On International Law, Military Intervention in Syria and Complexity: Seán Butler IRC PhD candidate

Welcoming Seán Butler, IRC PhD candidate at UCC Faculty of Law


Peacekeeping EmblemMilitary intervention in Syria, in the form of a bombing campaign conducted by Western powers, is a likely event in the coming weeks. With the UK no longer participating due a defeated motion in the House of Commons last week, action will most likely be undertaken by the US, for which President Obama will seek Congressional approval next week, and France. After two and a half years of international inaction in Syria, this new impetus for involvement in the conflict is a result of a chemical weapon attack that occurred in the countryside surrounding Damascus on 21 August, in which somewhere between 400 and 1400 people were killed. There is still a good deal of controversy over whether the attack was committed by forces loyal to the Assad regime or by a rebel group, although the US claims it has evidence that strongly points to the government as the culprits.

What is missing from the above paragraph from an international law perspective is UN Security Council authorisation. The UN Charter is very clear on the issue of the use of force in international relations: it may only be used in individual or collective self-defence (Article 51), or if authorised by the Security Council to “maintain or restore international peace and security”. States are not permitted to use military power to unilaterally enforce another state’s obligations under international norms or treaties (for a discussion of the possible need for such an addition to international law, see Pierre-Marie Dupuy (2012), “Back to the Future of a Multilateral Dimension of the Law of State Responsibility for Breaches of ‘Obligations Owed to the International Community as a Whole’”, 23(4) European Journal of International Law 1059-1069).

Contrary to some media reports, the ‘Responsibility to Protect’ doctrine does not offer a viable avenue for engagement, as the version endorsed by the 2005 World Summit Outcome Document only enjoins action under the Security Council umbrella (the original 2001 version proposed by the International Commission on Intervention and State Sovereignty does briefly speak of ‘alternative’ avenues to the Security Council, but this does not reflect customary international law). Such an authorisation is not likely given that Russia and China have previously vetoed three draft Resolutions on Syria before the Council, due to political and economic ties to the Assad regime and the fallout from NATO exceeding its Security Council mandate to overthrow the Gaddafi regime in Libya in 2011 (as discussed in my previous contribution to this blog).

The use of chemical weapons does not change the legal landscape in Syria, which leads to the question of why the attack has moved the Western powers to forcefully intervene in the conflict whereas more than 100,000 deaths previously did not. The most likely explanation is that the Obama administration is seeking to deter future uses of chemical weapons both specifically by the Assad regime and more generally by increasing the cost of using such weapons. While this is a noble gesture when taken in isolation, it is morally gruesome when viewed in the light of the many apparently acceptable deaths by ‘conventional’ weaponry in the war and normatively dangerous when seen in the context of its blatant disregard for international law. Such a policy also hints that any intervention will be very limited, with no real attempt to influence the material outcome of the conflict.

While the moral problems of the Western approach to the conflict are perhaps obvious, the impact of the legal problems may require further elaboration. After all, to quote the late jurist Antonio Cassese (speaking on NATO’s ‘illegal but legitimate’ intervention in Kosovo in 1999), ‘should one remain silent and inactive only because the existing body of international law proves incapable of remedying such a situation?’ What is the value in upholding a law that prevents the international community from acting to allay suffering or punish a regime willing to commit atrocities upon its own people?

It is obvious that the Security Council is a highly flawed institution that often fails to act when it is needed most. However, it needs to be viewed as ultimately an arena of political compromise rather than a strictly legal entity. Its composition, in particular its five permanent members and their respective vetoes, stems from a recognition that the sphere of international relations is dominated by a small group of powerful states, between whom a balance of power is necessary to maintain. It must be remembered that the Council’s primary mandate is the maintenance of peace rather than the protection of human rights. In this rarefied air of power politics, international law acts as a language of negotiation, a delineation of what is permissible and desirable. It seeks to map the progression of international consensus with regards to the communal good.

