International Law Final Exam
1) Customary International Law & Women’s Rights
(a) Customary International Law
The customary international law can be defined as the international obligations, which emerge from state practice unlike to the obligations emerging from the formal drafted international agreements. Based on Article 38(1) (b) of ICJ Statute, the customary law is a critical source of international legal frameworks and sources. The customers can be created through state practices and opinion juris (Dunoff & Ratner, 2010). Normally, a customary international legal framework emerges from the consistent practice of governments which follows the sense of legal responsibility and obligation.
Something can be determined to become customary international law when it studies the principle of custom. The principle of custom is relied upon by the United Nations, ICJ, jurists, and member states. The principles of customs align well with the principles of treaties and law in the formation of customary international law. In Paquete Habana landmark, it reversed the initial judicial decisions allowing for the capture of the fishing vessels based on Prize. Its significance aligns with the fact that the integrated customary international legislations within American laws. Paquete Habana case indicated lengthy legal precedents created to support the presence of customary international laws.
(b) S.A.S. v. France
I disagree with the court decision holding that the full-face veil should be banned in the European nations. In the court decision, the respect for equality among women and men and the respect for the human dignity could not be seen as the protection of the human rights and freedom of other persons. It is clear that the court considered the argument of the state that the showing of a face was important in improving social interactions. The court reviewed by the claims of S.A.S that argued that the law was a violation of the ban against torture was ill-informed, and they would be inadmissible based on article 35 of the Convention. However, I believe it was inappropriate for the court to ban the veil, as it a symbol of religion. Muslim women should be allowed to have their democratic rights in expressing themselves without legal restrictions.
The minority dissented with the decision made to the court arguing that sacrificing the significant individual rights developed by the doctrine of abstract provisions and principles. The minority also indicated that face-covering played a significant role in promoting social interactions. Unlike the majority, the minority decision determined that there was agreement on the importance of banning veils in the European nations and putting weights on the human rights groups opposed to bans (Dinstein, 2016). I support the ideas of the minority groups which argued that the ban on full-face veils was illegal and inhumane. In this case, seeking reprieve from the international court of justice would be useful in countering the oppressive ruling. The state laws could be challenged in the UN without the involvement of key member states.
(2) International Humanitarian Law: Nuclear Weapons
“Legality of the Threat “
(a) Court’s Holdings in the Majority Decision
In the “Legality of the Threat,” the majority decision was not made before after seven rounds of legal voting. The majority decision stated that they should comply with the request of the advisory opinions. They also determined that there were no proper customary and conventional international laws on the authorization of threats and the nuclear weapons use. In addition, they determined that the nuclear weapons usage is compatible with the guidelines of international laws in armed conflicts. It also relates to the use of rules and principles of humanitarian legislations.
The court also determined that the usage of nuclear weapons is contrary to the guidelines of the international law. Nevertheless, courts could not define whether the usage of nuclear weapons will be lawful in some instances such as self-defence (Dunoff, & Ratner, 2010). Another key issue was that there are numerous obligations to act in good faith and bring about conclusion negotiations relating to nuclear disarmament in different aspects of effective international control.
In the case, the customary international law was inadequate evidence in determining whether the possession of nuclear weapons was illegal. For example, the international court was unable to get a legal consensus whether possession of the nuclear weapons was illegal. In practice, the nuclear weapons were not able to be applied in war and there would be numerous UN resolutions relating to the usage of nuclear weapons. The ICJ could not obtain factors demonstrating that new customary laws directly prohibit the usage of nuclear weapons.
Among the three dissenting opinions, the most persuasive and critical opinion was by Judge Weeramantry. Weeramantry’s Opinion was based on the proposition which the use of nuclear weapons is illegal in all circumstances. It undermines the fundamental provisions of the international law (Dinstein, 2016). It also negates the humanitarian aspects that underlie the key aspects of the humanitarian legislations. The usage of nuclear weapons was seen to undermine the conventional law, more so the Geneva Gas Protocol of 1925.
The judge was also adamant that it contradicts the fundamental provisions of the significant dignity and the role of persons relating to the laws. It also undermines the human environment which threatens the lives of people. Nevertheless, there are certain aspects of the opinion that are expressly contained that nuclear weapons are subject to critical limitations from the UN charter. From the opinion of Weeramantry, the humanitarian laws originate from the real perceptions of adverse wars. The adverse nature of nuclear weapons is useful in limiting the usage of the nuclear weapons.
(3) International Criminal Court
(i) The crimes the International Criminal Court (“ICC”) adjudicates
The International Criminal Court (ICC) is an international judicial body that was created by Rome Statute to adjudicate on the various crimes including persons accused of war crimes, committing crimes against humanity, and genocide. The agreement was ratified in 2002 when the court started its operations. Largely, the court works as the source of last resort in the prosecution of heinous crimes in instances of failed national courts. Unlike ICJ which listens to interstates disputes, the ICC deals with the prosecution of persons. However, for a person to be prosecuted, they must belong a nation which is member state to the agreement.
