Friday, May 28, 2010

Obama Administration redefines U.S. National Security Strategy

At Thursday, May 27, 2010 the Obama Administration unveiled a new national security doctrine that would join diplomatic engagement and economic discipline with military power to bolster America's standing in the world.

The United States National Security Strategy acts as a blueprint for how a White House administration intends to protect Americans. It also is intended as a framework for strategy documents produced by other parts of the government, including the Pentagon's national defense strategy.

In the past, it has focused mostly on international threats. However, homegrown terrorism will be part of the United States National Security Strategy for the first time. National Security Adviser John Brennan said Wednesday that Obama “explicitly recognizes the threat to the United States posed by individuals radicalized here at home”.

Obama's new doctrine represents a clear break with the unilateral military approach advocated by his predecessor after the Sept. 11, 2001, attacks. Although the global war against terrorism continues in Afghanistan and Pakistan, president Obama defined broader security challenges. Threats facing the nation are also nuclear weapons proliferation, economic instability, global climate change and an erosion of democratic freedoms abroad.

At the beginning pages of the National Security Strategy Obama writes that "Our Armed Forces will always be a cornerstone of our security, but they must be complemented. Our security also depends upon diplomats who can act in every corner of the world (...); development experts who can strengthen governance and support human dignity; and intelligence and law enforcement that can unravel plots, strengthen justice systems and work seamlessly with other countries."


Relevant online news articles:
Obama redefines national security strategy, looks beyond military might by Karen DeYoung in Washington Post Thursday, May 27, 2010

Obama security doctrine stresses diplomacy by Matt Spetalnik in Reuters Thursday, May 27, 2010

Obama's new security strategy breaks with Bush by Anne Gearan and Robert Burns (The Associated Press Wednesday, May 26, 2010) in Washington Post Thursday, May 27, 2010

National Terror Alert Friday, May 28, 2010

The White House - Homeland Security

US Department of Defense on National Security Strategy


Relevant books and articles in Peace Palace Library catalogue :

Thursday, May 20, 2010

Can journalists publish whatever they like?


The route of Afriqiyah Airways Flight 771.
Source: http://www.wikipedia.org/


In the early morning of Wednesday May 12 2010 Afriqiyah Airways Flight 771, crashed at about 06:10 local time in Tripoli, Libya, near the runway of the airport. The aircraft was shattered to pieces. The airbus (EAD.PA) A330-200 was flying from Johannesburg to Tripoli.

Of the 104 passengers and crew, 103 people were killed by the crash. Miraculously, one child, a nine year old Dutch boy called Ruben, survived the crash. He was on his way home to The Netherlands from South Africa where he spent a safari vacation with his parents and older brother. On Saturday, May 15, Ruben was transported back to The Netherlands. There he will receive further medical and psychological care. Aviation officials recently started an investigation to discover the causes of the disastrous air crash.

The miraculous survival was front page world news. Not long after Ruben was rescued and treated in hospital, journalists were able to film him and take pictures. A Dutch reporter even managed to speak to him on the phone not long after he was conscious.

Pictures of the bruised and battered little boy lying in a hospital bed were broadcasted by the media all over the world. Journalists also disclosed his identity to the public. The close up pictures were on the front pages of many newspapers and internet news sites. Ruben became the face of the Tripoli aircraft disaster.

The young boy and his family were not given the possibility to decide whether or not to allow reporters with cameras to take images of Ruben. The physician that took care of Ruben in the hospital of Tripoli made this choice for them.

Also in The Netherlands close up pictures were shown in the media of the little boy. The Dutch Broadcasting Foundation (Nederlandse Omroep Stichting (NOS)) showed images during their news broadcasts. A reporter from the Dutch newspaper, De Telegraaf, even managed to get direct contact with the boy. The journalist called one of the Libyan physicians who was responsible for the medical care of Ruben. The physician eventually handed his cell phone over to the young boy. This phone call led to a controversial article which was published in De Telegraaf. This article led to discussion in The Netherlands.

Also other Dutch media were condemned for broadcasting images and disclosing information about the young boy and other victims from the aircraft disaster. Journalists, ethicists and media experts have mixed opinions about the issue. Many journalists and experts are of the opinion that the concerned reporters have disregarded the right to privacy of Ruben. In this case, press freedom clashes with the right to privacy. According to Jurist and professor Egbert Dommering from the University of Amsterdam, making images of the young victim Ruben constitutes a serious breach of Article 8 of the European Convention of Human Rights (EHCR) which is concerned with the right to privacy. Dommering is of the opinion that victims of disasters have a right to privacy and need to be protected. [1].

