peace palace library

Pirates, Buccaneers and Privateers : Concepts of International Law

2012-01-09T14:45:00.010+01:00

Nowadays, it seems impossible to believe that in our world of ultramodern computer and satellite guided supertankers and container ships, steered only by a handful of crewman, a historic anachronism as piracy has all but vanished from the world’s seas. Modern-day pirates in bare, wooden boats, often primitively armed, from the Puntland region of Somalia or from the shores of the Strait of Malacca have come to hunt their prize, making high-profile seizures and wresting multimillion dollar ransoms from global corporations. This resurgence of modern piracy captured the world’s headlines and attracted the attention of the international community. Foreign powers initiated anti-piracy efforts by deploying warships into the international waters of the Gulf of Aden. Regional coordinating hubs, such as MARLO, MSC-HOA and other international monitoring agencies were set up. With the expansion of many national jurisdictions into adjacent territorial waters and a continuing irresolution over piracy trials internationally, the matter still hasn’t been resolved. Any study of piracy inevitably raises the issue of (legal) definition. In international law, the definition of piracy is relevant because any confusion in terminology invariably leads to debates between State sovereignty and universal jurisdiction over crimes committed at sea. In the following, we will discuss some of the current definitions of piracy in international law, but first a short historical perspective on piracy in general.

Historical Perspective on Piracy

Piracy is of ancient origin. What is today remembered as the Golden Age of Piracy of the late 17th and 18th centuries had grown out of a period of maritime expansion. The Spanish Empire’s desire to monopolize its discovery of the Americas soon had been contested by other West European nations and seafaring adventurers of mainly English, Dutch or French origin. Daring fighters and seamen as the Englishmen Sir Francis Drake, Sir Richard Hawkins, and the Dutchman Piet Hein received official government commissions or authorizations (so called letters of marque) to commence naval warfare on Spanish ships, in the Caribbean and off the coasts of North America. Inspired by the successes and obtained wealth of these privateers, groups of wandering pirates, often called freebooters or buccaneers, began to harass the Spanish colonies in the New World, particularly during the second half of the 17th century. Buccaneers are usually distinguished from privateers, because they rarely had valid commissions. They are also distinguished from pirates who attacked ships of all nations. This lawless form of piracy was outlawed and at last checked during the early 18th century, when general peace was restored. Pirates were hunted down by the English Royal Navy or by licensed bounty-hunters. Piracy waned in the latter part of the 18th and early 19th centuries, but never really disappeared completely.

Piracy in International Law

As mentioned above, piracy should be distinguished from privateering. “Privateer” in international law, is the term applied to a privately owned armed vessel whose owners are commissioned by a hostile nation to carry naval warfare. The practice of privateering preceded the creation of national navies. European States having few or no warships hired merchant vessels for hostile purposes. By issuing naval commissions or authorizations to shipowners or procurers, these States created therefore a legitimate form of war-like activity by non-State actors. By way of compensation, privateers were allowed to share any booty captured. Privateering came into general use, but was first renounced and outlawed by the Peace of Westphalia (1648) for signatories to those treaties. Two centuries later, privateering was abolished on the international level by the Declaration Respecting Maritime Law (Paris, 16 April 1856), but the Declaration was not supported by the United States, Spain, Mexico and Venezuela. During the American Civil War, Congress authorized the President to commission privateering in 1863, but this power was not exercised. The Confederacy, however, engaged several times in privateering. Finally, privateering was officially renounced by the United States during the Spanish-American War of 1898.

Establishing an authoritative definition of ”piracy” in international law has always been rather problematic. The definition is relevant, as said above earlier, because any confusion in terminology invariably leads to debates between State sovereignty and universal jurisdiction over crimes at sea. There are numerous meanings of the word piracy with no direct legal implications. Just look it up in any dictionary! The various international law meanings of piracy are derived from, among others, international treaties, and various municipal law meanings are defined by statutes and State practice. The first more precise and detailed definition of piracy has been formulated in Article 15 of the Convention on the High Seas (Geneva, 29 April 1958), and Article 101 of the United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982) :

Article 15 / Article 101
Definition of piracy

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed—
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

These articles are generally recognised as providing the definition of piracy in international law, but proved insufficient. Piracy was still a relatively minor issue during the first United Nations Conference on the Law of the Sea (UNCLOS I) in 1956. More concerned with economic interests such as ownership of offshore resources and fishing grounds, even Western nations had not been unduly concerned by the sparse instances of piracy occuring that time. Historically, piracy had been dismissed as a crime which fell under what was then known as “universal jurisdiction”. Any such outlaws could be summarily tried by any government that captured them. And those were scarce as only a handful of Western sea powers had been in a position to do so. But how was the issue of universal jurisdiction to be understood? It is clear that the definition of piracy was not updated to take into account the development of the modern regime of maritime zones and remained trapped in a period where the high seas were only three miles from shore. Could piracy only be committed on the high seas, or could piratical acts also be perpetrated in territorial waters or in ports? Given the fact that the majority of piracy acts reported today take place in waters within the jurisdiction of newly emerged States, claiming their own expanding territorial waters, this problem is growing more complicated. Another problem is the limitation of piracy to private motivations, such as personal gain, thus exempting politically driven actions. Even such an abbreviated definition of piracy as “any armed violence at sea which is not a lawful act of war” could easily be questioned by insurgents or revolutionary fighters pointing out that personal gain was not their objective, rather a national (liberation) cause. Finally, the conventions require member States to cooperate in prosecuting piracy, but there is no mechanism to enforce this. Rather, member States must incorporate provisions into domestic law before they can prosecute acts of piracy. Yet, few States have taken this essential step.

Another international instrument, that governs piracy and provides a jurisdictional basis for nations to prosecute such acts domestically, is the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome, 10 March 1988). Drafted in response to the Achille Lauro incident, the SUA Convention was enacted, at least in part, to ensure that politically motivated attacks on ships could be prosecuted as acts of piracy. Although the SUA Convention does appear to broadly prohibit offenses that are more consistent with modern-day piracy, the Convention is flawed for several reasons, see Dutton, pp. 208-209.

In municipal law, various definitions of the term piracy are in use. It has been extended to cover crimes other than those defined above, such as slave trading. A sovereign State has the power to declare offenses to be piracy that are not so regarded by international law. These municipal laws can have binding force only in the jurisdiction creating them. As new types of piracy resurge nowadays, the international community has to decide to act and bring pirates to justice. Piracy is a serious crime of international concern that is only increasing in frequency and severity. Although the international community may be thwarting some pirate attacks, what it is not doing now is sending pirates a message that piracy will not be tolerated. Recent developments show that first steps have been taken. In its Resolution 1918 (2010), the UN Security Council is calling on member states to criminalize piracy under their domestic laws and urging the Secretary-General to consider an International Tribunal for prosecuting piracy. Others suggest that pirates can be brought to justice using the already extant International Criminal Court by way of an optional protocol to include piracy within the Court’s jurisdiction.

Peace Palace Library collection on Piracy

Books

Boon, K.E. (ed.), Terrorism : Documents of International and Local Control : Piracy and International Maritime Security, New York, NY etc. : Oxford University Press, 2011

Heller-Roazen, D., The Enemy of All : Piracy and the Law of Nations, New York, NY : Zone Books, 2009

Kempe, M., Fluch der Weltmeere : Piraterie, Völkerrecht und internationale Beziehungen 1500-1900, Frankfurt am Main etc. : Campus Verlag, 2010

Kraska, J., Contemporary Maritime Piracy : International Law, Strategy, and Diplomacy at Sea, Santa Barbara, CA : Praeger, 2011

Lehr, P. (ed.), Violence at Sea : Piracy in the Age of Global Terrorism, New York, NY etc. : Routledge, 2007

Marley, D., Modern Piracy : a Reference Handbook, Santa Barbara, CA etc. : ABC-CLIO, 2011

Murphy, M.N., Small Boats, Weak States, Dirty Money : Piracy and Maritime Terrorism in the Modern World, London : Hurst, 2009

Payne, J.C., Piracy Today : Fighting Villainy on the High Seas, Dobbs Ferry, NY : Sheridan House, 2010

Petrig, A.. (ed.), Sea Piracy Law : Selected National Legal Frameworks and Regional Legislative Approaches, Berlin : Duncker & Humblot, 2010

Young, A.J., Contemporary Maritime Piracy in Southeast Asia : History, Causes and Remedies, Singapore etc. : Institute of Southeast Asian studies etc., 2007

Articles

Arnauld, von A., "Die moderne Piraterie und das Völkerrecht", 47 Archiv des Völkerrechts (2009) 4, pp. 454-480

Bento, L., "Towards an International Law of Piracy Sui Generis : How the Dual Nature of Maritime Piracy Enables Piracy to Flourish", 29 Berkeley Journal of International Law (2011) 2, pp. 399-455

Campbell, P., "A Modern History of the International Legal Definition of Piracy", in: Piracy and Maritime Crime : Historical and Modern Case Studies, Newport, RI : Naval War College Press, 2010, pp. 19-32

Dutton, Y.M., "Bringing Pirates to Justice : a Case for Including Piracy within the Jurisdiction of the International Criminal Court", 11 Chicago Journal of International Law (2010) 1, pp. 197-241

Mejia, M.Q., P. Cariou and F.-Ch. Wolff, "Ship Piracy : Ship Type and Flag", in: Maritime Safety, Security and Piracy, London : Informa, 2008, pp. 103-120

Talley, W.K. and E.M. Rule, "Piracy in Shipping", in: Maritime Safety, Security and Piracy, London : Informa, 2008, pp. 89-101

Treves, T., "Piracy, Law of the Sea, and Use of Force : Developments off the Coast of Somalia", 20 European Journal of International Law (2009) 2, pp. 399-414

Database

Max Planck Encyclopedia of Public International Law, Piracy, by Ivan Shearer

Inspiration and innovation in international law and politics, 100 years Nobel peace prize Tobias Asser

2011-12-15T11:28:00.000+01:00

Guest-blog by Henri van Hasselt, MSc Leiden University, at the moment working for the Institute for Historical Justice and Reconciliation

Commemorative Conference, December 9, 2011, Peace Palace, The Hague
Inspiration and innovation in international law and politics, 100 years Nobel peace prize Tobias Asser
The conference in honor of the late Tobias Asser, a hundred years after receiving the Nobel peace prize, featured a day long program with various speakers, presentations and panel discussions. The following is a selection of the opinions delivered by some of the most prominent speakers on the subjects of public international law and private international law. For a more detailed account of the life and legacy of Tobias Asser, please see ‘The learned guide of our nation. Tobias Asser’s pivotal role in international law and diplomacy’ by Arthur Eyffinger, presented during the conference.

After an interesting keynote address by Judge Peter Tomka, Vice-President of the International Court of Justice, stressing the renaissance and importance of International Arbitration in the present world, the first session of the day dove straight into the heritage of Tobias Asser and its continued importance. Among many excellent contributions, Hans van Loon, Secretary General of the Hague Conference on Private International Law, pointed towards the difficulties presently facing the Conference. While being founded on the principles endorsed by Asser, the challenges are wholly different as cross border contacts nowadays involve more states, more members of society and more complex structures. Although referring to private international law, Mr. van Loon highlighted the central issue that would occupy most of the debate during the day, namely the modern challenges facing the international legal order and possible resolutions in the spirit of Asser.

The second session of the day was instrumental in this perspective. It concerned itself with the possibilities of a third Hague Peace Conference, following the tradition of 1899 and 1907. Joris Voorhoeve, Professor of International Organizations and Security at Leiden University, stressed principally that a narrow topic base would be crucial for its success. To start of debate, he suggested the conference should either focus on small arms, corruption or on ‘clandestine precision killing’, i.e. targeting individuals using unmanned aircrafts or drones. Expanding on the evils of small arms, Mr. Voorhoeve further applauded the example of the Ottawa Landmine Ban Conference, suggesting a similar, NGO driven model could be applied to a The Hague conference. Following these suggestions, Nico Schrijver, Professor of International Law at Leiden University, questioned the necessity for a new Hague Peace Conference given the fact that the world presently knows a permanent forum to discuss these topics, but agreed with the principle of focusing on specific topics. Critical of the ineffectiveness of the Security Council, the apparent failure of the ban on the use of force by states, he suggested to pursue compulsory jurisdiction for the ICJ but stressed that any Hague Conference should focus on state actors and pursue tangible results. Compared to the pragmatic approach by the first speakers, Dire Tladi, Counselor for Legal Affairs of the Permanent Mission of South Africa to the UN, took a more idealistic approach. Establishing that the legal architecture for global peace has only been modified slightly since 1945, while the threats and characteristics of modern warfare have changed significantly, he proposed a new Hague Conference should investigate the possibilities of a Security Council reform. While commending evolving mechanisms such as peace keeping missions, Mr. Tladi noted that the Security Council only operated effectively if the interests of the permanent members were not at stake and if there was consensus.

Following more and equally interesting sessions, the day was closed by Hans Corell, former Under-Secretary-General for Legal Affairs and the Legal Council of the UN, who beautifully summarized the proceedings of the day and integrated them with accounts from his own experience, both from a recent and more distant past. Central in his appeal was the wish that the legacy of Tobias Asser should not be lost and the importance of striving towards international peace should not be forgotten in the face of adversity. Tobias Asser, he summarized, did just this by aiming for idealism but applying pragmatism.

www.ihjr.org | hhasselt@ihjr.org |info@ihjr.org

International territorial administration: the possible revival of a concept compromised by systemic accountability concerns

2011-12-08T10:38:00.002+01:00

Guest-blog by Aleksandar Momirov, Assistant Professor of Public International Law at the Erasmus University Rotterdam, about his thesis “Accountability of international territorial administrations : a public law approach” (Erasmus University Rotterdam, 2011):
International territorial administration: the possible revival of a concept compromised by systemic accountability concerns.

This blog post introduces the main topic of the book “Accountability of International Territorial Administrations: A Public Law Approach”. In recent history, territories have at times been placed under temporary international administration, for example in the context of decolonization or as part of a broader endeavor to end a particular conflict. Within the framework of the League of Nations Mandates System and the United Nations Trusteeship System, the international community assumed responsibility over certain territories, while delegating the actual administration to proxy states.

Occasionally, however, international entities have assumed direct control over territories. In so doing, they adopt decisions which have direct effect on the ground and thus have a direct impact on the local population. Namely, international territorial administrations are geared with an inclusive mandate to guarantee much more than the mere absence of armed conflict. Decisions adopted by these missions relate to all spheres of public life and to all fields of public power. In other words, the legislative, executive and judicial process within a territory is internationalized. Three contemporary missions come to mind as a case in point: the ongoing international administration of Bosnia and Herzegovina, the impaired UN supervision of Kosovo and the completed UN administrations of East Timor.

While illustrative of the 90’s, recently opinions have been voiced in favor of placing new territories under temporary international rule. The East Timorese model has been mentioned in the context of post-conflict reconstruction efforts in Libya. Also, the troubled region of Northern Kosovo has at times been suggested as a possible candidate for international administration.

When full-fledged international administrations are imposed, this essentially means that in terms of law, the state is replaced by an international institution. In other words, the state as the traditional intermediary in the relationship between international law and individuals was taken out of the equation. As the Brahimi Report points out, for the people on the ground, this means ¬amongst others that international entities adopt and enforce the law, establish customs services and collect taxes, adjudicate property disputes and operate ¬– and at times privatize – public utilities. Furthermore, the international entities have for example made use of their prerogatives to detain individuals by decree and to remove elected office holders from office. When public powers as the ones just described are exercised, accountability and legitimacy issues arise, especially when the exercise of these powers has an adverse effect. Practice has shown that an accountability vacuum exists; in other words, the exercise of public power is not subjected to checks and balances and can hardly be challenged by adversely affected individuals.