The restrictions on the use of force are designed to ensure its use for the benefit of the international community rather than any individual state’s self-interest. What that ‘communal good’ is should not be conflated with a narrow Western conception of it. While we may abhor the protection of state sovereignty at the expense of human rights, many in the developing world see sovereignty as a crucial bulwark against the onslaught of Western imperialism. Syria is an immensely hard case in this regard, and it is hard to accept the deaths of thousands of people when the West could do ‘something’ about it. What constitutes that ‘something’ is problematic, however, and we are naïve if we believe that Western military intervention will automatically improve the situation.

The Russian and Chinese block on legal action under the Security Council may be representative of self-interest, but it also represents a deep scepticism about what military action can do to improve the situation in Syria. The civil war in Syria is an interlocking series of messy conflicts involving political, ethnic, religious and wider regional interests. It cannot be bombed into a solution. Unilateral military action in Syria not only represents a misguided attempt at ‘doing something’ to deal with the conflict, but disregards the notion that there are conceptions of the communal good beyond what Western leaders narrowly perceive it to be. As such, the victims are likely to be not only the people of Syria, but faith in international law as a means by which that good can be realised.



The Food Assistance Convention 2012: a mouse that roars or a lion that squeaks?

In a previous post in March 2011 I discussed the background to the renegotiation of the Food Aid Convention 1999 (FAC 1999). In late April 2012, after a long-running and contentious series of negotiations by the major donor countries who were signatories to the FAC 1999, the text of the eagerly awaited Food Assistance Convention 2012 (FAC 2012) was published. The new FAC 2012 will remain open for signature until 31st December 2012, and will enter into force on 1st January 2013 if at least five of the signatories to the previous FAC 1999 have ratified the new convention.

First concluded in 1967, the Food Aid Convention 1999 was the only international legal instrument covering the provision of food aid to developing countries, and signatories were restricted to a small selection of donor countries: Argentina, Australia, Canada, the European Union, Japan, Norway, Switzerland and the United States. Implementation of the Convention was overseen by a Food Aid Committee, based in the International Grains Council in London. Yet serious concerns were raised regarding the operational and governance structures of the Food Aid Convention. Critics highlighted the out-dated model of physical food transfers from donor countries to recipient countries and a lack of utilisation of new methods of ensuring food security, such as cash transfers and increased use of micro-nutrient enriched foods and special nutritional products.

So in my previous post I highlighted the need to move from a Food Aid Convention to a Food Assistance Convention. As this has now come to pass, does this signify a major shift in donor country thinking on the provision of food and nutritional support to vulnerable communities? And does the rebranding of the Food Aid Convention 1999 into the Food Assistance Convention 2012 indicate that the needs-based approach supported by the EU and Canada has trumped the resource-based approach favoured by the USA and Japan?

In March 2011 I noted there was a need to move from discussion of what food stuffs to provide people facing food scarcity and famine, to what overall package of assistance is required to meet the needs of affected populations. I highlighted a series of issues that were up for discussion in the negotiation process, including whether additional donor members should be allowed to become signatories to the Convention, the form that food aid should take, and where a Food Aid/ Assistance Convention should fit within the overall international response to food scarcity and insecurity. So how have these, and other structural and contextual issues, been resolved in the new Convention?

Forms of food assistance: the change from “food aid” to “food assistance” represents an important shift in attitude from the original trade origins of the FAC in 1967, to acknowledging best practice in delivering food and nutritional assistance to vulnerable populations through cash transfers, local and regional procurement of food stuffs, and innovative approaches to reducing food and nutritional insecurity at the household and community level. The new Convention also includes explicit recognition that food assistance should be untied from donor countries own agricultural and trade objectives, and that in-kind food transfers from donors can distort the local markets and therefore have negative impacts on the overall levels of food security in a region. However, the subordination of FAC 2012 to obligations under the WTO still places a country’s trade considerations well before humanitarian responses.

