AIDP Blog

The Guardian is reporting today that the UK, France, China and Russia will be asking the UN Security Council to adopt a resolution blocking the International Criminal Court from continuing the effort to prosecute Sudanese President al-Bashir for Genocide in Darfur.  See:

http://www.guardian.co.uk/world/2008/sep/14/sudan.humanrights

The United States has not yet decided whether to support such a resolution, and as a Permanent Member of the Council (and the first country to label the situation in Darfur as genocide) it could exercise its veto, thereby allowing the International Criminal Court arrest warrant to issue without political interference.

It will be absolutely tragic if the United States and the other members of the Security Council give in to al-Bashir’s blackmail, adopting a resolution ordering the ICC to defer its prosecution of the indicted genocidaire and war criminal in return for his pledge to cooperate with the UN and OAU.  If history has taught us anything, it is that the international community cannot rely on indicted war criminals to serve as reliable guarantors of peace.  Like Slobodan Milosevic, Radavan Karadzic, and Charles Taylor, al-Bashir cannot be trusted to follow through with his pledges of cooperation.  Al-Bashir has and will continue to direct a genocidal policy while under  the pretense of cooperation.  Nothing will actually be gained by quashing the ICC indictment, and so much will be lost.

A Security Council resolution ordering the ICC to defer its prosecution of al-Bashir would be a serious blow to the  credibility and legitimacy of the ICC and the growing trend toward international accountability.  It will return the world to a cynical age in which future warlords, parroting Hitler’s  infamous words about the Armenians, will be able to say to their followers, “Who after all today remembers the fate of the Darfurians.”   

Where should the line be drawn between “just war” and “war crime”?  That is the question at the heart of the upcoming day-long AIDP American National Section’s annual conference at Case Western Reserve University School of Law on Friday, September 26.

The conference features two dozen of the world’s foremost experts in this area, including: President of the International Criminal Court Assembly of State Parties Christian Wenaweser; Former Nuremberg Prosecutors Henry King and Ben Ferencz; Former Deputy Legal Adviser, UK Foreign Ministry (who resigned over the invasion of Iraq), Elizabeth Wilmshurst;  Former U.S. Ambassador at Large for War Crimes Issues David Scheffer; Former Chair of the ICC Statute Drafting Committee Cherif Bassiouni; Executive Director of the International Bar Association Mark Ellis; Former Commissioner of the Sierra Leone Truth Commission Bill Schabas; and academic experts from, Austria, Canada, Germany, Ireland, Liechtenstein, New Zealand and the United States.

The Conference, and an Experts Meeting the following day, is designed to advance the work of the International Criminal Court Assembly of State Parties Working Group on the Crime of Aggression, and the report of the Experts Meeting, along with the articles generated from the conference, will be published in the spring 2009 issue of the Case Western Journal of International Law.

The September 26 Conference is free and open to the public, and complementary lunch is provided if you register in advance.  In addition, 7.0 hours of CLE credit is available ($200 fee).   For a schedule of events and on line registration, please visit:  http://law.case.edu/lectures.  If you can’t make it to Case for the conference next week, you can view the proceedings live (or at any time) via webcast at that same URL.

The Conference is co-sponsored by the American Society of International Law, International Bar Association, International Association of Penal Law, International Law Association, the Planethood Foundation, the Robert H. Jackson Center, the Maltz Museum of Jewish Heritage, and the Wolf Family Foundation.

We are pleased to announce that “Enemy of the State: The Trial and Execution of Saddam Hussein” (St. Martin’s Press), “a work of non-fiction written like a novel” by AIDP American National Section President Michael Scharf and Vanderbilt Law Professor Michael Newton, will be available tomorrow, September 16, in bookstores everywhere.

The questions addressed in the book are among the most important issues facing the world today, and are at the core of the 2008 American Presidential election:  How should the United States respond to atrocities in foreign countries, such as Darfur, Burma, and Georgia?  What is the best approach to rebuilding Iraq and dealing with the Arabic speaking world? Where should we draw the line in what is acceptable in our fight against terrorism?  – to mention only a few.

 For more information about this “page-turner brimming with illuminating anecdotes,” including chapter excerpts, readings by the authors, color photographs, links to television and radio interviews about the book, and Q&A with the authors, please visit:

http://enemyofthestatebook.com/

View my article, Anticipatory Self-Defence and International Law—A Re-Evaluation, published in the Journal of Conflict & Security Law. 

Abstract

Traditional state v. state war is largely a relic.  How then does a nation-state defend itself—preemptively—against an unseen enemy?  Existing international law—the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373—do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor.  This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law this article proposes a process-based “strict-scrutiny” approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

View a response written by Muge Kinacioglu, Department of International Relations, Bilkent University, Turkey, A Response to Amos Guiora: Reassessing the Parameters of Use of Force in the Age of Terrorism: Pre-emptive Action and International Law.

View another response written by Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, A Response to Amos Guiora’s Article on Pre-Emptive Self-Defence Against Non-State Actors. 

Cross-posted on National Security Advisors.

Click here for more information on my panel addressing  the prosecution of terrorism, videocast on September 11, 2008 from 5:00-8:00 am MST.