CfP: Genocide and its Aftermaths: Lessons from Rwanda (Undergraduate Conference)

University of Minnesota, Twin Cities, USA
April 17, 2014

The Center for Holocaust and Genocide Studies, the Human Rights Program and the
Institute for Global Studies are hosting three days of events to commemorate the 20th
anniversary of the genocide that took place in Rwanda in 1994. The events will include a
public conference (April 16th), a student conference (April 17th) and a K-12 teacher
workshop (April 19th). The objectives of the commemorative events are to promote public
understanding of what happened in Rwanda, analyze the immediate responses by the
international community, and discuss the long-term implications for international policy and
actions to prevent and respond to genocide. Continue reading

Call for Applications: Seminar: United States Modern Constitutional War Powers (NYC, USA)

The Institute for Constitutional History is pleased to announce another
Robert H. Smith seminar for advanced graduate students and junior faculty!

*Modern Constitutional War Powers*

Program Content:

The six-week seminar concerns the evolution of the distribution of war
powers from the beginning of the Twentieth Century to the present day. The
Founders endeavored to create a federal system in which a separation and
blending of powers would make the legislature the preeminent source of
military authority and thus prevent the executive from unilaterally
entangling the nation in costly belligerent adventures. Conventional
wisdom has it that practical developments over the past 100 years—most
significantly, the creation of a powerful standing army and intelligence
establishment, the development of nuclear weapons, and the emergence of a
much more robust role for the United States as a superpower responsible for
the defense of Europe and other allies in a post-nuclear age—have rendered
the original constitutional design obsolete, such that Congress and the
courts have largely ceded war-making authority to an all-powerful,
virtually unchecked President. In this interdisciplinary course, using
conventional legal materials as well as recent historical and political
science accounts of the distribution of war powers, we will examine whether
and to what extent this conventional account is accurate, and will more
broadly discuss whether the current balance of powers ensures sufficient
checks on misguided adventurism and abuse of individual liberties. Continue reading

Dutch Defence Policy and the September 2012 Elections

By Marno de Boer

This guest post summarizes some conclusions from the report Defensie in het Stemhokje (defence in the voting booth). The Hague Centre for Strategic Studies (HCSS) published this study, which made it to all the country’s major newspapers, on 1 September 2012. The present author co-authored the report. It analyzes the defence plans presented by Dutch political parties in their election programs for the 12 September 2012 parliamentary elections. The financial substantiations provided by the Centraal Planbureau, an independent government agency which calculates the consequences of parties’ plans, were also taken into account. These hard figures sometimes reveal proposals and consequences that parties gloss over in overtly ambitious electoral programs. This lack of realism about the consequences of cuts is probably the most interesting finding of the report.

Unrealistic about the consequences of budget cuts

In 2011, the current minority cabinet of prime-minister Mark Rutte (consisting of his VVD right-wing liberals and the CDA Christian-democrats, supported by the right-wing PVV of Geert Wilders), decreased the defence budget from 8.3 billion euro to 7.7 by 2016. Consequently, spending on the armed forces will reach 1,0% of gross national product in 2017. This would place the Netherlands in the lower strata of NATO and the EU in this respect. According to CDA defence minister Hans Hillen, the cuts and ensuing reorganizations seriously diminish the readiness of the force in the coming years. The contribution to the anti-piracy mission in the Gulf of Aden and the police training mission in Afghanistan’s Kunduz province can be maintained, but further activity is impossible until at least 2014. A new round of cuts and reorganizations could prolong this period, or even turn it into a permanent situation.

None of the parties appraise these realities in their programs, which generally do not connect ambitions with the necessary budget. VVD and CDA strive for an all round force to carry out a wide array of expeditionary missions. To make this possible, they oppose new cuts. As indicated above, this ambition cannot be realized for most of their possible future stint in government. The same is true for the small Christian parties SGP and ChristenUnie. Their proposed increases of 200 and 100 million respectively, compared to 2011 still a decrease, will have little effect in the short term.

