Guest Blogger: Rebecca Wright

It's IntLawGrrls' great pleasure to welcome Dr. Rebecca Wright (right) as today's guest blogger.
Rebecca is the Legal Advisor for the North African Litigation Initiative (NALI) at the Cairo-based Egyptian Initiative for Personal Rights (EIPR). NALI aims to raise awareness of the African human rights system in six target countries: Mauritania, Algeria, Tunisia, Libya, Egypt, and Sudan. It assists human rights defenders from these countries to bring cases before the African Commission on Human and Peoples’ Rights by holding training workshops and hosting potential litigants at the Ordinary Sessions of the Commission. In her guest post below, Rebecca discusses this work and further describes a recent human rights defenders workshop that NALI hosted in Tunisia.
Rebecca joined EIPR in 2007 after receiving a Harvard Law School Heningson Fellowship. She worked in Egypt for a year before traveling to Afghanistan to conduct research on the cost of conflict for civilians for CIVIC, a Washington, D.C.-based nongovernmental organization. She returned to Afghanistan on two other occasions to work for the Afghan NGO Human Rights Research and Advocacy Consortium on workers’ rights, provincial governance, and women’s leadership. After also working in Qatar and Lebanon, Rebecca returned to EIPR in April 2010 in order to help establish NALI.
Rebecca earned her J.D. from the University of California-Berkeley and her Ph.D. in English Literature from the University of Oxford. Her dissertation analysed the concept of female heroism in the autobiographies of British suffragists, and today she honors one of those women:

I would like my transnational foremother to be Sylvia Pankhurst [left]. I wrote one of the chapters of my PhD on her. She and the other suffragettes I studied inspired me to become a woman of action and to pursue causes that are just, including those outside the UK.

Pankhurst (1882-1960) joins other IntLawGrrls foremothers -- including her mother, Emmeline Pankhurst (prior posts) -- in the list just below our "visiting from..." map at right.
Heartfelt welcome!

What Role for the African Human Rights System in the Current Transformation of North Africa?

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

TUNIS - In Tunis last week, human rights defenders from across North Africa gathered to discuss the role that the regional African human rights system can play in the current transformation of North Africa. They were attending a workshop organized by the North African Litigation Initiative, a programme established by the Cairo-based Egyptian Initiative for Personal Rights.
Pictured above at far right, I work as the Legal Advisor for NALI, and it was our pleasure to host participants from Mauritania, Algeria, Tunisia, Libya, Egypt and Sudan.
We were also honored to have Justice Fatsah Ouguergouz (left), the Algerian Justice from the African Court on Human and Peoples’ Rights, join us for the three-day proceedings.
It was particularly exciting to hear from Justice Ouguergouz given the pioneering ruling issued by the African Court on March 25. In issuing this Order for provisional measures against Libya, the Court instructed Libya to

'immediately refrain from any action that would result in loss of life or violation of physical integrity of persons.'

The Court’s judgment is its first binding ruling issued against a State. It is an important intervention by the African human rights system in recent North African events.
Overall, however, the view of the workshop participants is that the response of the African system to developments in North Africa has, to date, been slow and lacking in conviction.
Indeed, the fact that African institutions mandated with protecting and promoting human rights have, on the whole, reacted in a limited manner to events in North Africa led a couple of human rights workers to criticize our decision to hold the Tunis workshop. One human rights lawyer from the United Kingdom wrote to me a couple of weeks ago and said that he felt that the workshop was “mistimed.” The African human rights bodies, he said, could only offer recourses that are “time consuming and typically remote from real effects in actual situations.” At this point, he said, it was necessary both in Tunisia and across North Africa to deal with immediate human rights abuses and the rebuilding of domestic institutions. “So why,” he asked, “was this topic chosen at this time and place?”
This question played through my mind on the first day when I arrived in Tunis and went downtown to have tea with a Tunisian activist. Tanks and barbed wire lined the streets (left and below). But the atmosphere was initially peaceful: a couple of women were even taking photographs of each other with the soldiers and tanks.
Suddenly, however, the mood changed. Police with batons and riot shields began chasing a group of young men and all of us sitting at the street-tables ran inside for cover. My Tunisian friend explained:

'The tensions are rising. There is frustration that reform is not occurring quickly enough. We have so much work to do and so many human rights abuses that must be remedied.'

This experience in downtown Tunis emphasized the continuing volatility in Tunisia – a volatility also evident in Egypt, where I live and work. It highlighted the fact that many immediate, domestic steps must be undertaken to ensure the creation of democratic societies fully removed from the past oppressive regimes.
Yet the fact that much work needs to be completed at the domestic level should not exclude engagement with the regional human rights system. On the contrary, it is especially important at this particular moment to consider how the new governments in Tunisia and Egypt (and also, let us hope, in Libya) can develop strong relationships with the African human rights system so that the new regimes actively promote, protect and fulfill the rights they pledged to uphold when they ratified the African Charter on Human and Peoples’ Rights.
The belief that the African human rights system has the potential to reinforce and strengthen domestic reform certainly influences the work of the EPIR, my organization in Cairo. Over the last few months, EIPR staff members have been working around the clock to document and address the continuing domestic human rights abuses in Egypt (see also here).
However, EIPR has also been looking beyond the domestic judicial realm and has been attempting to engage with the African human rights system. In partnership with Human Rights Watch and INTERIGHTS, we requested the African Commission to issue provisional measures to stop human rights abuses in both Egypt and Libya. In the case of Libya, such requests undoubtedly helped to motivate the African Commission to refer the situation to the African Court.
It is critical that North African human rights defenders take this type of proactive approach so that the African human rights system is encouraged to play a positive role in the transformation of North African societies. In his introductory remarks to our Tunis workshop, Justice Ouguergouz reminded us:

'The African Court cannot act, but can only react. Civil society therefore has a crucial role to play in creating an environment where it is possible for both the African Court and Commission to take steps to protect human rights.'

