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Validity of Reservations of Bangladesh against Article 2 of CEDAW

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One of the greatest victories for the post-modern feminist movement in the arena of International Law was the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW, hereinafter, the Convention). Often termed as the harbinger of an alternative understanding of the feminist cause going beyond the Human Rights regime, the Convention heralded the greatest possible change in the Status of women, recognized internationally. Often regarded as the International Bill of Rights for Women, CEDAW is a comprehensive treaty on the rights of women and establishes legally binding obligations on the State Parties to follow the legal standards set by it to end discrimination against women by achieving equality between men and women. (Tackling Violence against Women, London School of Economic Blog)

Despite the theoretical attempts at establishing an equal society, for most part of the World, the coverage of the Convention is minimal. This is mostly because of the ‘reservations’ made by member States in the name of personal laws often originating in their religious set up. The personal laws in their very inception are rooted in the ideas of patriarchy, dominance of men, and lesser roles for women. Many instances from the sources of these personal laws would prove that men are in charge of women and hence can direct their personal spheres. These discriminatory personal laws are protected even in the most advanced constitutional setups either through a document or a bill of rights within the purview of Right to Religion. As a consequence, many countries in order to show their neutrality towards the concept of Religion and to establish the beautiful ideals of secularism tend to overlook the discrimination these religious laws preach.

In the current Article, the researcher provides an analysis as to what kind of reservations are permitted under the CEDAW, and how Bangladesh completely misunderstood its qualified right of Reservations, as an absolute right and established an anomaly, which doesn’t merely contradict its international commitments but also the fundamental principles of the Constitution of Bangladesh.

Concept of Reservations to Treaties

The existing ambiguities in the treaty reservations law have often led to irregularities and illegalities in law. In 1969 the Vienna Convention on the Law of Treaties was adopted to codify practice and provide legal guidance on the meaning of reservations and a uniform procedure for entering them. The Vienna Convention provides that reservations may not be made that are “incompatible with the object and purpose of the treaty.” (Vienna Convention on the Law of Treaties (23 May 1969), Entered into force 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331.) This provision raises as many questions as it answers, as the Vienna Convention does not define “object and purpose,” nor does it indicate what body has the power to determine validity. The Vienna Convention also provides for state parties to object to a reservation within twelve months of its entry. However, objections do not dispose of the question of validity, although some states have objected to reservations to CEDAW on the ground of invalidity. In 1994,M. Alain Pellet, the Special Rapporteur on Reservation to treaties, addressed various aspects of the reservation issues. The most significant for purposes of dealing with CEDAW and other human rights treaties is his discussion of reservations to “normative” treaties. The international human rights treaties differ from most other treaties in that their implementation is monitored by bodies that are established by the terms of the respective treaties. (Human Rights Committee, General Comment No. 24 on Reservations, CCPR/C/21/Rev.1/dd.6 (November, 1994), republished as HRI/GEN/1/Rev.6.) Despite establishments of treaty bodies, within the framework of treaties, who hold authority to judge any reservations on its merits, all these bodies have had issues with reservations.

The Convention permits ratification subject to reservations. Some state parties that enter reservations to the Convention do not enter reservations to analogous provisions in other human rights treaties. A number of states enter reservations to particular articles on the ground that national law, tradition, religion or culture are not congruent with Convention principles, and purport to justify the reservation on that basis. (Reservations to CEDAW, Available at: http://www.un.org/womenwatch/daw/cedaw/reservations.htm, accessed on 6/10/2019).Article 28 (2) of the Convention adopts the impermissibility principle contained in art. 19 (c) of the Vienna Convention on the Law of Treaties. The impermissibility principle states that any reservation which is incompatible with the object and purpose of the treaty shall be invalid. The CEDAW Committee considers art. 2 as the core provision of the Convention. The Committee holds the view that art. 2 central to the objects and purpose of the Convention and as a consequence its importance cannot be neglected. States parties which ratify the Convention do so because there exists an agreement between all the states that any form of discrimination against women in all its forms should be condemned and that strategies set out in art. 2, should be implemented by States parties to eliminate it. How far the traditional, religious or cultural practice, incompatible domestic laws or other policies can justify violations of the Convention, needs some thorough scrutiny.

