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701. The Rise of International Criminal Law: Intended and Unintended Consequences

Author:
Kenneth Anderson
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even 'crowded' other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.
Topic:
United Nations and Law

702. The Use of Force against Terrorists

Author:
Christian J. Tams
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
Whether states can use force against terrorists based in another country is much discussed. The relevant provisions of the UN Charter do not provide a conclusive answer, but have to be interpreted. The present article suggests that in the course of the last two decades, the Charter regime has been re-adjusted, so as to permit forcible responses to terrorism under more lenient conditions. In order to illustrate developments, it juxtaposes international law as of 1989 to the present state of the law. It argues that the restrictive approach to anti-terrorist force obtaining 20 years ago has come under strain. As far as collective responses are concerned, it is no longer disputed that the Security Council could authorize the use of force against terrorists; however, it has so far refrained from doing so. More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.
Topic:
Security, Development, International Law, Terrorism, and United Nations

703. The United Nations Convention Against Torture. A Commentary • Commentary on the Rome Statute of the International Criminal Court. Observers' Notes, Article by Article

Author:
Alexander Orakhelashvili
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
It is indisputable that the fight against impunity for the perpetrators of serious international crimes is a fundamental policy of the international community. As the International Court of Justice emphasized in the Arrest Warrant case, the functionally and temporarily limited immunity of the foreign minister of the Congo was not the same as according impunity to that official, because the number of ways of prosecuting him remained intact ( Arrest Warrant of 11 April 2000, Merits, General List No. 121, 14 February 2002, paras 60 – 61). The efforts to combat impunity for the perpetrators of serious crimes are conducted by two methods. The first method relates to establishing international tribunals, which has been the case since the Nuremberg and Tokyo Tribunals in the aftermath of World War II. This method is limited, because international tribunals necessarily have limited jurisdiction. They cannot address the problems of impunity in general, but only those aspects of it which are covered by their mandate as specified in their statutes. Even if this mandate is quite general, as is the case with the International Criminal Court (ICC), the actual extent to which impunity will be combatted still depends on the voluntary decision of states to become party to the Statute. The second method reflects the limited nature of international criminal tribunals. The remaining problems of impunity are addressed through the exercise of jurisdiction by national courts. This is reflected in the fact that the multiplication of international criminal tribunals over the past 15 years has not caused any decline in the activities of national courts in this field. Quite the contrary; the growth of international criminal jurisdiction has been accompanied by the equally remarkable growth of national criminal jurisdiction to address international crimes, including those committed extraterritorially.
Topic:
United Nations and War
Political Geography:
Democratic Republic of the Congo and Tokyo

704. The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values

Author:
Pasquale De Sena and Maria Chiara Vitucci
Publication Date:
02-2009
Content Type:
Journal Article
Abstract:
The recent case law of various international tribunals facing questions related to UN Security Council resolutions shows the clear tendency to grant primacy to the UN legal order. This trend, far from being well founded on formal arguments, appears to be a tribute to a legal order perceived as superior, and, at the same time, is revealing of the 'value oriented' approach followed by the courts. Such an approach can be categorized from a theoretical perspective in the light of Scelle's theory of relations between legal orders, whereby the courts implement in their respective legal orders values stemming from the UN legal order. Various critical remarks can be advanced in relation to this attitude. Basically, when different legal values are at stake, the need arises to strike a balance between them, as the ECJ has recently done in the appeal decision in the Yusuf and Kadi cases. Such a tendency, if consistently followed, could serve as a valuable instrument to find the correct equilibrium between the security interest and the need for respect of human rights.
Topic:
Security, Human Rights, and United Nations
Political Geography:
Europe

705. Canaries in the Cooling Tower

Author:
Charles A. Duelfer
Publication Date:
07-2009
Content Type:
Journal Article
Journal:
The National Interest
Institution:
Center for the National Interest
Abstract:
IN LIGHT of the costly tragedy in Iraq, some have commented that inspections would have been an alternative to war. They were not. It was not that simple. Moreover, even with the most intrusive and extensive inspection system ever implemented, we still did not know the extent of Iraq's WMD capacity. Arms inspections are no substitute for war or political compromise, or good independent intelligence. Too often, too many have expected too much from such mechanisms. Inspections are not a goal in themselves. As the urgency and perils of North Korean and Iranian nuclear programs continue to escalate unchecked, attention repeatedly turns to inspections as the remedy of all ills. Yet, the invasiveness of the Iraq inspections was unique. We will never again be able to cajole another country to the extent we did Baghdad. And still we see the limits that even these intrusive inspections had. But, there are untold lessons to be learned from this bizarre case. More than anything else it goes to show that, in spite of their failings, inspections have a purpose and can be wielded to gain information and to deter WMD programs.
Topic:
Security, Government, and United Nations
Political Geography:
Iraq and North Korea

