Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Is this the end of the ICC? No.

Paul Gora

Gambia is the smallest country in Africa with a total population 1.2 million and 4,363 square miles, which makes it slightly less than twice the size of state of Delaware. The Republic of The Gambia signed the Rome Statute on December 4, 1998 and ratified it on June 28, 2002, making it the earliest African country to ratify the treaty. Forty-seven African states were present for the drafting of the Rome Statute in July, 1998. Many of these countries were members of a like–minded group that pushed for adoption of the final statute, with the majority of the 47 voting in favor of adoption, which indicates their involvement in the negotiation and set up of the International Criminal Court.  Among those nations, South Africa, Senegal, Lesotho, Malawi, and Tanzania participated heavily in the discussion as early as 1993 when the International Law Commission presented a draft ICC statute to UN GA for consideration.[1]

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In light of the arrest warrant issued for Sudanese president’s Omar Al Bashir by ICC, there have been an allegations from some Arab and African leaders, as well as certain public figures, organizations, and academia criticizing the ICC as being a Western tool, designed to subjugate leaders of African continent and advance an imperialist/neo-colonial agenda. On the face of it, these criticism can be seen as plausible. The reality, however, is that these criticisms are misplaced, biased, increase and support impunity on the continent.

The recent decision by Gambia to withdraw from the ICC will have a consequential impact on the Court’s future in Africa because countries   like Algeria, Angola, Cameroon, Egypt, etc. who have signed, but not ratified the Rome Statute, may decide to never ratify and even revoke their signature. Such a mass withdrawal from the Court hurts, primarily, victims in these African states, as it denies them justice.

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IS THIS THE END OF THE COURT? 

It is not. International criminal justice has always had its ups and downs, but this will not be the end of the ICC as we know it. According to Article 127 of the Rome Statute, parties are free to leave as they want. Of course, the withdrawal of few states may send a wrong message to international community about the ICC, but, in the end, the ICC is there for the victims, not the ones in power who decide to enter or leave.

WILL THERE BE MASS WITHDRAWAL?

Probably not. This move by Gambia and the two others may have opened a gateway for other countries, but it does not necessarily mean that many African countries will leave. For instance, Gabon last Month referred a case to the ICC after deadly unrest occurred in the nation over disputed election results.[2]

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IS AFRICA UNFAIRLY SINGLED OUT?

Of the current 10 full investigations, nine are underway in 8 African nations. The reasons for these investigations are easy to accept – The victims are in Africa.  The alleged crimes occurred in Africa. Theses situation have been referred to the ICC by the countries themselves or these situations have been referred by the United Nations Security Council under a Chapter VII resolution. [3] The spin that is put on these cases – that the ICC is targeting Africa – is false. Other situations in other parts of the world are also under investigation in the preliminary phase, including the Middle East, South America, and Europe.[4]

Time will tell. The arc of the moral universe is, after all, long, but it bends towards justice in the end.

Paul Obang Gora is an LL.M. student in the Law of the United States (LOTUS) program at UB Law. He has an LL.B. from the Ethiopian Civil Service College, Addis Ababa (2000) and a certificate for six-months’ training for judges and prosecutors. He served as an assistant prosecutor in Ethiopia from 2001-2003, but fled to Kenya because of political persecution. He was a community organizer in the refugee camps in Kenya and then served in the new South Sudan Ministry of Justice as legal counsel from 2008-12, prior to emigrating to the U.S. Paul is on the Elective Concentration Track, specializing in International Law, and working as an intern with the International Rescue Committee. 

 

[1] http://www.iccnow.org/?mod=icchistory

 

[2] https://www.icc-cpi.int/Pages/item.aspx?name=160929-otp-stat-gabon

 

[3] https://www.icc-cpi.int/pages/situations.aspx

 

[4] https://www.icc-cpi.int/pages/preliminary-examinations.aspx

 

 

 

 

 

 

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Embargo-ing Going but Not Quite Gone: Smoke Begins to Dissipate Between Cuba and the U.S.

Margie Beltran

[I], John F. Kennedy, President of the United States of America, acting under the authority [of the] Foreign Assistance Act of 1961, as amended, do hereby proclaim an embargo upon trade between the United States and Cuba…of all goods of Cuban origin and all goods imported from of through [Cuba].”[1]

President John F. Kennedy, February 3, 1962, Proclamation 3447 – Embargo on All Trade with Cuba

And thus ended the free flow of the forbidden fruits that were Cuba’s earthy, intense cigars and premium rum.  To prevent supporting a communist-run country in the midst of the Cold War and months before the Cuban Missile Crisis, President John F. Kennedy announced the United States would put an indefinite halt on any trade with Cuba.[2]  The embargo against Cuba prevented Americans from bringing home the coveted cigars and alcohol, even if they were purchased in third countries.[3]

Fast forward about a half a century later to October 17, and the White House has released a directive to lift more sanctions against Cuba.[4]  Note the word sanctions.  The embargo has not been lifted in full.

In 2014, President Barack Obama announced that his administration would begin working to re-establish a diplomatic relationship with Cuba by changing travel and trade restrictions set forth in Proclamation 3447.[5]  On April 11, 2015, President Obama and President Raul Castro of Cuba met in there face to face.[6]  Both have joined efforts to normalize the long-standing negative relationship between the two countries.

