Call for A Few Good Academics & Lawyers

To my friends and colleagues in international law around the world,

I am looking for some of you good people to volunteer some of your time and grey matter towards an analysis project reviewing the UK’s Iraq (Chilcot) Inquiry. It is without doubt that many of us have waited a very long time for the report to be released. Indeed, some of you may have been involved in matters directly related to representations before the Chilcot Inquiry. I know many of you will be interested in reading the report for personal and/or professional reasons. As somebody who lectures on War Crimes, I anticipate my students will be keen to raise the matter in the autumn.

Here is the thrust of the project:

I’m asking for us to come together and share our insights amongst ourselves, and to put out our review to media outlets for their use in the future. No matter where you are in the world, if you are able to hunker down with a PDF section of the report, provide annotations, and be able to write a review of the key information, we are looking to collaborate on a sort of international legal Cliffs/Coles notes to Chilcot, followed by a summary of possible implications the report might have. This may include providing interviews to television news, radio, and newspapers in your various locations – the wider the spread of academics and lawyers, the wider we will offer the final review.

Please get in touch if you are interested in participating. I’m hoping to get this project going rather soon, with the aim of having a completed publication by the early autumn 2016. You can either get in touch be responding to this post, or if you have my personal details get in touch directly.

You will require internet access, Adobe Acrobat Reader (free), and access to Google Docs. Ideally, you should be able to also participate in either Skype or Google Hangouts audio/video conferences too. I will provide technical support as needed.

I look forward to hearing from you all. I’m certain many others are as well.

Best,
George

The Road to PhD: Day 1 – Application and Ideas

stick_figure_sit_in_question_mark_1600_clr_2623

I have spent the last year or so struggling to determine where my career should go next. As a matter of background, I wrote my LL.M Thesis on the Scottish Referendum and the international legal aspects that should inform that process. Necessarily, my interests were more than academic – research and writing must eventually be tested in the crucible of reality. In this instance, that meant continuing observations and analysis of the Referendum, including the aftermath. (I authored a submission to the Smith Commission post-referendum with regards to the implications of the promises for further devolution and constitutional change during the campaign.)

This time has come and gone, though it remains to be seen as to what constitutional changes will be implemented – change that will only come after the next UK General Election in May.

stick_figure_hold_earth_1600_clr_1925However, many of the questions posed by the Scottish referendum, in conjunction with events in Ukraine (Crimea and the Eastern Regions) and so-called Islamic State (Syria and Iraq), have created a significant dearth of opportunity for considering what may, for some, be a straightforward question: What is a State?

More specifically, it is likely to be the case that my PhD will examine the role that international legal theory plays in the creation of new states, juxtaposed against the looming backdrop of practical reality and pragmatic geopolitical policies. (Fun stuff, I know…)

Today has been carving out some supplementary chapter headings as a roadmap for my research. I hope to use this template to formulate the content of the PhD application itself, which would then be submitted to a number of institutions for consideration. The key elements in deciding which universities to apply to comes down to which faculties contain relevant experts on this topic, capable of ensuring that I keep to both the project path and within the relevance of international/constitutional law. That said, I do have a couple of institutions that are top of that list in my mind…

To elucidate on the central motivation behind the PhD, I offer the following thought. The experience of Québec and Scotland showed a certain acceptance that a particular domestic constitutional arrangement can be made whereby a sub-state territory may gain independence and attain statehood without violence or conflict. The main idea here would be that the parent state would immediately give legitimacy to the newly-emerged state should the constitutional order be satisfied. However peaceful and civilised that arrangement may be, international law would have had little to no input on whether the international community  at large would recognise the legitimacy of the emergent state. The prevailing declaratory theory of statehood takes only into consideration that a state has (a) a permanent population; (b) a defined territory; (c) government; and (d) a capacity to enter into foreign relations. (These are collectively referred to as the ‘classical’ or ‘Montevideo‘ criteria of statehood.)

table_of_the_world_1600_clr_8705There exists a competing theory of statehood – the constitutive theory. To date, it has been rejected by various courts (including the International Court of Justice in The Hague). At its core, the attainment of statehood status depends on the international recognition of a particular state by other states. As recognition is primarily a  political decision, not a legal one, criticism for this theory is understandable – erstwhile-legitimate states may be denied a ‘seat at the top table’ and all the privileges that are commensurate to being a primary state actor in the international arena.

