China

Following a raft of ratifications this week, the Arms Trade Treaty is 4/5 of the way toward entry into force.

Paying-the-priceDepositing their instruments of ratification on Tuesday were Australia, Austria, Belgium, Burkina Faso, Jamaica, Luxembourg, Saint Vincent and the Grenadines, and Samoa. They join 30 other countries that’ve become full members of the treaty since its adoption by the U.N. General Assembly on April 2, 2013. Ten more joinders are needed for the treaty to take effect.

In its 28 articles, the Arms Trade Treaty provides for states parties’ regulation of traffic in a range of arms, from battle tanks to light weapons. (Prior posts available here.) As indicated by the Control Arms poster above, regulating the latter is a principal aim of treaty proponents. (image credit)

Among the 5 permanent members of the U.N. Security Council (among them major arms-exporting states), Britain and France have ratified. The United States signed last September, but the treaty has not been presented to the Senate for consideration. China has not signed; Deutsche Welle reported this week:

‘China has indicated that it would consider signing if the US ratified, which is unlikely to happen.’

And in late May, the Voice of Russia reported that the Russian Federation would not sign, for the following reasons:

‘Russia considers this document to be not completely thought through. It also discriminates against the Russian military-industrial complex.’

page-06-image-UNHCR_v5.1_MapWith a hat tip to Colum Lynch of Foreign Policy, here’s the transcribed passage from today’s press briefing colloquy at which the U.S. Department of State confirmed that the United States now supports a referral of the situation in Syria to the U.N. Security Council:

QUESTION: Are you considering supporting a – UN Security Council authorizing a investigation by the ICC into war crimes in Syria?

MS. PSAKI: Ali, for you, let me check and see with her office if there’s more to convey on that. I do have something for you, Elise. One moment.

We do – the United States supports the referral to the ICC set forth in the draft resolution under discussion. We’ve long said that those responsible for atrocities in Syria must be held accountable, and we’ve been working with our Security Council colleagues on a draft resolution toward this end. We will also continue to support efforts to gather evidence to hold accountable those responsible for atrocities in Syria.

Go ahead.

QUESTION: Can you —

QUESTION: What changed your mind? I mean, originally, you had some concerns about whether this was the right venue to pursue accountability for Syrians.

MS. PSAKI: Well, obviously, we’ve remained concerned, continue to be concerned about the atrocities that we’ve been seeing on the ground. I don’t have any specific incident to point you to, just the ongoing gathering of what we’re seeing on the ground.

Reports are that the draft referral resolution – a draft that cannot take effect unless Russia and China decide to withhold vetoes – contains the same caveats that have drawn criticism with respect to Darfur and Libya. See, e.g., critiques in my articles (page 9 here, page 40 here, and pages 4, 8 here ; see too my posts here and here), as well as posts that NYU Law Professor Ryan Goodman published today, here and here. Spurring the latter was Lynch’s Wednesday scoop.

(credit for U.N. High Commissioner for Refugees October 2013 map of child refugees from Syria conflict)

OC.indd“A Point to Meet: Justice and International Criminal Law,” just published by the Asian Journal of International Law, is worth a read, given that its author is Dr. Xue Hanqin, a longtime Chinese diplomat who since 2010 has served as a Judge on the International Court of Justice. (As posted, she and the 2 other women of the ICJ, Judges Joan E. Donoghue and Julia Sebutinde, will headline the American Society of International Law Women in International Law Interest Group luncheon on April 10.)

In the just-published article, based on a 2012 speech, Judge Xue (below right; prior posts) takes on what she calls a “resurgence of legal idealism, in opposition to realism and positivism” – a resurgence evidenced by the growth of international criminal tribunals in the last 2 decades. Toward the end she states:

xue‘Justice should be placed at the centre of international law development, although as with any other topic in the field, the issue of global justice equally involves the politics of international law.’

(Many have made this point, as did I in articles here and here.) The “politics” that Judge Xue’s essay identifies have regional emphases, positioned at some odds with international criminal justice:

► “Asian efforts in socieconomic development” (a phrasing that hearkens to the longstanding “Asian values” debate) are put forward as a “broader” “vision on global justice”; that is, broader than “global justice” defined only to include criminal accountability.

► An “African practice” of ending “bloody conflicts” by means of amnesty, rather than criminal accountability.

The issues are critical, and the references invite scrutiny:

► The former reference describes a vision prevalent not just in Asia, but pretty much anywhere transitional justice is discussed. The identification of this vision with a particular region thus intrigues.