(ii) ICC might try the crime of aggression
The ICC can try a crime of aggression. It is because the acts of aggression comprise of invasion, use of force, and bombardment which is illegal and crime based on the Rome Statute. The content of crime of aggression includes whereby an individual plans and executes actions of aggression through state military force, which violates the UN charter. The Act is usually a violation of the scale and character of persons. The conditions of exercising the jurisdictions of the crime of aggression are through the court. The ICC might exercise its criminal jurisdictions on the crime of aggression includes state referrals and the Security Council referral programs.
(iii) Limitations on Prosecutions
Based on article 11 of the ICC statute, the offenses of war crimes, crimes against humanity, and genocide are not subjected to any limitations. It implies that a person could be prosecuted at the moment after being alleged to have engaged in war crimes. The reasoning of the prohibiting of statutory limitations on war crimes against humanity is defined in the Convention of Non-Applicability of the ICC provisions. The nationality of the persons who engages crimes matters. The ICC should ensure that the persons are citizens of the member states who are a signatory to the ICC treaties and legal proceedings. The nationalities of the persons who can be prosecuted are individuals from the ICC member states. However, the location of where the crimes were committed does not matter because prosecution relies on the citizenship status of the persons.
(iv) Exercise Jurisdictions
There is an additional approach, which the ICC might exercise authorities. Some of the proposals include the activation of the court’s jurisdiction consent from the exercising of court’s jurisdiction and the use of the Security Council referrals. The Security Council involves ways of activating jurisdictions through Security Council referrals. Based on the ICC treaty agreements, it supports the activation of the court’s jurisdiction. Unlike the Security Council, it could refer diverse situations explaining that specific persons who commit crimes within the court’s jurisdictions in issues that require proper investigations. Unresolved issues aligning with state compliance is when all state parties should file proper complaints to consent the level of specific crimes.
(v) Start Date
Based on article 124 of the ICC, the start date whereby crimes the ICC might prosecute is from July 1, 2002. Even though the ICC agreement was ratified on April 11, 2002, the prosecution could only occur to crimes start from 1st July 2002.
(vi) Bush II administration Approach to ICC
Bush II administration relied on the various approaches and measures to limit the exposure of the US nationals to the ICC. One of the actions taken by Bush II administration was to punish states that were member states to the ICC treaty includes democratic and human right upholding nations. The U.S government also issued significant threats to the UN effort to helps nations in dealing with significant crisis whereby such threats would legitimize the ICC. The administration of Bush II was mainly motivated by ideology. They did not rely on the actual assessment of risks associated with the court and did not consider the negative implications which could lead to the attacks of close allies.
The Bush II administration first unsigned from the Rome Treaty. On May 2002, the Bush II administration wrote to the US Secretary Annan informing him that the U.S was not seeking to become a member of the ICC treaty and past U.S regime did not have legal obligations and responsibilities. Another measure used by the Bush administration was the signing of the bilateral immunity agreements (BIAs). The BIAs defined the agreements, which were focused on shielding the U.S citizens from potential ICC prosecution in case U.S citizens were implicated in crimes on the territory of ICC member states and jurisdictions.
Later, the Bush administration passed the American Servicemembers’ Protection Act of 2002(ASPA) which expanded the anti-ICC program in the U.S. The law prohibited the cooperation of the U.S with the ICC that had given the president the power to free the U.S from ICC invasions. ASPA had significant impact including the withholding of the military help such as the implementation of BIAs among the emerging democracies. The fourth measure implemented by the Bush administration was the sustained attacks of ICC in the UN. For example, the U.S government had vetoed peacekeeping operations in Bosnia as they were unable to obtain immunity provisions from the ICC. In dedication to getting immunity from the ICC treaty, the U.S government progressed to delete specific reference to the ICC.
(vii) Obama Administration’s Approach
Comparing the approach to the Bush administration and Obama administration approach that encouraged constructive engagement in each case, I agree with the Obama administration approach that sought to ensure that the global political situation is stable and the rule of law was maintained across the border. In contrast, the Bush administration had reduced the credibility of the U.S as the global leader of accountability and legal compliance. Most importantly, the court enjoyed benefits from the support obtained from the various global states, but in instances, the state agreed to the U.S demands in the entering into the BIAs.
The Obama administration applied a more civil approach, which is supported by ICC in promoting justice and accountability for serious crimes and issues in the territories of member states. In contrast, the approach of Bush II administration led to the revoking of the various allies associated with the court. The Bush administration policy was not useful in addressing security concerns globally (Dinstein, 2016). The cutting of military aids relating to the allies was problematic to the foreign military states as they did not have adequate resources to promote democratic principles and relationships.