Following these remarks by Justice Ouguergouz, one Tunisian lawyer took me aside and showed me some of the scars that riddle his body following 8 years of imprisonment under the Ben Ali regime. The lawyer told me:

'I will fight for justice for these scars, and for the scars of thousands of other Tunisians. After this workshop I know that I needn’t stop at the domestic level. I will continue the fight for justice within the African system so my country can become a place of tolerance and dignity.'

It remains to be seen how exactly the African human rights system can play a role in the incredible societal transformations occurring across North Africa. One thing, however, is clear: North African human rights defenders are determined to seize this historical moment to ensure that human rights principles are respected. It is NALI’s mission to ensure they are given assistance to utilize every means available to achieve this goal, including recourse to the African regional system.

On April 12

On this day in ...
... 1861 (150 years ago today), about a month and a half after the inauguration of Abraham Lincoln as President, the United States' Civil War began when artillery troops in the newly formed Confederacy, comprising states that had seceded from the Union, opened fire on Fort Sumter, a Union base located on an island in the harbor of Charleston, South Carolina. (credit for photo of ruins of the fort, now a U.S. monument) The fort surrendered within a couple days and remained a Confederate holding throughout the 4-years-long conflict. Today marks the beginning of the sesquicentennial of the Civil War; well worth a read in this vein is How Slavery Really Ended in America, a New York Times Magazine essay that links a little-known event at the beginning of the Civil War not only to the eventual abolition of slavery in the United States, but also to contemporary popular uprisings in North Africa and elsewhere.

(Prior April 12 posts are here, here, here, and here.)

The road from Sidi Bouzid to Algiers

ALGIERS – Straight from a visit to revolutionary Tunisia next door, I returned to Algiers a month after observing the first marches organized here by the National Coordination for Change and Democracy (CNCD) in mid-February. As the season turns meteorologically, I wanted to see if the North African spring is on its way here politically as well. The series of protests staged over the weekend suggested just such a possibility, but also that the road may be long and difficult.
On Saturday March 19, a group of about a hundred stalwart demonstrators stood on the Place de 1er Mai (First of May Square), at the now weekly gathering called by one section of the recently bifurcated CNCD. They included activists from opposition political parties, women’s rights advocates, and people who were just plain fed up with their lot. This small but resolute troop was surrounded (and vastly outnumbered) by policemen in blue jumpsuits who pushed them around, and attempted to make them simply go away. At one point these cops encircled a small group of women, including a 62 year old wearing a long robe who says she recently lost her housing, and forced them out of the square altogether. Their grievances will be much less easy to dislodge.
I am sorry to see fewer people demonstrating now than in February, and ask an expert on the protests, the journalist Madjid Makedhi, who has covered many of them for the El Watan newspaper, why this is the case. He says the diminished numbers are entirely understandable in light of the massive security presence that has been mobilized to counter the marches. There is even a helicopter overhead. And, as if to underscore his explanation, as we talk he is forced to move from place to place by policemen, all the while explaining that he is a journalist. According to Makedhi,

'Algerians have been separated from politics by these security policies of the government. Today ordinary Algerians can only think about their daily lives, about taking care of their children, and trying to have enough money to satisfy the needs of their families.” But he is quick to point out that, “the fact that people are trying to live a normal life does not mean that they refuse change. It is not that they are against these efforts, it is that the government has installed fear in Algeria.'

Still, the activists refuse to give up.
Cherifa Kheddar, the prominent women’s rights advocate I saw arrested on Feb. 12, has been at every single Saturday protest since then. She was in the First of May Square again on March 19 with her sign calling for the abolition of the gender-discriminatory family code, and carrying a bag full of similar placards for others. However, the authorities ripped them all up. Finding herself empty-handed, she then raised her hand in the victory sign (photo top left), and asked,

'Are you going to try to take my fingers away from me now?'

Why were they still here? Yacine Teguia, from the leftwing opposition party known as the Mouvement Démocratique et Social (MDS), explained to a group of journalists:

'We are sick of seeing young people having no prospect but to kill themselves. Today, we have workers who are threatening to commit collective suicide. We can either get together and express ourselves democratically and develop collective solutions, or we can leave people facing a wall, facing death.'

His concern took me back 48 hours to my visit to Sidi Bouzid, the town about three hours south of Tunis that gave birth to the Tunisian revolution. This remote city with its bustling main street and omnipresent trilingual revolutionary graffiti (“Stand up for your rights.” “Stay strong, Tunisia. The world is proud of you.”) was the setting for the desperate catalytic act of Mohamed Bouazizi.
Bouazizi was the – now-legendary – unemployed man who set himself on fire in front of the provincial headquarters when the produce he sold to support his family was confiscated and he was slapped by an official. He died on January 4, and thereby launched a now truly transnational revolutionary moment. A young man in Bouazizi’s neighborhood tells me he not only poured gasoline all over himself, but drank it before setting himself alight. Looking at the terrible pictures of the 26-year-old completely bandaged in hospital, you can only shudder to think how much he might have suffered. When I visit Sidi Bouzid, Mohamed Bouazizi’s picture adorns the public square downtown. And it is right here that I find (left) other young people on March 17 – three months to the day of the now world-famous self-immolation – with desperate eyes and urgent appeals, seemingly an entire generation of Bouazizis, possessing diplomas that have still not translated into jobs, on hunger strike since March 14 in a tent.
These same young people had started the Tunisian revolution when they took to the streets in December after the suicide, but are still waiting for that same revolution to concretely improve their own lives. They still call for “bread, freedom and dignity.” (“el khobz, el houria wa’l karama”) Importantly, the revolution does mean that they can now express their agony freely, and are allowed to remain here in the public square. Nevertheless, many of them told me:

'I am ready to die.'