In March 2016, Obama was the first U.S. president to visit Cuba in nearly 90 years.[7]  In a press conference following their meeting on the island, Obama announced that they were on a track to ending the embargo, but provided no projected date.[8]  Castro agreed with the projected outcome of ending the embargo because he believed it would help Cuba and the U.S. make more progress.[9]  The two leaders continue to hold vastly different views on human rights and political freedoms.[10]

However, following Obama’s announced intentions of mending the relationship, Congress denied to support his decision.  Congress members and other political leaders felt that this change in trade relations with Castro is not benefitting the U.S., but merely benefitting Cuba.[11]  They are concerned that merely lifting trade sanctions will not incentivize Castro to improve political freedoms and human rights for the citizens of Cuba.

Now, in the final three months of Obama’s presidency, he has been working to change the U.S. policy, which would allow trade and commerce to grow exponentially between the two countries.[12]  While this olive branch approach in which the U.S. was to change their policies in the areas of medical and scientific research, the Cuban citizens feel differently.[13]

 

According to Josefina Vidal, head of the U.S. Department at the Cuban Foreign Ministry while speaking at a rally held at the University of Havana, “Obama is finishing his term, but the blockade remains.”  Vidal explained during the rally, that while it is a nice attempt, the embargo has not been lifted.  The sanctions are easing the tension between the country’s; however, there is still a lot of limitation brought forth by the embargo.[14]

The Cuban people are under the belief that the island will not and cannot commit themselves in full to restoring diplomatic and normalized partnerships with the U.S. so long as the U.S. does upholds the embargo.[15]

It will be interesting upon the start of a new presidential term how the U.S. relationship with Cuba continues to develop, if it develops at all.  Both candidates have stated that they are in favor of developing diplomatic relationships with Cuba.

 

Democratic candidate, Hillary Clinton believes the U.S. should increase their influence of human rights policy on Cuba.[16]  She also stated that if Congress prevented her efforts, she would impose her executive authority to make it easier for the American people to visit the island and support small businesses in Cuba.[17]  GOP candidate, Donald Trump believes 50 years has been long enough for an embargo and supports Obama.[18]  This opinion strays from some of the other major influencers of the GOP such as Florida politicians, Senator Marco Rubio and Governor Jeb Bush.[19]  Senator Rubio referred to the diplomatic olive branch as “a lifeline for the Castro regime that will allow them to become more profitable…and allow them to become a more permanent fixture.”[20]

As one of the longest embargos in the world, it seems best the U.S. works towards a more amicable resolution and to eventually achieve their human rights goals around the world.  Based on the current candidate stances, the increased diplomatic relationship between the U.S. and Cuba will continue to grow.

Margery Beltran is a third year law student at the University of Baltimore School of Law (Candidate for J.D., May 2017).  She holds a Bachelor of Science in Family Science with a minor in Psychology from Towson University.  Her interests include mental health and disability law and international alternative dispute resolution. Margie currently serves as the Volume V Comments Editor for the University of Baltimore’s Journal of International Law. She participated in the 2016 Summer Abroad Program at the University of Aberdeen School of Law in Aberdeen, Scotland.  She is currently an intern in Washington D.C. for the U.S. Department of Health and Human Services, Alternative Dispute Resolution Division.

[1] http://www.presidency.ucsb.edu/ws/?pid=58824

[2] http://www.history.com/topics/cold-war/cold-war-history

[3] http://www.cnn.com/2016/10/14/americas/cuba-cigars-us-embargo-lifted/index.html

[4] http://money.cnn.com/2016/10/14/pf/cuban-cigar-rum-sanctions/index.html

[5] http://www.nytimes.com/interactive/2014/12/17/world/americas/cuba-sanctions.html

[6] Id.

[7] http://www.usnews.com/news/articles/2016-03-21/obama-castro-call-for-trade-embargo-on-cuba-to-be-lifted

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] http://latino.foxnews.com/latino/politics/2016/10/19/cuba-official-reaction-to-obama-easing-embargo-restrictions-protests/

[13] Id.

[14] Id.

[15] Id.

[16] https://www.hillaryclinton.com/post/remarks-miami-cuba-embargo/

[17] Id.

[18] http://www.cnn.com/2015/09/08/politics/donald-trump-cuba-diplomatic-opening/

[19] Id.

[20] Id.


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Human Rights Abuses in Ethiopia – Where is the International Community?

Paul Gora

 

Ethiopia is facing a crisis of unprecedented magnitude, yet its government and Western enablers refuse to acknowledge the depth of the crisis. The nation-wide protest, which started in the Oromyia region, is one that threatens to degenerate into a full-scale social explosion.[1] These protests  are an extraordinary display of defiance by Ethiopia’s people against a repressive government.

While protests began in small villages and towns in 2014, the protests erupted in early July 2016 after a development plan was released that sought to expand the territorial limits of Ethiopian capital Addis Ababa in to Oromyia villages and towns. This was seen as a move to further accelerate the Oromo farmer evection from their ancestral land.[2] The government dismissed the protesters as “anti-peace” elements and accused them of acting in collaboration with a terrorist group, a common tactic used by Ethiopian government to crackdown on dissident opposition.

