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International Law

Trump Presidency and International Criminal Justice: Should the world be ready for a showdown?

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] W [/yt_dropcap]ith the election of Donald Trump as the 45th President of the United States the possible approach of the new administration to international criminal justice and anti-impunity initiatives would be watched very keenly. Trump’s victory has brought back memories of George W. Bush’s presidency, which was characterized by a general contempt towards international criminal law and its only permanent institution, the International Criminal Court (ICC).

With the Trump campaign throwing no direct light on its international criminal justice agenda (with the exception of certain vague foreign policy statements) and the ICC prosecutor planning to launch a full scale investigation in Afghanistan (which would include a focus on Torture at the highest levels of the US administration), US-ICC relations are expected to get more complex in the times to come.

Clinton administration and the emergence of the ICC

The Rome Statute establishing the ICC was adopted on 17th July, 1998. United States, despite being a chief participant in the Rome deliberations during the Clinton Presidency was one of the seven countries which voted against the adoption of the Statute as opposed to 120 countries who supported the adoption. The chief objection was the possibility of ICC exercising jurisdiction over US servicemen engaged in legitimate and appropriate use of force and the resultant loss in sovereignty even in the absence of a formal ratification of the ICC statute. Even the indictment of civilian foreign policy makers by the ICC was not ruled out. Efforts to secure immunity for US nationals from the Courts jurisdiction proved futile. On December 31st 2000, President Bill Clinton signed the Rome Statute which, however, was not submitted for ratification to the Senate on the ground that a closer examination of the Court’s actual functioning was necessary for further action.

Bush Administration’s contempt towards the ICC

Prior to the coming into force of the Rome Statute on 1st July 2002, President Bush took the unprecedented step of “unsigning” US from the treaty and formally renounced all obligations that the US may have towards the Court. To further bolster its position against the Court, President Bush signed the American Servicemembers Protection Act (ASPA) which prohibited all wings of the US government from cooperating with the ICC. This was followed by “Article 98” Bilateral Immunity Agreements (BIA’s) with various countries including India which precluded bilateral partners from surrendering US nationals to the ICC. Under Article 98 of the Rome Statute, the ICC is prohibited from proceeding with the surrender of an individual to the Court unless the court has first obtained the cooperation of the sending state for surrender and cannot compel a state to violate an international agreement it is party to. The BIA’s in practice took away the power of the ICC to deal with US nationals and considerably whittled down the concept of universal jurisdiction. The referral of the Darfur situation to the ICC by the UNSC through Resolution 1593 in 2005 under Article 13 (b) of the Rome Statute was strongly objected by the Bush Administration on the ground of its fundamental disagreements with the ICC. However, the collective weight of the UNSC persuaded the US (and China, the other major objector) not to exercise their veto power and abstentions followed which facilitated the subsequent issue of arrest warrants by the ICC against Omar Al Bashir and others. Thus the Bush administration was the forefront of international efforts to scuttle the power of the ICC and efforts to undermine the legitimacy of the Court were significant features of its foreign policy.

Obama Administration and International Criminal Justice initiatives

The extreme hostility of the Bush administration to the ICC puts the Obama administration’s approach to the ICC in a comparatively positive light. While the Obama administration was careful not to water down the fundamental objections of the US towards the ICC, it took steps to extend an olive branch to the ICC. Among the favourable steps include the willingness of the administration to send forces to track down Joseph Kony, an ICC indictee and leader of the Lord’s Resistance Army (LRA) in Uganda, through the passage of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act with the unanimous support of the Senate among other initiatives.

Expansion of the Rewards for Justice Programme (RFJ)

The RFJ, started in 1984 is a State Department programme to award information that leads to the arrest of individuals engaged in acts of aiding, abetting and conspiring terror against US interests. The expansion of the RFJ to cover ICC indictees and others wanted by mixed or hybrid tribunals was a major initiative of the Obama Presidency. However, keeping in view the existence of the Bush era’s ASPA, information pertaining to US nationals was excluded from the ambit of the programme.

Referral of Libya to the ICC

In sharp contrast to the Bush administration’s position of abstaining from Resolution 1593, the Obama administration voted positively to refer Libya’s situation to the ICC (UNSC Resolution 1970) in February 2011. However, the inability of the administration to take a leadership role on two controversial issues hanging fire since the Darfur referral in 2005 further exposed the commitment of the US to the ICC; firstly, the funding of UNSC referred ICC proceedings by the UNSC itself and secondly, the indictment of citizens of non-state parties in the referred scenarios. The position of the Obama administration was to leave the funding of these proceedings to the ICC and its state parties without involving the UNSC and non-prosecution of citizens of non-state parties to the ICC. Furthermore, the subsequent unwillingness of the administration to goad the ICC in enforcing its Libya mandate after a failed intervention in the country (accepted by Obama to be his biggest foreign policy failure) did not serve the cause of international justice.