International law does not provide a fit for purpose regulatory framework within which international administration of territories is carried out and, more importantly, through which international territorial administrations can be held to account for the manner in which they exercise the public powers that were entrusted to them. In case of international administration, there is no coherent legal framework which would curb the authority of international territorial administration missions. Although these missions operate on the basis of a specific mandate, the former UN Special Representative for East Timor pointedly remarked that “[T]he mandate is the floor (but not the ceiling) for everything the Mission does”. The troublesome situation is further complicated by extensive immunities. Namely, the following dichotomy presents itself: while administration missions enjoy state-like powers, they hold on to a conception of immunity common to international organizations and defended by operational necessity. This setting gives rise to fundamental issues concerning legitimacy and accountability of these international administrations.

The book “Accountability of International Territorial Administrations: A Public Law Approach” conceptualizes the accountability deficit of missions engaged in the international administration of territories. In addressing the accountability deficit, a public-law approach is adopted. The book explores to what extent it is warranted to perceive these missions as public entities exercising public power rather than international organizations merely engaged in extensive peacekeeping and how public law influences our understanding of the accountability deficit.

The book looks at public law as the body of law that traditionally regulates accountability with respect to the exercise of public power, arguing that public law principles can, mutatis mutandis, be applied in a non-state context where public law is exercised. Three public law principles are emphasized in this respect: the rule of law, reviewability and the independence of the judiciary, while exploring the linkage between these three principles on the one hand and the main institutional and conceptual characteristics of international territorial administration on the other hand. The book illustrates how the systemic disregard of these three principles is at the core of the accountability deficit of international administrations and how public law should play a role in addressing this deficit.

http://www.elevenpub.com/law/catalogus/accountability-of-international-territorial-administrations-1#

Aleksandar Momirov donated a copy of his thesis to the Peace Palace Library.

Shabtai Rosenne Memorial Lecture

2011-11-25T15:10:00.006+01:00

On Thursday, 24 November the first Shabtai Rosenne Memorial Lecture, delivered by Professor Malcolm N. Shaw Q.C., Senior Fellow at the Lauterpacht Centre for International Law at the University of Cambridge, took place at the Peace Palace in The Hague, a little more than a year after Professor Rosenne’s death. The event was hosted by the Embassy of Israel in The Hague and Brill-Martinus Nijhoff Publishers, together with the Rosenne family.

The Hague and the Peace Palace were considered the obvious choice for this first Rosenne memorial lecture. Not only did Professor Rosenne devote an important part of his academic life to the study of the International Court of Justice (ICJ) and its predecessor the Permanent Court of International Justice (PCIJ), he was also the first person to be awarded The Hague Prize for International Law in 2004. His study of the ICJ and PCIJ resulted in a series of authoritative writings on the law and practice of these courts. In addition Rosenne published extensively on a variety of legal subjects, e.g., the law of treaties, the law of the sea, the codification of international law, the law of Israel, etc., in many books and legal periodicals as can be witnessed from the bibliography which was compiled especially for this occasion by the Peace Palace Library (PPL) and published in the booklet on the Memorial Lecture. All publications listed (his early publications from the 1940’s go under the name of S.W.D. Rowson) are available at the PPL and many of them can be readily found through the online catalogue.

In his lecture entitled, “The Peaceful Settlement of Disputes: Paradigms, Plurality and Policy”, Professor Shaw gave an overview of where he thought dispute resolution was at the moment. He emphasised the need to see international law generally and peaceful settlement of disputes specifically within the context of the contemporary social, political and economic circumstances. Such a context with its resulting legitimacy principles would help explain current international law, assist with its interpretation and give some indications of future developments. Essentially, changing economic and political circumstances require changing laws, institutions and mechanisms. He drew attention to the current trend for dispute settlement by the use of multiple techniques, discussing as an example the resolution of the Bakassi dispute between Cameroon and Nigeria with the close involvement of the UN, following upon the decision of the International Court of Justice. Further, Shaw noted the tendency of the International Court to be more prescriptive in its orders and decisions, with what he termed an increasing "long reach", whereby the Court called upon the parties to adopt specific measures or methods in order to ensure full resolution of the dispute that had been before it. He concluded by emphasising that international law is about getting things done in the most convenient manner and thus building cooperation, but all with the purpose, as Shabtai Rosenne had stated in his acceptance speech for the Hague Prize in 2004, of seeking justice.

In a Comment to the lecture of Professor Shaw, Dr. Daphné Richemond-Barak, from the Inter-Disciplinary Center (IDC) in Israel, highlighted two trends in international dispute settlement, (i) the growing influence of non-state actors, and (ii) the proliferation of dispute settlement. Dr. Richemond focused in particular on the increasing participation of international/regional organisations and civil society in dispute settlement. She also elaborated on the growing number of non-traditional mechanisms for the resolution of international disputes.

Both the text of and the comment to the Shabtai Rosenne Memorial Lecture will be published in the near future by Brill/Martinus Nijhoff Publishers.

Dag Hammarskjöld (1905 - 1961)

2011-11-10T11:17:00.036+01:00

Fifty years ago, the former United Nations Secretary-General Dag Hammarskjöld tragically passed away in a plane crash, on his way to cease-fire negotiations with the leaders of Katanga province of conflict-ridden Congo.

When Dag Hammarskjöld became Secretary-General in 1953, the United Nations was heavily divided by the Cold War. In spite of great political hostility between the Super Powers, he proved to be undaunted by powerful governments and was able to generate a strong and welcoming feeling of hope within the international arena. From the beginning, Hammarskjöld was very aware that the UN was still in its early stages of development and needed to make a constant effort to search for new ideas as well as establish new precedents to effectively deal with contemporary problems. He went to great lengths to lay a strong foundation for new ideas and techniques. For instance, he personally engaged in laborious negotiations of a Status of Forces Agreement with Egypt to define the relationship of the first UN Peacekeeping Force with its host country. [1] Hammarskjöld believed that a just and fair world could eventually be achieved by the establishment of precedents and case law.

In his last Annual Report to the UN General Assembly, Hammarskjöld argued that the objective of International Peace and Security would only be achieved on the basis of four fundamental principles, namely: (i) equal political rights, both sovereign and individual; (ii) equal economic opportunities, through higher standards and also conditions conducive to economic and social advancement; (iii) a firm framework of the rule of law, which should underpin all activities of the international community; and (iv) the prohibition of the use of force, where it is contrary to the other three principles.

Today, these same principles remain at the core of the UN's efforts to maintain global peace and security, and the international institutions that emerged. The development of a collective security system raises intriguing questions as to what extent comtemporary approaches are still consistent with Dag Hammarskjöld's vision of the UN.

To commemorate his legacy, The Hague Institute of Global Justice organizes a Conference on the 9th and 10th of November 2011 titled: Peace Diplomacy, Global Justice and International Agency, Rethinking Human Security and Ethics in the spirit of Dag Hammarskjöld (1905-1961)

The Conference will pursue the following objectives:

1. To investigate Dag Hammarskjöld's ideas in shaping the future role of the United Nations

2. Learning lessons from concrete conflict situations in which the International community was or is involved .

3. Raising our understanding of the critical relationship between justice and peace.

4. Making national and international efforts and institutions more effective and sustainable.

For further information, please click the following link:
http://thehagueinstituteforglobaljustice.org/index.php?page=Events&pid=123&id=18&archive=o

[1] New Routes, Volume 16 (2), Special issue in collaboration between the Life & Peace Institute and the Dag Hammarskjöld Foundation, Life & Peace Institute, 2011

Image: http://www.daghammarskjold.se/

Abyei Arbitration between the Government of Sudan and the Sudan People's Liberation Movement

2011-11-02T12:08:00.005+01:00

The Peace Palace Library organizes an evening of lectures and discussion about the Abyei Arbitration between the Government of Sudan and the Sudan People's Liberation Movement. The speakers are Mr. Brooks W. Daly, Deputy Secretary-General and Principal Legal Counsel of the Permanent Court of Arbitration (PCA), and Prof. Johan G. Lammers.

The lecture will take place Wednesday 30 November, 2011, at 17.30-19.30 (lecture starts at 18.00), in the Historic Reading Room of the Peace Palace Library.

On the 22nd of July, 2009, an Award on the delimitation of the Abyei Area was rendered, thereby settling a dispute between the Government of Sudan and the Sudan People’s Liberation Movement/Army. The PCA acted as registry and provided administrative support. The rendering of the Award was meant to facilitate the organization of a referendum about the future of the area, where various oil fields are located. On the 9th of July 2011, South Sudan declared its independence, making the outcome of the referendum even more important. However, the referendum was postponed and despite the rendering of the award, the Abyei Area continues to be contested between the Republics of Sudan and South Sudan.

Brooks W. Daly is Deputy Secretary-General and Principal Legal Counsel of the Permanent Court of Arbitration (PCA). Before joining the PCA, Mr. Daly acted as Counsel at the International Chamber of Commerce (ICC) International Court of Arbitration in Paris, France, and practiced with law firms in Los Angeles and London. He will speak about the Abyei Arbitration between the Government of Sudan and the Sudan People's Liberation Movement.

Johan G. Lammers was Legal Advisor of the Ministry of Foreign Affairs, and Professor in International Law at the University of Amsterdam. In 1999 he was awarded the Elizabeth Haub Award for his exceptional contribution to the field of international environmental law. He will speak about the political “prehistory” of the Abyei Arbitration.

The Peace Palace Library Lecture Series consists of approximately four lectures a year about issues of international public law. Each lecture will start with a small reception in the library’s new reading room, followed by the lecture in the historical reading room. The Lecture Series are open to everyone and are especially interesting for researchers and students, as well as diplomats, international civil servants, journalists and other professionals working in the field of international public law.

Please register by sending an email to Otto Spijkers at o.spijkers@ppl.nl. We hope to see you there!

The United Nations, the Evolution of Global Values and International Law

2011-10-24T11:25:00.019+02:00

In this blog post, a new and increasingly popular way to research the work of the United Nations (UN) is introduced. Instead of seeing the international organization as mainly a political organization, the UN is increasingly seen as a "Town Meeting of the World," i.e. a global debating society, where ideas are discussed and developed by representatives of the international community.

Of course, the United Nations (UN) is a political organization, an alliance of all the world’s States gathered together to achieve some ambitious common goals and tackle the most important global challenges. The focus in UN-research is generally on the way the UN has sought to achieve this formidable task, inter alia by encouraging its Member States to actively pursue these common goals.

The Organization achieves this by translating the moral language of global values into the language of public international law. This results in various treaty texts, recommended by the United Nations to its Membership. Many of these texts have indeed become binding international law through the consent of all States party to such treaties. Some of these treaties also establish separate legal regimes, where responsibilities are allocated and various (legal) incentives for compliance put in place.

In the book The United Nations, the Evolution of Global Values and International Law, this process is studied in a non-traditional way. The emphasis is not on the question as to what the existing legal obligations are and how compliance is ensured and how effective these compliance mechanisms are. Instead, the focus is on the role of the United Nations in the articulation and evolution of the goals themselves. The central question is as follows: What is the role of the United Nations in reaching global consensus on what the international community should look like and in which direction it ought to develop?

A detailed examination of the travaux préparatoires of the founding conference of the United Nations in San Francisco in 1945 shows that the UN’s establishment was greatly influenced by global values, i.e. globally shared beliefs that distinguish evil from good, the present from a better world. A common desire to eradicate war, poverty, inhuman treatment and exploitation of peoples, has led to confirmation of the global values of peace and security, social progress and development, human dignity, and self-determination of peoples.

These values can already be found, albeit in rudimentary form, in the UN Charter. Over time, the Charter has proved to evolve, like a “living tree”: although the text of the Charter has not changed significantly, its interpretation has followed the changing conditions of society; this way the norms and values of the UN Charter have always remained topical and relevant. The study charts how the United Nations, and especially the General Assembly, have continuously contributed to the global values debate, and how these values have been translated into the language of international law, including through the introduction of novel legal concepts such as the responsibility to protect, sustainable development, human security and the right to self-determination.

The study shows that the value of peace and security mainly evolved through the UN’s efforts to identify a list of potential threats, such as interstate aggression, civil war, and terrorism. When it comes to social progress and development, the General Assembly has focused on the preparation of a long series of action plans and development programs. Furthermore, there is increasing attention for sustainable development and the legal rights and obligations deriving therefrom. The work of the United Nations on human dignity includes an impressive list of human rights that all countries should respect. The debate on self-determination is still in development. It is clear that it is based on the desire of communities to control their own destiny, without any external oppression.

In examining the intellectual history of the United Nations, one is struck by the abstract nature of the debates. This distinguishes them from the usual inter-State meetings, which have a more political or practical nature. Yet the debates in San Francisco and the General Assembly cannot be characterized as merely theoretical debates. The participants are all representatives of a particular State, with its own cultural and historical traditions and interests. To reach agreement, all representatives - together constituting a colorful patchwork quilt of various cultures, religions and traditions - have to negotiate. The final result is a carefully phrased global consensus on the direction the international community should take. While attempts are being made to achieve this goal, this goal itself - expressed in the language of global values - does not sit still. Instead, it is constantly developing or evolving...

Interesting website: Audiovisual Library of International Law (especially the section on the UN Charter)

The Institute for Historical Justice and Reconciliation in The Hague

2011-10-20T12:55:00.005+02:00

Guest Blog by Joël Groeneveld, Office Manager/Program Officer:

The Institute for Historical Justice and Reconciliation

Unresolved historical claims can, when misunderstood or manipulated, create and reaffirm prejudice and hatred among populations, thus fueling ethnic and nationalistic violence and conflict. Therefore, in order to promote tolerance and reconciliation, there is oftentimes the need to overcome these distortions of historical reality. The Institute for Historical Justice and Reconciliation seeks to contribute to this goal through helping scholars from different sides of a conflict work together to research and write narratives that can be shared among communities or peoples in conflict. Through this process of shared work, a better understanding of “the other” is gained by both sides. The process seeks to dispel public myths around disputed historical legacies through the use of shared narrative and to develop networks of engaged citizens who can debate, confront and change those disputed and confrontational historical legacies.

What does this mean in the practice? How can historical accounts help understand the position of ‘the other’? A good example is the most current book published by IHJR, Two Sides of the Coin: Independence and Nakba 1948, Two Narratives of the 1948 War and its Outcome. In this unique joint enterprise, a Palestinian and an Israeli, both historians, worked together to offer multi-perspective narratives on the War of 1948. Their task was not easy, as they explain: ‘the attempt to formulate one text consisting of two different and often contradictory stories was emotionally challenging for both of us, as it required each of us to take part in formulating a narrative that was contradictory to our own respective experiences and education and that often challenged our respective identities”. And yet, the fact that his book has come to light goes to show that the narrative of ’the other‘ can be understood and respected, even when in some cases it is not shared.

IHJR has worked extensively to tackle the historical claims in the Israel-Palestine conflict, through different historical approximations. For example the book Zoom In: Palestinian Refugees of 1948, Remembrances, presents pictures and individual students reactions to them. This approach showcases not only that there is still a need for understanding, but also how deeply ingrained perceptions of ‘the other’ are in this conflict. The Sacred Sites in the Holy Land: Historical and Religious perspectives publication seeks instead to familiarize both sides with the narrative of ‘the other’ regarding holy places, while working towards a common narrative of their religious significance.

Yet the issues of unresolved historical claims are not particular to one region; that is why IHJR is also involved in other areas of the world, such as the Former Yugoslavia and its successor states. The facilitation offered by IHJR was pivotal for the publication of Political Myths in the Former Yugoslavia and Successor States. A Shared Narrative, a book which attempts to dispel political myths that fueled the Balkan conflict. There is currently active work as well in the Armenia-Turkey area, and research is being done on the Roma population in areas of Eastern Europe where conflict is most acute and violence against this population is on the rise.