Many experts such as theologian and former professor of communication studies Anne van der Meiden, are of the opinion that it is best to keep a certain distance towards the victim and thereby respecting his wellbeing and privacy. With regard to the Tripoli crash Anne van der Meiden says: "The moral limits of media are shifting and as an ethicist I say that it is a natural and unstoppable process. In case of such a horrible calamity, journalists are forced to ask themselves whether it should be better to keep a respectful distance." [2]

The Libyan hospital was confronted with the breach of the privacy rights of young Ruben. Dutch politician Femke Halsema blamed the Dutch embassy in Libya for taking insufficient care of the protection of the rights of the young Dutch child to privacy [3]. The Ministry of Foreign Affairs of The Netherlands did not agree with Ms Halsema. The Ministry of Foreign Affairs said it insisted on safeguarding the privacy of Ruben and that it insisted on keeping the press away from his bed and the disaster area.[4]

Hans Laroes, editor in chief of the Dutch Broadcasting Foundation (NOS) calls for the creation of guidelines by the Dutch Council for Journalism regarding the protection of the rights to privacy of calamity victims such as little Ruben in his personal weblog. [5] The NOS stated that it would not use the image and name of the young survivor of the crash without pressing reasons.[6]

The media confronts us with dreadful images of wounded bodies and corpses on a daily basis. We come face to face with personal and private images of the agony, suffering and hardship of fellow humans who have become victims of dire, horrible and ill fated circumstances such as severe poverty, conflict, a war, a natural disaster or an airplane calamitiy. With the help of radio, tv, internet and satellite communication we can follow the news very closely. Globalization and technological development have given the media more vivacity and realism. We watch the spectacle of life as a reality show on our tv, computer, cellphone and on paper.

However, these images often concern the bodies of persons, living and dead. One can question whether their right to privacy and their human dignity are sufficiently safeguarded by the media. On the one hand the shocking images of disasters can be necessary eye openers for the world which encourage to take action, such as offering humanitarian assistance and humanitarian intervention. But on the other hand one can ask how often these images can be shown without risking the breach of the right to privacy or disrespecting the human dignity of one or several persons. It depends on the journalist's moral sense, the ethical awareness and sense of what is appropriate and what is not whether he will pursue a story in an unethical way or in a way which will respect the rights of the person(s) involved.

Journalists have different opinions about what is appropriate and what is inappropriate journalism. Moral sense and moral awareness are not uniform and universal. However, there should be a minimum standard for journalists. In my opinion, more specific guidelines for journalists are needed. More attention should be paid to the code of conduct of journalists and enforceable regulations to safeguard the rights of the persons involved.

Footnotes

[2] Quoted and translated from ibid.
[5] See Rubens privacy. Weblog from the Editor in Chief of the NOS, Hans Laroes.

Weblinks

Newspaper articles and links:

Relevant Peace Palace Library Keywords:

Monday, May 17, 2010

Suspension of Spain’s Investigating Judge Garzón

On Friday, 14 May 2010, Spain’s General Council of the Judiciary in an emergency session decided to suspend National Court investigating judge Baltasar Garzón pending his trial for knowingly exceeding his jurisdiction by initiating an investigation into the crimes committed during the country’s civil war and the Franco regime, despite an existing amnesty law.

Garzón is widely known for investigating, among others, human rights abuses by Latin American military regimes, like the high-profile case against former Chilean dictator Augusto Pinochet and other cases against officials in Argentina and Guatemala, on the basis of the universal jurisdiction provisions in Spain’s criminal law. In these cases the Spanish courts denied the application of the amnesty laws of the countries where the abuses had taken place.

Earlier last week Supreme Court judge Luciano Varela rejected an appeal by Garzón, allowing the trial to go ahead. No final trial date has yet been set. In addition, Garzón is also involved in two other cases, facing charges of alleged bribery and illegal wiretapping.

The indictment charges Garzón with ‘prevaricación’ (i.e. deliberately wrongful decisions) for opening an investigation in 2008 into the disappearance of many thousands of people during the 1936-1939 civil war and General Franco's ensuing dictatorship and ordering exhumation of a number of mass graves in Spain. The case against Garzón was brought by several extreme-right groups who claimed that his investigation ignored a 1977 law granting amnesty to all involved in political crimes committed during the civil war and under Franco's rule.

