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Thursday, April 21, 2011

SHARES Project Conference Announcement and Call for Papers - 15 May Deadline

The SHARES Project is organizing a major conference next November on the Foundations of Shared Responsibility in International Law.

Here is the Call for Papers - The Deadline is the 15 May 2011.

Monday, April 11, 2011

Self-promotion: launch of Shared Responsibility in International Law Website

Since September, I have been involved in a new project at the University of Amsterdam which addresses issues of Shared Responsibility in International Law. The project has just launched its new website. Here is the annoucement:

The Research Project on Shared Responsibility in International Law (SHARES) is pleased to announce the official launch of the SHARES website: The website includes a detailed description of the SHARES project and its project members. The website also features news, events, publications, blog posts and resources on shared responsibility in international law.
 The ambition of the SHARES project is to examine an unexplored and largely unrecognized problem: the allocation of international responsibilities among multiple states and other actors. It seeks to uncover the nature and extent of the problem of sharing responsibility in an increasingly interdependent and heterogeneous international legal order. SHARES will therefore offer new concepts, principles and perspectives for understanding how the international legal order may deal with shared responsibilities. The project will address general issues of Responsibility in International law, of States, as well as other entities, such as International Organizations, individuals and other non-State actors, which will impact various fields of law, such as refugee law, environemental law, human rights law or the laws of armed conflict. The SHARES project is a research project of the Amsterdam Center for International Law, led by Professor André Nollkaemper, and funded by the European Research Council.

All to Blame in Ivory Coast? Shared Responsibility for International Crimes

Cross-posted on SHARESprojectBlog

[more about the SHARES project here]

Ivory Coast is becoming a political nightmare. Indeed, with the evidence of crimes being committed by Gbagbo forces, as well as by Ouattara's supporters, the international community is faced with a dilemna: if it turns out that Ouattara is indeed condoning such actions, how can he be supported by the world community, if it is to be consistent with calls for removal of other leaders who have alledgedly been involved in such situations, such as Khadafi in Libya? The result of such consistency would however be a political vaccum that might create more chaos in the country.

Beyond this political dimension, the situation raises interesting issues of Shared Responsibility. Berenice Boutin, from the University of Amsterdam, has considered the Shared Responsibility of France and the UN in Ivory Coast. One issue that needs to be considered in addition to that is the question of the responsibility for the crimes being committed on the ground, by both sides, which is even more complex.

Indeed, this is a case of Shared Responsibility which involves several types of entities, several levels of responsibility and types of obligations from various areas of law.

The first level is obviously the individual responsibility of those committing the crimes, which would arguably fall under several categories of International Criminal Law (ICL), whether under the war crimes of the crimes against humanity label. Still within ICL is the command responsibility of the military, but also civil, leaders. 

The second level requires looking at the entities to whom those crimes can be attributed. Interestingly, because Ouattara has been recognised by the entire international community as the legitimate representative of Ivory Coast, you can argue that the State Responsibility of Ivory Coast could be invoked. Also, and to make things even more interesting, it appears that mercenaries from other countries, more particularly Liberia, are involved. Depending on the facts, this could give rise to either direct responsibility of Liberia, should it be wilfully supporting the mercenaries, or, alternatively, failure to exercise due diligence, at least over its own territory and borders, if it could have prevented such a situation.

The third level is that of the responsibility of external entities, more particularly France and the UN, not only for their actions as considered by Bérénice, but also for actions by the parties to the conflict. The first angle that one could adopt, is their failure to exercise its responsibility to protect, as an emerging, but strongly debated and contested, norm of international law. Should the actions fall under genocide (there is some evidence that specific tribes are being targetted), it could trigger the specific duty to prevent that was recognised (if haphazardly applied) by the ICJ in the Genocide Case (PDF) in relation to Serbia
The second possible angle is complicity. Indeed, this might seem a little far fetched, but to the extent that the international community has been positively supporting Ouattara, not only politically, but also militarily, by targetting exclusively Gbagbo forces, couldn't it be seen as an active participant in the conflict (I have argued elsewhere against the fiction of neutral external intervention), and therefore be help responsible if the party it supports commits crimes that were foreseeable? this certainly raises issues of knowledge and intent which, under their current definition in international might not cover such situations, but the question can at least be asked.

Friday, April 1, 2011

New Controversial Laws in Israel: Some Thoughts

The Knesset, Israel's Parliament has recently approved a series of apparently controversial laws which has provoked some strong opposition. The first one allows small communities in the Negev and Gallilee to refuse a resident permit to people who are "ill-suited to the community's way of life" or "might harm the community's fabric". The second law, which is being called the "Nakba law", would allow the State to fine state-funded institutions who commemorate the "Nakba" (literally "catastrophe"), the Palestinian day that coincides with Israel's independence day and  commemorates the loss of their land. The third law would allow courts to revoke someone's citizenship for certain acts, such as terrorism, treason or collaboration with the enemy in time of war, or "any other act which harms national sovereignty".

There is no denying that the general political context of the adoption of these laws is less that optimal. The right wing coalition of Netanyahu and Lieberman is playing into the population's xenophobic and security fears and has been bad news for peace in the middle east since it was elected to power last year. In this context, it is a delicate intellectual exercise to coldly consider the actual content of these laws and try to analyse them in a decontextualised way, but I still want to share some thoughts on two of them, the nationality law and the Nakba law.

