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.