Public International Law - Essay Example

INTERNATIONAL LAW The basic premise that underlies human rights law is the fact that they are universally applicable1, and therefore transcend social, cultural and political barriers and differences.2 Basic human rights would require that all individuals, no matter how heinous their crimes are provided a fair trial and the opportunity to prove their innocence, with punishment being meted out by an impartial tribunal in accordance with the magnitude of the crime. An international crime transcends local jurisdictions and cannot be left within the exclusive jurisdiction of the national authority that would normally adjudicate such trials.3 International crimes are war crimes, including genocide, crimes against humanity, torture and aggression4 and international criminal law is the law that governs such crimes.5 Jus cogens symbolizes principles of international law that are considered to be so fundamental that no nation can ignore them. In particular, where international crimes are alleged to have been committed by a former head of State, it is even more important that justice is not executed by local authorities but by the application of the principles of international law, which can ensure that justice is done through the application of impartial principles that are universally valid. In the context of the trail against Saddam Hussein for crimes against humanity, the Iraqi ruler was guilty of crimes against humanity, which by application of the principle of jus cogens would involve the fundamental application of international criminal law. According to Michael Sharf, the Saddam Hussein trial can be classed as one of the most important cases in international law because (a) the scale of atrocities was high (b) Hussein was a top ranking leader (c) interest of the international community due to the coalition led against Iraq (d) sets a legal precedent for international crimes and (e) effect of the trial and whether it was perceived as fair.6 The International criminal Court which came into being in 2002, has jurisdiction over nationals for crimes occurring on the territory of all states that have ratified the Rome Statute.7 Article 98(2) of the Rome Statute is specifically meant to protect against the ICC being used as a basis for political persecution.8 As also stated by Lauterpacht, international judicial law making may require that a national Court adapt its laws in order to comply with the requirements and framework of international law in order to ensure equity in adjudication and law making.9 When the principles of jus cogens are applied, Saddam Hussein’s crimes should have been properly tried before an international forum, such as the ICC, due to the nature of the crimes. In a briefing Paper prepared by the Human Rights Watch, the question of fair trial issues surrounding the Iraqi Special Tribunal were raised,10 one of which was the composition of the Iraqi Special tribunal which tried the case and comprised members close to the Coalition Provisional Authority – in other words, the occupying force. The composition of the jury was mostly Kurdish and Shiite, which meant that an element of prejudice may have been present during the trial compromising the impartiality that is mandated in an international criminal tribunal, especially when adjudicating a trial against an accused who has committed heinous crimes against humanity and thereby violated human rights principles that are mandated by the jus cogens principles of international law that protects basic human rights, freedoms and liberties. Furthermore, Article 14 of the ICC statute provides for a referral to be made to the International Criminal Court, in connection with war crimes that have occurred within a particular jurisdiction, in order to determine which persons are to be held liable for the commission of such crimes. In the case of Saddam Hussein however, no such referral was made. Secondly, the Human Rights Watch11 also pointed out another troubling aspect, i.e, the inclusion of political offenses from a 1958 Iraqi law, which was concerned more with discrediting the monarchy than in establishing the guilt or innocence of the accused parties. Under this provision, wasting national resources could constitute a crime. Therefore, this is not in accordance with the requirement for prosecuting criminals accused of heinous crimes against humanity, where the possibility of a fair trial may already be compromised through adverse publicity such as that generated through Press reports on the Saddam Hussein case. The application of jus cogens would also require that one of the fundamental human rights – the right to a fair trial and the right to be presumed innocent until proven guilty12 be applied. DiStefano(2006) states that the standard of proof that was applied in the Saddam Hussein trial was not the proving of guilt beyond a reasonable doubt, but merely whether the tribunal is ‘satisfied’ that the charges are proved13. The right to a fair trial is an inalienable right. Article 14 of the International Covenant on Civil and Political Rights (1971) states clearly