can the icc investigate europe

Can the ICC Bite the Hand That Feeds It?

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Can the ICC Bite the Hand That Feeds It?

can the icc investigate europe

European countries played a key role in the establishment of the International Criminal Court (ICC). Every member of the European Union has become a member, and the ICC is headquartered in Europe (read more about Europe’s connection to the ICC here.) European countries are also the court’s biggest financial supporters (see here pp. 44-45).

The court began operations in 2022, and so far has opened 17 investigations, leading to charges against 49 defendants and five convictions. Most of its initial investigations involved Africa, leading to criticism that the court was focused on exporting European-style justice to that continent. But in the last few years the court has expanded geographically, indicting leaders of the Taliban in Afghanistan, Rodrigo Duterte of the Philippines, Russian leaders for conduct in the Ukraine war, and leaders of Israel and Hamas over conduct in Gaza. European governments have, with a few exceptions, been by and large supportive of the ICC’s work, and supported all these indictments as well-intended attempts to bring perpetrators of atrocity crimes to justice.

While 125 countries have joined the ICC, several prominent ones, such as the United States, Russia, and China, have not. Russia has been particularly hostile towards the ICC due to the recent indictments of its leaders, going so far as to issue threats against individual ICC judges. The United States recently issued sanctions against ICC personnel as well. But the European Union has stuck up for the court, opposing these sanctions and criticizing the United States.

Now, several prominent human rights lawyers culminated six years of investigation by filing 700 pages of evidence with the ICC, claiming that over 120 European leaders are guilty of crimes against humanity. These lawyers urge the ICC to follow up with indictments. French President Macron, Former German Chancellor Merkel, Polish Prime Minister Tusk, and other highly prominent officials are on the list.

The alleged crimes relate to Europe’s treatment of refugees fleeing Libya and attempting to reach the continent by crossing the Mediterranean. The lawyers claim that the European leaders caused the deaths of at least 25,000 of these asylum seekers, and caused 150,000 more to be tortured, raped, and enslaved.

This raises a key question. The ICC has so far never as much as investigated, let alone indicted, a leader of Western Europe. Can it be trusted to handle allegations against its biggest supporters impartially, even as it relies on European leaders for both financial support and political backing as both Russia and the United States seek to undermine it?

More broadly, what does this say about international justice? International courts, such as the ICC, are created and funded by groups of countries. So how can we expect them to be impartial and non-political? Isn’t it inevitable that they be pushed to investigate whoever the court’s members disfavor, and to refrain from investigating supporters?

But what is the alternative? No non-governmental organization has the authority or resources to create any sort of international criminal court. And would we really want an organization that is privately funded and not beholden to any voters to be in charge of international justice?

One of the lawyers who helped prepare the 700 page document was quoted as saying:

The law of the ICC was born out of European crimes but only applied so far to crimes committed outside of Europe. Our request is simple: to apply the law impartially, also upon European nationals.

Do you think the ICC is actually going to do that? No matter what the ICC prosecutor decides, will you believe that they have acted based only on considerations of truth and law, not politics? Is there a better way? I’m anxious to hear your thoughts.

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Amnesty for Atrocities?

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Amnesty for Atrocities?

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Paragraph 6 of Trump’s peace plan for Gaza states as follows:

Once all hostages are returned, Hamas members who commit to peaceful co-existence and to decommission their weapons will be given amnesty. Members of Hamas who wish to leave Gaza will be provided safe passage to receiving countries.

 

There does not seem to be any limitation with regards to what Hamas members are eligible to receive amnesty for. This would seem to mean, then, that even Hamas members who are guilty of torture, hostage taking, or other war crimes or crimes against humanity would be eligible for amnesty if they ‘commit to peaceful co-existence and decommission their weapons.’

This does not accord with international law. The Red Cross makes clear that while a government can grant a general amnesty to the members of groups that have rebelled or fought against it, when it comes to atrocity crimes no amnesty is possible. This is because every government has an obligation to prevent, put a stop to, and punish war crimes and crimes against humanity should that be needed. No government, or in this case coalition of governments signing the Gaza peace agreement, can bargain away this obligation. Furthermore, no amnesty is binding on the International Criminal Court, which would maintain jurisdiction and be able to prosecute atrocity crimes regardless.