IHJR hopes that others are inspired by the institute’s approach and that they begin using history as a means for fostering peace-building efforts. It continues to disseminate shared narratives through various media, such as publications, documentaries and photo exhibitions, as well as through engaging civil society and educators. For more information, please visit the website at www.historyandreconciliation.org or write an email to info@ihjr.org.

Eichmann Trial 50 years

2011-10-10T17:21:00.002+02:00

On Tuesday 11th October, a lecture will take place on the lasting impact of the Eichmann Trial half a century after the trial took place.

Adolf Eichmann was a German Nazi official, a SS Obersturmbannführer and one of the prominent architects of the Holocaust.

When the Second World War came to an end, Eichmann managed to escape prosecution by fleeing to Argentina. He lived a quiet life in Argentina as a rabbit farmer under a false identity until 1960 when he was discovered by Mossad, the Israeli intelligence agency. After carefully planning his arrest, he was captured and smuggled out of the country without informing the Argentine government. This led to a diplomatic dispute over territorial sovereignty in which The United nations Security Council eventually mediated.

He was then transported to Israel to stand trial in what was to become one of the most controversial trials in international legal history. The news of his capture and abduction to Israel created much uneasiness for German Chancellor Konrad Adenauer and the members of his cabinet and their possible involvement in war crimes. According to Der Spiegel, the German government knew his whereabouts as early as 1952, but never made a serious attempt to bring him to justice. In 1956, Eichmann even wrote an open letter to Chancellor Adenauer in which he suggested he should be allowed to return to Germany to tell the people what really happened during the War. After Eichmann was abducted to Israel, the Adenauer government held a crisis meeting, where they agreed to take all necessary measures to make clear that he was a stooge of Himmler´s SS and that he was not an authorized agent of Germany.

The Eichmann trial started on 11th April 1962 in Jerusalem. Eichmann was indicted on 15 criminal charges including crimes against humanity, crimes against the Jewish People and membership in an outlawed organization. The legal basis of the trial against Eichmann was the 1950 ´´ Nazi and Nazi Collaborators Punishment Law´´.

The Eichmann trial can be considered as not just a trial of one individual, but a trial against anti Semitism as a whole throughout history. It was to demonstrate and communicate the dangers of anti Semitism and serve as a reminder for the dangers of permitting the destruction of six million Jews. Furthermore, it brought to light the lack of initiative of the West German government to bring ex Nazis to trial. This was discussed by Matthew Lippman in The Houston Journal of International Law (1982, vol. 5, pp. 1-34)summing up all legal issues raised in the trial. (“The Trial of Adolf Eichmann and the Protection of Universal Human Rights under International Law”)

The trial was broadcast internationally and was the first televised trial in history. After eight months, he was found guilty on all counts and sentenced to death. Five months later, he was executed by hanging and his ashes were scattered at sea.

Dr. Ruth Birn, Professor Thomas Mertens and Professor Harmen van der Wilt will lecture on the several aspects of this controversial trial.
The Peace Palace Library has an extensive collection on the Eichmann trial. These include books and articles on the legal, political, psychological and philosophical aspects of the trial.

CA/IK

Athletes and whereabouts

2011-08-30T09:22:00.014+02:00

Whereabouts are information provided by a limited number of top elite athletes about their location to the International Sport Federation or National Anti-Doping Organization that included them in their respective registered testing pool as part of these top elite athletes'anti-doping responsibilities.

What does that mean? Anti-Doping Organizations are required to have out-of-competition testing on top elite athletes. These tests can be conducted anytime, anywhere and without notice to the athletes.

According to the World Anti-Doping Agency (WADA) they are the most effective means of deterrence and detection of doping. The WADA is not responsible for deciding who should be part of the registered testing pools. Whereabouts rules are part of the International Standard for Testing (IST).

Violation of applicable requirements regarding athlete availability for out-of-competition testing, including failure to provide required whereabouts information and missed tests constitutes a violation of an anti-doping rule (doping offence) against articles 2.4 WADA Code 2009 and 2(3)(d) UNESCO Convention.

Any combination of 3 missed tests and/or failure to provide accurate whereabouts information
within an 18-months period now leads to the opening of a disciplinary proceeding by the Anti-Doping Organization with jurisdiction over the athlete. Sanctions range between 1 and 2 years depending on the circumstances of the case.

The Danish cyclist Rasmussen had to leave the Tour de France 2007 after he failed to report his whereabouts to the UCI in a timely fashion over several occasions. Dramatically enough he was in the yellow jersey when the Danish federation went public with the news that he had missed doping controls and dropped him from the national team.

Footballfederations FIFA and UEFA say there are "fundamental differences" between individual athletes and players or teams. FIFA and UEFA "do not accept that controls be undertaken during the short holiday period of players, in order to respect their private life."

International Association of Athletics Federations (IAAF) supports the whereabouts rule: "There's no point in having any whereabouts or testing system at all if it does not actually help the testing authorities locate the athletes who may be cheating.""If you are going to do it at all, you should do it properly". In fact, IAAF advocates even a more strict schedule of testing.

The question remains whether out-of-competition testing violates the right of privacy of an athlete legitimately.

++++++++++++++++++++++++++++++++++

Books and articles in the Peace Palace Library catalogue

About sports and doping

IOANNIDIS, G., The Application of Criminal Law on Doping Infractions and the "Whereabouts Information" Rule : State Regulation v Self-Regulation, The International Sports Law Journal (2010) 1-2, pp 14-25

SOEK, J., The Athlete's Right to Respect for his Private Life and his Home, The International Sports Law Journal (2008) 3-4, pp. 25-28

External links:

Q & A WADA on Whereabouts Information WADA Code 2009

UNESCO International Convention Against Doping in Sport (October 19, 2005)

WADA Athletes Whereabouts Information Guideline [November 22, 2005] (World Anti Doping Program)

News articles:

IAAF opninion on "new" whereabouts requirements (March 5, 2009)

FIFA and UEFA reject WADA 'whereabouts' stance (March 24, 2009)

Rasmussen admits lies, claims Rabobank knew his whereabouts (November 9, 2007)

WADA drug rule rejected in Sportsnet.ca (March 24, 2009)

Whereabouts newsitems in Belgisch Sportmagazine

Another blog: Sport and Drugs Procon.org

Dutch responsibility for Srebrenica

2011-08-19T17:03:00.013+02:00

Today, the Court of Appeals in The Hague published the English translation of the judgment in the cases of Mustafic and Nuhanovic versus the State of the Netherlands. The original judgments (in Dutch) of both Mustafic and Nuhanovic were published on 5 July 2011: they are almost identical.

Mustafic and Nuhanovic, two Bosnian Muslims, held the Netherlands responsible for cooperating with the evacuation of some of their relatives from the enclave Srebrenica after it had fallen into the hands of the Bosnian Serbs on 12 July 1995. All evacuated relatives were subsequently killed by Bosnian Serbs, together with thousands of other Bosnian Muslims.

Mustafic and Nuhanovic both appealed the ruling made against them by the District Court in The Hague on 10 September 2008. The Dutch District Court concluded, that the Netherlands could not be held responsible for the death of the relatives of Mustafic and Nuhanovic, since the acts of the Dutch peacekeepers in Srebrenica had to be attributed to the United Nations, and not to the Netherlands (see paras. 4.7-4.15 of Nuhanovic (District Court)).

The Dutch Court argued that, in general, the acts of peacekeeping forces should be attributed to the UN (paras. 4.8-4.11). This was based on an assessment of the international law on attribution. In view of the Dutch District Court, there were essentially two opposing views on attribution: the International Law Commission believed that the question of attribution and responsibility ultimately depended on who had “effective control,” whilst the European Court of Human Rights believed it depended on “ultimate and overall control.” The Dutch District Court chose to stay closer to the latter approach when it suggested that only if “the State cut across the United Nations command structure” of the United Nations would there be “scope for attribution to the State.” This would have been the case if Dutchbat soldiers were explicitly obligated by the Dutch State to ignore UN orders, or if they clearly acted under the command of the Netherlands as opposed to the UN (paras. 4.14.1). The District Court did not believe that the Dutch State cut across the United Nations command structure in this particular case (paras. 4.14.1-4.14.5), and thus the Netherlands could not be held responsible for any wrongful act committed by Dutchbat in Srebrenica (paras. 4.3, 4.5 and 4.15). See also the last few pages of this article about Srebrenica.

The Appeals Court did not follow the District Court’s approach on the matter of attribution. Instead of applying the European “overall command and control” criterion, the Appeals Court chose to apply the ILC’s “effective control” approach. In view of the Appeals Court, “in international law literature, as also in the work of the ILC, the generally accepted opinion is that if a State places troops at the disposal of the UN for the execution of a peacekeeping mission, the question as to whom a specific conduct of such troops should be attributed, depends on the question which of both parties has 'effective control' over the relevant conduct” (para. 5.8, Nuhanovic (Appeal)).

In para. 5.9, the “[Appeals] Court adopt[ed] as a starting point that the possibility that more than one party has 'effective control' is generally accepted [and that] for this reason the Court will only examine if the State exercised 'effective control' over the alleged conduct and will not answer the question whether the UN also had 'effective control'.” The Appeal’s Court thus believed that both the UN and the Netherlands could be responsible for the same acts at the same time. By accepting the possibility of dual attribution in this way, the Appeals Court once again distanced itself from the District Court. It further avoided having to say something about the UN’s responsibility, which is convenient since the UN enjoys immunity from the jurisdiction of the Dutch courts.

After rejecting the District Court's interpretation of the law on attribution, the Appeals Court now had to apply its own criterion of attribution to the facts. In the end, it concluded that “it [was] beyond doubt that the Dutch Government was closely involved in the evacuation [from the enclave Srebrenica] and the preparations thereof” and that “the facts [did] not leave room for any other conclusion than that, in case the Dutch Government would have given the instruction to Dutchbat not to allow Nuhanovic […] to leave the compound or to take him along respectively, such an instruction would have been executed” (5.18).

In conclusion, the Court held that “the State possessed 'effective control' over the alleged conduct of Dutchbat that is the subject of Nuhanovic's claim and that this conduct can be attributed to the State” (5.20). An important consideration in reaching this conclusion was the fact that, at the relevant time, Srebrenica had already fallen into the hands of the Bosnian Serbs, and that the UN peacekeeping mission was not in operation anymore. Considering the circumstances, Dutchbat could have decided not to surrender the family members of Nuhanovic to the Bosnian Serbs. The UN did not oblige Dutchbat to do otherwise, and Dutchbat's cooperation in the evacuation of Nuhanovic' family members from the compound had to be attributed to the Netherlands. This does not mean the UN bears no responsiblity at all, but that is something the Court cannot rule upon, since the UN is immune from domestic court proceedings.

UPDATE:

To know more, please consult the extensive collection of the Peace Palace Library, especially the publications on Srebrenica, the war in the former Yugoslavia, genocide, fair administration of justice, and State responsiblity.

AUDIOVISUAL LIBRARY of INTERNATIONAL LAW (AVL) and the PEACE PALACE LIBRARY (PPL)

2011-08-10T17:13:00.003+02:00

The United Nations International Law Fellowship Programme (ILFP) organized a 45 minutes presentation of the Audiovisual Library of International Law (AVL) for the participants of their six-week course in the Peace Palace. Representatives of The Hague Academy of International Law, the Dutch Carnegie Foundation and members of the Peace Palace Library Staff also were in the audience. The ancient reading room of the Peace Palace Library provided a perfect setting for this journey into international law. It is appropriate to say a few words about this “Audiovisual Library”.

In 1965 The General Assembly established the United Nations Programme of Assistance in the teaching, study, dissemination and wider appreciation of international law. A better knowledge and understanding of international law might contribute to international peace, justice, security and the rule of law. The Codification Division of the Office of Legal Affairs of the UN is responsible for the implementation of the Programme. The International Law Fellowship Programme (ILFP) and the AVL are among the activities of the programme.

The AVL was established (2008) as an innovative instrument for the promotion of the knowledge of international law. It also reflects the historic as well as modern development of international law within the United Nations and its importance for the contribution to a better and safer world.

The three components of the AVL , Historic Archives, Lecture Series and Research Library, are essential for the education of international lawyers, for deepening the knowledge of legal practitioners and specialists, and to provide an immense multidimensional source of information for researches in the field of international law. The availability of historic audiovisual material, excellent treatises of topics by leading experts, combined with the collection of the library section is quite unique. The AVL is freely accessible on the Internet.

After three years the success is evident. Innumerable people from all over the globe accessed the AVL, stressing the importance of the knowledge of international law for society.

In 1913 Andrew Carnegie donated one million dollar to build the Peace Palace with the explicit condition that it should have a library. He wanted a “temple of peace”, where lawyers could study international law, would come to a better understanding of the world and so would contribute to a peaceful society. The Peace Palace Library is now one of the largest international law libraries in the world, focusing, just as AVL, on building a multidimensional collection of paper and digital elements, accessible on the internet. The PPL Research Guides are new tools to facilitate research in specific fields of international law offering search possibilities through the PPL catalogue and the Internet.

The United Nations Audiovisual Library of International law and the Peace Palace Library share the same idea “to further peace through international law”

United Nations Security Council Statement on Syria

2011-08-04T13:43:00.006+02:00

Yesterday, August 3, The United Nations Security Council (UNSC) issued a presidential statement in which it for the first time condemned the mass human rights abuses and use of force by the Syrian government against its population. The statement called for an end to the violence by all parties involved.

Syria has been troubled by deadly civil unrest for several months now. Various sources claim that since the beginning of the anti-government protests in mid-March more than 1600 civilians have been killed by security forces. More than 2000 people have disappeared and many of those arrested have been beaten and tortured. More than 10.000 of the protesters are still in detention.

Although the UNSC statement - a step short of a more weighty SC resolution - that was agreed after weeks of protracted negotiations didn't mention the UN investigation into human rights violations that a number of European states on the Council had asked for at an earlier stage, the Security Council said that those responsible for the violence should be held accountable.

After the UNSC delivered its statement, Secretary-General Ban Ki-moon said that the statement sent a “clear message from the international community” to the Syrian authorities to stop their “brutally shocking” actions. He added that “[a]ll killings should be investigated fully, independently and transparently. Those responsible should be held to account.” He further urged the Syrian government to comply with the SC's demand to grant unimpeded access to international humanitarian organizations.

Here follows the full text of the UNSC Statement

“Presidential Statement

The full text of the presidential statement contained in document S/PRST/2011/16 reads as follows:

The Security Council expresses its grave concern at the deteriorating situation in Syria, and expresses profound regret at the death of many hundreds of people.

The Security Council condemns the widespread violations of human rights and the use of force against civilians by the Syrian authorities.

The Security Council calls for an immediate end to all violence and urges all sides to act with utmost restraint, and to refrain from reprisals, including attacks against state institutions.

The Security Council calls on the Syrian authorities to fully respect human rights and to comply with their obligations under applicable international law. Those responsible for the violence should be held accountable.

The Security Council notes the announced commitments by the Syrian authorities to reform, and regrets the lack of progress in implementation, and calls upon the Syrian Government to implement its commitments.

The Security Council reaffirms its strong commitment to the sovereignty, independence, and territorial integrity of Syria.

It stresses that the only solution to the current crisis in Syria is through an inclusive and Syrian-led political process, with the aim of effectively addressing the legitimate aspirations and concerns of the population which will allow the full exercise of fundamental freedoms for its entire population, including that of expression and peaceful assembly.

The Security Council calls on the Syrian authorities to alleviate the humanitarian situation in crisis areas by ceasing the use of force against affected towns, to allow expeditious and unhindered access for international humanitarian agencies and workers, and co-operate fully with the Office of the High Commissioner for Human Rights.

