The International Clockwork

The Durban Conference

2011-12-31T06:59:00.001Z

This entry will deal with the Durban Climate Change Conference 2011.

Iran and diplomatic law

2011-11-30T23:48:00.001Z

This entry will deal with recent events concerning diplomatic law and Iran.

Libya now

2011-10-31T23:54:00.001Z

This entry will deal with recent events in Libya.

Developments at the United Nations

2011-09-30T10:47:00.001+01:00

This entry will deal with recent developments at the United Nations.

Developments in International Criminal Justice

2011-08-31T23:51:00.001+01:00

This entry will deal with recent developments in international criminal justice.

CAH New

2011-07-31T21:56:00.000+01:00

This entry will deal with new developments in the fields of crimes against humanity

ICC now

2011-06-30T12:59:00.001+01:00

This entry will deal with challenges facing the ICC.

No Peace for Sudan

2011-05-31T23:41:00.003+01:00

This entry will deal with the situation in Southern Sudan.

50 Years of the Vienna Convention on Diplomatic Relations

2011-04-30T22:40:00.001+01:00

This entry will deal with the 50th anniversary of the Vienna Convention on Diplomatic Relations.

The Fight for Libya

2011-03-31T23:28:00.001+01:00

This entry will deal with SC Resolution 1973.

The Case Against Gaddafi

2011-02-28T23:48:00.001Z

This entry will deal with Security Council Resolution 1970.

A right to democracy?

2011-01-31T23:58:00.002Z

This entry will deal with the ongoing situations in Tunisia and Egypt.

Videla and the Law

2010-12-31T22:20:00.001Z

This entry will deal with the trial of the former Argentinian dictator Jorge Videla.

The Yeonpyeong Incident

2010-11-30T23:47:00.001Z

This entry will deal with North Korea's recent attack on the South Korean Yeonpyeong island.

Genocide in the DR Congo?

2010-10-31T23:04:00.001Z

This entry will deal with the release of the "Mapping Exercise" on violations of Human Rights and international humanitarian law in the DR Congo

Why the Pope wasn't arrested

2010-09-30T22:03:00.003+01:00

This entry will deal with the recent visit of Pope Benedict XVI to the United Kingdom and the question whether the Vatican is a State.

Naomi's dirty stones

2010-08-31T23:57:00.001+01:00

This entry will deal with Naomi Campbell's testimony and the Charles Taylor Trial at the Special Court for Sierra Leone.

Bashir Charged With Genocide

2010-07-31T23:13:00.001+01:00

This entry will deal with the second arrest warrant against the Sudanese President Omar Al Bashir.

Aggression Revisited

2010-06-30T13:17:00.000+01:00

This entry will deal with the recent ICC Review Conference in Uganda.

Whither Security Council?

2010-05-31T22:32:00.002+01:00

This entry will deal with recent initiatives to reform the UN Security Council.

Ionescu and the Limits of Diplomatic Immunity

2010-04-30T21:18:00.000+01:00

This entry will deal with the controversy concerning the former Romanian chargé d'affaires in Singapore, Silviu Ionescu.

The Falklands Saga

2010-03-31T23:29:00.008+01:00

"History does not repeat itself", said Mark Twain, "but it rhymes."
The rhymes of history come to the mind of observers of the recent Falklands controversy. The island group in the South Atlantic, mainly populated by descendants of British settlers, has once again become the centre of attention. It evokes memories of 1982 – the year in which Britain and Argentina, both claiming sovereignty over the Falklands, went to war. Argentine forces had invaded the islands in April 1982 – the British response was a military operation to recapture them (they succeeded in June). Not everybody was sure that this had been one of the great and noble causes of history: the Argentine writer Jorge Luis Borges compared it to "two bald men fighting over a comb". The problem is of course that quarrelsome bald men don't do the fighting themselves: more than 900 soldiers, sailors and airmen died in the war.

The strong language used by Britain and Argentina this month recalls all this, but with a difference: Borges' comb might grow golden teeth. In 1982, sheep farming was a mainstay of the economy of the Falklands. These days, oil has made its appearance. Desire Petroleum, a British company, started drilling operations 100km north of the Falklands in February, and this was enough to rekindle the old question of sovereignty. War is thankfully not a likely option, but relations between Britain and Argentina have certainly taken a severe blow.

The issue of sovereignty is a complex matter for international law, too – not helped by the fact that the Falklands have had so many masters in the last 500 years.
To the British side, the long history of uninterrupted settlement matters: the islands have been occupied by the British ever since HMS Clio arrived on East Falkland in 1833. It is true that there was already an Argentine garrison on the island, which the British force replaced. That makes it look like a case of conquest – and back then, that was still one option for gaining territory. All the same – conquest makes for an embarrassing poiltical argument. It is hardly cricket.
Argentina at any rate denies the legality of the 1833 occupation. It refers to the Nootka Sound Convention – a treaty which Britain and Spain concluded in 1790. Spain was then Argentina's colonial master; and Argentina claims that it inherited some of the rights which the treaty gave Spain. In this document, Britain agreed not to form any settlement on islands to the south of the Spanish possessions in South America – which (says Argentina) includes the Falklands.
There is a third consideration: the interests of the islanders themselves. Self-determination – the right of peoples to "freely determine their political status" – is a tempting argument (particularly for the British side: there is no doubt that the Falklanders would opt for the UK). The right is also recognised in Human Rights treaties and in the UN Charter, but it is problematic to use it if the occupation of the Falklands had been unlawful in the first place.

With matters as complicated as that, the simplest solution might be to submit the issue to the International Court of Justice, which has ample experience with disputes of this kind. But if oil were found in the area, Britain would hardly be likely to agree to a settlement by the World Court. Argentina has nothing to lose – Britain has nothing to gain.

The latest news from Desire are that the first test drillings were disappointing. That's bad news for the company, whose stock plummeted immediately. For the Falklands, it may be a blessing in disguise.

