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EJIL Talk reports of the decision of the European Court of Justice in Kadi as one destined to become a landmark in the annals of international law. While the blog compares this decision to one of the US Supreme Court in Medellin, I propose to give another view point of this decision in terms of having a standard of judicial review in International Law.

Pursuant to the UN Security Council resolutions on terrorism and funding of terrorist groups, the Council of the EU adopted a regulation ordering the freezing of the funds and other assets of the persons and entities appearing in a list annexed to the regulation. In this list were Mr. Kadi, a national of Saudi Arabia, and Al Barakaat, an organization established in Sweden, whose assets were frozen as being allegedly associated with Al-Qaeda. These two ‘persons’ challenged the regulation as being violative of their fundamental rights and the European Court of Justice was called upon to decide the question in appeal.

What the appellants were essentially arguing for was a standard of judicial review for regulations framed under International law provisions. Before this, the only reminiscences of judicial review existed in Article 53 of the Vienna Convention on the Law of Treaties stating that a treaty may be violated/breached if it were against a jus cogens norm. Even this provision did not declare a treaty invalid.

It may be argued that these regulations did not have the status of international law and that EU Council regulations should have the status of domestic law. If this be the case, then my argument and inference fails. However, I am inclined to think otherwise. The Court stated that ;

“the Court  concludes that, in the light of the actual circumstances surrounding the inclusion of the appellants’ names in the list of persons and entities whose funds are to be frozen, it must be held that the rights of the defence, in particular the right to be heard, and the right to effective judicial review of those rights, were patently not respected.”

And then asked the EU Council to remedy such infirmities in the Regulation.

Noted points made by the Court include;

“the review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement”

And finally,

“any judgment by the Community judicature deciding that a Community measure intended to give effect to … a [UNSC] resolution is contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law.”

In as much as the Court has tried to be rational and not contravene the UN Resolution per se, this decision has a profound impact on international law and I would say that it is a welcome change. More often that not, we have seen International law taking sides and being hypocritical (as in Israel) and in that context blatantly violating due process. This judgment should do some good then.

EJIL Talk says that they would be putting up a detailed analysis of this case in a while. The opinions in this post come from an amateur like myself and it would be interesting what that post would have to say.

Continuing with Gaza, I’d invite the readers to read two posts by Dapo Akande and Marko Milanovic on the issue on EJIL Talk. Both the authors discuss the crisis from a strictly legal point of view explaining as to why it is an internationally wrongful act on the part of Israel and its claim of self- defense being unsustainable.

Both the authors identify and analyse the issue of proportionality in this context and attempt tp define the nature of the conflict in Gaza. Dapo writes;

So, to start from the beginning, the first question is what sort of armed conflict is going on in Gaza. Prior to the Israeli withdrawal from Gaza this was clearly an international armed conflict. The Israeli Supreme Court in the Targetted Killings case accepted that fighting in occupied territories between the occupying and resistance forces is part of an international armed conflict. Has the position changed since Israel withdrew from Gaza? This requires one to answer the question whether there is still an occupation in Gaza. If Israel is still the occupying power then the conflict is still international law. Comments are welcome on whether, as a legal matter, the occupation is still continuing.

On the issue of proportionality, Marko Milanovic writes,

“But for the life of me, I just can’t see a jus ad bellum issue in regard of Israel’s actions in Gaza. This is simply not self-defense within the meaning of Article 51 of the UN Charter, as that concept of self-defense is an exception to the general prohibition on the use of force, that operates between states only and exclusively and is enshrined in Article 2(4) of the Charter. That prohibition was not triggered by Israel’s action, as Gaza is not a state, nor a part of any state, but is a part of the sui generis mandate territory of Palestine. In other words, no state claims sovereignty or title over Gaza, and the sovereignty of no state was infringed by Israel’s use of force. Article 2(4) does not apply, and consequently Article 51 and the self-defense notion of proportionality do not apply either, unless one is willing to argue that Palestine (Gaza included) already is a state in international law – a position that is in my view untenable.”

Readers may read the full article in the links provided above.

Gaza is still burning…

I just saw a CNN debate on the gaza crisis between Yishai Fleisher and David Levy (Sorry readers, I couldn’t get the link online). Yishai argued that Israel had a right to defend itself and what people around the world are calling ethnic cleansing is more an assertion of a state to flush out other people. I say ‘what’s the difference’. He also argued that Israel is merely claiming what is rightfully its territory and that it doesn’t matter is women and children are killed. Further stating that these facts are concocted by the Hamas in Gaza. Well this below should be evident of that;

David Levy on the other hand blamed the international community for not responding to the attacks. He urged the UN to take action and force Israel to a cease fire.

There is a perception that perhaps the UN isn’t doing anything because the United States of America plays a major role in it and uncle Sam has always supported Israel. For all the promise and hope Barrack Obama has given us about human freedoms and rights; even he hasn’t made a statement on the attacks.

While these killings are taking place in Gaza; Africa seems to be burning as it always does. 400 people were massacred by the Ugandan rebels in Congo in Xmas week. Still no reactions by the international community. Elie Wiesel put forth that when grave human rights violations take place, to be indifferent is a sin. Despite him being a jew himself and said in the context of the holocaust, his statement must be considered to ask the international community to interfere.

