Thursday, November 25, 2010

Apprehending Kony: Part II

A few weeks ago I blogged about the propriety of possible US intervention in Uganda, in a bid to end the campaign of Joseph Kony's Lord's Resistance Army.  Apparently this is now set to actually go ahead, although only by proxy via support to Ugandan troops, rather than via physical US presence. 

Whether or not this is likely to have any impact is not clear, given that previous attempted purges of the LRA, even with the combined efforts of the various affected countries (such as snappily-titled "Operation Lightning Thunder"), have come to nothing. If anything they have only provoked further attacks. The new US-backed campaign, however, seeks to "promote the defection or disarmament of LRA fighters" rather than to tackle them head-on. This seems a reasonable policy given the fact that the vast majority of LRA fighters are abductees, many of whom would be more than happy to defect (although see Tim Allen's incisive account of the problems of reintegration, amongst other things). Even then, however, as long as Kony and the core of the LRA command remains, the insurgency is not likely to end, and the chances of catching a handful of individuals in this vast, impenetrable wilderness seems remote.

Moreover backing Uganda to carry out the job assumes a great deal of responsibility. The UPDF's (Ugandan armed forces) record on human rights and humanitarian law is far from spectacular and the emptying of Acholiland into camps has arguably generated greater mistreatment of individuals than the LRA's apocryphal campaign. The ICC's monitoring of the situation should, it is hoped, serve as a deterrent to future abuses.

Much to ponder. But above all we must hope that, however it is brought about, this area is soon purged of violence once and for all.

Tuesday, November 23, 2010

Tales for international lawyers

As a child I hated tales, I still do. They are bedtime stories, they talk about imaginary creatures I don’t really fancy (princes and princesses), and they are too allegoric for my taste. So it is much to my surprise that I am drawing your attention to a tale about international law and international lawyers. It’s called: Once upon a time there was a gap... It’s not a bedtime story, as it does not help you fall asleep, but rather awakens your thoughts, I really fancied the characters, not least sympathise with them and their struggles, and found the allegories suspiciously similar to recent developments in international law.
So, congratulations to Roger O’Keefe, the author of this tale, for he might have produced something similar to Fuller’s ‘Speluncean Explorers’, if I dare say. My sympathies to the ‘Nottingham PhD delegation’ at the 4th ESIL Biennial conference: as all of us were in the other room, attending the forum on International Institutions...
What a shame Adamantia, Annika, Kerry and Paolo, we did not actually hear Roger narrating what I bet will be a future point of reference.
Think about having this piece as part of your readings in an international law class; in the meantime I will highlight my favourite points regarding the story, the allegory and the characters, by sharing some of the questions I asked myself after reading the ‘Tale of the Gap’

Thoughts regarding the role of International Lawyers

So, O'Keefe’s rapporteur on Gaps and Silences in International Law came up with a final report mentioning that

‘While there may or may not be gaps in international law, there are never silences. International lawyers cannot shut up’ (!)

and that

‘In construing this report some placed the emphasis [...] on how international law becomes a site for the protection of personal and institutional desires and ambitions’

So what kind of lawyers are international lawyers?
Are we the kind of lawyers that spend time rambling about everything and actually saying nothing in the end, like the French rapporteur, who had to produce 32 reports in order to conclude that 'there may or may not be gaps in international law'? Are we feeding our discipline by reproducing ‘a judge’s throat-clearing’? Are we taking ourselves too seriously, by overestimating our work and loading international law with more aspirations than it can deliver? Are we scholars that just adore the tone of our voice and take every opportunity to use our voice and make shallow comments on ‘crises’ that international law has to address?. Are we just trained to serve a 'discipline of crisis', as Hilary Charlesworth mentions in her article in the Modern Law Review?

Think about the allegories
I am not suggesting that O'Keefe had them in mind, but I cannot help mentioning that the 'ILC study on Gaps and silences in the law' awfully resembles the ILC study on Fragmentation. The 'ICJ opinion on the Legal Consequences of the Detection of a Hole by the Preoccupied Juridical community' reminds me of the Nuclear Weapons advisory opinion and the vast amount of literature discussing the 'non-liquet'. Am I the only one who thinks about Tadic, when reading about the 'International Tribunal for Criminal holes and Yoghurt'? Or Kosovo, or Iraq, when reading about the 'coalition of states [...] (and) the invasion of another state by reference to the indeterminacy of international law'?
When we look back at them, what can we say about the way international lawyers have responded, (or are trained to respond) to the challenges of international law?

Finally, think about the characters (don’t be tempted to think of names...); here, in the school of law, when we teach the ‘Speluncean explorers’, we ask our students to pick their favourite judge. I have recently witnessed undergraduates voting for Truepenny, Foster, Tatting, Keen, Handy, and it’s one of the moments that can be both funny and revelatory of our assumptions and choices about the law and our role as lawyers. So, I will challenge you to do something similar: pick your favourite character.
Who would it be?
The Comptroller-General
The English gentleman of the Foreign office
The boyish Finn
The Australian professor
The French Special rapporteur for gaps and Silences in the law
The American JD student...???