The problem, of course, is that there is often a tension between justice and peace. On the one hand, peace requires some modicum of justice- any arrangement in which longstanding injustice is entrenched or ignored will not endure. But on the other hand, a single-minded focus on justice will likely get in the way of peace. If the enemy knows it faces prosecution, it will likely refuse to lay down its arms. To actually achieve peace usually requires an element of forgiveness and willingness to let go of trying to right at least some past wrongs.

It is unclear whether any Hamas members will actually try to avail themselves of this amnesty. But it still raises an important question about how far we are willing to go in offering forgiveness.

The case in favor of negotiating a ceasefire arrangement was overwhelming. If Hamas insisted on a blanket amnesty as part of the deal, was agreeing to it the right thing to do? Was it better to make an agreement that ends end suffering in the present, even if it means potentially letting Hamas members responsible for the most heinous crimes permanently evade punishment?

Or are there some crimes that cannot be forgiven, no matter what? Are there some crimes that are worth more fighting, more suffering, and more death in the here and now in order to make sure they are punished? Is amnesty for atrocity crimes actually the more dangerous path, because it increases the chances atrocity crimes will be repeated in the future? I’m interested to hear your thoughts.

 

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War on Crime: Just Murder or Justice?

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War on Crime: Just Murder or Justice?

Was Trump’s decision to declare war on cartels a resourceful tactic or a frightening switch?

shalzed watches drug boat two

War is a temporary legal situation in which the prohibitions of murder and destruction are lifted. Ordinarily it is against the law to kill people- but should war be declared, for the duration of the conflict soldiers may kill one another. As long as they do so in accordance with the laws of armed combat they’ll face no legal repercussions at all.

Declaring war is therefore an extraordinary power, so much so one might wonder how on Earth anyone can possibly be able to do it (on my planet such a thing can’t be done!). But simply as a matter of custom, we accept it as given that governments can in fact declare war and thereby permit murder, arson, and so forth for limited periods of time.

Bringing drugs to the U.S. for sale is a crime. According to Article 11 of the Universal Declaration of Human Rights, anyone suspected of a crime has the right to a presumption of innocence and a fair trial.  Therefore, common practice has always been that should a boat be suspected of smuggling drugs to the U.S., the Coast Guard intercepts it to search for evidence. If evidence is found, those on board are arrested and put on trial. The Coast Guard may only use force in self-defense or if the boat attempts to flee.

However, the U.S. military has recently begun bombing such boats with no warning and killing everyone on board. While this would at first appear to be a gross violation of human rights, President Trump justified this by determining that the U.S. is now at war. Therefore, with regard to these boats murder and destruction are allowed. He has not made clear exactly what gangs or cartels the U.S. is at war with, or how the U.S. military decides if a given boat is connected to those entities.

As a mater of domestic law, it is questionable whether the president can do this without the approval of Congress. But be that as it may, is this a proper use of war?

Trump may argue that drug smugglers abuse their rights in order to enable themselves to commit their crimes. They find ways to destroy contraband before being caught and know how hard it is to construct a legal case against them. And they exploit the vastness of the ocean and the limits on the Coast Guard’s use of force to evade detection, and should they be detected to escape. Illegal drugs cause countless harms, including numerous overdose deaths, and the government has to find a way to stop these drugs from entering the country. Declaring war to enable bombing the boats may be the only way.

But there are many reasons to worry. If the government can declare war other than when it is confronted with an organized enemy carrying out armed attacks, where will it end? Could this war be extended from drug smugglers on the high seas to drug dealers on U.S. soil? Could war be declared against other types of criminals as well? What about migrants illegally crossing the border? Could war on political opponents be next?

Is expanding the definition of war a good way to address problems that have no other, easier solution? Or do we need to constrain the right to declare war as much as possible, due to the immense harm, including harm to innocent people, a declaration of war may lead to? I’m curious to hear your thoughts.