People now compare and see Israel having reminiscences of Nazi Germany. Alan Dershowtiz’s blog contains a comment that could be used as a reply to Yishai;

It’s exactly the same concept that the Nazis used to justify their racial policies — they called it “Blut und Boden” — blood and soil. Until the Nazis switched from emigration to massacre, German Zionists and German Nazis worked well together — they shared the same ridiculous idea that a people’s ancestry is somehow linked to particular “soil.” The fact that the “Aryan” people actually originated in western Asia illustrates how absurd this idea is.

They came and destroyed my home, I ran away.
They came and killed my young brothers and sisters, I but mourned .
They surrounded us and stopped food and electricity supply to us, life went along.
Ten thousand bombs rained and I pretended that life went along.

Now when I stand up to fight for what I’ve lost, they say that I’m a  terrorist and attack me further.
(adaption of Bill haywood’s statement. Taken from the book ‘People v. Clarence Darrow’. )

365 deaths in the past three days as a result of Israeli air strikes and attacks on Gaza is not a joke. Especially when compared to the 11 killings by the hamas in Gaza on Israelis.365 deaths and the International community has not said anything official against Israel. Condolences come from all over the world but no state official has offered any.

Israel justifies these actions on their right to defend themselves. The jews are a community that have faced the most horrific crimes of humanity and perhaps can claim this right. But there has to be some limit on its use and this in no way extends to the killings of hundreds of people, blockades and the gravest human rights violations. Imagine having suffered as a race a few decades ago and then being the cause of the same suffering on another race now.

It is ironic that despite the gravest of crimes being committed against the palestinians, the international community has not raised any objection to the actions of Israel. There are still people in Sierra Leone and Khmer Rouge being tried for crimes of a similar nature if not far less graver. Perhaps it is a measure of the dominance of a race in the world today. The only sympathy shown by a international body has come in the form of a few paragraphs of the ICJ judgment on the Wall in palestine where it has shown some sympathy to the cause of palestine and condemning the acts of Israel.

The jurisprudence evolving from the Genocide cases in the International Criminal Court may lead it to draw inferences that states may be held liable for the committing of international crimes and human rights violations rather than the traditional perceptions that of only individuals being responsible. That Israel is responsible for its actions is left without doubt. The question that arises is whether the notion of self defence can be used to justify the killing of innocent people, women and children? Whether civilians can be targetted in a war between two armed groups ?

The Geneva Conventions and the additional protocols forbid such measures but Israel seems to be paying no heed to them. Even the United Nations has not said anything official on the issue. Mind you that about a year ago, the UN condemned Hamas strikes on Israel killing 28 people and nothing was said now when 365 are killed and numerous injured.

Maybe there will be a time when some concern is shown by the international community for the cause of the palestinians. Moving to the quote above, if this violence breeds revenge in the minds of a few palestinians, then why should they not rise up and protect themselves ? In as much as it may seem a little out of context, Martin Luther King Jr. in his letter from Birmingham jail talks of the rise of the negroes to injustice. The quote below should help us answer and understand the questions posed;

“But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children……….

There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience “

And when this impatience breeds revenge, it is not the revenge that is the crime but the act perpetrating it. Revenge is a mere justification. And an act of revenge cannot be used by the other to propogate more violence. Israel has vowed to destroy hamas with all its might. This action is itself a crime.

Lawrence posted an article by the LA times and states it to be “the most measured article on the subject”. Readers may read it here.

I would also suggest Mona- El- fara’s blog. It is by far the most touching blog on the palestinian conflict that I’ve read.

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United Nations General Assembly President Miguel d’Escoto Brockmann has called for a world ban on anyone defaming any religion. According to him, while there does exist a right to free speech and expression, the international community should aim towards the comity of religions. Notably,  there is a steady and worrisome trend of stories in Western countries restricting free speech in the name of tolerance of religion, sexual orientation and other values.For instance, in September criminal charges filed against leading French author Pierre Péan, who is charged with racial hatred for derogatory things said about Tutsis in a book in a book about Rwandan genocide.

Jonathan Turley puts forth the idea that this comment by the UNGA President is not way out of line as many Islamic states prosecute people for blasphemy and even issue fatwas against those who speak foul against their religion. He states;

A suspended Nicaraguan priest, D’Escoto is little concerned about the devastating blow to free speech and free press in such a rule — dangers already realized in various countries where speaking against a religion has resulted in criminal penalties and even death. In making this outrageous call, D’Escoto has given critics of international legal systems a great boost — showing the dangers of such rules in restricting cherished constitutional rights.

Looking at this in the context of Indian Law, the Indian Penal Code contains a series of sections from 295 where in words/ acts ‘deliberately’ said so as to hurt the feelings of any religion are a crime and punishable in law. However, in a series of case law, the Court has said that such acts would only constitute a crime when it is done ‘deliberately’, i.e. with an intent and tending to disrupt public order. This law is more of a synthesis between free speech and religious concerns.

The actions of the President, when not seen in isolation, as evidence to a general movement towards placing restrictions on rights in the name of public order and state security. We have seen that happening in India, the United States, UK and now coming from the President of the United Nations General Assembly.