Amounts of food assistance: the FAC 1999 contained detailed provisions on the amounts of food aid that were to be provided by each signatory, recorded in tons of grain which implied the physical transfer of food stuffs from donor countries to recipients. The FAC 2012 has a discretionary, non-binding system, whereby signatories announce an annual minimum commitment of food assistance expressed either as a minimum value or a minimum quantity of food stuffs. Donor countries simply have to provide details of their annual minimum commitments by 15th December each year, and it is now up to each donor country to determine its level of commitment each year. This represents a major weakening of the binding commitments contained in FAC 1999. Furthermore, as seen during the 2007-8 food price spike and the famine in the Horn of Africa during 2011 and 2012, the availability of food aid is often dependent on global food prices – and the total amount of donor countries’ commitments can fall when global prices increase. So allowing countries to express their commitment in monetary value passes the risk of price fluctuations onto the recipient countries, when previously donor countries bore this risk. Nevertheless, as noted by a former Director of the World Food Programme for the Asia and Pacific:

 “The FAC always seemed to me an accounting device more than a guarantee for an additional volume of resources in times of crisis. All donors, but certainly the major ones always provided food when they had it and did not provide food when they did not have it.”

Signatories: While initial signatories to FAC 2012 remains limited to the original signatories of FAC 1999 (plus those States that have joined the EU since 1999), Article 13 allows for any other State to accede to the Convention once it has entered into force. This is to be welcomed if it leads to an expansion of the base of key middle income donor countries such as Brazil, China India, Russia or South Africa, who had not been included in the formal renegotiation process. Not only would this help widen the base of donor countries, it can assist in committing a broader range of countries to the principles of effectiveness and accountability promoted in the new text.

Governance and inter-agency co-ordination: the new text explicitly requires donor countries to regularly monitor, evaluate and communicate the outcomes of their food assistance programmes. This reflects the increasing emphasis placed by donors themselves on transparency and accountability in development and humanitarian programming, as set out in the OECD’s Paris Declaration on Aid Effectiveness 2005 and Accra Agenda for Action 2008. Such openness is to be welcomed, as are the indications that the Food Assistance Committee will act in a more inclusive and transparent manner, for example by including recipient countries and civil society organisations in their discussions and meetings. It would be hard for donor countries to press recipient countries to act in an open, transparent and accountable manner, and to promote these principles as a basis for aid effectiveness, without acting in the same manner themselves. However, it remains to be seen what level of engagement and input is actively sought by the new Food Assistance Committee from middle income donors, recipient countries and non-governmental organisations. Therefore organisations within donor countries will need to monitor the stances taken by the national authorities, for example Irish Aid and the Department of Agriculture here in Ireland, to promote compliance with the new commitments. Furthermore, as noted by the International Federation of Red Cross and Red Crescent Societies, it is not clear how the FAC 2012 will interact with existing food security structures, for example the UN High-Level Task Force on the Global Food Security Crisis, the Committee on World Food Security and the global Food Security Cluster.

Considering that the FAC 2012 is a legal framework for the provision of humanitarian food assistance to populations facing major food insecurity, it is notable how many aspects of the FAC 1999 have been improved. Overall, the FAC 2012 has created a more supportive structure for promoting best practice in food and nutritional interventions by donor countries. While the Overseas Development Institute has questioned whether the new convention will lead to any changes in the attitude of large donors, such as the USA, this has been countered by Professor Jennifer Clapp and C. Stuart Clark, who argue that the FAC 2012 plays a fundamental role for middle sized donor countries, such as Canada, Switzerland and Norway. Perhaps of most interest is the clear acknowledgement of the right to food set out in the preamble to the new Convention. By bringing the operation and governance of the Food Assistance Convention 2012 into the public sphere and by clearly recognising the right to food, donor countries have signalled that they wish to take their humanitarian commitments seriously. It is now incumbent upon the rest of us to build on the re-commitment of donor countries to ensuring sufficient assistance is provided to those facing severe food and nutritional insecurity. This requires the signature and accession of the FAC 2012 by as wide a range of countries as possible, and for us to hold donor countries to their word.

Call for Papers: 6th Annual CCJHR Postgraduate Conference, 26th April 2012

The Centre for Criminal Justice and Human Rights (CCHJR) at University College Cork is pleased to announce that the 6th Annual Postgraduate Conference will take place on Thursday, 26th April 2012. The conference is aimed at postgraduate researchers working in the areas of criminal law, criminal justice and human rights.

