CERD shoehorn fails to fit

Shoehorning the conflict between the Republic of Georgia and the Russian Federation into a race discrimination claim always seemed a bit of a stretch.
Not to say there's no ethnic animus amid the tension that heated into armed conflict a while back. (Prior IntLawGrrls posts available here.) Just that there seemed to be a lot more going on. Still, Georgia's CERD shoehorn -- its effort for secure International Court of Justice review on the basis of the Convention on the Elimination of All Forms of Racial Discrimination -- was creative lawyering. The kind of thing that just might work.
In the end, however, not enough judges were persuaded.
The ICJ has ruled against Georgia in the case known as Application of the Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). Of initial note in the judgment, available here, is the division among judges on the issues presented:
► On Russia's claim that no dispute under CERD Article 22 existed, the vote was 12 judges in favor of the objection, 4 against (among the latter, new Judge Xue Hanqin, of China).
► On Russia's claim that Georgia had not satisfied procedural requirements set out in CERD Article 22, the vote was 10 judges in favor of the objection, 6 against (among the latter, newest Judge Joan E. Donoghue, of the United States).
► On the ICJ's finding that it had no jurisdiction, the same 10 judges voted aye and the same 6, including Donoghue, voted no.
Comment on the full judgment awaits careful reading.

2 women judges sworn in at ICJ

At 10 Central European Time this morning, Joan E. Donoghue of the United States and Dr. Xue Hanqin of China were sworn in as the newest Judges on the 15-member International Court of Justice (right) at The Hague, Netherlands.
Judges old and new then began a planned week of public hearings in the Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). Pending since 2008, the dispute arose out of events that year in 2 provinces of the Republic of Georgia, South Ossetia and Abkhazia. (Prior IntLawGrrls posts available here.)
Today is the 1st in history that the 65-year-old ICJ bench was not composed of 14 or more men.
As posted, the only other women ever to have served was Rosalyn Higgins (left) of Great Britain, an ICJ Judge from 1995 to 2009 and ICJ President the last 3 years of that tenure.
Xue had been elected on June 29 by the U.N. Security Council and U.N. General Assembly; those bodies elected Donoghue just this past week, on September 9.
Each woman is filling out the term of a retiring judge, and each is eligible thereafter to run for election to a full term.
Both the newest members have devoted their careers to diplomacy.
Xue (left), who will celebrate her 55th birthday this Wednesday, was born in Shanghai. At Beijing University she earned her 1st law degree, a diploma in international law, a field in which she's published widely. Xue then earned an LL.M. and a J.S.D. at Columbia University School of Law in New York. As detailed at her ICJ webpage, she has held a myriad of positions in China's Ministry of Foreign Affairs and has represented China before many international organizations; most recently, as China's Ambassador to ASEAN, the Association of Southeast Asian Nations. She's served as the President of the Asian Society of International Law since 2009.
As we've posted, Donoghue (left) holds a double B.A. with honors in Russian Studies and Biology from the University of California, Santa Cruz, and a J.D. from the University of California, Berkeley, School of Law. She's been a Visiting Professor there, and also has held positions at the Council on Foreign Relations, Georgetown University Law Center, and the George Washington University School of Law. Save for 2 stints in the Treasury Department and at Freddie Mac, she's practiced at the U.S. State Department since 1984. She'd been serving as Principal Deputy Legal Adviser at the time of her nomination to the ICJ. Donoghue is a member of the American Society of International Law, which, as shown in the video below, held a June 2010 event that featured comments by Donoghue, by current State Department Legal Adviser Harold Hongju Koh, and by Koh's immediate predecessor, John B. Bellinger III.

"Nyet"

Remember Georgia?

Russia does.

The dispute in the former Soviet Socialist Republic now known as the Republic of Georgia has disappeared from the global news page that today tells of election protests in Iran and an anti-sanctions rally in North Korea. Yet the dispute about which IntLawGrrls guest/alumna Mary Ellen O'Connell has posted -- a dispute fueled by the desire of the regions of South Ossetia and Abkhazia to break away from Georgia and ally with welcoming neighbor Russia -- remains.
And so yesterday Russia wielded its veto clout as 1 of the 5 permanent members of the U.N. Security Council to say nyet to a 16-year-old peacekeeping operation in Abkhazia.

