By Belachew M Fikre, Lecturer at Addis Ababa University, Institute of Human Rights

The current web of popular uprisings challenging authoritarian rules in North African states (Tunisia, Egypt, Libya to cite but three) and in the wider Arab world revitalises transitional justice mechanisms as tools of addressing past wrongs. While former president of Egypt Hosni Mubarak has already been charged with various crimes, president ben Ali is also due to be brought to justice very soon. And no doubt Colonel Muammar Gaddafi Gadhafi together with his family aides would follow suit.

Transitional justice implies the presence of both transition from authoritarian rule to democracy and the rendition of justice as a sign for renewed future. Thus, it presupposes both ‘political change’ and ‘legal responses to confront the wrongdoings of repressive predecessor regimes (Tietel 2003, p69).

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Following our recent post on Bin Laden’s killing, here is another comment via aquiescencia:

El debate sobre la legalidad de la ejecución de Bin Laden de acuerdo con el derecho internacional está en todos lados. Y es correcto que así sea.  En principio, el derecho a la vida de todos los seres humanos está amparado por el derecho internacional de los derechos humanos y también por el derecho humanitario bélico, que rige en los conflictos armados. En este último caso, dado un conflicto armado, no se puede ejecutar a nadie que no participe … Read More

It’s official, Bin Laden is gone. But is it fine celebrating his death as the incarnation of ‘justice’ though? Along with this Jus ad Bellum (right to engage in a conflict), a Jus in Bello issue (justice in war) is also worth considering. Should terrorists be considered as outlaws and outrights to whom the due process of law should be denied because they use violence and killings as their main means of action? In other words, can terrorists be killed the way they kill, and can killing terrorists without any form of due process of law bring any form of constructive justice?

Lawful action?

John Bellinger (former legal adviser to the US State Department) describes what will probably be the US Government’s defence, i.e. that the killing will be characterised as lawful under domestic law and international law (see here).

First, as he notes, (i) US law through the Authorization to Use Military Force Act of September 18, 2001, authorizes the President to use “all necessary and appropriate force” against persons who authorized, planned, or committed the 9/11 attacks, and (ii) the killing is not prohibited by the assassination prohibition in Executive Order 12333 “because the action was a military action in the ongoing U.S. armed conflict with al-Qaeda and it is not prohibited to kill specific leaders of an opposing force [whilst] the assassination prohibition also does not apply to killings in self-defense”.

Second, he adds, “the executive branch will also argue that the action was permissible under international law both as a permissible use of force in the U.S. armed conflict with al-Qaeda and as a legitimate action in self-defense, given that bin Laden was clearly planning additional attacks”.

These arguments are however questionable, if only because the ILC Draft Articles on State Responsibility make it clear that an act deemed legal under domestic laws can infringe international standards and therefore be illegal under public international law. Article 51 of the UN Charter on the right to self-defence, for instance, does not expressly authorise extrajudicial executions or anticipatory strikes even though the US have relied on the latter as a main feature of their National Security Strategy (available here). Justifying the death of Bin Laden on the ground of anticipatory self-defence, as a result, would characterise it as an unlawful extrajudicial killing debatable under public international law.

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By Susan Breau, Professor of International Law (Flinders University, Australia)

On 30 March 2011, the Security Council acting under Chapter VII of the Charter  adopted Resolution 1975 which urged the defeated President Gbagbo to immediately step aside and declared the situation in Ivory Coast to be a threat to international threat and security.

The resolution also imposed targeted sanctions (freezing of assets, travel bans) against Laurent Gbagbo and other members of his regime.  In its preamble it declared that the attacks currently taking place in Côte d’Ivoire against the civilian population could amount to crimes against humanity and that perpetrators of such crimes must be held accountable under international law and noting that the International Criminal Court may decide on its jurisdiction over the situation in Côte d’Ivoire on the basis of article 12, paragraph 3 of the Rome Statute.

For the purposes of this analysis the resolution also authorised the United Nations Operation in Cote d’Ivoire (UNOCI) to use “all necessary means to carry out its mandate to protect civilians” including preventing the use of heavy weapons.  Surprisingly, the resolution specifically mentioned ‘the French forces’ supporting UNOCI which indirectly authorised the use of force by French forces  in assisting the UN operation to fulfil its mandate.

Importantly, the resolution specificially referred to the ‘primary responsibility’ of each State to protect civilians, thus referring to the responsibility to protect albeit in an oblique way. It can be asserted that together with the recent resolution 1973 on Libya which authorised “all necessary means to protect civilians”, there is a growing body of international practice responding to massive violations of human rights with mandates to use force, if necessary, to protect civilians.