Fundamental Rights under the Constitution of Bangladesh

Article 7 of the Constitution of Bangladesh, 1972 refers to Supremacy of Constitution and all powers to be exercised in consonance with the same, as it manifests the will of the people of the Republic. The Constitution also guarantees various fundamental rights to its citizens and explicitly states than any law inconsistent with the Fundamental Rights shall be void. The Constitution also promotes equality (art. 27, Constitution of Bangladesh) and prohibits any form of discrimination against women in all spheres of state and in the public life (art. 28(2) Constitution of Bangladesh). Despite these provisions proclaiming equality and non-discrimination against women in the law of the land, Bangladesh holds reservations against art. 2 of the Convention, which, as already discussed above is crucial for the objects and purposes of the Convention. The ground, as repeatedly claimed by Bangladesh, for such reservation is that these provisions contradict the Sharia Law based on Holy Quran and Sunnah. As a response to this, neither the Committee nor any State party has belaboured the issue. Bangladesh withdrew the reservations to Articles 13(a) and 16 (1) (f) of the Convention in 1997 but has not withdrawn the Article 2 and Article 16 (1) (c). The Committee has continued to press on the question of withdrawing the remaining reservations, however mostly unsuccessfully.

Periodic Committee Reports at a glance

Soon after the ratification of the treaty, in 1996 the Ministry of Women and Children’s Affair constituted an inter-ministerial committee to review the reservations to the Convention. The report of the Committee reaffirmed the supremacy of the law, and stated that Bangladesh doesn’t have Sharia Law as such rather certain provisions have been codified into legislation. Also, the report suggested that the provisions of Sharia are not immutable and hence can be reinterpreted as per need of time. (Committee on the Elimination of Discrimination against Women, Third and Fourth Report of State Parties: Bangladesh, CEDAW/C/BGD/3-4 p 26 (April 1, 1997)).

Again in 2004, during the 31st session of the CEDAW, in its fifth report the Bangladeshi representative asserted their intention to withdraw all the reservations. The Committee was gratified to hear that Bangladesh intended to withdraw its reservations to the Convention in the near future. In doing so, it would ensure the effective implementation of the Convention and send a significant message to other Muslim nations. (Committee on the Elimination of Discrimination against Women, Fifth Report (Continued), Summary Record of 654 Meeting, CEDAW/C/BGD/5, para 61, (July 9, 2004))

Regarding the optional protocol, Dubravka Šimonović, Special Rapporteur on Violence against Women, observed, although Bangladesh had ratified the Optional Protocol to the Convention, its reservations to articles 2 and 16.1 (c) effectively meant that the Optional Protocol was not applicable regarding certain rights provided for in the Convention. She remarked that the Bangladeshi delegation had stated that the Government was gradually taking steps to implement the equal rights guaranteed to men and women under the Constitution, and she would appreciate knowing why that was the case, since those rights should be granted, not on a gradual basis, but immediately. (Convention on Elimination of All forms of Discrimination Against Women, 5th Periodic Report: Bangladesh, Summary Records CEDAW/5/SR.653 (12th August 2004)) The fifth periodic report also focused on the ongoing role of NGOs and other Civil Societies stating their lobbying efforts and advocacy attempts to remove reservations from the Article 2 and 16.1 (c).

Most recently, the 8th Periodic Report submitted in 2016, recalled the importance of Law Commission (hereinafter, LC) reports, which is a statutory body empowered to recommend enactment, amendment or repealing of laws relating to fundamental rights and values of society. Since 2009, the LC has suggested reform of laws for the promotion of human rights, including prevention of sexual harassment in educational institutions and workplaces, prevention of violence against women, protection of victims and witnesses to grave offences, reform of Hindu family laws and the withdrawal of reservation on the two Articles (2 and 16.1(c) of CEDAW. (Convention on Elimination of All Forms of Discrimination Against Women, 8th Periodic Report: Bangladesh, May 2015) In the report, the Bangladeshi representative submitted that the Government is aware about the potential movements by the Islamic fundamentalist groups against the withdrawal of the reservations. Therefore, cautious steps are being taken so as not to jeopardize application of the principles of CEDAW. Partnership and cooperation with civil society is essential to create a positive environment for the withdrawal of reservation.

