Thursday, July 15, 2010

The Islamic veil, secularism and freedom of religion

"The burqa is a massive attack on the rights of women. It is a mobile prison", Silvana Koch-Merin stated. Silvana, a German representative of the European Parliament, called for a ban on face-covering veils throughout Europe [1].

There are many kinds of islamic veils, such as the niqab, burqa, chador, and khimar (see picture below). The Arabic word 'Hijab', which is closely linked with the concept of the islamic veil, means "to cover", "barrier" or "partition". In the context of the islam the word however has a broader meaning. It is concerned with modesty, privacy and morality. Besides the reference to the covering of the head of a woman, the word 'hijab' also refers to the modest dress style of a woman in general.

The wearing of full faced veils in public, such as the niqab (The whole body and face are covered except for the eyes) and the burqa (full coverage of body, face and the eyes, which are covered by a mesh screen), has lead to heated discussions and political turmoil in Europe. Besides this the fear of terrorism and islamic fundamentalism led to a less tolerant attitude towards islamic minorities in Europe. It was felt by many that wearing full-face covering veils in public - a symptom of growing islamic influence in European culture - clashes with the European and national secular identity.

The controversial issue has led to a number of national proposals for a law to ban the public use of the full-faced veil and the burqa. This led to criticism and further debate : does the banning of the burqa and niqab violate the freedom of religion of islamic minorities? Or should the secular state ban these religious symbols because they could pose a threat to security, national identity and the principles of the secular state?

Those who are against the public use of these full-face covering veils argue that the burqa and niqab arean expression of sexual discrimination and the violation of the rights of women; expressions of sexual inequality and male dominance. However, the current political debate and discussion of a ban of the face covering veil has been criticised by human rights organizations. Amnesty International for example, said that the planned Belgian law to ban the face covering veil "would violate the right to the freedom of expression, and of religion, of women who choose to express their identity or their beliefs in this way" [2].

In 2004 France accepted a law which outlaws the wearing of face veils in government buildings and primary and secondary school. Earlier this month the French Parliament decided to approve a ban on the full faced veil or niqab in public. In September the Senate will decide whether the law will pass. Other European countries have similar proposals in the pipeline.

On Tuesday July 20, 2010, the lower house of Spain rejected a proposal to ban the burqa. Nevertheless this fall the Spanish government plans to introduce legislation in order to ban the burqa in government buildings as part of Spain's Religious Freedom Bill, which is to be debated in the fall [3]. Belgium awaits Senate approval of a law banning the wearing of face veils in public. In Italy also measures have been taken to push back the wearing of the veil and islamic swim suits in public.

On the other hand, in The Netherlands, general public use of the veil is not prohibited. But the judiciary and civil servants in uniform are forbidden to wear a veil while they are excercising their profession. Public schools may not forbid the wearing of veils but confessional schools may ban the wearing of veils under special circumstances [4]. In the United Kingdom, a veil that covers the face is not forbidden. The British immigration minister Brian Green stated that to ban the face covering veil would be "rather un-British" and run contrary to the conventions of a "tolerant and mutually respectful society" and is therefore "undesirable". [5]. The Parliamentary Assembly of the Council of Europe (PACE) voted unanimously to reject any general prohibition on the wearing of the burqa or other religious clothing [6].

Several arguments are made in favor of the proposed bans of the islamic veil. For example, wearing face covering veils in public is disadvantageous to security. For security reasons it is also required that on the photographs of identity papers and driver's licences the whole face is visible. Another argument is that the burqa and the niqab could be seen as an expression of male domination and sexual inequality. The reason that women have to wear these body and face covering veils is that women are objectified as sex objects. According to islamic rules, a woman should cover her head (and breast) and wear modest clothing in order to keep her modesty and dignity and avoid evoking sexual feelings in other men besides her husband. Those in favor of banning public use of the burqa argue that most women wear these coverings because they are coerced to do so and that they would not wear it voluntarily.

In her opinion blog in the NYTimes, "Veiled threats" , Martha Nussbaum argues that not all the arguments in favor of outlawing the burqa are consistent [7]. For example, not only islamic women cover their faces in public life - so do dentists, physicians, skieers, football players, etc. And when it is freezing it is sensible to cover the head and face as best as possible to prevent it from the cold. Another inconsistency is that some islamic women do choose to wear the veil voluntarily. They regard the wearing of a veil as a part of their cultural and religious identity. The veil makes it possible for islamic women to take part in social life, while keeping their dignity. In their opinion, by wearing a veil, and opting for modest clothing, make-up and accessories, they also avoid the risk of drawing unwanted attention from men with unworthy intentions.

