The International Jurist

Qaddafi’s Fate Under Discussion: the International Community’s Responsibility in Question

Wednesday, July 27, 2011
by Xavier Rauscher

I had been meaning to write a series of posts on the travails of R2P and the situation in Libya a few months ago. Although I had announced that I would be writing on these issues, I regrettably never found the time to write anything publishable.

Time is as ever short as it has been for the past 4 months, but the discussion and debates surrounding the fate of Libyan leader Muammar Qaddafi are sufficiently challenging and telling of the difficulties of the Responsibility to Protect (R2P) doctrine and of international criminal justice that I feel like pitching in as well.

For those who missed it, about a week ago, French Foreign Minister Alain Juppé announced that Colonel Qaddafi could eventually stay in Libya if he relinquished power:

“One of the scenarios effectively envisaged is that he stays in Libya on one condition, which I repeat: that he very clearly steps aside from Libyan political life,” Mr. Juppé said on the French television channel LCI. “A cease-fire comes about by a formal and clear commitment by Qaddafi to give up his civil and military responsibilities.”

This surprising change of policy from one of the nations that most actively pushed in favor of UN Security Council Resolution 1970 (2011), which referred the situation in Libya to the International Criminal Court, was later confirmed by the United Kingdom’s Foreign Minister William Hague (see video here) and by the United States, as well as by certain rebel leaders.

There is no doubt that this new move was calculated to bring about a window of opportunity for political negotiations towards an end of the persistent stalemate that has characterized this civil war, and of Western military engagement, which has proven costly for already cash-strapped States.

But whether this move helps negotiations move forward or not – History will tell – it is a challenge and a blow to the International Criminal Court’s work and fragile legitimacy for it to be brushed away in the midst of a crisis by two countries that are among the Court’s strongest supporters among middle-powers: France and the United Kingdom.

The ICC quickly reacted to this change in policy by reaffirming that Qaddafi cannot be left in Libya by virtue of the arrest warrants which were quickly issued against the Libyan leader, his son Saif Al-Islam and the head of Libya’s Military Intelligence Abdullah Al-Senussi:

“The international criminal court has dismissed suggestions by Britain and France that Colonel Muammar Gaddafi could be allowed to remain inLibya as part of negotiated deal to remove him from power, insisting that a new government would be obliged to arrest the dictator under warrants issued by the court. (…)

But Olara said the decision to seek justice had been made in the UN, adding that the ICC’s arrest warrants were “legal facts” which “cannot go away”.

“Any negotiation or deal has to respect (UN Security Council resolution) 1970 and the ICC’s decision,” Olara said.

And so, predictably, the Libyan case becomes yet another intellectual battlefield for debates on the relationship between peace and justice, and the price of each compared with the other. (Continued)

Filed in Responsibility to Protect (R2P), Transitional Justice & International Criminal Law | Tagged International Criminal Court, International Criminal Justice, Qaddafi, UN Security Council | Comments (2)

Mark Kersten on the ICC’s Involvement in Conflicts Which Preexisted Its Creation, and my Unannounced Blogging Hiatus

Tuesday, July 5, 2011
by Xavier Rauscher

Mark Kersten has a very interesting post up over at his blog Justice in Conflict, titled “Why the ICC Should Think Twice before Investigating Conflicts with Roots Before 2002.” In it, he reflects on the temporal limits of the International Criminal Court’s jurisdiction, and more specifically on the consequences of the ICC’s involvement in conflicts that pre-existed the 2002 limit, such as Uganda (the conflict between the Ugandan government and the LRA dating back to 1986). Here’s a teaser:

There are two fundamental dangers which the Court faces when it investigates situations with the life-span and dynamics such as the conflict in northern Uganda.

First, the Court will have incredible difficulties in contributing to peace in such contexts. For meaningful and lasting peace to be established and maintained, both the causes and the dynamics of conflict must be resolved. But by focusing on only a slither of the life-span of a conflict, the ICC acts to readjust how the international community understands, frames, and ultimately attempts to resolve the war. Roots causes and key moments when altered dynamics are ignored because they occurred prior to 2002.

The second, and more obvious, danger that the ICC faces is one of selectivity. By virtue of being bound to its temporal jurisdiction, in Uganda the Court could not investigate allegations of the gravest of crimes committed by the UPDF which occurred prior to 2002. As noted above, the people of northern Uganda see this as tilted and biased justice. It has been said many times that it is not sufficient for justice to be done; it must be seen to be done. If the Court is seen to be biased it hurts its own cause and mandate.