Will governments in North Africa – and beyond – save this generation of would-be Bouazizis?
Unfortunately, regional self-immolation did not begin in December 2010. In both Tunisia and Algeria, I am told that people have been setting themselves on fire in protest for the last two years. Mohamed Bouazizi, however tragic, brave and fateful his action, was not the first and certainly not the last...
Just three days after my trip to Sidi Bouzid, on Sunday March 20, I spend the day in Algiers at a protest (right) of teachers and the new National Committee for the Defense of the Rights of the Unemployed. About 600 protestors lined both sides of the street near the seat of the Presidency for hours, singing, chanting slogans (“hukuma degage” or “government out,” borrowed from Tunisia; al hukuma dar al ajaza ,“the government is an old folks home”;“al shaab yourid iskat el chomage,”a bilingual rendering of “the people want to bring down unemployment”; and still other slogans calling on the national and international press to broadcast their demands). They sing “miyat wa khamsa wa khamseen milliards” (“155 billion”), the song written by Amazigh Kateb about the foreign exchange reserves Algeria has from selling its natural gas. As the blogger Amine Menadi from Collectif Algerie Pacifique told me:

'This country is rich but its people are poor.'

Everyone has demands today. The demonstrating teachers want better working conditions. The protesting jobless want decent jobs.
On the other side of the street, waving their Algerian passports, stood a group of now unemployed workers who fled Libya during the current conflict and want to be assisted by the state. More than anything, they all want to be heard. The members of the National Committee for the Defense of the Rights of the Unemployed were supposed to gather at the iconic Martyrs Square. However, when I arrived there this morning I found it entirely shut down by policemen, and learned by phone that in the face of this blockade, they decided to join the teachers up the hill in the Golfe region of Algiers.
At the new location, there were as many policemen in riot gear as there were demonstrators. They lined the street in front of the protestors. (bottom photo) I wonder what the young policemen must be thinking as they stand in the street all day with their youthful counterparts. Fadia Babou, a serious 24 year-old unemployed woman in a corduroy jacket who used to work for a radio station, tells me:

'Really, the young policemen are living in the same situation we are.'

In recent weeks, there have been multiplying manifestations of discord – communal guards marching, wounded veterans sitting in, doctors on strike, community meetings demanding change. Many more are planned. One of the young teachers tells me the problem is that each sector is demonstrating separately and there is currently no structure available to bring them all together. He is not hopeful about this as he says all the political parties are discredited and no single forum appeals to everyone.
Notably, both the teachers and the unemployed have come from around the country to be here. Some have travelled over night by bus from Mostaganem, a seven-hour journey. I interview one of them, Dalila Touati (left), a young woman with long blond hair and a degree in physics, who was arrested this past Wednesday March 16 for distributing flyers calling on people to attend this very demonstration, an act which she says was considered tantamount to inciting revolt. She spent 24 hours in custody, was repeatedly questioned by police, and is supposed to appear in court on March 26. Dalila is moved to tears as she tells me she is not political and simply wants decent work for everyone. Her words take me back to the tent of simmering youth in central Sidi Bouzid, when she pleas that young people not have to kill themselves but instead be given the possibility to build a future.
Standing next to her, a 28 year- old man also from Mostaganem says,

'We thank the Tunisian and Egyptian revolutions for the fact that there is no police violence here today. The authorities know this situation could explode anytime, and might just do so if a cop touches a demonstrator.'

But he also notes that only one woman came with the group of ten present today from Mostaganem because they were frightened by Dalila Touati’s arrest. He says that everyone will go to her court appearance. I hope he is right. Her unassuming bravery merits widespread solidarity.
Later in the day, I am told that some of these protestors are planning to spend the night on the sidewalk, refusing to give up the fight. They have taken the lyrics of Bob Marley, via the message of the graffiti in Sidi Bouzid, to “stand up for your rights” seriously. However, Algeria’s road ahead may be quite different than that of Tunisia or Egypt. The lingering nightmares of the 1990s, when some 200,000 died in a terrible civil war with the fundamentalist armed groups, are partly responsible for this. According to this week’s Jeune Afrique, the distinction is also partially due to the fact that much more freedom of expression is possible here than in Ben Ali’s Tunisia and this provides something of a pressure valve. The possible impact of the nearby conflict in Libya is a wild card. And Algeria possesses the resources to buy off sectors of the society, for a while at least.
However, one of the biggest obstacles may be a lack of popular belief in the possibility of change.
On March 19, I attended a discussion at the Chihab bookstore of a recent work about Ali Boumendjel, an important figure in Algeria’s independence movement. Boumendjel, a lawyer, died in French custody in 1957 after 43 days of torture. Author Malika Rahal says that generation of activists was able to make the sacrifices they did because of their conviction that another future, beyond colonialism, was possible. Today, notwithstanding recent events in neighboring countries, the belief in the real possibility of an alternative future is shaky.
I interview Boumendjel’s niece, the distinguished professor of medicine and women’s rights activist Fadila Chitour. At the Feb. 12 demonstration in Algiers, she was thrown to the ground and trampled during a police charge. Today she explains to me that many Algerians suffer from what she calls wounded memories, from the sense that so many deaths in the country since independence – in the protests of October 1988, in the Berber spring of 2001, in the terrible 1990s – have been in vain. Hence, there is a pervasive feeling that making sacrifices now will not change anything. This profound disillusionment with politics, which echoes Makedhi’s assessment, makes rallying the population to protest much more difficult than elsewhere. Dr. Chitour is, however, persuaded that change will come to Algeria. She asserts:

'It is ineluctable.'

The optimism expressed by some at this last set of protests – by a brightly smiling young teacher in hijab, by those who traveled over night at a high cost relative to their means to attend – bears witness to this.
However, the big question for Chitour is not whether change will come or when, but how:

'Will it be by peaceful means or not?'

She says that Algerians are terrorized by the idea that blood could flow in the streets again. And so, she and the other members of the CNCD will keep organizing their peaceful protests every Saturday trying to make sure that grievances are channeled non-violently. Meanwhile, the Committee of the Unemployed will meet soon to assess its next move as well.
My fervent hope is that the leaders of Algeria will heed the calls of the peaceful protestors, while that is possible. This will require amongst other things responsiveness to the youth, unity in the opposition and a seizing by all of this “moment of grace” as the Tunisian human rights activist Alya Chamari described this spring across North Africa.
Is there a road that leads from Sidi Bouzid to Algiers?
That remains to be seen. Still, I cannot forget what Chamari says when I ask her if there is a message for Algerians, and others, from the Tunisian revolution:

'You must never lose hope. And you must count on your youth.'

(All photos by Karima Bennoune. A short version of this post appeared today in The Guardian.)

On March 20

On this day in ...

... 1956 (55 years ago today), Tunisia won independence from France, which had exercised a "protectorate" over the North African territory since 1881. In 1987 Tunisia's 1st President would be deposed by a successor -- Zine El Abidine Ben Ali -- who, as we've posted, ruled until his own people ousted him from office this past January. Protests have persisted since then, and the flight of refugees from conflict-ridden Libya has exacerbated the situation.

(Prior March 20 posts are here, here, here, and here.)

Libya inquiry appointed

'We have a tough task ahead but I will personally exert all my efforts to come up with an objective report that reflects the reality in Libya and convey the voices of victims of human rights violations.'

So stated Asma Khader (left) in an interview appearing in today's Jordan Times. (photo credit)
Khader, a lawyer, rights activist, and former government minister in Jordan, is among 3 persons whom the U.N. Human Rights Council has selected as a commission of inquiry into human rights violations in Libya. The commission was authorized earlier this month; its work will run in tandem with the investigation of the International Criminal Court undertaken pursuant to a separate resolution of the U.N. Security Council. (Prior IntLawGrrls posts available here.)
Chairing the Libya inquiry will be our colleague M. Cherif Bassiouni, Distinguished Research Professor of Law at Chicago's De Paul University and a human rights expert whose U.N. service includes chairing the Security Council's Commission to Investigate War Crimes in the Former Yugoslavia.
Completing the three-member panel will be Philippe Kirsch, the Canadian jurist who served as the ICC's 1st President, from 2003 to 2009.
The commission reportedly will begin its work in weeks, with an eye to reporting at the June session of the Human Rights Council.
In the Jordan Times interview, Khader framed her appointment itself as a milestone; in her words, it

'proves that we have eligible experts in the Arab world and that Arab and Jordanian women are qualified to take on such a tough responsibility along with their male peers.'

Libya and the Codification of the Crime of Aggression

There has been a lot of attention in the press and blogosphere about the worrisome situation in Libya, the (in)adequacy of the United States' and United Nations' response thereto, and the Security Council's unanimous referral of the situation to the International Criminal Court via Resolution 1970 on February 26, 2011. (See our prior coverage here). On March 2, 2011, the ICC Prosecutor announced that he had opened his investigation into potential crimes committed in Libya (see his press conference here). The President of the ICC, Judge Sang-Hyun Song (S. Korea), thereafter assigned the situation to Pre-Trial Chamber I.

In undertaking his investigation into international crimes committed since February 15th, the ICC Prosecutor has already signaled that he will consider the commission of crimes against humanity—a constellation of acts made criminal under international law when they are committed within the context of a widespread or systematic attack against a civilian population with knowledge of that attack. Certainly the strafing of peaceful demonstrators with helicopter gunships, the indiscriminate bombing of residential neighborhoods by warplanes (left, photo credit), and the unleashing of mercenaries and snipers on the ground collectively rise to the level of such an attack. This is especially true given that at least a thousand people have been killed and thousands others have been injured and/or displaced. (Although, I should note that Judge Kaul, who does not sit on this PTC, will likely disagree here).

War crimes may also have been committed, depending on whether the situation in eastern Libya or elsewhere rises to the level of armed conflict. Common Article 3, whose prohibitions are listed as war crimes in Article 8(2)(c) of the ICC Statute, is applicable once there is an "armed conflict" occurring "on the territory of" a party to the Geneva Conventions. The determination of when violence rises to the level of an "armed conflict" depends on the level of violence and the degree of organization of the parties. Certainly, the formation of an increasingly hierarchized and united armed opposition—populated and led by courageous defectors from Libyan armed forces' officer corps—goes far toward finding the necessary degree of organization. In addition, there are indications that swaths of the country are under the control of opposition groups forging a transitional government (the Libyan National Council) after governmental authorities collapsed.

All this implies that the heightened threshold of Protocol II, which also governs non-international armed conflicts and whose prohibitions may be prosecuted as war crimes pursuant to Article 8(2)(e) of the ICC Statute, may also be satisfied. That treaty becomes applicable when there is a non-international armed conflict

which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

It explicitly excludes situations

of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

There thus may be reasonable grounds to conclude the existence of a full-scale civil war, albeit an unbalanced one according to comparative military assessments, which would lay the groundwork for war crimes charges.

The crime of aggression is not immediately implicated in the Libyan situation. For one, the aggression amendments will not come into force until 2017 at the earliest. Moreover, the definition of the crime does not envision the act of aggression being committed by or against non-state actors that are not linked to a state. Nonetheless, the crime of aggression may bear on responses by the international community to the crisis in Libya.