that when a person is charged with a criminal offense, he is entitled to “a fair and public hearing by a competent, independent and impartial tribunal established by law.”14 The right to a fair trial would also include the right to have a counsel look after his interests and prepare the case, including witnesses, to enjoy the facility of interpretation and not be compelled to incriminate himself.15 However, in Sadat’s view16, the accused may not have been adequately and fairly represented in the proceedings, since he was interrogated without defense counsel being present, the prosecution lawyers received protection and funding from the United States, with the Tribunal rules being manipulated to suit U.S interests rather than Iraqi ones. Another issue arising in the context of the Saddam Hussein trial is the passing of the death penalty, which is to be used only in the most extreme of cases and even so, there are several rights to appeal against it. The ICPR itself states clearly that everyone convicted of a crime shall have the “right to his conviction and sentence being reviewed by a higher tribunal according to law.”17 However, although a two month period of appeal was allowed, Hussein was executed despite the existing provisions such as Article 6 of the European Convention of Human Rights that guarantee the rights to a fair trial and protect against capital punishment. One of the people who has opposed the imposition of the death penalty on Saddam is diStefano, who has “bitterly complained of the way the Iraqi Special tribunal has been deployed and used as a political tool.”18 While analyzing the trial of Saddam Hussein in the context of application of principles of international law, it therefore becomes evident that these principles have not been adhered to. While Hussein was undoubtedly guilty of the most heinous war crimes, the question that arises is whether the solution that was arrived at, i.e, his execution, was the best one that could have been reached on application of the jus cogens principles that protect human rights of all individuals. When international law has been properly applied to international heads of state guilty of crimes against humanity, execution has rarely been the result. For example, despite the desperate efforts of dictator Pinochet to avoid extradition to Spain to avoid trial19, he was finally brought before the Courts of justice and sentenced for his crimes, just as the President of Yugoslavia, Slobodan Milosevic20 spent his last days in prison in the Hague, finally being forced to face the punishment for his crimes. This has provided the victims of crimes perpetrated by these criminals the necessary retribution and satisfaction in seeing their nemesis imprisoned and suffering for their crimes. International criminal law is founded on the principle of individual rights and freedoms and allows every person accused of a crime certain rights under the law, such as the right to a fair trial and the right to an adequate defense, with the right to appeal. Punishment is meted out justly and fairly. In the case of Saddam Hussein’s trial, there are human rights issues that are raised, which may have been utilized to serve political ends rather than to secure the cause of truth and justice. In the case of Saddam Hussein, a fair trial was a necessary prerequisite, not only because Hussein was entitled to it as a defendant, but in order that fairness and justice could be brought to the families of the thousands of victims of Saddam Hussein’s atrocities, who have now been deprived of the right to see the perpetrator of crimes against them imprisoned and suffering for a lifetime for his crimes. Through his death on the other hand, there is the possibility of Hussein being idolized and emerging a hero sometime in the future, which does not serve the cause of justice. Moreover, since the jurisdiction of the International criminal Court is also complementary to national jurisdictions and the authority of the ICC in the international forum is increasingly being recognized and validated, the proceedings of the Iraqi Criminal tribunal should have been fairly conducted rather than being motivated by political ends. Ans 2: The United Nations Convention on the Law of the Sea 1982 (1982 LoS)21 came into force in 1994. Signatories undertake not to do anything which undermines its principles. Disputes are provided for through a separate optional protocol, parties to the Convention are obliged to exhaust the settlement procedure, preferably through direct talks between the parties. If direct negotiation fails, then the parties can submit the dispute to either the International Tribunal for the Law of the Sea, the International Court of Justice, binding international arbitration procedures or an expert arbitration tribunal. The ICJ is the “principal judicial organ of the United Nations” as laid out under Article 92 of the UN Charter22. Therefore, in the context of the dispute that arises between the Federal republic of Redland and the island of Malox, it would be the ICJ that would have the authority to mediate on all issues concerning international