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Is a Nickel All The World Can Spare?

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Is a Nickel All The World Can Spare?

Is $100,000 for Haiti fair or an insult?

shalzed small coin

Let’s say someone has no money for food, clothing, or shelter, and so for lack of other options is forced to turn to friends and family for support. And a cousin living close by, by no means rich but also definitely not poor, decides to help out by giving only one nickel. Should the recipient say thank you, because even though a nickel is hardly anything, the cousin was under no obligation to give at all? Or does the recipient have a right to be angry and indignant that their relative didn’t assist in a more substantial way?

Haiti is one of the gravest, ongoing human rights disasters currently taking place. It is plagued by gang violence and a lack of law and order. According to a UN report released last April, more than 1 million people have been displaced from their homes, often multiple times. Half of the population, approximately 5.5 million people, face acute food insecurity and two million are suffering emergency levels of hunger.

For the last year or so, a multinational security support team, led by Kenya, has deployed to help Haiti’s police. It faces many challenges, high among them a lack of funding. In general, both the United Nations and NGO’s have struggled to raise sufficient funds for both humanitarian and security assistance for Haiti, and there have been numerous pleas for more aid.

This week Mexico announced a donation to help fund the multinational security mission to Haiti. Mexico declined to state the sum, but news reports based on documents available from the United Nations placed the amount at $100,000 U.S. dollars.

It’s of course unfair to single out Mexico, as many other countries have either refused to contribute at all or made very limited contributions. But to put this sum into perspective, note that in 2024 Mexico’s defense spending was $16.7 billion U.S. dollars. The total expenditures of Mexico’s government were just over $200 billion U.S. dollars. This means the Haiti contribution was 0.0006% of Mexico’s defense spending, and 0.00005% of spending overall. In other words, a proverbial nickel. It’s fair to assume that if Mexico had been inclined to do so, it could have come up with a little more.

Of course, Mexico can say that it has its own problems, including the fact that in spite of recent reforms one third of its citizens still live in poverty. Why should any country devote its limited resources to helping solve problems abroad, while it has its own population to care for?

But there are valid reasons why countries should assist. Humanitarian catastrophes have a way of spreading, as desperate citizens attempt to escape and become refugees elsewhere. It may be cheaper, more politically palatable, and also achieve better outcomes for the affected population to invest in resolving a humanitarian crisis abroad rather than having to absorb a tidal wave of refugees later.

Second, there may be a straightforward human rights imperative. When millions of people are hungry and displaced from their homes, with no government to provide them security or any assistance at all, the whole world may be called upon to act. If governments do this, it necessarily means sacrificing spending on some domestic priorities. But is that what a commitment to universal human rights demands?

What do you think? Are countries obligated to help generously when foreign populations suffer a humanitarian crisis? Was Mexico’s small donation insufficient? Or are countries entitled, or perhaps even required, to prioritize their own needs first, and Haiti should consider itself lucky to get any foreign aid at all? I’m curious to hear your thoughts.

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Our Hands are Tied: When Countries Outsource Human Rights Violations To One Another

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Our Hands Are Tied:

What Can We Do When Countries Outsource Human Rights Violations to One Another?

shalzed watches plane take off

Last week the United States government deported five citizens of Nigeria and the Gambia to Ghana. While at first glance this might not seem remarkable, it endangered their lives while at the same time triggering a frustrating court case that highlights the limits of both domestic and international law. (Here are links to news coverage from Politico, and the actual decision.)

Unlike other illegal immigrants, the U.S. could not legally deport the five men at the center of this case to their home countries. This is because they had won in U.S. courts what is called ‘fear-based relief.’ This means that a judge decided that ‘more likely than not’ they will face persecution, torture, or death should they be sent back home.

This does not grant them the right to stay in the U.S. indefinitely or mean that the U.S. cannot remove them, only that if the U.S. wants to remove them it has to be to a third country where they don’t face these fears. And usually that is very difficult to arrange, since countries are not keen to accept deportees who are not citizens.