The Security Council requests the Secretary-General to update the Security Council on the situation in Syria within seven days.”

'Triangle Of Death' In Horn Of Africa

2011-07-20T18:47:00.016+02:00

Waiting for food in the Dadaab camp, located in Kenya near the Somali border. Refugees wait patiently at Dagahaley registration center to receive cooking tools and their first food rations.
Source: The Guardian. Picture taken by Matilde Gattoni

Somalia - a failing state suffering from an internal conflict and from the worst drought in half a century - is in crisis. Humanitarian organizations and aid agencies have asked the international community to intervene and offer humanitarian assistance to the victims of drought and famine in the Horn of Africa.

According to the United Nations, the Horn of Africa is experiencing the worst drought in 60 years. The drought, internal conflicts and the failure of the governments to fund agriculture and irrigation projects have led to the threat of starvation of more than 10 million of people [1]. In Somalia one of three children is suffering from malnutrition. At least 500,000 children from the Horn of Africa are severely malnourished and at risk of death [2].

The United Nations have officially declared two parts of Somalia, the Bakool and Lower Shabelle regions, to be in famine. Mark Bowden, head of the UN operation in Somalia, warned that: “If we don't act now, famine will spread to all eight regions of southern Somalia within two months, due to poor harvests and infectious disease outbreaks.[…] Every day of delay in assistance is literally a matter of life or death for children and their families in the famine-affected areas” [3]. U.N Secretary-General Ban Ki-moon stated that nearly 3.7 million people are now in crisis and in order to stop the crisis from deteriorating, “We need donor support to address current needs” [4]. As a result of severe food shortages, failed harvest, rising food prices and conflict in the region, at least 10 million people in the Horn of Africa will be in need of humanitarian assistance, estimates the UN [5].

According to Oxfam, famine has a couple of causes: A "triple failure of food production, people's ability to access food and, finally and most crucially, in the political response by governments and international donors. Crop failure and poverty leave people vulnerable to starvation -- but famine only occurs with political failure."[6]

The political failures which caused the famine do not just concern the failures made by the Eastern African governments but also concern the lack of interest and acknowledgement of the seriousness of the situation at hand among “rich”, Western governments on the northern hemisphere. Oxfam: "Several rich governments are guilty of willful neglect as the aid effort to avert catastrophe in East Africa limps along due to an $800 million shortfall," [7].

The internal conflict in Somalia has a negative and possible disastrous influence on the famine and on the assistance aimed at diminishing the humanitarian catastrophe. The humanitarian agencies have not been able to reach famine-affected areas because the Al-Qaeda linked militant Islamic group, Al-Shabaab, refuses to give access to the areas which are dominated by Al-Shabaab. According to Susan Rice, USA ambassador to the UN , "Al-Shabaab is principally responsible for exacerbating the consequences of the drought situation by preventing its own people from being able to access critically needed assistance". Whereas at the beginning of July, 2011, the Al-Shabaab pledged to allow aid groups access to areas under its control, the militants now refuse to help the aid workers. The Islamic militants have accused the Western humanitarians of being anti-Muslim. The Al-Shabaab fears that foreign assistance will undermine its power in the areas under its control. The disaster has a negative influence on the militant group as well. They fear that the famine drives away the people upon which they depend for tax revenues and military conscription [8].

In the past, the militants have blocked aid workers from helping those in need in Somalia, fearing that foreign assistance would undermine their control.

On the morning of Thursday 28 July, the Somali government took the fight against the Al-Qaeda linked militants. 15 members of the Al-Shahaab group were killed during this offensive. According to David Orr from the United Nations World Food Program, the offensive has not had a hindered the United Nations efforts to help the famine stricken people in Eastern Africa [9].

Relevant Peace Palace Library Keywords

Horn of Africa
Djibouti

· Ethiopia

· Kenya

· Somalia

· Hunger / Famine

· Food aid

· United Nations

· UNHCR

· Refugees

· World Food Programme

· Insurgency

· Rebellion

· Terrorism

Weblinks

· 'Triangle Of Death' In Horn Of Africa; Famine Grips Southern Somalia, NPR.

· When a food security crisis becomes a famine, UN.

· U.N. declares famine in Somalia; makes urgent appeal to save lives, CNN.

· Famine Looms as Wars Rend Horn of Africa - NYTimes.com.

· Food Crisis in Somalia Is a Famine, U.N. Says, New York Times.

· Somalia, New York Times.

· 6 Die in offensive against militants blocking Somalia aid effort; 300 new insurgents arrive, The Washington Post.

· BBC NEWS | Special Reports | Famine in Africa, BBC.

· BBC NEWS | Africa | More Kenyans face food shortages, BBC.

· Q&A: East Africa hunger crisis, BBC.

· Famine in the Horn of Africa - FT.com , Financial times.

· Famine Declared; Human Need in Horn of Africa Grows More Urgent, allAfrica.com.

· Somalia: UN - Situation is 'Worst Humanitarian Disaster', allAfrica.com.

· Africa drought pushes Kenya and Somalia into pre-famine conditions, The Guardian.

· Somalia famine: UN to hold emergency meeting. The summit in Rome on Monday will look at humanitarian responses to the Horn of Africa drought, The Guardian.

· Kenyan government to open fourth refugee camp at Dadaab, The Guardian.

· Horn of Africa drought: A vision of hell at the Dabaab refugee camp, The Telegraph.

· Horn of Africa famine: Somalia, Ethiopia and Kenya suffer worst drought in 60 years, The Telegraph.

· Africa famine: world's richest countries guilty of 'wilful neglect', The Telegraph.

· UN declares famine in parts of Somalia, The Telegraph.

Footnotes
[1] See Q&A: East Africa hunger crisis, BBC.
[2] See UN declares famine in parts of Somalia, The Telegraph.
[3] As quoted from Food Crisis in Somalia Is a Famine, U.N. Says, New York Times.
[4] As quoted from U.N. declares famine in Somalia; makes urgent appeal to save lives, CNN.
[5] See Kenyan government to open fourth refugee camp at Dadaab, The Guardian.
[6] As quoted from U.N. declares famine in Somalia; makes urgent appeal to save lives, CNN.
[7] As quoted from U.N. declares famine in Somalia; makes urgent appeal to save lives, CNN.
[8] As quoted from U.N. declares famine in Somalia; makes urgent appeal to save lives, CNN. And see 6 Die in offensive against militants blocking Somalia aid effort; 300 new insurgents arrive, The Washington Post.
[9] See Somalia takes the fight to militant group, CNN.

South Sudan: Birth Of A Nation

2011-07-18T20:19:00.044+02:00

Update: This post is a follow up of a prior post discussing the secession of Southern Sudan.

On 14th July 2011, South-Sudan became the newest member of the United Nations. On 9th July, South Sudan finally gained independence from Sudan after almost 50 years of devastating conflicts in Northeastern Africa in which more than two million people lost their lives.

Independence came after an internationally backed referendum that was held in January of this year and in which 99 percent of the regions’ voters approved of a split from the Khartoum government in Northern Sudan, thus finally exercising their hard-fought right to self -determination.

After the celebrations wear off, South Sudan faces a future with many challenges and obstacles as it ranks among the worlds’ poorest nations. This blog will briefly discuss the most important difficulties that will lie ahead for the people of South Sudan.

One of the toughest issues to tackle is by far the Abyei region. The Abyei area, rich in minerals and natural resources including oil, is home to the Ngok Dinka people, who are closely allied wth the South, but it is also serves as grazing grounds for the Misseriya tribes from the North. A referendum that was set to determine whether the Abyei area will become part of the South or North was delayed over disagreements on who was eligible to vote. Just weeks prior to independence, fighting broke out which makes the region highly vulnerable to yet another major conflict. Subsequently, on the 27th June, the U.N Security Council voted unanimously to send 7000 peacekeepers en 900 uniformed police to South Sudan in United Nations Security Council Resolution 1990 .

Another major stumbling block involves determining criteria for citizenship. Years of conflict has resulted in large scale internal displacement and many southerners now live in the north and many northerners live south of the new border. The United Nations High Commissioner for Refugees has expressed fears that a significant number of people will be rendered stateless. South Sudan states that it will recognize dual north-south citizenship and has urged the north to reciprocate.

Even though having a constitution is by no means mandory or a guarantee for upholding fundamental rights, in this case it can be considered an essential legal instrument to formalize rules of government. South Sudan has, for the time being, an interim constitution but has not yet agreed upon a final version. Paulos Tesfagiorgis, a constitutional adviser with the International Institute for Democracy and Electoral Assistance, stated that 'without a constitution, South Sudan will struggle to assert its independence within its own borders'. Furthermore, he emphasized that 'a constitution is of extreme importance as it will frame politics, the economy and other policies'.[1]

In spite of all the difficulties, South Sudan is also a country of tremendous possibilities. South Sudan produces about 375,000 barrels of oil per day, and though negotiators continue to work out a specific formula on how the north and the south will share the oil, South Sudan stands to make billions from its reserves. South Sudan also has miles and miles of fertile lands and thick forests rich in fruits and vegetables. [2]

In adittion, for the past six years the Southern Sudanese have proven to be extremely resilient; they have been running their own affairs, patrolling their borders and wooing investments and development aid.

South Sudan will have to built from the ground up and in the process will heavily lean on the support of the international community, especially in the fields of education and health care. The new government of South Sudan should first make it a priority to settle the dispute concerning the Abyei issue by starting proceedings at the International Court of Justice (ICJ). The UN and the two permanent members, China and the USA should because of their strong business interest in the region, endeavour all available means with the UN framework to enforce the ICJ decision.For the government of South Sudan, international law and diplomacy offer the best solution to give its people a future devoid of conflicts and wars.

Footnotes

[1] www.cnn.com

[2] http://www.nytimes.com/

[3] http://www.businessdailyafrica.com/

Sources

http://www.cnn.com/

http://www.nytimes.com/

http://www.rnw.nl/

http://www.khaleejtimes.com/

http://timesofindia.indiatimes.com/

http://www.allafrica.com/

http://www.businessdailyafrica.com/

Image: Khaleej Times Online

Publications in the Peace Palace Catalogue

Politics of Ethnic Discrimination in Sudan; A justification for the secessin of South Sudan by Dhieu Wol / LAP LAMBERT Academic publishing, Saarbrücken, Germany

The South Sudan Defense Force: Patriots, Collaborators or Spoilers? by Matthew B. Arnold in the Journal of Modern African Studies 2007

Sudan's blood memory: the legacy of war, ethnicity and slavery in early South Sudan by Stephanie Beswick in Rochester Studies in African history and the Diaspora, university of Rochester Press 2004

The Abyei Arbitration and the use of Arbitration to resolve inter-state and intra-state conflicts by W.J. Miles and D. Mallett in Journal of International Dispute Settlement Vol 1 (2), p.313-340, 2010

Plastic Soup – What Legal Response to Marine Debris Pollution ?

2011-07-05T18:28:00.037+02:00

In 1997, Captain Charles Moore, founder of the Algalita Marine Research Foundation (AMRF), was sailing his 50-foot racing catamaran, the ORV Alguita, back to California from Hawaii and decided on a lark to cut through the center of the North Pacific Subtropical Gyre. The Gyre is an enormous vortex of currents revolving around a continuous high-pressure zone. Boats typically avoid it since it’s essentially one big windless death trap, so when Moore motored through it, it was just him, his crew, and an endless field of ….. garbage.

In the eastern portion of the Gyre, Moore encountered a substantial amount of trash, mostly plastic, scattered across the area. Now commonly referred to as the Great Pacific Garbage Patch, it is a vast plastic soup containing everything from large abandoned fishing nets to plastic bottles, bottle caps, toothbrushes, containers, boxes, to miniscule particles of plastic (polymers) that have either been reduced from larger pieces by wave action or photodegradation. Since then, Captain Moore has made numerous research voyages to the Gyre, resulting in a body of authoritative research publications, data and educational programs, while expanding his research to include all five major gyres worldwide.

Environmental Impacts of Marine Debris and Plastic Pollution

What is exactly the global environmental problem of marine debris and plastic pollution we’re dealing with ? In two reports of the United Nations Environment Programme (UNEP) dedicated to this topic, marine debris (or marine litter as this term is used) are defined as ‘any persistent, manufactured or processed solid material discarded, disposed of or abandoned in the marine and coastal environment’. This definition is also used in a 2010 report of the Marine Strategy Framework Directive Taskgroup (EU) on marine litter. As the latter gives a more refined clarification on the subject, it excludes ‘ semi-solid remains of for example mineral and vegetable oils, paraffin and chemicals that sometimes litter sea and shores’.

Of all marine debris, plastic accounts for more than 80 %. But where does it all come from ? Global estimations account land-based sources for some 4/5 of marine debris, while the remaining part originates from marine resources, e.g. vessel source pollution. Marine debris can be encountered in the surface, in the water column, and even on the ocean floor. In some places, marine debris occurs in dense concentrations on account of ocean gyres, as Captain Moore’s discovery of the Great Pacific Garbage Patch has shown us.

In its summary, the 2009 UNEP report Marine Litter : A Global Challenge, states that marine debris are ‘an environmental, economic, health and aesthetic problem’. We are all too familiar with the environmental impacts of marine debris on marine wildlife : entanglement, ingestion, suffocation, etc. Obviously, marine debris evidently cause widespread suffering of marine animals. Concerns have also been raised about the effects on the oceans’ food chain. High concentrations of PCBs, DDT, and a range of other persistent organic pollutants (POPs) have been absorbed and accumulated in the food chain. Invasive alien species transported by the debris have destroyed certain local ecosystems.

Besides the impacts on marine wildlife and ecosystems, marine debris affect humans as well. The fouling of beaches and other coastal areas has been costly and controversial. Many coastal communities must pay for their own beach cleanup. While cleanup is expensive, the economic impact on tourism and related industries may be even far greater. Other examples are : damage to fishing boats and gear, to coastal installations, as well as damage to people’s health.

Legal Responses to Marine Debris Pollution

Solving this problem of marine pollution is a very complex and challenging enterprise. In particular, its legal framework. Various international and regional instruments, domestic and local laws and regulations apply directly or indirectly to marine debris pollution. International authorities concerned with marine debris and ocean dumping include the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Dumping Convention), its 1996 Protocol, the International Convention for the Prevention of Pollution from Ships (MARPOL), its Annex V on garbage, agreements concluded under the United Nations Regional Seas Programme, the OSPAR Convention, and the 1982 Law of the Sea Convention. Of growing significance is also the EU Marine Strategy Framework Directive.

The conspicuously global nature of the marine debris problem indicates that a potential role of significance is reserved for international environmental law. However, not all international and regional instruments are legally binding, and not all have a strong focus on marine debris and plastic pollution. In his recent article "Managing Marine Litter : Exploring the Evolving Role of International and European Law in Confronting a Persistent Environmental Problem", Arie Trouwborst concludes that on the one hand, the situation with regard to marine litter would have been worse without international environmental law, but on the other hand, international environmental law has still unfulfilled potential. Due to its inherent limitations, international environmental law cannot provide for more than a ‘thirty percent solution’ to environmental problems.

That leaves a remaining seventy percent to be provided by domestic laws and regulations, to politics, economics, technology, public awareness, etc. In two articles (see BAUR and IUDICELLO, "Stemming the Tide of Marine Debris Pollution" and WEINSTEIN, "Main Ingredient in “Marine Soup”") the importance of domestic legislation and action as a solution for this global environmental problem is shown.

If we want to keep our oceans sound and healthy, more (inter)national action has to be taken to counter this huge environmental problem. Recent initiatives as the Waves of Change : Global Lessons to Inspire Local Action, 5th International Marine Debris Conference, Honolulu, Hawai'i, March 20-25, 2011, show growing interest in and commitment to preventing, reducing and managing marine debris and plastic pollution.

