War crimes were committed by both sides in Libya, finds International Commission of Inquiry on Libya

Further Steps in ECCC Cases 003 and 004?

The Phnom Penh Post has reported that the Extraordinary Chambers in the Courts of Cambodia has taken steps to inform suspects of the charges against them in the controversial Cases 003 and 004. The move comes after years of contention which saw the mass resignation of Office of the Co-Investigating Judges staff, and later that of International Co-Investigating Judge Siegfried Blunk.

Reserve Co-Investigating Judge Laurent Kasper-Ansermet has had a hostile reception from his Cambodian counter-part, but it is believed that the newfound momentum in Cases 003 and 004 is down to him.

The Phnom Penh Post reports that apparent Case 004 Suspect Im Chem received a visit from five ECCC representatives last week, who handed her “many many documents” and read the charges against her.

It has been the long-held view of the Defence Support Section that the suspects are “entitled to their fundamental right to individual legal representation,” says Officer-in-Charge Nisha Valabhji.

Though the DSS has not formally been informed of the identities of the suspects, which have been widely publicised in the press, it has made several requests to represent their general interests. These requests have been declined.

The full Phnom Penh Post article is available here.

EU “candidate status” granted to Serbia - a catalyst for positive change in the Western Balkans region?

Post by Kathryn Hovington

In a significant advance for the nation, European Union leaders, endorsing the Council’s Conclusions of 28 February 2012 on Enlargement and the Stabilisation and Association Process, have granted EU "candidate status" to the Republic of Serbia at a summit in Brussels on 1 March 2012. The Council two days earlier confirmed that Serbia had fulfilled the criteria set out for it in December 2011; it has continued to show credible commitment and achieved further progress in moving forward with the implementation in good faith of agreements reached in the Belgrade-Pristina dialogue (including on IBM), it has reached an agreement on inclusive regional cooperation and it has actively cooperated to enable EULEX and KFOR to execute their mandates.

Serbia was recommended for candidate status by the European Commission in its Opinion on Serbia’s EU membership application, dated 12 October 2011, which also commended Serbia for having brought to a fully satisfactory level its cooperation with the ICTY. Full cooperation with the ICTY was a precondition for Serbia’s candidate status and with the arrest and handovers of the last two remaining ICTY indictees, Ratko Mladic and Goran Hadžic, the country delivered on all 46 ICTY requests for handing over indictees.

Nonetheless, further progress was required in another area: relations with Kosovo. The government in Belgrade does not recognize Kosovo as an independent state, still regarding it as a breakaway territory. Serbia’s achieving EU candidate status was conditional on the understanding that Belgrade re-engaged in dialogue with Kosovo and that it moved swiftly to the implementation in good faith of agreements. In its Conclusions of 9 December 2011, the Council welcomed Serbia’s re-engagement in the Belgrade-Pristina dialogue and its movement towards implementation of agreements in good faith. Serbia has recently made a series of concessions on Kosovo. Whilst it still refuses to recognise Kosovo’s self-declared independence, on 24 February 2012, the two sides agreed on conditions under which Kosovo can take part in west Balkan regional meetings. They also agreed to jointly manage their border which has experienced repeated violence between Nato peacekeepers and ethnic Serbs.

The Republic’s bid for candidacy status also overcame prior objection from Romania. Romanian President Traian Basescu gave the green light for the decision only after the singing of an accord between Romania and Serbia on the treatment of minorities in Serbia. Romania had previously made it clear that it would not allow Belgrade to progress further towards EU membership until assurances were given relating to the 30,000 Romanian-speaking Vlachs in Serbia.

The award of candidate status marks recognition that a country is ready to begin formal negotiations on EU membership. However, before it can commence negotiations with the European Commission, in a process which can take many years, Serbia must bring its laws into line with EU standards, demonstrating respect for democracy and human rights and it must also have open market economies that can withstand competition.

The Government of Serbia has declared European integration to be one of the strategic priorities for the Republic and the President of the European Council, Herman Van Rompuy, described its latest achievement as "remarkable". European policy makers have left the door open to Balkan countries in the hope that the lure of EU membership could help stabilize the volatile region. Serbia joins its neighbours Croatia, Macedonia and Montenegro as candidate countries. Croatia is now an acceding country and Montenegro is set to begin talks on accession in June. Bosnia, which is currently classified as a potential candidate for EU membership, may apply for candidate status later this year.

For further information:

3150th General Affairs Council Meeting (Provisional Version) – Brussels, 28 February 2012

The “Feedback Loop” of State Compliance with ICL Obligations and Acceptance in the International Community ICLB

Serbia, Once Outcast, Is Candidate to Join E.U. The New York Times

EU leaders grant Serbia candidate Status BBC News World

Kathryn Hovington is a Pupil Barrister at 9 Bedford Row International.

El Salvador's brutal civil war: What we still don't know

Post by Kathryn Hovington

From 1980 to 1992, civil war ravaged the Central American state of El Salvador, claiming the lives of approximately 75,000 Salvadorans. The two primary actors were the government of El Salvador, which received support from the United States, and a Marxist-Leninist guerrilla group called the Farabundo Martí National Liberation Front (FMLN), which was supported by Nicaragua, Cuba, and indirectly the Soviet government. The Salvadoran armed forces were responsible for the majority of human rights violations committed during the conflict, including a number of massacres during the early 1980s. El Salvador's President, Mauricio Funes, recently apologised for one such well-known massacre, carried out in El Mozote in December 1981 by the military. President Funes has recently created a military commission to investigate the history of the armed forces, although the commission is to be comprised of military officers which may call its independence into question. The extent of the FMLN's use of violence during the civil war requires further investigation. During the 1980s, the FMLN killed several mayors, informants and traitors, all crimes under the rules of war. There are also strong indications that the guerrillas began to rely more on terrorist tactics during the late 1980s.

Twenty years after the signing of the peace accords which marked the end of the conflict, many aspects of El Salvador's civil war remain murky. In February, the Unit of Investigations about the Salvadoran Civil War (UIGCS) of the Universidad de El Salvador organized the largest meeting of researchers on the civil war in El Salvador, entitled, "History, Society and Memories: the armed conflict on the 20th anniversary of the Peace Accords". According to Jorge Juárez of UIGCS, the seminar's goal was to "make known to the public a version [of the war's history] without passions, without ideology, that presents the simple truth of the facts".

To read the Aljazeera article in full, please click here. 

Book Review: Interpreting the Nuclear Non-Proliferation Treaty by Daniel H Joyner, published by Oxford University Press

By Gillian Higgins*

“On July 16, 1945, the United States set off the world’s first atomic explosion. Since that date in 1945, the United States of America has conducted 42 test explosions. Today, the United States’ stockpile of atomic weapons, which, of course, increases daily, exceeds by many times the explosive equivalent of the total of all bombs and all shells that came from every plane and every gun in every theatre of war in all of the years of World War II.  A single air group, whether afloat or land-based, can now deliver to any reachable target a destructive cargo exceeding in power all the bombs that fell on Britain in all of World War II.”

US President Dwight Eisenhower’s ‘Atoms for Peace’ Speech, December 8, 1953 before the General Assembly of the United Nations on Peaceful Uses of Atomic Energy

This week, Gillian Higgins takes a break from international criminal law and reviews a new book on the 1968 Nuclear Non-Proliferation Treaty (NPT) by Daniel Joyner. As a newcomer to the regulation of nuclear energy, the non-proliferation of nuclear weapons and the principle of disarmament, Higgins examines whether this latest publication should be reserved for the experts, or whether in fact, it constitutes essential reading for anyone interested in the law and politics of our nuclear age.

Joyner acknowledges immediately that he is keenly aware of the dangers of practising what can be called "law office science", when tackling the complex issue of nuclear energy. Notwithstanding his concerns, he provides an excellent introduction to nuclear energy and international law in his first chapter in which he also sets out the historical perspective of the creation of the International Atomic Energy Agency in 1958, and the Non-Proliferation Treaty. Joyner reminds us that in August 1945, the world had just found out "about the development by the United States of nuclear fission weapons, and their use on the cities of Hiroshima and Nagasaki, Japan." It was only months later, in 1946, that the United Nations General Assembly, passed its first ever resolution, which called for the establishment of a "Commission to Deal with the Problems Raised by the Discovery of Atomic Energy."

Joyner's main thesis is clear at the outset. He argues that a number of the legal interpretative positions on the NPT maintained particularly by nuclear-possessing governments are legally incorrect. In summarising the underpinning of the NPT, Joyner explains that there are three inherently linked, and presumptively equal, principled pillars - peaceful use of nuclear energy, non-proliferation of nuclear weapons, and disarmament of nuclear weapon stockpiles - a concept commonly misunderstood or misinterpreted by academics and governments alike.

In chapter 2, the author adopts a holistic interpretation of the NPT, pursuant to the 1969 Vienna Convention on the Law of Treaties (VCLT). Joyner concludes that the diplomatic history of the NPT and the preparatory work of the treaty confirm that the NPT is not “fundamentally addressed to the regulation of nuclear weapons proliferation, as it is often described to be.” The diplomatic history and preparatory work “establish, rather that the NPT is, in fact, fundamentally addressed to regulating nuclear energy in its full dual-use nature and range of applications.”

Joyner argues that pursuant to the policy and practice of nuclear weapon governments, led by the United States, the non-proliferation pillar of the NPT has for over a decade been disproportionately and incorrectly prioritized at the expense of the peaceful use and disarmament pillars of the Treaty. He reminds us that even as “superpower tensions remained high in the early 1960s, both the US and Soviet governments determined that a coordinated process of limitation of nuclear weapons and ultimately reversal of the nuclear arms race would be beneficial to their national interests.” Joyner refers to the terrorist attacks of September 11, 2001 and the Bush administration’s resulting ‘global war on terror’ as evidence of the very palpable increase in the degree of the shift of emphasis toward nuclear non-proliferation, and away from nuclear disarmament and nuclear peaceful use, reflected in US statements to NPT meetings.

As the book progresses, Joyner develops his argument that during the Bush era, many of the interpretations of the NPT by Nuclear Weapon States were legally incorrect and in turn, formed the basis for policies and actions which have prejudiced the legitimate legal interests of Non Nuclear Weapon States. Joyner draws upon the period between the end of 2008 and the summer of 2010 to demonstrate the significant developments in international law and politics regarding nuclear energy and nuclear weapons.  He explains that the first sign of a change in US policy on nuclear weapons came in dramatic fashion in a speech given by President Obama on 5 April 2009 in which he set out “clearly and with conviction America’s commitment to seek the peace and security of a world without nuclear weapons.” President Obama’s formally stated commitment to a policy of nuclear disarmament was the first time a US President had made such a commitment. Joyner opines that Obama “essentially changed US nuclear weapons policy to a disarmament posture, in contrast to its longstanding arms control posture”, and in doing so, wholeheartedly deserved the award of the Nobel Peace Prize in 2009.

Joyner’s historical and contextual assessment of the NPT powerfully challenges the validity of recent legal interpretations and provides a comprehensive analysis of one of the most controversial treaties since the end of World War II. An interesting read, particularly given the current spotlight on the nuclear ambitions of Iran and North Korea.

* Gillian Higgins is a barrister at 9 Bedford Row International and a founding member of the International Criminal Law Bureau. She practices international criminal law and is currently defending Mr Uhuru Kenyatta before the International Criminal Court.

ICC Issues Warrant of Arrest Against Abdel Raheem Muhammad Hussein

The International Criminal Court has issued a warrant of arrest against Sudanese Minister Mr Abdel Raheem Muhammad Hussein.

Mr Hussein faces charges of 41 counts of crimes against humanity and war crimes alleged to have been committed in the context of the situation in Darfur.

The full ICC press release is available here.

The warrant of arrest is available here.

Syria crisis: UN demands Valerie Amos let into country

Post by Kathryn Hovington

UK Government Seeks to Reform ECHR

The UK government is demonstrating its commitment to using its six-month presidency of the Council of Europe to reform the European Court of Human Rights. A draft position paper has been circulated calling for the European Convention on Human Rights to be substantially rewritten in order to curb the number of cases that go to Strasbourg and to allow greater latitude to national courts.

The government seeks to remove Strasbourg’s ability to examine cases “identical in substance to a claim that has been considered by a national court,” except where there has been a manifestly erroneous interpretation of the ECHR or the case raises a serious question about the interpretation or application. Other proposals include the incorporation of the principles of subsidiarity and margin of appreciation, and the lessening of times to apply. The proposed reforms need the unanimous approval of 46 other countries if they are to come into force.

Read the full BBC article here.

Syria Rebels in "Tactical Withdrawal" from Homs

The Free Syrian Army has announced its withdrawal from the Baba Amr district of Homs. The FSA stated that it has chosen to leave the area in order to ensure the safety of the several thousand residents refusing to leave their homes.

Read the full BBC article here.

Read the full New York Times article here.

Sri Lanka and the UN: Unslayable ghosts

Posted by Kathryn Hovington

For the first time since the end of the war in 2009, the Sri Lankan government may be forced to answer for its actions to the United Nations’ human-rights council. America (with European support) is expected to propose a resolution, calling for the government to report on both how it is fostering better ties with Tamils and its inquiries into possible war crimes. The expected Western-backed proposal may also try to use the Lessons Learned and Reconciliation Commission (the government-backed inquiry into the war’s end), to put pressure on the government by asking for other recommendations to be implemented. Basil Rajapaksa, brother to the president, Mahinda Rajapaksa, claims that it is the outsiders who are causing tension. Sri Lanka is backing a counter-resolution criticising Western funding of the council. For the full article from The Economist, please click here.