Because the "Council failed ... to extend the presence of the United Nations Observer Mission in Georgia," a U.N. press release stated, "Secretary-General Ban Ki-moon will instruct his Special Representative to take all measures required to cease UNOMIG’s operations, effective 16 June, and consult with his advisors on the immediate next steps ...."

As for another P-5 member: U.S. Ambassador Rosemary DiCarlo (below right), Alternate Representative to the United Nations for Special Political Affairs, decried the veto with these words:

'It is the civilian population that suffers by facing a tenuous security environment without an international presence in Abkhazia, Georgia.'

On November 24

On this day in ...

... 2003 (5 years ago today), a NewsHour reporter declared "the dawn of a new era" in Georgia, a day after 200 guardsman turned against the sitting President, who'd threatened to declare a state of emergency after election irregularities in the Caucasus state whose flag is at right. The events are known as the Rose Revolution. IntLawGrrls posts on more recent events in the country are here.

... 1898 (110 years ago today), diplomats and police officials from 21 European countries began the International Conference of Rome for the Social Defense Against Anarchists. The meeting ended a month later with a final protocol setting forth mechanisms for international law enforcement cooperation against anarchist organizations.

On September 27

On this day in ...
... 1998 (10 years ago today), Google was born; that is, the California-based enterprise -- the websearch engine that IntLawGrrls (among many others) cannot do without -- incorporated as a privately held corporation.
... 1993 (15 years ago today), following a bloody 11-day siege, "separatist rebels in the northwestern region of Abkhazia," Georgia, "captured the Abkhazian capital Sukhumi." An October 1993 Time article recapping events contained passages whose prescience is apparent now that violence between Russian and Georgian troops has flared not only in Abkazia, but also in another would-be breakaway region of Georgia, South Ossetia -- and now that Russia's declared its recognition of Abkhazia and South Ossetia as states:

The revolt in Abkhazia, where a small minority of ethnic separatists want an independent state, has put the fate of Georgia on the line.

and

Ironically, the principal architects of Georgia's predicament may be the same Russian military commanders who are supposed to be enforcing the U.N.-sanctioned cease-fire.

and

What is happening to Georgia today could be repeated all along the fringes of the old Soviet empire tomorrow.

Meanwhile, an article published in Thursday's LeMonde indicates that the tension caused by the Georgia-Russia standoff may be spilling over into other areas -- such as the Russian cancellation of a planned interstate meeting this week, and, "notably, the question of Iran's nuclear program?" (credit for map showing Abkhazia in yellow, the rest of Georgia in pink, and Russia in brown)

STL H-R-D 2 C R2P

Gareth Evans (left) has published a must-read op-ed criticizing Russia's invocation of the concept of "responsibility to protect" -- infelicitously dubbed "R2P" -- as justification for warring against Georgia over South Ossetia and Abkhazia.
Evans, President of the Brussels-based International Crisis Group and former Foreign Minister of Australia, chaired the International Commission on Intervention and State Sovereignty that issued the report The Responsibility to Protect (2001). He writes:

For those of us who have worked long and hard to create a consensus that the world should never again turn its back on another Cambodia or Rwanda, this and every misapplication of R2P -- genuine or cynical -- is an occasion for alarm. We are conscious of the fragility of that consensus should the impression gain hold that R2P is just another excuse for the major powers to throw their weight around. It needs to be made clear beyond a doubt that whatever other explanation Russia had for its military action in Georgia, the R2P principle was not among the valid ones.

An accurate critique, well made.

But is it really any surprise that Russia would lay claim to "responsibility to protect"? Seems scarcely more surprising than the fact that Russia has -- as Mary Ellen O'Connell guest-noted last month -- equated its August embrace of breakaway independence in the Caucasus with the West's February embrace of breakaway independence in Kosovo. (IntLawGrrl Elena Baylis' February Kosovo posts are here and here.)

