Harvard International Law Journal

The oldest and most-cited student-edited journal of international law, the Harvard International Law Journal covers a wide variety of topics in public and private international law.

Criminal Law

Turkey Liable before ECtHR

Filed Under: Digest

Turkey is having a bad day at the European Court of Human Rights (ECtHR). The Court ruled in one decision that Turkey was liable for wrongful death of a Cypriot who in uniform but unarmed crossed the U.N. Buffer zone. Likewise, the Court ruled that Turkish censorship of Turkish newspapers was too restrictive.

In Kallis and Androulla Panayi v. Turkey (1) the Court ruled that Turkey violated Art. 2 of the European Convention on Human Rights (ECHR). The court rejected Turkey’s defences that the plaintiff ought to have first exhausted local remedies(2) as local remedies would have been ineffective(3) awarding monetary damages to plaintiffs under Art. 41 ECHR.

In Ürper and Others v. Turkey(4) the Turkish government had suspended publication of several newspapers which it regarded as publishing propaganda for the Communist party of Kurdistan (PKK), a group it regards as terrorist. The Court used the familiar general principle of proportionality (legitimate purpose, rational means, least restrictive means) test to determine whether the invasion of the fundamental right to freedom of press was legitimate. The court determined that the ban on publication was an interference in the fundamental right(5) prescribed by law,(6) that the end sought by Turkey was a legitimate aim of preventing disorder and crime,(7) but that the means used to that end were not necessary interferences.(8) That is, using the more familiar general principle of proportionality terms, the invasion of the fundamental right was not the least restrictive one possible.

As well as representing the sorts of steps which Turkey must consider taking as it seeks accession to the E.U. the case is relevant as an example of the globalization of fundamental rights as legitimators of the state and as the objective of the international legal system. Further, the Ürper case is one more example of the rise of proportionality as the method to adjudicate constitutionalized fundamental rights. The cases can thus be seen as examples of contemporary trends in the globalization of legal consciousness, the convergence of norms to a global ius commune and as of political interest too.

(1) Application no. 45388/99 (27/Oct. 2009).

(2) Kallis at para. 28.

(3) Kallis at para. 35.

(4) Applications nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07.

(5) Ürper, para. 24.

(6) Ürper, para. 28.

(7) Ürper, para. 32.

(8) Ürper, para. 44.

U.N. Tribunal to Receive Hariri Murder Files

Filed Under: Digest

On Wednesdsay, current Lebanese Prime Minister Fuad Siniora’s government agreed to hand over relevant case files to the U.N.’s Special Tribunal for Lebanon.  The tribunal convened last month to investigate the 2005 murder of former prime minister Rafik Hariri. The tribunal may now request the transfer of the suspects–four Lebanese generals–to U.N. custody. Initial reports released by the U.N. point to the possible involvement of the Syrian intelligence service in the assassination, but Syria has repeatedly denied this. Leaders of Hezbollah, the opposition party and militia which is supported by the Syrian government, have expressed their reservations in complying with the tribunal’s request. Their lack of cooperation could halt U.N. efforts, because Hezbollah may control the government after June’s elections. The Hague is pressing the case despite the potential roadblock caused by the uncertain political climate. The tribunal is the first U.N. court to try suspects for specific terrorist acts. The murder of Hariri and 22 others in 2005 resulted in street protests which led to the end of Syria’s military occupation of Lebanon.

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Peru: Fujimori Convicted

Filed Under: Digest

Last Tuesday, the Former Peruvian president Alberto Fujimori was convicted of “crimes against humanity” for his role in the 1990s killings and kidnappings by security forces when his government fought against leftist guerrillas. He was sentenced to 25 years in prison. Notably, this verdict marks the first time an elected head of state has been tried and convicted of a human rights crime after extradition back to his home country. The three judge panel found Fujimori guilty of “creating and authorizing a military intelligence death squad that killed innocent people.” (WP).

During the trial, which lasted 16 months, Fujimori argued he was a wartime president protecting the people of his nation, and he never ordered the killings perpetrated by the Army Intelligence Service.  Judge Cesar San martin disagreed and held that Fujimori had clearly authorized the creation of the death squad.