706. Using Indicators to Encourage Development? Lessons from the Millennium Development Goals

Author:
Richard Manning
Publication Date:
01-2009
Content Type:
Working Paper
Institution:
Danish Institute for International Studies
Abstract:
The Millennium Declaration included a highly significant innovation – universal, support by the world's governments for a short list of development results to be, achieved by a set date. As the target year of 2015 approaches, the paper compares the, MDG framework that emerged from the Declaration with other ways of measuring, and incentivising progress, sets out some initial hypotheses about its impact and addresses issues about its structure and coverage. This leads to proposals about how to, get the best value from the MDGs over the years to 2015 and five hypotheses about, how the world might approach the issue of what framework, if any, to put in place, to measure and incentivise development progress after 2015.
Topic:
Development, Health, Human Welfare, Humanitarian Aid, International Cooperation, International Political Economy, Third World, and United Nations

707. The Somali conflict: The role of external actors

Author:
Bjørn Møller
Publication Date:
03-2009
Content Type:
Working Paper
Institution:
Danish Institute for International Studies
Abstract:
Somalia has been without a functioning state ever since 1991, when the former dictator, Siyad Barre, was overthrown. None of the competing factions were strong enough to take his place as ruler of the country, producing first chaos, but gradually a form of stateless order. The international interventions have ever since the failed, and counter-productive intervention by the United Nations and the United States in the early 1990 exacerbated rather than mitigated the problems, let alone solved them. This was especially the case for the Ethiopian invasion (December 2006-January 2009), which produced utter chaos and a severe humanitarian crisis. Since the withdrawal of the Ethiopian forces, Islamist extremist militias have been establishing control of Somalia, and they may or may not be able to maintain this control. If they pursue their radical programme of Islamisation, their reign is likely to be short, but if they moderate themselves they may retain control.
Topic:
Conflict Resolution, International Relations, Foreign Policy, United Nations, and War
Political Geography:
Africa, United States, and Somalia

708. A Fair Deal on Seabed Wealth: The Promise and Pitfalls of Article 82 on the Outer Continental Shelf

Author:
Cleo Paskal and Michael Lodge
Publication Date:
02-2009
Content Type:
Policy Brief
Institution:
Chatham House
Abstract:
Approximately 70 of the 156 States that have ratified the 1982 UN Convention on the Law of the Sea have potential Outer Continental Shelf Claims (OCS). Those claims could cover more than 15 million square kilometres of seabed. Under Article 82 of the Convention, a portion of the revenue from the extraction of non-living resources on the OCS must be disbursed 'on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and the land-locked among them.' Article 82 is a unique and complex provision that does not address many of the specifics of how this is to be accomplished. The Energy, Environment and Development Programme at Chatham House is working with the body charged with applying Article 82, the International Seabed Authority, to explore in greater detail some of the critical issues of implementation while the Article is still dormant.
Topic:
International Relations, Energy Policy, Environment, International Law, Treaties and Agreements, and United Nations

709. Unclear Nuclear Logic?

Author:
Frank Procida and Peter Huessy
Publication Date:
03-2009
Content Type:
Journal Article
Journal:
Foreign Affairs
Institution:
Council on Foreign Relations
Abstract:
To the Editor:The shift in U.S. nuclear policy advocated by Ivo Daalder and Jan Lodal ("The Logic of Zero," November/December 2008) might make sense for a number of important reasons -- not least among them safety, cost, and reducing the risk of annihilation through miscalculation. But it would be naive to expect any of the authors' recommendations to alter the decision-making of the rogue states that are currently pursuing nuclear technology. Assuming it were feasible, even the complete elimination of the United States' nuclear arsenal would almost certainly have little positive effect on Tehran's or Pyongyang's proliferation, as the same complex set of internal and external factors now driving their policies would persist, as would their perceived vulnerability to U.S. conventional superiority. The less drastic measures the authors call for, such as Washington's accepting international oversight over its own fissile material, far from enhancing the likelihood of reaching agreements with rogue states, would probably barely register in negotiations.
Topic:
Security and United Nations
Political Geography:
United States, Washington, and North Korea

710. The Future of Foreign Assistance Amid Global Economic and Financial Crisis

Author:
Laurie A. Garrett
Publication Date:
01-2009
Content Type:
Working Paper
Institution:
Council on Foreign Relations
Abstract:
Though the United States of America faces its toughest budgetary and economic challenges since the Great Depression, it cannot afford to eliminate, or even reduce, its foreign assistance spending. For clear reasons of political influence, national security, global stability, and humanitarian concern the United States must, at a minimum, stay the course in its commitments to global health and development, as well as basic humanitarian relief. The Bush administration sought not only to increase some aspects of foreign assistance, targeting key countries (Iraq and Afghanistan) and specific health targets, such as the President's Emergency Plan for AIDS Relief and the President's Malaria Initiative, but also executed an array of programmatic and structural changes in U.S. aid efforts. By 2008, it was obvious to most participants and observers that too many agencies were engaged in foreign assistance, and that programs lacked coherence and strategy. Well before the financial crisis of fall 20 08, there was a strong bipartisan call for foreign assistance reform, allowing greater efficiency and credibility to U.S. efforts, enhancing engagement in multilateral institutions and programs, and improving institutional relations between U.S. agencies and their partners, including nongovernmental organizations (NGOs), recipient governments, corporate and business sector stakeholders, faith-based organizations (FBOs), academic-based implementers and researchers, foundations and private donors, United Nations (UN) agencies, and other donor nations.
Topic:
Foreign Policy, Debt, Development, Economics, Health, and United Nations
Political Geography:
United States