Sunday, September 8, 2013

US airstrikes in international law

Dr. Leila Nicolas/ Rahbani

The American administration and many western academics referred to the concept of "responsibility to protect" Syrian civilians as the reason for the intended air strikes against the Syrian regime. 
First of all, it is important to highlight what this concept is, and whether it will give the USA the right to wage this war?.
The responsibility to protect is a new international concept which is regarded now as a part of international law, as the member States included it in the Outcome Document agreeing to take this responsibility at the 2005 World Summit. Since then, the United Nations Security Council (UNSC) formalized the support for the concept in many resolutions which referred clearly to it, especially the latest resolutions of Libya 1970 and 1973.
It should be noted that this concept gives the UN security council the right to intervene to protect civilians when they are subjected to one of the four mass atrocities crimes only i.e genocide, war crimes, crimes against humanity and severe human rights abuses. It provides a framework for using political and economical means like mediation, early warning mechanisms, economic sanctioning to prevent mass atrocities, and when the international community lacks to prevent these furious crimes, then, military intervention can be the "last resort" but not the primary one.
Therefore, referring to international law, we can say that:
1- It is clearly stated that the authority to employ this last resort and intervene militarily relies "solely" on a resolution from United Nations Security Council . So, the USA and its allies cannot substitute a collective resolution from the UN security council in terms of "responsibility to protect". Otherwise, Any military intervention or air strikes will be regarded as an act of aggression.
2- Any resolution from UN security council to use military force against Syrian regime should be based on accurate facts that the Syrian government allegedly used nerve gas on civilians, which violates the international law. Thus, waging a war before the submission of the inspectors' report and without clear evidence will be a breach of international law and an act of aggression also.
In both cases, Syrian government has the right to defend itself against illegal crime of aggression.

Friday, September 6, 2013

Enforced Disappearances in Bahrain: Time to change the track

Dr. Leila Nicolas*
           Enforced disappearances have tended to be a continuing feature since the starting of the civil revolution in Bahrain. Reports from human rights' organizations highlight the detention of journalists, activists, bloggers etc.. and the security forces deny any information about them.
            The  International Convention for the "Protection of All Persons from Enforced Disappearance" that was adopted on 20 December 2006 - during the sixty-first session of the General Assembly by resolution A/RES/61/177- and  entered into force on December 23,2010, defines the Enforced disappearance as the phenomenon when "a person is subject to arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law".
            Even though Bahrain is not a state party of that convention, it still has the obligation to respect this prohibition, as it is a rule in customary international law. The states' practice established " the prohibition of enforced disappearances"  rule as a norm of custom applicable in international humanitarian law, international human rights law and the international criminal law. Here are some indications:
- the ICRC study of customary rules of international humanitarian law proved that Enforced disappearance is prohibited in the rules of customary international law (rule 98) for it constitutes a grave threat to the right to life,  and it violates, or threatens to violate, a range of rules of international law, as follows:
-  violates the prohibition of arbitrary deprivation of liberty ,
-  breaches the right of a person not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment and the prohibition of murder .
- it constitutes a violation of the right to recognition as a person before the law, the right to fair trial, and the right to liberty and security of the person,
            Furthermore, The development of international criminal law, and the precedents of the international criminal courts stressed on the prohibition of Enforced displacement:
- It was constituted in the Statute of the International Criminal Court (the Rome Statute), that "the systematic practice of enforced disappearance constitutes a crime against humanity" (article 8)
- the International Criminal Tribunal for the former Yugoslavia found that enforced disappearance could be characterized as a crime against humanity if it was done systemically, although it was not listed as such in the Tribunal’s Statute (Kupreškić case, 2000). It should therefore be noted that, although it is the "widespread" or "systematic" practice of enforced disappearance that constitutes a crime against humanity, any enforced disappearance is - for sure- a violation of the international humanitarian law and the human rights law.

            The phenomenon of “enforced disappearance” is prohibited by international law, meaning that states have a duty of investigating cases of alleged enforced disappearance, and preventing them through the registration of  detained or deprived of their liberty, taking all feasible measures to account for persons reported missing and to provide their family members with information it has on their fate etc...
            It is more than urgent for the Bahraini government to comply with these obligations and duties under international law, and to bring to justice those responsible for those crimes. No exceptional circumstances whatsoever, whether internal political instability or any other public emergency or even accusations of "terror" attacks, may be invoked as a justification for enforced disappearance done by a state or its agents.
            It is the government's duty to guarantee the right of the victims' families to know the truth regarding the circumstances of the enforced disappearances of their beloved ones, their fate,  and the progress and results of the investigations, to take appropriate measures in this regard, and reaffirm their right to freedom to seek, and  receive impartial information to that end.
            It is time to change the track, it is time to call for serious actions, Bahraini government and civil society are on urgent call for duty and responsibility.

