the last third of the video. Obama’s remarks come at the very end of the interview:

Posted in Osama bin Laden, Osama bin Laden and international law, United States | 9 Comments

Killing bin Laden: Justice, International Law and Legitimacy – A Compilation of Perspectives

Posted on May 7, 2011 by Mark Kersten

The debate regarding the legality, justness and legitimacy of killing bin Laden continues. I figured it may be beneficial to create a post where some of the most sophisticated and fascinating perspectives on these subjects could be compiled. Keep in mind, this isn’t an exhaustive list. I will continue to add to it and opinions are certain to be revised as more facts emerge. Please feel free to send along any pieces you find particularly salient.

The debate thus far has been remarkably vibrant and, in my view, healthy. Talking about bin Laden’s death matters. It is a fundamentally good thing that we are having a global discourse on the parameters of legality and justice. As I argued before, the debate about justice and law instigated by bin Laden’s assassination has the potential to be the most important and fruitful consequence of his death. Hopefully this can act as a valuable and useful resource for those interested in the myriad of perspectives on the subject.

On the Hypothetical Trial of bin Laden

Obama on bringing Osama bin Laden to justice from 2008:

“[Obama] said he wouldn’t discuss what approach he would take to bring bin Laden to justice if he were apprehended. But he said the Nuremberg trials for the prosecution of Nazi leaders are an inspiration because the victors acted to advance universal principles and set a tone for the creation of an international order.”

Apparently, during his 2008 Presidential campaign, Obama vowed :

“We will kill bin Laden. We will crush al-Qaida. That has to be our biggest national security priority.”

Last year, Eric Holder Jr., the US Attorney General, declared that bin Laden:

“will never appear in an American courtroom…Let’s deal with the reality here. The reality is, we will be reading Miranda rights to a corpse.”

On Holder’s views at the time, also see this article from MSNBC: Holder – Bin Laden will Never Face US Trial.

In a post very similar to one posted here on the hypothetical trial of bin Laden, legal analyst Jeffrey Toobin has just published an article for CNN: 5 Hurdles if bin Laden had been taken alive. Holder focuses on five potential problems had bin Laden been put on trial: whether he would have been tried at a military or civilian court; where he would have been tried; whether bin Laden would have been granted access to US intelligence materials during the course of the trial; whether anyone would have defended him (I believe he wouldn’t have had a problem getting a defense team); and what would have been done with bin Laden’s body if, as Toobin predicts, he would have received the death penalty.

Jon Silverman also considers the challenges of holding a trial from a skeptical angle. Silverman’s analysis is particularly interesting in his use of past trials and the record of current tribunals.

Drawing on the precedence of Saddam Hussein’s capture and trial, Robert Fisk weighs in arguing that the political consequences of putting bin Laden on trial weren’t worth it. Oddly and without clarification, Fisk also calls international criminal law and process the justice of “old days”:

“Of course, there is one more obvious question unanswered: couldn’t they have captured Bin Laden? Didn’t the CIA or the Navy Seals or the US Special Forces or whatever American outfit killed him have the means to throw a net over the tiger? “Justice,” Barack Obama called his death. In the old days, of course, “justice” meant due process, a court, a hearing, a defence, a trial. Like the sons of Saddam, Bin Laden was gunned down. Sure, he never wanted to be taken alive – and there were buckets of blood in the room in which he died.

But a court would have worried more people than Bin Laden. After all, he might have talked about his contacts with the CIA during the Soviet occupation of Afghanistan, or about his cosy meetings in Islamabad with Prince Turki, Saudi Arabia’s head of intelligence. Just as Saddam – who was tried for the murder of a mere 153 people rather than thousands of gassed Kurds – was hanged before he had the chance to tell us about the gas components that came from America, his friendship with Donald Rumsfeld, the US military assistance he received when he invaded Iran in 1980.”

In a similar vein, Michael White writes in The Guardian that a trial of bin Laden would have been “easier said than done.”

Over at Foreign Policy, Joshua Keating notes that:

“There’s not likely to be too much of an outcry over the decision to kill bin Laden rather than take him alive — for one thing, we’ve avoided what would surely have been a massively controversial trial. But this question isn’t going away.”

For other challenges a trial would have incurred, check out this post.

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Posted in Middle East, Osama bin Laden, Osama bin Laden and international law, Terrorism, UN Security Council, United States | 6 Comments

The UN Security Council and the ICC: Between a Rock and a Hard Place

Posted on May 6, 2011 by Mark Kersten
UN Security Council referral of Libya to the ICC

What are the costs of the UN Security Council referring situations to the ICC?

What are the implications of the UN Security Council referring situations to the International Criminal Court? Judging by most accounts of UN Security Council referrals of the situations in both Darfur and recently Libya to the ICC, referrals are a cause for celebration. This post suggests that contrary to this view of referrals as fundamentally good, they may be the best option but one with high costs for international criminal justice.

Previous posts have considered some of the problems of referrals including the inclusion of certain provisions – the immunity of individuals from non-member states, the limits set by the Security Council on the temporal jurisdiction, the possible “outsourcing” of peace by the Security Council to the ICC, etc. But what about the costs of referrals on the quality and legitimacy of international criminal justice?

It bears remembering that, during the Rome negotiations to establish the ICC in 1998, the most fervent state and civil society advocates in favour of creating the Court sought to ensure that the ICC would be independent from the power-politics of the UN Security Council. A compromise was reached which gave the Court’s Prosecutor three avenues of initiating an investigation: by state referral, proprio motu (through the Prosecutor’s own volition) and by UN Security Council referral.

For some, this was no doubt a costly compromise. The most keen states and human rights organizations argued that a separation of politics and justice was necessary if pursuing justice was to be legitimate and that tethering the justice of the Court to the politics of the Council would politicize the ICC.

In a recent post at Radio Netherlands Worldwide, Geraldine Coughlan noted that:

“The so-called Trias Politica – the separation of power between politicians and the judiciary – is more absent than present in international criminal law.”

Justice Louise Arbour

Louise Arbour recently noted that UN Security Council referrals to the ICC may not be in the interests of justice (Photo: Andrew Winning/Reuters)

In a recent speech in London, Louise Arbour, the former chief Prosecutor for the ICTY and the ICTR, similarly acknowledged:

“…international criminal justice cannot be sheltered from political considerations when they are administered by the quintessential political body: the Security Council. I have long advocated a separation of the justice and political agendas, and would prefer to see an ICC that had no connection to the Security Council. But this is neither the case nor the trend.”

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Posted in International Criminal Court (ICC), Libya, Libya and the ICC, Sudan, Transitional Justice, UN Security Council | 5 Comments

The Justice and Legality of bin Laden’s Assassination: Is What is Legal Necessarily Just?

Posted on May 5, 2011 by Mark Kersten
Obama on Osama

Ever since President Obama said that "justice had been done" and Osama bin Laden had been killed, a debate about the legality and justice of bin Laden's death has raged

The debate rages on: was the assassination of bin Laden the right thing to do? What is it the legal thing to do? Was it “justice”?

In my assessment, the vast majority of the debate regarding the assassination of bin Laden has focused on its legality, whether his killing was legal under International Human Rights Law, International Humanitarian Law, US domestic law, and whether or not the US impinged on Pakistan’s sovereign territory.

The questions surrounding the lawfulness are critical, especially as the US administration backpedals their earlier statements sequence of events that led to bin Laden’s death. However, it is important to remember that what is legal not necessarily equals what is just. Justice requires more than law. It requires that acts are morally and ethically justifiable.

It would be a fair and persuasive argument that the most remarkable trend of the last century has been the legalization of international politics. The legalization of international relations began with the liberal internationalists and was propelled onto the political scene following WWI, with the leadership of US President Woodrow Wilson. Wilson envisioned the replacement of “entangling alliances, secret diplomacy, and attempts to maintain balances of power,” with “open diplomacy, democratically controlled and a concert of power instead of rival balances of power.” That concert was the League of Nations, in Wilson’s words, “the most essential part of the [post-WWI] peace settlement itself.” The League would be the penultimate institution which would guarantee the primacy of international rule of law: “What we seek is the reign of law, based upon the consent of the governed and sustained by the organized opinion of mankind.”

Was the assassination of Osama bin Laden just? Was it legal?

Since Wilson, virtually all major developments in international relations have had links to international law: the United Nations, which is considered, by many, to be the ultimate institution responsible for guaranteeing the law of states and peoples; the human rights regime which would be impotent without legal grounding; the legal arbitration of the World Trade Organization; the evolution of international criminal law, culminating with the permanent international criminal court; and, most recently, the criminalization of aggression.

The result has been that our views of what is just is increasingly conflated with what is legal. The very purpose of legalizing international politics is to establish a universal and codified consensus about what justice and morality is, represented within the strictures of international law.

There are numerous problems with this, not the least of which is the reality that different streams of international law may have different interpretations of the legality of any particular act. Of course, it also assumes that reaching the codified consensus is possible and a fundamentally good thing. More broadly, the conflation of justice with law may obscure important questions about the nature of particular acts. The bin Laden assassination is a perfect example.

As it stands, the question of the legality of the US’s killing of bin Laden seems destined to live within the grey zones of law. Some will argue it was absolutely legal, others that it was not. Still others, will argue that regardless of its legality, bin Laden should have been tried. But what about whether it was just?

There are five possible positions regarding the killing of bin Laden:

Woodrow Wilson was an early advocate of regulating international relations through international law

1) It was both legal and just: either killing bin Laden was a legal action and because it was legal it must be just, or it was a legal action and also happens to have been a just action, relying on the moral calculus that killing some people is ethically sound. Either way, this seems to be the implicit belief of observers who have written that bin Laden’s assassination was legally permissible.

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Posted in Justice, Osama bin Laden, Osama bin Laden and international law | 1 Comment

Bin Laden and International Law: Death or Trial?

Posted on May 3, 2011 by Mark Kersten

US officials including President Obama, VP Joe Biden, Secretary of State Hilary Clinton and Secretary of Defense Robert Gates watch as the bin Laden mission unfolds. The mission was to kill bin Laden, not to capture him.

A debate regarding the legality of killing Osama bin Laden is raging across the internet. Everyone wants to know: was the assassination of bin Laden in accordance with international law? Yesterday, I weighed in on the broader question of whether it was in fact an act of “justice” to kill bin Laden.

It strikes me that if assassinating bin Laden was, in fact, illegal (note there is no consensus on this question), then the prescription that follows would be that the US should have captured, detained and subsequently tried bin Laden for violations of international law.

Lindsay Beyerstein sums up the views of those uncomfortable with the assassination who would have prefered that bin Laden had been brought to trial:

I see his killing as a lost opportunity to capture and try him…Americans have just decided that it’s okay to kill suspects without trial if it seems obvious enough that they’re guilty of terrorism.

This post is an attempt to think through the kinds of issues that a trial of bin Laden would encounter. While there is no doubt an argument that putting bin Laden on trial would better serve the interests of justice than his assassination, it is not entirely clear just how “just” such a trial would be. Human rights expert, Joe Hoover, for example, commented that there is a need to be skeptical about what trials of this nature can offer:

“trials, especially international ones, are political acts and the desire to legalise the act of holding to account, of delivering justice, is hardly innocent or unproblematic.”

In what ways would a trial be problematic? I suggest four major challenges that a trial of bin Laden would have had: its fundamentally political (rather than impartial, judicial) nature, the question of where his trial would have taken place, which crimes would have been adjudicated, and, more practically, the cost of trying him. In the end, the debate about justice that has been instigated by bin Laden’s death is critically important for how we conceive of justice and the legitimacy and appropriateness of future action against individuals like bin Laden.

Politics of Law

Would bin Laden have received a fair trial? If justice was to be served and achieved by a trial, impartiality would have been absolutely necessary.

Greg Barns, a former Australian MP, writes that, if the leader of al-Qaeda had been put in front of a tribunal,

“Bin Laden could then have been tried according to law and given all the resources that every human being is entitled to in defending themselves against criminal charges.”

It isn’t entirely clear, however, that bin Laden would have been given all those resources. For example, individuals being prosecuted are granted the benefit of the doubt: they are assumed innocent until proven guilty. I don’t think it is controversial to maintain that bin Laden would have undoubtedly been presumed guilty. In 2001, when the Taliban offered to hand over bin Laden to a third country for trial, President Bush replied:

“When I said no negotiations I meant no negotiations…We know he’s guilty. Turn him over. There’s no need to discuss innocence or guilt.”

While bin Laden’s responsibility in terrorist attacks is clear, even by bin Laden’s own admission, with regards to the standards of international criminal law, he would have had to be presumed innocent nonetheless.

Time magazine cover bin laden

The upcoming cover of Time Magazine

There would also have been the risk that bin Laden’s trial might have become a show trial, intended to illustrate the moral superiority of America rather than guarantee an even-handed, fair judicial prosecution. It is entirely possible, given the precedence of past high-profile cases, that bin Laden himself would have used a trial as a pulpit to spread propaganda.

In this context, it’s not obvious that bin Laden would have received a fair defense. Would the US be have been willing to hand over evidence against him as well as the names of witnesses who would have testified against him? If the trial were to be fair, they would have had to.

One problem that bin Laden may not have had is with finding legal representation. While some have suggested that bin Laden would have had a difficult time finding representation, this seems very unlikely. There is no shortage of lawyers who would dream to make their career defending individuals like bin Laden. A lawyer like Jacques Verges would seem a logical candidate. Dubbed the “Devil’s Advocate”, Verges has represented the likes of Slobodan Milosevic, Carlos the Jackal and Klaus Barbie.

Where would he have been tried?

Yesterday, Jan Triska commented that:

“the…big unspoken issue here, as well: whether bin Laden or even one of his lieutenants could have ever received a fair trial, anywhere”

Triska is right to point out that it remains unclear where bin Laden would have been tried. The initial presumption may have been that bin Laden would be tried in the US. If bin Laden had, however, been brought to Guantanamo first, a very possible scenario, he would be unable to be tried in the US, as Congress has virtually barred any Gitmo detainees from having trials on US soil.

Even if he had not been transferred to Gitmo, there has been little to suggest an appetite for a trial of bin Laden in the US. Last year, Eric Holder Jr., the US Attorney General, declared that bin Laden:

“will never appear in an American courtroom…Let’s deal with the reality here. The reality is, we will be reading Miranda rights to a corpse.”

It also seems unlikely that bin Laden could have been tried at the ICC. The ICC does not have jurisdiction over the events of 9/11 as they occurred prior to the Court’s creation in 2002. It also does not have jurisdiction of bin Laden’s prior terrorist attacks.

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Posted in Afghanistan, International Criminal Court (ICC), Iraq, Osama bin Laden and international law, Terrorism, United States | 6 Comments

The “Justice” of Killing bin Laden and What it Means for Gaddafi

Posted on May 2, 2011 by Mark Kersten
bin laden dead

Last night, US President Obama announced that a US special mission had killed Osama bin Laden. Many had described bin Laden's death as "justice" (Photo: AP)

Last night, President Barack Obama announced to eager audiences around the world that America’s most wanted man, Osama bin Laden, had been assassinated. Obama described bin Laden’s death by declaring that “justice has been done.” People around the globe are echoing this sentiment – that bin Laden’s death amounts to “justice”.

Looking at my twitter feed and facebook page, dozens of people are  invoking the same notion of justice in bin Laden’s death. Leaders and former leaders around the world have also expressed their views:

George W Bush: “The fight against terror goes on, but tonight America has sent an unmistakable message: No matter how long it takes, justice will be done.”

Tony Blair: “The operation shows those who commit acts of terror against the innocent will be brought to justice, however long it takes”

Canadian PM Stephen Harper “death of Osama bin Laden…secures a measure of justice.”

Kenyan President Mwai Kibaki: The killing of Osama Bin Laden is an “act of justice” for the victims of the 1998 bombings at the US embassy

Executive director of the 9/11 Commission, Philip Zelikkow: “We take a great deal of satisfaction in the news that Bin Laden has been brought to justice.”

Former US Vice President Dick Cheney: “bin Laden has been brought to justice…Today, the message our forces have sent is clear — if you attack the United States, we will find you and bring you to justice.”

Blair and Bush

Both former Bush and Blair called the death of bin Laden "justice" (Photo: PA)

But is bin Laden’s death really “justice”? Can killing someone ever be justice? If so, what type of justice is it? If it is just to assassinate bin Laden, who will surely go down as one of history’s most brutal antagonists, shouldn’t that mean that killing Gaddafi amounts to “justice” as well?

First, it is important to note that the legality of assassinating bin Laden rests on shaky grounds, at best. The US justifies killing members of al Qaeda by virtue of being at “war” with terrorism and thus considering al Qaeda operatives as “enemy combatants”. Nevertheless, the legality of targeting individuals with extra-judicial assassinations under international law is precarious. The US has recognized this fact in the past.

Of course, this is not to say that justice equates with what is legal or that what is legal equals what is moral. In 1964, Judith Shklar, warned us of the dangers of legalism, conflating morality with law which risked neglecting or obscuring context.

The instinct of those celebrating bin Laden’s death is that some things, or better some people, are so exceptionally bad that they make law irrelevant. The legality of killing bin Laden doesn’t really matter, it is the “right thing to do” and therefore constitutes “justice”.

Justice is more complicated than it is simple. Justice may be retributive, restorative, distributive, or procedural. For some, justice is primarily moral, for others it is legal, and for others still it is emotional. For many it is all of the above and there may be no difference between the moral, legal and emotional arguments for what is just.

Photo: Reuters/Chip East

If the “justice” of bin Laden’s death cannot be supported by international law, what kind of justice is it? What people appear to be invoking is a sense of physical, non-legal retributive justice: the killing of bin Laden is his due punishment. The extermination of his life avenges the lives he extinguished. And it must be reiterated, that this was always about killing bin Laden. The US special operations mission was to kill bin Laden, not to capture him.

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Posted in Afghanistan, International Criminal Court (ICC), Libya, Libya and the ICC, Middle East, Osama bin Laden, Pakistan, Terrorism | 11 Comments

No Joke: States Praised Libya’s Human Rights Record in 2010 UN Report

Posted on April 28, 2011 by Mark Kersten
Universal Periodic Review

In November, 2010, Libya was the topic of the UN Human Rights Council's Universal Periodic Review

Last night, I attended a lecture by Louise Arbour, the former Chief Prosecutor at the ICTY and ICTR, former UN High Commissioner for Human Rights, and former Supreme Court Justice in Canada. Arbour reminded the audience of something that piqued my interest: In November 2010, just a few scant months before Libya dissolved into chaos, the UN Human Rights Commission’s Universal Periodic Review looked into the state of human rights in Libya. Considering the violence and human rights abuses in Libya since February, the Council’s findings and the opinions of states responding to the Review’s findings are astonishing.

I have had the chance to go through the Report and highlight some of the most interesting findings, declarations by the Libyan declaration regarding its human rights records, and the responses of states below. Note that this is not an exhaustive list and that the sections below were taken directly from the UNHRC’s Report.

What becomes readily apparent is the extent to which no states believed that a spiral of brutal repression in Libya was on the horizon. This is not to apportion blame on them for not predicting the upheavals in the Arab world. Few, if any, observers predicted the extent and reach of the ‘Arab Spring’, much less the brutality with which democratic movements would be met.

Yet it remains remarkable that, with the exception of a handful of states, virtually all participating nations, democratic and autocratic, expressed some level of praise for human rights standards and improvements in Libya. It is worthwhile asking whether the encouragement expressed by Western states, in particular, with regards to Libya’s human rights standards was part of a broader strategy of engaging with Libya and recognizing Gaddafi’s regime as legitimate.

Libya’s Presentation to the Council:

The Libyan Arab Jamahiriya believed that the promotion and protection of human rights was one of the most important factors for the progress and development of the people…

The Libyan Arab Jamahiriya was party to most human rights treaties and the protocols thereto, and those instruments took precedence over national laws and could be directly applied by the courts once they had been ratified…

The delegation noted that all rights and freedoms were contained in a coherent, consolidated legal framework. The legal guarantees formed the basis for protection of the basic rights of the people. Further, abuses that might occur were dealt with by the judiciary, and the perpetrators were brought before justice. The judiciary safeguarded the rights of individuals and was assisted by other entities, most importantly the Office of the Public Prosecutor…

Protection of human rights was guaranteed in the Libyan Arab Jamahiriya; this included not only political rights, but also economic, social and cultural rights. The Libyan Arab Jamahiriya referred to its pioneering experience in the field of wealth distribution and labour rights…

The delegation indicated that women were highly regarded in the Libyan Arab Jamahiriya, and their rights were guaranteed by all laws and legislation. Discriminatory laws had been revoked…

The Libyan Arab Jamahiriya believed that human rights education was a duty that should be fulfilled in the school system and the family system and by relevant civil society organizations…

The Libyan Arab Jamahiriya noted that laws safeguarded freedom of expression through principles enshrined in the Great Green Document. Article 5 promoted the right of expression of every person.

rebels in Libya

It remarkable to think now, with fighting ongoing in Libya, that states, both democratic and autocratic expressed praise for Libyan human rights standards (Photo: Yuri Kozyrev)

State Responses

Qatar praised the legal framework for the protection of human rights and freedoms, including, inter alia, its criminal code and criminal procedure law, which provided legal guarantees for the implementation of those rights.

The Syrian Arab Republic praised the Libyan Arab Jamahiriya for its serious commitment to and interaction with the Human Rights Council and its mechanisms. It commended the country for its democratic regime based on promoting the people’s authority through the holding of public conferences, which enhanced development and respect for human rights, while respecting cultural and religions traditions.

The Democratic People’s Republic of Korea praised the Libyan Arab Jamahiriya for its achievements in the protection of human rights, especially in the field of economic and social rights, including income augmentation, social care, a free education system, increased delivery of health-care services, care for people with disabilities, and efforts to empower women.

Egypt commended the Libyan Arab Jamahiriya for progress in building a comprehensive national human rights framework of institutions and in drafting legislation and supporting its human resources in that area.

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Posted in Human Rights, Libya, Universal Periodic Review (UPR) | 6 Comments

France and Italy Call for Closed EU Border: An Abrogration of Moral Responsibility

Posted on April 28, 2011 by Mark Kersten
Tunisian refugees

Thousands of migrants from North Africa have fled to Europe following the ‘Arab Spring’. Tunisian migrants in Paris (Photo: AP)

Readers of Justice in Conflict will know that the posts rarely, if ever, step out of the bounds of issues concerning transitional justice and conflict resolution. Sometimes, however, issues that aren’t directly related to either are so morally outrageous that they spur my eager fingers to type. The joint announcement by French President Nicolas Sarkozy and embattled Italian Prime Minister, Silvio Berlusconi that the EU’s borders should be closed because of the “emergency” in the Arab world is one of those issues. My apologies if some of what follows sounds exasperated and overly polemical.

From The Guardian:

“France and Italy have thrown down the gauntlet over Europe’s system of passport-free travel, saying a crisis of immigration sparked by the Arab spring was calling into question the borderless regime enjoyed by more than 400 million people in 25 countries.

Challenging one of the biggest achievements of European integration of recent decades, Nicolas Sarkozy and Silvio Berlusconi also launched a joint effort to stem immigration and demanded European deportation pacts with the countries of revolutionary north Africa to send new arrivals packing.”

According to reports, some 25,000 migrants have arrived in Italy since the beginning of the so-called ‘Arab Spring’. France and Italy have recently been feuding over the fate of the migrants, with French officials fuming over the issuance of visas in Italy to migrants, thus allowing them to travel freely within most of the EU. France responded by issuing border controls and stopping trains carrying Tunisian migrants. This week, they agreed on a joint policy to pressure the EU to severely restrict immigration into the Schengen area. It is up to the EU Commission and other EU nations to prevent this abrogation of responsibility from going forward.

Berlusconi and Sarkozy maintain that unless the borders are closed and some of the refugees and asylum-seekers who have managed to make it into the EU are deported, the seismic changes in the Arab world “could swiftly become an out-and-out crisis capable of undermining the trust our fellow citizens place in the free circulation within the Schengen area.” Sarkozy added that “For the treaty to stay alive, it must be reformed.” Both leaders want the exodus of North African refugees to Europe to be labelled an “emergency”.

France and Italy are telling Europeans that unless the EU turns its back on displaced peoples seeking refuge in Europe, the Schengen Area, which allows free and unrestricted travel among participating states, would be at risk. It is fear-mongering at its worst.

Tunisia France

France and Italy are pushing to close EU borders due to what they view as an “emergency” of fleeing North African migrants (Photo: AP)

Sarkozy and Berlusconi are seeking to label the arrival of thousands of north African citizens to Europe as an “emergency”, implying that in the right to asylum and free movement should be frozen. As such, it carries uncomfortable shades of the nationalist fervour of some of the most brutal, autocratic regimes in modern history where the rights of citizens were quashed in the name of “emergency”.

This is not a question of defending Schengen. It is a question of fairness, responsibility and justice. The rights of asylum and free movement are being withered at the expense of two politicians pandering to populists and nationalists.