But the Trump administration got Ghana to take them, and the U.S. also got Ghana to write what’s called a ‘diplomatic note’ stating that Ghana would not torture these individuals or send them to a place where they would be tortured. This made removal of these five men to Ghana, even though they have no connection to Ghana whatsoever, no friends or family there, and no access there to help, legally okay.

Then it turns out the conditions of this diplomatic note were not followed, or perhaps that Ghana’s supposed commitment not to send these people to a place they face torture was even a sham from the start. The five individuals allege that already while they were on the plane to Ghana, ICE officers told them they were going to be taken from there to their home countries. One of the five was in fact returned to his home country the day after his arrival in Ghana, and Ghana authorities have stated that the same will shortly be done to the remaining four as well.

These five men sued for relief in a U.S. District Court, claiming the U.S. government was violating the protection they had been granted by U.S. courts against being returned to their home country. The judge wrote she was ‘alarmed and dismayed’ by the government’s actions, but reluctantly denied their request. She said the reason is that judges cannot evaluate or second guess diplomatic agreements such as the one between the U.S. and Ghana, as that would be an intrusion into foreign policy. And now that the men are in Ghana, she has no jurisdiction to tell the government of Ghana what to do. In other words, she wrote in conclusion, her hands are tied.

The question therefore becomes, what is the solution? In a world divided into nearly 200 independent, sovereign countries, what can stop a government from using another country to easily get around whatever domestic legal restrictions it wants to evade? Since every country’s judicial system only has jurisdiction over its own territory, it seems quite simple for governments to get around their judiciaries by outsourcing whatever dirty deeds they want to commit to each other. This is particularly true for powerful countries such as the United States, which can offer money or other incentives for smaller countries to do its bidding.

The obvious answer would be to dream of some world body in charge of enforcing the law, but there does not seem to be any scenario by which that could be created. There is also plenty of reason to worry that some powerful new organization with jurisdiction over the whole world would end up being biased and corrupt, no matter how good the intentions behind it.

So is the only answer to hope that citizens don’t like their government circumventing the courts to violate human rights and vote out governments that do this? It may turn out that these sorts of things are a low priority for voters, and even at best that’s a long term process which offers no help to the five people whose rights are being violated now. Is there any other answer? I’m anxious to hear your thoughts.

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Low Standards on the High Seas

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Low Standards on the High Seas

Was blowing up a boat of drug smugglers alright?

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Wednesday, Sept. 2nd, the U.S. military attacked a boat in international waters in the Caribbean. The U.S. claims the boat was smuggling drugs into the country, and as a result of the attack all eleven people on board were killed.

How does this U.S. attack fits into human rights and humanitarian law. Was this legal on the part of the U.S.? Was it wrong for the U.S. to do? Or does it show flaws in the international legal system? Explore below.

Image of the boat moments before the attack released by Donald Trump on Truth Social. Trump claims 'bags of drugs were all over the boat' but that does not seem to be clear from any of the photos.

Image of the boat moments before the attack released by Donald Trump on Truth Social. Trump claims ‘bags of drugs were all over the boat’ but that does not seem to be clear from any of the photos.

Criminal Law

The U.S. government certainly can make it a crime to import drugs and to punish anyone who tries to do so. However, Article 11 of the Universal Declaration of Human Rights begins:

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

 

In other words, if this was a boatload of criminals they would have to be arrested and put on trial. A trial is particularly important because the government has not offered any evidence that these were drug smugglers, and the fact that 11 people were on a boat that could easily be crewed by just 2 or 3 points to this being some sort of human trafficking ring and not drug smugglers at all. So before punishing the people on the boat, a judge or jury would have to be convinced that they really were smuggling drugs.

If U.S. authorities had attempted to stop the boat and it had responded by trying to flee, or by firing on the U.S. ships, that would have been a legal rationale for use of force. But in this case it does not seem the U.S. even made an attempt to apprehend the boat. Instead, U.S. forces just destroyed it with no warning.