► The latter reference likewise pretermits that the “practice” of amnesty prevailed not just in Africa, but rather worldwide, through to the late-20th-C. revival of international criminal justice mechanisms. Indeed, Article 6(5) of Additional Protocol II (1977) to the 1949 Geneva Conventions specifically contemplates amnesty. Exploration and critique of the history and reasons for movement away from that global practice would have enriched the discussion. The same is true for the essay’s treatment of the International Criminal Court and amnesty: A discussion (like that in this article by my former student, Gwen K. Young) of the potential to consider at least some amnesties, within the framework of the Rome Statute, would have been welcome.

NorthKoreaWeb1Children figure prominently in the parade of horribles to be found in a U.N. commission’s just-published report on North Korea.

Though sadly not surprising, this is noteworthy, not the least because the country is a charter member state of the 1989 Convention on the Rights of the Child. The report, by a commission composed of Michael Kirby of Australia, Sonja Biserko of Serbia, and Marzuki Darusman of Indonesia, demonstrates that North Korea operates far from the objective of that near-universal treaty.

By way of example, ¶ 21 of the 36-page Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, declares:

‘The State operates an all-encompassing indoctrination machine that takes root from childhood to propagate an official personality cult and to manufacture absolute obedience to the Supreme Leader (Suryong), effectively to the exclusion of any thought independent of official ideology and State propaganda. …’

(See also ¶ 81. The Report, which holds the U.N. document number A/HRC/25/63, is one of several documents released yesterday and available here.) (Credit for map © 2010 William Cornforth/Human Rights Watch, which accompanies a Human Rights Watch 2012 media release subtitled “New Testimonies Say Even Children Must Work or Face Detention Camps”)

Elsewhere the Report chronicles specific harms to children:

► Taking note of the regime’s effort to keep cities like the capital “‘pure’ and untainted,” the commission wrote at ¶ 41 (see also ¶ 89(j)):

‘[T]he large number of street children migrating clandestinely to Pyongyang and other cities – principally in search of food – are subject to arrest and forcible transfer back to their home provinces, experiencing neglect and forced institutionalization on their return.’

► The Report further observes, at ¶ 42 (see also ¶ 90(f)), that women who have fled to China and are forcibly repatriated suffer many human rights violations; for example, because of the regime’s “racist attitudes towards interracial children of Koreans,” repatriated women found to be pregnant

‘are regularly subjected to forced abortions, and babies born to repatriated women are often killed.’

► Violations persist even if the mother – who may have been trafficked to China “for the purposes of exploitation in forced marriage or concubinage, or prostitution” – remains in China. Her children, the Report explains at ¶ 42  (see also ¶ 90(e)), are among the estimated 20,000 who suffer a particular predicament:

‘These children are deprived of their rights to birth registration, nationality, education and health care because their birth cannot be registered without exposing the mother to the risk of refoulement by China.’

► As for children who live in North Korea itself, ¶ 47 of the Report states that commissioners are

‘particularly concerned about ongoing chronic malnutrition in children and its long-term effects.’

Foreign aid has not eased their plight, because (¶ 50):

‘The State denied humanitarian access to some of the most affected regions and groups, including homeless children.’

► Children were among the more than 200,000 persons from other countries whom the Report says (¶ 64; see also ¶¶ 67, 70-71) that regime subjected, over the decades since 1950, to

‘systematic abduction, denial of repatriation and subsequent enforced disappearance ….’

Having catalogued such violations in this Report and accompanying documents, the commission listed numerous recommendations. The media have focused on the recommendation for a U.N. Security Council referral of the situation to the International Criminal Court (¶¶ 87, 94(a)). Given North Korea’s nonparty status and close relation to China, a veto-holding permanent Security Council member, that seems less than a nonstarter.  But any reader of the commission’s account can only hope that policymakers will find some interim means to effect change and accountability in North Korea.

gtmoVia a flight to Slovakia, United States has relinquished custody of all Uighurs – Muslim men from western China who’d been held at Guantánamo many years after executive and judicial officials agreed the men posed no threat to national security.

It didn’t have to take so long.

‘Way back in 2008, a federal judge (interviewed today by the Miami Herald‘s Carol Rosenberg) ordered release of the men. And in spring 2009, some of these detainees came thisclose to freedom in the United States. They were to be hosted by the Uighur community in Northern Virginia. A plane was readied for their journey to the mainland. According to a May 2009 Newsweek report:

‘Then on May 1, Virginia GOP Rep. Frank Wolf got tipped off. Furious, he fired off a public letter to President Obama …. The flight never took off.’