Garzon has argued that the disappearances constituted crimes against humanity and were therefore not covered by the amnesty. Human rights groups and others claim that Garzon’s decision not to apply the 1977 amnesty law is supported by international law, which imposes on states a duty to investigate crimes against humanity.

The International Center for Transitional Justice (ICTJ) warned that the prosecution of Garzón will have a chilling effect on both Spanish and international efforts to promote accountability for international crimes.

See also the new blog on international criminal law and universal jurisdiction at http://justiceupdated.com/?s=Garzon.
For a discussion on the legality of amnesties in relation to human rights abuses, see http://opiniojuris.org/2010/04/09/more-on-the-upcoming-garzon-trial-are-amnesties-illegal/.

Friday, May 7, 2010

The First Review of the ICC Statute and the Crime of Aggression


From May 31st until June 11th 2010, state parties to the International Criminal Court (ICC) will meet in Kampala, Uganda for the first Review Conference of the Rome Statute. One of the most important issues on the agenda is the legal definition of the crime of aggression.

The Rome Statute of the International Criminal Court (ICC) entered into force on 1st July 2002 and included provisions granting the ICC jurisdiction over four core crimes: genocide, crimes against humanity, war crimes and the crime of aggression. [1] However, from the moment of inception, the ICC lacked the authority to prosecute crimes of aggression due to disagreements among state parties regarding a legal definition of the crime.
In order to deal with the many legal complexities that defining a Crime of Aggression entails, a Special Working Group on the Crime of Aggression (SWGCA) was established in 2002 to work on a definition and submit proposals for the Review Conference scheduled in 2010.

The purpose of prosecuting Crimes of Aggression is to hold accountable those who instigate and engage in unjustified armed conflicts between states. [2] This notion first emerged at the end of World War II when during the Nuremberg and Tokyo Trials it became evident that the absence of a general prohibition in international law against the waging of war could no longer be tolerated in a modern world.
Since then, many obstacles needed to be overcome to find international consensus on the issue. The legal definition consists of two parts; first, the elements that define when a crime of aggression has been committed, and second, the circumstances which give the ICC active jurisdiction over the crime. [3]

Another controversial issue in this matter is which international institution or body will be authorized to determine whether a crime of aggression has been committed. Article 39 of the UN Charter states that ‘ The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Article 13 of the ICC Statute states that the Security Council can refer a case to the ICC, enabling the ICC to exercise jurisdiction over a conflict even if the parties involved have not accepted the ICC’s jurisdiction. This means that the Security Council has already been granted considerable powers under the ICC Statute which can therefore be extended to the crime of aggression once the ICC’s jurisdiction over this provision becomes operational. However, many UN member states fear that the five permanent members of the Security Council will, through their veto powers, prevent the ICC from effectively prosecuting crimes of aggression and in doing so politicize international criminal legal proceedings. This would adversely affect the ICC’s legitimacy and run counter to the general principle that the law applies equally to all. [4]

Some legal scholars argue that the Security Council’s power to determine the existence of an act of aggression is not exclusive and that the UN Charter under Chapter VI permits other bodies such as the General Assembly or the International Court of Justice (ICJ) to determine the existence of aggression through an advisory opinion. Bringing in the ICJ would seem like an obvious choice as it is a judicial body and has in several cases made determinations regarding the unlawful use of force. [5]Another good reason for the ICC to seek an advisory opinion of the ICJ is to reduce the risk of inconsistencies or conflicts with decisions of the ICJ in ICC aggression cases. [6]
Although the First Review Conference of the Statute of Rome will not discus the role of the UN Security Council or the ICJ in ICC matters, it has nonetheless the potential to dramatically change the way in which the ICC will function in the future. Above anything else, it can be considered an opportunity to influence and improve the global struggle for human rights.


End Notes

[1] Bringing the crime of Aggression within the active jurisdiction of the ICC, by D.M. Ferencz in Case Western Reserve journal of international law, Vol 42 (1-2), p. 531 2009
[2] www.citizinsforglobalsolutions.com
[3] www.citizinsforglobalsolutions.com
[4]The Crime of Aggression before the First Review of the ICC Statute, by Claus Kress in Leiden Journal of International Law, 20 (2007), p. 862
[5] The Security Council, The International Criminal Court, and the Crime of Aggression; How Exclusive is the Security Council’s Power to Determine Aggression? by M.S. Stein in Indiana International and Comparative Law Review, 16 (1) p. 32-33, 2005
[6] Ibid.
Other Sources:
Book:
Article: