Inquiring minds want ... Burma

Heard murmurs a while back about the possibility of an international inquiry commission into abuses in Burma, the country also known as Myanmar about which IntLawGrrls frequently have posted.
A statement that Ambassador Eileen Chamberlain Donahoe (below right), the U.S. Representative to the Human Rights Council, made in Geneva Friday (hat tip) confirms that such a possibility is on the table.
Speaking during a "general debate on situations requiring the Council's attention," Donahoe 1st put the issue in context:

In Burma, the human rights situation remains grim. Under the repressive election laws that stifle meaningful competition and with the continued detention of more than 2,100 political prisoners, including Nobel laureate Aung San Suu Kyi, the November 7 elections cannot be inclusive or credible.

(credit for above left photo 1991 Peace Prizewinner Suu Kyi (prior posts)) Donahoe then articulated the aims of the United States regarding the Asian country that's been ruled by a military junta since the late 1980s:

Our overriding objective is to promote a peaceful democratic transition, encourage national reconciliation, and achieve respect for human rights. We urge an end to systematic violations of religious freedom, notably the large-scale repression against the Muslim Rohingya, including refusal to grant citizenship, severe government restrictions on travel, and discrimination in employment and educational opportunities.

Donahoe's comment concluded by referring to a March 2010 report that had recommended "a commission of inquiry with a specific fact finding mandate to address the question of international crimes." Issuing that report was Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in Myanmar. The Council discussed the report at the time it was issued, but took no action. Friday, Donahoe said on behalf of the United States:

Finally, six months ago Special Rapporteur Ojea Quintana invited consideration of a commission of inquiry. The United States believes a properly structured international commission of inquiry that would examine allegations of serious violations of international law would be warranted and appropriate. My government is examining how best to proceed on this initiative.

Worth noting that Ojea Quintana's report made specific reference to the International Criminal Court. Past such commissions have been deployed in places like the former Yugoslavia and Darfur. The resulting Yugoslavia report, issued by a commission chaired by M. Cherif Bassiouni, and the Darfur report, issued by a commission chaired by Antonio Cassese, both led to international criminal cases. No less an authority than Philip G. Alston, the NYU Law Professor who recently concluded a term as Special Rapporteur on extrajudicial, summary or arbitrary executions, has recommended such commissions as "an appropriate filtering mechanism" in order to "evaluate whether or not a situation warrants referral to the ICC."

Worth watching what happens with this proposal.

Drones and the Law: What We Know

(IntLawGrrls is pleased to welcome back alumna Mary Ellen O'Connell, who contributes this guest post)

The New York Times reported last week that the U.S. would be increasing its drone strikes into Pakistan. The article attributes the following comment to Philip Alston:

it is impossible to judge whether the program violates international law without knowing whether Pakistan permits the incursions, how targets are selected and what is done to minimize civilian casualties.

Alston’s job as UN special rapporteur for extrajudicial executions is to get this information. It makes sense for him to state his concerns in a form designed to entice cooperation from the United States.
But international lawyers already have sufficient information to draw conclusions about the legality of drone use in Pakistan. We know first and foremost that the use of drones to fire missiles and drop bombs is only lawful during actual hostilities of armed conflict — drones are a war-fighting tool, not a law-enforcement tool. (photo credit) Yet, many U.S. attacks have occurred when there has been no fighting in Pakistan. During the last nine months when there has been fighting, few U.S. strikes have been of assistance to Pakistan.
Pakistani intelligence services or the military have apparently cooperated with the United States on strikes, but under international law, it should be the elected civilian officials who provide a state’s consent for foreign military operations. The New York Times article quoted the Pakistani Prime Minister as saying

the drone strikes 'do no good, because they boost anti-American resentment throughout the country.'

The United States should not be undermining civilian control in Pakistan by failing to seek the consent of civilian authorities. Nor should we settle for less than express, public consent that cannot later be denied.
We also know CIA operatives are carrying out the strikes in Pakistan, not the U.S. military. CIA operatives, however, are not part of the United States' armed forces. They do not wear uniforms, are not in the chain of command, and are not trained in the law of armed conflict. They have no right to kill in combat.
And we know that in the attempt to kill about a dozen individuals on the CIA’s "kill" list 80-some strikes have been carried out and almost 800 persons have been killed. Yet, killing suspected leaders has little long-term impact on militant organizations in a context like Pakistan. If a military objective cannot be achieved, killing violates the principle of military necessity.
A CIA spokesman quoted in the Times article says that it is "flat-out false" that hundreds of civilians have been killed by CIA strikes. But we know that the CIA has little, if any information about its victims. In such situations, the principle of humanity requires that we assume persons are civilians, not fighters. Law enforcement methods must be used against civilians, not the war-fighting mechanism of the unmanned drone. Killing many civilians in the attempt to kill a single fighter violates the principle of proportionality.
In sum, we know plenty.

(For a more detailed analysis of the law on drones, see my article entitled Unlawful Killing with Combat Drones.")

On the Job! NYU Human Rights Center Fellow

(On the Job! pays occasional notice to interesting intlaw job notices) Applications for a Center Fellow, who will serve for 1 year beginning in August 2009, are being sought by the Center for Human Rights and Global Justice at New York University School of Law.
Under the supervision of the Center’s Directors, Philip Alston, Margaret Satterthwaite, and Smita Narula, the Fellow will:
► Work in an independent manner on a wide variety of substantive projects;
► Support the work of the Center’s general operations, such as fundraising, event planning, supervision of the Center’s internship program;
► Be responsible for leading student teams and interns on several of the Center’s projects, via litigation, research, and advocacy. Current Center projects focus on:
► Human rights violations and counter-terrorism;
► The right to food and water in Haiti;
► Gender and counter-terrorism;
► Caste discrimination in South Asia;
► Corporate accountability for human rights violations; and
► Racial profiling in counter-terrorism and immigration.
Details on the position and qualifications sought may be found here.
Deadline for applications is April 30, 2009. They should be e-mailed to Ms. Kelly Ryan, ryank@exchange.law.nyu.edu, with the subject heading “Application for Center Fellow Position,” and must include a cover letter addressing the job qualifications, a CV, names or letters of reference, and an unedited writing sample of no more than 30 pages.