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International Law

United States and International Criminal Law: Perpetual tale of opposite poles

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The changing face of global adversity in the arena of international law has had a monumental impact on international legal jurisprudence. One of the branches that have predominantly developed is international criminal law albeit the involvement of global super powers has eluded the system.

The classical case of The ‘United States’ (hereinafter referred to as ‘U.S’) being reluctant to partake on international criminal law journey is highly deplorable. It is quiet ironical that the U.S seems to be hostile towards international criminal court on the one hand and on the other hand had played a pivotal role in drafting Rome Statute, what exactly is it about the international criminal court that seems to twist the tail of the State Department in U.S. whether its pentagon NSC senators or congressmen. The hostility of U.S is manifested through the perverse use of ‘Veto’. The idea of accountability for serious violations of international humanitarian law lies at the very heart of the U.S foreign policy which is why the nullification of criminal law jurisprudence by U.S seems perplexing. The bilateral treaties which the U.S assigned to shelter U.S nationals have taken precedence over threat of transfer to the court. The U.S was represented by Mr.David scheffer (U.S. Ambassador) in the course of drafting the ICC. The policy makers believed that U.S being a signatory wouldn’t hamper the independence of the prosecutor and the ‘principle of complementarity’ will ensure that American war criminals are adequately prosecuted by the domestic tribunals. Another aspect that seems paradoxical is the vociferous support of U.S for the adhoc criminal tribunal and its opposition to ICC.

Reflection of History towards ICC

Post World War I, U.S submitted a memorandum of reservations which urged a cautious approach to forge ahead with post war prosecution. This is the primary reason why a tribunal like Nuremberg did not exist after atrocities of World War I. A quarter century later, international criminal law resurfaced with extra vigor, the U.S being in the consortium of allied forces displayed keen support to hold the access enemies responsible for violation of laws and customs of war. The Nuremberg trials is widely regarded as a flash point in the growth of international criminal law jurisprudence for the first time individual where held liable for war crimes, crimes against humanity, crimes of aggression etc., the Nuremberg principle is regarded as the golden thread in the annals of international legal discourse, the poignant episode of world wars had brought international community to a brink of extinction. The lessons of war era had established The Unite Nation whose primary object was to save the succeeding the generations from the scourge of war. The initial phase of U.N was littered with many debates; the sixth committee of U.N which is the legal committee came to the forefront in development of various branches of International Law. In the same period the International Law Commission played a proactive role in developing of the subject to a new horizon. The period was ripe and it witnessed a tangential growth of criminal law jurisprudence, one such development was the drafting of the ‘Genocide Convention, 1948.’ The United States which actively participated the drafting of the convention denounced the convention citing domestic reasons. Genocide as a crime developed as a full-fledged crime post 1950’s and other developments the global relations had is repercussions in molding the jurisprudence of international criminal law. The U.S prosecutor in the Nuremberg trial Mr. Robert H. Jackson statement is a clear indicative of the stance advanced by the U.S  “unless it’s a war the U.S won’t interfere with the domestic affairs of some other Government” this was translated into crimes against humanity  which apparently could occur only during war time.

One of the challengers that remained unresolved during the drafting of the Genocide convention was the question of universal jurisdiction. The U.S was opposed to the very idea of universal jurisdiction this is quiet palpable in Art. 6 of the Genocide Convention, 1948. By the early 1980’s the law on universal jurisdiction had evolved considerably this is primarily because of certain milestone cases like Adolf Eichmann, Pinochet but in U.S with the verdict in the case of Demjanjuk vs. Petrovsky (6th cir 1985) Universal Jurisdiction was adopted in substance. In the early half of 1990’s George Bush and Margret Thatcher took a page from the book of Nuremberg trial and broached the idea of an international tribunal with jurisdiction over aggression and hostage taking, this was in the backdrop of the infamous hostage crisis in Iran and 1972 Munich disaster. In 1992, international prosecution reemerged with outbreak of the war in Bosnia and Herzegovina, U.S sponsored an resolution (Res.780) which enquired into violation of international humanitarian law and ethnic cleansing.

United States and Drafting of ICC

The United States actively participated the drafting of ICC, one instance is the debate on death penalty. The Arab and Islamic states, Caribbean states where staunchly for death penalty while certain other countries in favor of this.  The question remained a stumbling block for the survival of ICC. The debate was put to rest by the U.S Ambassador David Scheffer whose argument on ‘Complimentarity Principle’ insisting on a national judicial system to prosecute and punish crimes within its jurisdiction including death penalty played a significant role. This is projected under Art.80 of the Rome Statute.

The arguments against the Rome Statute by the United States, is riddled with controversy, the Rome Statute didn’t have Jurisdiction over the right of the citizen of the third state, and this is because question involves State Sovereignty. Another, angle which the U.S put to the forefront in not signing the ICC was the penchant of the U.S for reservation, declarations, proviso, ratification etc, which is proscribed under the Rome Statute courtesy Article. 120, which the United States affirmately believes would transgress the Constitution of U.S.

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International Law

A leader of the third world has to lead a movement for reformation of the International law

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It is by no means a hyper reality that China has accelerated its geo political influence around the world this year despite the criticism of the West on China’s negligence in concealing the COVID 19 at outset. China being one of the permanent members of security council has widely contributed to the UN system. In this single modern global market, the People’s Republic of China has arguably become the manufacturing hub of the world in producing a large number of goods than any other western country, besides that it has also become the world’s second largest importer of goods.  Today the realm of bargaining power in the positivistic international law is completely based in the idea of power politics and the US stands as its cradle beyond a doubt. I would mention America as leader of the first world and China as leader of the third world. As the leader of the western world, the United States relentlessly works for its political, economic and legal dominance, which it has been enjoyed for plenty of years. The third world, which is considered to be the group of states known for its extreme poverty, civil wars, unrest and unemployment, has realized that poverty would become an inevitable obstacle in the process of its development. Mohammed Bedjaoui , who had served as a judge on the International Court of Justice, clearly claimed in his great astonishing work “ Towards a New International Economic Order” that “ It is western exploitation that leads to the poverty of the third world. “The third world pays for the rest and leisure of the inhabitants of the developed world,” and that “Europe created, and the United States has appreciably aggravated, most of the problems which face the third world”.

International law governing the rights and duties of states is perpetually and predominantly being dominated by the first world and its embodiment that is the United States. In this research article, I am going to discuss two essential things which are: what China has to do to reform the west constructed International law and as well as why China should lead a movement of the third world for its reformation?

For knowing these queries, we have to note the origins of International law down and how it works in today’s world?

If we have a look at the brief history of International law, International law has its roots in diverse European civilizations. To say in simple terms, International law is Eurocentric. Natural law which is also considered as a part of International law was developed by ancient Christian thinkers whose ideas were rooted in the Greco Roman ideas on rights and justice, in the due course of time those ideas were imbued with the Catholic theological virtues. However, it was such a sense of sheer irony that ideas such as natural law venerated by the Catholic thinkers were later used to legitimize the colonial expansion in the 16th century. For instance Francesco Vittoria who has been regarded as one of pioneers of modern international law used the very concept of natural law as Spanish justification of its rights over Indian territories in America. Let us turn towards modern International law. Modern International law primarily developed based on two concepts that are the concept of State practice and International treaties.

On the one hand, most of the global scholars perceive the United Nations charter as a founding International treaty of International law that contains rights and duties of states. On the other hand, the third world scholars perceive the United Nations as a founding organization of colonial imperialistic powers. There is a general perception among third world International law scholars that the Security Council of the United Nations is completely dominated and run by the colonial turned imperial powers. Four members out of the five in the Security Council were purely colonial countries who had ruled and economically exploited the world for centuries. The Security Council has also arguably been Eurocentric which is consisted of more western states embodying their own interests. Security Council is the principal organ of the United Nations, which mostly enjoys veto power. Permanent members may use the veto to defend their national interests. Over the years, in history of the Security Council, the United States has used the veto power more than other permanent member for defending west interests including Israeli interests. Most importantly, the third world has no effective role to play and to defend its interests in this globalised world. The colonial super powers met in San Francisco, to establish a predecessor to the League of Nations, have not granted independence to a number of African and Asian countries. Most of the third world countries became independent after establishing the United Nations.

Finally, we reached to the end. I would conclude this article by answering questions that I have put above. The structure of the United Nations is based on the charter of the United Nations, which is considered as a founding document of modern International law.  In this way, the United Nations charter grants more absolute powers to the Security Council where third world countries do not have participation. The leader of the third world China must wage a movement for developing countries to reform the Security Council. China has to collaborate with a group of developing countries for removing global financial power that lies with the Bretton Woods Institutions. Obviously, most of the power lies with the Bretton Woods Institutions, where western nations exercise the power on the rest of the world. So far, third world was exploited. So, the rest of the world outside the west has to demand for new international economic order, which would work for developing states.

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International Law

UN at 75: The Necessity of Having a Stronger & More Effective United Nations

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October 24, 2020, marks the 75th anniversary of the United Nations. In this context, this article investigates the necessity of having a stronger UN for the benefits of the world’s people. In fact, if one looks at the past, the UN came up in 1945 in response to the Second World War for a more stable, secured, and peaceful world. And the UN has been successful to a larger extent to that goals and objectives, many argue. Kofi Annan, the former UN Secretary-General for instance, wrote that ‘The United Nations, with their rules and institutions, are at the heart of the international system. They encourage States to prevent or settle disputes peacefully. The United Nations speaks for the voiceless, feeds the hungry, protects the displaced, combats organized crime and terrorism, and fights disease across the globe’ (Annan 2015).

If one looks at the history, after the Second World War, there are not so many wars on a large scale or conflicts except some bilateral Wars like Vietnam War or Iraq invasion in Kuwait or US invasion in Afghanistan or Iraq or Syrian crisis or Rohingya crisis. One can claim that the present world is more stable and peaceful than the world before the Second World War. Against this backdrop, Ramesh Thakur rightly observes, ‘On balance, the world has been a better and safer place with the UN than would have been the case without it (Thakur 2009:2). And it will not be wrong to claim that the United Nations Security Council (UNSC) is playing a crucial role in this regard, focusing both on ‘hard’ and ‘soft’ security issues. Hard security issues ranges from nuclear threat to international terrorism and soft security issues include human security issues to human rights to international criminal justice and international sanctions (For details see, Thakur, 2009).

The UN is not only concerned about international peace and security but also concerned about economic and social issues. There are several UN organizations e.g. United Nations Development Programme (UNDP), World Food Programme (WFP) or the United Nations High Commission for Refugees (UNHCR) which is involved in socio-economic issues that impact millions of people globally.

First, one can look at the role of the UN General Assembly to understand the necessity of having a more robust UN. It is the core organ of the UN. It is the only organ in which all the member countries are represented all of the time. The role of the UN includes to pass resolutions and to create subsidiary agencies to deal with particular issues (Barkin 2006: 58). UN General Assembly works as a forum where the world’s states meet and discuss the pressing global problems. In this context, Eleanor Albert, Leo Schwartz, and Alexandra Abell write that ‘Since its inception seventy-one years ago, the United Nations General Assembly has been a forum for lofty declarations, sometimes audacious rhetoric, and rigorous debate over the world’s most vexing issues, from poverty and development to peace and security’ (Albert et al. 2016). However, in September 2015, the Assembly agreed on a set of 17 Sustainable Development Goals, contained in the outcome document of the United Nations summit for the adoption of the post-2015 development agenda (resolution 70/1). Notably, the implementation of SDG goals will have broader implications for the world’s people.

In addition, the Assembly may also take action in cases of a threat to the peace, breach of peace or act of aggression, when the Security Council has failed to act owing to the negative vote of a permanent member. In such instances, according to its “Uniting for Peace” resolution of 3 November 1950, the Assembly may consider the matter immediately and recommend to its Members collective measures to maintain or restore international peace and security.

Second, one should also look at the role of the Security Council to make the case of having a stronger United Nations. The UN Security Council is the most powerful security-related organization in contemporary world politics. As the Charter of the United Nations says: ‘the Security Council has primary responsibility for the maintenance of international peace and security (Article 24). The Security Council takes the lead in determining the existence of a threat to the peace or act of aggression. It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of the settlement. In some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security’

In contemporary world politics, the UN Security Council is the most potent security-related organization because it is the only recognized and legitimate international organ which deals with international peace and security. In this regard, Justin Morris and Nicholas J. Wheeler claim that ‘The United Nations Security Council is at the heart of the world’s collective security system’ (Morris and Wheeler 2007: 214). The UNSC play role by passing Resolutions regarding maintaining international peace and security, determining threats to peace and security and finally undertaking peacekeeping operations.

Decisions made by the Security Council are known as the Security Council resolutions. Examples of Security Council resolutions include Resolution 794 (1992), which authorized military intervention in Somalia on humanitarian ground, or the resolution 1325 (2000), which called on states to recognize the role of women in peace, and security and post-conflict situations. In the UN Security Council Working method Handbook, it is noted that the UNSC has adopted over 2,000 resolutions relating to conflict and post-conflict situations around the globe. Another report, titled Repertoire of the Practice of the Security Council noted that between 2008 and 2009, the Security Council adopted  35 out of 65 resolutions in 2008 (53.8 %), and 22 out of 47 resolutions in 2009 under Chapter VII (46. 8 %) concerning threats to the peace, breaches of the peace or acts of aggression. The report also notes about several UN resolutions authorizing United Nations peacekeeping missions. In connection with the mission deployed in the Central African Republic and Chad, the Council approved the deployment of a United Nations military component for the first time in 2009 to follow up operations by the European Union in Chad and Central African Republic (EUFORChad/CAR). The Council continued to authorize enforcement action for United Nations peacekeeping missions in Côte d’Ivoire (UNOCI), Darfur/Sudan (UNAMID), the Democratic Republic of the Congo (MONUC), Lebanon (UNIFIL) and Sudan (UNMIS). This increased number of UNSC Resolutions dealing with international peace and security reinforces its legitimacy and power as a security organization.

The critical question that comes into the forefront is how much UNSC can implement its mandates neutrally or independently in terms of maintaining world peace and security. The critiques bring the example of Iraq war (2003) where UNSC ‘faces a crisis of legitimacy because of its inability to constrain the unilaterally inclined hegemonic United States.’ (Morris and Wheeler 2007:214). Another critical question is the role of UNSC in resolving the long-standing Syrian crisis or the Rohingya refugee crisis.

It is undeniable the fact that UNSC cannot function with its full potentialities due to the challenges and limitations it faces because ‘in their pursuit of raisons d’état, states use whatever institutions are available to serve their interests’ (Weiss 2003: 151). And here comes the politics in the Security Council which is highly manifested in the past. Against this backdrop, Weiss correctly observes, ‘the politics of the UN system- not only the principal organs of UN like Security Council or General Assembly is highly politicized but even ‘technical’ organizations, for instance, World Health Organization or the Universal Postal Union continue to reflect the global division between the so-called wealthy, industrialized North and the less advantaged, developing South’ (Weiss 2009: 271).

It is, therefore, states and particularly the P5 want to use the Security Council as a means to uphold its interest. Gareth Evans rightly points out ‘for most of its history the Security Council has been a prisoner of great power manoeuvring…’ (Evans 2009:Xi).  Hence, using veto by the P5 remains a significant challenge for the UNSC to work in its fullest potentials. In the recent case of the Rohingya refugee crisis, the UNSC is unable to take adequate measures due to veto power used by China and Russia. However, the UNSC is responsible for maintaining world peace and security.

The bottomline is that there is no alternative to having a stronger and more effective UN because it is the only hope for millions of people around the world. The UN is an inevitable international organization in this turbulent world despite its criticism or limitations.Thus, it becomes essential for the P5 nations to think about the broader benefits of the world’s people instead of their narrowly defined interest in the case of using veto power. And the world also needs to acknowledge that the UN reform has been a reality to ensure the neutrality and objectivity of the United Nations for a more peaceful, stable, secured world.

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The United Nations and the Neglected Conflict of Kashmir

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The principle of ‘right of self-determination’ and its applicability to the 72-year-old Kashmir conflict needs to be considered during the 75th session of the Fourth Committee of the United Nations General Assembly that is taking place between October 8 to November 10, 2020 at its headquarters in New York. The Committee will discuss and deliberate the issues related to international conflicts and decolonization. What I do hope to offer is an unstarry-eyed view of the fate of self-determination in Kashmir; and, the indispensability of convincing the United Nations that international peace and security would be strengthened, not weakened, by resolving the Kashmir conflict to the satisfaction of all parties concerned..

The self-determination of peoples is a basic principle of the United Nation Charter, which has been reaffirmed in the Universal Declaration of Human Rights, and applied countless times to the settlement of international disputes.

The concept seems to be as old as Government itself and was the basis of French and American revolutions. In 1916, President Wilson stated that self-determination is not a mere phrase. He said that it is an imperative principle of action and included it in the famous 14-point charter. This gave a prominence to the principle. Self-determination as conceived by Wilson was an imprecise amalgamation of several strands of thought, some long associated in his mind with the notion of “self-determination,” others hatched as a result or wartime developments, but all imbued with a general spirit of democracy.

Self- determination is a principle that has been developed in philosophic thought and practice for the last several hundred years. It is an idea that has caused people throughout the world to rise up and shed the chains of oppressive governments at great risk.

Finally, in 1945 the establishment of the UN gave a new dimension to the principle of self-determination.  It was made one of the objectives, which the UN would seek to achieve, along with equal rights of all nations. Article 1.2 of the Charter of the Untied Nations reads: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”

From 1952 onwards, the General Assembly of the UN adopted a series of resolutions proclaiming the right to self-determination. The two most important of these are resolution 1514 (XV) of 14 December 1960 and resolution 2625 (XXV) of 24 October 1970. Resolution 1514 was seen almost exclusively as part of process of decolonization. 1514 is entitled: Declaration on the Granting of Independence to Colonial Countries and Peoples.”

International Court of Justice considered the several resolutions on decolonization process and noted:  “The subsequent development of International Law in regard to non-self governing territories as enshrined in the Charter of the UN made the principle of self-determination applicable to all of them.”  This opinion establishes the self-determination as the basic principle for the process of de-colonization.

The principle of self-determination in modern times can be defined as the right of peoples to determine their own political status and pursue their own economic, social and cultural policies.  Self-determination in its literal meaning or at a terminological level also implies the right [of a people] to express itself to organize in whatever way it wants. A people must be free to express their will without interference or threat of interference from a controlling authority. This includes alien domination, foreign occupation and colonial rule.

Although, the applicability of the principle of the self-determination to the specific case of Jammu and Kashmir has been explicitly recognized by the United Nations. It was upheld equally by India and Pakistan when the Kashmir dispute was brought before the Security Council. Since, on the establishment of India and Pakistan as sovereign states, Jammu and Kashmir was not part of the territory of either, the two countries entered into an agreement to allow its people to exercise their right of self-determination under impartial auspices and in conditions free from coercion from either side. The agreement is embodied in the resolutions of the United Nations Security Council, explicitly accepted by both Governments. It is binding on both Governments and no allegation of non-performance of any of its provisions by either side can render it inoperative.

It is apparent from the record of the Security Council that India articulated the principle, accepted the practical shape the Security Council gave to it and freely participated in negotiations regarding the modalities involved. However, when developments inside Jammu & Kashmir made her doubt her chances of winning the plebiscite, she changed her stand and pleaded that she was no longer bound by the agreement. Of course, she deployed ample arguments to justify the somersault. But even though the arguments were of a legal or quasi-legal nature, she rejected a reference to the World Court to pronounce on their merits. This is how the dispute became frozen with calamitous consequences for Kashmir most of all, with heavy cost for Pakistan and with none too happy results for India itself.

By all customary moral and legal yardsticks, 23 million Kashmiris from both sides of the Ceasefire Line (CFL) enjoy a right to self-determination. Kashmir’s legal history entitles it to self-determination from Indian domination every bit as much as Eritrea’s historical independence entitled it to self-determination from Ethiopian domination.

India’s gruesome human rights violations in Kashmir also militate in favor of self-determination every bit as much as Yugoslavia’s human rights violations and ethnic cleansing created a right to self-determination in Bosnia and Kosovo. Kashmir’s history of social and religious tranquility further bolsters its claim to self-determination every bit as much as East Timor’s history of domestic peace before Indonesia’s annexation in 1975 entitled it to self-determination in 1999.                                   

If law and morality are overwhelmingly on the side of Kashmiri self-determination, then why has that quest been thwarted for 72 years? The answer is self-evident: the military might of India. India is too militarily powerful, including a nuclear arsenal, and too economically mesmerizing to expect the United States, the United Nations, NATO, or the European Union to intervene. The United States is reluctant to exert moral suasion or pressure to prod India because it covets more India’s alluring economic markets and collaboration in fighting global terrorism.  Further, the size and wealth of the Indian lobby in the United States dwarfs the corresponding lobbies supporting Kashmir.  

The world powers need to understand that there is no way the dispute can be settled once and for all except in harmony with the people’s will, and there is no way the people’s will can be ascertained except through an impartial vote. Secondly, there are no insuperable obstacles to the setting up of a plebiscite administration in Kashmir under the aegis of the United Nations. The world organization has proved its ability, even in the most forbidding circumstances, to institute an electoral process under its supervision and control and with the help of a neutral peace‑keeping force. The striking example of this is Namibia, which was peacefully brought to independence after seven decades of occupation and control by South Africa; East Timor and Southern Sudan, which got independence only through the intervention of the United Nations. Thirdly, as Sir Owen Dixon, the United Nations Representative, envisaged seven decades ago, the plebiscite can be so regionalized that none of the different zones of the state will be forced to accept an outcome contrary to its wishes.

In conclusion, a sincere and serious effort towards a just settlement of the Kashmir dispute must squarely deal with the realities of the situation and fully respond to the people’s rights involved in it. Indeed, any process that ignores the wishes of the people of Kashmir and is designed to sidetrack the United Nations will not only prove to be an exercise in futility but can also cause incalculable human and political damage.

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