The abovementioned constitutional provisions and periodic reports show that despite being an equal society, at least constitutionally, the abovementioned reservations appear highly mis-founded as they can essentially have only two understandings- first, Sharia is inherently discriminatory against women; Second, Bangladesh has wrongly appreciated and understood Sharia, which has misguided such reservations. While the first one could not be agreed for most of its part, as 29 out of 57 members of Organization of Islamic Cooperation (OIC), with Sharia law in force, have ratified the treaty without any reservations. When it comes to Second observation, then it can be affirmatively said that the Bangladeshi reservation is rooted in the wrong conception of its own religious conceptions and practices. Various reports suggest that the Sharia is not immutable and such changes can be made as per the needs of time. This can be regarded as one of the most important times where call for such amendments in the Bangladeshi understanding and interpretation of Sharia Law as the crime against women in the South Asian region is on all-time high. (See Media Report)

Concluding Remarks

In light of the above-mentioned facts it becomes imperative to understand the prospects of such reservations both in law and in practice along with the methods of tackling the existing obstacles in the implementation of women centric legislations. While Bangladesh has accepted the irregularity of its reservations to the CEDAW in every periodic report submitted to the CEDAW, yet any action for the withdrawal of the same is still an implausible idea because of the pressure on the Government exerted by fundamentalist groups active in Bangladesh. As the reservation contradicts various provisions of the Constitution of Bangladesh like Articles 26, 27, 28, 29, etc, they are inherently invalid. But despite the vehement oppositions from various NGOs and civil societies to the reservations, no such remark has yet been made by the judiciary of Bangladesh. Along with reiteration of supremacy of constitution over sharia law, it is necessary for the courts to remove the divide between public and private spaces. While private spaces are completely untouched by the State, it is imperative that the manifestations of such personal practices which become social factors should be regulated. Alternatively, reading the reservation invalid within the purview of Sharia Law can be another plausible task that the Government can undertake. Taking into consideration the examples of other Islamic nations, which have no reservations against the CEDAW, can also be beneficial to the withdrawing of reservation procedure. These exemplified and exalted examples of law in other Islamic nations which don’t have reservations can help Bangladesh cope up with the resistance to the withdrawal by the fundamentalist forces.

Regarding reservations of Bangladesh, it can be concluded that they are highly misplaced because of inherent problem in their conception. States are required to be proactive in adopting laws and policies to eliminate discrimination against women and in attempting to modify or abolish discriminatory “customs and practices.” As the article lays out the fundamental requirement to comply with all articles of the Convention in the State party’s constitution, statutes, and policies, it is imperative for Bangladesh to withdraw the same.

Samarth Trigunayat is LLM graduate from South Asian University, New Delhi. South Asian University was established by SAARC member nations to enhance cooperation between the member states through the tool of education. The author is currently employed as Young Professional (Law) at Ministry of Commerce, Government of India. The author has previously worked as Assistant Professor at Faculty of Law, Shree Guru Gobind Singh Tricentenary University, Gurugram, India. His area of interest includes International Trade Law, International Investment Law, Feminist Jurisprudence and Constitutional Law. The author can be reached at: lawyer.samarth[at]gmail.com

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International Law

Fundamental legacy of The Nuremberg and Tokyo Trials (1945-1948)

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These – rather unfortunate – days some voices in Europe are trying, in a quite a historical fashion, to question the very fundaments of the antifascist legacy. Dangerous and highly destructive equitation attempts are on the way. Still, this legacy is what finally made the Old continent human and peaceful – a role model to admire and for the rest of us to follow.

These regrettable equitations make it worth to revisit the Nuremberg and Tokyo trials, which are essential pillars of the Human Rights charter brokered right after under the OUN auspices. Consequently, a very legacy of these trials is extraordinary and far reaching. It represents a core building material of the house called Modern Europe – something that the Director of International Institute IFIMES, Dr. Zijad Becirovic repeatedly stresses in his media appearances, as one of the bold but rather are voices of the right direction and historical responsibility awareness today.

Conclusively, the importance of tribunals is hard to overstate. Its reaffirmation today is needed like never since the very end of the WWII.

Noam Chomsky once said, “For the powerful, crimes are those that others commit.” This was not the case for Germany and Japan post-World War II. The victorious Allied powers established the first international criminal tribunals to prosecute political and military officials for war crimes and other atrocities committed during wartime. The four major Allied governments; the United States, the United Kingdom, France, and the Soviet Union, set up the International Military Tribunal (Nuremberg trials) in Nuremberg, Germany, to prosecute and punish the major war criminals of the European Axis.

The tribunal presided over a combined trial of senior Nazi political and military leaders, as well as several Nazi organizations. The less-recognized International Military Tribunal for the Far East was created (Tokyo trials) in Tokyo, Japan, following the 1946 proclamation by Supreme Commander for the Allied Powers, U.S. Army General Douglas MacArthur. The tribunal presided over a series of trials of senior Japanese political and military leaders to prosecute and punish Far Eastern war criminals. The Nuremberg and Tokyo trials differed in several important aspects including their origins, compositions, and jurisdictions.

The Allied powers established the policy that international tribunals in Europe and in the Far East after World War II would focus on, most importantly, a decision on individual criminal liability for crimes against peace. The Allied governments, and specifically the United States, sought after this policy as a solid step toward organizing an international legal system for discouraging future aggressors and averting the sort of war devastation that the Axis aggression had caused. This US-enlivened policy, first presented at Nuremberg, was repeated and pursued precisely at Tokyo. Luc Reydams and Jan Wouters argued that “The Nuremberg and Tokyo Charters were drafted by a handful of statesmen from the highest echelons of government for whom an international tribunal was not a goal unto itself, but a means to a very specific end.”[1] The Tokyo Charter, necessitated that the principal charges against the defendants be crimes against peace while deeming charges on war crimes and crimes against humanity as discretionary. Therefore, a great part of the court battles at Tokyo rotated around substantiating aggressive war charges, despite the fact that proof of Japanese wartime atrocities was, truth be told, likewise exhibited.

In June 1945, the day of the signing of the United Nations Charter at the San Francisco Conference, delegations of the United States, the United Kingdom, France, and the Soviet Union, negotiated in London on the regulating principles for prosecuting war criminals. It is noteworthy that the respective heads of these delegations; Robert Jackson, David Maxwell Fyfe, General I.T. Nikitchenko, and Robert Falco later served in notable roles at the International Military Tribunal. Meeting in Potsdam to discuss the future of Germany and Europe, Truman, Churchill, and Stalin affirmed the London talks.

In August 1945, the four major Allied governments signed the 1945 London Agreement, which established the International Military Tribunal. The Charter of the International Military Tribunal was adjoined to the London Agreement and defined the tribunal’s constitution, functions, and jurisdiction[2]. One judge from each of the Allied governments formed the Nuremberg tribunal, the Allied powers also supplied a team of prosecutors. The Nuremberg Charter also provided that the International Military Tribunal had the authority to prosecute and punish persons who committed any of the following crimes: Crimes Against Peace (planning and making war), War Crimes (responsibility for crimes during war), Crimes Against Humanity (racial persecution), and Conspiracy to Commit other Crimes.

The tribunal held its opening session in the Palace of Justice in Nuremberg, and the trials lasted from November 1945 to October 1946. Twenty-two Nazi political and military leaders were indicted, including Hermann Goering, Rudolph Hess, Joachim von Ribbentrop, Alfred Rosenberg, and Albert Speer. The tribunal found nineteen individual defendants guilty and sentenced them to punishments that ranged from death by hanging to fifteen years of imprisonment. Three defendants were found that they are not guilty, one committed suicide before the trial, and one did not stand trial due to physical or mental illness.

Unlike the International Military Tribunal, the International Military Tribunal for the Far East was not created by an international agreement, but it nonetheless emerged from international agreements to prosecute Japanese war criminals.[3] In July 1945, the United States, the United Kingdom, and China signed the Potsdam Declaration, in which they stated that “We do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners. The Japanese Government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established.[4]” and urged the Japanese government to, “proclaim now the unconditional surrender of all Japanese armed forces, and to provide proper and adequate assurances of their good faith in such action.[5]” The war in Europe had ended but the war with Japan was continuing at the time the Potsdam Declaration was signed. Nonetheless, the Potsdam Declaration was not signed by the Soviet Union because it did not declare war on Japan until the United States dropped the second atomic bomb on the city of Nagasaki.[6]

Japan surrendered on the 14th of August 1945, six days later. Officials of the US State Department leaned toward holding an intergovernmental conference to establish special international tribunals, but the State-War-Navy Coordinating Committee came up with the plan to use the power of the Supreme Commander of the Allied Powers, General Douglas MacArthur,  mindful of the experience with the London Conference where Justice Robert Jackson had enormous difficulty coming to an agreement with other delegations on the Nuremberg Charter.

At the following Moscow Conference, held in December 1945, the United States, the United Kingdom, and the Soviet Union with affirmation from China agreed to a basic structure to occupy Japan. General MacArthur was granted authority to “issue all orders for the implementation of the Terms of Surrender, the occupation and control of Japan, and all directives supplementary thereto.[7]

In January 1946, General Douglas MacArthur issued a special proclamation to establish the International Military Tribunal for the Far East. The Charter for the International Military Tribunal for the Far East was adjoined to the proclamation. Similar to the Nuremberg Charter, it outlined the composition, functions, and jurisdiction of the tribunal. The Charter provided for General Douglas MacArthur to assign judges to the International Military Tribunal for the Far East from the countries that had signed Japan’s instrument of surrender: Australia, Canada, China, France, the Netherlands, the Soviet Union, the United Kingdom, and the United States, as well as British India and the Philippines. Each of these countries also had a team of prosecutors. As with the International Military Tribunal, the International Military Tribunal for the Far East had jurisdiction to prosecute individuals for Crimes Against Peace, War Crimes, and Crimes Against Humanity[8]. However, the International Military Tribunal for the Far East had jurisdiction over crimes that occurred over a greater period of time, from the Japanese invasion of Manchuria in 1931 to Japan’s surrender in 1945.

The International Military Tribunal for the Far East oversaw the prosecution of twenty-five Japanese political and military leaders. The Emperor of Japan Hirohito and other members of the imperial family were not indicted. In fact, the Allied governments allowed Emperor Hirohito to retain his position on the throne, albeit with diminished status. The trials took place from May 1946 to November 1948. The International Military Tribunal for the Far East found all defendants guilty and sentenced them to punishments ranging from death to seven years’ imprisonment.

The Nuremberg and Tokyo trials contributed significantly to the development of international criminal law and served as models for a new series of international criminal tribunals[9] that were established in the 1990s. Moreover, the reference to “crimes against peace,” “war crimes,” and “crimes against humanity” in the International Military Tribunal Charter represented the first time these terms were used and defined in an international instrument. These terms and definitions were also adopted in the Charter of the International Military Tribunal for the Far East, and have been depicted and expanded in a succession of international legal instruments since that time. The conclusions of the Nuremberg trials also served as models for the Genocide Convention 1948, the Universal Declaration of Human Rights 1948 and paved the way for the establishment of the International Criminal Court.

In conclusion, the Nuremberg and Tokyo trials legacy itself is extraordinary, and its importance is hard to overstate. Nuremberg and the international community’s experience with the ad hoc tribunals demonstrate that international justice doesn’t have to be perfect to be good. Holding up Nuremberg to an impossible, imagined standard is neither fair nor productive.

We cannot forget that the Nuremberg and Tokyo trials and, fifty years later, the establishment of the International Criminal Court aimed to safeguard peace in all regions of the world. The achievements of these great trials in elevating justice and law over inhumanity and war give promise for a better tomorrow by paving the way to deal with international crimes. Furthermore, the international system has made huge contributions to the birth and development of modern international law.


[1]Reydams, L., Wouters, J., &Ryngaert, C. (2012). The Politics of Establishing International Criminal Tribunals. International Prosecutors, 6–80.

[2] Bard, M. G. (2002). The Nuremberg trials. San Diego, CA: Greenhaven Press.

[3]Piccigallo, P. R. (2011). The Japanese on Trial: Allied War Crimes Operations in the East, 1945-1951. Austin: University of Texas Press.

[4]Carnegie Endowment for international peace. (n.d.). The Potsdam declaration: August 2, 1945. New York.

[5]See as in reference 2.

[6]See as in reference 1.

[7]Taulbee, J. L. (2018). War Crimes and Trials: A Primary Source Guide. Santa Barbara, CA: ABC-CLIO, LLC.

[8] United Nations, International Military Tribunal for the Far East (Tokyo Charter).

[9] The former Yugoslavia in 1993 and Rwanda in 1994.

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International Law

When Life Imitates Art

Arlene J. Schar

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Authors: Arlene J. Schar and Dr. David Leffler*

The movie Wag the Dog was released a generation ago, one month before a presidential scandal which invited comparisons between that film and the reality of that time. Now, 23 years later, we find ourselves in the midst of yet another presidential scandal; one which has made this movie once again relevant to our times.