Certain Muslim organisations complained that the desire to safeguard the principles of secularism and the separation of state and religion is going too far. For example, Mohammed Bechari, president of the National Federation of French Muslims asked: "Where does it begin or end; what we are calling radical behavior?"['8]. The need to safeguard the laicité (separation of church and state) could lead to further bans related to wearing religious symbols and clothing styles in public. "Will we see a man refused citizenship because of the length of his beard ... or a man who is dressed as a rabbi, or a priest?"[9] The debate about the banning of the burqa and niqab is perhaps just an aspect of a growing secularist tendency.

Newspaper articles :

Other links:

Relevant Peace Palace Library Keywords:


[1] As quoted from MEP calls for Europe-wide burqa ban The
[2] As quoted from MEP calls for Europe-wide burqa ban The
[3] As quoted from Spain lower house rejects proposal to ban burqa, Jurist
[4] Hoofddoek (headscarf), Wikipedia
[5] As quoted from
Burka ban ruled out by immigration minister, The Telegraph
Spain lower house rejects proposal to ban burqa, Jurist
"Veiled Threats" by Martha Nusbaum, The New York Times
[8] As quoted from
Burqa is a prison, says French minister The Telegraph
[9] As quoted from Burqa is a prison, says French minister The Telegraph

Muslim headscarves. Source: BBC News

Monday, July 12, 2010

The First Review Conference of the ICC Statute & the Crime of Aggression Part II

This post is a follow up of a prior post discussing issues to be addressed at the Kampala Conference in Uganda which took place from the 31st of May until the 11th of June 2010. This post will briefly discuss the most important outcomes of this Conference.

After two weeks of intense debates and years of preparatory work by the Special Working Group on the Crime of Aggression, the Review Conference of the Rome Statute adopted by consensus amendments to the Rome Statute which includes a definition of the Crime of Aggression and determined how the Court will exercise its jurisdiction over the crime. [1]
Even though the Rome Statute has always included the Crime of Aggression within its subject matter jurisdiction, the ICC was not authorized to prosecute or investigate such crimes until the treaty was amended and a jurisdictional means was established to bring cases before the Court.
Article 8 bis adopted in Kampala defines an act of aggression “as the use of armed force by one state against another state without the justification of self-defense or authorization by the United Nations Security Council”. [2] The individual crime of aggression is defined “as the planning, preparation, initiation or execution by a person in a leadership position of an act of aggression. Most importantly, both contain the requirement that the act of aggression must constitute a manifest violation of the Charter of the United Nations. [3]
The definition of the act of aggression as well as the actions qualifying as acts of aggression contained in the amendments are to a large extent influenced by the UN General Assembly Resolution 3314 (XXIX) of December 1974.[4]

The conditions regarding the exercise of jurisdiction are set out in articles 15 bis and 15 ter of the Rome Statute. Here, an important distinction is made between, on the one hand, the UN Security Council’s referral of a situation of aggression, and on the other, a State Party’s referral of a situation of aggression or the ICC Prosecutor's initiation of an investigation of aggression.
This means that the procedures activating the Court’s jurisdiction will also be different depending on which party initiates an investigation or refers a situation of aggression. In case the UN Security Council refers a situation of aggression to the ICC, any State as well as its nationals can be subjected to an investigation and prosecution for the Crime of Aggression, regardless whether the State concerned has accepted the Courts jurisdiction. When a State Party refers a situation of aggression or the ICC Prosecutor initiates an investigation of aggression, the Court must determine whether the State concerned has declared to the Registrar of the Court that it does not accept the Court’s jurisdiction on aggression. If this is indeed the case, the Court is not allowed to proceed against the nationals of this State. The Court is also not authorized to prosecute Crimes of Aggression when they’re committed by a non-State party’s nationals or on a non-State party’s territory. This provision achieved the much sought- after protection from jurisdiction by key Non State Parties such as China, India, Indonesia, Russia and the United States of America. [5]
The United States in particular participated fully in the negotiations in Kampala and was able to play a significant role in the outcome of the Conference. The US managed to persuade State parties to extend the entry into force of the amendments until 1 January 2017. [6] Furthermore, the US also attempted to enhance the role of the UN Security Council and therefore enabling Permanent Members to use their Veto powers to subvert the process which would subsequently lead to a politicization of the ICC. It is worthwhile noting that the Bush Administration claimed that this very issue of politicization was the problem with the ICC in the first place. This renewed engagement with the ICC does suggest that the Obama administration is interested in the development of international law and can play an important role by supporting efforts to bring perpetrators of international crimes to justice. [7]
In the end, the accomplishments of the ICC Review Conference do strengthen the ICC’s capacity to hold perpetrators of the worst international crimes accountable for their actions and provides the international community with a new instrument to fend off the trauma of unjust wars. [8]





[5] States Parties Approve New Crimes for The International Criminal Court, by D. Scheffer, The American Society of International Law, Vol. 14, Issue 16, June 22nd 2010.

