Syria: Could such proposal be a good start for a solution?.

Dr. Leila Nicolas

It seems obvious that the negotiations between the Syrian government and opposition will not lead to any solution to the intractable crisis. The opposition rejection of the regime's "political statement" missed a good opportunity to find a platform to reach common ground for a good start for negotiations. The statement tackles general principles that may be accepted by any Syrian citizen, except the phrase of " condemning Wahhabi doctrine" where the coalition could have asked for cancelling or paraphrasing.

Perhaps the inflexibility of both delegations in Montreux indicates - beyond any doubt -that the Syrian politicians did not get tired of killing and suffering yet , nor  they are convinced that no military solution for the struggle. It is so sad to see the Syrian people- especially women in Refugee Camps - are subjected to physical threats, extortion, sexual exploitation, forced marriages, and to conditions that can be described as "human trafficking" in international law.

So, here I propose a step forward to start a solution:

Before going to Geneva II, the Syrian government , had achieved some local reconciliations and military agreements between the Syrian army and the "free Syrian army" groups like in Berzi and Moudamiah regions. If we take these military settlements in small areas as a model to other large geographical regions it may be an appropriate framework to start alleviating people's suffering. 

My proposal consists of the following:

1- A joint body of Syrian army and "Syrian free army" to observe the application of the military settlements.

2- Both parties - the government and the opposition- pledge to fight Al Qaeda, isolate 'Jihadists' and expel them from Syrian territories.

2- Heavy weapons to be delivered to the Syrian Army.

3- Amnesties to be granted to Syrian national insurgents who renounce fighting.

4- Foreign fighters to surrender to the Syrian official authorities.

Such agreement allows both parties to claim victory in this round of negotiations, i.e. the Syrian regime declares his victory in imposing his agenda of fighting terrorism, and the "coalition" declares that this "joint military body" is a part of the transitional governing body, they are seeking for.

Politics is never a zero-sum game, a deal in Syria should take into consideration the military balance on the ground, and the interest of all effective parties. To reach a good deal, you have to give all the parties the ability to claim victory, otherwise, violence and suffering will continue and a fire ignited in Syrian lands may spread and burn the whole Middle East and Europe as well.

Syria: Three paths to an intractable crisis

Dr. Leila Nicolas

The crisis in Syria is witnessing three separate paths that may affect the conflict significantly. The first is the Geneva II conference held in Montreux for negotiations between the Syrian government and the opposition,  with the participation of thirty different countries while Iran - an effective participant in the Syrian crisis - was absent. The second was in Davos at "the world economic forum", where Iran was strongly present , and despite Syria was absent as a participant, it was strongly available as a crisis. And the third path is what the Syrian government describes as "counterinsurgency" in the Syrian territories.

- As for the first path, the high-pitched and sharp tone speeches in Montreux of both Syrian delegations, plus those of U.S. Secretary of State John Kerry, Turkish Foreign Minister Ahmet Davutoglu , and the Saudi foreign minister Saoud el Faissal didn't indicate a good start to finding solutions to the conflict. Supporters of both Syrian regime and opposition declared "media victory" in the first day of Montreux conference as they exchanged accusations of supporting terrorism.

It seems that the Iranians were aware of the shallow results of the Geneva II conference. The Iranian president, Hassan Rouhani, manifested early his pessimism about the conference results. This may reveal why the Iranians were not ready to accept preconditions to attend Geneva II. It was obvious that the conference will not lead to peaceful solution, especially as the "Syrian National Coalition" witnessed a great collapse after US ambassador Richard Ford forced them to go to Geneva. Besides lack of broad popular support inside Syria from both activists and fighters, the "coalition" legitimacy has always flowed from its foreign patrons, and a main bloc quits the Coalition over Geneva conference participation.

- The second Path which was lead by Iranian foreign minister Muhammad Javad Zarif at the "World Economic Forum" in Davos , where he met ministers from Arab countries ,Turkey and European countries to discuss the Syrian crisis in both closed and open sessions. The Iranian minister in an open session moderated by Al-Arabia News Channel called for withdrawal of all foreign fighters from Syrian territories. Another closed session moderated by the Former United Nations Secretary-General Kofi Annan, called for a brainstorming to find diverse ways to resolve the Syrian crisis. Annan - who started a  visit to Iran in 26 January- said that Iran had an essential role to play in guaranteeing stability in the Middle East and urged U.S. lawmakers to give a diplomatic detente with Tehran a chance.

So it seems that the celebrations are in a place, and the wedding elsewhere. While the United Nations Secretary General Ban Ki moon set very closed and strict agenda for negotiators in Montreux, Kofi Annan seems to open doors for diverse solutions which can lead to common ground. Annan seems more realistic when he urges US " to give diplomacy, negotiation and peace a chance", and launches a delegation of Elders group to "exchange ideas with the Iranian leadership about peaceful ways of addressing conflict and healing sectarian divisions in the region".

