Masterclass with Professor Marti Koskenniemi

'The Politics of Human Rights’

On 14 November 2011, Professor of International Law at the University of Helsinki Marti Koskenniemi engaged with five junior members of the School of Human Rights in a ‘Politics of Human Rights’ Masterclass.  Laura Henderson, Ingrid Leijten, Gustavo Arosemena, Robert Weaver and Abel Knottnerus challenged the current Treaty of Utrecht Visiting Professor on five propositions selected from his article ‘The Effects of Rights on Political Culture’. Under the chairmanship of Professor Tom Zwart the afternoon showed an elusive discussion on the foundations of human rights.

It is not every day that law students, scholars or professionals question the footings of their study and practice: what is the meaning of rights? Many might actually feel quite uncomfortable to engage in such discussions.  How to think of a house, when debating its building stones? What is left of human rights, if one starts to challenge the meaning of rights itself? Perhaps partly because of these concerns, many scholars prefer to elaborate on the roof tiles or the colours of the curtains, but not Martii Koskenniemi. While calling jurisprudence a ‘disaster’ and technicalities boring, he brought his attentively listening public back to the foundations of human rights.

Twelve years ago, Koskenniemi had claimed in Alston’s ‘The European Union and Human Rights’ that Ronald Dworkin’s famous thesis of rights as trumps was false. Rights could never be a-historical and universal. However, nobody tended to disagree with his argument. Of course, there is always a gray zone in which politics plays a major role. Would this mean that Koskenniemi shot a dead horse, a building stone which nobody uses anymore? No, because the rights discourse, according Koskenniemi, remains to hold a separate, a relatively absolute position in relation to other legal language: ‘I attack those people that believe that rights are the instrument, the technique to protect the most important values of social goods (..) It is that ‘something’ which makes rights special that I address’. We could describe that ‘something’ as the comfort of living in a house.  

What should we do with the house? We cannot just sleep under the stars, can we? Of course not, all participants of the Masterclass appeared to agree on this.  Acknowledging its politics is not to denounce the importance of human rights. This brings us back to the colour of the curtains. Can we find a way to decide which fabric to take? It was on this question, on the criteria to distinguish between a genuine claim to rights and an improper claim to rights that the discussion evolved.

Breakfast Meeting with Courtenay Griffiths QC

The Netherlands School of Human Rights Research hosted its second breakfast meeting on Monday the 31st of October 2011. In a riveting follow-up to the first guest speaker David Crane, former Prosecutor of the Special Court of Sierra Leone, Courtenay Griffiths Defence Counsel for Charles Taylor, defended the assertions made in his closing argument that the Taylor Case was politically motivated and that international criminal law a product of political machinations. The breakfast provided a great platform for academic debate and discussion, and interns were 'hanging on the lips' of Mr. Griffiths, who quite eloquently defended his position. 

Future meetings will see the likes of prominent legal scholars, judges, and practioners. It will offer interns a unique and fantastic opportunity to supplement their practical training with sound theoretical legal knowledge and practical advice whilst help keeping them abreast with the latest developments in international criminal law. It also provides excellent networking opportunities, since interns get one on one time with guest speakers.

The meetings are convened by Professor Tom Zwart, who is the Director of the Netherlands School of Human Rights Research, and organised by myself. These informative sessions are held at the Eden Babylon Hotel in The Hague, directly across from the Central Station and are convened on each allocated day from starting at 8.00 am. Breakfast is free of charge so that should be stimulus enough to sign up :-) For more information interns should contact the heads of their respective internship units or if all else fails drop me a mail.

Posted by Ingrid Roestenburg-Morgan

African Union (finally?) recognizes new Libyan leadership

On 21 September 2011, the Chairperson of the African Union (AU) H.E. Teodoro Obiang Nguema Mbasogo, President of Equatorial Guinea, announced the recognition of the National Transitional Council (NTC) ‘as the representative of the Libyan people as they form an all-inclusive transitional government that will occupy the Libyan seat at the AU’. Although being rather ambiguous in its wording – as it speaks of the NTC as an ‘all inclusive transitional government’, a status which the NTC can not claim to fulfill – this statement should be seen as a major alteration in the position of the AU and as a strong leg up for the NTC. Especially since South Africa expressed its support for the decision of the AU. Prior to this statement, the AU refused by all means to recognize the NTC while encouraging ‘the Libyan stakeholders to form an all-inclusive transitional government that would work towards the promotion of national unity, reconciliation and democracy’.

During the course of the conflict in Libya the AU has, under the leadership of South African President Jacob Zuma, continuously called for a cease-fire and mediation under African guidance. Simultaneously, the body expressed multiple concerns about the implementation of United Nations Security Council (UNSC) resolution 1973. According to the AU the massive airstrikes NATO launched on Libyan soils would be counterproductive. As Zuma stated in June of this year: ‘These actions undermine the efforts of the AU in finding solutions to the problems facing its member states’. By the time Tripoli had been conquered by the rebels and all five veto-powers had recognized the NTC, the AU held on to the belief that the future for Libya would lie in a truly all-inclusive transitional government, including supporters of Gaddafi’s regime. This position provoked some fierce criticism from voices within and outside the African community. In essence, two strains of criticism can be identified.