Bookshelf
• Paul Behrens, "Oil fuels latest debate about who really owns the Falklands", The Scotsman, 25 March 2010
• Peter Beck, The Falkland Islands as an International Problem, Routledge 1988,

Bashir and the Genocide Charge

2010-02-28T22:01:00.002Z

This month, things were heating up in the case of Omar Al-Bashir. Bashir, who has been President of Sudan for the last 16 years, is accused by the Prosecution of the International Criminal Court (ICC) of war crimes, crimes against humanity and genocide. In 2009, an arrest warrant was issued for war crimes and crimes against humanity; but not for genocide. The Prosecutor appealed, and on 3 February, the International Criminal Court decided to have another look at the case.

All the same: by the time the Court will have made its decision, it will probably be more than two years since the Prosecution first accused Bashir of the crime. Given the fact that "genocide" is among the words that are most frequently used in reference to the crimes in Sudan, it seems strange that the court has such a difficult time with the concept of this crime. What are the reasons behind that?

The main problem is that lawyers use a concept of genocide which differs very much from that used in the mass media (and from the one employed by historians and politicians). The fact that massacres were committed or that large-scale attacks were carried out, does not necessarily mean that genocide in the legal sense exists. What matters, is the intent of the perpetrator. If Bashir is to be found guilty of genocide, he must have acted with the intent to destroy "in whole or in part, a national, ethnical, racial or religious group, as such". In some past cases, Prosecutors have found it very difficult to prove this intent – there have even been acquittals on the charge of genocide, because of a lack of evidence for intent.

Not all cases are that difficult. In one situation before the Rwanda tribunal (the case of the Ntakirutimanas) a witness mentioned extremist Hutus who had chanted "We are the Hutu, we are here. Let us exterminate them", when killing their Tutsi victims.
But such a clear statement of intent is often missing – in many cases, there is not much more than the actions of the perpetrators, from which conclusions must be made about their intent.

And then there are cases in which the Trial Chambers erred on the side of caution. That of Goran Jelisic for example, shift commander at a Bosnian Serb camp in the Bosnian war of 1992 – 1995. In Jelisic's camp, Muslims and Croats were held prisoner, and there seemed little doubt about his attitude towards them. He kept a tally of his executions, and apparently said that he hated Muslims and wanted to kill them all. But he also allowed some of his prisoners to leave – including, reportedly, a Muslim prisoner who first had to play Russian roulette with him. The International Criminal Tribunal for the Former Yugoslavia (ICTY) which had to decide this case, took this into account: it found that Jelisic had killed "arbitrarily rather than with the clear intention to destroy a group" – and acquitted him of genocide. (He was found guilty of war crimes and crimes against humanity).

Cases like this are not forgotten by judges at the international criminal tribunals – or indeed by defence counsel. It may well be one of the thoughts that influenced the Pre-Trial Chamber of the ICC last year, when it rejected the genocide charge against Bashir. The Appeals Chamber's ruling this month has changed this: the ICC is now left with little choice but to add genocide to the charge sheet against the President of Sudan.

Bookshelf
Paul Behrens, "Major Obstacle Stands in the Way of Giving Justice to Darfur Victims", The Scotsman, 22 February 2010

Blair before Chilcot

2010-01-31T23:33:00.006Z

There is a good chance that last week will remain the highlight of the Chilcot Inquiry on Iraq – for no other reason than that the panel summoned the most prominent witness on its dance card – former Prime Minister Tony Blair. During his day-long session, some interesting issues emerged – not because they were genuinely new points, but because the style with which they were introduced tells a story in itself.

One of them was the notorious 45 minute claim which turned up in the government dossier "Iraq's Weapons of Mass Destruction" (September 2002). In its foreword, Blair had written that Saddam Hussein's military planning allowed for some of the weapons of mass destruction "to be ready within 45 minutes of an order to use them". Before the Inquiry, Blair agreed it would have been better to correct the claim "in the light of the significance it later took on". Interesting, but not the full story: the 45 minutes were not just a convenient special effect. They had significance from the outset.

The 45 minutes patched a hole in the Bush doctrine (or died trying). The Bush doctrine is the view that the use of force is allowed, even if a threat to the State does not yet exist. Lawyers who support such an extensive right are as rare as the unicorn. Even Peter Goldsmith, Attorney-General in 2003, was more cautious and would have permitted use of force only in response to an "imminent attack". That too is not accepted by everybody – but it is at any rate easier to drum up support for force against an imminent attack (an attack in 45 minutes, say) than against a threat that only becomes real at the Greek calends.

Another point of interest was Blair's evaluation of Security Council Resolution 1441. 1441 was the Resolution in November 2002, which recalled that the Council had already warned Iraq "that it will face serious consequences" as the result of its violations of its obligations.
What are "serious consequences"? Use of force?

On this point, Blair wavers a bit. Before the lunch break, 1441 seems "very clear" to him. After lunch, he accepts that there were different interpretations, and a second resolution would have resolved "that question obviously beyond any dispute". And later still, he says that, if you read 1441, "it is pretty clear" – well, not exactly that you can use force, but that "this was Saddam's last chance".

Blair's dilemma is easy to understand. If he admits that 1441 was vague, it would be shocking that war against a sovereign State was based on such a wobbly foundation. But if 1441 was clear beyond doubt – why then the British efforts to secure a second resolution? It is somewhat difficult to accept that this was merely done from a sense for political aestheticism.

The problem is this: when the Security Council wants to authorise force, it does not talk about "serious consequences" – it authorises "all necessary means" (as in 1991, when the intention was to drive Iraqi forces out of Kuwait). Blair and Bush knew quite well that it would not have been possible to get a resolution in 2002 which expressly allowed the use of force. And context is of importance for the interpretation of Security Council resolutions (as the International Court of Justice emphasised).

True enough, none of this is really new. Historians and international lawyers will probably not be dazzled by Chilcot's findings. But there are nuances which appear in the character of some witnesses which are yet of some interest. So, one may say, are the questions the panel did not ask.