Although, these protests are triggered by recent events, they actually represent a more enduring and deeper crisis of political misrepresentation and systematic marginalization suffered by other ethnic groups in Ethiopia.[3] Historically, this tension exists because the government is tribal oriented ( i.e.Tigryan ) and they pushed out all other non-Tigrayan peoples, marginalizing them in their own country and deeming them unworthy of respect and consideration. In particular, the Oromos’ culture and language have been banned, their identity stigmatized, rendering them virtually invisible because their voices are not heard in the political process. When the current government came to power a quarter century ago, the Tigray People’s Liberation Front (TPLF), presented itself as the only political movement in the country that could provide stability to Ethiopia. As a result, the country gained greater support from the regional and global powers, who seem to have a vested interest in the region.

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The US-led “War on Terror” provided the Ethiopian government with a political and legal instrument with which the government justified severe restriction on freedom of expression, association, and assembly. The 2009 Anti-Terrorism Proclamation enabled the government to stretch its power of prosecution and punishment beyond what is permissible under criminal and constitutional law. Under the pretext of fighting terrorism, the regime exiled and prosecuted several opposition leaders, journalists, bloggers, and activists.[4]

The government used overwhelming force to crush the protesters, killing hundreds of protesters and arresting thousands. Human Rights Watch criticized the excessive and lethal force used by security forces against the mostly peaceful protesters. Although the death toll is estimated at over 400, some activist groups think it is actually much higher. The protesters are demanding the international community to respond and openly condemn the regime in Addis Ababa and to withdraw its support for the repressive government.[5]

It remains unclear as to why IGAD, a regional body, or the UN, or the international community  as a whole have yet to condemn the atrocities being carried out by Ethiopian government on its own people. Even now, the international community is still funding the government, who is brutally kill unarmed peaceful demonstrators.

  The role of the international community

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Most recently, at the 2016 Rio Olympics, Fiyesa Lilesa crossed the finish line of the men’s Marathon with his arms cross over his head in a gesture of solidarity with the Oromos to symbolize the protest against the government’s policies that targeted his ethnic group.  The Oromos have been using this gesture as symbol of protest against the Ethiopian government for the last two years.

The international community seems to have ignored what is happening in Ethiopia. Back in 2012, when uprising began in Benghazi, Libya, the international community reacted quickly to condemn the Libyan government for the use of excessive forces against unarmed protesters. Some countries cut-off their diplomatic relations with the Libyan government and the UN Security Council passed a resolution that stated the situation in Libya is a threat to international  peace and security under Chapter VII of UN Charter.

The current crisis in Ethiopia is clearly a threat to the region and beyond.  The African Union, its International Governmental Authority on Development (IGAD), and the international community should condemned it openly. The Security Council should pass a resolution calling upon the Ethiopian authorities to stop the use of force against peaceful protesters, to protect human rights, and promote rule of law. Furthermore, the international community should take steps to impose sanctions on the Ethiopian government and stop financially supporting the government.

Perhaps the actions of Fiyesa Lilesa will have opened the world’s eyes. Unfortunately, Ethiopians do not have too long to wait.

Paul Obang Gora is an LL.M. student in the Law of the United States (LOTUS) program at UB Law. He has an LL.B. from the Ethiopian Civil Service College, Addis Ababa (2000) and a certificate for six-months’ training for judges and prosecutors. He served as an assistant prosecutor in Ethiopia from 2001-2003, but fled to Kenya because of political persecution. He was a community organizer in the refugee camps in Kenya and then served in the new South Sudan Ministry of Justice as legal counsel from 2008-12, prior to emigrating to the U.S. Paul is on the Elective Concentration Track, specializing in International Law, and working as an intern with the International Rescue Committee. 

[1] http//: http://www.humanrights watch /Ethiopia crisis /report

[2] http//: http://www.hrw.org/world –report/2015/country-chapters/Ethiopia

[3] www.voanews.com/a/ethiopia – ethiopia-dismisses-human-rights-watch-report

[4] http//:en.wikipedia.org/wiki/human_rights_in_ethiopia 

[5] http://www.refworld.org/docid/3aeba8af24.html


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A Minor Loophole in the ICC?

Daniel Huchla

Imagine: In the midst of an armed conflict, a mass of unarmed women and children in a remote village have been unceremoniously executed by armed forces. Under the laws of armed conflict, such acts would certainly create liability for war crimes.[i] However, it is surprising that if the soldiers or their commander that committed this crime were under the age of eighteen they would not be subject to jurisdiction at the International Criminal Court (“ICC”).[ii]

The International Criminal Court (“ICC”) is an international judicial body, designed as an alternative to International Criminal Tribunals which are restricted to specific jurisdictions and conflicts.[iii] Jurisdiction of the ICC is dependent upon the consent of sovereign nations through signature and ratification of The Rome Statute.[iv] Designed to address issues of crimes against humanity and war crimes, the ICC incorporates elements from prior treaties including The Hague and Geneva Conventions. One of the Rome Statute’s contributions to the law of war has been establishing that the usage of child soldiers as a war crime.[v] However, the rule does create a somewhat anomalous situation when considered in the totality of the statute.

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Map depicting ratification of the Rome Statute of the International Criminal Court[vi]

            Under the Rome Statue, the act of “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to actively participate in hostilities” qualify as a “serious violation[] of the laws [of] armed conflict.”[vii] The age of fifteen is drawn from the Convention on the Rights of the Child which similarly provides “States Parties shall take all feasible measure to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.”[viii] The anomaly created by this situation is that under the Rome Statute, the ICC may not exercise jurisdiction upon individuals that were under the age of eighteen at the time of commission of crimes under the statute.[ix] This allows for as much as a three-year window in which potential combatants will not be accountable for their actions before the ICC.