The premise, which hits uncomfortably close to home, is about a war fabricated to deflect attention from a president’s indiscretions. War is described as “show business” with all the trappings: slogans, nicknames, theme songs, and even merchandizing to show solidarity; all orchestrated by a media intent on projecting a party’s “alternate reality” on an unsuspecting public.

However war, whether fabricated or not, is serious business and there are casualties. Iran has recently admitted to unintentionally shooting down a Ukrainian passenger jet, blaming human error and “US adventurism” for the crash. Human error can happen, and can be especially heightened during times of war. 176 lives were lost from this particular error; how much greater would have been the loss of life if this were on a nuclear scale.

The 2014 Danish documentaryThe Man Who Saved the World tells the story of Stanislav Petrov, a former lieutenant colonel of the Soviet Air Defence Forces and his role in preventing the 1983 Soviet nuclear false alarm incident from leading to nuclear holocaust. Thankfully in this case human error was successfully averted. 

Human error is something that will always be present; and so we have to ask ourselves: is it worth it, to life and to our planet, to entrust such terrible war-making forces to fallible humans? The obvious answer is no, and yet we do. What can we do to change our ways, to guarantee our safety in an uncertain world?

In an ideal world, there would be no enemies, hence no war: war would be prevented by militaries before it occurs – Victory before War. There is a little known scientifically proven way to accomplish this, by using a brain-based technology known as Invincible Defense Technology (IDT). IDT incorporates non-religious advanced techniques of Transcendental Meditation (TM) which, when practiced twice a day in large groups, has the effect of raising the consciousness of all those within its field. 

Extensive peer-reviewed scientific research has repeatedly confirmed that when large groups of experts practice these advanced techniques together, a powerful field effect is generated which affects the surrounding population. This results in measurable decreases in war deaths, terrorism, and crime whenever IDT is utilized.

IDT was previously utilized in Washington D.C. over a two-month period in the summer of 1993, where 4000 meditators gathered for an experiment to lower crime. The result, as documented by an independent board of criminologists, was a 24 percent reduction in criminal violence. This profound reduction in social stress also influenced the public approval of the US president, which suddenly changed from a negative trend to a positive trend, as predicted (Reference: Social Indicators Research, 1999, 47: 153-201).

A study published in May 2019 in Studies in Asian Social Science6(2), 1-45, found that IDT implementation by students trained in the advanced TM techniques resulted in a 96% decline in sociopolitical violence in war-torn Cambodia as compared to violence in the preceding three years.

The Global Union of Scientists for Peace (GUSP) advocates IDT as a cost-effective, simple means to rapidly reduce the societal stresses held to be the underlying cause of terrorism and war.

Military and civilian groups in South America, Africa, and parts of Asia are currently field-testing this approach by creating Prevention Wings of the Military, using IDT to reduce crime, quell violence, create prosperity, prevent the rise of enemies, and create the conditions for lasting peace. 

No nation can afford another war, and no country can feel safe as long as nuclear weapons are available to be deployed, whether intentionally or by human error. It is time for all of us to consider embarking on a new course of action, utilizing IDT to raise the global consciousness so that positive solutions can be found which do not involve war.

Because our next war may well be our last.

*Dr. David Leffler served as an Associate of the Proteus Management Group at the Center for Strategic Leadership, US Army War College. Currently, he serves as the Executive Director at CAMS.

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International Law

Applicability of international law for justice: Remarks on Ukraine International Airlines Flight 752

Punsara Amarasinghe

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Authors: Punsara Amarasinghe and Esshan Jayawardane*