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By Abebe, A.Mulugeta
Many have been criticizing, sometimes unfairly, the response of the African Union to the human rights situation in Libya. But several organs of the organization including its Peace and Security Council, the African Commission on Human and Peoples Rights and now the African Court on Human and Peoples have swiftly reacted by condemning the violations of human rights and international humanitarian law in that country.

The decision on provisional measures taken by the African Court on Human and Peoples Rights on 25 March 2011 (available here) is particularly significant as its represents the first “ judicial” response to the human rights situation in Libya. It is also important as it is only the second ruling of this new court and the first one based on an application by the Commission.

Following the crisis, the African Commission on Human and Peoples rights, based on various complaints it received mainly from NGOs, examined the situation and adopted a resolution. In this resolution which the Commission issued during its 9th extraordinary session held between 23 February to 3 March 2011 (ACHPR 181 EXTR.OS(IX) 2001), the Commission expressed its concern about “ serious and massive human rights violations resulting from the blind and indiscriminate use of force, in particular through aerial bombings, the recourse to mercenaries to suppress peaceful demonstrations and the legitimate protests of the citizens.” It strongly condemned the “ divisionist speech including by the head of state of Libya and expressed alarm at what it considered to be a “ huge loss of life,” and a massive displacement of populations. It thus “invited” the Libyan authorities to immediately stop the violations and called the international community and the African Union to take all the necessary “political and legal” measures. The Commission, though not clearly authorized under the Charter, has been issuing similar resolutions which are intended to reflect its positions on unfolding human rights events among member states.

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By Loye Jide Olufemi (LL.B, LLM, BL), international lawyer and legal consultant on laws of war practicing in Nigeria and working on Human rights and international armed conflict issues. 

Ivory Coast, a former French Colony that was once admired and envied by its West African neighbours for its well developed economy and political stability has been plagued by continuous turmoil in recent years.

Historical Perspective

For more than 30yrs under its charismatic first president Felix Houphouët-Boigny, Ivory Coast prospered as a nation. However, Houphouët-Boigny’s death in 1993 brought an end to the country’s economic prosperity and political stability. Henri-Konan Bédié succeeded him in 1993, and won the 1995 election boycotted by the opposition led by Houphouet-Boigny’s Vice President: Alassane Ouattara. A coup–d’état orchestrated by General Guei forced Bedié and his government out in 1999, and presidential elections took place under his military dictatorship. Ouattara (whose party represented the majority group as reflected in the parliamentary votes) was banned from the presidential elections because of his alleged foreign parentage, while Gbagbo was allowed to run against Guei. The election results were disputed, but the Supreme Court eventually declared Gbagbo the winner. Guei, however, would not relinquish power, leading to clashes and many killings. General Guei was eventually deposed in an uprising and the declared winner of the elections Laurent Gbagbo was installed as the president.[1]

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We are please to announce the publication of a new article by our colleague Dr Juan Garcia-Blesa, Juan  Assistant Professor in Comparative and International Law at the American University in Bosnia and Herzegovina, Sarajevo.

The abstract reads as follows:

Promotion and even direct implementation of rule of law in conflict and post-conflict societies, as defined by the UN Secretary-General in 2004-2006, have actually become core activities of the United Nations during the last decades. These tasks are normally entrusted to international administrations that exercise a number of legal competences in the field embodied in their international mandates. The OHR in Bosnia has been mandated to guarantee that full compliance with the Dayton Peace Agreement is achieved, including respect for the essential elements of rule of law in this society, as a key condition for long-lasting peace. However, some of the competences of the OHR seem to go far beyond the most basic idea of rule of law. This is the case of the power to vet, dismiss and ban public officials from public life at the OHR’s discretion, in permanent and increasing tension with the due process requirements. This anomaly can be explained by the need for some transitional exceptions to the rule of law in conflict and post-conflict societies. Furthermore, suspensions are provided for by every international human rights system on the grounds of exceptional emergency states (e.g., Articles 4 ICCPR and 15 ECHR). Notwithstanding, there seem to be a common limitation to exceptions in these systems that require them to be temporary. After thirteen years of exceptional rule in Bosnia, could this be the time for revision? Any tentative answer would need a thorough evaluation of the political situation in Bosnia. This paper only attempts to offer some reflections on possibe legal scenarios with regard to this interesting phenomenon of international life.

Reference:  Garcia-Blesa, Juan J., Rule of Law and the Transitional Exception in International Administrations: The Case of the OHR in Bosnia and Herzegovina and the Right to Due Process (January 21, 2011).

Available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1744919

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