The Convention on the Rights of the Child, through its effects upon domestic law, does slightly narrow the gap by obligating signatories to prioritize older candidates recruiting soldiers that are between the ages of fifteen and eighteen.[x] This may serve to shorten the window in which soldiers might be unaccountable for their actions. Alternatively, the Optional Protocol to the Convention on the Rights of the Child, requiring specific safeguards prior to the recruitment of soldiers under the age of eighteen.[xi] Additionally, the protocol attempts to raise the age of recruitment to 18 for “armed groups that are distinct from the armed forces of a State . . . .”[xii] However, the Optional Protocol has not been as widely ratified as the Convention on the Rights of the Child.

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Image advocating for the ratification of the Optional Protocol to the Convention on the Rights of the Child.[xiii]

There are extreme situations that might warrant the use of combatants within this limited age range. States as sovereign entities have an interest and right to ensure the continued existence of its peoples. Some variables to be considered are the duration of the conflict, the extent of casualties, the overall population of the nation, and the average life expectancy. As these variables shift, the interest of defense may render the recruitment of soldiers under the age of eighteen necessary for some nations. In times of crisis it is perhaps understandable that every “able-bodied [individual]” be called for the defense of the nation.[xiv]

However, the gap in the Rome Statute’s jurisdiction still remains in which a combatant under the age of eighteen might commit violations of the law of armed conflict. The International Criminal Court balances this situation by allowing liability to be asserted against other individuals, specifically commanding officers.[xv] The Rome Statute provides that a commanding officer exercising “effective command and control” 1) “knew or . . . should have known that the forces were committing . . . crimes; and 2) . . . failed to . . . prevent . . . or to submit the matter . . . for investigation and prosecution.”[xvi] Although the ICC lacks jurisdiction to address crimes committed by individuals between the ages of fifteen and eighteen, domestic governments are capable of addressing the crimes. Through the establishment of a command responsibility standard that requires a commanding officer to submit the matter for investigation and prosecution, the ICC ensures that the issue will be handled domestically.

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A child soldier recruited by Thomas Lubanga’s Force patriotique pour la libération du Congo. © Reuters

The Rome Statute, through command responsibility effectively requires domestic national governments to address all crimes committed by soldiers and especially those committed by combatants under the age of eighteen. Ironically, nations that make use of combatants in this age range might hold them to a higher level of liability than the ICC might themselves be comfortable. Or worse yet, they might hold them to a significantly lower level of liability. In either event, the ICC would be powerless to challenge a domestic ruling under the doctrine of ne bis in idem[xvii], because any domestic trial of a minor would not be designed to shield them from criminal responsibility before the ICC. In this situation, if a commanding officer complied with the requirements sufficiently to avoid personal liability, victims could be effectively deprived of justice. Perhaps an effort should be made to close this loophole in which minors are able to avoid criminal liability?

Daniel Huchla is a third year law student at the University of Baltimore and a graduate of Miami University with a Bachelor of Music. During his undergraduate studies, he performed in an International Opera Festival located in Brazil. He also serves as Associate Managing Editor for the University of Baltimore Law Review. Areas of interest include Administrative Law, International Humanitarian Law, International Criminal Law, and National Security Law. He is currently a Law Clerk with the Law Offices of McCabe, Weisberg & Conway.

[i] Rome Statute of the International Criminal Court, Art. 8 [hereinafter “Rome”], https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.

[ii] Rome, Art. 26.

[iii] Compare Rome; with Statute of the International Tribunal for Rwanda, http://www.icls.de/dokumente/ictr_statute.pdf.

[iv] Rome Art. 4(2).

[v] Rome Art. 8(2)(b)(xxvi).

[vi] http://www.iccnow.org/?mod=ratimp.

[vii] Id.

[viii] Convention on the Rights of the Child, Art. 38(2), http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx.

[ix] Rome Art. 26.

[x] Convention on the Rights of the Child, Art. 38(3).

[xi] Optional Protocol to the Convention on the Rights of the Child, Art. 3(3) [hereinafter “Optional Protocol”], http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx.

[xii] Optional Protocol, Art. 4.

[xiii] https://childrenandarmedconflict.un.org/mandate/opac/.

[xiv] See e.g. 10 U.S.C. § 311 (2016).

[xv] Rome Art. 28.

[xvi] Id.

[xvii] Rome Art. 20.


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The Plight of the Falun Gong

Christian Kim

“She’s awake, put her back to sleep!” muffles a man with a medical face mask on.  Inmate Zhu slowly wakes up from what feels like an eternity of sleep.  She hears a metallic clang from somewhere distant but not too distant from her.  Her eyes, not adjusted from the amount of sleep, glances over to the source of the sound.  Unable to make out the facial features of the individual, Zhu glances down at her body to see a foggy shade of red.  Zhu doesn’t remember how she got from her prison cell to this bed.  Her arms and legs refuse to listen to her commands to move, yet she feels something warm, dripping down her arms.  “We need these to be fresh!  Knock her out quickly!”  Zhu hears the scuffling of feet from the right as her head jolt violently to the left as the room slowly invites her into a lull of black.