Wolf’s stated concerns that, among other things, “the detainees might attack Chinese diplomats in D.C.,” ended the 2009 plan. Indeed, within a month, The New York Times then reported,

‘Congress overwhelmingly passed a rider to an appropriations bill for the war in Afghanistan that banned resettling any of the Guantánamo detainees in the United States …’

That stalled the release of the 22 Uighurs (now living in 6 different countries) and other detainees at GTMO (photo credit), for years. Things have picked up this year, thanks to a congressional ease-up and to work by newly appointed State and Defense envoys. But as The Times’ Charlie Savage reports today, there’s still a way to go before the camp closes:

‘There are 155 prisoners remaining at Guantánamo. Of those, about half have long been approved for transfer if security conditions can be met in the receiving country, the bulk of whom are Yemenis.’

unscMy colleague Beth Van Schaack, newly returned to academia after a stint as Deputy at the State Department’s Office of Global Criminal Justice, has posted at Just Security on what the presence of 11 International Criminal Court states parties on the U.N. Security Council could mean for ICC-Security Council relations.

In the past, states parties like Guatemala have used their seat to sponsor ICC discussions at the Council, she writes, and notes that the newest member will hold the Council presidency next month. That would be Jordan, whose Permanent Representative, Prince Zeid Ra’ad Zeid Al-Hussein, has worked for years on ICC issues and has served as President of the ICC Assembly of States Parties. (credit for 2009 photo of Council in session)

One nagging problem for the Court has been state noncompliance with ICC orders – in particular, of arrest warrants for fugitives like Sudanese President Omar al-Bashir – and to date the Council has done little to command compliance by U.N. member states. Another, Van Schaack writes, is the Council’s withholding of sanctions against persons accused by the ICC. Yet another  is the resolution boilerplate by which the Council:

► 1st, declined to contribute funds to aid the investigation and prosecution of the Libya and Darfur situations that it referred to the Court; and

► 2d, immunized any national of a ICC nonparty states (read the United States) from ICC investigation, even if the national were suspected of committing ICC crimes in the referred situation.

(And see here.) In theory, the large presence of states parties could change these dynamics. Or not: Van Schaack writes of criticism that states “‘forget’ that they are ICC members when they are elected to the Council.”

And there is also the matter of the Council’s 4 members who are not ICC states parties, China, Rwanda, Russia, and the United States. Their attitudes toward the ICC range from ambivalent to downright hostile, and 3 of them are permanent members able to veto Council resolutions. Van Schaack indicates that this may have contributed to a “zeitgeist,” an opening for the proposal that the Council ought not veto measures aimed at stopping atrocities. As I detailed in An old new idea to break P-5 impasse, the idea’s been around for more than a decade, but gained new steam when France, a  Council permanent member, embraced it this autumn. The other P-5 ICC state party, Britain, has yet to weigh in.

p5Rather muted in the U.S. press is France’s recent call for “self-restraint” on its part and that of its veto-friendly partners in the P-5.

The P-5, of course, are the 5 countries with permanent membership on the U.N. Security Council. By U.N. Charter mandate, each of the 5 enjoys the right to veto a resolution authorizing intervention – even if the rest of the 15-member Council finds harm to international peace and security. As has been evident in the 2-plus years of Syria’s civil war, by exercising its veto a P-5 member can leave a matter run its course without international intervention no matter what the casualty count.

France has suggested a way out of this predicament. As stated in an op-ed that Foreign Minister Laurent Fabius published October 4 in Le Monde, in French, and in the International Herald-Tribune, in English, here’s the idea:

‘[T]he five permanent members of the Security Council – China, France, Russia, Britain and the United States – themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto.’

How to determine when the commitment is in play? It’s “simple,” Fabius wrote:

‘[A]t the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply.’

Fabius recognized “that objections of all kinds can be made,” and sought to deflect some of them with this caveat:

‘[T]his code would exclude cases where the vital national interests of a permanent member of the Council were at stake.’

It is not a new idea. As pointed out in an October 3 lecture at Georgia Law by Lee A. Feinstein, the former U.S. Ambassador to Poland who’s teaching here this semester, a similar idea appeared as Principle 3(D) of The Responsibility to Protect, the 2001 Report of the Independent Commission on Intervention and State Sovereignty, which launched the responsibility to protect concept.

What is new is that the show of support comes from a P-5 state itself. Yet it must be mentioned that France has vetoed far fewer times than most of its peers on the P-5. And those peers likely will be far less enamored of France’s idea, as Mark Goldberg posted at UN Dispatch.

What could draw those peers toward France’s idea? Perhaps an understanding that a P-5 member’s “vital national interests” are “at stake” whenever a resolution implicates the member’s client state. But then adoption would be hollow, for such a proviso would sap the proposal of its strength.

(credit for September 2013 U.N. photo by Mark Garten of, from left, British Foreign Secretary William Hague, French Foreign Minister Laurent Fabius, Russian Foreign Minister Sergey Lavrov, U.N. Secretary-General Ban Ki-moon, U.S. Secretary of State John Kerry, and Chinese Foreign Minister Wang Yi)