International Law Outline

SC Res 1856 (2008) (Packet II, p. 14-22)

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SC Res 1856 (2008) (Packet II, p. 14-22)

  1. Mandate – PROTECT civilian lives (third generation peacekeeping)

    1. Monitor ceasefire and investigate violations

    2. Develop plan for disengagement, disarmament, demobilization, resettlement of warring factions and withdrawal of foreign forces

      1. But problem – condemning factions, and then bringing them in and making them part of the army!

    3. Release of prisoners

    4. Facilitate humanitarian aid and HR monitoring.

  2. Strong, but internally inconsistent, mandate

  • Use of armed force allows – none of SC resolutions governing MONUC mandate SPECIFICALLY say its actions are governed by international humanitarian law

    1. SC Res 1565 – 2004 (Packet II, p. 23) – mentions IHL in context of bringing perpetrators to justice, and obligations of ALL parties to respect IHL

  • ALSTON Press Statement – 2009 (Packet II, p. 24-31)

    1. UN Special Rapporteur

      1. Supposedly “independent” but supported by UN on the ground, travel in UN vehicle, insist on UN security

      2. But, makes comments about MONUC they won’t like

    2. How do you set up such a mission?

      1. Some are fully organized by UN

      2. PA – balance between UN “advice” and other things

      3. Serious problems with security

        1. Wants to go to NE, see LRA. Gov’t says they’re finished, not a threat anymore. Everyone else says they are. Gov’t doesn’t want him to go NE, UN has mixed feelings.

        2. Used to be able to go anywhere. When UN lost High Commissioner of Human Rights in Iraq in 1993, MUCH more cautious.

      4. Interpretations are a problem

    3. Issue press statement – take opportunity of only formal opportunity to speak to press – preliminary report

      1. UN doesn’t like this – wants him to reserve judgment

      2. Here – addressed to international community, because gov’t showed no interest/capacity to take up these issues

        1. June – visited Colombia – very interested in taking up the issues. So press statement had tone of cooperation.

  • Issues addressed

    1. Radical privatization – not part of his mandate, but heart of issue if gov’t is to equip itself to handle anything.

      1. Military not paid at lower ranks - $ confiscated by superiors. Assumption is that they HAVE to steal from community

        1. UN talking about guaranteeing payment, through mobile PHONES.

          1. But why would commanders participate in this scheme, when salaries will drop so dramatically?

        2. Biggest threat to civilians in many areas

          1. No food, no discipline, no identification, no system of military justice

          2. PA –LABEL THEM – people question efficacy, but interesting first step

            1. Simple, cheap and achievable

      2. Ineffectual justice system – leads to popular justice

        1. Police are seen as corrupt and thieves

        2. Don’t follow up on lynching/mobs, etc.

      3. Lack of public prisons

        1. No inside guards, run by prisoners.

        2. Can buy your way out.

        3. Any individuals who help run it – for personal profit

          1. When food brought in, wardens take half for themselves

        4. No political interest in prisoners – these people are scum

      4. Massive corruption – 300+ permits to conduct business.

      5. Needs to set up system of taxation

    2. MONUC operation

      1. Problem of being peacekeeping and HR monitoring

        1. Some natural conflict in those positions

      2. MONUC is party in Kivu conflict

        1. Conflict of interest in investigating FARDC

        2. Assisting FARDC, but they’re part of the problem – haven’t fully integrated CNDP, not well-trained

          1. Large-scale killings by FARDC units, and opportunistic murder by individual soldiers

        3. Also FEEDING and HOUSING the army (trying to build them barracks, but no one can agree where)

      3. EU controversial initiative – CENSUS of military. Produce biometric card for each soldier – but FARDC moving soldiers and battalions, not helping.

      4. In all peacekeeping, hard to integrate HR concerns – role is to MAKE PEACE

        1. UN – bad luck with this

          1. Sierra Leone – 2000 – initially suggested might grant some amnesty to those accused of grave crimes. Had to backtrack

        2. Here – still having problem that UN officials still think it’d be inappropriate to arrest accused war criminals.

          1. President Kabila – PEACE FIRST, JUSTICE LATER

            1. Message in terms of IMPUNITY is terrible

    3. LRA

      1. Gov’t says no longer a threat. Embarassed because they’re Ugandan. Invited Ugandan army in to help defeat LRA, but embarrassing for sovereignty of Congolese to have them. And hate Ugandans anyway.

        1. By saying LRA is defeated, can tell them to go home.

      2. Some say – interest of a lot of people to allow presence of LRA

        1. Allows Congolese to have large military operations, something to do with militia

        2. Allows Rwanda/Uganda to continue longstanding intervention, including some exploitation of resources

        3. Can justify US building up military presence

      3. How do you take into account that many people are particularly afraid for semi-spiritual reasons? (fear of witchcraft)

    4. Government killings in Ba-Congo – couldn’t meet with witnesses

    5. Sexual violence

      1. President says “zero-tolerance” policy –but clearly not occurring

      2. Why not simply outlaw any sexual relations between military and civilians?

        1. They say – contrary to policy. Trying to win over “hearts and minds” of the community

  • UN fact-finding generally

    1. Resource limitations

      1. Investigation into Sri Lankan extrajudicial execution video

        1. UN says no money for forensic video experts

    2. HRW has experienced military advisers, UN does not

  • Session 18 – International Law and Fact-Finding in Practice – Israel and Gaza

    1. Goldstone Commission

      1. Report submitted to HUMAN RIGHTS COMMISSION

        1. Has to satisfy a group with varying perspectives.

      2. Process – group named by head of HRC, which is an elected position

        1. But, can CHANGE terms of reference

          1. When asked to lead this report by HRC (strong anti-Israeli violation), insisted on looking at violations of BOTH sides.

      3. Netanyahu – wants to change humanitarian law

        1. Admits they are violating it as currently exists

        2. Ignorant re: creation of IHL – needs to develop it or need new treaty(ies)

    2. Israel/Palestine – entity claiming statehood is not CLAIMED by any other state

    3. Fact-Finding

      1. Israel refused to COOPERATE.

      2. Focus on year between ceasefire (June 2008) through HR/IHL violations related to/consequence of military operations after they ended (July 2009).

        1. Looked at historical context

        2. Used general int’l law, UN Charter, IHL, Int’l HR law, int’l criminal law.

      3. “inclusive approach” to gathering information

        1. Public hearings, field visits, analysis of video and photography

        2. Focus on first-hand evidence – use second-hand information as CORROBORATION

    4. Tried to come up with evenhanded report – upset that people are ignoring offense committed by Palestine

      1. Really hoping GA accepts report – more fairly, even-handed.

  • Session 16 – International Criminal Law (Individual International Rights, Part Three)

    1. Historical Development

      1. International law generally addressed to states

        1. Not addressed to individual violators

        2. Some domestic law punishing violations of laws of war

          1. Lieber Code (535-37)

      2. Post-WWI – renewed emphasis on individual responsibility.

        1. Treaty of Versailles – four articles providing for punishment of those who violated laws/customs of war by Allied military tribunals

          1. Never held any trials

      3. Post-WWII – Americans pushed for criminal trial over Russian and British calls for summary executions.

      4. 1945 – LONDON CHARTER – International Military Tribunal

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