The aims behind the R2P movement are exemplary. Nonetheless, as I've written in this essay and in posts here and here, and as José Alvarez wrote here, skepticism's due any undue focus on rhetorical flourish over actual reform of existing mechanisms.

R2P, like any effort at collective avoidance of atrocity, must operate primarily within the collective security framework established in 1945; that is, within the Security Council (right). Article 27(3) of the U.N. Charter, of course, permits permanent-member Russia -- and permanent-members China, and France, and Britain, and the United States -- to sideline all collective bids to act against them or their ally/client states.

The core problem in the conflict in Georgia, then, is the veto power. Russia's dubious claim that it's shouldering a "responsibility to protect" is but a symptom.

Women champions boycott world chess tournament, in Russia, over Georgia

I have a love-hate relationship with chess: my father was a junior champion and we had beautiful chess sets and a handmade board, as well as chess books in Russian, inherited from my Lithuanian grandfather. (image credit) We also had chess books in English, which my brothers read, memorizing moves in the hopes of beating my father, who studied George Koltanowski's column in the newspaper and even took us all to a tournament in Sonoma to play against the master, who could beat two opponents playing simultaneously while blindfolded. I loved the pieces and the heritage, but couldn't get interested in the competitiveness and strategy. And there didn't seem to be any women chess champions out there to inspire me, or even any girlfriends playing chess.
Today, however, there are 64 women qualified to play in the world championship being held in Nalchik, a Russian city in the Caucuses. Among them are former (women's) world champion Maya Chiburdanidze of Georgia. She and 8 of her consoeurs (5 other Georgians, Marie Sebag of France, Irina Krush of the US and Tea Lanchava, born in Georgia but now living in the Netherlands) have been disqualified, however: on August 12, they wrote to the World Chess Federation to protest the location of the tournament because Georgia was in a "state of war" and did not show up.
Claiming logistical impossibility, the president of the Federation, who is also president of the Russian republic of Kalmykia, replied that the tournament could not be moved, and asked that players not mix sport and politics (just like the Olympics, n'est-ce pas?). But in turning it into a "sport," the Federation seems to have done just that: chess is a game of strategy, of brain not brawn, but the tournaments are apparently segregated and male players obtain the title of world champion, while female players become the "women's world champion." Looks like the 'Grrls will have to keep mixin' it up.

Peace, justice & the Genocide Convention

I am posting from the 2nd Annual International Humanitarian Law Dialogs meeting which began yesterday at the Chautauqua Institution in upstate New York.
For those who don’t know, Chautauqua was started in 1874 as an educational experiment in vacation learning for the mind, spirit and body. Join us next year, at the glorious historic Athenaeum Hotel, after taking in the last week of the official season, with the theme "The History of Liberty." (See all about Chautauqua here.)
The theme of this year's 2nd Dialogs is "The Genocide Convention: A 60th Anniversary Celebration"; the pervasive question, the tradeoffs between peace and justice.
The opening speaker was Omar Ismael, the Darfurian who started the ENOUGH! Project. As to the current political discussion of the potential risk to peacemaking of the recent ICC indictment of President al-Bashir, he asked (posing a question that echoed a prior IntLawGrrls post):

'What peace? What peace will be disrupted by the indictment, six years into the war?'

Almost as Ismael spoke, there were new attacks on the refugee camps in Darfur (as the end of the Olympics marked the end of international leverage over China, and the start of the Democratic National Convention marked official U.S. preoccupation with its November elections).
Ismael continued:

'Why don’t the creators of the ICC defend it? Where are the Europeans? Why allow Sudan to control the dialogue?'

In his view, there are peace-justice tradeoffs, but “without justice there will never be peace.”
The core speakers are the international criminal prosecutors: Nuremberg veterans Whitney Harris, Henry King and Benjamin Ferencz, as well as Serge Brammertz (ICTY), Hassan Jallow (ICTR), David Crane (Special Court for Sierra Leone), Stephen Rapp (Sierra Leone), Fatou Bensouda (ICC) (left) and Robert Petit (Extraordinary Chambers in the Courts of Cambodia). Their dialogs yesterday were public sessions (private sessions are today) over the course of two panels: one an "Around the World Report" moderated by Leila Sadat (Washington University School of Law) and the other on :Atrocity and Genocide: The Challenge of Semantics" moderated by Michael Scharf (Case Western University School of Law).
Among the matters discussed:
► Whether genocide is and/or should be referred to as the “crime of crimes.” Ben Ferencz answered, simply and eloquently, that illegal war making – the criminal aggression that remains purposefully undefined in the Rome Statute – is the ultimate crime, as the root of genocide and other international crimes.
► Whether international criminal justice really can be said to have a deterrent effect: views differed markedly, but most agreed the primary focus should be on accountability rather than deterrence.
► What possibly can be the appropriate sentence in a genocide conviction: the death penalty? life imprisonment? something less than life in exchange for cooperation with prosecutors? The best answer, in my view, went unspoken (though obviously understood): no sentence can match the crime, and what matters is that the sentence results from justice rather than summary execution, as Russia and England urged for Nazi officers pre-Nuremberg.
► Finally, based on comments from several, watch the ICC and what it might do with Russia/Georgia.
What prompted the most talk in the halls was the Q&A session following the luncheon address by Clint Williamson (right), U.S. Ambassador at Large for War Crimes Issues. The address itself was (understandably) a scripted, optimistic description of U.S. advances in international criminal law. Henry King immediately asked him (cross-examined him, really) whether, in light of the ICC and Guantánamo situations, there was not “some hypocrisy” in his remarks about U.S. advances. Surprisingly, Ambassador Williamson agreed, making several remarks along the lines of "I agree with you. … We’ve taken a black eye. … The next administration will have a lot to do to repair things.” Ambassador Williamson emphasized our “ultimately robust system” and complimented (my word) the courts for becoming “more interventionist on Guantánamo.” When asked about the tension between peace and justice in Uganda/Sudan, he offered his view – cautioning that others in the administration do not necessarily agree – that “the ideal way to deal with the Lord’s Resistance Army and Joseph Kony" is “to see Kony arrested and sent to the ICC.”

Tomorrow: The 2nd Chautauqua Declaration of the international criminal prosecutors, past and present.

Reportorial valor

We've posted before on IntJournGrrls, women honored for reporting news critical of those in power. Some risk much to do so; some, like Anna Politkovskaya and Veronica Guerin, have lost their lives in the line of journalistic duty.
Add to this list of women journalists Tamara Urushadze, shot by a sniper while reporting live from Gori, the Georgian city just south of South Ossetia to which Russian troops have advanced. As depicted in the video below, Thursday's grazing proved only a momentary deterrent: while others cared for her wound, Urushadze, a Georgian public television journalist, continued her live report.

Guest Blogger: Mary Ellen O'Connell

It's IntLawGrrls' great pleasure to feature a guest post today from our colleague Mary Ellen O'Connell (right).
The Robert and Marion Short Professor of Law at Notre Dame University, South Bend, Indiana, Mary Ellen's a noted expert on the use of force, armed conflict, and international law, issues on which her scholarship concentrates. Her most recent book is The Power and Purpose of International Law (Oxford University Press, 2008), which she describes as "a renewed and updated theory of international law for the post-torture era" that responds to Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (2005).
Mary Ellen's guest post below begins by observing that the world's collective attention may have been too closely trained on saber-rattling in Iran (on which she'd written earlier, as IntLawGrrls noted here and here) and, this week, on the Beijing Olympic Games (prior IntLawGrrls posts here). She then redirects attention, to international law issues underlying the struggle between Russia and Georgia for control of the troubled regions of Abkhazia and South Ossetia.
Mary Ellen earned a bachelor's degree from Northwestern University, then studied as a Marshall Scholar, earning her master's degree in international relations from the London School of Economics and an LL.B. from Cambridge. Thereafter she earned a J.D. from Columbia University, where she was a Stone Scholar and book review editor for the Columbia Journal of Transnational Law; she practiced at Covington & Burling. Since entering academia, Mary Ellen has taught law at institutions in the United States, Italy, and Germany.
Mary Ellen dedicates her post to Jane Addams (below) whom she describes as a "peace campaigner extraordinaire." Indeed: as IntLawGrrls detailed here, Addams (1860-1935) was renowned as a pacifist, feminist, suffragist, settlement-house founder, and social worker; she was awarded the Nobel Peace Prize in 1931. Today Addams joins IntLawGrrls' other foremothers in the honor list just below the "visiting from ..." map at right. (photo credit)
Heartfelt welcome!

Conflict in the Caucasus: Restoring Peace and Principle in that Region and the World

Watching for signs of war with Iran, many of us probably took our eyes off other hot spots where President George W. Bush’s imminent departure is a strategic consideration. In this guest post I turn attention to one such hot spot, the Caucasus.
Georgia’s Mikheil Saakashvili (left) launched his military action to regain control of South Ossetia, no doubt with the departure in mind and probably thinking America’s pro-war administration would back him — that President Bush would tamp down any Russian response while watching the Olympics together with Prime Minister Vladimir Putin (above right).
But Saakashvili’s action was unlawful and foolhardy. The world is rightly condemning the disproportionate Russian response. President Bush and both presidential candidates have done so. The McCain and Obama camps have both cited violations of international law — it must, however, be emphasized that among those violations is the Georgian raid.
Georgia’s claim to title of both South Ossetia and Abkhazia is good. Groups in both regions want independence from Georgia on the basis of human rights violations and historic grievances. Violence has erupted among ethnic groups in both places. In the early 1990s, Georgia agreed to the presence of “peacekeeping” troops to keep order. These have mostly been Russian soldiers supporting those who want independence. The agreements clearly do not strip Georgia of title. But they do mean that until they are terminated and foreign troops are given a chance to exit, Georgia has no right to use military force to expel them. These principles were restated most recently in Armed Activities on the Territory of Congo, a 2005 International Court of Justice judgment.
Given its right to be in South Ossetia, Russia also had the right to take defensive action against Georgia. That means, however, only action necessary and proportional to accomplish the purpose of defense (asI detailed here in 2002). Russian bombing beyond South Ossetia, striking civilians — even inadvertently — cannot be justified. (map credit) Israel was heavily criticized in 2006 in its war with Hezbollah in Lebanon for disproportionate force. Israel also had the right to take defensive action against Hezbollah rockets, but bombing far beyond the rocket positions in heavily populated civilian areas was condemned. Surely Russia joined in that condemnation?
Russia’s purpose in its excessive use of force may well be to create a situation where it can make excessive demands in peace negotiations. It may demand independence for Abkhazia and South Ossetia and that Saakashvili step down.
The right response to the Russians is to repeat back the arguments they have been making for years with respect to Kosovo — that territory does not change hands because of human rights violations against inhabitants. (IntLawGrrl Elena Baylis posted concerns here when Kosovo declared independence.) Territory should never change hands because of the unlawful use of force. International law mandates other means and mechanisms of protecting human rights. Indeed, the Russian use of such arguments now — so close to the European and American arguments for Kosovo — must be intentional. Europe and America are hardly in a position to renounce them now when it comes to Georgia.
But China can. It joined Russia in arguing that Kosovo’s independence violates international law. China should be encouraged to join the mediation of this conflict — thus supporting the international rule of law. It will be so much easier then for the next U.S. president to remind China of the international law with respect to human rights, the environment, trade, and peace. Much easier than it has been for President Bush.
Indeed, the time is right for a general renewal of commitment to peace and the international law that supports it in the face of yet another unlawful, foolhardy, and tragic conflict.

Kosovo's independence: Does legality matter?

Serbia, Spain, and other states opposed to the independence of Kosovo argue that its unilateral declaration of statehood is illegal under international law. (Prior posts here, here, and here; map credit.)
Those supporting Kosovo’s independence, including the United States, don’t seem to disagree. Rather than arguing that Kosovo’s declaration can be reconciled with principles of territorial integrity, they contend that Kosovo is “sui generis” and therefore “does not set a precedent.” In other words, no, it isn’t legal, but not to worry, it won’t happen again.
Certainly Kosovo is in some ways unique. Those making the sui generis argument point to the break-up of Yugoslavia, Security Council Resolution 1244 (1999), and the long period of UN administration as distinguishing features. Basing a claim to independence on UN intervention is in some ways reassuring, as any nascent polity receiving such intervention must have considerable international support. It is in other ways disturbing, suggesting that the decisive factor in determining the legitimacy of claims to sovereignty is not the freely expressed will of the people but the will of the international community -- not self-determination but UN-determination.
In any event, there are a lot of independence-seekers in the world who are hoping that they too are sui generis, and it won’t be long before they begin to put the question to the test. The New York Times reports that South Ossetia and Abkhazia, independence-seeking regions in Georgia, have indicated that they will ask for recognition from Russia, which has long supported them, based on the Kosovo (non-)precedent. (map credit)

Globally Disappeared

Questions've been raised about the accuracy vel non of the term "Global War on Terror" almost since its inception. Is it correct, many ask, to label the campaign a "war"? Can one fight "terror"? Or ought the campaign target, rather, acts of terrorism? Though less has been said about the 1st word, 2 recent reports on persons who've been ghosted into secret detention counsel more consideration of the campaign's "global" nature.
Six NGOS -- Amnesty International, Cageprisoners, the Center for Constitutional Rights, the Center for Human Rights and Global Justice at New York University School of Law, Human Rights Watch, and Reprieve -- focus "Off the Record" on U.S. conduct. The report names more than 3 dozen persons -- including 1 woman and her 3 children, aged 6 months to 7 years -- whom they believe have been detained in secret. "'Enforced disappearances are illegal, regardless of who carries them out,'" said NYU's Meg Satterthwaite on release of the report, which points to violations of the International Covenant on Civil and Political Rights and of the Convention Against Torture, to which the United States is party, as well as the International Convention for the Protection of All Persons from Enforced Disappearance opened for signature in February.
As remarkable as the role of the United States in in this account is the involvement of intelligence agencies from other states. Nearly 2/3 of the seizures cited occurred in Pakistan, where the issue of disappearance has sparked unrest. Other countries of capture: Somalia, Afghanistan, United Arab Emirates, Iran, Sudan, and Georgia.
That last country, of course, is in Europe -- and a report to the Parliamentary Assembly of the Council of Europe indicates that Georgia was by no means the only European state involved in secret detention. Rapporteur Dick Marty named Poland and Romania as the location of CIA "black sites" for detainees believed to have high intelligence value. Neither country acted alone, in Marty's opinion; to the contrary, he concluded that they and other states aided the U.S. effort within the framework of a North Atlantic Treaty Organization "platform" agreement reached just weeks after the 9/11 attack (¶¶ 72-111). Marty attributed his ability to ferret out facts that states want to keep secret to the "dynamics of truth" -- often, a sense among Europeans that since President George W. Bush conceded the existence of the program he said he'd keep secret, they might as well tell the story, under promise of anonymity, from their perspective. He called for further inquiry, greater accountability, and a return to the rule of law:

We are fully aware of the seriousness of the terrorist threat and the danger it poses to our societies. ... The fight against terrorism must not serve as an excuse for systematic recourse to illegal acts, massive violation of fundamental human rights and contempt for the rule of law. ... [H]aving recourse to abuse and illegal acts actually amounts to a resounding failure of our system and plays right into the hands of the criminals who seek to destroy our societies through terror. ... [I]n the process, we give these criminals a degree of legitimacy -- that of fighting an unfair system .... (¶ 14)

(Next counterterrorism update: the status of accountability, at home and abroad.)