Any scenario in which a U.S. President unilaterally declares a group of people to be drug smugglers and orders them killed with no judicial oversight is a violation of human rights. The good news is that at least as of now I don’t believe that even the Trump administration is claiming the right to do this.

Self-Defense

The U.S. claims the boat did not contain just random individuals smuggling drugs for their own personal financial gain, who would have to be treated as criminals, but rather it was operated by the Tren de Agua gang. The administration has labelled Tren de Agua ‘narcoterrorists’ and claim the gang is a threat to the United States.

This leads a claim of self-defense. For example, U.S. Secretary of State Marco Rubio was quoted as saying, “These are organized, corporate, structured organizations who specialize in the trafficking of deadly drugs into the United States of America. They pose an immediate threat to the United States. Period.”

However, this assertion may not survive legal scrutiny. The internationally recognized right to self defense is codified in Article 51 of the UN Charter, which reads:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations. . .

Is drug smuggling an armed attack? It’s hard to see how. In fact, it would seem like the phrase ‘armed attack’ was carefully selected to exclude criminal activity and make clear that states can invoke a right of self-defense only against military attacks, not criminals.

Of course illegal drug use causes tremendous suffering, economic loss, and deaths. But so do many other societal ills. The fact that something is harmful (or even criminal) doesn’t mean the government has a right to resort to extrajudicial killing to defend us from it.

Armed Conflict

The U.S. government, with its rhetoric about the ‘war on drugs’ and labelling Tren de Agua as terrorists, makes it seem as though it is engaged in what would be called a ‘non-international armed conflict’ with the gang. In armed conflict it is permitted to attack enemy combatants without warning and without judicial process, as happened here.

However, there are some major issues. First, it’s not clear that Tren de Agua is really a ‘non-state armed group’, or even if it is that the U.S. is currently at war with it. That would hinge on a lot of factual questions about Tren de Agua’s size, level of organization, armaments, and activities which are hard to answer.

But even so, it’s not clear that even in the context of an armed conflict it would be legal to blow up the boat. In armed conflict it is only permitted to target enemy combatants. Even if the boat was smuggling drugs, and the drug money was used to fund the war, drug smugglers would likely still be viewed as civilians. They would seem to be just like enemy citizens who even though they may play a role in enabling the military effort are still not part of the military themselves. The U.S. might allege that in this war, drugs are a weapon, but that’s very hard to justify. By similar logic countries could say that information is a weapon so journalists or bloggers are targets, or the like.

Questions

So I end with two questions. First, was the sinking of this ship somehow justified under international law, or was it an illegal act of violence?

Second, how important is it that military actions such as this comply with international law? Even if this sinking was illegal, there wouldn’t seem to be any consequences, and for many years the U.S. has struggled mightily to stop the flow of drugs. If sinking a few boats will help keep large quantities of deadly drugs off U.S. streets, is it worth it? If international law doesn’t provide an affective path to stop drug smugglers is the U.S. entitled to just do what it seems necessary? While perhaps in we all benefit from living in a world based on law and rules, since these international laws are seldom followed, never enforced, and exploited by criminals is it okay for countries to sometimes just not follow them?

Notes

  1. For more discussion of these issues in the media, see this analysis on ABC News and this article on the BBC. For a more scholarly treatment, see this piece on Just Security.
  2. A separate legal question was whether Trump was within his authority to carry out this attack without authorization from Congress. Since that is solely a U.S. domestic matter it is not addressed here.
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Would Restricting a Right Save a Life?

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Would Restricting a Right Save a Life?

Rethinking freedom of information in an era of copycat shootings

The public naturally wants to know more about the shooter who killed 2 and wounded 17 others Aug. 27th at a Minneapolis Church. And according to the Universal Declaration of Human Rights, the freedom to seek and receive that information is their right. However, media coverage of the shooter’s life, beliefs, manifesto, and guns may have the perverse effect of encouraging copycat shooters. This week Shalzed asks, as mass shootings continue does Earth need to restrict freedom of expression some more?

shalzed watching ambulance

On Wednesday, Aug. 27th a gunman killed 2 and wounded 17 others at a school church in Minneapolis. As with previous mass shootings, an outraged public immediately wanted to know who would do something like that and how someone with a mind to commit such a crime had access to the necessary guns.