D66 (liberal-democrats), PvdA (social-democrats) and GroenLinks (green party) are similarly inaccurate about the consequences of their cuts. All strive to maintain the current all round force and want to participate in various international missions. Nevertheless, D66 proposes a further 500 million euro cut, while the latter two intend to slash 1 billion. All political parties promise to maintain capacities through further European defence integration and cooperation. However, this is a long term process, while cuts take direct effect. The ambition level of these three parties is therefore unattainable. Moreover, the cuts will hamper European defence cooperation. A country that unilaterally cuts its forces preceding to talks will be seen as un unattractive and unreliable partner, that rushes ahead of joint choices and coordinated cuts.

The PVV, 500 million, and the SP (socialists), 1.5 billion, want to decrease defence spending as well. Both are less than enthusiastic about European cooperation. Instead, the PVV wants to focus on the protection of direct Dutch interests, which it does not define. Because the party wants to reduce foreign missions by 50%, it seems to interpret the connection between international peace and security and Dutch interests more narrowly than current policy does. The SP opposes an expeditionary NATO and wants to conduct UN peacekeeping missions. The PvdD animal-rights party shares this view, but has not revealed its exact budgetary plans.

These budgetary plans provided to the Centraal Planbureau also reveal the real consequences of the PvdA, Groenlinks and SP cuts. They base their plans on an option in a civil service report from 2010 that outlines possible cuts in government spending (Heroverwegingen, variant G). This variant includes among others a permanent 50% reduction in contributions to international operations, abolishing the Army, and a stark reduction in the defensive and offensive means available to soldiers in the theatre of operations. Especially in the case of PvdA and Groenlinks, the discrepancy between ambitions listed in the electoral program and the realities of the budgetary choices is striking.

Differing views

Right wing parties appear to share similar views on defence. SGP, CDA, ChristenUnie and VVD all want an all round force that conducts missions as part of an expeditionary NATO. They support European cooperation, but are against far-reaching defence integration. Only the CU mentions the importance of a mission’s legality under international law, and a coordinated 3D (Defence, Diplomacy, Development) engagement that is supposed to help people in the theatre of operations.

On the left, two differing visions appear. GroenLinks and PvdA want an allround force that, within an expeditionary NATO, conducts missions worldwide, using the 3D concept. SP and PvdD oppose an expeditionary NATO and want to conduct UN peacekeeping missions. As mentioned above, the PVV has a unique vision centred around the protection of a narrowed definition of Dutch interests.

The discourse

The generally limited quality of the discourse is disappointing. Most programs concentrate on the security problems of yesterday and today, rather than those of tomorrow. Future challenges like the shift of power toward Asia, tensions over cyber space, outer space and the Arctic receive cursory attention at best. If specific regions are mentioned these are generally Israel and the Palestinian Occupied Territories, Afghanistan, Pakistan and the Golf of Aden. While those are certainly important, other potential hotspots like the Straits of Hormuz and the South-China Sea are glossed over by and large.

Legal mandate

Article 97 of the Dutch constitution provides that contributing to the international legal order is a fundamental task of the armed forces. Many parties (D66, PvdA, ChristenUnie, Groenlinks, SP, PvdD) demand an international legal mandate for deployment of the armed forces. For the latter three this must even consist of a resolution from the UN Security Council. This could potentially have consequences for participation in NATO or EU deployments without a UN-resolution. SGP, CDA and VVD do not mention the topic, which at the least shows that they do not find it important enough to mention in their electoral program. PVV’s call for tough naval action against ‘Jihad-pirates near the Golf of Aden’ seems to implicate that this party pays less importance to the legal framework.

Assisted Suicide, The Courts and the ECHR

pic ECtHR.jpg

By Tobias Thienel

On 19 July 2012, the European Court of Human Rights gave judgment in the case of Koch v Germany. The case is notable for advancing the debate on a right of assisted suicide, without itself entering into the debate at all. It is also noteworthy for recognising that not only the person wishing to die, but also that person’s close relatives, have a legal interest in the matter.