Commander and Chief: Cultural Constraints Related to Command Responsibility

The trial of Jean Pierre Bemba, at the International Criminal Court raises important issues related to the theory of command responsibility. This is the first case at the International Criminal Court which focuses on the doctrine to establish the criminal responsibility of an accused in a case before the Court. On face value, the facts of the Prosecutions case reveal that Mr. Bemba being the President of the Movement for the Liberation of Congo (MLC) and commander in chief of its military wing, the Arme´e de Liberation du Congo (ALC)., had a particular relationship to the troops directly involved in the commission of the crimes in the Central African Republic (CAR) during 2002 and 2003. In short, through a chain of command he was directly responsible for the crimes committed by his troops in the region. The basis of this type of responsibility is codified under Article 28 of the Rome Statute, which holds that military commanders can be held individually accountable for the crimes of their troops if they fail to exercise effective control over those under their command, regardless of whether or not they are connected to the crime in question. Article 28 goes even further to distinguish between military and non-military commanders complicating the rule even further.

China No Longer Shy on Human Rights

Professor Tom Zwart recently visited China, where he had the opportunity to address the Human Rights situation and the progress made by China since its ratification of the Universal Declaration of Human Rights. In an interview on Chinese national television's CNTV's Dialogue, Professor Zwart addressed the possibility of bridging the divide between the universality of human rights to Chinese culture and society. For more on this interview visit the link below:

http://english.cntv.cn/program/dialogue/20110923/117638.shtml#.ToBjVeu5Ufg.facebook

Posted by Ingrid Roestenburg-Morgan

Child Soldiers: Cultural Challenges

This topic has been one I’ve wanted to explore for a while now.  This is the opportune time to do so and get some insights on the matter. It relates to the dilemma international law and more importantly, the International Criminal Court will likely be facing in the future, with regard to the issue of child soldiering. In particular, I am referring to the cultural perception of the crime as viewed from a non-Western interpretation.

There are various factors which may be seen as obstacles to the universal qualification of the concept ‘child’ soldier for one, and the implications which attach thereto under international criminal law. According to the famous American anthropologist and lawyer David Rosen, in his article entitled Child Soldiers, International Humanitarian Law and the Globalisation of Childhood an impasse is reached in understanding the concept of childhood.  I refer to a modern interpretation of the concept as understood from an international perspective. The current interpretation under international humanitarian, criminal and human rights law posits a single, universal understanding of the concept.

A distinction must be drawn between ‘a child in culture’ and ‘a child in law’. The latter definition holds fast to the position that children falling under the age category of 18 and who are recruited into or are attached to any regular or irregular armed group qualifies as a child soldier. This is referred to as the straight 18 position and exemplifies the view that the recruitment or deployment of any individual under the age of 18 is criminally punishable under international law. There is clearly an expected difference when you examine the concept ‘child in culture’. I will use the case of child soldiering in Sierra Leone as an example. The Poro and Sande culture in Sierra Leone holds that ‘to be a warrior is to be an adult’ and part of this culture involves initiation ceremonies where boys between the ages of ten or eleven, are kidnapped and taken into seclusion into the bush where they are prepared for the ways of adulthood.  This forms a distinct marker for their transition into adulthood.

The African Charter on Human and Peoples’ Rights: Developing an Effective Framework

A recent study by the American Journal of Public Health found that an average of 48 women and girls are raped every hour in the Democratic Republic of the Congo.  According to the study, within a 12 month period, 400,000 females were raped during the ongoing civil war that has crippled the country.  Without a doubt, the call for human rights enforcement in Africa rings as loudly as ever. The perennial question debated by human rights scholars is whether Africa can effectively answer that call?  I believe that the African Charter on Human and Peoples’ Rights answers the call for standards that will improve human rights conditions in Africa. However, structural defects within the judicial institutions of the African Charter are limiting the Charter’s effectiveness and leaving the legitimacy of its judicial institutions in question.

New Book by Professor Bas de Gaay Fortman

Professor Bas de Gaay Fortman, has a new book which will be out in bookstores on May 19th. De Gaay Fortman is the Emeritus Chair in Political Economy of the International Institute of Social Studies of Erasmus University Rotterdam, and Professor of Political Economy of Human Rights at Utrecht University Law School, in the Netherlands. His book is entitled 'Political Economy of Human Rights: Rights, Realities and Realisation.' Those of you who are interested in human rights, political economy, law and conflict studies may find this an interesting read. Please see the excerpt below for a glimpse into the book and for a more detailed description of the book click here to see the flyer. Happy Reading!