The theme for this year’s event is “Transformation and Reform: Structures and Mechanisms for Rights-Based Protections”. The aim is to examine the implications for individuals and rights-based protections that arise from recent proposals for major reforms at the national, European and international level, including proposals for changes to the Irish legal profession and potential constitutional amendments, reforms of the treaties and structures of the European Union, and the UN Treaty Body Reform process. This theme is intended to encourage debate and reflection on the challenging question of ensuring the protection of fundamental rights during periods of change and crisis.

This international one-day event is aimed at promising research scholars from Ireland, the UK and Europe in the areas of law, politics, philosophy and the related social sciences. We are especially interested in papers that relate to human rights, criminal justice, criminal law or the intersection of these fields from a national, European or international perspective. We will also welcome papers dealing with issues that fall within the broad theme of the conference.

The keynote address will be delivered by Professor Christopher McCrudden of Queen’s University Belfast. Professor McCrudden is currently working on an integrated theory of comparative human rights law, and is an expert on equality and discrimination, as well as the relationship between international economic law and human rights.

Papers will be streamed thematically. The two best papers, as selected by the conference organisers, will present their paper to the plenary session of the conference.

Abstracts for papers (max. 300 words) should be submitted to the conference organisers by 20th February 2012. Successful conference submissions will be notified by 20th March 2012. To be considered for the best paper and the opportunity to present to the plenary session, full papers should then be submitted by 16th April 2012. Submissions and further enquires should be directed to ucclawconf@gmail.com.

For further information and registration details please visit: www.ucc.ie/en/ccjhr

Please note: a CPD Certificate of Attendance will be available for this conference.

New edition of the Sphere Handbook: Humanitarian Charter and Minimum Standards in Humanitarian Response

By Dug Cubie

This week sees the formal launch of an updated and revised edition of the Sphere Project’s Humanitarian Charter and Minimum Standards in Humanitarian Response (most commonly known as the “Sphere Handbook”). Simultaneous events are being held in over 20 countries around the world, including a launch in Dublin organised by Plan Ireland, on 14th April 2011.

Following the complex international humanitarian responses in the early 1990s to the conflicts in Somalia, the former Yugoslavia and particularly in Rwanda, non-Governmental organisations recognised Governments were increasingly examining the need to regulate humanitarian aid. This possibility of external regulation coincided with many NGOs’ own desire to promote performance and accountability for their actions, and led a coalition of humanitarian NGOs to propose the introduction of quality standards in relief activities.

The resulting Sphere Project aimed to produce a set of industry standards for the provision of humanitarian assistance, prefaced by a beneficiaries’ charter to highlight the rights of those facing a humanitarian crisis. The dual mandate to create both industry standards and consumer rights was controversial, with organisations like Médecins sans Frontières (MSF) concerned that minimum standards would be difficult to implement in practice, except in camp-like settings where humanitarian agencies were fully responsible for the provision of basic services. Nevertheless, the Humanitarian Charter and Minimum Standards in Disaster Response was first published in 2000 and elaborated core principles and technical standards applicable for all humanitarian agencies. Drawing on existing international law and a diverse range of guidelines, the Sphere Handbook provided the first comprehensive set of standards and indicators for the provision of humanitarian assistance. The Handbook was subsequently revised and updated in 2004, with the third edition now being launched.

The 2011 edition of the Handbook follows a similar format as previous editions, but includes a strengthened section on human rights protection and a re-written Humanitarian Charter, as well as updated qualitative and quantitative indicators for each of the minimum standards. The Handbook now contains four interconnected sections: the Humanitarian Charter, Protection Principles, Core Standards and Minimum Standards.

The bulk of the Handbook is comprised of the Core Standards and Minimum Standards. The Core Standards refer to common process standards applicable across all thematic and technical sectors. These include: participation by beneficiaries; co-ordination and collaboration; assessment and design of programmes; and key competences for humanitarian workers. Detailed sector-specific Minimum Standards, with corresponding key indicators and suggested activities, are then elaborated in four areas: water supply, sanitation and hygiene promotion; food security and nutrition; shelter, settlement and non-food items; and health action. Cross-cutting these sectoral standards are thematic issues: children, disaster risk reduction, environment, gender, HIV/AIDS, older people, persons with disabilities and psychosocial support.