law. While the Republic of Redland now claims that Malox is a part of its territory, the issue of significance is that Malox is now functioning as an independent sovereign territory and has been for several years with its passports also being recognized by international authorities. The people of Malox have exercised their right to self determination and elected themselves a Government without any other country expressing an objection to the same. The principle of terra nullius is relevant in this context because this appears to be the basis upon which the republic of Redland is claiming sovereignty over the territory. Under the principle of terra nullius, empty land is no man’s land and the party that declares ownership of the land without being challenged is the sovereign owner of the land. A similar situation has arisen in the case of the island of Malox, which Redland claims as its territory. The issue of terra nullius arose in a dispute involving indigenous peoples of Australia in the case of Australia (Mabo v Queensland no: 2)23, in which the ICJ held that the terra nullius principle could not justify Australia’s exercising of sovereignty over territory where the aboriginals had their own rights to self determination24. It held that the terra nullius principle would in this case be discriminatory in denying indigenous inhabitants the right to occupy their traditional lands. Applying this principle in the case of the Republic of Redlands, it may be noted that the terra nullius principle upon which it is basing its claim to the island of Malox may be similarly undermined or discredited because there is already a group of people living on the island who have exercised their rights as a state through self determination and an elected Government. Since the people of Malox have exercised their right to self determination by electing their own Government, they have exercised their right to exist as an independent State, despite the fact that no nation in the world has openly acknowledged the statehood of Malox. The major issue that arises is whether Malox is now a part of the republic of Redland or an independent state. As spelt out by Gardiner, the elements of statehood include the existence of a population, a specific piece of territory on which that population resides, whether the group of people has their own Government and whether this government has the capacity to govern the territory independently.25 This may be applied in the case of Malox and it will be noted that all of them will apply. Since the right to self determination has also been exercised by the island of Malox, and it has been functioning with its own Government for several years, this establishes the capacity of the territory of Malox to survive independently and its capacity to govern itself, hence it would be eligible to statehood. The specific piece of territory in this case is the island of Malox and the people in question are the 350 of inhabitants of Malox who have been living on the territory and governing themselves. Applying this approach therefore, it appears unlikely that the ICJ would support Redland’s claim of ownership and its right to resolve the conflict in Malox as an internal territorial issue. The fact that Malox is eligible under the principles of international statehood to constitute itself as a State and moreover, has existed in this manner for several years, the ICJ is likely to recognize its independence existence as a State. Therefore, the ICJ would likely press for a peaceful resolution of the dispute in question over the passports without resorting to the use of force. It may call upon the two nations involved to settle their dispute amicably and this also likely to be the position adopted by the United nations which favors the peaceful resolution of disputes. The provision against the use of force by disputing States is mandated by Article 2(4) of the UN Charter, according to which all States are to refrain from either the use of or the threat of use of force against the territorial integrity or the political independence of any state26. Redland, by attempting to exercise territorial sovereignty over Malox, is threatening the territorial integrity of Malox through military action and may therefore be in violation of Article 2(4) of the Un Charter. It must also be noted that Malox is also threatening to fire a missile at Redland’s principal city, and thereby is itself threatening to use force. However, there is an important distinction that arises here, since Malox is exercising this right in self defense. Under Article 51 of the UN Charter, it has been specifically stated that despite the provisions against the use of force, individual or collective self defense is allowed if an armed attack occurs against the State. However, should Malox fire its missile without Redland actually taking military action, then it may be in violation of international law, since the use of force is allowed only when under attack. Therefore, it appears that in the interest of peaceful resolution of the dispute, Redland may have to desist from its claim of territorial sovereignty and