The shooter was quickly identified as Robin Westman, a former student at the school. It turns out Westman had left behind what the media quickly labelled a manifesto. It contained numerous grievances and racist slogans (a video is here, a written description here .) The manifesto also revealed a dark obsession with previous school shooters, in particular Adam Lanza, the perpetrator of the Sandy Hook Massacre.

This raises a chilling reality: The widespread publicity surrounding a school shooter may help encourage the next one. When an individual such as Westman or Lanza, who was otherwise unknown, is instantly transformed into a focus of public attention, such that their motivations and personal struggles are broadcast to the world, along with the methods they use to carry out their crime, it creates a perverse incentive for other similarly positioned individuals to do the same.

For many years there has in fact already been a movement asking the media to voluntarily refrain from giving undue attention to shooters and to focus on their victims instead (see here and here for coverage.) But based on a simple Google search yesterday for ‘Robin Westman’, it seems this has not achieved much success. Also, the rise of blogs and online news sites means that setting consistent media standards is becoming impossible. Some government imposed censorship would seem to be the only way to bring this about.

However, any legal attempt to limit information about the shooter runs into an immediate problem. Article 19 of the International Covenant on Civil and Political Rights states:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

This means that if the public wants to know the name, appearance, mindset, upbringing, political, and racial views of the shooter, access to this information is their right. In the U.S., this is protected as a constitutional right as well.

And of course there are valid reasons why the public might want this. To evaluate police performance, push for changes to legislation, or to be better on guard in the future all come to mind.

But shouldn’t there at least be a discussion about whether the danger of encouraging copycat shooters outweighs the benefits of making details about the shooter public? Would a restriction on publishing flattering, happy, or childhood photos of the shooter really be too much of a violation of the public’s right to information if it could help stop mass shootings? Would a ban on long profiles of a shooter’s mental health struggles and political grievances be too much to ask, if this can help increase safety for the future?

It should be noted that while there are already several exceptions to the right of freedom of information, none of them seem to be at all relevant here. But is that a mistake? Do further limits on the right to freedom of information need to be considered? I’m anxious to hear your thoughts.

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Who Should Keep the World’s Human Rights Scorecard?

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Who Should Keep the World’s Human Rights Scorecard?

Trump Stops the U.S. from Doing It- But Now Who Will?

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U.S. Human Rights Reports

Every year since 1977, the U.S. State department has compiled an enormous report tracking the human rights record of nearly every country in the world. These human rights reports have traditionally covered the entire gamut of internationally recognized human rights, along with workers’ rights such as collective bargaining, the prohibition of forced and child labor, and much more.

These reports are a massive undertaking, compiling information from governments, victims of alleged human rights abuses, media reports, academic studies, and non-governmental organizations. While their official purpose is to help Congress make decisions about foreign aid and security assistance, they are also relied upon for many other things. For example, information in the reports helps determine whether illegal immigrants face a credible fear of persecution if returned to their home country, and international advocacy organizations and human rights lawyers use the reports for their work as well.

Trump Scales Down

Now the Trump administration has decided to vastly scale this down. Last week the State Department released the reports for 2024, and entire sections were removed. The parts about LGBTQ rights, indigenous rights, and government corruption were eliminated. It no longer condemns governments for retaining political prisoners without due process or restrictions on free and fair elections. It also no longer highlights forcibly returning a refugee to a place where they may face torture or persecution, or governments denying freedom of movement or peaceful assembly. Even more important, the 2024 reports are much slimmer. They speak only in broad generalities, mostly giving just basic information that is already widely known.

Many human rights groups are up in arms about the change. They say it means the United States is abandoning its traditional role as human rights defender and advocate. They also fear that not only has much of the content they’re used to from the old reports been lost, but also what remains is now politicized and unreliable.