Handing over Bosco Ntaganda to the ICC

Congolese warlord Bosco Ntaganda, an ICC indictee was handed over to the ICC after his voluntary surrender at the US embassy in Kigali, Rwanda in March 2013. US not being a party to the Rome Statute and having no obligations in this regard, decided to hand over the indictee to the Hague. Given the historic animosity of the US to the ICC, its voluntary co-operation with the ICC was widely viewed as a reflection of the changing nature of US-ICC relations.

Conclusion

While eroding the credibility of the ICC was a chief objective of the Bush administration in the wake of a favourable climate created by the Clinton administration, significant improvements in US-ICC relations were witnessed during the Obama administration, despite no indication that the country would be joining the Rome Statute. A Trump presidency given its ideological moorings is likely to take the US back to the Bush era and progressive developments made during the last eight years are likely to be lost. The world should be ready for a possible showdown between the Trump Administration and the ICC which does not bode well for anti-impunity initiatives. The immediate litmus test to this complex relationship would be ICC’s decision to proceed with the Afghanistan scenario given the reality that it would be seeking to pursue justice against the US -a non-state party on the ground that alleged violations of international law took place in Afghanistan- a State Party to the Rome Statute.

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International Law

Human Rights Council election: 5 things you need to know about it

MD Staff

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The United Nations General Assembly held secret-ballot elections for the Human Rights Council (HRC) on Friday.  As of 1 January next year, the 18 newly-elected States will serve for three years on the UN’s highest inter-governmental body, mandated to protect and promote human rights worldwide.

While the institution has been the subject of controversy since its creation in 2006 – culminating in the withdrawal of the USA this past June – UN Secretary-General António Guterres reiterated that it plays “a very important role” in the UN’s human rights architecture.

1. First of all… how does it all work?

Elections to the Council happen annually, with countries serving for three years on a rotational basis, as some of the seats expire on 31 December every year. There are 47 seats, equitably distributed according to five regional divisions.

Countries need a minimum of 97 votes to get elected, and everything happens by secret ballot. This year, 18 seats were up for election:  five for Africa, five for Asia-Pacific, two for Eastern Europe, three for Latin America and the Caribbean, and three for Western Europe and other States.

2. So… who’s in and who’s out?

After Friday’s election, here’s how the Council will look from 1 January:

IN, elected this year: Argentina, Austria, Bahamas, Bahrain, Bangladesh, Bulgaria, Burkina Faso, Cameroon, Czech Republic, Denmark, Eritrea, Fiji, India, Italy, Philippines, Somalia, Togo and Uruguay.

IN, continuing their terms: Angola, DRC, Egypt, Nigeria, Rwanda, Senegal, South Africa, Tunisia, Afghanistan, China, Iraq, Japan, Nepal, Pakistan, Qatar, Saudi Arabia, Croatia, Hungary, Slovakia, Ukraine, Brazil, Chile, Cuba, Mexico, Peru, Australia, Iceland, Spain, and United Kingdom of Great Britain and Northern Ireland.

OUT, because they didn’t apply for a second consecutive term: Belgium, Burundi, Ecuador, Georgia, Kyrgyzstan, Mongolia, Panama, Slovenia and Switzerland.

OUT, because after two consecutive terms, they’re not eligible for re-election: Côte d’Ivoire, Ethiopia, Kenya, the Republic of Korea, the United Arab Emirates, Venezuela and Germany.

3. What does the Council actually do?

In a nutshell, the HRC is a multilateral forum to discuss anything relating to human rights issues around the world.

In addition to launching fact-finding missions and establishing commissions of inquiry into specific situations, it meets three times a year to review the human rights records of all UN Member States, in a special process designed to give countries the chance to present the actions they have taken, and what they’ve done, to advance human rights. This is known as the Universal Periodic Review.

This video explains it all in a simple way:

4. How come some countries accused of human rights violations still serve?

The HRC was created in 2006, following a proposal by former Secretary-General Kofi Annan. In a report titled “In Larger Freedom”, he noted that the Commission on Human Rights, created in 1946, was suffering from “declining credibility and professionalism” and was “in need of major reform”. Subsequently, based on his recommendations, the Human Rights Council was established by the General Assembly to replace the Commission and several measures were put in place to try and avoid the same problems that eventually arose with the Commission.

For example, as it is understood that the Council can only be as effective as its Member States, the election process was placed directly in the hands of the General Assembly, the only UN organ where every one of the 193 countries has equal voting weight.

In addition, the geographical group divisions and seat allocations are meant to prevent disproportionate focus on just a handful of regions and countries, and ensure that every country has a chance of fair consideration.