Preceding these is the Humanitarian Charter which forms the conceptual underpinning of the Handbook by drawing on international humanitarian law, human rights and refugee law to reaffirm the primacy of the humanitarian imperative in all actions to assist those affected by disasters or conflicts. In this new edition, the Humanitarian Charter has been re-written to make it easier to read and structured more coherently around common humanitarian principles, and is followed by a new section on Protection Principles to provide guidance on how to operationalise the rights contained in the Charter.

The Humanitarian Charter centres around three overarching principles: the right to life with dignity; the right to protection and security; and the right to receive humanitarian assistance. In other words, the Charter is premised on the fact that civilians affected by natural or human-made disasters or armed conflict have a right to life with dignity, and therefore have a right to protection and assistance. It follows that an individual’s right to life entails the right to have steps taken to preserve life where it is threatened, and a corresponding duty on others to take such steps. Implicit in this is the duty not to withhold or frustrate the provision of life-saving assistance.

However, the Charter is explicit in recognising that these rights are not formulated in the same terms under international law, and while they reflect international law, the rights set out derive their force from the fundamental principle of humanity. By reflecting the ethical and moral obligations of humanitarian agencies, as well as the legal rights and duties of States, the Humanitarian Charter exceeds accepted binding norms of international law. It invokes the general principles of humanity and impartiality, and humanitarian agencies are expected to act in accordance with these principles.

Yet this expansive view of the relevant legal obligations raises the question of the legal validity of the Charter, and by extension the role that “soft law” or “non-legal normative standards” play in the development of new international norms. The Sphere Handbook is only one, albeit the best known, of several Quality and Accountability initiatives in the field of humanitarian assistance. The interplay and coherence between these non-Governmental regulatory approaches, and the potential codification of international law relating to the protection of persons in the event of disasters being led by the International Law Commission has yet to be determined.

Nevertheless, the development of the Humanitarian Charter and Minimum Standards, and their revisions in 2004 and 2011, comprise the input of over 400 organisations from 80 countries. Many donors, including Governments and UN agencies, now require organisations to commit to the “Sphere standards” to access funding opportunities. Therefore, not withstanding its lack of legal enforceability, the Sphere Handbook should be viewed as a key text for the development of an international legal framework for international disaster response law. The Sphere Handbook represents the majority consensus of numerous humanitarian agencies and staff, and the inclusion of a specific reference to a right to humanitarian assistance is to be welcomed as part of the growing understanding of the rights-holders and duty-bears in disaster settings.

Copies of the new edition of the Sphere Handbook can be ordered from the publisher at: http://practicalaction.org/publishing/sphere

Moving from a Food Aid Convention to a Food Assistance Convention

Dug Cubie

The increasing effects of climate change and natural disasters, including drought and flooding which severely affects agricultural production in affected regions, forms the backdrop to the current renegotiation of the Food Aid Convention (FAC). The eight signatories of the FAC met in London at the beginning of this month (28th February – 3rd March 2011) to commence the negotiations at a time of steeply increasing world food prices. On the table for discussion include allowing additional donor members to become signatories to the Convention, the form that food aid should take, and where the FAC fits in the overall international response to food scarcity and insecurity.

First established in 1967, the Food Aid Convention is the only international legal instrument covering the provision of food aid to developing countries. The current members of the FAC are Australia, Argentina, Canada, the European Union, Japan, Norway, Switzerland and the United States; while implementation of the Convention is overseen by the Food Aid Committee, currently chaired by Canada, which is based in the International Grains Council in London.