These are very interesting points, and I would be very interested in reading more about this problematic I had not encountered or thought of before. Two thoughts occur to me:

First of all, although the Ugandan case in terms of time-span is relatively rare, and that as Mark notes the temporal jurisdiction is not problematic in most situations, it could be difficult in certain (for now theoretical) cases to date precisely the beginning of a conflict and establish clearly whether it started prior or after the 2002 limit. The Ugandan situation is an obvious case in point (the conflict has effectively been ongoing), but other situations could very well be less clear, although it’s to be expected that as the Court’s existence lasts, the 2002 limit will become less and less of a problem.
More concretely, in the case of Uganda, as Uganda self-referred itself to the ICC and that this was one of the ICC’s first case (and the LRA being a notorious organization, it was quite a case), I find it difficult to imagine the ICC turning it down for the reasons Mark has raised. Impartiality is the biggest issue for an international court, or any court of law for that matter, who wishes to establish its credibility and legitimacy, and I understand Mark’s point on impartiality regarding Uganda. But refusing to intervene in an ongoing conflict in which crimes are being committed because the conflict preexists the Court’s existence seems to be an even worst solution than intervening.

All in all, it begs the question: is partial justice better or worst than no justice at all?

The question is complex on many levels and open to debate. As far as I’m concerned, I prefer partial justice, with the hope of setting precedents on which to build a more universal and impartial justice in the near future. But I could be dead wrong.

On another note, readers will no doubt have noticed that the blog has been very quiet for the past, oh, at least two months. I apologize for this, especially that it came without warning. I am currently working outside the field of international law (rest assured, this is only temporary), making it more difficult for me to blog on such issues on a regular basis and hopefully in an insightful manner.

Therefore, the blog will remain in hiatus for the summer until I can get back to it more seriously. I will be back though, without a doubt.

Filed in General International Law, International Criminal Court, Transitional Justice & International Criminal Law | Tagged International Criminal Court, International Justice, LRA, Mark Kersten, Musevini, Uganda | Comments (3)

Osama Ben Laden’s Demise and the Urgent Need to Clarify the International Law of Counter-Terrorism

Wednesday, May 11, 2011
by Xavier Rauscher

1. Introduction

Much has been said about Osama Ben Laden’s demise, and more precisely about the legality of the military action that lead to his death. I will admit to being rather pleasantly surprised by the volume and relative quality of the discussion that it entailed, and that it would be so heavily present even on mainstream media, not only in Europe but in the United States as well. I consider that as a relatively positive sign that people are asking questions about the legal frameworks and policies that are in place to counter global terrorism, even though I often disagree with the conclusions offered in a general atmosphere of American euphoria.

I will not add commentary to the legality of Ben Laden’s death. For one, much has been said, and I retained a few links I found to be particularly comprehensive which I will post below. Secondly, information is still unclear as to what happened, and it is impossible to offer a definitive assessment unless we have all the information at hand.

What I would like to focus on is not so much Osama Ben Laden’s death itself but what the debate it generated says about the state of international law regarding what are the legal policies available to States to counter terror, and what are the issues that still need to be addressed. Osama Ben Laden’s death, albeit being relatively “clean” in comparison to other American-led military operations, is emblematic of the difficulties we have in establishing clear and acceptable international legal policy against global terror. It effectively raises issues pertaining to all the demons of the recent struggle against terrorism: extrajudicial or “targeted” killings, the use of torture, the extent to which we can use military force against terrorist networks, not to mention some fundamental philosophical, moral and ethical questions on the meaning of the word “Justice.”

While covering each of these issues would probably require a book or two, I will concentrate on the bigger scheme of things on the competition between a law enforcement approach and a “war model” to counter-terrorism, and the need to adapt international law and find a new compromise between the security expectations of States on the one hand, and fundamental human rights and respect for human dignity on the other. It is urgent for the actors in the field of international law to clarify applicable rules in order for us to leave this persistent grey zone regarding applicable counterterrorism rules that sparks so much debate and controversy. (Continued)

Filed in 'War on Terror', International Security Issues, Law of Armed Conflict | Tagged International Law, Navy SEALs, Osama Ben Laden, Pakistan, Sovereignty, Targeted Killing, War on Terror | Comments (1)

Why International Fora Matters in 2011 – Shlomo Avineri on Israel’s Boycott of the Goldstone Probe

Wednesday, April 6, 2011
by Xavier Rauscher

I had no plans in particular to continue writing about Judge Richard Goldstone’s Washington Post op-ed from last Friday, but this article in Haaretz from Israeli academic Shlomo Avineri, “Israel was wrong to boycott the Goldstone Probe,” was too interesting not to share.