Friday, July 2, 2010

The International Politics of Whaling : Recent Developments

Whales - large, mysterious, intelligent, and endangered. Has any mammal inspired such romantic images of the sea and love for nature as much as the whale, yet aroused such controversy in global environmental conservation ? King of the Seas, symbol of the environmental movement, meat and oil for commercial whaling. Over the years, large-scale commercial whaling has depleted a number of whale populations to a significant extent, resulting in the International Whaling Commission (IWC) issuing a moratorium on whaling in 1986. The moratorium advocates a ban on whale hunting but tolerates indigenous and scientific hunting. World-wide attitudes toward whaling shifted gradually from economic necessity and widespread acceptance to moral censure. The current debate centres on the appropriateness of this global ban. Strong opposition is given by communities in Japan, Norway and Iceland, three countries still supporting whaling. The reputed recovery of some whale populations has been put forward as their argument for resuming limited commercial whaling. Some recent developments will illustrate the highly controversial nature of whaling.

Annual Meeting of the International Whaling Commission

From 22 to 25 June, delegates from 88 countries attended the 62nd Annual Meeting of the IWC in Agadir, Morocco. In order to try and smooth over the differences, a proposal for a compromise was formulated aimed to authorise hunting, which would strictly be controlled by the definition of quotas for a ten-year period. Japan, which, under the guise of scientific hunting, kills close to 1,000 whales per annum, offered concessions on its quotas and agreed to the international monitoring of its activities, including onboard its vessels, but it refuses to give up hunting on the high seas, in particular in the waters of the Southern Ocean, where the IWC established a whale sanctuary in 1994. However, for a number of countries hostile to hunting, this proposal, even with declining quotas, would have legitimised an infringement of the moratorium. And so, the Conference closed without a consensus, thus implicitly confirming the current status quo.

The only tangible decision, adopted by consensus on 25 June, was to grant a quota of 27 humpback whales over three years to Greenland's Inuit People. Represented by Denmark, the Inuit defended their right to manage marine resources on their territory, while referring to the UN Declaration on the Rights of Indigenous Peoples. To obtain the green light from the IWC and break the deadlock, the European Union suggested a compromise to Denmark: reducing fin whale catches from ten to nine in exchange for humpback whales. Greenland is also entitled to 212 small fin whales. The agreement will be valid until 2012, when quotas will be re-examined.

No longer taking into account the IWC, Iceland and Norway will continue commercial whale hunting in their territorial waters on the basis of national, unilaterally-established quotas. That being so, whale hunting will be one of the hot topics in negotiations for Iceland’s accession to the European Union once the environment chapter is opened. The subject is weighing down the situation with negotiations already predicted to be very difficult on financial services and fishing.

Whaling before the International Court of Justice

Three weeks earlier to the IWC's 62nd Annual Meeting, Australia instituted proceedings against Japan before the International Court of Justice for alleged breach of international obligations concerning whaling. Australian Environment Minister Peter Garrett and Attorney General Robert McClelland said in a joint statement that the move underlines their commitment to bring an end to Japan's program of so-called scientific whaling. In its Application of 31 May 2010 Australia stated that Japan has breached and is continuing to breach its obligations under the International Convention for the Regulation of Whaling by its continued pursuit of a large scale programme of whaling under its Whale Research Programme (JARPA II) in the Southern Ocean. Australia points out that, having regard to the scale of the JARPA II Programme, the lack of any demonstrated relevance for the conservation and management of whale stocks, and to the risks presented to targeted species and stocks, the Programme cannot be justified under article VIII ICRW, which regulates the granting of special permits to kill, take and treat whales for purposes of scientific research. Australia alleges further that Japan has acted in violation of its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and under the Convention on Biological Diversity (CBD). The Australian Foreign Minister Stephen Smith said the two countries have agreed to treat the matter as an independent legal arbitration of a disagreement between friends.