Sarkozy and Berlusconi are quite simply abrogating their moral responsibility in exchange for political currency:

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Posted in Europe, European Union (EU), France, Immigration, Italy | 3 Comments

Syria and the International Criminal Court: Taking Justice Seriously

Posted on April 26, 2011 by Mark Kersten
Syria Justice

The situation in Syria has deteriorated rapidly. Hundreds have been reported killed by Government forces

Syria has gone from bad to worse. According to reports, hundreds of peaceful, pro-democracy protesters have now been killed by authorities cracking down on any attempt to undermine the regime. This statement, or something approximating it, has probably been written and read thousands of times in the past few months as citizens across the Middle East and the Arab world have agitated against long-standing regimes in what has now been dubbed the Arab Spring.

The pattern in Egypt, Tunisia and Libya has been remarkably similar. While each, of course, are context-specific, all have experienced popular protests followed by significant levels of violence against, and repression of, citizens. All have seen subsequent calls for international criminal justice. Tunisia and Egypt have declared their intention to ratify the Rome Statute, while Libya was referred to the ICC by the UN Security Council. All of this seems to set a transformational precedence about the role of international criminal justice in the region.

This brings us to the question: should the ICC become involved in Syria? For some, it is a no-brainer.

Prof. William Harris argues that the actions of Syrian President Bashar Assad clearly constitute crimes against humanity and thus fall within the mandate of the ICC:

“It would be hard to find a clearer case of such offenses than the Syrian regime’s systematic repression of peaceful demonstrations through the past six weeks, with indiscriminate use of live ammunition against its own people on a countrywide scale.”

Barry Rubin, the director of the Global Research in International Affairs Centre adds that the Syrian regime has:

“gone to the third level…heavy repression and killing people in order to destroy the protests and intimidate people from participation.” 

Amnesty International has explicitly called on the UN Security Council to refer the situation to the ICC. Further, while no reference to the ICC was made, the International Commission of Jurists recently issued a statement imploring the UN to act in the case of Syria and that:

“Those ordering and carrying out these attacks, including those firing live rounds into crowds, must be held criminally accountable.”

It’s hard to argue with Harris’s claims that crimes against humanity have occurred after seeing the horrifically graphic video, linked at Max Boot’s blog, of what appears to be indiscriminate attacks on peaceful Syrian protesters. (I cannot stress enough that not everyone should watch the video – it is perhaps the most gruesome video I have seen to date).

Gaddafi Assad

The international community set a precedence in the past three months concerning justice and accountability

But will the international community do anything about Syria? As a number of commentators have pointed out, the international community has been eager to intervene in Libya but painfully slow to do anything more than condemn Assad for the atrocities in Syria. Adrian Blomfield of the Telegraph, for example, notes that:

“Critics complained that while the West has been comparatively quick to go to the aid of the Libyan people, Syrians struggling against one of the Middle East’s most repressive regimes had largely been abandoned to their fate.”

Regarding the ICC’s involvement, Dominic Waghorn writes:

“It took just two weeks for the International Criminal Court to begin investigating Gaddafi, his sons and commanders over allegations their security forces had attacked peaceful demonstrators.

More than six weeks into Syria’s unrest, Assad’s security forces are gunning down their own people in their hundreds and the west still has not moved beyond words of condemnation.”

So will the international community seek the involvement of the ICC? While it is increasingly evident that it should, it is not yet clear whether it will.

Syria is not a member of the ICC, and thus outside of the jurisdiction of the Court. As Tobias Hanson reminded me (see comment below), the only way for the Court to achieve jurisdiction would be for the UN Security Council to refer the situation in Syria to the ICC, à la Darfur and Libya.

It is unclear what the zest for international criminal justice is among the Security Council members. Some states expressed reservations about referring Libya to the ICC. India, Brazil, Gabon and Portugal expressed concerns regarding the sequencing of peace and justice.

At the moment, the conflict in Libya looks far from resolved. America’s most senior military officer, Mike Mullen, admitted that despite NATO efforts, Libya is “moving towards a stalemate.” Some states, for better or worse, may believe that the referral of Libya to the Court has complicated efforts to find a political resolution to the crisis.

Another issue is the question of judicial overstretch: can the ICC handle its case load? In the first eight years of its existence, the Court opened four official investigations (Uganda, the Democratic Republic of Congo, the Central African Republic and Sudan). In the April 2010, the Court opened an investigation in Kenya and this past February, the ICC added Libya to its growing list of cases. Ivory Coast seems likely to be investigated as well.

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Posted in Egypt, International Criminal Court (ICC), Middle East, Syria, Transitional Justice, Tunisia | 6 Comments