International Criminal Law in the News

The last two weeks have seen a number of developments in international criminal law. The tribunal of former Khemer Rouge leaders unfolded in Cambodia (for those who are interested in the underlying issues, the movie Killing Fields is set in Cambodia of that era); the former President of the Cote d'Ivoire arrived in the Hague to face charges in the ICC; meanwhile a tribunal began hearings in Bangladesh into charges of war crimes and crimes against humanity committed during the 1971 war of secession, but has come under heavy criticism for its apparent bias. In Kenya a court issued an arrest warrant for the Bashir, the president of Sudan, who has been indicted for crimes against humanity by the ICC.

Talk on Cuba at WU

Bob Beatty: "Cuba in 2011: Alive, but Standing Still"

 November 30, Noon, International House

 Communist Cuba still holds on, even with the decades-long American economic and travel embargo still firmly in place. With the succession of leadership from Fidel Castro to his brother Raoul Castro and promised economic changes - along with the change from President Bush to Obama - is Cuba coming out of its time warp?

Dr. Bob Beatty of the Washburn University Political Science Department traveled to Cuba last February to find out, and will explain why he does not see much cause for optimism.

Int'l Criminal Law in the News

[updated below] As you all will likely have heard, Col. Qaddafi's son and heir was captured by militia forces in Libya late this week. The Libyan government has suggested that he will be turned over to the International Criminal Court for prosecution, for crimes against humanity among other things, and the Chief Prosecutor is headed to Libya to begin discussions towards that end. Today however, the militia that is holding him is reported to be resisting calls to surrender him to the government.

Meanwhile, also this week, a former Mayor of a town in Rwanda was convicted by the ICTR for genocide and crimes against humanity, for his part in the killing of some 6,000 Tutsis in the Rwanda genocide of 1994.

On another continent, the U.N.-established tribunal to try crimes of genocide in Cambodia announced this week that the trial against Pol Pot's sister-in-law would not proceed, as she is unfit to stand trial. The tribunal has run into difficulty in the last few months due to reports of government interference in the tribunal's process.

[update] In line with the necessity that the administration of international criminal law is consistent with fundamental human rights and the rule of law, consider this editorial in The New York Times regarding the determination of habeus applications of detainees in GITMO, who are being held in large part on reasons grounded in international law principles.

Earlier this year, The Guardian reviewed the extent to which threats of possible arrest and prosecution have impacted on the travel plans of George W. Bush, Rumsfeld, and others, for among other things the treatment of detainees in GITMO.

Readings - Int'l Criminal Law

We will wrap up use of force this week, and will likely begin our examination of international criminal law on Friday. For that purpose, you should focus on the following material:

In Chap. 15, Sec. 4(A) - intro, 1 and 2 (pp. 1276-1287);

Chap. 16, Sec. 1, Sec. 2, Sec. 3(A)-(C); and Sec. 4(A)-(B up to p.1360). You may also be interested in reviewing Section 4(C), which is on the U.S. position regarding the ICC.

Waterboarding and Torture

[updated below] The torture debate has erupted once again onto the American political scene. Today's New York Times has an editorial excoriating several of the Republican candidates who, in the most recent debate, endorsed the use of waterboarding for the purposes of interrogation.

Is waterboarding consistent with the U.S.A.'s international legal obligations? How would you go about analyzing the issue? Please provide your thoughts in the comments function below.

[update] For those of you who attended Sam McCohan's talk on GITMO and enhanced interrogation techniques today at lunchtime, the Levin report that he referred to, being a report of the Senate Armed Services Committee chaired by Senator Levin on the treatment of detainees, can be found here, and an executive summary and conclusions of the report, released earlier, can be found here.  

Iraq War Debate

As mentioned in class, here is the Memo of the Attorney General for the United Kingdom, providing his legal opinion on the legality of an invasion of Iraq, provided to the Prime Minister just prior to the war.

For those who are interested, you can spend several hours watching the testimony of not only Lord Goldsmith, but other members of cabinet, in the subsequent inquiry into the decision to invade Iraq.

In preparing for the debate you might also want to look at the full text of UN Security Council resolutions 678, 687, and 1441, which you can access through the links on the right.

Why Do Nations Obey International Law?

Further to our discussion in class regarding the question of whether international law matters, and the frustration some of you have expressed over the apparent lack of definitive institutional action in the face of illegality, I would suggest taking a little time to review the short article by Harold Koh, entitled "Why Do Nations Obey International Law?". It is an outstanding review of the different theories of compliance, and should help you develop an understanding of the more nuanced and sophisticated ways in which international law can mobilize obedience, even in the absence of judicial sanction.