However, suggesting that there is no legal defined process under which a sub-state territory may rely upon for guidance (for which the current theory does not make account) leaves open the process to both political perversion and systematic abuse. In essence, even having the goalposts moved still systematically retains the seed of hope; the absence of any international legal process effectively removes the goalposts altogether. And the absence of hope is antithetical to human condition. Hence, non-state groups and foreign interveners take advantage of this lacuna in the law to devastating effect: consider so-called Islamic State’s intent to establish a Middle Eastern state. It is arguable that they may, under the current declaratory theory, already fulfil the criteria for statehood. This is despite the illegality of their territorial seizure or brutal oppression of opposition. This was equally so for the Crimean peninsula in Ukraine.

And so, I hope to consider the experience and legal research surrounding this conundrum in law that may on paper prohibit illegality and remain ambiguous on state creation but cannot account for the factual reality that faces us today. It cannot be that such a fundamental basis of human society – the state – should remain as elusive as it currently stands.

 After all, what’s the worst that could happen?

Do not look at the Ark!
The Raiders of the Lost Ark (Copyright 1981 Paramount Pictures and Lucasfilm)

 

Alanis Morissette is God?
Dogma (Copyright 1999 View Askew Productions and STK)

 

Torture! What Is It Good For? Absolutely Nothing… Ever.

US Senate Report on CIA Detention Interrogation Program (Wikimedia)

The recent declassification of the US Senate Committee Report on the Central Intelligence Agency’s use of torture on detainees has (rightly) provoked public outcry – both against the use of Enhanced Interrogation Techniques (EITs) that amounted to torture, as well as backlash from the former Bush 43 administration over perceived flaws and misapprehended findings within the report. Those denouncing the report also believe declassification occurred as a result of the politicisation and demonization of the Republican Party, the CIA and the efforts of the US Armed Forces to combat terrorism over the last decade and a half.

However, there is a middle ground here where arguments have been made out by the public and certain government and intelligence actors that surreptitiously suggests that torture may be illegal and ugly, but given the shocking brutality of groups like al-Qaeda and Islamic State may morally and/or ethically warrant a moderate employ of torture (such as waterboarding aka simulated drowning), particularly when it results in actionable intel that ‘saves American lives’. Even more worrisome is the perception that such arguments are both intellectually brave and perfectly reasonable.

Neither are true.

In rejecting another set of ‘Enhanced Interrogation Techniques’, the Israeli Supreme Court in Public Committee Against Torture in Israel v The State of Israel (H.C. 5100/94) stated:

“This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. […] law infringing upon a suspect’s liberty “befitting the values of the State of Israel,” is enacted for a proper purpose, and to an extent no greater than is required.” (at paragraph 39)

One accepts that we are in the midst of troubling and uncertain times. But in making such acceptance, one must outright reject the notion that somehow criminal acts such as torture are not absolutely internationally prohibited by law. There are few internationally criminal acts that rise to this level, including (but not limited to) genocide, war crimes, and crimes against humanity (wherein torture itself is a modality of the crime).

Furthermore, the notably absent comment from Bush 43 on the outcome of this report is not, as some pundits portray it, a mystery. Even Cheney should consider his public comments carefully. Taking a cue from the Pinochet extradition cases in UK for crimes committed in Chile during his military dictatorship, the absence of any domestic prosecutions for torture may lead to international indictments against the offending administration where it is clear that these acts were part of a systematic and executively-approved mandate. That terrorism provides a contextual narrative behind the impetus for such coercive techniques is both legally and morally bereft of evidential value. It is also a criminal act for which countries are legally required under international law to pursue prosecutions against domestic perpetrators or extradite to another state that is willing to do so (a principle in international law known as aut dedere aut judicare). The international prohibition on torture is both absolute and non-derogable (arguably jus cogens in nature), meaning under no circumstances may it be acceptable as a means of obtaining information – whether or not the information obtained is reliable.

And that is what is most disturbing about this: There is a not-so-tacit permissiveness in the report’s critics, where information gathered under torture is reliable, actionable and can point to intelligence and security successes (particularly in so-called ‘ticking bomb’ scenarios of an imminent security threat), that any country can wash their hands of the moral indignity of using torture is tantamount to criminal hypocrisy of the highest order. Most reasonable individuals are aware of the challenges that such a restrictive policy places before the security services (re-read the Israeli Supreme Court’s comments). Theirs is not by any means an easy profession. However, in defending and securing the future of any state, the best and most reliable source of unrelenting loyalty to that state comes from the unshakable and genuine belief that it is a state worth preserving. All states have moral and ethical issues, but it is those fundamental legal principles of that state that give real meaning to both the moral and legal character of its citizens and its representatives. It is submitted that the adherence to the strict and absolute prohibition on the employment of physical and mental torture is one of those fundamental principles and to abandon such would be an act of irreversible self-harm.