PPL Systematic classification

Environmental Questions, Marine Pollution

PPL Keywords

Dumping at Sea, Land-Based Marine Pollution, Marine Environment Protection, Marine Pollution, Oceans, Pollution from Vessels

PPL Books and Articles

BAUR, D.C. and S. IUDICELLO, “Stemming the Tide of Marine Debris Pollution : Putting Domestic and International Control Authorities to Work”, in : 17 Ecology Law Quarterly (1990) 1, pp. 71-142

TROUWBORST, A., “Managing Marine Litter : Exploring the Evolving Role of International and European Law in Confronting a Persistant Environmental Problem”, 27 Merkourios – Utrecht Journal of International and European Law 73, pp. 4-18

WEINSTEIN, S., “Main Ingredient in Marine Soup : Eliminating Plastic Bag Pollution Through Consumer Disincentive”, in : 40 California Western International Law Journal (2009-2010), pp. 291-333

UNEP Marine Litter Publications

Marine Litter: A Global Challenge (2009)

This report prepared under a collaborative partnership between the Ocean Conservancy and UNEP Regional Seas Programme, aims to provide an overview of the status of marine litter in UNEP's assisted Regional Seas, based on the analysis of regional reviews, and regional action plan documents prepared in the regions.
It makes a comparative analysis of all available materials and draws conclusions regarding the state of marine litter at the global and regional levels, and concludes that there is an urgent need to approach the issue of marine litter through better enforcement of laws and regulations, expanded outreach and educational campaigns and the employment of strong economic instruments and incentives.

Marine Litter: An analytical overview (2005)

This publication was prepared by UNEP/Regional Seas and the GPA and was published in June 2005. The document deals with the problem of marine litter, as well as measures to prevent the problem, with an analysis of the situation and proposals for action.

External Links

Great Pacific Garbage Patch - Wikipedia, the free encyclopedia

Indian Ocean Garbage Patch - Wikipedia, the free encyclopedia

Marine Debris - Wikipedia, the free encyclopedia

NOAA Marine Debris Program

North Atlantic Garbage Patch - Wikipedia, the free encyclopedia

The EU as a democratic polity in international law

2011-06-30T14:54:00.005+02:00

On June 28, 2011 a conference was held about The European Union (hereafter EU) as a Polity in International Law at the Academy Hall of the Peace Palace, The Hague, The Netherlands. The conference was held at the initiative of Mr. Jaap Hoeksma, Director of Euroknow. This initiative was supported by an advisory board consisting of Dr P. H. Kooijmans, Prof Dr L-J Brinkhorst, Dr W.F. van Eekelen, Dr W.van Gerven and Dr Th. van Boven. The theme of the conference was the legal status of the European Union and its relationship with international law.

From its inception, the main goal of the European Union and its integration in the legal as well as political systems of the Member states has been faced with conceptual problems regarding the final goal of the establishment of the European Union. The purpose of the conference was to discuss whether the Lisbon Treaty has overcome the problems by constructing the EU as a democratic polity without turning the Union into a state. If so, what are the consequences for the place of the EU as a polity in international law and for its role in international relations? [1].

The audience consisted of a cross-section of Members of the European Parliament and national parliaments, judges of the ECJ and national constitutional courts, civil servants of the EU-institutions and the national administrations, representatives of the governments of the Member states, members of the corps diplomatique as well as members of the academic community and representatives of the media, staff members of the International Court of the former Yugoslavia ( ICTY) and staff members of the Carnegie Foundation.

Chairman Professor Steven Blockmans (T.M.C. Asser Instituut The Hague, University of Leuven) welcomed all attendees and gave a short introduction regarding the main themes of the conference.

Professor Laurens-Jan Brinkhorst (Leiden University, former Minister for European Affairs) opened the conference with a short lecture about the legal status of the EU. Brinkhorst stated that these are difficult times for the EU. The main concern is whether the EU as a polity in international law has achieved enough identity to withstand the “attack on EU governance”. Are we confined to European citizenship or a union of independent states? Will the EU go back to a Westphalian phase of the concept of sovereignty or will we become a ‘United States of Europe’, an EU super state or a union of independent states? What will be the nature of the EU? Brinkhorst stated that the EU needs to create a new framework, one voice. The European Union needs to represent the Member states as a transnational democracy at a global level.

HE Judge Bruno Simma (International Court of Justice, The Hague) held a lecture about the place of the EU in international law. Simma expressed that his passion is in public international law but that he has 30 years of experience in teaching European Union law. Furthermore, Simma mentioned that the concept of the EU is difficult to comprehend. He stated that the EU is a “thing for which lawyers have no name”. According to Simma, the European Court of Justice is mainly responsible for the development of community law. Whereas in the early stages, according to EU jurisprudence, EU law was regarded as a new legal order of international law. Over time, the EU legal system evolved in an autonomous legal system or a lex specialis, separate from international law. The argument of autonomy has served as a basis of hierarchy/superiority of the EU law over national law. This has led to a constitutional basis in national law of the Member states. Judge Simma concluded his lecture stating that there is no need for EU Law to emancipate from International law. To Judge Simma, such an attempt can be considered overkill: “Neither is it possible to totally detach EU Law from international law, they remain connected in many respects, both in positive and negative ways”.

The academic research of Professor Michael Burgess (University of Kent, UK), is focused on comparative federalism, the European Union, Canadian federalism and constitutional politics and British Constitutional Politics. His lecture was titled “The emergence of the EU from a federal perspective”. In his lecture Professor Burgess emphasized the importance of the Schuman Declaration and the difficult circumstances in which the European Union came into existence. He stated that we know where we’ve been even though we might not where we’re going. Monnet, the founding father of the European Union, was convinced that Europe was to become a federalist union with economic development as its main priority. Professor Burgess also spoke about the legacy of Monnet. He stated that Monnet believed that the institutions that make up the European Union should be built on political trust. According to professor Burgess, the shadow of Monnet is still alive today. With regard to the question of federalism, he concluded that the European Union is a new federal model.

The third and last lecture was given by Professor Christiaan Timmermans (Erasmus University Rotterdam). Professor Timmermans, who served as judge at the Court of Justice of the European Union from 2000 – 2010, talked about the role of the Court of Justice in the evolution of the EU into a democratic polity of states and citizens. In his lecture, he mainly focused on the evolution of the EU treaties and the relation between Member states and the EU and the concept sovereignty. The purpose of all the EU treaties is to bring the Union closer to European Integration. He argued that special attention should be given to bringing the Union closer to the citizens of the Member states. This can be considered as a role of the Court of Justice of the European Union.

At the end of the conference all the attendees received a board game, called ‘Eurocracy’, about the EU and a Constitution for the EU. The board game was created by Jaap Hoeksma. The game has been used in the spring of 2005 in preparation for a referendum concerning the constitution for Europe.

Relevant Peace Palace Library keywords:

Weblinks:

Footnotes:

[1] Source: The EU as a democratic polity in international law, Asser Institute.

Conference about ICJ's judgment in the case between Nicaragua and the USA

2011-06-28T13:52:00.004+02:00

In 1986, the International Court of Justice issued its judgment on the merits in a dispute between Nicaragua and the United States of America. It was one of the most notorious and influential judgments the Court has ever issued. Twenty-five years later, on a very sunny and hot day in The Hague, members of the legal teams of both Nicaragua and the United States faced each other once again in the Peace Palace, to celebrate the 25^th anniversary of this landmark decision, and to assess its lasting impact on international law.

The conference was co-sponsored by the Grotius Centre of the Leiden Law School, the Centre on International Courts and Tribunals at University College London, the Netherlands Society of International Law, and the Law Firm of Foley Hoag LLP.

Professor Nico Schrijver, Chair of Public International Law at Leiden University, welcomed all participants. He then introduced the first panel, whose task was to discuss the impact of the Nicaragua Case on general international law. The focus of this panel was on jurisdictional issues, as well as questions of state responsibility, especially attribution and circumstances precluding wrongfulness. Professor James Crawford (University of Cambridge) criticized the Court’s decision of 1984 in which it declared it had jurisdiction to hear the case. Judge Bruno Simma of the International Court of Justice then spoke about the way the Court applied the concept of attribution in its judgment on the merits, and how its interpretation of the concept had had a lasting impact, especially on the work of the International Law Commission. He compared the ICJ’s ‘effective control’ approach with the ‘overall control’ approach of the ICTY in the Tadic case, criticizing the latter. At the end of his talk, Simma hinted that there might be a need to reconsider the ICJ’s approach in certain special circumstances, such as the situation in Darfur, Sudan. Prof. Pierre-Marie Dupuy (Graduate Institute of International Development Studies, Geneva) devoted his reflections to self-defense as a circumstance precluding wrongfulness. And finally, Prof. Phillipe Sands (University College London) spoke about formalism and anti-formalism in the ICJ’s approach, and about the impact of the Court’s decision on life outside the community of international lawyers.

The second panel addressed issues relating to the use of force, intervention and matters of evidence. Judge Abdulqawi Ahmed Yusef of the International Court of Justice compared the definition of ‘armed attack’ as used in the Nicaragua-case with the use of that term by the Eritrea-Ethiopia Boundary Commission. Professor John Norton Moore (University of Virginia School of Law) strongly criticized the Court’s judgment, and then Mr. Paul Reichler (Partner, Foley Hoag LLP) defended it. What was fascinating about these talks was that both had been involved as counsel in the case – Moore for the USA, Reichler for Nicaragua - and their talks sounded much like their pleadings might have sounded twenty-five years ago. The reflections of Marcelo Kohen (Graduate Institute of International Development Studies, Geneva) were read by Dr. Larissa van den Herik (Leiden University), because Kohen was unable to come to The Hague. The session was moderated by Prof. Brigitte Stern (University of Paris I, Panthéon-Sorbonne)

After an impressive luncheon, which was enjoyed in the foyer of the Academy Building but also in the beautiful gardens of the Peace Palace, the third panel discussed the impact of the Nicaragua Case on the Court and its role in the international legal order. This issue was discussed by Prof. Alain Pellet (University Paris Ouest, Nanterre-La Défense), Professor Alan Boyle (University of Edinburgh), Professor Lori Damrosch (Columbia Law School), and Professor Joe Verhoeven (Université Paris II). The session was moderated by Prof. Payam Akhavan (McGill University).

The final session had a different character. The traditional set-up – a table where the speakers awaited their turn to go to the rostrum and deliver their speech – was replaced by two comfortable leather couches, giving the impression that we were witnessing an Oprah Winfrey episode. On the couch sat Ambassador Carlos Argüello Gómez, currently Ambassador from the Republic of Nicaragua to the Netherlands but Agent of Nicaragua before the ICJ in the 1980’s; Professor Alain Pellet and Mr. Paul Reichler, both counsel for Nicaragua; Professor John Norton Moore, who was counsel for the U.S.; and Prof. Michael Glennon (Fletcher School, Tufts University) who was then called by Nicaragua to serve as witness on human rights issues. All these gentlemen were interviewed by Professor Philippe Sands. He asked them to reflect on their personal experiences as participants in the case. Many anecdotes were shared with the audience. For example, when asked how he became involved as witness, Glennon described how he was washing his dog one morning when he received a phone call. Reichler asked him if he wanted to be witness before the World Court, and Glennon said: ‘yes, sure.’ The main theme of the debate was the discovery of the facts, the ICJ’s efforts to figure out what really happened. Moore criticized the Court for not engaging in serious fact-finding, and suggested that the Court was perhaps fooled by one of the parties. To stress the importance of facts and its correct interpretation, he told the following anecdote: a woman with a rabbit lived next-door to a man with a big dog. One day, the dog came home with a dead rabbit between its jaws. The man suspected that his dog killed the rabbit, but he did not want to confess it to his neighbor. So he cleaned the rabbit, and put it back in the neighbor’s yard. When the neighbor came home, the man heard a loud scream. He went to her and asked what the matter was. The woman said: ‘my rabbit had died a few days ago and I buried it, but now it is back in my yard!’ In response, the many representatives of Nicaragua on the couch pointed out that the US had refused to come to the Court to present its side of the story, and that this made it difficult for the Court to uncover the truth. Interestingly, the debate soon started to sound, once again, like oral pleadings, with the US side underrepresented in the discussion, since Moore was the sole defender of the US approach on the leather couches. The audience went home believing the case was never decided and that the two parties had continued to discuss the true nature of the US involvement in the affairs of its South-American neighbors, and would never stop doing so….

Click here for literature about the case, the Court, and the country.

Dutch MP acquitted : freedom of expression prevails

2011-06-24T09:32:00.007+02:00

The Amsterdam Court has cleared Dutch Member of Parliament Geert Wilders of hate charges.

According to the Dutch court his anti-islamic statements always fell within the bounds of legitimate political debate even if they were offensive to many Muslims. The Amsterdam Court found his rhetoric was "on the edge of what is legally permissible." The statements were directed "against a religion as such and not against individual persons or a group of people."

Geert Wilders claims the victory for freedom of expression and religion.

Freedom of expression is important for everyone.
Freedom of expression is even more important for members of parliament in their representative functioning, defending the interests of the electorate.

+++++++++++++++++++++++++++++++

Geert Wilders

The Highs and Lows of the Freedom of Expression and Religion (Part II)

The Highs and Lows of the Freedom of Expression and Religion (Part I)

Dutch Court acquits Dutch Anti-Islam politician (NY Times, June 23rd 2011)

Geert Wilders cleared of Hate Charges by Netherlands Court (Guardian UK, June 23rd 2011)

Geert Wilders entend utiliser sa relaxe pour légitimer ses propos (Le Monde, 23 Juin 2011)

Wilders' Gegner ziehen zur UN (Die Zeit, 23 Juni 2011)

Peace Palace Library International Law News

Peace Palace Library articles on freedom of expression

When Röling Waves Advanced Towards the Shores of International Law

2011-06-17T12:26:00.002+02:00

Invitation to lecture about the influence of Röling’s work on international law practice and scholarship by Prof. Nico Schrijver, organized by the Peace Palace Library. The lecture takes place on Wednesday 22 June, 2011, at 17.30-19.30 (lecture starts at 18.00). The location is the Historic Reading Room of the Peace Palace Library. Entrance is free.

About Prof. Nico Schrijver

Prof. Schrijver completed his LLM in Dutch and International Law at the University of Groningen under the supervision of Professor Röling and served for a number of years as his assistant. Professor Nico Schrijver is currently Chair of Public International Law at Leiden University, and Academic Director at the Grotius Centre for International Legal Studies, Leiden University/Campus The Hague. He is also President of the Netherlands Society of International Law, and Member of the United Nations Committee on Economic, Social and Cultural Rights. He appeared before the International Court of Justice and the International Tribunal for the Law of the Sea, and as legal counsel in law of the sea cases before special ad hoc tribunals, and as expert in proceedings before the International Centre for Settlement of Investment Disputes (ICSID), and before the Inter-American Court for Human Rights. He has working experience in the UN system, including as legal officer for the Office of the Legal Counsel, United Nations. He is Chairperson of the Committee on the International Law of Sustainable Development of the International Law Association (previously General Rapporteur) and Co-Chair (with Dr. Kamal Hossain) of the ILA Study Group on UN Reform.

About Prof. Bert Röling and his influence on international law

B.V.A. Röling (1906-1985) was one of the most prominent international lawyers in The Netherlands after 1945. Initially specializing in Dutch criminal law and working as a judge in a Dutch district court, his appointment as a judge to the Tokyo War Crimes Tribunal marked a shift in his thinking and his career, prompting him to take up issues of international criminal law and general international law. He subsequently became one of the founding fathers of the new international discipline of peace research. He often took points of view which today would be regarded as firmly rooted in contemporary international law and conventional wisdom, but were certainly not so at the time. Examples include his early plea to dismantle colonialism and to transform traditional international law from a European law of nations into a world law of nations as well as his strict interpretation of the ban on the use of force.

Registration

If you wish to attend the lecture, we kindly ask you to register in advance. To enter the premises of the Peace Palace, you are required to bring a valid ID (passport, driving license), and show this to the security at the gate of the Palace. They will show you the way to the Library. For registration and for more information, please contact Mr. Otto Spijkers of the Peace Palace Library at o.spijkers@ppl.nl.

About the Peace Palace Library Lecture Series

The Peace Palace Library Lecture Series is a lecture series on issues of general international law. Each year, approximately four lectures will be organized. All lectures are held in the Peace Palace Library. The evening starts with a small reception in the library’s new reading room. The lecture itself takes place in the historical reading room. There will be plenty of time for questions afterwards. The Peace Palace Library Lecture Series are open to everyone. They are especially interesting for researchers and students, as well as diplomats, international civil servants, journalists and other professionals working in the field of public international law.

Grotius in Slovenia

2011-06-10T15:38:00.004+02:00

"Foreign Minister Samual Zbogar launched Wednesday a Slovenian translation of "Free Sea"by 17th century Dutch jurist Hugo Grotius as the first in the Foreign Ministry's new book series on international law. This key work in international law is also relevant in light of the upcoming border arbitration with Croatia, he said"

Grotius' theory on the Freedom of the Sea might help Slovenia in the dispute with Croatia over a small bay in the Adriatic. Since their independence from Yuogoslavia in 1991 they quarrel over the territorial sea delimitation in the Bay of Piran. Croatia claims that the border should be drawn in the middle of the bay, which would deny Slovenian ships direct access to the high sea. Politically the case causes irritation because Slovenia, an EU member can block Croatia's eager bid to accession, which it already did.
The best solution might be to bring the case before the International Court of Justice (ICJ) in The Hague.

Grotius' name and fame echoe in the Peace Palace. He was cited in the "Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) case before the International Court of Justice (2008)".
The Peace Palace Library holds the famous "Grotius-Collection", including the original first edition of "Mare liberum"of 1609 in Latin, printed in Leiden. Only two more copies of the first edition still exist.

Hugo Grotius, the Dutch laywer (1583-1645), who is widely considered the "Father of International Law', wrote his "Mare liberum"to lay down the principle of the Free Sea.
Since then, this small booklet of 68 pages has seen many new editions and many translations.
In 1614 the first Dutch translation was published, followed by French, German, English, Italian, Spanish, Polish, Korean, Japanese and Norwegian translations.
It will be interesting to see which text was used for the Slovenian translation.
The book will arrive shortly in the Peace Palace Library.

Hopefully Grotius will contribute to peace in the Adriatic region.

Relevant Peace Palace Library Keywords and Publications in the Peace Palace Library catalogue:
- Arnaut, D., Stormy waters on the Way to the High Seas: the case of the Territorial Sea Delimitation between Croatia and Slovenia, in Bringing New law to Ocean waters, ed. by D. D.Caron and H.N.Scheiber, 2004, pp. 427-465
-Groot, H., Mare liberum, 1609, Leiden
- Klemencic, M., C.Schofield, Croatia and Slovenia: the "four hamlets"case, in Boundary and Secuirty Bulletin, 1995, v2, a4, pp. 65-77

Ratko Mladić's arrest and the ICTY

2011-05-30T10:31:00.015+02:00

It was all over the news that Ratko Mladić, one of two remaining the International Criminal Tribunal for the Former Yugoslavia (ICTY) fugitives, was arrested on Thursday 26th of May in the village of Lazarevo, northern Serbia. After 16 years on the run, the arrest of this Colonel General, former Commander of the Main Staff of the Bosnian Serb Army (VRS) and the so-called “Butcher of Bosnia” brought an end to one of history’s longest manhunts. Ratko Mladić was arrested by agents of the Serbian Security Intelligence Agency and his arrest comes at a crucial point for the negotiations regarding Serbia’s integration process into the European Union. Ratko Mladić was indicted on 25 July 1995 and was a fugitive from justice for almost 16 years. Untill Thursday the 26th of May 2011.

In a ICTY statement on the 26th may 2011 Chief Prosecutor Serge Brammertz welcomes the arrest of Ratko Mladić and stated the following in relation to the arrest; “Today is an important day for international justice. Ratko Mladić’s arrest clearly signals that the commitment to international criminal justice is entrenched. Today’s events show that people responsible for grave violations of international humanitarian law can no longer count on impunity. With the news of the arrest, we think first and foremost of the victims of the crimes committed during the conflicts in the former Yugoslavia. These victims have endured unimaginable horrors – including the genocide in Srebrenica – and redress for their suffering is long overdue. Ratko Mladić’s arrest is also significant for all people in the former Yugoslavia. We believe that it can have a positive impact on reconciliation in the region.”
As set out in the ICTY’s indictment, Ratko Mladić together with Radovan Karadžić was a key member of a joint criminal enterprise to permanently remove Bosnian Muslims and Bosnian Croats from the territory in Bosnia and Herzegovina claimed by Bosnian Serbs. As the most senior officer of the Bosnian Serb Army during the war, Ratko Mladić was the superior of Bosnian Serb Army members and other Serb forces integrated into or subordinated to the Bosnian Serb Army. As such, he had effective control over the forces who participated in the crimes alleged. Ratko Mladić is charged with planning, instigating and ordering each of the crimes. Ratko Mladić is charged with crimes that include; genocide, complicity in genocide of close to 8,000 Bosnian Muslim men and boys in Srebrenica in 1995, persecutions, deportation and inhumane acts of Bosnian Muslims and Bosnian Croats during the campaign to permanently remove such persons from the territory under the control of the forces of Republika Srpska, unlawfully inflicting terror upon civilians, cruel treatment, attacks on civilians in Sarajevo by Bosnian Serb forces under his command and control which resulted in the killing and wounding of thousands, including many women and children and finally the taking of UN military observers and peacekeeping personnel as hostages in May and June 1995.

Mladić has been on the run since his indictment by the ICTY in 1995. Since then Serbia has been under intense pressure from the international community to catch the fugitive. Earlier in May 2011 Chief Prosecutor Brammertz urged that Serbia must do more to ensure that all war crimes fugitives (Ratko Mladić and Goran Hadžic) are arrested. Prosecutor Brammertz's report to the Security Council concerning Serbia's cooperation and efforts could be crucial for Serbia’s continued road towards the EU. Delivering Mladić to the ICTY could have been an key condition for Serbia's further integration into the European Union.

The arrest of Mladić has been widely hailed as a huge success for Serbia and its Westward-leaning president, Boris Tadic. According to the Christian Science Monitor Boris Tadic declared that the arrest had “closed one chapter of our recent history that will bring us one step closer to full reconciliation in the region” and that Serbia had “wiped the stain” away.

The ICTY was tasked by the UN’s Security Council with trying those responsible for the worst war crimes and other breaches of international humanitarian law committed during the various conflicts in the former Yugoslavia in the 1990s. Karadzic, the Bosnian Serb wartime political leader and Mladić's mentor, was captured in Belgrade in July 2008 and is currently on trial at The Hague. Just one indictee - Goran Hadžic (charged with a number of crimes committed in eastern Slovenia; for the murder and persecution of the Croat and non-Serb civilian population; the prolonged imprisonment of civilians in detention facilities where torture, beatings and killing was not uncommon and the forcible transfer of tens of thousands of non-Serbs from across the area under his control) – now remains at large.
After his arrest Mladić was brought to a special court in Belgrade. The process of trying Ratko Mladić can now begin. The next step will be his extradition to the Hague to be transferred to the custody of the ICTY. He will need to appear to be formally identified and will be asked which way he pleads to the charges laid against him. There will be an opportunity to review evidence and to appoint counsel, although he may seek to represent himself, like others including Milosevic, have done in the past.

According to Opinio Juris a separate Mladic trial would also complicate the ICTY’s completion strategy which calls for all judicial work to cease by the end of 2014. Given how long trials involving high-value suspects take at the ICTY, there is little chance that Mladić’s trial and appeal would end by 2015. So it looks like the Security Council will either have to keep the ICTY going longer than anticipated (which would not be the first time) or leave Mladić’s prosecution to the newly-created residual mechanism. Anyway it seems to me that the ICTY judges and prosecutors will get to keep their jobs a bit longer.

Relevant Peace Palace Library Keywords and publications in the Peace Palace catalogue:
On Mladić
On Yugoslav wars 1989-1999
On International Criminal Tribunal for the Former Yugoslavia and War criminals

A Licence to Kill? The assassination of Osama Bin Laden: Has the USA gone too far in acting as a policeman or was the raid justified?

2011-05-17T00:13:00.028+02:00

A roadside vendor sells newspapers with headlines about the death of Al-Qaeda leader Osama bin Laden, in Lahore, May 3, 2011 (Mohsin Raza/Courtesy Reuters).

Osama Bin Laden (OBL) is dead. After he had been assassinated by a special ops team from the United States of America (USA.), the special team of SEALS took the deceased body of the dangerous mastermind terrorist and several hard drives from the compound in Abbottabad. Bin laden had been hiding there with his family for several years without being noticed. When the Pentagon researched the hard drives, it appeared that OBL had been planning new attacks, at least on several US cities and also on European locations [1]. Upon hearing this news so many have sighed with relief that the secret services of the USA found out about these planned attacks before they could actually take place.

On May 2^nd, 2011, U.S. President Barack Obama told the American people in an official statement that Al-Quaeda leader and terrorist Osama Bin Laden was killed in a special military operation “after a firefight” [2]. This statement led to divergent responses.

At Ground Zero, New York, and lots of other places in the USA people cheered loudly and celebrated the death of the terrorist that masterminded the attack on the Twin Towers. In other parts of the world the death of the terrorist OBL was also celebrated by many. In an official statement the UN Security Council (UNSC) welcomed the death of OBL. It stated that he will “never again be able to perpetrate such acts of terrorism”. The UNSC reaffirmed its call to states to “work together urgently to bring to justice the perpetrators, organizers and sponsors of terrorist attacks.” The UNSC also reaffirmed that its Member States should ensure that in combating terrorism they “comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law”[3].

Secretary-General of the UN expressed his relief in a formal statement: “I am very much relieved by the news that justice has been done to such a mastermind of international terrorism”. [4] German Chancellor Angela Merkel paid her respects to president Obama for the operation. She expressed her gladness that OBL has been killed by the US navy SEALS. Merkel regarded the killing of OBL as an important strike against terrorism [5]. Palestinian politician Ghassan Khatib was of the opinion that “getting rid of bin Laden is good for the cause of peace worldwide”. But he believed that what really counts is “to overcome the discourse and the methods -- the violent methods -- that were created and encouraged by bin Laden and others in the world” [6].

Not everybody reacted with relief and cheer to the killing of Bin Laden. Former Italian Prime Minister Massimo D’Alema for example, did not agree with the enthusiasm felt among so many over the death of OBL: “You don’t rejoice at the death of a man. Maybe if Bin Laden had been captured and put on trial it would have been an even more significant victory”. [7]

There were warning voices, exhorting to remain vigilant because of a fear of reprisals from Al-Qaeda, stressing that terrorism does not just end by killing OBL. And there were the disapproving voices. Worldwide there have been people questioning the legality and proportionality of targeting and killing OBL. Was the Obama Administration wrong in killing OBL? Was it the only option? The USA could have chosen to capture and try OBL in court instead of killing him. Besides this, it also has been questioned whether the USA violated the sovereignty of Pakistan by entering Pakistan in order to target OBL. The USA did warn the Pakistani government about the raid but not until the operation was about to take place [8].

As a candidate during the 2008 election campaign, Obama Barack already stated: "We will kill Osama bin Laden" [9]. The military operation was not intended to capture OBL in order to put him on trial. He was to be eliminated. A US national security official stated that it "was a kill operation" [10].

Justice

President Obama stated that “justice had been done” by executing OBL. Geert-Jan Knoops, Professor of International Criminal Law at Utrecht University, The Netherlands, wonders “what kind of justice” was referred to. “Justice by revenge or justice by law”? [11] The killing of OBL has been compared to a Wild West scene from a movie and American rough, Wild West-style justice and the ‘rule of the jungle’.

Human rights lawyer Geoffrey Robertson does not regard the killing of OBL as ‘justice being done’, but as a perversion of the term. “Justice means taking someone to court, finding them guilty upon evidence and sentencing them [...] This man has been subject to summary execution, and what is now appearing after a good deal of disinformation from the White House is it may well have been a cold-blooded assassination” [12].

Dov Jacobs, a post-doctoral researcher at the University of Amsterdam, the Netherlands, questions the ambiguous attitude of the UNSC regarding international criminal justice as far as the killing of OBL is concerned. He disapproves of how the UNSC could defend values such as the rule of law and due process on the one side and then could approve “actions that run counter to them in the same breath”. He states: “if you believe in the rule of law and due process, then you cannot approve the killing of Bin Laden, however politically or logistically justified it may be [13].

In order to assess whether the assassination of OBL on Pakistani soil was legal or not, three areas of law are of importance: international human rights, international humanitarian law and jus ad bellum (the right to wage war – in this case it concerns the use of force by the navy SEALS on Pakistani soil against OBL). In the case of the assassination of OBL, international human rights law refers to the question whether the action violated the human rights of OBL. International humanitarian law is concerned with the question whether the killing was part of an armed conflict or not and whether Al-Qaeda leader OBL should be considered as a combatant. If the raid is understood as an action which took place during an armed conflict with Al-Qaeda, OBL can be considered as a combatant and killing him during warfare would therefore be legal [14].

Why the act was considered to be contra legem

Why would the targeted military operation which led to the killing of OBL be contra legem? Which arguments are put forward? Many claim that instead of killing OBL, he should have been captured and extradited to the USA or an international criminal tribunal to be tried in court. Others claim that the action was lawful. Why?

In the opinion of Geert-Jan Knoops, killing terrorists is contra legem. According to international law, OBL should be apprehended and tried in court. He is of the idea that the operation was an “extrajudicial killing which is in principle not permissible under international law”. Geert-Jan Knoops warns for a wrongful interpretation of the earlier mentioned UNSC resolutions because this might lead to a situation in which “the whole world becomes one gigantic battlefield where every nation has the right to eliminate foreign nationals if they are suspected terrorists”. This could lead to questionable situations which should be avoided. According to Knoops, the selectivity in how politicians apply international law should “perhaps be one of our biggest concerns” after the 2nd of May. [15]

Shooting OBL, while he was unarmed is, according to Helmut Schmidt, Former
West German Chancellor, “quite clearly a violation of international law” which also could have an incalculable impact on the Arab world in these turbulent times. [16] Navi Pillay, UN High Commissioner for Human Rights stated that the USA should give the UN more detailed information about the raid: “The United Nations has consistently emphasized that all counter-terrorism acts must respect international law” [17].

Why the act was considered to be "lawful, legitimate and appropriate”

Those in favor of the elimination of OBL claim that UNSC resolutions 1368 and 1373 (2001) offer a legal basis for a war on terror. Because the USA is at war with terrorists, terrorist mastermind OBL and as head of Al-Qaeda is regarded as an enemy combatant who may be killed [18]. Because the USA had announced it is in an armed conflict with Al Qaeda, the special operation aimed at killing OBL was legal under international law. Kenneth Anderson, a professor of law and fellow in national security and law at the Hoover Institution, USA: “It’s lawful for the United States to be going after Bin Laden if for no other reason than he launched an attack against the US” [19]. US legal official Ben Wittes also is of the opinion that the action was lawful. He stated that the people responsible for the action are “on extremely solid legal footing” [20].