 

The facts were – as so often in these cases –  tragic. The applicant’s wife had been suffering for some time from total sensorimotor quadriplegia, that is to say she was almost completely paralysed and utterly dependent on carers. She wished to commit suicide, and therefore contacted the relevant authorities for permission to obtain some pentobarbital of sodium (otherwise used for lethal injections in the United States). Her application was refused. She eventually committed suicide in Switzerland, where the law was more amenable to her wishes.

 

Her husband attempted to continue the legal proceedings begun by his wife (and himself). His case was ruled inadmissible at all levels, including by the Federal Constitutional Court (Case No. 1 BvR 1832/07). (Only the court at first instance added, obiter, that the husband would also have failed on the merits, the withholding of the poison having been lawful.) The courts found that the surviving husband could not rely on any rights formerly enjoyed by his late wife. In particular, his rights under the constitutional protection of marriage (Article 6(1) of the Basic Law) did not bestow standing on him to raise the issue whether his wife should have been given the right to obtain the medication to end her life.

 

The European Court of Human Rights disagreed, at least in the result. It joined the analysis of the German courts in holding that the applicant could not rely on his late wife’s rights under the ECHR as such. However, it found the applicant’s own rights under Article 8 ECHR to be engaged. He had been married to his wife for 25 years and had felt for her during her quest to end her life. Accordingly, on account of ‘the exceptionally close relationship between the
applicant and his late wife and his immediate involvement in the
realisation of her wish to end her life
‘, the Court held that the applicant himself had been directly affected by the decision regarding his wife’s access to lethal drugs (para 50).

Continue reading

News on the Act of State Doctrine

pic Royal Courts of Justice.JPG

By Tobias Thienel

 

A recent case in the English courts – until now the High Court and the Court of Appeal – has raised absolutely central points about the act of state doctrine, and in so doing has neatly explained the doctrine. (I know this doctrine is not actually a rule of international law, but it is not unrelated.)

 

The case is interesting also at a political level. The names of the parties are telling: Yukos Capital Sarl v OJSC Rosneft Oil Company [2012] EWCA Civ 855. Yukos famously used to be the company of Mikhail Khodorkovsky, the businessman and billionaire who has fallen foul of the Kremlin and has spent the last few years in prison. His company, too, has been largely broken up and rid of its assets. The respondent in the English proceedings, on the other hand, Rosneft, is a Russian state-controlled company.

 

Yukos Capital Sarl had won an arbitral award against Rosneft. This had later been annulled in Russian state court proceedings. However, a court in the Netherlands (the Gerechtshof Amsterdam at second instance) later still recognised the arbitral award and declined to recognise the judgment annulling it. The court held that the Russian court had not been impartial and independent owing to the strong political elements of the case (Decision of 28 April 2009, Case No. 200.005.269/01, available via http://zoeken.rechtspraak.nl/default.aspx).

 

The case then moved to England. As in the Netherlands, Yukos sought recognition and enforcement of the award in its favour. Also as in Amsterdam, Yukos argued that the Russian annulment should be refused recognition because it had constituted ‘a travesty of justice’.

 

Rosneft resisted this argument on the basis of the English act of state doctrine. This doctrine holds,in the broadest outline, that English (like U.S.) courts ‘will not sit in judgment on the acts of the government of another done within its own territory‘ (Underhill v Hernandez, 168 U.S. 250, 252 (1897)) or ‘will not adjudicate upon the transactions of foreign sovereign states‘ (Buttes Gas Oil Co v Hammer (No 3) [1982] AC 888, 931G). On this basis, Rosneft said that the decision of the Russian courts, as a sovereign act, could not be questioned in an English court.

Continue reading

Julian Assange to be Extradited

By Tobias Thienel

 

I may have something more to say on this in due course, but for now, here’s the decision of the Westminster Magistrates’ Court. At first glance, it would seem that the judge has interesting things to say on (a) the evidence against Mr Assange, (b) the effect of certain statements hostile to Mr Assange by the Prime Minister on the criminal proceedings and (c) the prospect of a fair trial in Sweden, with particular regard to the likelihood that his case may be heard in private.