(4) Terrorism and the Use of Force/ Treatment of Detainees
(a) Legal Arguments
The legal arguments presented by the U.S-led coalitions’ use of force in Afghanistan responding to the 9/11 attacks included that legitimate authority and just cause. The U.S government explained that even though they lack the proper declaration of war for responding to foreign aggression, they had legitimate authority to act in self-defence. Based on the International Laws, Article 51 of UN Charter recognized the right of self-defense that allows the Security Council to give authority for the usage of force. Without the Security Council resolution, it is deemed illegal for a nation to attack another. However, there were two legal exceptions stated in the law.
One exception was that the responding through military actions in self-defense when a nation was subjected to armed attacks by another country. In the U.S attacks, it did not meet these criteria as Afghanistan was not involved in attacks against the U.S. The second exception was that when a nation obtains certain knowledge and information about potential attacks from other nations should be brought to the Security Council.
The U.S government also defended their actions on the aspects of having the right intentions. In a joint resolution meeting in Congress, the U.S president had relied on the legal principle of defense to defend his actions. He termed self-defence as the practice of taking proper measures to deter and prevent potential acts of terrorism within the U.S borders. Only the U.S Congress and U.S government supported the legal principles of just cause and right intention to justify their invasion of Afghanistan. They did not have any strong international laws and provisions to justify their strikes in Afghanistan.
(b) Legal Issues
Some of the key five legal issues that arise over the legality of the U.S using force to respond to the 9/11 attacks includes, firstly, the issue to determine whether the U.S entitled to target Taliban in Afghanistan without UN Security Council resolution. The just cause and self-defense theories support the action of the U.S in taking action to respond to the terrorist attacks by the Taliban militants. Another legal issue was on the provision of state sovereignty. The invasion of U.S military into Afghanistan was illegal due to the lack of legal agreement and international law supporting the action. Diplomacy should have been obtained between the varied states to reach a good conclusion. The International Law explains that other measures for resolving disputes should be examined well before the engagement in war.
The third legal issue is the validity of the UN Security resolutions in taking military actions against states. It is important for the U.S to consider pushing for a resolution with the UN to affirm their impact and nature of terrorism in the society. The next legal issue was to review how the international customary law justifies the use of military force against other states. The international customary laws adopted based on the UN Security Council practices and resolutions. The final legal issue is to determine if the aggressive approach was legal and ethical. It is clear that the aggressive approach was unethical and it could lead to significant repercussions. These legal issues justify that the U.S did not follow the international laws critical in supporting military invasions in other nations.
(c) Options Available
The options available in pushing the persons responsible for the 9/11 attacks rather than usage of military force was to impose sanctions on Afghanistan. The notifying the UN security council of the threat posed by the terrorists. In addition, working with a coalition of states in the middle east to deal with the terrorists involved in the bombing in the U.S. However, the actions were no popular and the Bush Administration seems to push for a populist move, with strong political support. The usage of military force had popular political support from the public at the start of the strikes. The need for political support and heroism pushed the Bush administration into the usage of force.
However, I think the alternative course should have been pursued, as it seemed to provide an amicable solution and coordinated efforts to deal with the terrorists. The forming for collation with states close to Afghanistan was a good solution as it would help in eradicating the problem of terrorism. The Bush administration should have cooperated with the UN Security Council and the Middle East states to launch strong assaults against the Taliban militants. The notification of the UN Security Council would have prompted decisive action and strategy against the terrorists which is best and legal approach to implementing in international conflict crisis.
(d) Legal Protections
The legal protections that would in protecting the members of Al Qaeda and other detainees of the collation forces includes legal status of individuals detained in the war under International Humanitarian Law. The legal protections provide that persons protected in cases of international armed conflicts the civilian and the combatants. The humanitarian law is usually focused on promoting universal rights for all persons. However, the captured Al-Qaeda members in Afghanistan could be defined the prisoner of war status as combatants. It is because they were part of intentionally armed conflicts (Dinstein, 2016). The militants would not have legal ability to challenge adverse treatment by the U.S and coalition forces. For example, the detainees of war in Guantanamo Bay do not have any legal protections due to their allegiance to intentionally armed conflicts. Recently, human rights advocates and groups have challenged the creation of proper legal protections and provisions to protect the detainees of war from inhumane treatment.
In summary, it is clear that the model of international laws depends on the national laws and state support. The principle of customs that forms the international customary laws is important and depends on the diverse organizations and institutions globally. The principle of custom is relied upon by the United Nations, ICJ, jurists, and member states. The principles of customs align well with the principles of treaties and law in the formation of customary international law. For example, the Obama administration approach that sought to ensure that the global political situation is stable and the rule of law was maintained across borders.
Dunoff, J., & Ratner, R.S. (2010). International law: Norms actors process: Problem approach, 3rd edition. Maryland: Aspen Publisher
Dinstein, Y. (2016). The conduct of hostilities under the law of international armed conflict. Cambridge, UK: Cambridge University Press.