International Law

Prospect in the UK has an interesting article summarizing some of the oft-expressed concerns about the ICC.  Perhaps an additional concern hinted at in the article is the very nature of the ICC’s focus on individual cases of liability.

To follow-up an earlier post here (Compassion and IL)… perhaps while focusing on individual cases and stories gets more attention/fundraising in the West, and perhaps comports more with “our” sense of justice, perhaps the individual approach is precisely the kind of western view that is often criticized as being too individualistic and not taking due regard of culture or communities.  Individual stories of tragedy and violations of rights may make for more money and more PR, but do they really help solve the overarching problems?  Does it just lead to a temporary flow of aid and/or attention that is so often after-the-fact and fades as soon as an individual case or crisis is resolved?

Of course there is likely a balance somewhere, and different places are different, but perhaps there is a conflict between desires of some in the West to help, driven so often by individual stories, and the real needs of people, driven so often by large-scale concerns that often threaten whole communities.  It is interesting that some legal systems, including older systems such as the Fetha Nagast (Law of Kings) that was used in Ethiopia until the 1930s (originally compiled by an Egyptian Christian in the 13th century), and others, took very much into account community-level justice and positionality, even when it was a single case against an individual defendant.  Many of today’s legal systems remain far more focused on communities than western systems do, whether or not these systems are seen as conforming to the western view of “rights” (and often, indirectly, creating tension between domestic legal systems and international human rights treaties signed up by the countries).

And perhaps the individualized justice view is not really as all-encompassing in the West as some might think, with strong notions of social justice and resolving problems that communities face still in existence, even if the legal system tends to see people as sole individuals apart from their communities or surroundings.  Perhaps there is a tension here too between retroactive punitive justice against individuals and what a community might see as “justice” or even more so, what a community might see as the best way to resolve a problem or right a wrong. 

It is certainly an issue worth a lot of thought as Tribunals and cases proliferate, and as IL is still largely based off of “western” concepts of individual liability and responsibility, and is perhaps more even more western, by taking the ”latest” or most acceptable to the modern parties (or, more accurately, the elites) in a given treaty or customary world’s view of the law, than the law in the countries its proponents and drafters originally came from. 

There is still a long way to go, but the Jessup website has noted that the 2008 problem will cover “the tension between ensuring human rights and responding to acts of terrorism”.  It should be an exciting–and possibly controversial–competition.

Just a note: Anupam Chander has been posting tidbits and articles on the Wolfowitz scandal and the speculation on who might replace him.  It is a good place to look at for a quick summary and links to sources/etc., and he will probably keep updating it as the story continues to move along.

The 2007 Human Rights Council elections took place yesterday (the full votes are here).  Human Rights Watch discusses the UN General Assembly’s rejection of Belarus for a seat on the Human Rights Council and hopes that this could be a starting point for more competitive elections to the Council. 

It has always been interesting how the composition of the Council, so often filled with human rights violators of various kinds, is then used as a symbol that all human rights work by the UN is bad or hypocritical, especially when the Council repeatedly focuses on Israel and ignores others.  This is while most human rights groups acknowledge the Council as having membership issues and often focusing on political targets; but they seek to do something about it, rather than simply declaring invalid any human rights claims that the Council may make.  Perhaps more constructive views will eventually take hold, but the tension in the Council is always there between more “inclusive”/”representative” membership and having morally ”worthy” countries serving (and who decides this); as well as issues of when a flawed body may sometimes make valid statements and whether each statement should be taken on its own merit or rejected outright because of flawed membership and often-flawed priorities.  But human rights groups are right that there is little else to work with, and often chose to try and improve the body even as its legitimacy is so often (and perhaps increasingly) called into question.  If it is a lost cause is unclear.  In any event, it will be interesting to see how the new Council works and if it is capable of any much-needed change.  Perhaps the voting was a positive step, but any conclusions remain to be seen.

This is an interesting post from the Toronto Star highlighting what many people, especially in human rights and IL fields, have known or suspected for a long time — that people’s compassion with respect to mass incidents, particularly man-made (or partially man-made) mass attrocities, is limited, and often a single story can be more poignant (and raise more money) than piles of statistics.  It is interesting to think about the implications for those seeking international action through their governments, and lends some credence to doubter arguments about how much people in a country are willing to have their governments do elsewhere, especially through international organizations, miitary intervention, or large-scale regulation (a good example is Jack Goldsmith’s regular stance on the limits of IL and its general lack of popular support, at least in the US [Goldsmith's name is also being talked about in the Comey testimony, which Balkanization is covering well... Goldsmith made a principled, and misunderstood for a long time, especially among the HLS community, stand]).  This is not to absolve those who fail to think of consequences outside of their direct experience or who can only relate to “personal” stories along a well-trodden arch and thus ignore unpleasant realities for many people (the follow-up to the “suffering individual” story is usually one of the “rescued individual”… forgetting about everyone else who was not so fortunate).  But it does help explain why stopping what any sane person would say is wrong seems so difficut.

Conversely, it is also interesting for ”law” and IL as a tool in general.  Do individual cases get more play, and seem more “groundbreaking” because of the stories behind them?  Cases (and especially the lawyers associated with them) often take on a self-importance that might outweigh their direct social impact, but the cases may have larger-reaching societal impacts because of their use as stories.  In the international arena, this might be an area to explore more, where human rights cases especially, but also rule of law, etc. cases can be framed in more personal ways, to make it about particular cases of injustice and change.  This individual’s rights are hurt in this way, this episode of corruption has a direct impact on someone’s business, etc.  Ironically, by limiting the scope of such cases, they may have more impact through a story that can be readily understood by others.  Just a thought, but perhaps IL needs some more PR about what it can do in individual cases for individual people, not just relying on general terms and the upholding of “norms.”  This seems to be working, at least somewhat, in the ECHR context.

Making cases into stories is hard though, when classic IL is “made” most often through cases between states, already distanced from people’s conceptions of daily law.  States (and corporations) may get to act like individuals on the world stage, but they are not viewed (and judged) as such in the common mind, thus perhaps giving them more leniency than they would otherwise deserve.  Coupled with the distancing effects of mass attrocities/mass victimization, and often because there are no effective ways to bring individual claims, this can make effective action particularly difficult… it becomes just some amorphous entity doing some kind of harm to some people we don’t know.

There is plenty of news about the recent decision by the constitutional court of Turkey annulling the election a few days ago, as the BBC reports (with an ever-helpful Q&A here).  Yet another example of increasingly visible entrances by courts around the world into large-scale political debates… whether or not these are the “right” decisions (or are “bullet[s] aimed at democracy”) and whether or not this is just another route to contest and gain power.  The overall political environment remains a cause for concern.  Evidently those more familiar with the political situation in Turkey would be able to have a feel for what the decision means.

It would be an interesting study to take a look at such recent decisions around the world and see just what the decisions are actually doing and how they fit into respective spheres of power.  Are these decisions ”appropriate” challenges, attacks, or possibly ways of just hiding or delaying a process and thereby allowing an election to look more legitimate (as was possibly the case in Nigeria)?  Of course each country’s situation is different, but it would be interesting to see a survey of the different ways high court decisions in elections are made and/or used.  It seems that comparitive election law is a hot topic, with such great new material.    

Studying these decisions might help play with assumptions that more “rule of law” is better…it might not just be a question of quantity of decisions, but also substantively whether or not they are in the interest of justice or political decisions are being made via the cover of the courts and the “law” (as some have argued happened here in Bush v. Gore).  Of course only the most naive feel that the courts are not political to some extent everywhere, but there are lines and borders of restraint, and the “rule of law” is always trying to define what these are.