A Prince of Peace?

2009-12-31T19:01:00.007Z

True enough, Barack Obama is not the strangest person to be awarded the Nobel Peace Prize. There is strong competition: from Henry Kissinger say, US National Security Advisor when the bombing campaign of Cambodia took place. When the Prize was given to him, the satirist Tom Lehrer remarked that political satire had become obsolete.

The criticism in Obama's case is different: it is unusual to award the prize to a politician who has been in office less than nine months. But then, what exactly is Obama's record that far?

The answer is not convincing. It is true that the death toll in Iraq has gone down considerably – to the lowest level since fighting began in 2003. In Pakistan and Afghanistan, it's a different picture. Only three days after Obama's inauguration, the United States attacked targets in Waziristan (Pakistan) with drones – unmanned aircraft which are used for missile attacks, and whose legality is increasingly in doubt. (Lord Bingham, the former Lord Chief Justice, is one of several legal experts who have voiced their criticism in that regard). As to Afghanistan: only nine days before Obama's Nobel lecture, he announced the decision to send an additional 30,000 troops to that country – not the first troop surge in his presidency. His one year in office also witnessed Operation "Strike of the Sword" in the Helmand province (July 2009) – reportedly the largest offensive by Marines since the Battle of Fallujah in Iraq in 2004.

Given this background and Obama's past position on the use of force, it was not surprising that his Nobel lecture was not solely concerned with goodwill to mankind. He does have nice words for Gandhi and Martin Luther King, and says that "war is never glorious", which makes him look less militaristic than Stephen Fry.

But his lecture also contains the statement that use of force can be "not only necessary but morally justified". Obama mentions Darfur, Congo and Burma and explains that "there must be consequences" when diplomacy fails. The word "consequences" sets off alarm bells in international lawyers, since it was employed in Security Council Resolution 1441 – which the Bush administration used as the basis for the invasion of Iraq. New theatres of war, introduced in a Nobel Peace lecture? Not even Kissinger went as far as that.

Obama may be many things – a skilled orator and a suave diplomat certainly. A Prince of Peace he is not.

Talk of War

2009-11-30T22:32:00.007Z

As if the battle against drug lords and civil strife were not enough: Colombia has a new worry. On 8 November, Hugo Chavez, President of her neighbour Venezuela, told his military to prepare for war with the South American State.

Tensions between the States have existed for a while. Chavez is unhappy with Colombia's friendly relations with his eternal nemesis – the United States. US troops are already stationed in Colombia to help the country in its fight against drug traffickers. A recent agreement gives the US military increased access to Colombian bases – Chavez fears that the bases will be used to spy on Venezuela.

Opposition and political observers in Venezuela however remain remarkably calm in the face of Chavez' outburst. There is talk about a "smokescreen", an attempt to divert attention from Venezuela's own problems.
It may be tempting to dismiss a President who is given to eccentricities; a man who is known for his weekly television show ("Hello, President") in which he dances, talks and sings revolutionary songs. Someone like Chavez, whose speeches last up to 6 hours (according to other sources, up to 8 hours), is bound to say a few words occasionally that are not unduly burdened by wisdom.

But behind all that, there lies a more serious matter. International law clearly prohibits not only the use, but also the threat of force – a rule which is today enshrined in Article 2 (4) of the UN Charter. Colombia certainly did not think Chavez' statement a laughing matter – she submitted the case to the Security Council.
There is something else that is worrying about Chavez' threats: they are not only words. Chavez has gone further: A few days before he talked of war, he massed 15,000 soldiers at the border to Colombia. There is also evidence that his government assists FARC – the left wing Colombian rebel group, and gives them shelter in Venezuela. Allowing one's territory to be used for attacks on another State, is likewise a violation of international law – it is an intervention in the other State's affairs and may even amount to the use of force.

The world therefore cannot afford to take lightly the words of the Venezuelan President. They are part of a pattern which is increasingly worrying, and which underlines the importance to bind Chavez to the rules of international law that make the co-existence of sovereign States possible.

The release of Biljana Plavsic

2009-10-31T23:24:00.003Z

One of the most widely reported stories in the Bosnian war concerned a kiss. The man receiving it was the Serbian warlord Arkan, whom the International Criminal Tribunal for the Former Yugoslavia (ICTY) later accused of murder, rape, other crimes against humanity and other war crimes. The woman kissing him was the acting President of the Serbian Republic of Bosnia and Herzegovina – Biljana Plavsic. She reportedly climbed over the body of a slain Muslim to kiss the man whom she considered a hero.
Arkan died before he could be tried. Plavsic, also wanted by the court, served her sentence and was released on 27 October 2009.

Biljana Plavsic's situation is among the most interesting cases with which the court had to deal. Plavsic was a member of the presidency of the Bosnian Serb Republic from 1992. One of her colleagues there was Momcilo Krajisnik (sentenced to 27 years imprisonment in 2006), another one was Radovan Karadzic, (arrested last year). All three of them were charged with genocide. Plavsic's indictment refers to the widespread killings of Bosnian Muslims and Croats and to their mistreatment in detention camps.
But Plavsic also helped implement the Dayton Accords (the 1996 peace agreement) and she was not afraid to break with Karadzic and his friends in the administration. At her trial, prominent politicians gave evidence on her behalf, including Madeleine Albright, (former US Secretary of State), and Carl Bildt, the first High Representative in Bosnia and Herzegovina. Albright stated that Plavsic "stood up" for Dayton when it was "very difficult" to do so; Bildt confirmed that Plavsic had taken "great personal risk" when supporting Dayton.

It would be too easy to divorce Plavsic's change of heart from the international pressure at the time. But that allows for different conclusions. To optimists, this shows that international pressure works, though it may take a long time. Others will point out that even a conversion which was perhaps political in nature can help you get lenient treatment. Before the ICTY, Plavsic agreed to a plea bargain – the prosecution then dropped all charges except for one count of persecution, to which she pleaded guilty. The judges took her support for Dayton into account, and Plavsic was sentenced to eleven years of which she served nearly nine. For someone who was initially accused of genocide, extermination, persecution, deportation, inhumane acts and murder, this is not the worst fate imaginable.

President of the World?

2009-09-30T19:26:00.004+01:00

The world does not have a president, but the General Assembly, in which almost all States are represented, does. Earlier this month, the Libyan career diplomat Dr Ali Abdussalam Treki was elected to that post. Treki caused concern almost immediately, when he expressed his personal dislike of last year's declaration on the decriminalization of homosexuality and thereby cast doubt on his ability to bring the necessary neutrality to his office.

The President is basically the Assembly's chairperson – the rules state that he "shall have complete control of the proceedings at any meeting and over the maintenance of order". And if the General Assembly has agreed on a time limit for speeches, it is his duty to enforce it. So when Ali Treki opened the debate on 23 September, in which world leaders were to make their statements, he reminded them of the 15 minute limit which the Assembly had adopted – and found his authority immediately challenged. It was the day on which his former employer, Colonel Qaddafi of Libya, made his speech.

Qaddafi seemed to relish the task. He talked about swine flu being concocted in a laboratory as a weapon, suggested that Obama be made US leader for life, called for a new investigation into the death of John F Kennedy and offered Libya as a new host to UN headquarters. 75 minutes into the speech, his personal translator collapsed with exhaustion, and the UN's Arabic section chief took over for the remaining 20 minutes.

Observers were somewhat surprised at Treki's inability to enforce order. The time limit, which dates from 2002, seems to have been agreed on a voluntary basis – but nothing would prevent the President from giving the speaker a gentle reminder (they already get a warning through a light signal). It might take a brave soul to interrupt Colonel Qaddafi though, and even then, the President's decision could have been challenged by the Assembly (the President remains under the Assembly's authority).

Assembly Presidents tend not to be that interventionist. Under the old system, some speakers engaged in veritable marathon speeches: Fidel Castro talked for more than four hours in 1960. But occasionally there is a President who has had enough: When, a few months after Castro's speech, a particularly rowdy situation emerged in the General Assembly, President Boland banged his gavel so hard in an attempt to restore order, that he smashed it into pieces.

Turkey, Armenia and the Spectre of the Great War

2009-08-31T22:13:00.003+01:00

Soccer has a strange place in international affairs. In 1969, riots after football matches between El Salvador and Honduras triggered a military conflict (the "football war") which cost the lives of thousands. Last year, football helped to bring two countries together. The visit of the Turkish President to Armenia, where he attended a World Cup qualifier, was the beginning of a thaw in Turkish-Armenian relations. This month, the two States confirmed their intentions to establish diplomatic ties.

Relations had been tense, even though Turkey supported Armenia's independence in 1991. One of the difficulties was the conflict between Armenia and Azerbaijan over the Nagorno-Karabakh region, in which Turkey was an ally of Azerbaijan.

The other concern is a spectre from the days of the Ottoman Empire – the crimes committed during the First World War, when hundreds of thousands of Armenians perished in massacres and on death marches to Syria. To Armenia, these atrocities qualify as genocide. Turkey, successor to the Ottoman Empire, rejects the allegation, mainly on two grounds. Firstly, Turkey doubts the extent of the casualties (the Armenian side speaks of 1.5 million dead, Turkish sources have the figure as low as 300.000).
The second reason concerns international law. Turkey uses the restrictive legal definition of "genocide", and this causes problems (quite apart from the question if the Genocide Convention is applicable retroactively). Genocide under the legal definition exists only if the perpetrators had the intent to destroy the Armenians as such. But intent is difficult to prove. Some commentators refer to telegrams in which the Ottoman Minister of the Interior (Talat Pasha), seemingly called for the elimination of the Armenians – the authenticity of these telegrams however is contested. According to Turkey, the crimes against the Armenians were a response to Armenian collaboration with the Russian enemy, and not the results of a plan to kill all Armenians.

One interesting aspect emerged in the recent talks: Turkey suggests the setting up of a joint commission to study these events. Armenia is reluctant: even a discussion on genocide might imply that there is doubt about its commission. But scuttling the idea means missing an opportunity. The difficult concept of genocide can be part of the preliminary discussions. A joint, or even international, commission whose members enjoy freedom from governmental interference, have extensive access to archives, and are committed to the search for truth, could yield important conclusions which are long overdue.

Karadzic and the speed of justice

2009-07-31T23:44:00.001+01:00

It has been a year since Radovan Karadzic was brought before the International Criminal Tribunal for the Former Yugoslavia (ICTY), and his judges are getting impatient. Karadzic was, during the Bosnian war, President of the Republika Srpska – the Serbian Republic in Bosnia and Herzegovina. His implication in the killing of over 7,000 Bosnian Muslim men and boys in Srebrenica is a cornerstone of his indictment.

But time is running against the Tribunal. Several years ago, the Security Council, which created the Tribunal in 1993, adopted a "completion strategy": it urged the ICTY to complete all trials by 2008. Appeals were allowed to run until 2010. From that point of view, the arrest of Karadzic made things difficult: there was no chance his trial would have been finished in 2008. At the beginning of this month, the Security Council finally extended the term of office of eight permanent judges to 31 December 2010. Even that sounds ambitious in the Karadzic case. The Prosecution alone intends to call over 500 witnesses.

Last week, the Karadzic judges therefore asked the Prosecutor to speed up the trial. That may result in the removal of certain counts of the indictment – in its latest version, the indictment has 11 charges of genocide, crimes against humanity and war crimes.

More than anything, the ICTY is haunted by the ghost of the Milosevic trial. The former President of Serbia faced indictments relating to Kosovo, Croatia and Bosnia-Herzegovina, and made his first appearance in The Hague in July 2001. Five years and 466 hearing days later, his trial looked increasingly like Jarndyce and Jarndyce (the interminable Chancery case from Charles Dickens' pen). In the end, Milosevic died before a verdict had been reached, and the Prosecution came under heavy criticism for its overly ambitious plans.

It is understandable that Karadzic's judges are keen to avoid a similar outcome. But a rushed trial does not guarantee satisfaction either. That is the experience the Iraqi Special Tribunal (IST) made in the case of Saddam Hussein. Instead of one mammoth trial, the IST had opted for a succession of trials: the Anfal campaign, in whose context the former Iraqi leader was accused of genocide, was scheduled for the second trial. But these charges were never completely explored: the defendant had been executed after the first trial. The mills of justice must grind more slowly if they are to grind exceedingly fine.

Iran and the Embassy Staff – Echoes of 1979?

2009-06-30T23:50:00.000+01:00

It has almost become customary among observers of the current political situation in Iran to make comparisons to events which happened thirty years ago. Critics of Ahmadeinejad consider the protests following his election a mirror image of the crisis that developed in 1979. The Guardian Council, in more nostalgic mood, has called the presidential election the "healthiest" since 1979. But there is one event in particular which looks eerily familiar: the arrest, last Sunday, of nine employees of the British embassy in Tehran.

Thirty years ago, embassy staff had also become victims of political unrest: Iranian students had occupied the American embassy and taken staff members hostage. The event led to one of the rare judgments of the International Court of Justice on diplomatic law: with a very strong majority, the court found that Iran had violated its international duties. The host must protect the inviolability of diplomats and prevent attacks on their persons.

There are, however, significant differences between 1979 and 2009 (apart from the fact that these days Britain seems to be the "Great Satan"). From the perspective of diplomatic law, it is of importance that the staff members in 2009 were (reportedly) of Iranian nationality. The immunities of staffers who are nationals of the receiving State is quite limited: as a rule, it is left to the receiving State to decide what immunities it wants to grant them. There are reasons for that: States want to keep jurisdiction over their nationals. Iranian embassy employees are, after all, still Iranian citizens.

But the matter gets more complicated. Major embassies cannot fulfil their functions without the help of local employees; and States are quite aware of that. In the early days of the Cold War, harassment of local employees was often used to hamper the activities of the embassy. In 1955 for instance, Hungary tried and convicted local employees working for the US mission in Budapest. The possibility of abuse does exist. Modern diplomatic law has taken that into account; the Vienna Convention on Diplomatic Relations provides that the host must not exercise its jurisdiction in a way that would interfere with the functions of the mission.

The arrest of the Iranian staffers has hardly set a new precedent – the strong international reactions to this event point in a different direction. What it has achieved, is a further isolation of Iran from the accepted rules of the international community.

Henry T King (1919 - 2009)

2009-05-31T23:47:00.007+01:00

When, 64 years ago, the Second World War came to an end, it would not have been surprising if the winning side had allowed itself the satisfaction of revenge. That instead a decision was made, in the words of Robert Jackson, to "stay the hand of vengeance", is one of the most remarkable developments in international affairs. It would not have been possible without the commitment of those who fought vigorously for the application of international law to the acts of individuals. By so doing, they helped in the creation of the system we know as international criminal law. Henry T King, who died on 9 May 2009 aged 89, was one of their number.

As a young man, King had joined the American prosecution team under Robert Jackson at the International Military Tribunal at Nuremberg. The IMT trial is best known of several Nuremberg trials – it was the trial of Göring, Hess, Dönitz and others. Some organisations were also tried, including the German High Command (the case on which King worked after his arrival in Germany).

After judgment was rendered, King stayed on for some of the "subsequent" Nuremberg Trials – twelve trials taking place from 1946 – 1949. He worked on the case against Milch, a former Field Marshal of the Luftwaffe, but also on the Ministries Trial (the case against high ranking civil servants of the Third Reich) and the Justice Trial (against former judges, prosecutors and officials of the Ministry of Justice). In later life, he worked in private practice; from the 1980s, he was Professor at the Case Western Reserve University School of Law.

Nobody who had seen Henry King at conferences on international criminal law, could have failed to be impressed by the passion he brought to his subject, and his interest for current developments in the field. To him and other Nuremberg prosecutors: it was not enough to have been part of historical events. When the Statute of the International Criminal Court was signed in 1998, the Nuremberg prosecutors lobbied hard for American ratification. It did not happen during King's lifetime; it is unlikely to happen even under the new administration. But the creation of the ICC, and of tribunals for the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, East Timor, Kosovo and Bosnia and Herzegovina attest to the fact that the law which Henry King had helped to create, is alive and stronger than ever.

Bookshelf:
• Henry T King, "Genocide and Nuremberg", in Ralph Henham / Paul Behrens, The Criminal Law of Genocide. International, Comparative and Contextual Aspects, Aldershot 2007
• Henry T King, Barbara Elles, The Two Worlds of Albert Speer: Reflections of a Nuremberg Prosecutor, University Press of America 1997
• Henry T King, The Nuremberg Context from the Eyes of a Participant, http://www.roberthjackson.org/Man/Henry_King_Eyes_of_Participant/

Bashir and the International Criminal Court

2009-04-30T23:45:00.002+01:00

This entry will deal with the arrest warrant against the President of Sudan, Omar al-Bashir.

Undiplomatic Diplomats

2009-03-31T22:30:00.003+01:00

Ambassadors, one would think, leave the factory with politeness as standard equipment, rather than optional extra. In cases of career diplomats that may be true – in public at least they know better than to launch personal attacks; they are, after all, not politicians. Which is why it always gets interesting when a politician is made an ambassador.

Viktor Chernomyrdin, the Russian Ambassador to Ukraine, falls in that category. In his former life, as his country's Prime Minister in the 1990s, he was no stranger to controversy and the odd linguistic eccentricity.

Gaffes make a politician more humane, and plain language is positively expected. The same is not true in the fencing gallery of diplomacy. When Chernomyrdin therefore, in an interview with a Russian newspaper, used sharp terms to describe the political leaders of Ukraine, the somber reaction by that State's Foreign Ministry was not a surprise. To be sure, the language was quite something. Referring to a recent disagreement between the Prime Minister and the President of Ukraine over Russian gas supplies, Chernomyrdin compared them to "dogs, slamming one another".

This may sound like a breach of diplomatic traditions; but international law gets involved too. The leading treaty on diplomatic law – the Vienna Convention on Diplomatic Relations – stipulates that it is one of the principal duties of a diplomat not to interfere in the internal affairs of the receiving State. In Chernomyrdin's case, the Ukrainian Foreign Minister Ohryzko promptly stated that diplomats violating the convention may well be expelled from the country.

But in many cases of this kind, the situation is not quite as clear as that. It is certainly not a diplomat's job to insult foreign governments. But it is his job to protect the interests of his own State – the Vienna Convention expressly recognises that. It is likely that Chernomyrdin too intended to help Russia's interests – in an exceptionally heavy-handed way.

States deal with this conflict in a rather pragmatic way. Sometimes the rage dies down, and the matter is buried. Sometimes, the diplomat is sent packing, with the laconic explanation that his conduct had been "incompatible with diplomatic standards". Sometimes the diplomat himself withdraws, perhaps after a few months – "because he wanted to leave the service anyway", or, in the inimitable language used in a case in the 1960s: because the "special climatic conditions" in the receiving State did not agree with him.

Gaza and the problem of proportionality

2009-02-28T23:52:00.016Z

German Version below - Deutsche Version weiter unten

The battle of Gaza continues. It is now more than two months since Israel began its military operations in the Gaza strip, and inspite of several truces which were declared by both Israel and Hamas, an end to the hostilities is still not in sight. Today, reports have it that five rockets were fired from Gaza into South Israeli territory.

In the course of this conflict, one word seems to have appeared more regularly than any other: the term "proportionality". After several allegations that Israeli actions did not fulfil the standards of proportionality, the Israeli Prime Minister Ehud Olmert went one step further: At the beginning of this month, he warned of a "severe and disproportionate" response, should there be rocket fire on South Israel.

Proportionality is a concept which causes difficulties to international lawyers and other observers of armed conflicts. It has nothing to do with "an eye for an eye" (We can kill five civilians, because you have killed five of ours). One thing must clear from the outset: civilians and civilian objects may never be targets of military attacks. This rule – the principle of discrimination – is today enshrined in the First Additional Protocol (additional, that is, to the Geneva Conventions of 1949). But the Protocol goes further than that: an attack is prohibited when it must be expected that the "incidental" loss of civilian life is excessive in relation to the military advantage. This is where proportionality comes in: even "incidental losses" must not be disproportionate.

The First Additional Protocol was never as popular as the Geneva Conventions themselves – Israel for one is not party to it. But proportionality and discrimination are also rules of customary law – which means that even States which have not ratified the Protocol, are bound by them. The Israeli government has said that it stands by the principles of international humanitarian law, and the Israeli Supreme Court accepts the rule of proportionality as binding.

If a State is so explicit in its recognition of these standards, then the international community may hold it to them. If, as happened on 6 January, the Israel Defense Forces launch an attack on a school run by the United Nations, Israel falls far short of these standards. If Ehud Olmert declares that there will now be disproportionate responses, his statement is nothing less than an announcement of a violation of international law.

German Version - Deutsche Version

Gaza und die Frage der Verhältnismäßigkeit

Die Schlacht um Gaza hält an. Es ist nun zwei Monate her, seit Israel seine militärische Offensive im Gazastreifen begann, und trotz mehrerer Waffenstillstände, die sowohl von Israel als auch von Hamas erklärt wurden, ist ein Ende der Feindseligkeiten nicht in Sicht. Heute wurde bekanntgegeben, daß fünf Missiles von Gaza aus in das südisraelische Gebiet geschossen wurden.

Im Verlauf dieses Konflikts scheint ein Wort häufiger als jedes andere gebraucht worden zu sein: der Begriff "Verhältnismäßigkeit". Nach mehreren Behauptungen, daß Israel sich nicht an die Bedingungen des Verhältnismäßigkeitsprinzips gehalten hätte, ging der israelische Premierminister Ehud Olmert noch einen Schritt weiter: Zu Anfang dieses Monats warnte er vor einer "schwerwiegenden und unverhältnismäßigen" Reaktion, falls es zu Missiles auf Südisrael kommen sollte.

Verhältnismäßigkeit ist ein Begriff, der Völkerrechtlern und anderen Beobachtern bewaffneter Konflikte Schwierigkeiten bereitet. Er hat nichts mit "Auge um Auge" zu tun (wir dürfen fünf Zivilisten töten, weil ihr fünf der unseren getötet habt). Denn eines muß von Anfang an klar sein: Zivilpersonen und zivile Objekte dürfen niemals die Ziele militärischer Angriffe sein. Diese Regel – das Prinzip der Unterscheidung – ist heute im Ersten Zusatzprotokoll aufgenommen worden ("Zusatz" heißt "zusätzlich zu den Genfer Konventionen von 1949"). Aber das Protokoll geht noch weiter: ein Angriff ist verboten, wenn erwartet werden muß, daß die "mitverursachten" Verluste an Zivilpersonen, im Vergleich zum militärischen Vorteil, übermäßig sein werden. Hier also spielt Verhältnismäßigkeit eine Rolle: Selbst die "mitverursachten Verluste" ("incidental losses") dürfen nicht unverhältnismäßig sein.

Das Erste Zusatzprotokoll war nie so populär wie die Genfer Konventionen selber – Israel etwa ist ihm nicht beigetreten. Aber Verhältnismäßigkeit und Unterscheidung sind auch Regeln des Gewohnheitsrechts – und das heißt, daß selbst Staaten, die das Protkoll nicht ratifiziert haben, daran gebunden sind. Die israelische Regierung hat erklärt, daß sie die Prinzipien des humanitären Völkerrechts unterstützt, und der israelische Supreme Court hat die Regel der Verhältnismäßigkeit als bindend anerkannt.