Whaling on Trial : the 'Tokyo Two'

Meanwhile in Japan, Greenpeace activists Toru Suzuki and Junichi Sato have been facing trial for nearly two years for alleged theft and trespass. They face up to ten years in prison. Having exposed a scandal involving government corruption entrenched within the tax-payer funded whaling industry, the trial attracts international attention. A working group of the United Nations Human Rights Council has already ruled out that, in the defendants' attempts to expose the scandal in the public interest, their human rights have been violated by the Japanese Government.

PPL Books and Articles

BURCHFIELD, C., The Legal Cetacean : a Select Bibliography on Whales and International Whaling, 36 International Journal of Legal Information (2008) 3, pp. 490-505

BURNS, W.C.G. and A. GILLESPIE (eds.), , The Future of Cetaceans in a Changing World, Ardsley, NY : Transnational, 2003, XXVII, 457 p

DARBY, A., Harpoon : Into the Hart of Whaling, Cambridge, MA : Da Capo Press, 2008, XIX, 300 p

To many, the whale is a majestic mammal, the 'mind in the ocean'. What were once whaling towns have become homes to hordes of devoted whale watchers, and whaling, for the most part, was thought to have been vanquished. It was just a matter of waiting for those few misguided nations still whaling to come to their senses. That never happened. Instead, the whalers came back. In 1987, the first full year after the worldwide moratorium on commercial whaling was agreed to, 100 whales were killed on the end of grenade-tipped harpoons. In 2005, the figure was around 2,500. Harpoon reveals the political machinations and manipulation at the highest levels that have allowed some countries, particularly Japan, to continue hunting whales against the wishes of the world, with the IWC powerless to stop the slaughter.

EPSTEIN, C., The Power of Words in International Relations : Birth of an Anti-Whaling Discourse, Cambridge [etc.] : The MIT Press, 2008, , XII, 333 p

In the second half of the twentieth century, worldwide attitudes toward whaling shifted from widespread acceptance to moral censure. Why? Whaling, once as important to the global economy as oil is now, had long been uneconomical. Major species were long known to be endangered. Yet nations had continued to support whaling. In The Power of Words in International Relations, Charlotte Epstein argues that the change was brought about not by changing material interests but by a powerful anti-whaling discourse that successfully recast whales as extraordinary and intelligent endangered mammals that needed to be saved. Epstein views whaling both as an object of analysis in its own right and as a lens for examining discursive power, and how language, materiality, and action interact to shape international relations. By focusing on discourse, she develops an approach to the study of agency and the construction of interests that brings non-state actors and individuals into the analysis of international politics.Epstein analyzes the "society of whaling states" as a set of historical practices where the dominant discourse of the day legitimated the killing of whales rather than their protection. She then looks at this whaling world's mirror image: the rise from the political margins of an anti-whaling discourse, which orchestrated one of the first successful global environmental campaigns, in which saving the whales ultimately became shorthand for saving the planet. Finally, she considers the continued dominance of a now taken-for-granted anti-whaling discourse, including its creation of identity categories that align with and sustain the existing international political order. Epstein's synthesis of discourse, power, and identity politics brings the fields of international relations theory and global environmental politics into a fruitful dialogue that benefits both.

GILLESPIE, A., Whaling Diplomacy : Defining Issues in International Environmental Law, Cheltenham [etc.] : Elgar, 2005, XXII, 509 p

FRIEDHEIM, R.L. (ed.), Toward a Sustainable Whaling Regime, Seattle [etc.] : University of Washington Press [etc.], 2001, X, 382 p

STOETT, P.J., The International Politics of Whaling, Vancouver : UBC Press, 1997, XII, 228

*Librarian's Special Recommendation*

BURNETT, D.G., Trying Leviathan : the Nineteenth-Century New York Court Case that Put the Whale on Trial and Challenged the Order of Nature, Princeton, NJ [etc.] : Princeton University Press, 2007, XIV, 266

In Trying Leviathan, D. Graham Burnett recovers the strange story of Maurice v. Judd, an 1818 trial that pitted the new sciences of taxonomy against the then-popular--and biblically sanctioned--view that the whale was a fish. The immediate dispute was mundane: whether whale oil was fish oil and therefore subject to state inspection. But the trial fueled a sensational public debate in which nothing less than the order of nature--and how we know it--was at stake. Burnett vividly recreates the trial, during which a parade of experts--pea-coated whalemen, pompous philosophers, Jacobin lawyers--took the witness stand, brandishing books, drawings, and anatomical reports, and telling tall tales from whaling voyages. Falling in the middle of the century between Linnaeus and Darwin, the trial dramatized a revolutionary period that saw radical transformations in the understanding of the natural world.