Personally, I vote for the American JD student! Though a part of me identifies with the Comptroller-General for the Complete System (blame it on my heavy positivist background and legal training), I go for the person that seems to have sustained the discipline and given research/work opportunities to international lawyers...
So having secured some future work opportunities, I am expecting your comments and your votes...

Till then, goodnight and good luck!

Recommended Song by Adamantia Rachovitsa: The Missing piece by Shel Shielverstein

P.S. My recommended song has been rejected for two reasons
1. It's Greek
2. It's called 'Room in Amsterdam' and basically talks about getting high on drugs. But can there be a better high than international law? so, forget about drugs and Amsterdam...

Thursday, November 18, 2010

Universal Jurisdiction in limbo at the ICJ

Thanks to the fantastic EJIL:Talk! blog I have recently discovered that the ICJ case Certain Criminal Proceedings in France (Republic of the Congo v France) has been discontinued, following a request from the Republic of the Congo (RoC).  The case would likely have dealt with a number of key issues related to the exercise of universal jurisdiction, providing much-needed guidance on the legality of its usage in certain instances. The ICJ previously had the opportunity to discuss universal jurisdiction in the DRC v Belgium "Arrest Warrants" case, yet that was ultimately decided on the issue of official immunities, confining the topic of universal jurisdiction to be discussed in a series of invaluable separate opinions from several of the judges. It now looks like that gap will no longer be filled.

The Certain Criminal Proceedings case concerned an incident in the RoC in May 1999, when some 6,500 returning refugees were making their way from Kinshasa to Brazzaville following the conclusion of civil strife in the latter. On being met by military personnel in Brazzaville, around 350 of the returnees were allegedly abducted, apparently never to be seen again. No action was ever taken by the Congolese authorities against those involved and, so, in December 2001 the FIDH filed a complaint with the French courts, accusing the generals involved of torture and invoking French universal jurisdiction laws (not a unique case - the Ely Ould Dah case, also in France, resulted in the in absentia prosecution of a Mauritanian general for torture). The French courts' willingness to take the case forward then prompted the complaint by the RoC.

I don't intend to judge this case in lieu of the ICJ, but many of the issues raised by the RoC in their application strike straight to the heart of modern debate over universal jurisdiction. Consider the following excerpts:

Under international law, French criminal courts lack jurisdiction to address alleged crimes against humanity which, according to the proceedings instituted in the present case by the Ministère public pursuant to the complaints filed by certain associations, are stated to have been committed abroad, by foreigners, against foreigners. ...

This lack of jurisdiction stems from the principle that a State may not exercise its authority on the territory of another State. This principle is enshrined in the Judgment of the Permanent Court of International Justice in the “Lotus” case ...

This, then, is clearly an exceptional head of jurisdiction, which derogates from the principle of territorial sovereignty in criminal matters.

An ICJ judgement would have brought some much needed advice on these questions, much assisting the ongoing scholarly debate between two fairly polarised extremes. As to why the RoC requested the case's withdrawal, we can only speculate.

Monday, November 15, 2010

The end is nigh...

IntLawGrrls has a piece on the closure of the Charles Taylor trial which, after almost three years of hearings and a string of celebrity appearances,  has come to an end. A judgement is expected in mid-2011. Valerie Oosterveld neatly summarises the main contentions in the case, which notably will pronounce on the guilt or innocence of a former head of State (it may be the first or second to do so, depending on whether we count Jean Kambanda).

This has been an incredibly important process, and a credit to all involved. Moreover by engaging with the process (once detained) rather than obstructing it, Taylor has demonstrated that a vigorous defence, even in the light of extremely negative media potrayals, is a real possibility at this level.

Tuesday, November 09, 2010

Is torture ever justifiable?

George W. Bush claims that the waterboarding of three individuals "helped break up plots to attack American diplomatic facilities abroad, Heathrow airport and Canary Wharf in London, and multiple targets in the United States" and that he has no regrets over that decision. If we are to believe these claims, the decision to treat these men in this way undoubtedly saved many lives. Of course Bush's opinion must be placed in a very important context, namely Bush's claim (based on the advice of his lawyers) that waterboarding is not a form of torture - thus the implication is that he would not (overtly at least) approve of actual torture.

But, supposing for the sake of argument that waterboarding does count as torture (and majority opinion seems to go this way) - then without a doubt it would become unjustifiable as a matter of international law (perhaps even a norm of jus cogens). Even still, would the scenario laid out by Bush justify such a course of action? Compare Bush's statement with that of MI6 chief Sir John Sawers: "If we know or believe action by us will lead to torture taking place, we're required by UK and international law to avoid that action, and we do, even though that allows that terrorist activity to go ahead."

Who's right here? As a matter of law and, probably, morality, then it is Sawers.  But does his claim make you feel better about UK policy, or does it chill you just a little (or both)?