Finally, during the elections for each regional group, the General Assembly allows extra blank slates: this should theoretically ensure there are more candidates than available seats, enabling a competitive process. However, if – as was the case this year with 18 candidacies for 18 available seats – no extra countries apply, then no competition occurs, and whichever Member State applies, is likely to get elected.

5. So does the HRC make a difference for human rights worldwide?

Although human rights have always been a very sensitive matter for Member States, the Human Rights Council remains an essential part of the UN’s human rights architecture.

The Council has the power to adopt resolutions, launch fact-finding missions and investigations, and establish commissions of inquiry. In particular, the HRC can appoint independent experts on specific issues. At the moment, there are 44 thematic experts and 11 country ones appointed to monitor and report on human rights issues as requested.

All these mechanisms allow for grave violations to be highlighted and brought up on the global stage for examination, discussion and, whenever feasible, action.

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International Law

Unilateralism Vs Multilateralism

David Ceasar Wani

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During the 73rd sessions of the general assembly at the UN, the crunch of unilateralism and multilateralism between US and China kicked off, in which Trump’s unilateral visualization of the world likely to hurt the US, but it might undermine his presidency. As the competitions between unilateralism and multilateralism are viewed inversely. According to the international relations scholars, unilateralism has defined an approach in international relations in which states act without regard to the interests of other states or without their support. Unilateralism is usually contrasted with its opposite approach, yet multilateralism is acting cooperatively with other states. Though unilateralism is often used in a negative way, experts agree that there are positive aspects to occasionally acting unilaterally, such as in issues of national self-defense.

Some politicians and international experts support unilateralism, at least for certain issues. An example of a unilateral action is the U.S. President Donald Trump’s decision to withdraw from the Paris Climate Accord in 2017. The Paris Climate Accord was actually negotiated and approved by nearly 200 nations around the world, and the issue of climate change is impossible to be handled significantly without united efforts of all the countries, particular the major ones. Trump withdrew from the Paris Climate Accord, saying that it hurt American jobs and American interests as well. Trump’s decision was opposed by many experts and average people around the world including the United States.

Nevertheless, it is believed that unilateralism is a policy of dealing with affairs that may be violent, regardless of the will of other countries or nationals. Given this, the most prominent feature of multilateralism is the negotiation since it can pay close attention to the shared interests of the majority and take practical and reasonable measures to deal with affairs in international affairs. The U.S. adopts unilateralism as a kind of closed rather than open behavior. Self-interest is the American priority mentality that Trump previously reiterated, and this approach seems to be a good way to safeguard the interests of the United States, but in fact, it is inconvenient for American nationals, and for the United States.  Conversely, politics, diplomacy, and trade all have disadvantages and this disadvantage can be a hindrance to domestic investment, risk from political changes negative influence on exchange rates, higher costs, economic non-viability, expropriation, negative impact on the country’s investment, modern-day economic colonialism and etc.

From this point of view, it can be said unfavorable to Americans. The reason why the United States has become strong from a dispersed federation compared with the confederation is mainly between states. Improvement of politics and other status has enabled the United States to develop and be strong because of a strong government. If the United States 1787 Constitution was originally formulated by the founding fathers’ generation, and then adopted unilateralism and did not negotiate, it is unimaginable that there would be a powerful United States today. So now Trump adopts unilateralism, which is contrary to the spirit and method adopted by the U.S. Constitution. The threat to his presidency is great because unilateralism is difficult to promote the cooperation and development of national economies. The interests generated by the United States are very short-lived, but they pose great threats to their long-term development and the long-term interests of their citizens. Therefore, when dealing with state affairs or international affairs, multilateralism should be adopted and negotiated. The problem is that we can better safeguard the interests of all parties, maximize the benefits, and promote the development of countries and their own economies.

In conclusion, it is important to understand the evolution of China’s concept of multilateralism, because one has to begin with China’s particularly humble experience with multilateral institutions e.g. it’s being kept out of the United Nations (UN) and its institutions during its preliminary decades as also for it is being the target of UN criticism and sanctions (for Korean War) during those years. The things were to begin to change following the Sino-US rapprochement and China’s entry into the UN and other multilateral institutions from the 1970s. Another crunch change to overlap with the late 1970s was the rise of Deng Xiaoping to power in China. Deng’s economic reforms and openness become the driving force behind China’s conclusive shift toward multilateral institutions.

According to Zhang Baijia, expert at the Chinese Communist Party’s (CCP) Central School, numerous internal and external developments during the first half of the 1980s were to expressively influence Deng’s strategic thinking in three major ways: (a) Deng aborted the long-held view that world war is inevitable’ and instead stresses on ‘peace and development’ as central theme for China; (b) Deng acknowledged that the contemporary world is heterogeneous in nature and that conflicts coexist with cooperation and competition with interdependence; and (c) Deng maintained that independence does not equal isolation and self-reliance does not mean rejecting all foreign things as had been the case during Mao’s times. Change in Deng’s worldview was to result in the change in China’s approach towards international institution and towards the whole idea about multilateralism.