Considering the amount of jubilation coming from the Israeli media and Israel supporters since last Friday on Richard Goldstone’s “retractions” (not that the word corresponds to reality), it’s good to see some rationality being published in the media in Israel, especially from someone as respected as Professor Avnieri. He writes from the start:

Even after Richard Goldstone retracted his statement that Israel deliberately targeted civilians in Gaza, the diplomatic and moral damage to Israel caused by the Goldstone report will not disappear, just as the Supreme Court’s acquittal of Israel Kastner back in the 1950s didn’t erase the terrible things said by Judge Benjamin Halevy in the district court ruling. (“He sold his soul to the devil.” ) That’s the power of metaphors as opposed to dry facts. As far as Israel is concerned, the lesson is simple: It shouldn’t boycott international forums, even if they are clearly biased against it.

And concludes aptly:

Israel made that mistake earlier when it didn’t appear before the International Court of Justice in The Hague regarding the security fence. Here too it left the arena to the Arab side. Former Supreme Court President Aharon Barak should have been sent to The Hague to present the Israeli Supreme Court’s balanced and responsible view, which recognized Israel’s right to proportionate self-defense. In light of these two failures we can only long for the days when Israel’s representative at the United Nations, Chaim Herzog, tore to shreds in the General Assembly the decision equating Zionism with racism. These are things that are etched in the international collective memory. There have been boycotts in the past against UN institutions, but by the Arabs. The Palestinians boycotted the UN Special Committee on Palestine that recommended to the General Assembly the partition of British Mandatory Palestine. Usually the side that boycotts is also the side that loses. We can hope that this lesson will be learned: The United Nations and its institutions are political rather than legal bodies, and we must not give up the political struggle.

I am not interested in engaging into the thorny political debate that characterizes the Israelo-Palestinian conflict, but thought this op-ed was a clear and well-reasoned reminder of the importance of international fora and of the respect for international law and institutions in world public opinion today. Whatever you may think of the imperfections of the United Nations or other international institutions, and there are without a doubt many, boycotting them is never the solution, as they are now an essential source of legitimacy in the eyes of many for any public action.

That is why the “delegitimization campaign” the Israeli government and its supporters like to denounce regularly is, if it exists at all, at least partly self-inflicted. By refusing to engage constructively with at least the moderates among its critics in international fora and elsewhere, Israel only isolates itself further. Had Israel appeared before the International Court of Justice in The Hague, which is by far the most respected and the most influential of all international courts, maybe the Wall Opinion would have been different. Had Israel cooperated with the Goldstone probe despite the fact that yes, the Human Rights Council is (was? I haven’t been following lately) notoriously biased against Israel, then the Goldstone report might have been different, and would have spared Israel, as well as a brilliant and honest international jurist, a lot of problems.

Again, “usually, the side that boycotts is also the side that loses.”

Filed in General International Law, International Security Issues, Transitional Justice & International Criminal Law | Tagged Gaza, Goldstone Report, international fora, international institutions, Israel, Richard Goldstone, Terrorism | Comments (1)

Richard Goldstone’s Hindsight on the Goldstone Report

Sunday, April 3, 2011
by Xavier Rauscher

: Judge Richard Goldstone

On April 1^st, 2011, Judge Richard Goldstone, an eminent international jurist who was the former Chief Prosecutor for the ICTY and ICTR and the head of the UN fact-finding mission on the 2009 Gaza conflict, published an op-ed piece in the Washington Post in which he “reconsiders” in hindsight some of the conclusions of the mission’s report (PDF file), which he authored. The 575-page document, infamously known as the “Goldstone Report,” had made something of a splash when published as it was considered by supporters of Israel to be excessively critical of Israel Defense Forces (IDF) also known as Tsahal, and this despite the fact that the report also target Hamas’ conduct during the hostilities. Israeli Prime Minister Binyamin Netanyahu famously compared in gravity what he called the “Goldstone threat” – a “codeword for an attempt to delegitimize Israel’s right to self-defense” – to the “Iranian threat” against Israel.

Nevertheless, Richard Goldstone’s op-ed is interesting and, we presume, a show of responsibility and integrity. Judge Goldstone writes:

“We know a lot more today about what happened in the Gaza war of 2008-09 than we did when I chaired the fact-finding mission appointed by the U.N. Human Rights Council that produced what has come to be known as the Goldstone Report. If I had known then what I know now, the Goldstone Report would have been a different document.

The final report by the U.N. committee of independent experts — chaired by former New York judge Mary McGowan Davis — that followed up on the recommendations of the Goldstone Report has found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”

Unsurprisingly, the Israeli government, as well as unconditional supporters of Israel and critics of the Goldstone report are rejoicing and taking advantage of such admissions. Prime Minister Binyamin Netanyahou has called for the report to be “tossed into history’s trash can”. “Jewish” groups (as a Frenchman, I am always uncomfortable with such labels) have demanded repair damages from Goldstone. In a post over at The Volokh Conspiracy, David Bernstein attempts to twist this story (citing NGO Monitor on the way – bad idea) by implying that Richard Goldstone was from the beginning of bad faith and is still today by attempting to blame Israel for his erroneous conclusions.