Lastly, sparing some criticism for those involved in the creation of international law: The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) definition of torture (Article 1) is ‘purposefully vague’. That is to say, rather than enumerating a list of prohibited acts as torture (which invariably leads to arguments that omitted acts are less than torture and thus acceptable), the definition focuses on (a) the intentional infliction of severe pain or suffering, whether physical or mental, (b) for such purposes as coercively obtaining information or confession from the subject or a third-party, and (c) where such acts were inflicted, instigated, consented to or in acquiescence of a public official or person acting in official capacity. The problem here is that even this definition is open to each state’s interpretation as to what ‘severe pain or suffering’ means (i.e., if moderately painful, it may not be torture). It is here in this darkest of grey areas where the law does not offer the protections that the public may incorrectly assume that it does. That is on us as international lawyers for not having the wherewithal to address the matter more robustly – something for which victims of torture-by-another-name may find unforgivable.

Gaza: why Operation Protective Edge was not genocide (Re-post)

By Dr. Paul Behrens, University of Edinburgh

When, in armed conflict, civilians are killed on a large scale, when schools are attacked and children are orphaned, charges of genocide are often not far behind. In discussions about Operation Protective Edge, the Israeli military attack on Gaza earlier this year, accusations of genocide have therefore played an important role.

Mahmoud Abbas, the Palestinian president, recently accused Israel of carrying out a “war of genocide”. The National Lawyers Guild of America raised the charge of genocide in a letter to the prosecutor of the International Criminal Court requesting that the matter be investigated. Genocide was also investigated in a special session of the Russell Tribunal on Palestine, which resulted, a few weeks ago, in one of the most detailed assessments of Operation Protective Edge to date. It is a crime for which the international authorities can impose a sentence of life imprisonment (as the International Criminal Tribunal for Rwanda did on several occasions following the 1994 atrocities in that country).

Tribunal gathering

The Russell Tribunal was originally set up by Bertrand Russell in the 1960s to investigate allegations of US crimes in Vietnam. It is not a court of law, but its jury contains prominent legal minds (including Prof John Dugard, Prof Richard Falk and Michael Mansfield QC), as well as people who have made their mark in other fields of life (including the film director Ken Loach, the writer Paul Laverty and the author and activist Christiane Hessel).

What matters to international courts is the mindset behind the action […] the perpetrator must have the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.

Ken Loach and Roger Waters (EPA)

I was invited to address the tribunal on the legal elements of genocide (but was not involved in the drafting of its findings). For some, it may have been a somewhat surprising presentation. Lawyers have traditionally given genocide a very restrictive interpretation – and a good part of my talk thus dealt with the reason why applying it to the situation in Gaza is not straightforward. To my mind, “genocide” is simply not the correct term for the Israeli offensive.

In common speech, genocide tends to describe atrocities which result in very large victim numbers. Yet that is not how the law has approached the concept. What matters to international courts is the mindset behind the action. In the words of Article II of the Genocide Convention, the perpetrator must have the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.

That causes difficulties from the outset. In Operation Protective Edge, a main target of the Israeli forces was Hamas – clearly a political group, and thus outside the protection of the convention. The Palestinians do qualify as an “ethnic” (perhaps even as a “national”) group. But proving that they had been targeted “as such” is a tall order.

Convention on the Prevention and Punishment of Genocide (1948) (UN)

Motivationally speaking

Looking into the mind of a perpetrator is difficult, if not impossible. Take the attacks on civilians and civilian objects in Gaza. That they occurred is a matter of fact. But the motive is far from clear. Sometimes military considerations were invoked (Hamas had reportedly used residential areas and even hospitals as launch sites for rockets). Sometimes the attacks may have been accidents. Sometimes no clear explanation was provided. This makes it difficult to satisfy the requirement under international law that genocidal intent had been the “only reasonable explanation” for the perpetrators’ acts.

Not even the extent of the operation is helpful evidence. It is reported that more than 2,000 Palestinians lost their lives in the conflict – a horrific number for a conflict lasting 50 days. But victim numbers do not say much about the underlying intent. When the UN General Assembly in the 1990s asked the International Court of Justice to rule on the legality of nuclear weapons, several states claimed that the use of these arms indicated genocidal intent. The court did not agree: even in situations of this kind, intent had to be established on a case-by-case basis. The threshold for evidence for genocidal intent can be very high indeed.