Dr. Leila Nicolas is a professor in the Lebanese University, and an expert in the fields of Humanitarian international law and international Justice.

Monday, August 12, 2013

Youth rights in Bahrain: The ultimate Scope of the future

Dr. Leila Nicolas*
             Globally, even though youth rights have a long history that is longer than commonly known, it was not until the nineties of the twentieth century that these rights swirled to the surface at global level, most notably with the 1992 Report of UN Special Rapporteur on Youth and Human Rights. After that, youth rights became at the center of human rights international law, that were included in many international treaties specifically the children's rights convention.
            However, the dilemma that arose at the international field was the absence of a clearly defined legal definition of young people. In contrary to the children, who are progressively treated and understood as a codified concept with a clear legal status, young people do exist as a legal category, but this category is not clearly defined and young people continue to be widely perceived as a socio-political concept with unclear borders and inconsistent interpretations.
            For the case of Bahrain, what was called "Arab Spring" added more challenges and risks to the Bahraini Young people that have been deprived from basic freedoms and  rights, added to the  pressing global challenges on the youth all over the world i.e. high levels of unemployment, vulnerable working conditions and marginalization from the decision-making processes.
            Media Reports from the streets of Bahrain show that many young girls and boys put themselves on the line of fire each day by going to the streets calling for their rights. They have been subject to torture, prevented from education and  from their basic right to medication as a punishment for rebellion. Actually, those young girls and boys were not only speaking for political change, but struggling to achieve their dreams of citizenship, right of  free expression, human dignity and equality.
            Under International law, the Bahraini government has the obligation to guarantee the human rights of its citizens, and has a duty to prosecute human rights' abusers especially the rights of youth. No measures of responsibility and accountability were taken when a sixteen-year-old boy- which is usually regarded a minor in terms of rights - has been subjected to defamation and his image appeared on various internet websites facing charges of "terrorist attacks". It is a great sign of double standards in Bahrain where the government treats young people as adults in matters of judicial responsibilities, in cases of arrest, prison and justice while only granting them the rights of minors, or offering them no rights at all.
            It is urgent to call for youth rights as a part of human and citizen rights in Bahrain. It should be one of the main issues raised in any negotiation or reconciliation process between the government and the opposition; to highlight current challenges for young people in accessing their rights, to explore the rationale of binding and non-binding instruments to ensure that young people can adequately access their basic freedoms and rights, and to implement the right of youth to freedom from all forms of violence.
            While the globe is enjoying the big step in the progress of youth rights through the finalization of the Youth Development Index, the Arab governments have to answer the question whether and how they want to engage in the youth rights discourse changing the challenges and risks of youth bulbs in their countries to major advantages.
            On 17 December 1999, the United Nations General Assembly declared 12 August be the International Youth Day. It is important on this day especially to call for the people and governments of the world to take into consideration the input of the future generations all over the world and in Bahrain as well. Investing in the future, is the real investment that may build a new Bahraini State, that may raise up to the expectations of new is the wise investment in youth.

Dr. Leila Nicolas is a professor in the Lebanese University, and an expert in the fields of Humanitarian international law and international Justice.

Thursday, July 18, 2013

Book: dilemma between justice and peacebuilding

 My book is in the Peace Palace Library , and ICC library at the Hague...
It is in Arabic, and the English version will be published at Fall 2013.

Summary of  the book:
The book is entitled: The dilemma in maintaining a balance between justice and peace-building: the international criminal tribunals as case studies.
     In fact, what led me to choose this title, is the Special Tribunal for Lebanon and the tension it made in the Lebanese society. I wanted to get an objective vision and idea about the international tribunals and their impact on peace building in the societies they are supposed to serve.      
      The main objective of this book is to study the following thesis:
 The UN Security Council Resolution no. 827, issued on May 25, 1993, spoke of the determination to create a special international tribunal to try and prosecute persons responsible for serious violations of international humanitarian law in the former Yugoslavia, stressing that its creation would bring justice that will contribute to the restoration and maintenance of peace ( resolution 827 \ 1993, Preamble, p 1).
            So, the book stresses on the question that after twenty years the establishment of ICTY and the other international courts, do the practical cases prove the validity of this argument?.
            The first two theoretical parts of the book discuss the development of the international humanitarian law, the new and challenging concept of R2p, the diverse mechanisms of transitional justice, the development of the international criminal law and the long historical journey of the foundation of the international courts from Nuremberg to the Hague.
            As for the practical framework, it was necessary to identify the concept of peace-building, through measurable variables that were determined as follows:

Peace-building assumes:
First: stability, security and the mitigation of violence.
Second:  democracy and human rights.
Third: the coexistence and building trust among citizens and between them and the state.
Fourth: the rule of law.