Two Reasons

While the administration has not provided a formal justification for the changes, two simple and straightforward ones come to mind. First, the U.S. government itself routinely violates many of the rights in the reports. It seems especially hypocritical, for example, for the U.S. government to criticize other countries for inhumane prison conditions while it is building ‘Allegator Alcatraz’ in Florida and subcontracting with El Salvador to house prisoners in its notorious 40,000 mega prison which has been widely accused of violating prisoners’ rights. So what entitles the U.S. to judge the rest of the world?

Second, the reports require immense time and resources to compile. Why should the United States be expected to investigate human rights abuses in all corners of the world at its own taxpayers’ expense? This slimming down is a version of Trump putting America first and letting foreigners deal with their own problems by themselves.

Who Can Take the U.S. Place?

But these reports are vital for human rights advocacy, and if the U.S. doesn’t compile them, who will? Non-governmental organizations such as Amnesty International, Freedom House, and Human Rights Watch play a role. But they lack the resources to do as thorough and comprehensive a job as the State Department, particularly in less prominent places and regarding issues that are less in the news. Also, these groups are funded via private donations and so are not accountable to the public. Their priorities and methodology may be skewed or unknown.

Intergovernmental organizations such as the United Nations might seem right for this role. The United Nations, and particularly its Human Rights Council, ought to have the resources to objectively examine human rights around the globe. But sadly, we see how biased and prone to political manipulation the U.N. can be. Do we really want a body with many countries that are among the worst human rights offenders as members to do this investigating? With the UN Human Rights Council in charge, the reports would certainly be subject to extreme political meddling and bias.

So if NGO’s don’t have the transparency or resources, the U.N. is too politicized, and it’s both hypocritical and too much of a burden to ask of the United States, where should authoritative, comprehensive human rights reporting come from? Or is the incomplete patchwork of reports non-governmental organizations decide to compile the best we can do? I’m curious to hear your thoughts.

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What Does It Mean To be a Country?

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What Does it Take to Become a Country?

How Do We Decide Whether To Recognize a Palestinian State?

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Shalzed’s home planet is united (click here to learn more about Shalzed. . .) On his planet there are committees to deal with local and regional issues, but nothing like our patchwork of nearly 200 constantly bickering states, each different in size and resources, often with different culture, language, and religion as well.

Dividing Earth into countries may seem normal to us, but how do we decide what’s a country? Is it simply a matter of facts? Does it depend on politics? Or should there be other criteria? This is especially pressing in light of the current move to recognize a state of Palestine. This week Shalzed asks a question to help us discuss what it means to recognize a new country.

Recently Britain, France, and Canada announced their intention to recognize Palestine as a State. A group of prominent British lawyers argue not only that this shouldn’t be done, but that recognition of Palestine would even violate international law.

The exact definition of a state is the subject of tremendous scholarly debate. The fundamentals come from the 1933 Montevideo Convention, which sets out four criteria. A state must have:

  1. A permanent population
  2. Defined territory
  3. A government
  4. Capacity to conduct international relations

Those objecting to recognition of Palestine claim that it currently does not have defined borders.  They also say that since Fatah (in the West Bank) and Hamas (in Gaza) are enemies, it does not have a functioning government. These matters are the subject of much debate- for example, see these links to The Guardian  and EJL Talk.

But most striking from the Montevideo criteria is that statehood is simply a matter of fact. A fanatic band of extremists could capture a capital in a bloody, illegal siege, hang the democratically elected leaders, install themselves as a military dictatorship and meet the criteria just fine. Recognition of statehood does not depend on the prospective government’s democratic legitimacy, human rights record, or policies it plans to implement. Montevideo does not ask about good or bad, right or wrong- only these four facts.

Is whether a prospective state fulfills the four Montevideo criteria the question we need to ask?

When considering recognition of a new state, and in this case a Palestinian state in particular, should the question be whether Palestine currently has a government and recognized borders, the way the debate over British recognition is being framed? Or should it be about whether a Palestinian state would be the best way to safeguard the human rights of Palestinians (and Israelis) going forward, as opposed to some other political arrangement that might be easier to implement or be more likely to lead to peace?