Excerpt

Political Economy of Human Rights: Rights, Realities and Realization (Routledge: London/New York: 2011) is the first complete text covering and discussing human rights from a political economy perspective. Confronting international human rights with both global and local economic-political realities, this book entails a full shake-up of the UN led mission for human rights and the national strategies linked to it. It argues a shift in the allocation of human and financial resources from the quasi-legal international level to the national and local environments in which these rights have to be realised. Numerous issues connected to this main line of thought are presented and analysed from a political economy focus.

Posted by Ingrid Roestenburg-Morgan

AU considers mass withdrawal from ICC

There has been an interesting and disconcerting development in the relationship between the African Union (AU) and the International Criminal Court (ICC). Recent media reports in Africa have stated that the AU is considering withdrawing en masse from the ICC should Kenya's request for deferral of the 'Ocampo six' cases,  not be granted. For more information on this development read these reports as posited by the Daily Nation and Cameroon News.

Posted by Ingrid Roestenburg-Morgan

Article on Extension of Jurisdiction of ECHR to Social Security Regulations

Followers of our blog might enjoy reading a recent publication by Professor Marc Bossuyt, entitled 'L’extension de la compétence de la Cour de Strasbourg aux prestations sociales : sur l’interprétation de l’article 14 de la Convention combiné avec l’article 1er du Protocole n° 1 dans les affaires Gaygusuz, Koua Poirrez, Stec et autres, Burden et Andrejeva'  (Revue de Droit Monégasque (n° 10, pp. 91-130, 2008-2009)).  This article has only been published now.  Please find abstract below, submitted by the author, providing a more clearer idea about what the article entails: 


Abstract
This article is the French version of an article published in English in March 2010 (“Should the Strasbourg Court exercise more self-restraint? On the extension of the jurisdiction of the European Court of Human Rights to social security regulations”, Human Rights Law Journal, 31 December 2007, vol. 28, n° 9-12, pp. 321-332). Contrary to this English version, it also contains a summary and comments on the Grand Chamber judgments Burden v. United Kingdom (29 April 2008) and Andrejeva v. Latvia (18 February 2009) on discrimination based on sex or nationality respectively. The author criticizes the extension by the Court of its jurisdiction which will attract an ever increasing number of cases without having the means to deal with them in an appropriate manner. He does not consider it realistic to expect that the European Court of Human Rights will have the capacity to adjudicate within a reasonable time, sometimes as a supreme judge of appeal or cassation for all legal proceedings, and sometimes as a constitutional court for all domestic laws and regulations, and even in response to applications for interim measures, and all this with respect to all individual rights of about 800 million of individuals living, whatever their nationality, in the 47 States parties to the European Convention. In those socio-economic cases, and particularly when the difference of treatment is based on sex (Stec and others and Burden), contrary to differences based on nationality (a ground not even mentioned in article 14 of the Convention), the Court allows the States a “wide margin” of appreciation. The author wonders whether in the future the Court will stick to this prudent approach, which would raise the question whether it was worthwhile to extend the jurisdiction of the Court to the very vast field of socio-economic rights, or whether it is only a formula of style that will not persist once the “dynamic” interpretation of the Court will bring it progressively to engage in an ever more strict control of the infinite variety of distinctions of all kind applied by the States parties in their economic and social legislation.


Posted by Ingrid Roestenburg-Morgan

Welcome to our Blog

Welcome to the blog Culture and Human Rights. This blog will cover topical issues relating to culture, traditional values, human rights and international criminal justice. We hope to discuss current and controversial issues relating to and intertwined with these topics. Discussing these issues and their relationships to and with each other, we believe, will enhance a better understanding of the cross-cultural dilemmas which can sometimes cause misunderstanding and mistrust between individuals from different cultures. Our goal is to better understand tradition and cultures and try to find a way to promote the human rights and diffuse certain entrenched views we might hold of each other. A further aim we hope to achieve is the promotion of the rule of law and international justice through the dissemination of reliable information to our readers. Culture and Human Rights will create a forum where individuals can identify important issues and challenges, test new theories, develop their own points of view and draw attention to important topics.

Posted by Ingrid Roestenburg-Morgan

The Kenyan Choice: Why article 16?

The recent rejection by the United Nations Security Council (UNSC) of the request (bid) to defer the ICC cases of the Ocampo six as lobbied has definitely in recent days incited many to comment on the Kenyan situation and cases pending before the ICC.  First there is the debate, or rather the more popular view that Kenya went against the accepted order by directly approaching the UN Security Council instead of the ICC first, before requesting deferral of the two cases currently before the Court.

After the Lautsi Judgments the European Court of Human Rights needs to Repair its Legitimacy

On 18 March 2011, the Grand Chamber of the European Court of Human Rights handed down its judgment in the case of Lautsi v. Italy. The case concerns the practice in Italy of displaying a crucifix in every classroom in state schools. It was brought by Ms. Soile Lautsi, a Finnish national, who objected to the fact that her children were being exposed to these crucifixes in class. Ms. Lautsi argued that displaying the crucifixes was contrary to the principle of secularism, which served as the basis of the upbringing of her children.