Indeed, military options are not off the table, according to recent comments by President Obama and other world leaders. In particular, it has been proposed that the international community—or some subset thereof—should impose a no-fly zone over the country in an effort to prevent Libya's increasingly erratic and vicious leader from committing further violence against his own people. The Gulf Cooperation Council and Arab League reportedly support such a measure as do several vocal members of Congress. France and Britain are working on a draft Security Council resolution that would authorize such a response, although it is unclear if Russia and China would support this measure, which sounds of military intervention. This raises the prospects that a group of states, such as NATO or some other coalition of the willing, might move forward without explicit Council approval. This is exactly the kind of scenario that worries detractors of the codification of the crime of aggression in the ICC Statute.

The imposition of a no-fly zone without prior Council approval might run afoul of the prohibition of aggression as it has been defined in the aggression amendments. Article 8bis(2) of the amendments defines “act of aggression” broadly as

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State...

The amendments go on to list the following as acts of aggression:

a) The invasion or attack by the armed forces of a State of the territory of another State ...;
b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; ...
d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State...

Simply policing the no-fly zone might constitute a breach of Libya's territorial integrity, and for a no-fly zone to be effective, it would likely be necessary to neutralize Libya's air defense capabilities, which would involve air strikes. To be sure, such acts would only be prosecutable as the crime of aggression if they are deemed to constitute a "manifest" violation of the U.N. Charter with reference to their character, gravity and scale as per Article 8bis(1). As we have discussed at length in our crime of aggression series, no explicit exception was carved out for bona fide humanitarian interventions or for considerations of a state's motives for engaging in military action. However, important understandings adopted in Kampala imply that a consideration of the "consequences" of military action might shield actions from being characterized as an act of aggression. This would depend, of course, on the views of

• the prosecutor (exercising prosecutorial discretion),
• the Pre-Trial Division (which would need to approve aggression charges), and
• the Security Council (which also acts as a filter to aggression charges and can defer prosecutions for a renewable period of a year).

In any case, the ICC is poised to enter the debate about such humanitarian interventions in the event that they occur once the aggression amendments are operational. The situation in Libya offers yet another potential scenario in which a deployment of armed force might be warranted and beneficial, but may not—for whatever reason—be able to garner Security Council approval.

The International Criminal Court and the Transformation of International Law? Maybe not quite yet . . .

(Delighted to welcome back alumna Leila Nadya Sadat, who contributes this guest post from Paris)

This week, unexpectedly, the Security Council voted unanimously to refer the situation in Libya to the International Criminal Court. That is cause for celebration; but celebration tempered with a strong dose of caution and even some real pessimism about the future.
On the plus side, the ICC is now becoming an international institution that is increasingly seen as a real partner in the maintenance of international peace and security.
Also, on the plus side, as Diane Marie Amann mentioned in an earlier IntLawGrrls post, the U.S. voted for the Resolution, rather than simply abstaining from vetoing it as the U.S. had done with Resolution 1593, referring to the Court the situation in Darfur.
Finally, I entitled this blog entry after my 2002 book of the same name, because one sees in the Resolution glimmers of change — that war is not the only answer to international conflict, that law is a relevant consideration in its resolution and that justice may be a possibility. That would be cause for celebration indeed.
At the same time, there are many worrisome elements in the Resolution which bode ill for the Court and for the referral. The Resolution itself retains two outrageous Bush-administration provisions (while admittedly discarding a third).
First, while deciding in paragraph 5 that the Libyan authorities “shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor” (even though Libya is not a State Party to the Court) the paragraph continues that “States not party to the Rome Statute have no obligation under the Statute. . . ” and, in paragraph 6, “decides, that national, current or former officials or personnel from a State outside [Libya] . . . shall be subject to the exclusive jurisdiction of that State” for any acts they may commit relating to UN operations in Libya. What an extraordinary display of double standards, given that several members of the Council who voted for the Resolution are not parties to the Rome Statute! Can a rule of law be a rule of law if it applies to some but not all?
The Resolution also provides that the ICC, not the United Nations, shall bear all the expenses relating to the referral, apparently as a way of appeasing the U.S. Congress, many of whose members continue to threaten the Court. So the United States and other non-Party States (China, India, Russia) are using — but not paying for — the ICC as a tool of coercive diplomacy. This is not good news.
Finally, the ICC is already struggling to convince African states that it is not a Court directed at them. The first four referrals all seemed quite sensible; but the fifth, the situation involving Kenya, was far more troublesome, given that the Prosecutor undertook the case on his own initiative, and at least some questioned whether it met the legal standards necessary in terms of subject matter jurisdiction, gravity and complementarity to be pursued at the ICC rather than in Kenya or otherwise. (Prior IntLawGrrls posts available here.) There were also serious questions raised at last summer's ICC Review Conference at Kampala as to whether it would not be preferable to see a proprio motu referral of the Colombia or Afghan situations. A sixth referral involving an African state — even in a case involving the clear commission of atrocities — may encourage the ICC’s detractors in Africa, and the double standards evinced by the Resolution’s text do not assist in this regard.
In the view of this writer, the Libya referral, in and of itself, is a good thing. The atrocities taking place as reported in the media seem clearly to warrant ICC intervention. But the failure of the great powers to fully support this Court, and to use it cynically when and as they please, rather than committing their money, time, energy and political support to helping it grow strong and endure, feeds the perception that this Court is not about justice, but about power, undermining its legitimacy. Thomas Friedman recently opined that President Barack Obama’s 2009 speech in Cairo (above) strengthened the case for democracy in the Arab world as he led others through the salutary example of his own life. Would that Obama will find the same courage to champion the International Criminal Court, and to show the world that Americans believe in accountability too.