- The third Path, is the military one, where there is a race inside Syria between the diplomatic paths and the military one. It seems that both parties and their international supporters want to change the military balance before the Syrian presidential elections next June.

President Bashar  El Assad knows it clearly that his victorious counterinsurgency lead him to participate in Geneva II conference, as the balance of power shifted dramatically between June 2012  and January 2014.

The US and its proxies want Assad to refrain from running the Presidential elections, and they are sure that he will not do unless they shift the military balance on the ground. However, it is turning to be a very dangerous game, as the Al Qaeda activists are controlling most the opposition areas, after the dissolution of the "free Syrian Army" supported by the west.

So, US is playing a very dangerous game in Syria i.e. the opposition alliance with the devil will not go in favor of the Syrian opposition at the medium and long term. And if they don't accept the results now, they will regret it tomorrow as they will be forced to accept much more less than what they are offered today.

The Legislative authority of the Security Council

Dr. Leila Nicolas*

       The UN Security Council practiced legislation in resolutions 1373 and 1540, where it issued general rules that are not applicable to specific cases only , but to be applied by all countries without specified time and place.

Based on Pragmatic criteria, Some experts defend the opinion that it is acceptable that the Security council practices some authorities that are not within his duties as approved  United Nations' charter. This arguments is based on the following: the world is facing major challenges and threats, plus serious global developments that impose on Security council to broaden its implied or discretionary powers. This is necessary to strengthen its ability to respond effectively and quickly to emerging challenges, especially in the field of terrorism.

before we agree or disagree on this, we should define the terms first: what does it mean that Security council has practiced legislative acts?.

 In order to classify a work as a legislative act , it should fall within the following framework :

1 - It should be applied to all persons or entities equally i.e. in case of confronting the same circumstances , it must apply the same rules .

2 - It should be general i.e. it is not legislated for special and specific cases.

3 - It should be known by those applicable to them .

4 -It must be constant , and has continuity .

From the aforementioned definition , we can say that the Security council has really practiced legislation especially in the field of international terrorism. So, is it legitimate?.

First: In principle , the United Nations organization does not contain any legislative body. Every rule in international law, must have the consent of the States bound by it. A state has the right to refuse  a binding rule of international law unless it has - at least - the opportunity to influence the evolution of this rule or its legal basis.

        From this standpoint , and despite the fact that most of what came in resolution 1373 , had been included in previous resolutions , and in the international treaty to combat the financing of terrorism , However the adoption of this resolution, under Chapter VII of the Charter of the United Nations , did not leave an option to the states to accept or reject the imposition of these rules, plus it obliges them amend their national laws to conform with this resolution .

        Note, that the Security Council established universal applicable future rules, and acted as a international legislator, without defining that punishable "terror crime", and did not specify exactly what are the acts that can be described as an act of terrorism .

Second -  The rules of the charter are binding to the Security Council, and Council should act with compliance with public international law , and Jus cogens of international law . Therefore, there is no legislative authority given to the Security Council , as the Charter does not give the Council this authority explicitly nor implicitly . Even when the resolutions of the Council  has mandatory power, it is a power for the implementation of a law and not as a legislator. therefore, The Council cannot create general applicable legislations, however it  " sees, notes, and decides ... " in special cases, limited in time and space.

        As the Council is an organ of an international organization established by a treaty which constitutes its constitutional framework , and as the Charter of the United Nations is the  main reference to define the powers of the Security Council, this certainly means that the council doesn't own unlimited powers , but it has to act in accordance with the principles and objectives of the Charter and the intention of its authors .

To determine , the validity of legislative actions of the Security Council as an organ of the United Nations, we can examine articles 31 and 32 of the Vienna Conventions of 1969 on the Law of Treaties .

        Article 31 of the Convention , confirms that any treaty must be interpreted in good faith, must be seen as an integrated whole , and read thoroughly . It stresses that when you need to interpret the words or substance of a Convention, the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

        If there is still ambiguity in the interpretation of the Convention after invoking Article 31 , Article 32 can be used. Article 32 calls for the use of supplementary means of interpretation, and those including the preparatory work of the treaty and the circumstances of its conclusion.

So, applying these rules to the United Nations' Charter , it is obvious that the Security Council does not have any legislative power, as the Charter does not provide such authority for the security council , and it does not seem that the intention of the drafters of the Charter and the accompanying circumstances have aimed to give this authority to the Security Council.

Thus , the Security Council is a political body and its decisions must be of the same nature, that is, they should reflect a political point of view and not a judicial or legal one.

Dr. Leila Nicolas PhD teaches contemporary international affairs at Lebanese University, and an expert in international Justice.

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.

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.

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 generations...it 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.

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.

Recommendations:

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.