take up the matter of passports on a diplomatic basis with Malox to arrive at a peaceful solution. In the event that Redland is unwilling to relinquish its claim for territorial integrity and persists in military action on the grounds that Malox is its own territory, then the United Nations also has the powers to intervene in a crisis, in order to prevent a military conflict from erupting in the area and posing a threat to world peace in general. The United Nations can act through the Security Council, which can issue international sanctions against an aggressive state, as it did in the case of Iraq. The Security Council is the UN body that is authorized to identify and take action to address any threats to international security. In some cases, it has accomplished this through the use of economic sanctions as it did in the case of Iraq, by handicapping the nation due to its aggressive bent. In a similar manner, the Security Council can also authorize the issue of economic sanctions against Redland if it continues to persist in its military stance to take action against Malox in a manner that is not peaceful. Alternatively, the Security Council can also accomplish and effect a peace through the use of collective force against the aggressive nation. Through diplomatic efforts it can try to convince the Republic of Redland to resolve the dispute peacefully, however of the nation refuses, the Security Council can exercise its powers to use collective force. The United Nations, acting through the Security Council, has also exercised its powers to use collective force in peacekeeping missions and humanitarian interventions, such as those which have occurred in the case of Yugoslavia, Somalia and Sierra Leone. In conclusion therefore, in the context of the Malox dispute, it appears likely that the right of Malox to exist as a separate State would be recognized. While there is undoubtedly a serious issue that is at stake in that Malox has been issuing passports to terrorists which have been used in an unauthorized manner, this is an issue that may have to be resolved through peaceful negotiation and diplomatic meetings between representatives of Malox and Redland. In reference to the use of force and the threats of use of force that are being issued by both Redland and Malox, these would be illegal under Article 2(4) of the Un Charter, however in the case of Malox, the question of self defence may apply, although this would be justified only if Redland were to actually engage in military action against Malox. In the event the parties are unable to resolve the dispute carefully, the Security Council can take action to resolve the situation, either through the threat of collective economic sanctions against the aggressive nations or by actually engaging in the use of collective force against the nation that is perpetrating the aggressive actions. The Security Council is authorized to use such actions in the interest of maintaining world peace. 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U.S. Bilateral Immunity or so-called “Article 98” agreements [online] available at: http://www.globalpolicy.org/intljustice/icc/2003/0606usbilaterals.htm * Cross, Rupert and Tapper, Colin, 1990. “Cross on Evidence” (7th edn) London”: Butterworths at pp 125 * Dixon, M, 1996. “Textbook on International law” William Gaunt and Sons * Dixon, M and McCorquodale, R, 2003. “Cases and Materials on International law” (4th edn), Oxford: Oxford University Press * DiStefano, Giovanni, 2006.”Another side of the Saddam Hussein trial” The Jurist [online] available at: http://jurist.law.pitt.edu/forumy/2006/11/another-side-of-saddam-hussein-trial.php * Gardiner, Richard, 2003. “International Law” Pearson Education Human Rights Watch Briefing Paper, 2005. “The former Iraqi Government on trial.” Available online at: http://hrw.org/backgrounder/mena/iraq1005/iraq1005.pdf * International Military tribunal at Nuremberg, Article 10 [online] available at: http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm#art10 * International Covenant on Civil and Political Rights {online] available at: http://www.ohchr.org/english/law/ccpr.htm * Kittichaisaree, 2001.”International criminal law” Oxford University Press * Lauterpacht, 1933. “The function of the law in the international community” Oxford: Clarendon Press * Sadat, Leila, 2005. “Experts debate the issues:The Dujail trial.” [online] available at: http://www.law.case.edu/saddamtrial/entry.asp?entry_id=14 * Sharf, Michael, 2005. “Experts debate the issues:The Dujail trial.” [online] available at: http://www.law.case.edu/saddamtrial/entry.asp?entry_id=14 * Steiner, Henry J and Alston, Philip, 1996. “International Human Rights in context: Law, Politics, Morals.” Oxford, at pp 187 * USA maneuvers to weaken international Court [online] available at: http://web.amnesty.org/wire/October2002/ICC * Wilson, Richard J, 2006. “The Pinochet Effect: Transnational Justice in the age of Human Rights.” Human Rights Quarterly, 28(2): 528-544 Case law cited: * Australia (Mabo v Queensland, No 2) (1992) 175 CLR * Prosecutor v Milosevic, ICTY, No: IT-02-54-T Read More