As a result, the whole of the 1980s witnessed extraordinary qualitative and quantitative changes as China gradually involved itself in not only international organizations in the political domain but also expanded its participation in economic and security types of multilateral forums. As regards China’s future vision on multilateralism, it has been motivated primarily by China’s felt need (a) for undermining the basis of United States’ unilateralism and its global power profile and (b) for making efforts to become acceptable as the benign rising power amongst its immediate neighbors and amongst the world at large. By far these two remain China’s most important foreign policy challenges through its rise as a major power has already been accepted as a given reality in general. The conditions have also been facilitated by external dynamics, especially following the collapse of former Soviet Union which has shifted the focus of international relations and led to the widening of the whole understanding of security and strategic calculations amongst major players therefore moving the dynamic of international power politics beyond two superpowers to include new actors like China.

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International Law

Strengthen UN, Implement UN Charterer in true spirit

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Humanity is suffering everywhere whether it is Syria or Yemen, Afghanistan or Libya, Iraq or Myanmar, Palestine or Kashmir. The one who are being killed are human beings, irrespective of his or her race, color, religion, nationality, its human lives which are being lost. Last couple of decade, around 2 million people have been killed, 6 million have been made refugees in their own country or forced to migrate to other countries. Threats and tension is felt in Iran, Turkey and North Korea, Ukraine, and many other parts of the world.  If one switches on TV or read or listen to News, it is all about War, Killings, Blasts, hate and suppressions. People are fed-up of bad news all the time. Everyone is suffering with mental torture. Geo-political situation is deteriorating rapidly. The world is less safe than few decades ago. Insecurity feelings are rising exponentially. What is new world order? On the name of World new order, we have made this world more hostile and fragile. Who is suffering, humanity! Who is the beneficiary, end of the day, no one will be winner.

United Nation General Assembly is busy in its 73rd session. Leaders from all over the world are meeting each other and making speeches one after another, but what will be the out-come or result?

United Nation was founded on 24 October 1945, just after the World War II, in replacement of League of Nations. Its head quarter is at New York, USA. The United Nations is an intergovernmental organization tasked to promote international co-operation and to create and maintain international order. The charter of UN was very well drafted and very comprehensive. Its charter was formulated on justice and equality. It was hard work of genius people.

But with the passage of time, it is losing its effectiveness and failed to maintain world order. Some nations became so strong that, they put aside the UN and act unilaterally. Some nations are so stubborn, that they violate UN charter openly and feel no guilt. Some countries are so feeling-less that the whole world condemned them but they keep criminal silence.

Should we stay calm and just became spectators and watch what so-ever will happen? Should we leave all the issues to our next generations to suffer? Should we close our eyes and do not acknowledge the issues? Can we escape? Can we be ignorant? Can be we so cruel to our kids and leave them to be humiliated?

I believe, it is time to think and raise our voice, and struggle for a better tomorrow, better tomorrow for everyone, better tomorrow for my kids, better tomorrow for your kids, better tomorrow for our next generation, better tomorrow for everyone. We should struggle to make our tomorrow better than our yesterday. Think positively, act smartly and be optimistic.

We demand, respect of the UN , we demand for implementation of UN charter, We demand for justice, We demand for equality, We demand for fair-practices, We demand respect for human kind, We demand for a stoppage of killing, we demand stoppage of violence, We demand for protection of weak, We demand for uniformity etc.

It is natural, when we live together, the differences may rise among us. It can be among individuals or nations. It is very much normal and was happening since ages. We quarrel with our kids, brothers and sisters, parents, spouse or friends, boss or subordinates or colleagues. It is understandable. But we live in a civilized world. There are mechanisms to resolve the differences. In our day to day life we are over-coming on many issues and resolve with each other. The same approach may be followed to resolve the differences or misunderstanding among nations. UN is the right platform, UN charter is the proper guidelines for resolving the issues. Diplomacy is the weapon of civilized world. We all must respect UN, and its charter and resolve all issue through peaceful manner and dialogue. No one should have the right to by-pass UN or impose its decisions unilaterally.

I suggest, the International Community may join hands and strengthen UN and implement its charter in true later and spirit. UN may investigate the history of almost 7 decades and point out all the violators and let them declare responsible for their wrong doings. Force them to rectify their mistakes, compensate their wrong doings. UN should strengthen to the extent that any country how strong it might be, should not dare to violate UN charter. Any sanctions without UN approval may be declared null and void. Any military action without UN approval may not be recognized and declared criminal acts. They must be punished for their heinous crimes and war like crimes.

Let us struggle to make this world a place of “Peace, Harmony, Justice, Equality and Prosper” place for our generations to come. We may sacrifice but our next generation may enjoy Peace, Harmony and Prosperity.

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