While China’s alleged claims of ownership on the South China Sea continue to dominate international news, one major issue that hasn’t been addressed recently is the organ harvesting of Falun Gong practitioners.  Falun Gong was introduced to the general public in 1992.  It is considered a mix between a disciple and religion which basis most of the practice off of slow-movement meditation exercises that focuses on truthful tenants of compassion and tolerance.  Spurred by a popular growth in the early 90s, the Communist Party of China feared this huge growth spurt.[1]

Article 36 of the Chinese Constitution states that, “Citizens of the People’s Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination.”[2]  On its face, the Chinese constitution seems to promote the freedom of religion, yet the important caveat of “The state protects normal religious activities” allows for the convenient excuse to violate any religion the government deems to be a threat.  Using this, the Falun Gong faith is not considered to be a normal religious activity and is an exception to the constitutional guarantees.   The Chinese government stated that Falun Gong practitioners were “a menace to society – a superstitious, foreign-driven, tightly organized, dangerous group of meditators.”[3]  Hundreds of thousands, if not millions, of Falun Gong practitioners have been arrested and targeted ever since the crackdown.[4]  While China is known for its religious freedom violations against religious minorities, the abuse against Falun Gong practitioners are even more alarming.

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Many of these Falun Gong practitioners are thrown in prison and a few are executed solely because of their beliefs.  Even though Chinese Christians and Uighur Muslims are subject to the same treatment, Falun Gong practitioners are systematically targeted during these executions.  According to various reports, Falun Gong practitioners are executed on a higher percentage than other religious or political prisoners because of their faith.  Falun Gong practitioners abstain from drinking alcohol or smoking and tend to live a healthy lifestyle where meditation and exercises are practiced on a daily basis.  As a result, their organs are in high demand on a domestic and, even more so, on an international basis.  The Chinese government reports a total number of 10,000 legal transplants on an annual basis, but various investigators claim that the estimate is actually between 60,000-100,000 annual organ transplants.[5]  These investigators also allege that the difference of 10,000 to 60,000 (on a low end) are made up primarily of Falun Gong practitioners.

In order to meet the great and expensive demand for fresh organs throughout the world, the Chinese government capitalizes on this industry with the organs from Falun Gong practitioners.  As soon as the demand of an organ arises, these “political” prisoners have their organs harvested shortly thereafter.  Some of the surgeons involved in these organ harvesting operations have even admitted to ripping the requested organs out while the individual was still conscious.[6]

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As the queue for organ transplant requests tends to be quite long outside of China, “organ tourists” try to capitalize on this practice.  Most of the revenue that the Chinese government obtains from this cruel practice comes from the pockets of the organ tourists.  This cannot be allowed on humanitarian grounds.

As a result of this practice, China has breached various international laws and conventions to which China has promised to follow.  One convention is Article 18 of the International Covenant on Civil and Political Rights which states, “”Everyone has the right to freedom of thought, conscience and religion; this right includes freedom […] either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”[7]  China is a signatory to this convention, yet they have not yet ratified this convention.  International law differentiates signing a treaty from ratifying a treaty since signing is just an agreement of what text is-not ratification.  Even though this might be true, China is a permanent member of the United Nations Security Council and as a result, has acknowledged its duty to protect the rights that are listed in the treaty.

The international community should come together to hold individuals involved in this practice accountable via the International Criminal Court (ICC).  The ICC has jurisdiction over: crimes against humanity, war crimes, the crime of aggression, and the crime of genocide.  One could argue that the practice of removing organs from Falun Gong practitioners is a form of genocide.  Genocide requires a mens rea and actus reus.  The mens rea here is the intent to destroy in whole or in part, a religious group, the Falun Gong practitioners.  The actus reus would be the systematic executions of these Falun Gong practitioners.  Since the ICC has jurisdictions over the crime of genocide, the Chinese surgeons who perform these operations can be held accountable.  If these individuals are brought to the ICC and given a significant amount of prison time, this could deter any future surgeons in partaking in illegal organ harvesting. However, there are significant procedural hurdles to overcome, since China is not a state party to the Rome Statute.

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Even though there are international coalitions against the practice of organ harvesting from vulnerable groups, there’s only one organ trafficking treaty that involves fourteen European nations.[8]  Several of the world’s biggest countries have released statements condemning the practice but that is not enough.  The United States and other world powers should call on the United Nations to establish a commission to investigate the organ harvesting practice.  Under international scrutiny, this might temporarily stop the Chinese government from allowing forced organ transplants.  Another way that the international community could substantially decrease this practice would be to screen potential “organ tourists” to China.  Many of the “organ tourists” are wealthy individuals who would rather pay large fees to state-approved hospitals in China in order to bypass the legal way of receiving organs in their respective countries.  By screening such tourists, this would put a significant dent on the revenue the Chinese government receives from wealthy “organ tourist” and as a result, substantially decrease this state-wide practice.

Christian Kim is a 3L at the University of Baltimore School of Law with a concentration in International and Comparative Law.  He graduated from the University of Maryland (2012) with a Bachelor of Arts in Criminal Justice.  He served as the President of the Asian Pacific American Law Student Association and is currently the Chief of Staff for the Student Bar Association.  His interests are East Asian politics, international conflicts, and human rights.  Before law school, Christian worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years.  He is currently a legal researcher for the U.S. Commission on International Religious Freedom and a law clerk for the Law Office of Hayley Tamburello.