(Cross-posted at Leila's An American in Paris blog)

Beyond Libya's Borders

With the news media focused on the estimated 180,000 migrants who have fled Libya in the past 10 days, it's a good moment to think about the impact of the crisis on migrants beyond Libya's borders.
To start, the unrest has cut off a World Food Programme supply chain used to feed tens of thousands of Darfurian refugees and displaced persons in Chad. Food supplies that had for many years been discharged at Benghazi port in Libya have been re-routed to Port Sudan, at great expense and with questionable outcomes, as aid convoys now must traverse Darfur to reach their intended recipients. The consequences for these refugees are sure to be dire.
The instability in Egypt may also obstruct efforts to protect migrants in that country against human rights abuses. Haaretz reports that the number of African migrants entering Israel through Egypt has dropped precipitously in the wake of the crisis. The concern here, given credible and frequent reports of abuse of African migrants by smugglers in the Sinai, is that many Africans are being held for ransom in the desert. Though the Egyptian government's efforts to crack down on organized crime in the Sinai were insufficient at the best of times, the current political situation has likely resulted in even less attention being paid to the situation of these migrants.
On the development side of the ledger, the loss of migrant worker jobs throughout North Africa will have global repercussions. The widely reported repatriation of many foreign workers in Libya will result in the loss of millions of dollars of remittances. Not only current but also future jobs are at stake; the Philippines and Indonesia have suspended the sending of their national workers to Bahrain, Egypt, Libya, and Yemen. Though this decision is to be applauded, it will come at great cost to families in need of remittance funds.
While there's much to celebrate in North Africa, and much assistance needed for migrants escaping the unrest in Libya, the impact of the crisis on migrants and their families will be felt far beyond Libya's borders.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'Viewership of Al Jazeera is going up in the United States because it's real news. You may not agree with it, but you feel like you're getting real news around the clock instead of a million commercials and, you know, arguments between talking heads and the kind of stuff that we do on our news which, you know, is not particularly informative to us, let alone foreigners.'

-- U.S. Secretary of State Hillary Clinton (right), referring to a Qatar-based media outlet (cited in posts in our North Africa series) during her testimony before the U.S. Senate Foreign Relations Committee this week.
Care to wager how long before U.S. cable stations begin picking up AJE?

Human Rights Committee on freedom of speech

The Human Rights Committee, which interprets and enforces the International Covenant on Civil & Political Rights, has circulated a new draft General Comment (slated to be number 34), which will replace General Comment No. 10, which dates from 1983, on freedom of opinion and expression. (General comments are authoritative interpretations of human rights treaties by treaty bodies). Given events in the Middle East and North Africa, as well as the WikiLeaks controversy, this study could not be more timely.
The draft Comment makes the following key points:
► Reservations to Article 19(1) ("Everyone shall have the right to hold opinions without interference") would be incompatible with the object and purpose of the Covenant. In this regard, the Committee also notes that even though Article 4 does not list the Article 19 rights of opinion and expression as non-derogable, it would never be necessary to derogate from such rights, even in a time of national emergency. The Committee has taken a similar approach to the right to seek judicial redress, which is deemed essential to enjoying the Covenant's expressly non-derogable rights even though it is not listed in Article 4 as non-derogable. The Committee did not offer its specific views, however, on how the omnibus non-discrimination clause in Article 2 should be reconciled with the non-derogation clause in Article 4, which does not list "political opinion" as a ground on which derogations are prohibited. Nor does it help with understanding the difference between freedom of thought contained in Article 18(1), which is expressly non-derogable per Article 4 and not subject to clawback by Article 19(3), and freedom of opinion contained in Article 19(1).
► In keeping with general principles of state responsibility, the Committee notes that a state may be in breach of the Covenant in a situation in which any branch of the federal or sub-federal government fails to respect freedoms of opinion and expression. This may also be the case with respect to "semi-state entities," although the Committee does not employ the term "non-state actor." It only notes that states parties are also obliged to ensure that all persons are protected from private action that might impair the enjoyment of freedoms of opinion and expression. Since the landmark Velásquez Rodríguez v. Honduras, case before the Inter-American Court of Human Rights, treaty references to the obligation of states to "ensure" rights have served as a hook to ascribe state responsibility for private action where states are not diligent in protecting individuals from violations by private parties (see prior posts here, here and here). It is not clear if this formulation is meant to be less far-reaching than standard attribution theories of state responsibility.
► It is a breach of the Covenant to criminalize the holding of an opinion. Here, the Committee cites its Views in the case of Faurisson v. France involving France's Holocaust denial legislation (a.k.a. "contestation de crimes contre l'humanité"). (See prior post here). In that case the Committee found no breach of the Covenant where a conviction under this legislation

did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr. Faurisson for having violated the rights and reputation of others.

The Committee concluded that any restriction on the petitioner's freedom of expression was permissible under Article 19(3), which states that

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others...

The Committee determined that the law was "necessary" to advance the struggle against racism and anti-semitism. Article 19(3)'s clawback clause lays down conditions under which restrictions to the right to expression and to seek information may be imposed:

• the restrictions must be "provided by law";
• they may only be imposed for one of the enumerated purposes [to respect the rights or reputations of others, national security, ordre public, and public health or morals]; and
• they must be justified as being "necessary" for that State party for one of those purposes.

► The Committee lists a number of forms of expression that are guaranteed by the Covenant, including

political discourse,

commentary on public affairs,

canvassing,

discussion of human rights,

journalism,

cultural and artistic expression,

teaching, and

religious discourse.

"Commercial advertising" remains bracketed in this list, suggesting a lack of consensus on this point.

► The Committee notes that the Covenant expressly provides that

persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with other members of their group, to use their own language.