Unlike other international conventions, the FAC is deemed to be a temporary instrument, with the current text of the FAC last renegotiated in 1999, initially for a three year period, but subject to annual extensions of validity since 2002. This annual uncertainty over the future application of the treaty results, in part, from the deliberations on food aid in the World Trade Organisation’s Agreement on Agriculture. However, the collapse of the WTO Doha Development Round in 2008 prompted the signatories to the FAC to extend its validity until June 2011 to allow time for a renegotiation of the FAC itself to take place. These negotiations are expected to be intense. There are pronounced differences between key members of the FAC, most notably between the United States of America and Japan which favour a resource-based approach where agricultural produce is provided directly from donor countries, and the European Union and Canada which are promoting a needs-based approach.

While intended to provide a level of resource certainty to recipient States and UN agencies such as the World Food Programme, there is a wide-spread belief that the FAC is out-dated and does not reflect current models of emergency and humanitarian assistance. Oxfam has highlighted that in most food emergencies, it is not access to food that is the main problem but people’s ability to buy food. Therefore, a model of food aid based on shipments of surplus agricultural produce from developed countries, with the attendant high shipping and procurements costs and negative impact for the local producers, does not correspond to the needs of the affected populations. A recent paper by Nathan Nunn (Harvard University) and Nancy Qian (Yale University) researched the motivations behind the signatories to the FAC. They found that the US provides most of its food aid in the form of food surpluses from US farmers; but despite EU food aid remaining untied, it is closely linked to the colonial history of several EU Member States, with former colonies receiving disproportionately large amounts of EU food aid.

However, the debate is not simply about the modalities of providing food aid. Approaches which promote cash or vouchers still have to contend with the fact that in a time of food insecurity rapidly rising prices in local markets may negate the true value of assistance for each household. Therefore, minimum tonnage or consumption requirements still need to be ensured. This has led to suggestions that “food aid” should be reclassified as “food assistance” to highlight the broad nature of assistance required by people facing hunger and food insecurity. This may move the discussions from the realm of what food stuffs to provide, to what overall package of assistance is required to meet the needs of affected populations. Yet the FAC negotiations are being undertaken behind closed doors by the eight signatories, who are all donors of food aid, to the exclusion of the recipient countries themselves, which means that vital issues from the perspective of those in receipt of food aid may not be raised. Even countries which have recently become donor countries, such as Brazil, China, India, Russia and South Africa will not be directly involved in the discussions. Therefore, the future approach of either the current Food Aid Convention or an updated Food Assistance Convention remains to be seen. However, with the deadline for the conclusion of negotiations in early June 2011 fast approaching, the next steps for the food and hunger components of emergency and humanitarian assistance may be clarified in the coming months.

The world must not stand idly by as Gadafy murders his own people

Dr Siobhan Mullally

This piece was originially published as an Opinion piece in the Irish Times on 12 March 2011

THE CRISIS in Libya presents new Minister for Foreign Affairs and Trade Eamon Gilmore with many urgent and pressing questions. As yet, the international community has failed to respond effectively to this unfolding humanitarian crisis. Disagreement at the United Nations Security Council and the threat of veto from both Russia and China is continuing to limit the possibility of a concerted collective response to the crisis. A draft resolution imposing a no-fly zone has been prepared by the UK and France, apparently ready to be formally presented if Libya commits an “egregious act”.

Egregious acts are, however, already occurring, and it is not clear that, even in such an event, consensus would be forthcoming.

Sadly, for observers of the security council, such disagreement and paralysis in the face of mass atrocity is all too familiar.

In the 1990s, the UN’s failure to intervene in Rwanda and Srebrenica contributed directly to the deaths of hundreds of thousands of innocent civilians, and led finally to the recognition that the UN’s role in protecting civilians was in need of urgent and dramatic reform.

Many international law commentators have pointed to the parallels between the Libyan and Kosovan crises. In 1999, inaction on the part of the Security Council in the face of widespread human rights violations in Kosovo ultimately led to unilateral action by the North Atlantic Treaty Organisation (Nato), without security council authorisation.

The independent Commission on Kosovo, established by the UN secretary general in the wake of the Nato action, concluded that the intervention was “illegal”, but legitimate. The spectre of inaction in the face of a humanitarian crisis could not be countenanced.