The Preah Vihear dispute

 

By Lennert Breuker

Although the news of (late) last week was understandably dominated by the events in Egypt, most media reported very briefly about the hostilities that broke out – again – on the Thai-Cambodian border. Fighting erupted between the military forces of both countries allegedly over a disputed land zone surrounding a 900 year old Hindu temple. ‘Allegedly’ as the most recent skirmishes may just as well have arisen over sentiments of ownership with respect to the temple itself. The temple in question is named Preah Vihear, and is one of the most beautifully located and popular temples that originate from the ancient Khmer empire.

Ownership of the temple and the adjacent area has been in dispute for over half a century by now. When French colonial forces withdrew from Cambodia following Cambodia’s independence in 1953, Thai forces took control of the temple in 1954. As diplomatic protests yielded nothing, Cambodia brought the case before the International Court of Justice in 1959. It asked the Court to rule that Thailand should withdraw its armed forces from the temple and to declare that the territorial sovereignty over the temple belongs to Cambodia.

Thailand apparently did not want the case to proceed to the merits, as they disputed the Court’s jurisdiction, but unsuccessfully. The Court assumed jurisdiction and focused on the work of a so-called ‘mixed’ commission, which was instructed to delimit the border between French Indochina and Siam in the context of a boundary treaty in 1904. With respect to the area in which Preah Vihear was located, the commission, composed of French and Siamese officials, was supposed to follow the watershed line as frontier. Continue reading

Civil or paramilitary police trainings mission…

By Lennert Breuker 

I recently blogged on the intentions of the Dutch cabinet to send a new mission to Afghanistan. Although I am strongly in favor of a sustained effort to support the reconstruction of the country, I lamented the lack of a genuine, thorough debate when it concerns decisions like these involving matters as war and peace. With for instance a virtually automatic support for the illegal invasion of Iraq as a result.

And also this time there were signals that warranted a critical scrutiny of the American request to send a police trainings mission, as the opinion of political activist Sytse Bosgra suggested. However, his claim that the Dutch would be training Afghan policemen who would subsequently also be deployed in combat situations without adequate armor, weapons and training found no resonance at all in the explanatory document that accompanied the decision of the cabinet. It spoke of the training of ‘civil police’ that stand ‘closest to the Afghan people’, and quite predictably of building a rule of law.

It may have led some – or maybe many – to believe that Bosgra’s account was a bit far-fetched. I even recall the comment of an editor of the same journal that published Bosgra’s opinion, that Bosgra engaged in leftish conspiracy thinking. Which cannot be excluded of course.

But neither can it be corroborated. Particularly after monday’s parliamentary hearings which revealed information that directly supported the core of his contentions. Afghan officials, an NGO representative and classified Dutch military intelligence reports affirmed that Afghan police would be deployed in combat situations if deemed desirable.     Continue reading

Dutch cabinet considering training mission in Afghanistan

By Lennert Breuker

The Dutch cabinet is currently considering participation in a new mission in Afghanistan. Dutch media are reporting that this time the mission would entail the sending of a contingent of police officers – approximately 350 – to serve as trainers for the Afghan police forces. Whether the cabinet will succeed in generating sufficient political support for the mission is still unclear. A majority in parliament does not support further participation in combat missions, and would only be open to initiatives aimed at reconstruction efforts. It is thus likely that the trainings mission will be framed in terms of reconstructing part of the executive branch essential for a functioning government, namely the police. Which indeed comes across as a legitimate goal.

Such a portrayal of the mission might obscure the fact that the Dutch will be asked to co-operate with a US policy worth a critical scrutiny at the least, as a recently published opinion of political activist Sietse Bosgra in a major daily journal suggested.

Continue reading

Al-Bashir and Sudan’s elections

This is indeed extraordinary. Al-Bashir has been an international persona non grata outside of Africa since his indictment by the ICC for war crimes and crimes against humanity relating to the conflict in Darfur. But it is also not surprising that the view from Europe or North America is very different from that in Africa or Sudan when it comes to this controversial figure.

Al-Bashir’s indictment was met in the West by a chorus of approval. The man was a butcher. Finally, the ICC was stepping up and aggressively going after political leaders responsible for serious breaches of international law. Little was said about the delicate political process in Sudan and the upcoming referendum in the south on independence. Al-Bashir had been at the centre of these negotiations, for better or ill. For those more familiar with politics in Sudan, the indictment—whatever its merits—threw a cloud of uncertainty over the end of what was turning out to be a successful divorce between north and south, one which had the possibility of putting a permanent end to the long Sudanese civil war.