In relation to the nationality law, it was strongly denounced and declared to be "racist", because aimed at the country's Arab minority. However, in the absence of actual practice of the law, and I insist, independently of the intent of the majority which passed the law, I find this conclusion a bit hasty. For one, if this law is controversial, then it should be controversial in many countries, not just Israel. Indeed, many States have such provisions in their national legislation for such crimes. One could question whether such type of law should exist at all, on the basis that all nationals should be treated the same way, independently of their "origins" (which I would argue), but it is not a specific Israeli debate. Second of all, on the scope of the law, it only "discriminates" against persons having committed a specific crime. But that is how criminal law works. Saying otherwise would be absurd. It would be like saying that the law providing for 30 years in prison for a murderer is discriminatory against murderers... More specifically, saying that the law is "racist", implies that the law considers that all Arabs are terrorists and traitors. That might be what Lieberman thinks, but that is not what the law says. Therefore, if you accept the principle of that law (which I wouldn't), its current formulation would seem unproblematic to me.
I would however have one reservation that would need to be verified, because none of the news reports I've read give any indication: that of the situation of persons with a single nationality. Indeed, the French law, for example, provides that you cannot revoke the nationality of someone if it would result in them being stateless. This is in application of the international law rules in that respect, more particularly the Convention on the reduction of Statelessness of 1961. Israel has not ratified the Convention, but there could be some argument that its provisions form part of customary law. In this sense, it would be particularly problematic if the law did not provide for an exception in such cases.

In relation of the Nakba law, I must admit that I am of two minds. But first, three points on the law itself.
For one, it is unclear from what I've read what the law says exactly. According to wikipedia (I'm sorry for the source, but because I don't read hebrew, I'm limited to secondary sources which would need to be verified), the law doesn't actually mentions the Nakba. It allows for the witholding of:
government funding from Arab towns and state-funded organizations or public institutes that participate in "activity that involves the negation of the existence of the State of Israel as the state of the Jewish people; the negation of the state's democratic character, support for armed struggle or terror acts by an enemy or a terror organization against the State of Israel; incitement to racism, violence and terror and dishonoring the national flag or the national symbol"
Even if it does, and second of all, it is unclear what the "Nakba" specifically commemorates. According to Human Rights Watch, it refers:
 to the historic episode in which hundreds of thousands of Palestinian residents of what is now Israel fled and hundreds of villages were destroyed during the conflict after Israel declared independence in 1948
However, according to other sources, its full name is "Yawm an-Nakba", the  "day of the catastrophe", and is commemorated on the same day as Israel's independence day, in reaction to the specific creation of the State of Israel.

Third of all, the law does not prohibit all commemorations of the Nakba, it prohibits such commemorations by publicly-funded institutions. While the definition is wide-ranging, it is still limited.

With this in mind, a few thoughts. On principle, my natural instinct is in favor of absolute freedom of expression. I argued along those lines in one of my very first posts. I strongly oppose the trend towards the criminalization of free expression, even if it's offensive, and I am, for example, strongly opposed to laws criminalizing holocaust denial.

But this is where, to come back to the very first point I made, I reach the limits of "decontextualising" the analysis of the law. In a "pacified" society, I can argue that freedom of expression should always prevail, and that everybody should be allowed to express their opinion, even if that opinion mourns the actual creation of the State where he lives. Discussion of the past should be free and unimpeded.
However, Israel is not a pacified society, on either side. Israel still feels threatened in its existence, whether this is in fact a real danger being irrelevant. Palestinians rightly feel that they have been robbed of their nationhood and have suffered 60 years of Israeli occupation, and half-hearted support from neighboring Arab States. The Nakba is not the past, it is the present and its celebration has very actual meaning in the current political context . As the debates on transitional justice, truth, reconciliation and peace have shown in the past decades, there is no simple answer, as some organisations would let have believe, as to how to deal with situations where the social fabric is so torn. Given the fragile balance (or imbalance), I would not have the arrogance to try and impose a theoretically perfect solution (freedom of expression) on Israel. The only option is compromise and some measure of balance.
In this context, I don't find it that scandalous that a State would frown upon public institutions (I would adopt a more limited definition to cover only State institutions) promoting the commemoration of a day that basically mourns the formal creation of that State. I would not imagine a play in a publicly-funded French school celebrating Petain, and mourning his defeat in 1945 (just to be clear, I take this as an example of an ontological fracture in the nature of the French State, not as a comparison between Petain and the Palestinians). On the other hand, with a broader definition of what the Nakba represents, Israel should try to face its past and acknowledge that its creation, while not being put in doubt, came with serious human rights abuses that still leave open wounds today. This would however require clarity that the celebration of the Nakba does not imply that Israel should not exist as a State today, which is politically and understandably difficult to accept for Israel.

If anybody has any corrections to make on the actual content of the laws, I'd be happy to make the appropriate changes. I look forward to your comments on this complex topic. Those who would be tempted to simplistically put me in the "pro-palestinian" or "pro-israeli" box, based on one or other sentence in my post (biased people generally tend to have a surprisingly accurate capacity for selective reading) are also invited to share their thoughts for comic relief.