Fujimori’s political movement remains popular. His followers currently hold 13 out of 120 seats in Peru’s Congress.  Fujimori’s daughter, Keiko Fujimori, is campaigning for the Peruvian presidency and has vowed to appeal the conviction.

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Spanish Court Considers Torture Inquiry for Bush Officials

Filed Under: Digest

The National Court in Madrid took steps toward a criminal investigation of six high-level former Bush administration officials pursuant to a complaint filed by a Spanish human rights group. The 98-page complaint alleged that the officials–including the former Attorney General Alberto R. Gonzales, the former Justice Department lawyer John C. Yoo, and the former under secretary of defense for policy Douglas J. Feith–violated international law by producing the legal framework within which the torture of prisoners at Guantanamo Bay was justified. The National Court assigned the case to Judge Baltasar Garzon, who is internationally reputed as a champion of human rights. Judge Garzon’s acceptance and subsequent referral to a prosecutor likely mean that investigation will follow. The investigation, in turn, could potentially lead to the issuing of arrest warrants, which would have symbolic, if not practical, meaning. The U.S. would be expected to ignore extradition requests of its former officials.

The complaint bases its argument on the Geneva Conventions and the 1984 Convention Against Torture to which both Spain and the U.S. are signatories, along with 143 other countries. Spain claims jurisdiction because five of its citizens or residents claim they were tortured while imprisoned at Guantanamo Bay, and the torture convention authorizes member countries to investigate torture cases of their citizens.

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Robotics Revolution Collides With Laws of War

Filed Under: Digest

Observers of the ongoing conflicts in Iraq and Afghanistan have hotly debated the wisdom of using unmanned drone aircraft to carry out military operations.  These debates have taken place within the traditional laws-of-war rubric for assessing tactics and strategy: did the attack accomplish a military objective and did it minimize the risk of civilian casualties?  However, the substitution of machines for men in an ever-increasing number of combat roles means that armies, governments, and legal scholars will have to rethink the laws of war as they apply to robot belligerents.

The trend towards employing more sophisticated machines in larger and larger numbers will only accelerate, writes PW Singer in his new book, Wired for War: The Robotics Revolution and Conflict in the 21st Century.  The American military has already recognized the myriad benefits of robot warfare, including greater accuracy, reduced risk to personnel, and much more cost-effective operations.  Consequently, the Pentagon plans to invest hundreds of billions of dollars in developing and deploying machine warriors.  However, as Singer discusses, no concomitant investment in fleshing out the legal ramifications of killing machines exists.  The laws of war do not have a framework established for evaluating the next step in weaponized robot technology – one where the machine has no human controller.  Under the current legal paradigm, in the absence of a person to appear before a tribunal as the responsible actor, mistakes might go unpunished.

Wendell Wallach and Colin Allen in Moral Machines: Teaching Robots Right from Wrong, take some of the first steps toward imagining how robots could make ethical choices.  They examine serious shortcomings in the ability of current choice algorithms to yield predictably good, safe, legal outcomes.  As a result, in the absence of human control, they, along with Singer, advocate restricting the weaponry available to mechanized combatants to nonlethal weaponry only.

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Former Bosnian Serb Leader Karadzic Refuses to Plead

Filed Under: Digest

The former Bosnian Serb leader Radovan Karadzic, who faces 11 charges of genocide, war crimes, and crimes against humanity, refused to enter a plea at the Hague. He said that the International Criminal Tribunal for the former Yugoslavia (ICTY) did not have the jurisdiction to try him, because he was offered immunity by US Diplomat Richard Holbrooke, who negotiated the end of the Bosnian War in 1995. Judge Iain Bonomy said that Karadzic would “have the opportunity to deal with that in due course” and entered a plea of not guilty on Karadzic’s behalf on all 11 counts.

This is the second time Karadzic refused to enter a plea at the Hague. In July 2008, he refuesed to plead until prosecutors finalized all the charges against him. Karadzic was arrested in Belgrade last year for his alleged involvement in the siege of Sarajevo resulting in some 12,000 civilian deaths and the massacre of up to 8,000 Bosniak men and boys in Srebrenica.

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