Following quickly on the Kosovan crisis, the security council authorised intervention in East Timor, but only when it had secured an invitation from Indonesia, and only after Indonesian and militia forces had run amok, killing, raping and pillaging with impunity.

In his essay “Two Concepts of Sovereignty”, then UN secretary general Kofi Annan called on the international community to reach consensus – not only on the principle that massive and systematic violations of human rights must be checked, wherever they take place, but also on ways of deciding what action is necessary, and when, and by whom.

The Responsibility to Protect (R2P) Doctrine, developed through a series of high-level meetings of heads of state and governments in the early years of the new millennium, sought to address the past failings of the UN. At the heart of the R2P doctrine is the commitment by the international community, acting through the UN, to take collective action, in a timely and decisive manner, to protect populations from genocide, crimes against humanity and war crimes.

The crisis in Libya represents precisely the kind of situation envisaged by the R2P doctrine. The possibility of effective action by the UN, however, faces the hurdles of realpolitik and the self-interested disengagement by Russia and China, mindful no doubt of the potential for Jasmine revolutions to extend beyond this Arab Spring.

The security council has taken a first step towards a decisive response to the crisis. Security council Resolution 1970, adopted on February 26th, imposed a targeted regime of sanctions, and, reflecting the commitment to pursue accountability, the security council referred the situation in Libya to the International Criminal Court.

Significantly, the resolution was adopted unanimously, with support from the US. This support reflects the Obama administration’s policy of positive engagement, a welcome reprieve from the Bush administration’s open and hostile opposition to the court.

The swift referral of the situation to the court is remarkable, given the delays that usually accompany negotiations on the role of the court. The referral of the situation in Libya is not without its difficulties, however. Libya is not a party to the Statute of the International Criminal Court, and Col Gadafy has been a vocal opponent, along with other African heads of state, of the court’s role in Africa, calling in particular for a deferral of the arrest warrant against Sudan’s President Omar al-Bashir.

All of the situations and cases currently before the court concern African states, raising questions as to the impartiality of the court and doubts as to why similar referrals did not occur in the context of Israel’s attacks on Gaza in 2009, for example.

For the moment, African states have not opposed the security council’s actions against Libya, though South Africa (a non-permanent member of the security council), is reported to be sceptical of the proposed no-fly zone and possible military action.

The prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has now officially opened the investigation into the Libyan crisis, warning that crimes against humanity may be occurring, and that those responsible will be held accountable.

While these developments are to be welcomed, sanctions and the pursuit of accountability are not enough. Judicial remedies, while important, will not, and are not, deterring Col Gadafy and his forces from committing mass atrocity against innocent civilians. It now seems unlikely the US will support or lead any unilateral action against Libya. Nato continues to discuss its possible role in imposing a no-fly zone.

The doctrine of humanitarian intervention recognises the possibility of unilateral action, when a state’s actions against its own civilians are “so brutal as to shock the conscience of mankind”.

The actions of Gadafy’s forces have clearly met this threshold, shocking and distressing all those watching.

On accepting the Nobel Peace Prize, Obama spoke eloquently of the idea of a just war. He also called for the strengthening of the international institutions and international law. Over the last decade, both the US and the UK have invoked the doctrine of humanitarian intervention to support military action, when the UN failed to act. Over-extended now by conflict in Afghanistan and Iraq, and chastened by the errors of past administrations, neither look likely now to act without UN support.

The UN must respond. It is imperative that the security council fulfils its responsibility to the people of Libya, if it is not to be rendered irrelevant yet again in the face of a grave humanitarian crisis. Decisive action, including the immediate authorisation of a no-fly zone, is required.

JILIR – Call for submissions

The Journal of International Law and International Relations has issued a call for submissions from scholars of International Law and International Relations. The deadline for submissions is January 23, 2010.

The journal is a joint venture of the University of Toronto Faculty of Law and the Munk Centre for International Studies, the JILIR is a peer-reviewed scholarly journal that publishes articles on the wide variety of topics located in the intellectual space jointly occupied by International Law and International Relations.