In general, should recognition of statehood depend on whether the prospective state’s government has been democratically elected and whether it is committed to peace and human rights? Or is that naïve and unrealistic, injecting a level of subjectivity and discretion that is prone to prejudice and abuse? Does realpolitik mean that like it or not any group meeting the Montevideo criteria has to be dealt with as a state, whereas otherwise they don’t.

I’m anxious to hear your thoughts.

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Shalzed outside the Peace Palace, home of the International Court of Justice, in the Hague

International Law on Climate Change: Effective Action or Just Hot Air?

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International Law on Climate Change: Effective Action or Just Hot Air?

The ICJ just ruled on climate change. But if that’s good news, why is the U.S. going in the opposite direction?

Shalzed outside the Peace Palace, home of the International Court of Justice, in the Hague

On July 23rd the International Court of Justice (ICJ) issued its long-awaited advisory opinion on climate change. This was in response to the United Nations General Assembly asking it to clarify states’ responsibilities under international law to prevent excessive release of greenhouse gases, and what consequences they face if they do not.

Last December, over the course of more than a week, nearly 100 countries presented the court with their views on the issue. Many of the most developed countries, which are responsible for the majority of greenhouse gas emissions, claimed that the only relevant international law instrument is the Paris Climate Agreement, with its loose and non-binding commitments. They also claimed that it is impossible to trace any particular harm to a specific country’s emissions, so in this case there should be no liability for damages at all.

The unanimous decision of the court was a clear rebuke of these positions. The ICJ decided that greenhouse gas emissions violate numerous principles of international law, and that emitting greenhouse gases is included in the general prohibition of causing harm via pollution. The court made clear that a healthy, sustainable environment is fundamental and necessary for the enjoyment of all other human rights.

The ICJ therefore declared that countries have to, “act with due diligence and use all means at their disposal” to prevent harm to the climate system. That’s in addition to the specific requirements of the Paris Agreement, and applies even to countries such as the United States that withdraw from or refuse to sign the Paris Agreement at all. The court also decided that in principle countries that do not take due diligence to curb their emissions can be liable to pay damages for harm caused by the changing climate.

But nearly at the same time as the ICJ released its ruling, the United States Environmental Protection Agency (EPA) released a proposal to repeal an earlier determination that greenhouse gases are harmful. Under this proposal, the United States would do away with any and all restrictions on greenhouse gas emissions. EPA Administrator Lee Zeldin was quoted as saying, “Today is the greatest day of deregulation our nation has seen. We are driving a dagger straight into the heart of the climate change religion.” In other words, the Trump administration is attempting to do exactly the opposite of what the ICJ said countries are required to do under international law.

In order for countries to take effective action, both its leaders and citizens must believe that climate change is truly a threat. They need to be convinced that the science behind climate change is objective and real, not politically tainted, and that ignoring the consequences of climate change in the hope that future science will develop a painless solution is imprudent and unwise. A decision by an organ of the highly politicized United Nations is unlikely to do that, and neither the ICJ nor any other international body has the ability to force countries to comply with its rulings. Even the threat of being held liable for potential damages hardly amounts to much since there is no effective way to carry it out.

So what is the solution? One tactic being tried is lawsuits in domestic courts attempting to compel governments to take their climate obligations more seriously. But while these judgments may be somewhat more binding in individual countries, they cannot provide a path towards coordinated, global action.

Political pressure may push governments to action, but this also risks making climate change a political football with policies shifting radically depending on who is in power. This is the opposite of what the ICJ attempted to achieve by declaring that combating climate change is an overarching imperative related to basic human rights.

We could wait for even more scientific proof, but science is always subject to new information and debate, and therefore can never produce certainty. If the data we already have isn’t enough to convince people to take action, it’s hard to see how more research will make a difference. And in the meantime, delay makes the problem worse.

So to what extent can international law be a tool to fight climate change? If international law is the answer, why are major greenhouse gas emitters such as the U.S. doing exactly the opposite of what it requires? If international law isn’t the solution, what is? Is there any other means of compelling a coordinated, international response to a global crisis? I’m anxious to hear your thoughts.

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