► Apropos of WikiLeaks, the Committee noted the requirement that states parties allow for a free press and other media "to comment on public issues without censorship or restraint and to inform public opinion" and the corollary right of the public to receive such information. With no specific reference to WikiLeaks, the Committee again invokes Article 19(3) and notes that

It is not compatible with paragraph 3, for instance, to invoke treason laws to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated information of legitimate public interest.

The Committee reminds states parties that

Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, must be compatible with paragraph 3.

► Given the global controversy over the access to information about reproductive rights (including information about how to protect oneself from sexually-transmitted diseases), it would be useful for the Committee to cross-reference General Comment No. 14 issued in 2000 by the Committee of the International Covenant on Economic, Social and Cultural Rights, which monitors the sister treaty to the ICCPR. There, the IECESC Committee identified the accessibility of information to be fundamental to the right to the highest attainable standard of health as set forth in Article 12 of the ICESCR. In this regard, the Committee observed that:

Information ... accessibility includes the right to seek, receive and impart information and ideas concerning health issues. However, accessibility of information should not impair the right to have personal health data treated with confidentiality.

► The Human Rights Committee particularly noted the high value associated with free expression concerning public figures and institutions and called into question laws addressed to defamation of the head of state or regime. The draft Comment does not specifically condemn criminal defamation laws, but it does note that states parties should avoid "excessively punitive measures and penalties" and "consider decriminalisation of defamation." (See prior post here).
► The Committee warns against monopolistic control of the media "that may be harmful to a diversity of sources and views."
► The Committee notes the risk to freedom of speech rights posed by many counter-terrorism measures and in particular laws aimed at prohibiting the “encouragement of terrorism” and “extremist activity” or the "praising" of terrorist acts. The Committee is silent, however, on material support legislation, e.g., 18 U.S.C. § 2339A in force in the U.S. This legislation criminalizes the provision of "material support or resources" to terrorists, which includes "training" and "expert advice or assistance."
► With regard to hate speech legislation, the Committee determines that many forms of hate speech do not rise to the level of "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" which must be prohibited by law according to Article 20 of the Covenant, which also calls for prohibitions on propaganda for war.
The Human Rights Interest Group of the American Society of International Law made detailed suggestions on the draft General Comment, which are available here.

Libya: Global Condemnations of Human Rights Violations

As the World Watches...

As posted here by IntLawGrrls Diane Marie Amann and Jaya Ramji-Nogales, human rights abuses against Libyan civilians include indiscriminate use of force, killings, forced disappearances, and violations of the rights to freedom of thought, conscience, opinion, peaceful assembly, and access to information. (Pictured, flag displayed by protesters and diplomats that have denounced the current government.) The reported violations have outraged observers around the world. This, despite a virtual communications blackout that has made monitoring events in Tripoli and other parts of the country difficult.

The United Nations Security Council meets today to discuss the potential imposition of sanctions under UN Charter Chapter VII authority.

Condemnations of Colonel Moammar Gaddafi's actions have included those from diplomats previously associated with his government.

A selected list of international statements and developments appears below.

The world is watching, but the people of the world must do more than watch. They must also insist that their leaders take appropriate joint actions to end the killings and other abuses.

UN Condemnations
►“Libya: Gaddafi in Spotlight at UN Security Council,” BBC News, 26 February 2011
►“UN Resolution on Libya ‘possible’ on Saturday, Security Council President,” Xinhua, February 26, 2011
►“Ban Calls on UN Security Council to Consider Immediate Steps to Stop Killings in Libya,” 25 February 2011
►"UN Human Rights Council Recommends Suspension of Libya," UN Office of the High Commissioner for Human Rights, 25 February 2011
►“15th Special Session on the situation of human rights in the Libyan Arab Jamahiriya” Human Rights Council, 25 February 2011 (links to statements by High Commissioner Navi Pillay, a statement on behalf of all “special procedures” mandate-holders, statements by member countries, and civil society, and Human Rights Council resolution calling for the suspension of Libya from membership on the Council)
Regional Condemnations
►“AU Peace and Security Council on the Situation in Libya,” EuropAfrica.net, 24 February 2011
►Josh Rogin, “Over 200 Arab Groups Call for Libya No-fly Zone,” The Cable, Friday, February 25, 2011 (includes full texts of statements by prominent Arab intellectuals and by NGOs)
►“Request for Provisional Measures to the African Commission on Human and Peoples’ Rights” INTERIGHTS, 24 February 2011
(joint request by Egyptian Initiative for Personal Rights, Human Rights Watch, and INTERIGHTS)
Condemnations by Libyan Diplomats
► “UN Ambassador’s Tears for Libya,” BBC News, 26 February 2011 (UN Ambassador Mohamed Shalgham’s denunciation of the government’s use of force against civilians and request for Security Council action.)
►“Libyan Arab League delegation renounces Gaddafi,” Reuters, 25 February 2011
Legal Standards
►Libyan Arab Jamahiriya Homepage, UN Office of the High Commission for Human Rights
(listing Libya's international human rights obligations under treaty law and customary international law)
►“Responsibility to Protect,” UN General Assembly Resolution A/RES/63/309, 4 September 2009 (International Coalition ofn the Responsibility to Protect webpage) (link to resolution and history of UN efforts to ennumerate the responsibilities of the international community when states fail to protect civilians within their borders or affirmatively harm them.)
News Updates
►Live: Libya Revolt, BBC News (continuously updated page, visited 26 February 2011).

