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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I Always Feel Like Somebody’s Watching Me

Ali Rickart

TRIAL, short for Track Impunity Always, does just that. The Swiss organization was founded in 2002 as a way to track and watch international persons that have allegedly committed crimes such as genocide, crimes against humanity, war crimes, torture, and more. The association has consultative status before the United Nations Economic and Social Council and is an apolitical organization. After being inspired by the capture of Pinochet in 1998 and the subsequent establishment of the International Criminal Court (ICC) in 2002, the goals of TRIAL are to “put the law at the service of the victims of international crime.”[1] TRIAL wants to fight impunity, defend the victims of international crimes, and raise awareness of the crimes and perpetrators to show the need for coherent and effective national and international justice systems.

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There are several areas in which TRIAL works: litigation, lobbying, informing the public, and research. Through these different areas, TRIAL works with people around the globe to successfully meet its goals. The litigation process has three different methods for pursuing international criminals and helping victims. First, the Advocacy Center TRIAL (ACT) works on filing complaints before international human rights bodies, to help victims of crime achieve justice. The second method is to distribute information to victims of armed conflicts and what legal methods they have to promote their right to justice. Third, TRIAL will actually file complaints in Swiss courts “against individuals present on Swiss territory suspected of international crimes.”[2]

TRIAL regularly lobbies with Swiss and international authorities, as well as working with the Swiss Coalition for the International Criminal Court (CSCPI). The research includes ICC Legal Tools, a digital library, which gathers, analyzes, and classifies documents of the 46 countries on national legislation and practice in relation to crimes within the jurisdiction of the ICC.  In collaboration with Pro Juventute, TRIAL is working on a video game project, showing the connection between video/computer games and international humanitarian law. The idea was created by TRIAL, but the study received an encouragement award at the 2007 International Human Rights Forum in Lucerne. Recently, TRIAL received the “Geneva grateful” medal (médaille “Genève reconnaissante”) on behalf of the Mayor of Geneva. If you can speak French, the link to the article is posted here.

TRIAL is also a partner organization of the Center for International and Comparative Law (CICL), allowing CICL Student Fellows at the University of Baltimore School of Law to work on profiles as a part of the TRIAL Watch Project.

The TRIAL Watch Project – Informing the Public of International Criminal Law Perpetrators

Informing the public is one of TRIAL’s biggest goals and biggest projects, which is done through TRIAL Watch. Its website is a database compiled of profiles of perpetrators and instigators of international crimes. They also distribute a trilingual TRIAL Journal, printed three times a year. Each day, a summary of news in international criminal law and the fight against impunity in the world is placed on the website and sent to subscribers once a week. As a way to become more known, TRIAL Watch organizes public discussions, lectures, and film screenings as well as  ‘actions’ on important days of the year such as International Justice Day (July 17) and International Day of the Missing (August 30).

TRIAL

The profiles that are shown on the website of TRIAL Watch are drafted by volunteers and in up to four languages – English, French, Spanish, and German.[3] The profiles include pertinent information such as the criminal’s name, aliases, status (indicted, sentenced, acquitted, etc.), position, as well as what they have allegedly done. Below each brief set of facts and information is a detailed profile including specifics as to the crime and the person, including the facts, the legal procedure, and the context in which the crime occurred (such as the Sierra Leone civil war or Bangladeshi Liberation War, for example).

The profiles also try to include photographs of the alleged criminal and their last known whereabouts. If possible, links to relevant documents are also included such as case documents, United Nations Security Council resolutions, books, judgments, and other related documents. This can help further research by anyone who wants more information on the person, the crime, or the case. It is also possible to be subscribed to a particular profile, in order to be informed if any updates are made on the profile. TRIAL Watch regularly updates all profiles if any new events, charges, indictments, sentencing, etc., occurs to an alleged criminal.