Monday, November 08, 2010

EQ: New Issue!

The International Bar Association's "ICC Monitoring and Outreach Programme" has just published the most recent edition  of its magazine, "EQ: Equality of Arms Review". The link is here.

This substantial edition focuses on the ICC Review Conference held in Kampala last summer. It features, amongst other things, an article by ICC President Judge Song offering his perspective on the conference, the views of Dapo Akande and William Schabas on the definition of aggression, a critique on State cooperation by chief legal adviser to the Commonwealth Secretariat, Akbar Khan, and a comment on the historic significance of the Conference by CICC Convenor William Pace.

Thursday, November 04, 2010

This revolution could swallow its children

The following is an article that I read today. You may find it at the research professional database.

This revolution could swallow its children

UK will regret withdrawing funding from institutions of learning

Ehsan Masood

As this newspaper has pointed out from day one of the coalition government, the business of scholarship in the UK is in the midst of a revolution whose impacts—though not yet known—are likely to be as significant as the election of Margaret Thatcher in 1979.

Wherever you look, fundamental changes are being made to the structure, function and funding of institutions of knowledge. These changes are being driven primarily by questions of funding such as why should the state fund knowledge and who else could provide funding if the state chose to withdraw?

The Browne review’s findings have been much challenged. But nowhere in the government’s initial response to that review did anyone question whether it is the role of the state to provide a country’s university teachers with a stable source of income and funding. The review has clearly questioned the need for such a role and the question is seen as a valid one.

Similarly, the bonfire of the quangos contains the embers of a large number of independent scientific advisory committees. It is a long standing tradition of the modern liberal democracy that governments are prepared to provide funding for researchers to give—as far as is politically possible—independent advice on policy matters. Such a tradition is now in question.

How much should we be worried by all this?

It should be said that such developments do not necessarily mean that the coalition is not interested in expert advice, or that it wants to destroy universities. What it does mean is that the coalition thinks Whitehall is not always the best funder of knowledge and learning.

That said, we should still be concerned.

Take the UK’s system of dual support. The UK has gradually been trimming back on a system envied and much imitated by others because it provides predictability of funding for universities. Indeed, it was the reason the system was created in the first place.

Dual support exists so that teachers and researchers can focus on teaching and training future generations without having to worry about packing their classes with hundreds of fee-paying students or (as is more common in other countries) getting a second job. In UK further education, academics often do not know if they will have a job until enough students sign up for their courses. If this happens in universities, less popular disciplines will suffer.

Likewise, we should also be worried about the demise of state-funded advisory quangos such as the Sustainable Development Commission, the much older Royal Commission on Environmental Pollution and the transfer of some of the Food Standards Agency’s functions to the Department of Health and the Department of Environment, Food and Rural Affairs.

The principle that independent experts, funded by the state, should advise and scrutinise government policy is being replicated in emerging economies. In African countries such as Rwanda, the policy is implemented by the UK taxpayer through projects funded by the Department for International Development.

Effective, arms-length advisory bodies funded by government may well look like a luxury in the good times but they are a good insurance policy against possible crises. The Food Standards Agency—itself born out of the bovine spongiform encephalopathy crisis—has had a relatively quiet decade but it is bizarre to think that it is being downscaled in part because we have not had a comparable food scare since.

The coalition’s reshaping of the Financial Services Authority shows that it completely understands the need for arms-length institutions that look after the needs of consumers. The FSA is being split up because one of the lessons of the financial crisis is that a single regulator couldn’t act for both banks and consumers.

An unfortunate outcome of the Spending Review is that this country’s present and future generations are being denied tried and tested UK innovations in knowledge and learning; innovations that are already benefiting young people and citizens across the world and will continue to do so long after they are abandoned in these isles.

Wednesday, November 03, 2010

Song Lyrics and Sworn Evidence (Part I)

We can all agree that attempting to pun by inserting song titles into everyday speech is pretty silly. Maybe it’s OK if you’re the 1998 England World Cup Squad, and when you’re Gareth Southgate, the effect can be amusing (although they are laughing at you, not with you) . However, when you’re a police firearms officer giving evidence to the inquest into the death of Mark Saunders, the effect is more serious. It is likely that the officer will, if the allegations are proven, face disciplinary action, but it is also necessary to question the effect of these allegations on the safety of the verdict rendered by the inquest jury.

Witnesses give sworn (or attested) evidence at inquests. Therefore, failing to give true evidence can give rise to serious consequences, up to and including a prison sentence. But what if the evidence given is true, but expressed in a lyrical manner? Does this affect the safety of the jury verdict? If so, what action can be taken?

Further, given the involvement of state agents the death of Mark Saunders, article 2 of the ECHR requires an effective public investigation into the death (see R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182). Has an ‘effective public investigation’ been afforded if evidence was given with at least one eye on ensuring that particular phrases are contained within it?

I’ll explore these questions in the next post, and consider consequences could result for the inquest verdict following the alleged actions of the firearms officer.