[1] http://www.dailynews.com/general-news/20140714/why-china-fears-the-falun-gong

[2] http://en.people.cn/constitution/constitution.html

[3] http://www.newstatesman.com/blogs/the-faith-column/2008/08/falun-gong-party-chinese

[4] http://endorganpillaging.org/falun-dafa-targeted-for-organ-harvesting/

[5] http://www.cnn.com/2016/06/23/asia/china-organ-harvesting/

[6]  http://www.dailymail.co.uk/news/article-3257383/Thousands-religious-prisoners-China-livers-kidneys-corneas-ripped-ALIVE-sell-transplant-tourists-claims-new-film.html

[7] http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx

[8] https://www.thelocal.es/20150326/european-nations-sign-worlds-first-organ-trafficking-treaty


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A Tale of Two Irelands; Is Unification Possible in the Wake of Brexit?

Alexander Ayer

On June 23, 2016 the U.K. shocked the world (and arguably themselves) by voting to leave the European Union.[1] The vote has left the U.K. and Europe as a whole wondering what will come next. However, in the wake of this event one group of people in the U.K. took an unprecedented action. Following Brexit so many people in Northern Ireland filed for Irish passports that the system came under significant strain and the Belfast Post Office ran out of application forms.[2] For the first time since the separation of the countries almost a century ago, Northern Irish citizens are discussing peacefully leaving the U.K. to join the Republic of Ireland.

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While England voted to leave the E.U., Northern Ireland voted 55.8% to 44.2% in favor of staying, which has caused some to question whether it might be in Northern Ireland’s best interests to split off from the U.K. as it splits off from the E.U.[3] This wouldn’t be the first time a part of the U.K. moved for independence. Just two summers ago Scotland moved to stay in the Union after a vote on independence. However, unlike the Scottish vote and for rather unique political reasons which will be discussed later, Northern Ireland might not need the approval of the current U.K. government to leave.

Historically there has been a lot of bad blood between the Irish and the British. The Irish had suffered political disenfranchisement, religious intolerance, racial prejudices, and other injuries under British rule. At the turn of the last century and in the middle of WWI, Ireland again erupted in rebellion. It has been remembered as the Easter Rising, and was organized by the Irish Republican Brotherhood. The rebellion was crushed, but the surviving members reformed, gathered support, and the rebellion soon turned into a revolution. This was the birth of the Irish Republican Army, the IRA.

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Eventually, the British government agreed to negotiate, and an autonomous Irish Free State was created which would soon thereafter become the fully independent Republic of Ireland. However, when the Free State was created, six counties in the North of Ireland were excluded and left as part of the U.K. These six counties became Northern Ireland. They were excluded at the time for several reasons, both practical and philosophical, but one major issue was that Northern Ireland was mostly Protestant while the rest of the island was Catholic. [4]

However, the situation deteriorated in the 1960s. Catholics in Northern Ireland faced discrimination in many aspects of life, including employment and housing, as well as violence from Protestants. The situation eventually boiled over, Catholics took up arms, and formed the Provisional IRA. What ensued was thirty plus years of fighting, with the IRA on one side and Unionist paramilitary units and the British government on the other. The level of violence tore the North apart. The fighting was eventually ended in 1998 with the Good Friday Agreement. As part of the agreement, the IRA agreed to renounce violence as a means of effecting change, Sinn Fien (which was the political wing of the IRA) would share power in the government with protestants, Catholics where guaranteed equality, Northern Ireland would stay in the U.K., but left the future possibility of unification on the table.[5]

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Which leaves us where we are now. Brexit may bring the U.K. into conflict with many facets of the Good Friday Agreement. For example, one major argument for the pro-Brexit camp was that leaving the E.U. would allow the U.K. to secure its boarders.[6] However the only land boarder the UK has with the E.U. is the border between the Republic of Ireland and North Ireland. As part of the Good Friday Agreement, the U.K. promised not to limit movement across the Irish boarder.[7]  If the U.K. is going to secure its border with Europe, then it will be brought into contention with the Good Friday Agreement. Further, Northern Ireland receives aid through the Agreement from the E.U. to help rebuild after the fighting and maintain peace.[8] Many argue that Brexit is inconsistent with the Agreement, and a constitutional argument is being made before the High Court in Belfast to challenge the legality of Brexit at least as it relates to North Ireland.[9]

There have been concerns over the threat Brexit might pose to peace. The peace isn’t even 20 years old, and while most of the Provisional IRA has laid down its arms and renounced violence, most does not mean all. New offshoots of the IRA remain somewhat active, even if they are smaller than the old IRA and lack most of its capabilities.[10]

As mentioned earlier, the U.K. government might not get a say in the matter. Under the Good Friday Agreement, the possibility of unification was left open. Specifically, the Agreement states that North Ireland was granted the right to have a vote in the future to join the Republic if they so desired.[11] It was done at a time when London believed that such a strong sentiment would not exist for decades.[12] However, with Brexit and the threat it could pose to Northern Ireland’s economic and social wellbeing this provision has suddenly become relevant. If North Ireland decides to have a vote, it votes to leave, and the Republic of Ireland agrees to accept them that might be the end of the discussion. Unlike the Scottish independence vote two summers ago, Northern Ireland doesn’t require the approval of Parliament to have a vote to leave – they already have it.