As a Fellow of the CICL and assigned to the TRIAL Watch team, I draft articles of alleged international criminals such as Sladjan Cukaric and Miodrag Josipovic. I have also drafted an update for Maulana Abdus Subhan, as part of the initiative to keep all profiles as current as possible, to help those tracking criminals and their progress through their respective judicial systems, stay up to date on information. It can be hard work, there is not always a lot of available information on people or what little information there is often comes from foreign sources that must be translated and checked for accuracy. The impact TRIAL Watch has on citizens of nations all around the world is worth every second of the work.

If you are interested in international criminal law or international humanitarian law, you can become a volunteer, donate, and become a TRIAL Watch member. You can also join the CICL Fellows program and work on the TRIAL Watch team! It’s absolutely possible to work on international law right here in Baltimore!

Alexandra Rickart is a second-year student at the University of Baltimore School of Law, planning to graduate in May 2016 with a concentration in International Law. She graduated from the University of Missouri in 2013 with a B.A. in Communication and a minor in Business. Her primary interests include international law, international criminal law, and domestic criminal law.

In addition to being a CICL Fellows, she is the Secretary of the International Law Society and a Staff Editor for the University of Baltimore Journal of International Law. She competed in the 2014-15 Jessup International Moot Court Competition, Mid-Atlantic Region. During her first year of law school, she was a tutor for Baltimore elementary students as part of the Truancy Court program through the Center for Families, Children and the Courts. Alexandra is currently a law clerk for a criminal defense firm in Baltimore.

[1] Introduction, TRIAL, http://www.trial-ch.org/en/about-trial.html.

[2] Introduction, TRIAL, http://www.trial-ch.org/en/about-trial.html.

[3] The website itself, as a whole, can be translated into one of these four languages by a convenient button on the top right hand of the screen.


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The Drones are Coming, the Drones are Coming…

Matthew Matechik 

A man drives his beat up old Toyota truck down a dirt road meandering through sparse terrain. Unbeknownst to him, his every move is being watched. For a brief, almost imperceptibly, short moment he hears a loud noise. A flash! And just like that, the man is instantly dead. His body is disintegrated amidst the rubble that was his truck. A missile fired from an unseen unmanned aerial vehicle (UAV or “drone”) has eliminated its target with ruthless efficiency. The strike is the successful culmination of countless hours spent finding the man, confirming his identity, confirming his affiliation, analyzing his movements, considering the legality of a strike, and finally identifying an opportunity that minimizes non-combatant casualties.

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This scene or something like it has played out numerous times during America’s post 9/11 “War on Terror.” Drones target terrorist combatants in places like Afghanistan, Pakistan, Somalia, and Yemen (where just last week an American drone strike reportedly killed senior al-Qaida in the Arabian Peninsula (AQAP) leader Harith bin Ghazi al-Nadhari[i]).

The drone program has been effective. According to some unconfirmed reports, drone strikes have killed as many as 2,000 combatant terrorists in Pakistan alone and the frequency of strikes has increased dramatically since President Obama entered office.[ii]  The drone has become a proven weapon in the ongoing fight against global terrorism. The US government has asserted that the strikes are legal under international law because they are carried out in self-defense against persons who present a continuing imminent threat and are affiliated with al-Qaida and associated forces with which the US is at war. The US further asserts that the strikes are in accordance with the Geneva Convention because the drone’s advanced technology, most notably its precision, minimizes civilian casualties and collateral damage.[iii]

The UN has criticized the US position as being based on too broad a definition of “imminence,” which must exist in order for self-defense to be legally justified.[iv] The UN critique exposes a potential problem the US has created by setting this precedent. Other nations, perhaps as many as 87 of them, are quickly building or already have their own drone fleets.[v] What will happen when these nations’ drone technology catches up to that of the US? What if those nations are hostile toward the US or its allies? Will they rely on the US understanding of self-defense to likewise justify anonymous killings of persons located outside their territory?

