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50481. A Response

Author:
Tom Farer
Publication Date:
01-2009
Content Type:
Journal Article
Journal:
Human Rights and Human Welfare - Review Essays
Institution:
Josef Korbel Graduate School of International Studies, University of Denver
Abstract:
All thinking about neuralgic issues of public policy is work in infinite progress. Lacking inductive or deductive means for achieving certainty about cause and effect, our diagnoses and prescriptions are, by their nature, hypotheses shaped by a highly subjective (partially unconscious) interpretation of history and by an intuitively normative (or perhaps it is more akin to aesthetic) preference. Even if, despite being blinkered by unavoidable preconceptions, we manage through a feat of imaginative analysis, to assemble all of the relevant parts of a problem, there is no protocol for assigning relative weights to them. After all the plodding cerebration come leaps of intuition.

50482. Peace from Below: Recent Steps Taken along the Track-Two Diplomacy Path

Author:
Michael Thomas Kuchinsky
Publication Date:
01-2009
Content Type:
Journal Article
Journal:
Human Rights and Human Welfare - Review Essays
Institution:
Josef Korbel Graduate School of International Studies, University of Denver
Abstract:
Among the many emotional galleries at the United States Holocaust Memorial Museum in Washington, DC, stands a series of tablets describing persons whose courage and compassion pushed them to conceal or save the lives of those hunted by the Nazi regime for extermination. The biographical displays end near the exit doors. Perhaps their placement suggests a purpose, or an interpretation: “Here were people of good will or faith whose conscience pricked them to act against a genuine evil and for a reconciled community.” “Here were some who did more good than harm.” “Here were prophetic voices who understood the urgency of the moment.” “Here were some who hoped in the midst of despair.” Or, “here were those whose visions for humanity were broader than mere power and violence, who believed in the possibilities of peace through human intervention.”
Topic:
Cold War
Political Geography:
United States

50483. Reconciliation and the Therapeutic Impulse: What Does It Mean to "Heal"?

Author:
Elizabeth S. Dahl
Publication Date:
01-2009
Content Type:
Journal Article
Journal:
Human Rights and Human Welfare - Review Essays
Institution:
Josef Korbel Graduate School of International Studies, University of Denver
Abstract:
Healing is widely seen as an essential component of socio-political reconciliation, helping to promote a more peaceable future after violent conflict. At the same time, however, little is known about what exactly “healing” means to traumatized people and whether particular reconciliation efforts do indeed constitute healing. Instead, social healing is described usually in metaphorical terms, compared to the way an individual body heals, for example. This biomedical language is explored and connected to medical ethics as a way to broach these difficult issues and come to a more systematic understanding of healing processes.
Political Geography:
United States

50484. Silhouettes of the Disappeared: Memory, Justice and Human Rights in Post- Authoritarian Argentina

Author:
Vincent Druliolle
Publication Date:
01-2009
Content Type:
Journal Article
Journal:
Human Rights and Human Welfare - Review Essays
Institution:
Josef Korbel Graduate School of International Studies, University of Denver
Abstract:
Soon after taking office in 2003, Argentine President Néstor Kirchner announced that the Escuela de Mecánica de la Armada (Navy School of Mechanics, or ESMA) in Buenos Aires, one of the most infamous torture centers of the last military dictatorship, the so-called “Proceso de Reorganización Nacional” (National Reorganization Process, 1976-1983), would be transformed into a museum of memory. On the occasion of the twenty-eighth anniversary of the military takeover, March 24, 2004, President Kirchner led a highly symbolic public event during which he and a range of social actors entered the premises of the ESMA where thousands of Argentines were taken clandestinely under the dictatorship and most of whom have since then been missing, thereby marking the re-appropriation of the past by the state and Argentine society. He was accompanied by the Commander of the Army, the representatives of the city of Buenos Aires, major human rights organizations, and associations of the relatives of the victims of the repression. In his speech, President Kirchner apologized to Argentine society for the failure to pursue justice and for preserving the memory of the last dictatorship. After signing the documents devolving ESMA to the city of Buenos Aires, the event culminated in the removal of the portrait of General Jorge Rafael Videla, the architect of the military takeover and first leader of the Junta, and of Reynaldo Bignone, its last leader, from the walls of the Colegio Militar by the President. Some days before this event, which may already be called a defining moment in Argentine history, human-sized silhouetted representations of the disappeared had been placed on the bars of the entrance of ESMA by the relatives of the disappeared, human rights organizations, and some artists as well as invited guests. The silhouettes have remained there since then. At the turn of the twenty-first century, the disappeared had returned to Argentine society, no longer as invisible traces haunting daily life, but as acknowledged absences. They have found a place and a role as the guardians of memory and as a source of the ethical commitment to the defense of human rights in post-authoritarian Argentina.
Political Geography:
Argentina

50485. International Justice and International Politics: Intertwined Paths

Author:
David Penna
Publication Date:
01-2009
Content Type:
Journal Article
Journal:
Human Rights and Human Welfare - Review Essays
Institution:
Josef Korbel Graduate School of International Studies, University of Denver
Abstract:
The end of July 2008 was marked by an unexpected event: the announcement of the spectacular arrest and transfer of Radovan Karadzic to the International Criminal Tribunal for the Former Yugoslavia by Serb authorities. Karadzic, slightly disguised, had led a life hiding in plain view and even making television appearances in his new personality. The transfer came thirteen years after Karadzic's indictment (“Karadzic Set to Make First Court Appearance” 2008). The arrest left two indicted war criminals from Yugoslavia (Ratko Mladic and Goran Hadzic) remaining at large and seemed to promise some prospect that the tribunal will have a high profile conviction before it closes its doors in 2010. This is especially compelling given Karadzic's claim that he was promised immunity by the United States for agreeing to the Dayton Accords and limiting his political activity in later years; the Court rejected that any immunity could be recognized under international law (ICTY 2009, para. 5). Was the arrest an indication that international justice had triumphed over international politics? The Court seems to accept a standard of international justice that demands respect for agreed upon international standards of humanitarian law or respect for victims' rights rather than political deals, even those guaranteed by great powers to end a conflict.
Topic:
Humanitarian Aid
Political Geography:
Yugoslavia