Wenn ein Staat so explizit seine Anerkennung dieser Regeln ausdrückt, dann hat die internationale Gemeinschaft das Recht, ihn daran zu halten. Wenn, wie am 6. Januar geschehen, die israelische Armee einen Angriff auf eine Schule der Vereinten Nationen unternimmt, dann bleibt Israel um einiges hinter diesen Regeln zurück. Wenn Ehud Olmert erklärt, daß es nun unverhältnismäßige Reaktionen geben wird, dann ist sein statement nichts geringeres als die Ankündigung einer Verletzung des Völkerrechts.

The First Trial of the International Criminal Court

2009-01-31T23:47:00.004Z

This Wednesday saw the start of the first trial of the International Criminal Court – a case dealing with the civil war in the Ituri region of the Democratic Republic of Congo. The defendant, Thomas Lubanga, founded and led one of the warring factions (the Union of Congolese Patriots). He stands accused of the use of child soldiers – a war crime under the Statute of the Court.

Trials of this kind are still a fairly recent occurrence. It was only after the Second World War that courts for international crimes were set up – first at Nuremberg, where the defendants were German political and military leaders, then at Tokyo, where Japanese leaders were tried. In the 1990s, further tribunals were established to deal with the cases of the former Yugoslavia and the massacres in Rwanda. But these courts were concerned with very specific situations. And while the idea of a permanent court was considered early on (Donnedieu de Vabres, one of the Nuremberg judges, suggested it), it took until 1998 for that to become a reality: with the creation of the International Criminal Court (ICC).

The basis of the ICC is remarkable. Unlike the Yugoslavia and the Rwanda tribunals, its founding document is an international treaty –which, to this date, 108 States have ratified. Critics point out that several States who carry great weight in the world, have not accepted it – including the United States, Russia and Israel. It certainly does limit the impact of the court.

The Lubanga investigation was not without problems either. On Wednesday, a witness for the prosecution gave evidence, only to contradict his own statement later that day. It was not the first stumbling block for the prosecution. The entire trial should have started much earlier – in summer 2008 – but it was halted, after the prosecution had refused to release more than 200 documents, including information which would have helped the defence. On 2 July 2008, the Trial Chamber even ordered Lubanga's release, finding that a fair trial was impossible (the decision was reversed by the Appeals Chamber).

A string of embarrassments certainly, but probably no more than that. It is too easy to focus on the bumps in the road, worrying though they may be. But this road, which began in Nuremberg, is a significant one; and it is quite possible that its direction is not yet fully visible to those who have taken it.

Bookshelf

The Prosecutor v Thomas Lubango Dyilo. Document Containing The Charges. ICC-01/04-01/06, 28 August 2006
Werle, Gerhard, Principles of International Criminal Law, The Hague 2005
Antonio Cassese, International Criminal Law, Oxford 2008

Gay Rights Before The United Nations

2008-12-24T23:44:00.017Z

United Nations debates may sometimes be a tad dreary, but last Thursday, it was Gunfight at the O.K. Corral. The Argentinian representative drew first: a declaration calling for the decriminalization of homosexuality and condemning human rights violations based on sexual orientation. That proposal (a French-Dutch initiative) was supported by 66 States. Then the Syrian representative shot back: a declaration against the declaration. That one was supported by 60 States.
The issue is of considerable importance: discrimination, torture, even killings of homosexuals occur worldwide. Some 80 States outlaw homosexuality; some have the death penalty for homosexual acts. In parts of Nigeria, it is death by stoning.

It was of course no coincidence that the French-Dutch proposal was made days after the 60th birthday of the Universal Declaration of Human Rights (the UDHR). The authors of the proposal made express reference to it. But it was exactly this point which the Syrian representative did not like: he objected to the introduction of "notions" which had no basis in Human Rights law.

That is a hasty statement. Laws against homosexuality, after all, have been assessed by Human Rights bodies before (and found wanting). In 1981, the European Court of Human Rights had to consider the law of Northern Ireland which criminalized homosexual acts between consenting adults, and ruled that it violated Human Rights. In 1994, the Human Rights Committee came to the same result in the case of Tasmania, which also outlawed homosexual acts. The reason is that consensual sexual activity is covered by the right to privacy, which all of the leading Human Rights instruments guarantee. The government must come up with very good reasons if it wants to regulate what is going on in your bedroom.

These decisions may bring little comfort to gays and lesbians in Nigeria and Iran. The French-Dutch declaration too has no immediate effect – it is not a piece of law, it is not even a General Assembly resolution. But it is an important starting point. Most of all, it brings together an interesting array of supporters. Several African States are among the signatories, eleven Latin-American States (including Cuba) and no less than three members of the Organization of the Islamic Conference (Gabon, Guinea-Bissau and Albania). Just ten years ago, that would have been unthinkable. The thought that freedom from discrimination cannot be unreasonably denied, has begun to transcend territories and traditions.

Bookshelf

European Court of Human Rights, Dudgeon v The United Kingdom, Application no. 7525/76, Judgment 22 October 1981

Human Rights Committee, [Nicholas Toonen v Australia], Communication No. 488/1992

Pratima Narayan, "Somewhere over the rainbow… International Human Rights Protections for Sexual Minorities in the New Millenium", 24 Boston University International Law Journal (2006), p. 313

60 Years of the Genocide Convention

2008-12-20T18:27:00.009Z

Omar al-Bashir (President of Sudan) is accused of it; Karadzic (former President of the Bosnian Serb Republic) was arrested for it: genocide has lost none of its sad relevance. But the word "genocide" was coined only in the last century (in 1943, by the Polish lawyer Raphael Lemkin), and the international treaty which outlaws it – the Genocide Convention – is not much older. It celebrated its 60th anniversary on 9 December 2008.