Submissions should be sent via e-mail to submissions@jilir.org as attachments in Microsoft Word or Rich Text format, preferably with footnoted citations. The author’s full contact information (name, institutional affiliation, mailing address, telephone number(s), and e-mail address) should be included in the body of the e-mail.

Rights-based approach to child law

In today’s Irish Times Dr Ursula Kilkelly explores the increasing impact of international law on Ireland’s family law. The sources of international law in this area not only include the seminal Convention on the Rights of the Child, but also law emerging from the Hague Convention on Private International Law and from Europe (Council of Europe and the European Union). As Dr Kilkelly notes

Many of these declarations, treaties and agreements represent collective wisdom, accommodate diverse legal and social systems and reflect a common language and approach to child and family law matters such as adoption, family breakdown and matters of custody and access.

She goes on to highlight that the more recent significant development in this area is the EU Charter of Fundamental Rights, which came into force on December 1st as part of the Lisbon Treaty. Importantly, the Charter requires that the best interest of the child is a primary consideration in all actions concerning children. It also expects that children’s views be taken into account in matters that concern them. It is clear that in this area the Charter reflects the approach of the CRC and is as a result likely to of major importance in Irish domestic law.

Indeed, it may require a reshaping of Irish law in this area, which continues to think about children in paternalistic terms…. Concepts of “welfare” (all its components), “custody” and “access” should be challenged on the basis of the convention’s influence for their failure to promote effectively the independent rights of children to care and protection and to enjoy contact with and the involvement of both parents in their lives.

Ultimately, whilst Dr Kilkelly notes that

[T]he complexity of Irish family law, into which international and European law is now interwoven, means that lawyers need GPS to navigate its many layers and influences. The changing face of family law in Ireland brings with it the challenge of keeping up with these many new and fast-developing authorities.

She also concludes that there are many positive opportunities that will flow from these fast changing developments:

For those interested in pushing out the limits of Irish family law, in seeing it modernised from within, these inter-related international instruments and their underlying values provide a lens through which Irish family law can be considered afresh.

“Conflict in Gaza: the International Legal Framework” – Roundtable Discussion

On 22nd January 2009 the Centre for Criminal Justice and Human Rights will host a Roundtable Discussion with Dr Siobhán Wills and Dr Siobhán Mullally, Faculty of Law, UCC, on “Conflict in Gaza: the International Legal Framework”

The discussion will take place from 4.00 – 5.00 pm in Áras na Laoi, Room 10.

1 CPD Group Study point available

Keynote Address: Mr Micheál Martin, T.D., Minister for Foreign Affairs

Mr Micheál Martin opened the Conference by highlighting recent International and national developments in relation to sexual violence. He began by welcoming the important development at the heart of the conference – that sexual violence was now recognised as a human rights violation. Indeed he emphasised that Ireland supported the fact that sexual violence was now being prosecuted as a crime against humanity and a war crime.
Mr Martin informed the conference that Ireland has recently taken over as chair of the Human Security Network (a group of like-minded countries from all regions of the world that, at the level of Foreign Ministers, maintains dialogue on questions pertaining to human security); the conference is the first event of Ireland’s chair of the network. The Minister stressed that Ireland was committed to making Gender Based Violence a focus of its time as Chair of the Network in order to ensure that the eyes of the International Community remained focussed on the issue.
Domestically, Mr Martin noted that gender based violence was also a high priority for the government. He informed the Conference of recent developments nationally which included the establishment in 2007 of Cosc, the National Office for the Prevention of Domestic, Sexual and Gender-based Violence. The initiative created a dedicated office at Government level which has the key responsibility to ensure the delivery of a co-ordinated “whole of Government” response to domestic, sexual and gender-based violence. Cosc will launch the first phase of consultation on a National strategic Action Plan on Domestic and Sexual Violence in autumn 2008. Legislation reforming the whole area of sexual offences to ensure a workable, updated and simpler approach to the area would also be introduced in the future.
The Minister noted that conference was very relevant to the work of the government both internationally and nationally. He welcomed delegates and speakers and the contribution they would make to the overall debates that were necessary to ensure ongoing reform to the law on Sexual Violence at all levels.