In situations of this kind, war crimes and crimes against humanity are often applicable as well […] Under international law these crimes are not seen as less severe than genocide.

An impartial tribunal also has to consider evidence which may negate genocidal intent. Where Operation Protective Edge is concerned, this includes the fact that the Israeli military at times issued warnings before attacks on civilians were launched. Even if the warnings may often have been ineffective, they may indicate that the perpetrators had motives other than the destruction of the Palestinians as a group.

Israeli ground offensive as Operation Protective Edge gets underway (EPA)
The fact that Israeli extremists – including those who reportedly kidnapped and killed a Palestinian teenager – had to face trial in their own country, casts further doubt on the existence of genocidal intent within the Israeli leadership.
 

Strict interpretation

The concept of genocide which emerges from these considerations may appear very narrow indeed, and it is true that the strict application of rules on evidence will often favour the accused. That is the reason why I was unable to conclude that genocide had been committed. It is probably the reason why the Russell Tribunal did not enter a finding of genocide either.

That does not mean that those who launch attacks on civilians have committed no crimes under international law. In situations of this kind, war crimes and crimes against humanity are often applicable as well (and they, too, were considered by the Russell Tribunal, along with the crime of incitement to genocide). Under international law these crimes are not seen as less severe than genocide.

The very rejection of the genocide charge will still cause controversy, but it was the right decision. Since the tribunal accepts international law as its frame of reference, that law has to govern its findings. And there is merit in that. Going back to the rules of international law, the common hymn-sheet of the international community, may yet provide the measure of reason which is so desperately needed in this debate – a debate on an issue which can hardly be of greater concern to the world as a whole.

The Conversation

Paul Behrens was awarded funding by the British Academy in 2011 for a research project on genocidal intent.

This article was originally published on The Conversation.
Read the original article.

Kenyan President uses Tory human rights plans to defend war crimes charges

This follows thematically from my first blog entry regarding the UK’s threat to withdraw from the ECHR and the Council of Europe. ‘Putting Britain First’ policies that ignore that Britain is part of the international community in order to quell short-sighted, nationalistic and isolationist political minorities threatens to undermine the reputation of the UK as a global role-model for the adherence to the rule of law (including international law to which all countries are bound) and as supposed champions of human rights at home and abroad.

Original Article by @AdamWagner1 of 1 Crown Office Row chambers and ukhumanrightsblog.com – Definitely endorsing you to follow both.

UK Human Rights Blog

Photo credit: Guardian.co.uk Photo credit: Guardian.co.uk

It is easy to forget that our domestic debate over the European Convention on Human Rights might be having an international impact. But the UK is only one of 47 states which is party to the Convention, and the European Court of Human Rights in Strasbourg protects over 800 million people.

This morning, we brought you exclusive interviews with survivors of the Beslan massacre who are rightly worried that if the UK leaves the Convention, or even threatens to leave as the Conservatives did recently, that will affect their fight for justice. In short, Vladimir Putin would have a ready excuse for ignoring any conclusions reached by the Court.

Well, here is another example of the effect which political trash-talking about the ECHR can have. Kenyan President Uhuru Kenyatta is facing war crimes charges in the Hague relating to ethnic violence which erupted after the 2007 elections leaving…

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An Uncomfortable Look in the Mirror: Canada in the World, Before and After the Ottawa Shootings

Brilliant addition to this now-unfortunately unavoidable conversation for Canadians. Fully endorse your consideration of Mark’s statements here.

Justice in Conflict

Ottawa. (Photo: Creative Commons / Endlisnis) Ottawa. (Photo: Creative Commons / Endlisnis)

Amongst many Canadians, a popular response to the shootings in Ottawa that claimed the life of Nathan Cirillo earlier this week has been: “This doesn’t happen here… This is Canada.” And that’s true enough. Political violence of the sort we witnessed this week rarely touches Canadian lives. Ottawa is one of those curiously apolitically political cities – a place where the majority of the workforce works directly or indirectly for the government but a community where global politics rarely penetrates every day life. But the Ottawa shootings should bring into relief the need for the Canadian government and Canadians at large to look themselves in the mirror and ask a simple yet tough question: why did this happen?

The easiest answer, and one that has already been proffered by a host of observers, is that a single, crazed lunatic who hated Canadian values went on…

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