Documentary on Campus

The award winning documentary "For the Bible Tells Me So", which explores the tension between religious groups and the equality rights of members of the gay and lesbian community, will be screened on campus next week, Wednesday November 16, at 12:00, in the Kansas Room in the Memorial Union. There will also be a "faith panel" of local religious leaders to discuss the same issue the following evening, same place, at 18:00 hrs. While not about international law per se, the equality rights of homosexuals, and the manner in which religious groups have worked to deny recognition and protection of those rights in various countries and within international organisations, is a very live issue within the domain of international human rights law.

Israel Contemplating Military Strikes Against Iran

There is considerable news this week on comments made by members of the Israeli cabinet regarding the possibility of Israeli military strikes against Iran to prevent its development of nuclear weapons. Several world leaders have attempted to calm the waters. The issue is likely to be further exacerbated by the report today from the IAEA that there is credible evidence that Iran is attempting to develop nuclear weapons.

Do you think that such a strike could be justified? If so, under what principles? What is the legal basis for even preventing Iran from developing nuclear weapons? Would that basis provide a justification for the use of force?

Definition of Aggression

For those interested in reading more about the definition of aggression, for the purposes of the Rome Statute of the ICC, which was decided upon at the international conference at Kampala last year, there is a good article on the subject at EJIL: Talk! As discussed in the blog post, the new definition and associated "understandings" raise many interesting issues involving treaty interpretation.

The definition itself is as follows:For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Readings - Use of Force

Continuing our examination of use of force in Chapter 15, you should focus your reading on the following sections:

Continuing in Section 1 (C),
(5), the Schachter Article;
(6)(a) the Nicaragua v. USA case, Schachter piece, and notes;
    (b) the Schachter piece on preemptive use of force;
    (d) self-defense against non-state actors;
Section 2
Intro and (A);
(B) (focus on Schachter piece)
(C)
Section 3
(A) (we will spend considerable time on this section)

In addition, please review the highlighted and redacted copy of the ICJ's judgment in the Oil Platforms Case (Iran v. U.S.A.), which can be downloaded here. Should you want to put the redacted portion into context, remember that you can download summaries of the judgments at the ICJ website.

You may also want to look at the full text of UN General Assembly Resolutions 2626 (Declaration on Friendly Relations), and 3314 (Definition of Aggression).

JAG Conference

Further to the announcement in class today, here is a link to the JAG Conference Agenda, for the conference this weekend.

In the News

[updated] This week a notorious arms dealer, who was the basis for the Nicholas Cage character in the movie Lord of War, was convicted for conspiracy to kill Americans, providing material support for terrorists, and trading in arms, in a Federal Court in New York. A Russian national, he was captured in Thailand and extradited to the US over Russian objections, for actions taken outside of the US. To what extent is this extra-territorial application of prescriptive and adjudicative jurisdiction consistent with international law principles?

In other news today, another flotilla has left Turkey en-route to Gaza, challenging once again the Israeli "blockade". And also in the context of use of force, the subject we will be taking up on Friday, you should all be following the events surrounding the foray by Kenyan armed forces into Somalia.

In late breaking news, the Supreme Court of Canada today refused leave to appeal in a case involving the extradition of an "admitted" terrorist to the U.S. for trial. The lower courts had found that while there were sufficient grounds for extradition of Abdullah Khadr (elder brother of the more famous Omar Khadr who is in GITMO) to the U.S., the "shocking" violation by the U.S. of his rights under international law while he was detained in Pakistan militated against extradition, as it would reward the U.S. for its violation of international law.

Human Rights Committee Observations re USA

Above is an example of a Human Rights Committee observations in response to a state's periodic report, which each state submits pursuant to its obligations under the ICCPR. The Third Periodic Report of the United States of America, to which this document is a response, can be found here.Consider whether such reporting, and resulting response from the Human Rights Committee, is effective as a mechanism for mobilizing compliance with state obligations.

Wednesday's Class

On Wednesday we will wrap up our discussion of human rights. We will very quickly review the different international human rights treaty regimes (the regional regimes, CEDAW, CERD), and then spend more time examining the operation of the ICCPR and the Human Rights Committee. In preparation for this discussion you should pay particular attention to Section 4, and the US Reservations to the ICCPR and the Human Rights Committee's comment, and the U.S. response. We will examine, in the context of the Human Rights Committee's work, the Lovelace case.

Then, look at Section 4(D), the US position on the extra-territorial application of the ICCPR, and consider in that context  the Al Skeini case we looked at last week.

Finally, we will examine the derogation from rights obligations in times of emergency, looking at the Lawless case, and the excerpt from A(F.C.) v. The Home Secretary. [see the Human Rights Committee case post below, for excerpts from and link to the case]