  The main findings of the study:
1- Were the international criminal tribunals able to achieve their goals in bringing peace to the societies?
            Based on surveys, reports and interviews, we found out that, excluding the Cambodian case, the international criminal tribunals weren't able to contribute to peace building in the societies. In some cases, they hindered the peace talks, and in most cases they lacked the trust of the people.
2- For an answer to the basic dilemma, does criminal justice lead  to peace?
In this study, we found out that Criminal justice is not a definite path that leads to peace, or a prerequisite means that must be provided for a community to feel secure, stable and begins to pave its road to peace and reconciliation.
            Conversely, the presence of peace - even in the negative sense - may allow the realization of justice and to bring the perpetrators to justice, compensate for the victims and reserve their rights and, of course, acknowledge their suffering.
3- The criminal justice mechanisms can contribute to the peace-building process only if accompanied by other political mechanisms, and thus any isolated mechanism alone cannot achieve long lasting peace.
4- The cases showed clearly that the best solution for a society is to let the political solution lead the mechanisms of justice not the contrary, and it should certainly be a population-based solution.
5- For the dilemma between amnesty and accountability, the study showed that trials alone or amnesty alone is not able to achieve peace. Both of them need to be accompanied by other mechanisms to achieve peace or at least, to achieve acceptable reconciliation in a society.

To the international community
- The international community, should not impose its will on the people like  a "trustee, but  respect for the right of peoples to self-determination and their right to choose the best means to achieve peace in their country.
- the international community should develop non biased mechanisms of accountability, and disseminate awareness of justice within local communities. it is not enough that human rights NGOs glorify achieving justice, but  it should be clear for the people and the victims that justice is settled.
- It should be noted that a criminal justice is just a way to prosecute the perpetrators, and it should not imply to be a roadmap to building peace, promoting democracy and human rights and achieving reconciliation in a society as it is referred to by many international organizations and the UN secretary general.
- The cases show that the best international courts are the hybrid ones, but they should be settled in the country itself. In order to overcome this mistrust and other difficulties, the international community must place greater emphasis on strengthening the national justice systems of the countries where atrocities have occurred, through the foundation of extraordinary chambers or appointing international judges to help and monitor the trials at the national level.
To the International Criminal Court
1 -The surveys showed that the people of the countries where the atrocities took place, trust their corrupted courts more than the international ones, so it is necessary that the ICC develops its outreach strategy and makes more effort in networking with the people.
2 - The complexity of the judicial process and the length of the period of detention and trials, in addition to the "compromises" the court had to do to maintain states' cooperation etc.. all these issues have raised the skepticism about the International Justice, so the ICC - like ICTY and ICTR-  should set a completion strategy for each case. It should not be permissible to continue trials forever.
3 - the ICC should use the concept of "positive complementarity"  effectively, so it may - under its supervision- shift the cases to the national courts when the state becomes "capable" and "willing" to carry out its responsibilities for prosecution of perpetrators within the jurisdiction of the court.

Thursday, April 18, 2013

I have a dream

I have a dream.... 
to live in a place, where women are seen as humans not just females with sexy bodies;
to live in a place where retired people give place for the youth;
to live in a place where students are not intentionally locked in human- made barriers;
to live in a place where honest people are not described as naive;
to live in a place where the human dignity is preserved whatever your sect is;
to live in a place where you have the right to achieve your goals even if you don't accept to practice clientism;
to live in a place where peace is not just security;
to live a place where people don't close your windows of hope each time you open one;
in a place where I have the right to DREAM.....

Saturday, March 16, 2013

The future world order: A set of strategic blocs

Leila Nicolas Rahbani, PhD

Paper Presented at The 21st Intl Conference on the Persian Gulf
Bandar Abbas, 5-7 March, 2013

In this phase, and as the international system had reached a new stage marked by a series of highly disruptive events; i.e. the failure of American war on terror, the fall down of the international financial system, nuclear proliferation, the developments in the Arab world and the decrease of American control on the international organizations... These disruptions have contributed to a growing sense of doubt about the old system; leading to major shifts in the international scene, i.e. shift towards Asia, the waning influence of the west, to the re-emergence of Russia and other regional powers in the international scene especially after the Syrian crisis.
As for the rest of the world, the image and legitimacy of Western leadership have deteriorated spectacularly after the Arab uprisings. The western understanding of the world is no longer universal, while the very notion of universal values is openly under attack, especially after what have been seen as western hypocrisy on the Arab uprisings.
Western leadership is on the wane internationally. The United States is losing its influence on the global economic stage. Americans and Europeans are no longer able to control international decisions alone. No major issue at the international scene - as it is has been seen in the Syrian crisis- can be dealt with without the help of Russia, China and other regional powers like Iran.
Nonetheless, It is clear that the new world order of American dominance is fading; however no clear leadership or rules have replaced this till now. Multi polar blocs will become a reality. International order is heading towards the emergence of strategic blocs that will converge and diverge according to the national interests in each case.
These issues and conclusions will be discussed in my paper.