Sovereignty in Transition: Human Rights and International Justice

Sovereign excesses in the twentieth century resulted in the murder of approximately 170,000,000 persons by their sovereign. This statistic, a potent testimony of sovereign excesses through gross and systematic human rights violations firmly places human rights and humanitarian problems on the international plane. This reality (identified and articulated in the Report of the Secretary General’s High-level Panel on Threats, Challenges and Change) firmly places human rights problems on the international plane and mandates a fundamental rethinking about the basis of sovereignty’s political and associational organization in the new millennium. This Article has as its modest aim an examination and analysis of the role of the development of human rights and humanitarian norms in reshaping the content and contour of Westphalian sovereignty. In particular it seeks to espouse paradigms based on the impact of human rights and humanitarian norms through which sovereignty should be viewed and understood in contemporary times

Presiding over the Ex-President: A Look at Superior Responsibility in Light of the Kosovo Indictment

Individual criminal responsibility, and command responsibility in particular, are important because, to deter human rights abuses, potential perpetrators must perceive prosecution as a possible consequence of their actions. Historically, the doctrine of command responsibility has been an important tool to hold accountable leaders who plan, participate in, or acquiesce in large-scale human rights abuses. The scope of the command responsibility doctrine remains one of the most important issues in prosecuting human rights atrocities. The scope of the doctrine determines the degree to which a leader can insulate himself from criminal culpability when the criminal acts were committed by others but were caused by either the leader’s lack of diligence or acquiescence leading to subordinates not having scant regard for the dictates of human rights or international humanitarian law. This Article discusses Slobodan Milosevic’s responsibility as a superior in light of the Kosovo indictme

From Congo to East Timor in 40 Years: The UN Finally Crossing the Rubicon between Peace-Keeping and Peace-Making?

People first, nations second. That\u27s the new global creed that is beginning to jell at the United Nations . At the 54th Annual UN General Assembly Session in September 1999, both President Clinton and UN Secretary-General Kofi Annan made historic claims that any country\u27s sovereignty could be violated by other nations under certain conditions occasioned by ‘deliberate, massive, organised and systematic violations of human rights’. This is in a world stage where the East Timor Crisis and the accompanying humanitarian intervention forms a vivid backdrop to the past failures of the UN in creating a nexus between international aspirations and pragmatic realities in the protection of fundamental human rights. Could the notion that sovereignty does not entitle a government to slaughter its own people and that outsiders have a duty to take action finally herald the UN’s crossing of the rubicon between peace-keeping and peace-making

New Heights of Combat—Yesterday’s Scientific Fantasies, Today’s Technological Possibilities: Weaponisation of Outer Space

This Article focuses on militarization and weaponization of space. Militarization of space occurred many decades ago. The contemporary concern is weaponization of space; that is, the introduction of new futuristic weapons into the space environment. The Article argues that the quantum leaps by China’s space program (set to outpace Russia’s cash strapped program) may herald the dawn of a new Cold War and a heated arms race with the United States as China seeks to underwrite its regional pre-eminence with military might. The Article highlights the fact that the international Space Law regime now has a new game in the making for which it is in many ways ill equipped to handle

Democratic Governance: An Emerging Customary Norm?

International law has traditionally regarded the peoples of the world as being represented in the international arena by the governments in de facto control of their respective states. Except where such governments are imposed by foreign invasion or conduct themselves in ways inimical to international peace and security, these governments are conventionally deemed worthy of respect and protection under international law - in particular, respect regarding ‘matters which are essentially within the domestic jurisdiction’ and protection ‘from the threat or use of force’. The method by which a government of domestic origin achieves or retains power was not ordinarily thought of as a basis for withholding such protection. The Article has as its modest aim a general reflection on the enshrinement of democracy as a universal entitlement and the movement of international law in a pro-democratic direction The Article will seek to highlight the general uncertainties that continue to plague the democratic entitlement. The Article deliberately focuses on the United Nations system with reference also being given to regional efforts. The Article does not discuss the legal justifications and nature of measures to address undemocratic regimes. While such measures are significant in pro-democratic discourse, it is beyond the scope of the Article’s general aim of exposing the thorny issues that surround democratic entitlement as a universal right

The Final Balance Sheet? The International Criminal Court’s Challenges and Concessions to the Westphalian Model

This Article examines the organization and operating principles of the International Criminal Court. Many aspects of the Rome Statute challenge fundamental tenets of the structure of international law existing heretofore. No analysis could address all the aspects of this new international institution and the Article seeks to focus attention on some of its major features impacting on State sovereignty--the focus of this Article. The Article explores the structure and competence of the Court and in particular the powers of the prosecutor, general principles underlying the jurisdiction of the Court, the formulation of the complementarity principle in the Court’s Statute, the manner in which cases will come to the Court and be decided and the State cooperation regime. It examines the State cooperation regime governing the conduct of investigations and prosecutions on State territory and the arrest of suspects and their surrender to the Court noting that the Court’s enforcement jurisdiction is paltry, at best, suggesting the unease of States to the idea of a permanent international penal process

The International Criminal Tribunal for Rwanda: A Distorting Mirror; Casting doubt on its actor-oriented approach in addressing the Rwandan genocide

The traditional approach to criminal justice faces the challenge of balancing multiple goals – usually expressed as deterrence, incapacitation, rehabilitation, and retribution – which focus on crime control. A restorative approach seems needed in all societies that have suffered massive and collective victimisation, and must be kept in mind in Rwanda by the International Criminal Tribunal for Rwanda (ICTR) as it implements its overall strategy.The ICTR’s almost exclusive focus on an actor-orientated perspective, viewing the individual as a building block of the genocidal reality, distorts and obscures a structure-orientated perspective on the ethno-centric social reality that converted tens of thousands of Hutus into a mass of killers, turning on their friends, neighbours and colleagues. The main focus for the punishment of war criminals must remain at the national level, although the existence of an international tribunal legitimises the criminalisation of internal atrocities. The ugliness of internal strife and the political reality of the ethnic hatred cannot be isolated in an international courtroom for resolution

People First, Nations Second: A New Role for the United Nations

The tragedy of East Timor coming so soon after that of Kosovo has focused attention again on the weaknesses of previous United Nations missions that have been ad hoc, reactive, and narrowly focused on solving the international emergency of the moment. The United Nations and its Members must focus on the need for timely intervention to save civilian populations from mass slaughter. It must adopt a new role as the assertive custodian of human rights because the use of its enforcement powers in the domestic affairs of rogue States may have a deterrent effect. Therefore, it should lead the way in defining its interventionist role in the emerging international norm of humanitarian intervention

Contemporary Private Military Firms under International Law: An Unregulated “Gold Rush”

The Article addresses the legal issues raised by the ascendance of contemporary Private Military Firms. This article has as its aim an exploration of the thorny legal issues raised by the commodification of force. It discusses the nature of the contemporary PMF noting that it bears vestiges of yester year mercenaries. It then grapples with their uncertain status under international law despite the fact that they potentially pose problems for state authority and the direct control of states over the use of force. At the heart of the argument is the reality that PMFs maintain the ability to inflict violence on a scale previously reserved to sovereign nations and the real potential to violate humanitarian norms. Yet, they are largely inadequately regulated under existing domestic and international frameworks thus bear hazy legal liability and sanction