On February 26

On this day in ...
... 2004, in an executive order, U.S. President George W. Bush lifted some restrictions on contacts with Libya. The move followed Libya's December 2003 pledge to dismantle its nuclear technology program, which was aimed at producing nuclear weapons but which was far from that goal at the time of the pledge. The New York Times reported:

The partial lifting of sanctions enables Libya, which produces about 1.4 million barrels of oil every day, to draw back American oil companies. A number of American companies, including Marathon Oil, Occidental Petroleum and ConocoPhillips, have already indicated interest in exploring new relationships with Libya.

Any such relationships are again in doubt given bloody attacks by leader Moammar Gadhafi (prior posts) on Libyan civilians who are demonstrating against his regime. Indeed, current events are provoking not only new U.S. sanctions, but also questions about the wisdom of the thawing of U.S.-Libya relations that began on this day in 2004.

(Prior February 26 posts are here, here, here, and here.)

Human Rights Council call: Suspend Libya

The Human Rights Council of the United Nations resolved unanimously to ask the General Assembly to suspend Libya (flag at left).
Today's special session in Geneva marked the 1st time that the behavior of a Human Rights Council member had provoked a special session of the Council. The behavior at issue: the attacks upon demonstrators by what remains of the government of Moammar Gadhafi. The violence in Libya occurs amid a months-long backdrop of political changes in North Africa and the Middle East.
Also pursuant to the resolutionm an emergency inquiry commission will be sent to the country.
Here's the Advance unedited resolution, as adopted:

S-15/2 Situation of human rights in the Libyan Arab Jamahiriya

The Human Rights Council,
Reaffirming the Charter of the United Nations, the Universal Declaration of Human Rights, and relevant international human rights instruments, and relevant international law,
Recalling General Assembly resolution 60/251 of 15 March 2006,
Recalling further Council resolution 5/1 and 5/2 of 18 June 2007,
Expressing deep concern at the deaths of hundreds of civilians and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government;
Reaffirming that all States have an obligation to protect the rights to life, liberty and security of the person,
Reaffirming also the responsibilities of all States, in conformity with the United Nations Charter, to respect human rights and fundamental freedoms for all,
Reaffirming further that all Member States of the United Nations Human Rights Council should uphold the highest standards in the promotion and protection of human rights and that the United Nations General Assembly may suspend the rights of membership in the Council of a member that commits gross and systematic violations of human rights;
Supporting the statements made by the Secretary-General of the United Nations and by the United Nations High Commissioner for Human Rights, in particular the latter’s statement of 22 February 2011 calling for international investigation into Libyan violence and justice for victims;
Supporting also the Press Statement of the United Nations Security Council on Libya of 22 February 2011,
Also supporting the statement issued by the Council of the League of Arab States of 22 February 2011, the statement of the Secretary General of the Organisation of Islamic Conference of 20 February 2011, the communiqué of the 261th Meeting of the Peace and Security Council of the African Union, and the relevant conclusions of the European Union Foreign Affairs Council of 21 February 2011;
1. Expresses deep concern with the situation in Libya, strongly condemns the recent gross and systematic human rights violations committed in Libya, including indiscriminate armed attacks against civilians, extrajudicial killings, arbitrary arrests, detention and torture of peaceful demonstrators, some of which may also amount to crimes against humanity; 2. Strongly calls upon the Government of Libya to meet its responsibility to protect its population, to immediately put an end to all human rights violations, to stop any attacks against civilians, and to fully respect all human rights and fundamental freedoms, including freedom of expression and freedom of assembly;
3. Strongly calls upon the Government of Libya for the immediate release of all arbitrarily detained persons, including those who were detained before the recent events, as well as for the immediate cessation of intimidation, persecution and arbitrary arrests of individuals including lawyers, human rights defenders and journalists;
4. Urges Libyan authorities to ensure the safety of all civilians, including citizens of third countries, to refrain from any reprisals against people who have taken part in the demonstrations, to facilitate the departure of those foreign nationals wishing to leave the country, and to allow the provision of urgent humanitarian assistance to those in need;
5. Also urges Libyan authorities to immediately cease the blocking of public access to the internet and telecommunication networks
6. Further urges Libyan authorities to respect the popular will, aspirations and demands of its people and to do their utmost efforts to prevent further deterioration of the crisis and to promote a peaceful solution ensuring safety for all civilians and stability for the country;
7. Recalls the importance of accountability and the need to fight against impunity and in this regard stresses the need to hold to account those responsible for attacks in Libya, including by forces under government control, on civilians;
8. Urgently calls for an open, inclusive, meaningful and national dialogue aimed at systemic changes responding to the will of the Libyan people and at the promotion and protection of their human rights;
9. Reminds the Government of Libya to respect its commitment as a Member of the Human Rights Council to uphold the highest standards in the promotion and protection of human rights and to cooperate fully with the Council and its Special Procedures;
10. Calls on the Libyan authorities to guarantee access to human rights and humanitarian organisations including human rights monitors;
11. Decides to urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Council, to investigate all alleged violations of international human rights law in Libya, to establish the facts and circumstances of such violations and of the crimes perpetrated, and , where possible identify those responsible to make recommendations, in particular, on accountability measures, all with a view to ensuring that those individuals responsible are held accountable, and to report to the Council at its seventeenth session, and calls upon the Libyan authorities to fully cooperate with the Commission;
12. Requests the Secretary-General and the High Commissioner to provide all administrative, technical and logistical assistance required to enable the above-mentioned commission of inquiry to fulfil its mandate;
13. Requests the High Commissioner to provide an oral update to the Council at its sixteenth session on the human rights situation in Libya, and to submit a follow-up report to the seventeenth session, as well as to organize an interactive dialogue on the human rights situation in Libya during the seventeenth session of the Council;
14. Recommends to the United Nations General Assembly, in view of the gross and systematic violations of human rights by the Libyan authorities, the consideration of the application of the measures foreseen in OP8 of General Assembly resolution 60/251;
15. Decides to remain seized of the matter.