Many are of the opinion that OBL should have been tried before court. But before which court? Because of the gravity of the crimes committed by OBL people would have liked it if he would have been tried before the International Criminal Court (ICC).

However, the ICC only has a mandate to deal with crimes that took place after the ICC statute entered into force in 2002. So, OBL could never have been tried for masterminding the 9-11 attack on the twin towers - only for crimes he committed after 2002.

Besides, the USA would have to become signatory to the ICC Statute, in order to bring the case to the ICC. If OBL would have been captured alive, the Pakistani government would have had to make a decision whether OBL would have to face trial in a Pakistani court or whether they would want to extradite him to the USA.

It is clear that the Obama Administration carefully and thoroughly planned the operation aimed at eliminating Bin Laden. They thought everything through, and they even had a plan ready in case OBL would have surrendered. Obama gave the order to kill OBL but he made an effort to minimize collateral damage “and that is significant on the side of legality”, Professor Laura Dickinson of the Arizona State University Sandra Day O’Connor College of Law, USA stated [21].

Obama did not give an order to eliminate OBL by just bombing the compound. During the operation three men and one female died but the youngest wife of OBL was not killed. She was only shot in the leg. Before OBL was buried at sea, he was given a proper Islamic burial rite according to Islamic custom. Obama decided to have OBL buried at sea in order to prevent that his body could be taken away and to prevent that a burial place could become a place of pilgrimage for OBL's followers.

By killing OBL and burying him at sea, the Obama Administration made sure that the curtain would forever fall for Osama Bin Laden disregarding the fact whether one is of the opinion that the raid was contra legem or whether one believes that it was legal.

Relevant Peace Palace Library Keywords

Footnotes

[1] Osama bin Laden was planning attacks on America and Europe till last moments, reveal handwritten journals, Economic Times.
[2] See Text of President Obama's statement to U.S. people, Reuters.
[3] As quoted from: Security Council Presidential Statement, Welcoming End of Osama bin Laden’s Ability to Perpetrate Terrorist Acts, Urges States to Remain Vigilant, SC/10239, UN.
[4] As quoted from: Osama bin Laden dead: UN Security Council rejoices at death of bin Laden, The Telegraph
[5] See Merkel says she's glad bin Laden killed by U.S, Reuters.
[6] As quoted from Bin Laden death good for peace: Palestinian Authority, Reuters.
[7] As quoted from Should Osama bin Laden have been captured and tried?, Economic Times.
[8] See The bin Laden aftermath: Abbottabad and international law, Foreign Policy Afpak .
[9] As quoted from Osama bin Laden is dead, Obama announces, The Guardian .
[10] As quoted from U.S. team's mission was to kill bin Laden, not capture, Reuters.
[11] As quoted from The international legal dichotomy of eliminating Bin Laden, RNW.
[12] As quoted from Concerns raised over shooting of unarmed bin Laden, burial, Reuters.
[13] As quoted from The Astonishing Defence of Bin Laden's Death by the Security Council, Radio Netherlands Worldwide.
[14] See Was the killing of Bin Laden Lawful?, EJIL Talk. Blog of the European Journal of International Law.
[15] Quotations from The international legal dichotomy of eliminating Bin Laden, RNW.
[16] As quoted from Concerns raised over shooting of unarmed bin Laden, burial, Reuters.
[17] As quoted from Should Osama bin Laden have been captured and tried?, Economic Times.
[18] See Ibid.
[19] As quoted from Should Osama bin Laden have been captured and tried?, Economic Times.
[20] Ibid.
[21] As quoted from Was Bin Laden raid legal? Probably, according to experts in international law, The National Law Journal.

Links

Is the right to self-determination of the entire population of Libya currently being violated by the Government of Gadhafi?

2011-04-21T13:38:00.003+02:00

Is the right to self-determination of peoples applicable to the present revolution - or civil war - in Libya? Can one claim that a State with a dictatorial regime is violating the right to self-determination of its own population?

The most authoritative definition of the right to self-determination does not answer any of these questions. It simply states the following:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

In his Self-determination of peoples: a legal reappraisal, Cassese pointed out that the word ‘peoples,’ as used in Article 1 of the human rights covenants (cited above), also applied to ‘entire populations living in independent and sovereign States.’ Although the right to self-determination of an entire population of a State is perhaps the most interesting application of the right to self-determination from a philosophical point of view, it initially did not get much attention, since the political urgency was lacking. Whenever the meaning of the word ‘people’ was discussed, the dominant question was always whether it referred solely to colonial peoples, or whether it applied also to minority groups within a State. Other applications, such as the application to the entire population of a State, were not discussed extensively.

An exception to this general rule is the Friendly Relations Declaration, adopted in 1970. In that Declaration, there is one notorious paragraph about the right to self-determination of the entire population of a State. This stated, at the end of an entire paragraph on the self-determination of peoples, that

nothing in the foregoing paragraphs [should] be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.

This clause has been reiterated in some of the most important declarations, in particular the Vienna Declaration and Programme of Action (1993),and the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations (1995). In both these two documents, the phrase ‘without distinction as to race, creed or color’ was replaced by ‘without distinction of any kind,’ to emphasize that the list of prohibited distinctions in the Friendly Relations Declaration was not exhaustive.

Although it reads like a savings clause, the clause just quoted is in reality much more than that. It describes what is the essence of the right to self-determination as applied to the entire population of a State. In the view of Rosenstock, who played a principal part in the drafting of the clause, ‘a close examination of its text [would] reward the reader with an affirmation of the applicability of the principle [of self-determination] to peoples within existing states and the necessity for governments to represent the governed.’

The clause suggests that respect for the right to self-determination of the entire population of a State requires that the entire population is represented somehow by its own State’s government. Many scholars have later defined this as the essence of the right. According to Higgins, the right should be interpreted as requiring that ‘a free choice be afforded to the peoples, on a continuing basis, as to their system of government, in order that they [could] determine their economic, social, and cultural development.’ It was a right of the entire population to control its own destiny.

Such an interpretation of the principle of self-determination would be consistent with that of the drafters of the UN Charter. It was already agreed in 1945 that 'an essential element of the principle in question [was] a free and genuine expression of the will of the people, which avoid[ed] cases of the alleged expression of the popular will, such as those used for their own ends by Germany and Italy in later years.' This remark strongly suggested that a dictatorial government, like the German and Italian government during the Second World War and possibly the Libyan government of today, would constitute a violation of the right to self-determination of the oppressed people. It basically called for a democracy, or at least some form of ‘representative government’ wherein ‘all the elements of the population of the territory [were] represented in the appropriate – representative – institutions.’

Bees under Bombardment : Time for Plan Bee

2011-04-08T10:00:00.033+02:00

Current scientific evidence demonstrates that a sixth major extinction of biological diversity event is underway. The Earth is losing between one and ten percent of biodiversity per decade, mostly due to habitat loss, pest invasion, pollution, climate change, over-harvesting and disease. Certain natural ecosystem services, which are vital for human societies, are under stress.

In its recent report Global Honey Bee Colony Disorder and Other Threats to Insect Pollinators, the United Nations Environment Programme (UNEP) has brought together and analyzed the latest science on the emerging decline of honey bee colonies across many parts of the globe. It indicates that bees are early warning indicators of wider impacts on animal and plant life and that measures to boost pollinators could not only improve food security but also the fate of many other economically and environmentally-important plants and animals.

The study underlines that multiple factors are at work linked with the way humans are rapidly changing the conditions and the ground rules that support life on Earth. Habitat degradation, parasites (e.g. Varroa Destructor) and pests, air pollution, electromagnetic fields, herbicides, pesticides and insecticides (e.g. neonicotinoids such as Imidacloprid) all contribute to the decline of bee colonies. The managment of hives may also be adding to the problem.

It is time to revalue the world and worth - economically and ecologically - of insects and other small organisms for the very existence of Earth and human life itself. Their importance for the environment and food supply is enormous. Farmers, industries, tourism should shift to a "Green Economy", a transition to a low carbon, resource-efficient economy. Part of that transition should include investing and re-investing in the world's natural ecosystem services, such as the often invisible, multitrillion dollar services of bees and other pollinators. Next year the nations of the world will gather again in Rio de Janeiro, 20 years after the Rio Earth Summit, to evolve international efforts to achieve sustainable development. Rio+20 will be a great opportunity to turn the tide.

In the 1920s Rudolf Steiner, the philosopher and founder of the biodynamic method of agriculture, predicted that industrial agriculture would cause the extinction of the bee in the early 21st century. Let's hope otherwise.

PPL Systematic Classification

Agriculture, Agrarian Policy, etc.

Environmental Questions

PPL Keywords

Agricultural Products, Agriculture , Air Pollution , Ecocide , Environmental Pollution, Food Safety, Food Security, Natural Habitats, Invasive Alien Species, Pesticides, Species of Fauna and Flora, United Nations Environment Programme

PPL Books and Articles

EWING, J.F., "Agricultural Biotechnology : Is the International Regulation of Transgenic Agricultural Plants for the Birds (and the Bees)?", 25 Suffolk Transnational Law Review (2002) 3, pp. 617-647

GRAY, M.A., "The International Crime of Ecocide", 26 California Western International Law Journal (1996) 2, pp. 215-271

JACOBS, M., "Anklagemynigheden v. Ditlev Bluhme, Case C-67/97 (Danish Bees Case)", 8 Review of European Community and International Environmental Law (1999) 2, pp. 220-223

KLUSER, S. (eds.) (et al.), Global Honey Bee Colony Disorder and Other Threats to Insect Pollinators, Nairobi : UNEP, 2010

TECLAFF, L.A., "Beyond Restoration : the Case of Ecocide", 34 Natural Resources Journal, (1994) 4, pp. 933-956

TEMMINK, H., "From Danish Bottles to Danish Bees : the Dynamics of Free Movement of Goods and Environmental Protection : a Case law Analysis", 1 Yearbook of European Environmental Law (2000), pp. 61-102

VAN DER GIJP, N.M., "Public and Private Regulations of Pesticides in the Fruit and Vegetables Sector", in : International Food Security and Global Pluralism, Bruxelles : Bruylant, 2004, pp. 101-124

External Links

Agence Française de Sécurité Sanitaire des Aliments, Weakening, Collapse and Mortality of Bee Colonies, 2008, updated 2009

Byrne, A. and U. Fitzpatrick, "Bee Conservation Policy at the Global, Regional and National Levels", 40 Apidologie (2009), pp. 194-210

EUROPEAN COMISSION - Food Safety : From the Farm to the Fork : Beekeeping, Honey Production and Wild Bees

European Food Safety Authority, Bee Mortality and Bee Surveillance in Europe : a Report from the Assessment Methodology Unit in Response to Agence Francaise de Securite Sanitaire des Aliments (AFSSA), Parma : EFSA, 2008

KLUSER, S. (eds.) (et al.), Global Honey Bee Colony Disorder and Other Threats to Insect Pollinators, Nairobi : UNEP, 2010

IK/RS

European nuclear safety after the Japanese Fukushima disaster

2011-03-24T10:07:00.058+01:00

As Japan is situated on several fault lines, the Japanese are familiar with earthquakes and tsunami's. However, the earthquake-proof buildings and tsunami walls near the Japanese coastlines couldn't withstand an earthquake and tsunami as powerful as the Tōhoku natural disaster. On Friday 11 March 2011, Japan was struck by a devastating earthquake and tsunami, also known as the Tōhoku earthquake. It is the most powerful known earthquake that has ever hit Japan since earthquakes have been recorded in the modern scientific way for the first time in 1900. The Tōhoku earthquake is also one of the five most powerful earthquakes in the world [1].

The 9.0-magnitude offshore earthquake had an epicenter 72 km east of the coast of the Oshika Peninsula of Tōhoku, Japan and an underwater hypocenter at a depth of approximately 32 km. Minutes after the undersea earthquake struck Japan, huge tsunami waves of up to 23.6 m engulfed the Tōhoku region, destroying numerous cities and towns in its entirety. The higly destructive tsunami waves traveled up to 10 km inland. The earthquake and tsunami led to many thousands of victims, flooding, landslides, building and infrastructure damage, serious nuclear incidents, making it the most expensive natural disaster on record [2].

Prime Minister Naoto Kan called the natural calamity the "toughest and the most difficult crisis for Japan"[3]. Due to the earthquake and tsunami several of Japan's nuclear plants situated in the affected area were damaged severely. Fukushima I, II, Onogawa Nuclear Power Plant and Tokai nuclear power stations were automatically shut down after the quake [4]. However, the tsunami destroyed the back-up diesel generators of the plants needed to cool down the nuclear core reactor of the plant. In order to stop overheating, possible explosions, further leakage of nuclear material and the risk of nuclear radiation, sea water was taken to the plants for cooling down the reactors. But because sea water could damage the machinery, it was eventually decided that freshwater was needed for the nuclear plants to cool down the reactors.

Originally, people living in the area of the nuclear power plants were advised to stay indoors to avoid radiation. Eventually many people from that area needed to be evacuated [5].

Unfortunately, so far the Japanese have not been able to contain the situation in the powerplants. Explosions at a power plant led to radiation and a partial meltdown. Plutonium was found leaking from the Fukushima Daiichi atomic power plant and well as highly radioactive water [6]. According to Sakae Muto, the vice-president of Tokyo Electric Power Co (TEPCO), the level of plutonium is "not at the level that's harmful to human health"[7]. Seawater near Fukushima I also contained radioactive material [8].

reenpeace has also investigated the area surrounding the power plants and based on its radiation measurements the organisation suggests a further extending of the evacuation area surrounding the Fukushima power plant [9].

Japanese people avoid eating fish and foods that originate from the nuclear plants area and surroundings. It is feared that the radioactive material will be hazardous to both human and animal life and that it will contaminate the environment. Radioactive iodine and cesium were found in spinach and milk as well as other food products in the region of the Fukushima nuclear power plants on Saturday.

The Japanese government is taking precautions, such as banning shipments of certain produce from Fukushima and neighboring prefectures Ibaraki, Tochigi and Gunma [10]. According to the WHO the radiation of food is a serious problem. Peter Cordingley, a spokesman of the WHO said: "It's a lot more serious than anybody thought in the early days when we thought that this kind of problem can be limited to 20 to 30 kilometers" [11]. He stated that at the moment it is rather difficult to know whether the radioactive material found in some food in Japan originated from the Daiichi power plant [12].

Before the nuclear crisis in Japan there was a large nuclear accident in 1979 at the the USA Three Mile Island Nuclear Generating Station and in 1986 the Chernobyl disaster took place in Ukraine due to major design deficiencies, a lack of safety and the violation of operating procedures [13]. The nuclear catastrophy in Japan raises questions about the possible impact of nuclear energy industry on safety and health. Several European countries have discussed the use of nuclear energy and safety measures or have temporarily shut down nuclear reactors since the Japanese earthquake of 11 March 2011.

The European Union is developing a stress test for European nuclear power plants [14]. European countries are considering how safe nuclear power stations are but the difference between European countries and Japan - Europe is not as geologically active as Japan - has been taken into account [15]. During a meeting in Brussels with all other European ministers of Environment, Austrian Minister of Environment Nikolaus Berlakovich called for a security check of all european nuclear power plants: "The people in Europe and Austria ask themselves how secure are our reactors in Europe, around Austria [...] It must be quickly proven how earthquake-proof the nuclear power stations are, how do the cooling systems work, what is the reactors' protection. That must come quickly to reassure the people" [16].

Slovak Environment Minister Jozsef Nagy would regard a stress test for all European power plants as a milestone for nuclear energy: "[...] this might be a milestone in nuclear energy, so we will learn and introduce technologies that are resilient to similar, or even stronger, natural events." [17] German Chancellor Angela Merkel announced a safety review of all nuclear reactors and the provisional shut-down of 7 ageing reactors. During this period premiers of German Federations will also discuss renewable energies, international safety standards for nuclear power and what to do with radioactive waste. [18] A survey by German broadcaster ARD made clear that many Germans worry about the safety of nuclear energy. 53 % of the respondents of the survey stressed that all nuclear reactors should be shut down and 70 of the participants of the review is of the opinion that something similar to the nuclear crisis in Japan could happen in Germany [19].