50486. Editorial

Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
For many years I taught a Seminar on the legal aspects of the Arab–Israeli conflict at Harvard Law School. It was unlike any other of my courses or seminars. The participants, students and researchers, were more passionate and engaged than normal. As expected, there was always a group of passionate pro-Israelis (mostly but not exclusively Jewish). There was always a group of passionate pro-Arabs, or, at times it felt, anti-Israelis (mostly but, of course, not exclusively Jewish). Sure, they came to learn, but mostly they came to learn how to sharpen the arguments for ' their ' side in the conflict. ' Lawfare ' – the continuation of warfare through other means – well describes the gestalt . There were, of course, also a few who came to learn, understand, disentangle myth from reality, sort out the facts and, normatively, seek a modicum of truth and justice in a conflict which often seems to pit right against right, and wrong against wrong. But not once did this latter group constitute a critical mass.
Political Geography:
Israel and Arabia

50487. Universality of International Law from the Perspective of a Practitioner

Author:
Bruno Simma
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
The ESIL Conference at which this article was originally presented as the Keynote Speech was devoted to the topic of “ International Law in a Heterogeneous World ” . The article attempts to demonstrate that heterogeneity does not exclude the universality of international law, as long as the law retains – and further develops – its capacity to accommodate an ever larger measure of such heterogeneity. After developing three different conceptions, or levels, of what the term ' universality ' of international law is intended to capture, the article focuses on international rules, (particularly judicial) mechanisms, and international institutions which serve the purpose of reconciling heterogeneous values and expectations by means of international law. The article links a critical evaluation of these ways and means with the different notions of universality by inquiring how they cope with the principal challenges faced by these notions. In so doing, it engages a number of topics which have become immensely popular in contemporary international legal writing, here conceived as challenges to universality: the so-called ' fragmentation ' of international law; in close connection with this first buzzword the challenges posed by what is called the ' proliferation ' of international courts and tribunals; and, finally, certain recent problems faced by individuals who find themselves at the fault lines of emerging multi-level international governance. The article concludes that these challenges have not prevented international law from forming a (by and large coherent) legal system. Most concerns about the dangers of fragmentation appear overstated. As for the ' proliferation ' of international judicial institutions, the debate on fragmentation has made international judges even more aware of the responsibility they bear for a coherent construction of international law. They have managed to develop a set of tools for coping with the undesirable results of both phenomena. Despite some evidence of competition among international courts for ' institutional hegemony ' , such competition has hitherto been marked by a sense of responsibility on the part of all concerned. Thus, from the viewpoint of a practitioner, the universality of international law is alive and well; there is no need to force the law into the Procrustean bed of ' constitutionalization ' .
Topic:
International Affairs

50488. Close Encounters of a Sovereign Kind

Author:
Dino Kritsiotis
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
This article considers the prominence that threats of force have had in international political life since the end of the Cold War, and how we tend to overlook these threats in favour of the actual uses of force. Security Council Resolution 678 of November 1990 is one such example. Emblematic of the rule of law and its New World Order, it is often invoked for the 'authorisation' it gave to Member States of the United Nations 'co-operating with the Government of Kuwait ... to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent resolutions and to restore international peace and security in the area' - but this provision was made contingent upon whether 'Iraq on or before 15 January 1991 fully implements [previous] resolutions'. We examine the range of circumstances in which threats of force have arisen and find that these go beyond the archetypal 'close encounter' between states - such as the Cuban Missile Crisis of 1962 and the 'threats of force' directed against Iraq prior to Operation Desert Fox (1998) and Operation Iraqi Freedom (2003). Making use of the jurisprudence of the International Court of Justice from its Nuclear Weapons advisory opinion (1996), we advance the idea of a prohibition of the application of force, and consider the logistics of its operation in state practice; first, in the recent relations between the United States and Iran and, then, through a modern reprise of the facts of the Corfu Channel Case of April 1949. We allude to the importance of the legislative background and purpose behind this prohibition, constantly reflecting upon the intricacies of state relations in which this provision of the United Nations Charter seeks to make its mark.
Topic:
Security, Cold War, Government, and United Nations
Political Geography:
United States, Iraq, and Kuwait

50489. The Rise of International Criminal Law: Intended and Unintended Consequences

Author:
Kenneth Anderson
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even 'crowded' other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.
Topic:
United Nations and Law

50490. The Use of Force against Terrorists

Author:
Christian J. Tams
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
Whether states can use force against terrorists based in another country is much discussed. The relevant provisions of the UN Charter do not provide a conclusive answer, but have to be interpreted. The present article suggests that in the course of the last two decades, the Charter regime has been re-adjusted, so as to permit forcible responses to terrorism under more lenient conditions. In order to illustrate developments, it juxtaposes international law as of 1989 to the present state of the law. It argues that the restrictive approach to anti-terrorist force obtaining 20 years ago has come under strain. As far as collective responses are concerned, it is no longer disputed that the Security Council could authorize the use of force against terrorists; however, it has so far refrained from doing so. More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.
Topic:
Security, Development, International Law, Terrorism, and United Nations