But there is a lot more to Goldstone’s op-ed than just retractions.

(Continued)

Filed in 'War on Terror', International Security Issues, Law of Armed Conflict, Transitional Justice & International Criminal Law | Tagged Goldstone Report, Hamas, Human Rights Council, International Humanitarian Law, Israel, Laws of Armed Conflict, Richard Goldstone, United Nations | Comments (4)

The Travails of R2P – The Legal Challenges of the Military Intervention in Libya (Introduction)

Friday, April 1, 2011
by Xavier Rauscher

As I have not blogged in a while, and as the situation in Libya has been getting a lot of coverage by legal blogs and other forums, I decided to cover this situation in a more original and structured fashion than usual. Instead of the usual ad hoc commenting, I intend to write a series of posts titled “The Travails of R2P – the Legal Challenges of the Military Intervention in Libya” covering different aspects of the legal issues that have arisen and still pose problem.

I will do so in three parts:

Part I on the question of the scope of UN Security Council Resolution 1973(2011) which authorized UN Member States to take military action to protect civilians in Libya;
Part II on the difficulty of establishing a coherent R2P intervention doctrine, the most important challenge for supporters of R2P;
and Part III on the role of the International Criminal Court and what is to come for Gaddafi and his lieutenants if the current regime does fall.

The idea here is to offer a synthesis of past discussions as well as more current and pressing debates. By mixing “old” and “new”, I hope to keep my posts interesting and complete.

I am already well on my way writing Part I. Stay tuned.

Filed in International Criminal Court, International Security Issues, Law of Armed Conflict, Responsibility to Protect (R2P), Transitional Justice & International Criminal Law | Tagged Gaddafi, Libya, R2P, Responsibility to Protect, UN | Comments (1)

International Humanitarian Law, Military Intervention and the Lives of Soldiers

Wednesday, March 30, 2011
by Xavier Rauscher

David Bosco over at The Multilateralist has a short but interesting post on the lack of consideration for the lives of soldiers when discussing military intervention – such as is currently the case in Libya, under the auspices of a more or less clearly admitted R2P (Responsibility to Protect) doctrine.

Mr. Bosco writes:

The operational incoherence of the doctrine isn’t the only problem: there’s also a moral gap. Put simply, shouldn’t the international community also care about the lives of combatants? An extended civil war fought in compliance with the laws of war will take hundreds and perhaps thousands of lives. War is tragic and awful not only when civilians are killed. World War I was an epochal moment in the world’s moral approach to war not because civilians were massacred on a large-scale, but because soldiers were.

Reading the Security Council resolutions and listening to Western political leaders, one has the impression that the moral questions here begin and end with the treatment of civilians. Those carrying arms are placed in a separate moral universe. (…)

The notion of civilian protection has become so dominant as a discourse that it is not only threatening the effectiveness of the ongoing intervention, it is also–and quite perversely–shrinking our moral horizons.

David Bosco is clearly positioning himself on moral/political grounds when discussing this: namely, that politicians and diplomats focus so much on the protection of civilians that they lose perspective on the value of the lives of the men and women they send in harm’s way to achieve their goals. It’s a complex moral issue to which I am not sure I can contribute much value. As someone who has never served, I would feel most uncomfortable discussing the “expandability” of soldiers, and to what extent it is moral to sacrifice the lives of soldiers to protect civilian’s.

But as an international lawyer with a focus on the laws of armed conflict, which includes both jus ad bellum and jus in bello, there is some food for thought in David Bosco’s post about the notion of morality and concern for combatants in international law. How does relevant laws apprehend moral issues with regards to soldiers, and not just civilians, at the heart of the most “immoral” situation known to mankind that is war? (Continued)

Filed in International Security Issues, Law of Armed Conflict | Tagged armed conflict, International Humanitarian Law, jus ad bellum, Jus In Bello, Laws of Armed Conflict, moral issues, War | Comments (5)

Qaddafi’s Fate Under Discussion: the International Community’s Responsibility in Question

Mark Kersten on the ICC’s Involvement in Conflicts Which Preexisted Its Creation, and my Unannounced Blogging Hiatus

Osama Ben Laden’s Demise and the Urgent Need to Clarify the International Law of Counter-Terrorism

1. Introduction

Why International Fora Matters in 2011 – Shlomo Avineri on Israel’s Boycott of the Goldstone Probe

Richard Goldstone’s Hindsight on the Goldstone Report

The Travails of R2P – The Legal Challenges of the Military Intervention in Libya (Introduction)

International Humanitarian Law, Military Intervention and the Lives of Soldiers

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