France has a strong nuclear energy programme; it is France's primary source of energy. France derives over 75% of its electricity from nuclear energy - this the highest percentage of nuclear energy use per country in the world. The USA is the largest producer of nuclear power, accounting for more than 30% of worldwide nuclear generation of electricity) [20]. The situation in Japan has not left France untouched. Since the partial meltdown at Fukushima French left-wing politicians have begun to doubt the reliance of France on nuclear power as a primary energy source [21]. With regard to fear of a nuclear accident like that which occured in Japan, the French environment minister Nathalie Kosciusko-Morizet stressed that Japan's nuclear crisis occurred in "very exceptional circumstances." She urges Europeans not to over-react to the Japanese nuclear crisis: "We shouldn't, at a European level, fall in the indecency of an over-reaction while the crisis in unveiling" [22]. President of France, Nicolas Sarkozy said that all 58 nuclear reactors on French soil would be tested: "were the tests to be failed or to be unsatisfactory we will take all necessary measures, which simply means shutting them down" [23].

Japan's nuclear crisis has so far evoked many questions and worries about the safety of nuclear energy just like the Chernobyl disaster evoked responses in the 1980s. Physicist Leonid A. Bolshov, director of the Institute for Nuclear Safety and Development, formed in 1988 in the wake of the Chernobyl disaster, stated: “The Japanese disaster will give the whole world a lesson [...] After a disaster, a burst of attention to safety follows” [24].

Weblinks Newspapers:

Weblinks International Atomic Energy Agency (IAEA) & World Nuclear Association (WNA):

Relevant Peace Palace Library Keywords:

Daiichi Nuclear Power Station 170 miles north of Tokyo , Japan

Aflo/European Pressphoto Agency

Footnotes:

[1] See 2011 Tōhoku earthquake and tsunami, Wikipedia.org.
[2] See Ibid.
[3] As quoted from Ibid.
[4] Ibid.
[5] See Japan Orders Evacuation Near 2nd Nuclear Plant , The New York Times.
[6] See Plutonium detected in soil at Fukushima nuke plant, The Mainichi Daily News
[7] As quoted from Japan finds plutonium at stricken nuclear plant, Reuters.
[8] See Is Japan's Seawater Radiation Spreading?, Time
[9] Japan rejects Greenpeace argument for expanding evacuation zone, Reuters.
[10] As quoted from / see Radiation Found in Japanese Food, Foreign Policy Blogs - Global Food Security.
[11] As quoted from WHO spokesman: Japan food safety situation "serious", Reuters.
[12] See ibid.
[13] Safety of Nuclear Power Reactors, World Nuclear Association (WNA).
[14] See Europe split over nuclear safety amid Japan crisis, Reuters.
[15] Ibid.
[16] As quoted from Ibid.
[17] Ibid.
[18] As quoted from Germany shuts down seven reactors, Physorg.com
[19] Ibid.
[20] As quoted from Nuclear Power in France, and Nuclear Power in the USA, World Nuclear Association.
[21] Europe split over nuclear safety amid Japan crisis, Reuters.
[22] As quoted from ibid.
[23] As quoted from Europe to Test Safety of Nuclear Reactors, The New York Times
[24] As quoted from Nuclear Industry in Russia Sells Safety, Taught by Chernobyl, The New York Times

Japan’s nuclear energy policy: energy security versus non-proliferation

2011-03-22T09:34:00.041+01:00

Nuclear power dependence
Energy is the "life blood" of any economy, but for Japan, this truism has an added importance. Japan is poor in natural resources, specifically sources of energy, which are so vital to a healthy, modern economy:
- Japan must import over 80% of all primary energy needs;
- Japan obtains only 0.3% of its crude oil supply from domestic sources;
- Japan has very few domestic sources of coal, natural gas, or uranium.

The two oil crises of the 1970s proved that reliance on one particular energy source could greatly undermine stability with regard to energy supplies. The Japanese government sees nuclear power therefore as the most appropriate solution. Nuclear energy is also particularly attractive to Japan because it is environmentally friendly. Contrary to coal, natural gas, and oil-fired generators, nuclear plants produce no harmful emissions. Japan considers nuclear power an important fuel due to its stable supply and potential to alleviate environmental problems like global warming and acid rain.

Energy security
Because of the dependency, energy security is an extremely important issue for resource-poor Japan. Nearly 90 percent of total crude oil supplies come from the Middle East. Nuclear power makes a great contribution to energy security by producing the equivalent of approximately 465 million barrels of oil per year, which corresponds to about 30 percent of annual crude oil imports. Further energy security is supported by the domestic nuclear fuel cycle in which unburned uranium and plutonium are recovered through spent fuel reprocessing to conserve uranium resources. The Japanese government has long held that the establishment of nuclear fuel recycling offers the best prospect of long-term energy security. According to the World Nuclear Association Japan started its nuclear research program in 1954, with 230 million being budgeted for nuclear energy. The Atomic Energy Basic Law, which strictly limits the use of nuclear technology to peaceful purposes, was introduced in 1955. The law aims to ensure that three principles - democratic methods, independent management, and transparency - are the basis of nuclear research activities, as well as promoting international co-operation. Inauguration of the Atomic Energy Commission in 1956 promoted nuclear power development and utilisation. As early as its first long-term plan 1956-1960, the Japanese Science and Technology Agency and the Atomic Energy Commission stated that Japan’s final goal is the implementation of fast breeder nuclear reactors which would eventually provide Japan with an independent indigenous fuel cycle.
The main goals regarding nuclear power are:
- to continue to have nuclear power as a major element of electricity production;
- to recycle uranium and plutonium from used fuel and have reprocessing domestically from 2005;
- steadily to develop fast breeder reactors in order to improve uranium utilisation dramatically;
- to promote nuclear energy to the public, emphasising safety and non-proliferation.

With 55 currently operating commercial nuclear power plants that supply about a third of Japan's electricity needs, Japan's nuclear industry is helping to ensure the long-term strength and viability of the country's economy.

Nuclear safety
The Nuclear & Industrial Safety Agency (NISA) within the Ministry of Economy Trade & Industry is responsible for nuclear power regulation, licensing and safety. It conducts regular inspections of safety-related aspects of all power plants. The NISA is responsible for the safety of test and research reactors, nuclear fuel facilities and radioactive waste management, as well as Research & Development. Because of the frequency and magnitude of earthquakes in Japan, particular attention is paid to seismic issues in the design and construction of nuclear power plants. In May 2007 revised seismic criteria were announced which increased the design basis criteria and required utilities to undertake some reinforcement of older plants.

Non-proliferation
The Japanese people have a historic deep-seated anti-nuclear sentiment based on the experience of the nuclear attacks on Hiroshima and Nagasaki and the subsequent suffering of their citizens. More than 170.000 people died as an immediate result followed by tens of thousands suffering and dying from radiation sickness and other related illnesses. While there is cautious acceptance of the need for nuclear power, the public opinion suggest a deep-seated aversion to nuclear weapons and strong support for their eventual elimination. Because of this public attitude policy makers have implemented a policy on non-proliferation. Japan’s basic Atomic Energy Law prohibits the military use of nuclear energy and successive governments have articulated principles reinforcing this. In 1976 Japan became a party to the Nuclear Non-Proliferation Treaty (NPT) with its safeguards arrangements administered by the UN's International Atomic Energy Agency (IAEA). These safeguards are designed to ensure that nuclear materials for peaceful purposes are not diverted for military use. In 1999 Japan was one of the first countries to ratify the Additional Protocol with IAEA, accepting intrusive inspections.

Publications in the Peace Palace catalogue:
On Japan and energy policy
On Japan and nuclear energy
On Japan and proliferation

Libya and the International Criminal Court (ICC)

2011-03-14T15:11:00.083+01:00

On February 16th 2011- following a wave of uprisings throughout the Middle-East- Libya experienced a so-called Day of Rage which led to protests breaking out to challenge Colonel Muammar Qadhafi’s 41 year old iron rule- the region’s longest.
During the following days, protests continued and spread to different cities. On 21st February, the conflict escalated, when the faltering government of Colonel Qadhafi struck back with a level of violence unseen in other parts of the Middle-East, quickly heading towards a humanitarian crisis.

In the wake of these events, the UN Security Council unanimously adopted resolution 1970 under article 41 Chapter VII of the UN-Charter demanding an end to the violence and imposing a list of sanctions on Libyan authorities. Most important among these is the UN Security Council’s decision to refer the situation in strife-torn Libya to the International Criminal Court (ICC) in The Hague.

Following the adoption of resolution 1970, Secretary General Ban Ki-Moon welcomed the Security Council ‘decisive action’. While it cannot, by itself end the violence and the repression, it a vital step – a clear expression of the will of a united community of nations’, he said. [1]
With the referral of the situation to the International Criminal Court (ICC) , many nations expressed hope that the resolution was a strong step in affirming the responsibility of States to protect their people as well as the legitimate role of the Security Council to step in when they failed to meet that responsibility. [2]

The ICC was established through the Rome Statute, a multilateral treaty that entered into force in 2002. Some 114 members are parties to the Rome Statute, including all member states of the European Union (EU), most countries in South-America and dozens of other states worldwide. In the Middle-East, only Jordan is a party. Some major powers such as China, India, Russia and the United States of America – the latter three being permanent members of the UN Security Council- are not parties to the treaty mainly out of fear for politicized prosecutions of their nationals, including their soldiers.[3]

The support of this resolution is particularly interesting since in 2005, after many years of reports of extreme violence in Darfur, The US and China both abstained from voting to refer the situation to the ICC. [4]

In the case of Libya, the Chinese representative stated that he had supported the resolution taking into account the special circumstances in Libya. Noteworthy is that the US, not only supported the referring of the matter to the ICC but even helped to circulate a draft resolution with the idea. According to some analysts this US enthusiasm can be considered as a step towards greater support for the ICC by the Obama administration. [5]

The representative of Libya stated that the Security Council’s actions represented moral support for his people and was a signal that an end must be put to the fascist regime in Tripoli. He launched an appeal to all the officers of the Libyan armed forces to support their own people and welcome the referral to the ICC, as well as the decision not to impose sanctions on those who might abandon Mr. Al-Qadhafi in the end. [6]

On March 2nd, 2011, merely four days after the adoption of resolution 1970, ICC prosecutor Louis Moreno-Ocampo announced that ‘following a preliminary examination of available evidence’, he reached the conclusion that an investigation is warranted. [7]

The most difficult challenge the ICC will have to face is to secure arrests; without its own police force the ICC must rely on States and the International Community to assist in arrests. While arrests may take time, they are possible with the help of the international community. Charles Taylor, former President of Liberia, was apprehended in Nigeria following a three-year request to arrest him. He is currently on trial and awaiting a verdict at the Special Court of Sierra Leone (SCSL). [8]

Whether or not, Mr. Al-Qadhafi will be arrested and seen in handcuffs in The Hague, these events of the past few weeks demonstrate how the ICC is becoming an important factor in international affairs and its influence may increase even further in the years to come. [9]

Footnotes

[1] Security Council Resolution 1970

http://www.un.org/Docs/sc/unsc_resolutions11.htm

[2] Idem

[3] Canadian Free Press

http://www.canadafreepress.com/

[4]Idem

[5]Idem

[6]Security Council Resolution 1970
http://www.un.org/Docs/sc/unsc_resolutions11.htm

[7] Canadian Free Press
http://www.canadafreepress.com/

[8] Human Rights Watch Report

http://www.hrw.org/

[9] Canadian Free Press

http://www.canadafreepress.com/

Image: The Atlanta Journal Constitution http://www.ajc.com/

Dresden 1945 : an Allied War Crime?

2011-02-18T16:31:00.062+01:00

Last week, an estimated seventeen thousand people in Dresden formed a human chain to commemorate the aerial bombing of the German city in World War II. Deputy Mayor Detlef Sittel said that Dresden remembered its victims and called to mind the days “when Warswaw, Rotterdam and Coventry were laid in ruins by German bombers”. Elsewhere in the city hundreds of neo-Nazis tried to hold a protest march, stating that Germany is not to blame for the war and accusing the Allies of war crimes. Where a demonstration last year was thwarted by anti-fascists, this time the extreme right had been granted a license to hold the protest march. Police from all over Germany, came to Dresden to keep the peace in the city.

The Aerial Bombing of Dresden

Between 13 February and 15 February 1945, British and American bombers laid the historical center of Dresden in the ashes. In four raids, the bombers dropped as much as 3,900 tons of high-explosive bombs and incendiary devices. A devastating firestorm followed, destroying almost 39 square kilometres of the city.

In the first few decades after the war, some death toll estimates were as high as 250,000, which are now considered unreasonable. Estimates of casualties, mostly civilians, vary somewhat, but the figure of 25,000 dead and 30,000 injured is more likely. An independent investigation commissioned by the city council of Dresden in 2010 reported a minimum of 22,700 victims with a maximum total number of fatalities of 25,000. These high numbers are partly caused by the fact that the city was flooded with refugees from the outlying regions, desperately trying to escape the oncoming Russian army from the East.

In comparison with other German cities, the bombing raids over Dresden were not the most severe of World War II. However, they continue to be recognised as one of the worst examples of civilian suffering caused by strategic bombing. Post-war debates concentrate on the question as to whether or not the bombing was justified, and whether its outcome constituted a war crime.

An Allied War Crime ?

Since 1945, the bombing of Dresden is considered by many as a violation of international law and as a crime against humanity, even though positive rules of international humanitarian law were absent at the time. The Hague Conventions of 1899 and 1907, were among the first formal statements of the laws of war and war crimes in the nascent body of international law. However these conventions, adressing the codes of wartime conduct on land and at sea, were adopted before the rise of air power. Despite repeated diplomatic attempts (→ The Hague Rules of Air Warefare 1922/1923) to update international humanitarian law to include aerial warfare, it was not done before the outbreak of World War II. The absence of positive international humanitarian law does not mean that the laws of war did not cover aerial warfare, but there was no general agreement of how to interpret those laws.

The aerial bombardment of Dresden does not only raise the question as to whether or not it was an Allied war crime, but it also makes a moral appeal to prevent total war against civilian populations. It's memory is kept alive.

PPL Classification Scheme

Air Warfare : General Works
Crimes against International Law
Sea Warfare : Bombardments by Naval Forces
War Crimes
Warfare on Land : Sieges and Bombardments
World War II : General Works and Various Essays

PPL Keywords

Air Bombardments
Air Warfare
World War II

PPL Books and Articles

GARRETT, S.A., “Airpower and Non-Combatant Immunity : the Road to Dresden”, in : Civilian Immunity in War, Oxford [etc.] : Oxford University Press, 2007, pp. 161-181

GROSSCUP, B., Strategic Terror : the Politics and Ethics of Aerial Bombardment, New York : Zed Books, 2006, XIV, 226 p

LANGENBACHER, E., "The Allies in World War II : the Anglo-American Bombardment of German Cities”, in : Genocide, War Crimes and the West : History and Complicity, London [etc.] : Zed Books, 2004, pp. 116-133

STEWART, W.P., Background to the Decision to Bomb Dresden : February 13/14, 1945, Cambridge : Walter P. Stewart, 1994, 18 p

UEBERSCHÄR, G.R., “Dresden 1945 : Symbol für Luftkriegsverbrechen”, in : Kriegsverbrechen im 20. Jahrhundert, Darmstadt : Wissenschaftliche Buchgesellschaft, 2001, pp. 382-396