The pandemonium erupted following Soleimani’s death seems to have encircled the embattled regime in Iran after admitting that Ukrainian flight was shot down by their force with 176 people on board. The protestors who chanted death to America at Soleimani’s funeral changed their tune when they realized the government they reverently supporting has lied to them about the cause of the air crash as a technical failure. A week after the tragedy Teheran has openly claimed that air crash was a result of human failure as a missile operator misidentified it as a cruise missile after Iran launched missiles to the US airbases in Iraq. In the meantime, Canadian prime minister Justin Trudeau’s persistent remarks on demanding justice for the victims has caused an uproar amid the tension. Indeed, 74 victims on board happened to be Canadians albeit they were either ethic Iranians or with Iranian origin. This situation raises some concern whether Canada, Sweden, Ukraine and the UK seek some judicial remedy under international law for Iran’s act of shooting down an aircraft which carried its citizens. This situation is a sheer reminder of what exactly happened in 1988 when Iranian flight was shot down by the US Vincennes, a missile cruiser of the US navy in the Persian Gulf. In the situation in 1988, Iran filed a case against the US in International Court of Justice and within the time limit fixed for the filing of its counter memorial, the USA raised preliminary objections to the jurisdictions of the court. However, both parties later entered into an agreement in a full and final settlement resulting in the closure of the case in the ICJ.

From a vantage point, the ability for Canada or other affected states to apply international law to seek justice should be mainly understood by examining the current international law measurements covering the civil aircraft. The Convention on International Civil Aviation16 (Chicago Convention) is the core document regulating international civil aviation. Its governing body, the International Civil Aviation Organization (ICAO) is responsible, amongst other duties, for minimum standards of flight safety. Iran has signed and ratified the convention, hence remained legally obliged to uphold it. It’s Article 3 has explicitly stated “The contracting states must refrain from resorting to the use of weapons against civil aircraft and in that case of interception, the lives of persons on board and safety of aircraft must not be endangered. Secondly, the Montreal Convention for the Suppression of unlawful Acts against the safety of Civil Aviation remains the other necessary black letter legal mechanism available in international law.

Also, the UN charter being the zenith of international law has framed certain conditions regarding the use of force. In particular, its Article 2 (4) requires all member states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” It is assumed that the use of force against a foreign civil aircraft, even within the boundaries of a nation state triggers international law in that it constitutes a “use of force” within the meaning of the above rule. In the case of the Iranian shot down of the Ukrainian flight, the issue of “Self-defense “arises as it occurred amid an escalating situation followed by Solemani’s assassination by the US Drones and Iranians military response to it. If Canada triggers international law to seek justice for its lost citizens, Iran is likely to rely on the Article 51 of the United Nations Charter which verifies member states inherent rights for the self-defense. However, it is important to consider that yardstick behind the applicability of “Self Defense “is rather subtle.  Especially, the justification of applying “self-defense “has been generally referred to the situation of “imminent threat “.  Even before the creation of Article 51 in the UN Charter, the scope of imminent threat was discussed as a complex issue in the early development in the 19th century international law. As an example in the Famous Caroline test affair between the USA and Great Britain, American statesman Daniel Webster described the imminent threat as “instant, overwhelming and leaving no choice of means and no moment for deliberation”. Given the scenario that flight was shot down just hours after Iran attacked two US bases in Iraq, the salient contention that one can raise is that Iranian missile operator’s deadly mistake of misidentifying the Ukrainian plane as an American missile ended up in a calamity. Nevertheless, there was no clear claim to build an imminent threat from a civil aircraft. Yet, the claim made by Teheran has affirmed shooting down of the flight was a result of human error or otherwise a mistake. The availability of remedial solutions for mistakes in international law are tiny and depends on the specific circumstances.  In this particular situation liability of Iran appears to be more severe than the claim it yields by justifying the act as a result of a grave mistake. The initial Iranian attempt to obstruct the investigation in the aftermath of the air crash and its deceptive act of portraying the air crash as a result of a technical error intensifies the culpability. More importantly plane would have never met its ill fate if Iranian authorities closed down its air space on that day knowing well that hostilities with the US can easily escalate following their missile strikes. This situation upsets Iranian claim of a sincere mistake caused the tragedy as the given factors aptly show even if the mistake was an honest one, the acts Iranian state which paves the path to the catastrophic event were not reasonable. 

All in all, the most less troublesome answer that can help Iran before any possible international law claim by Canada, Ukraine, Sweden or Great Britain is to admit the liability as a state and frame the reparations for those lost lives of individuals. The act of conducting a fair investigation, providing reparation and more importantly the unconditional apology as a state can avert Iran from further diplomatic isolation as a pariah state. 

*Eshan Jayawardane is an independent researcher resides is Napiers, New Zealand. He completed his BA in Delhi University and completed his MA in International Relations at Jawaharlal Nehru University in New Delhi, India. He can be reached at eshan.jayawardena[at]gmail.com.

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