International Law

The Boston Globe has an interesting short article by Shahan Mufti on the idea of Justice becoming a rallying cry in the Muslim world.  This is interesting from the view of law — to the extent at least that it is often equated with justice (though not necessarily so), and here justice may also be of a more social nature (a concept which law, in some contexts, may have abandoned).  In any event, justice seems to be a more fluid concept (as the article notes it can have religious, anti-corruption, etc. overtones) and perhaps a desire for “justice” is more widespread than a desire for “democracy”, at least at it is defined by the West.  

Of course the struggle of lawyers in Pakistan is a good example of how concepts of fairness and justice can be real motivating forces for change.  In some ways perhaps people can adjust to different systems, situations and forms of government, at least until enough people perceive of things as being unjust or unfair.  Democracy of course can play a role in this but that is not always the case and perhaps putting reform in semantic boxes (”democracy” or “freedom”) for sale may be less effective.

Of course, one’s concept of what is just may not comport with another’s; the justice sought by religious leaders may be very different than those sought by civil servants.  But that is a whole different issue.  In any event, an interesting read and worth thinking about, especially for those engaged in rule of law reform.

Harvard International Review forwarded an interesting and opinionated article on “The End of Exceptionalism in War Crimes: The International Criminal Court and America’s Credibility in the World” by David Scheffer, Richard Cooper and Juliette Voinov Kohler, strongly advocating that the US join the ICC.  It is a very internationalist/moral/human rights call, noting that “[t]he United States needs the ICC to help restore its global credibility, discipline its own decision-making, and strengthen judicial intervention against atrocity crimes.”  It also takes a broadly negative view of US international law/foreign policy of late which occassionally hurts the specific arguments as they are couched within such broad-brush strokes about the Bush administration’s various positions. 

There are more “realist” articles out there arguing that the ICC is continuing with or without the US and the US might be more effective “within” the system and noting that US systems are adequate to address war crimes violations by US leaders and soldiers so no US soldier would be before the ICC.  The article duly notes these arguments, especially that the US should be involved or lose the ability to influence changes, including during the Rome Statute review process in 2009.  But the article takes a direct stand on potential US liability, writing that “[n]o nation should ignore its duty to bring war criminals to justice or otherwise shield its own leaders or soldiers from charges of genocide, crimes against humanity, or war crimes” (emphasis added) and implying that the ICC should take cases of US actions if the US fails to prosecute. 

The article rightly notes that this will remain a hot topic, especially if the stance really is that US soldiers and leaders might ultimately be tried in such settings.  The timetable it sets up may be unrealistic, but certainly the debate will continue as 2009 approaches. 

Thank you for the forward.

It looks like Libya has freed the Bulgarian nurses and the Palestinian doctor in an interesting political deal that, at least according to the NYTimes, seems to fit in with Libya’s legal code. It seems clear that it was the extensive and ongoing political pressure, Libya’s attempts at “rejoin[ing] the international community”, and whatever chips were offered to Libya (including Cold War debt forgiveness), instead of true legal arguments, that led to the releases. But of course, that is perhaps not any different than anywhere else (in a realist mood today), but this will certainly be an interesting case study in IL, international pressure, “soft power” and the like. With respect to IL, it will be interesting to see if there was much reference to IL at all, either in the trial or during this release (I have not been following the case closely), or if this was kept in the “domestic” legal realm but subjected to outside pressures for this outcome. Seems to be very worthy of an article, or at least a note.

Here’s an interesting article from Business Day Johannesburg (via allAfrica.com) on the Paris meeting on Darfur (which ended Monday) from a rather skeptical perspective.  Considering the limited progress made at the conference, perhaps skepticism was in order.  But the article also brings to mind larger questions of the various takes on Darfur from and between the big “international powers” and others, especially African countries.  Darfur could certainly serve as a case study for the different ways in which the “West”, China, and African countries act (or don’t act) with respect to such tragedies and how they all play the various media games with lots of talk but often far too little action. 

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. 

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.

The NYTimes has a short piece on stateless persons, who, as the article notes, tend to be poor and forgotten.  Does international law, with its almost exclusive focus on state-based principles, simply ignore these people?  Are these just an unlucky “few” who fall by the wayside, or does this hint at larger concerns about the IL system carving people up into groups based on often (though by no means exclusively) artificial “sovereigns”/states?  Is this a concern especially outside of the “established” ”Western” powers, that may not have used a state system until very recently, and for which it might still seem to not quite fit? 

Of course there has been some IL attempting to deal with stateless persons, including through the UN Convention relating to the status of stateless persons, and the UN Convention on the reduction of statelessness (PDF), though neither has been universally ratified (and here) (both PDF) by any means, which perhaps in part shows the reluctance or inability of states to fully address this issue.  The UNHCR discusses the issue as well.  And as states come and go, and if nationality or ethnically-based states continue to proliferate (sometimes referred to as ”Balkanization” but now often thought of as a possible future scenario in Iraq), the problems for those excluded by the defined states will likely continue.   Unfortunately there seems to be little will in the IL community to address these problems and, almost by definition, these stateless persons lack the means of creating a meaningful political voice.