The Genocide in Myanmar Goes to Court

As we discussed briefly in class, there have been two new and significant developments regarding the likely adjudication of the genocide committed against the Muslim minority, the Rohingya people, in Myanmar. One is the application by The Gambia against Myanmar in the ICJ, about which there are a number of blog posts (see here for EJILTalk!; and Opinio Juris; and Just Security); and the second is the decision by the prosecutor of the ICC to commence investigations into the genocide (see this overview of all the developments in Opinio Juris). On Wednesday it was announced that the famous and now somewhat discredited leader of Myanmar, Ang San Suu Kyi, will lead the country's delegation to the ICJ.

For a good backgrounder on the causes and particulars of the genocide, see this piece from the Council on Foreign Relations.

The Scope of the Doctrine of Self-Defense

As we are about to dig into the doctrine of self-defense, you may find interesting this excellent blog post that was published this last week, exploring whether states may use force in response to armed attacks launched by non-state actors, in the absence of being able to attribute the attacks to the state from which the non-state actor was operating. We addressed this issue in the exercise we did in class on whether the US invasion of Afghanistan, in response to 9/11, had been lawful.

UN Committee Deliberates Universal Jurisdiction

This last week the 6th Committee of the UN, which is the committee that addresses legal issues, released a document reviewing the Committee's views on the scope and application of universal jurisdiction: https://undocs.org/A/C.6/74/L.6.

Discrimination and the Right to Equality

Further to our discussion of equality and unjust discrimination this week, here is a PBS Frontline episode about the Brown Eyes-Blue Eyes experiment that I mentioned (thanks to Ric for unearthing it!). Also, below is an excerpt of a TED Talk that I show to my Con Law II and Human Rights classes on equality - it illustrates the extent to which the sense of fairness, and the sense of injustice at being treated unequally, is deeply hardwired into not only humans, but also many animals. The excerpt is only 3 minutes long, but is a quite extraordinary illustration of the principle.

Threat to the Life of the Nation

We have previously talked in class about what constitutes an existential threat, or a threat to the life of the nation - considering, for instance, the question of whether the 9/11 attacks rose to the level of constituting such a threat. This week we will be returning to this question in the Loveless case, which was an early case considering the latitude for states to derogate from rights obligations during times of national emergency, when the life of the nation is threatened. The Court, in one of its very first judgments, was quite deferential to the state's interests. But in considering the question, and what the test should be, you might be interested in looking at how the House of Lords more recently considered the issue of derogation from rights due to threats to the life of the nation, in A(F.C.) v. the Home Secretary [2004].

The case (you can find the full judgment here) involved the "certification" of the applicants under the Anti-Terrorism, Crime and Security Act, 2001, which permitted the government to detain persons so certified for an indefinite period. The government of the U.K. argued that the law constituted a permitted derogation from its obligations under the European Convention on Human Rights.

As part of the decision, Lord Hoffman considered what "the life of the nation" meant in Art. 15 of the Convention, and wrote as follows (continued below the fold):