Furthermore, not only could the vote happen, Sinn Fien, now one of the major parties in both Northern Ireland and the Republic of Ireland, has already said they want to have the vote.[13] The Prime Minister of Northern Ireland went so far as to say that a vote for unification might happen in the wake of Brexit.[14]

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It would be inspiring to see Northern Ireland, a place which has experienced so much bloodshed and division to stand unified peacefully for the benefit of all their people. However, there is still a lot of tension, and Brexit may not be enough to create a successful unification effort. However, there are some things that could help push North Ireland towards unification.

  1. If Scotland leaves. Scotland also voted overwhelmingly to stay in the E.U., and after Brexit there was a surge of interest in another independence vote. If Scotland declares its independence, or at least has another vote for independence it could encourage North Ireland to take the plunge. Further, there seems to be a sense in both Northern Ireland and abroad that if Scotland attempts independence again, the possibility of Northern Ireland leaving the U.K. substantially increases.[15]
  1. The economy begins to suffer. The U.K. economy suffered noticeably in the immediate aftermath of the Brexit vote.[16] While it has stabilized somewhat since then, uncertainty remains. There have been justifiable concerns that if the U.K. actually cuts ties with the E.U., it could have significant negative economic impacts.[17] If Brexit actually happens and it begins to take a toll on the economy, while Ireland remains reasonably stable, it would provide the biggest help` in pushing for unification.
  1. A guarantee of equal rights for Protestants and/or a degree of autonomy for the region. The old wounds still ache from time to time. Fear of Catholic reprisals may keep hard-core unionists or even moderate Protestants from going along with unification. While the Republic has always had a distinctly Catholic tone. Divorce was not a legally recognized right until the 1990s.[18] If the Republic of Ireland can reassure the Protestants that they shall have equal rights and access to political participation, then unification may go more smoothly. Northern Ireland may even be granted a degree of regional autonomy, which when combined with the economic and social benefits of continued E.U. membership may be enough to overcome old suspicions.[19]

If these things happen, and the U.K. actually leaves the E.U., then I think the chances of Irish Unification increase noticeably and may happen in the coming years.

Alexander Ayer  is a third year (3L) law student at the University of Baltimore School of Law. His undergraduate studies were completed at Hood College, where he majored in history and graduated cum laude in 2014. Alexander is expected to graduate from the University of Baltimore School of Law in the Spring of 2017. As part of his international law background he took part in a study abroad program at the University of Aberdeen School of Law in Scotland. Alexander is drawn to international law by the comparative approach of seeing how different societies solve similar problems in different ways, as well observing how history has effected the laws and policies of various nations, and the behaviors demonstrated by counties interacting with each other on the world stage. In addition to international law, Alexander is also interested in disability law and copyright law.

[1] http://www.bbc.com/news/uk-politics-32810887

[2] https://www.washingtonpost.com/news/worldviews/wp/2016/06/28/a-stampede-for-irish-passports-in-the-wake-of-brexit-vote/

[3] http://time.com/4383916/brexit-vote-revived-calls-united-ireland/

[4] http://www.huffingtonpost.com/chris-weigant/will-ireland-reunify-afte_b_10745358.html

[5]http://peacemaker.un.org/sites/peacemaker.un.org/files/IE%20GB_980410_Northern%20Ireland%20Agreement.pdf

[6] https://www.theguardian.com/politics/2016/jun/08/brexit-threat-northern-ireland-border-communities

[7]http://peacemaker.un.org/sites/peacemaker.un.org/files/IE%20GB_980410_Northern%20Ireland%20Agreement.pdf

[8] http://www.independent.co.uk/news/uk/politics/northern-ireland-brexit-challenge-involve-attorney-general-john-larkin-a7326531.html

[9] http://www.independent.co.uk/news/uk/politics/northern-ireland-brexit-challenge-involve-attorney-general-john-larkin-a7326531.html

[10] http://www.bbc.com/news/uk-northern-ireland-10866072

[11]http://peacemaker.un.org/sites/peacemaker.un.org/files/IE%20GB_980410_Northern%20Ireland%20Agreement.pdf

[12] http://www.huffingtonpost.com/chris-weigant/will-ireland-reunify-afte_b_10745358.html

[13] http://www.independent.co.uk/news/uk/politics/brexit-northern-ireland-eu-referendum-result-latest-live-border-poll-united-martin-mcguinness-a7099276.html

[14] http://time.com/4412381/ireland-prime-minister-enda-kelly-referendum-northern-ireland/

[15] http://time.com/4383916/brexit-vote-revived-calls-united-ireland/ & http://www.huffingtonpost.com/chris-weigant/will-ireland-reunify-afte_b_10745358.html

[16] http://www.bbc.com/news/business-36956418

[17] http://www.bbc.com/news/business-36956418 & http://www.huffingtonpost.com/chris-weigant/will-ireland-reunify-afte_b_10745358.html

[18] http://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/February_2015_-_Constitution_of_Ireland_.pdf

[19]http://peacemaker.un.org/sites/peacemaker.un.org/files/IE%20GB_980410_Northern%20Ireland%20Agreement.pdf


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Shifting Focus: The ICC looks to Prosecute Environmental Crimes

Jasmine Pope

The International Criminal Court (ICC) was created as a result of the Rome Statute. The ICC was not set up to replace domestic court systems. Instead, the ICC serves to complement domestic criminal systems, only prosecuting cases when States, countries that are party to the Rome Statute, are unable or unwilling to do so.[i]

What does the ICC do? How does it work?