From a certain perspective, the Convention was a remarkable success. In only two years, some 20 States had become party to it, which allowed it to enter into force. Today, the Convention has 141 parties – including the United Kingdom (from 1970) and the United States (from 1988, after a long struggle). In the 1990s, the United Nations set up two international tribunals which can convict people for genocide committed in the former Yugoslavia and Rwanda. Together, they have issued more than 70 genocide judgments. Genocide can also be tried by the International Criminal Court, if the necessary conditions are met, and if the crime was committed after 2002.

But the need for genocide judgments also shows that the crime has not gone away. Indeed, some experts argue that the Genocide Convention has done little to prevent it. They point to the Srebrenica massacre, the killing of the Tutsis in Rwanda, the ongoing situations in Darfur (Sudan), in the the Democratic Republic of Congo, in Chad and in Burundi, as evidence. What is more, the Convention may have led some States to simply avoid the term "genocide" when referring to certain atrocities. It allows them to escape their obligation under the treaty: the duty to prevent the crime.

To international lawyers, the greatest weakness of the Convention is the fact that it promotes inequality. It protects national, ethnical, racial and religious groups, but only them: the murder of the political opposition, of homosexuals, intellectuals, disabled people or the elderly is not covered. Only recently did the Rwanda Tribunal confirm that acts against "Hutu political opponents" are not considered genocide.

It is an indefensible situation. The Genocide Convention is without doubt a cornerstone of international criminal law, and its foresight in some areas is nothing short of astonishing. But in its unamended form, in which it denies its protection to a considerable number of legitimate human groups, it is difficult to see how it will survive the next 60 years.

Bookshelf

Ralph Henham / Paul Behrens (editors), The Criminal Law of Genocide, Ashgate 2007
Genocide Lectures in Brussels and Leuven in December 2009: http://www2.le.ac.uk/ebulletin/news/out-and-about/2000-2009/2008/12/nparticle.2008-12-16.1564901486 and http://ghumweb2.ghum.kuleuven.ac.be/ggs/events/genocide_affiche.pdf

William Schabas, Genocide in International Law, Cambridge University Press 2000

Has change come to the world?

2008-11-05T19:43:00.010Z

A few hours ago, the President-Elect of the United States gave his victory speech, whose theme was "Change has come to America". Indeed, Barack Obama will make history, by default – the first African American president, and one of the youngest too – the first president who danced for Ellen DeGeneres, and looked good at it. If he will also bring new and wonderful things to international law, that is a different question.

True enough, some changes from the old administration are almost inevitable. There is Guantanamo Bay – the camp where Bush has for six years detained persons he suspects of terrorist acts. Obama made clear that he intends to close the camp and respect the Geneva Conventions, whose full protection has been denied to its inmates. That sounds believable – if only because American courts repeatedly ruled in favour of the detainees' rights. To Obama, Gitmo is not merely a question of moral outrage. It is a cumbersome legacy which he will wish to drop as soon as possible.

But in other fields the new president promises to disappoint. The International Criminal Court, say. Obama finds the kindest words for it – it is "in America's interests" that international criminals are brought to justice. But, says he, "many questions remain unanswered"; it is too early to commit his nation to the court's statute.

What about international environmental protection? Reports have it that Obama will support the successor treaty to the Kyoto Protocol – the protocol in which industrial nations commit themselves to a five percent reduction of greenhouse gas emissions. But this is the same Obama who in 1998 supported a bill in Illinois which condemned Kyoto. Illinois has a strong coal industry. One may assume that industrial concerns will not disappear with the dawn of a new presidency.

The biggest surprise may yet be Obama's position on the use of force. He does not reject the Bush doctrine (the policy which considerably extends America's right to use military force and which is incompatible with the Charter of the United Nations). He states that America should "never hesitate" to use force. He indicates that he would support military action in Pakistan if that State were unwilling to deal with Osama Bin Laden.

Obama's very name carries great expectations – the exuberance of election night bears witness to that. But these are expectations that are based on hope – not on facts, and not even on promises.

Bookshelf

Paul Behrens, "Wo ist das neue Amerika?", Financial Times Deutschland, 27 October 2008. http://www.ftd.de/meinung/kommentare/:Gastkommentar-Paul-Behrens-Wo-ist-das-neue-Amerika/431129.html
Christine Gray, International Law and the Use of Force, Oxford University Press 2004

The International Clockwork

2008-11-05T16:59:00.006Z

A State invades its neighbour. An ambassador is kidnapped by guerillas. A satellite crashes to earth, spreading radioactive material over thousands of square miles. International affairs are sometimes tragic, often fascinating and of lasting importance to everyone. But it is frequently no more than a glimpse of their surface that is shown to us. The mechanism behind them and their consequences; the ambitions and restraints of the shapers of international politics are all too often concealed.
Of course, there are several ways of sneaking behind the stage. There is the psychological analysis, the economic approach, there are cultural and historical views. One perspective is regularly pushed to the margins: that of international law. And yet, it is remarkable how much the view of the law can reveal about current affairs. The rules of international law dictate the outcome of particular events, are used as excuses and are invoked to force States onto a specified path. Why do States use machine guns in warfare, but not teargas? Why is the son of a consul arrested, but not the daughter of a diplomat? Is our government in trouble if it orders the assassination of terrorists? The answers to all these questions lie firmly within international law – the law that governs the relations of States and the international rights and duties of individuals.

But lawyers do not have a good reputation, and international lawyers are no exception. They are perceived as living in a world apart, where clear and simple language is not welcome. That criticism is often justified, but it would be a shame if international law is therefore removed from public discussion. International law after all lays down the rules of war and peace; it regulates the international protection of the environment and allows the prosecution of genocide as an international crime. It is a matter which must not be confined to the marble of the embassy and the bricks of the university; it is, in the words of Kimminich, "too important to be left to international lawyers".

This blog will look at selected events which made the headlines and which are relevant to international relations. It is not a parade of academic theories and not a template for university essays. It is is merely a commentary of world events, on their causes and the mechanisms behind them; in other words, it is a lawyer's peek at the international clockwork.