A major sign that the indictment was not universally hailed came this past summer. In July 2009, I was in central Africa, traveling north by land into Sudan. In the early part of that month, the African Union passed a resolution stating they would not enforce the arrest warrant against Al-Bashir. The AU special envoy, Salim Ahmed Salim, told journalists that the indictment would create severe instability in the peace process. “[Bringing Al-Bashir to justice] is not the priority right now. To indict President Al Bashir will create insurmountable obstacles. How do you indict a president and negotiate with that person?”

Little is said about how the people of Sudan themselves view their president. Al-Bashir has been head of state for nearly 21 years (he first took power in a military coup). He certainly qualifies as a dictator and the wars he has waged within his own country have appropriately drawn international sanction. But during my time in Khartoum and in the north of the country, Al-Bashir seemed to be a genuinely popular figure. A rally-around-the-flag attitude seems to have taken hold of northerners since the indictment: the president is seen to be more of a victim of international machinations than a worthy indictee.

To be certain, he is viewed very differently in the southern and western regions of the country. But in what will soon perhaps be the rump of Sudan, the north, his image appears in shop windows and on windshields. This hardly means much—in countries like Syria, posting images al-Assad, the unpopular president, is de rigeur—but in conversations with Sudanese from all walks of life I was surprised to hear much less cynicism about Al-Bashir than in comparable conversations with Syrians or Zimbabweans. The images of Al-Bashir throughout Khartoum are often emblazoned with anti-ICC slogans. In part these are likely orchestrated by the regime, but there seems to be popular feeling backing the president. This is a likely outcome when a faraway court of which you know nothing tells you your leader is a criminal.

If one were to compare Al-Bashir to a figure such as Mugabe, almost universally despised in Zimbabwe, the issue over the indictment becomes starker. The peace process in that country is equally fragile and yet Mugabe, responsible for economically devastating his country, is free of indictment. Al-Bashir, while responsible for attacks in Darfur and campaigns in the south before the Comprehensive Peace Agreement of 2005, has at least presided over a burgeoning economy in the north. His country is not in ruins; Zimbabwe is.

And while Mugabe has plainly dragged his feet throughout the life of his "reconciliatory" provisional government, often attempting to thwart his prime minister, Morgan Tsvangirai, the Comprehensive Peace Agreement between north and south Sudan appears to be on reasonably good footing. It makes more sense to remove or invalidate an obstacle such as Mugabe through an indictment, rather than Al-Bashir, who is an important instrument of the CPA.

And the CPA is moving forward. For example, this past summer, the Abyei arbitration ruling by the Permanent Court in the Hague sorted out a number of thorny issues remaining between north and south. Both sides accepted it without reservation. If Al-Bashir were to be arrested on a foreign trip under the warrant these developments would be placed in serious jeopardy.

A large win by Al-Bashir in the coming election—assuming it is credible—will be an endorsement in the face of international opprobrium. The opposition appears to see this is as a likely outcome and has had trouble attracting candidates to participate in the north. The deadline for the SPLM to nominate candidates has been extended for a five-day period (which will end tomorrow, January 25th). A presidential candidate has still not been selected. Will a new term for Al-Bashir be an absolute good? No, but it will be better than his arrest at such a delicate time. 

The civil war between north and south Sudan was one of the most devastating in the latter half of the 20th century. Reconciliation is not a likely possibility, but a peaceful divorce is very much in the cards. That is the way things are heading now with a referendum on independence expected in the south in January 2011. Al-Bashir has promised that the north will be the first country in the world to recognize the south, should they vote in favour of independence.

Taking all this into account, it would be best for the international community to pursue its reckoning with Omar al-Bashir at the end of what will likely be his next term as president.

 Above image: Men fix tires on the outskirts of Khartoum in July 2009. Posters of Al-Bashir hang on the wall behind them. (Photo by the author.)