The Rome Statute grants the ICC jurisdiction over four crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.[ii] Genocide requires “specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means.”[iii] Examples of genocide include the Rwandan Genocide, the Holocaust, and the Situation in Darfur. The ICC prosecutes fifteen forms of crimes against humanity, including sexual slavery, murder, enforced disappearances, apartheid, rape, and murder, which are “serious violations committed as part of a large-scale attack against any civilian population.”[iv] War crimes are considered to be violations of the Geneva conventions. Crimes of aggression are the “use of armed force by a State against the sovereignty, integrity or independence of another State.”[v] The ICC only prosecutes individuals that commit any of the crimes over which it has jurisdiction. The ICC does not prosecute States.

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A Landmark Policy Decision

On Thursday, September 15, 2016, the ICC made a huge announcement. The ICC will broaden its focus to include environmental crimes.[vi] In the policy paper published by the Office of the Prosecutor (OTP) of the ICC, the OTP stated that “the Office will seek to cooperate and provide assistance to States, upon request, with respect to conduct which constitutes a serious crime under national law, such as the illegal exploitation of natural resources, arms, trafficking, human terrorism, financial crimes, land grabbing or the destruction of the environment.”[vii] This is a big deal. For decades, the scientific community and activists have talked about climate and environmental change. But let’s be clear here: the ICC is not expanding its jurisdiction—it is simply assessing existing offences in a much broader context.[viii]

Environmental destruction and environmental issues have been a hot topic in recent years. Environmental issues and concerns deal with more than just cutting down trees in rainforests, since so much of our environment is affected by our daily actions. But it goes beyond the rainforest. Many of the situations currently under investigation by the ICC, where crimes against humanity and war crimes were committed, destruction of the environment is also an element. Warlords do not just magically come into a town or village, kill a few people, and then move on. No, they destroy the towns they come across. It is even possible that the actions of Royal Dutch Petroleum in the Niger Delta could be investigated by the ICC through their now broadened scope of jurisdiction.

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While the ICC usually prosecutes warlords, this decision opens the door for business executives, government officials, and heads of corporations to face the music, so to speak. No more outsourcing work to poor, undeveloped nations without a second thought as to the environmental consequences. The ICC can now start “holding corporate executives accountable for large-scale land grabbing and massive displacement happening during peace time.”[ix]

What Does it all Mean?

Can the ICC not only talk the talk: can it also walk the walk? That is the billion-dollar question. Instances of land-grabbing have plagued the world for decades, particularly in Africa, and in underdeveloped nations in Asia. Land grabbing deals with large-scale land acquisitions by governments and individuals, as well as domestic and international companies.[x] While land grabbing itself may not be a crime that the ICC can prosecute, the consequences of land-grabbing falls under the realm of crimes against humanity that the ICC can prosecute.

The international community is already speculating that Cambodia is the perfect place for the ICC to shift its focus.[xi] International lawyer with the international criminal law firm Global Diligence, Richard Rogers, has already filed a case with the ICC on behalf of ten Cambodian citizens. The complaint alleges that the country’s ruling elite “including government and military, has perpetuated mass rights violations since 2002 in pursuit of wealth and power by grabbing land and forcibly evicting up to 350,000 people.”[xii] If the ICC does choose to investigate the situation in Cambodia, it will be interesting to see who the ICC files charges against as having committed crimes against humanity. Does the ICC look to charge governmental officials? Does the ICC look to charge business executives? Who will the ICC deem responsible for the situation in Cambodia if they find they have jurisdiction?

 

This new expanding view of the ICC could open the door to prosecutions over climate change, in addition to land grabbing.[xiii]According to an ICC member who worked on the policy document, this decision allows for the ICC to “[exercise its] jurisdiction by looking at the context in which crimes are committed.”[xiv] Companies, government officials, business executives, and individuals must now think long and hard about their activities in certain countries, i.e. those that are party to and have accepted the jurisdiction the ICC. The ICC is watching, and so is the rest of the world.

Jasmine Pope is a second year law student at the University of Baltimore. She graduated from Towson University in 2015 with a Bachelor of Science in Political Science, with a minor in History. Jasmine is extremely interested in and passionate about international human rights, particular the rights of women and children. She also participated in the Summer Study Abroad Program in Aberdeen, Scotland. She has also studied abroad in Benalmádena, Spain. Currently, she serves as the Secretary for the International Law Society. Jasmine is currently a member of the Inter-American Human Rights Moot Court Team. Jasmine is also a Staff Editor for the Journal of International Law and works for the Law Office of Hayley Tamburello.

[i] https://www.icc-cpi.int/about/how-the-court-works.

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Brittany Felder, “ICC to focus on environmental crimes”, Jurist, September 16, 2016, http://www.jurist.org/paperchase/2016/09/icc-to-focus-on-environmental-crimes.php.

[vii] https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf.

[viii] John Vidal and Owen Bowcott, “ICC widens remit to include environmental destruction cases,” The Guardian, September 15, 2016, https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases.

[ix] Chris Arsenault, “International court to prosecute environmental crimes in major shift,” Reuters, September 15, 2016, http://www.reuters.com/article/us-global-landrights-icc-idUSKCN11L2F9.

[x] Stop Africa Land Grab, http://www.stopafricalandgrab.com/.

[xi] Vidal and Bowcott, https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases.

[xii] Id.

[xiii] Id.

[xiv] Id.