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Consider the Chinese, whose drone capabilities are rapidly catching up to those of the United States.[vi] China could easily apply the American legal argument to justify killing someone they claimed to be a Uighur separatist located in Kazakhstan, for example. What about an ethnic Uighur who happens to be a United States citizen? Could China use the American self-defense argument to justify killing this American? It would appear so as long as China deemed the American to be associated with a fighting force that China is engaged in armed conflict with. Take the logic a few steps further and it quickly becomes clear that any country could feasibly kill persons located abroad using drones by stretching the self-defense argument to suit the needs of the day.

The hypotheticals above are not far fetched. The drones are coming. The drones are coming and currently there is no formalized body of international law to regulate them beyond the general laws of war. We have the American precedent to go on but not much else.

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An international treaty governing the use of combat drones could alleviate concerns of widespread death from above. The drones do not represent the first time that technology has evolved faster than international law. At one time for example, the US was the only nation with nuclear weapons. As other nations gained the same technology, the nuclear-armed nations were able to form international treaties to regulate their use. Even enemies came to the table in the interest of humanity. So far the regulations have, thankfully, worked, at least in the sense that humans have not wiped themselves off the Earth yet. Perhaps a similar spirit of cooperation can inspire international regulation of drone warfare, although success could be difficult to come by given the high number of nations with drones.

The drones are coming. When they do, where will the battlefield be? Who will be targeted in self-defense? Can international law find a way to regulate the situation before it gets out of control? Time will tell. In the meantime, keep your eye on the sky. The drones are coming.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time for the U.S. Federal Government as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University. All views in this blog post are Matthew’s own views and do not represent that of the U.S. Government. 

[i] http://www.cnn.com/2015/02/05/world/yemen-violence/index.html

[ii] This number is an estimate. Casualty estimates vary wildly. Official reports are not available. http://www.washingtonpost.com/world/national-security/drone-strikes-killing-more-civilians-than-us-admits-human-rights-groups-say/2013/10/21/a99cbe78-3a81-11e3-b7ba-503fb5822c3e_story.html

[iii] http://www.npr.org/templates/story/story.php?storyId=125206000; http://jurist.org/forum/2013/10/jordan-paust-drones-justification.php

[iv] http://www.globalresearch.ca/drone-warfare-findings-of-u-n-reports-on-extrajudicial-and-arbitrary-executions/5355601

[v] http://www.washingtontimes.com/news/2013/nov/10/skys-the-limit-for-wide-wild-world-of-drones/?page=all

[vi] http://rt.com/news/china-stealth-drone-flight-127/


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Disenfranchisement: A Comparative Look at the Right of the Prisoner to Vote

Ali Rickart

Disenfranchisement, simply put, is “the taking away [of] the right to vote in public elections from a citizen or class of citizens.”[1] Throughout the world, people who have committed crimes that carry the weight of jail time or felony convictions are disposed of their right and ability to freely vote. Different levels of disenfranchisement occur, including 1) only during prison time, 2) during prison and parole, 3) during prison, parole and probation, and 4) prison, parole, probation, and post-sentence (which also has its own variations ranging from only after the second offense, to a 5 year waiting period, or full disenfranchisement after a felony conviction).

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Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which is considered customary international law[2], “Every citizen shall have the right and the opportunity…(b) to vote…”[3] Even the United Nations Human Rights Committee has noted that article 25 of the ICCPR “lies at the core of democratic government based on the consent of the people” and if there must be a restriction on the right to vote, this must only occur in consideration that such restrictions are “objective and reasonable.”[4] The Committee further goes on to say that if a country decides, “conviction for an offence is a basis for suspending the right to vote” the suspension must be “proportionate to the offence and the sentence” and that those persons who may be “deprived of liberty but… not convicted should not be excluded from exercising the right to vote.”[5]

Yet, in the United States alone, 5.85 million are denied the right to vote due to felony disenfranchisement laws. Each state has the ability to direct and control the voter rights’ laws that allow for disenfranchisement, intentionally restricting the voter rights of those who have been convicted of felonies, which bars prisoners from voting in both state and federal elections. Out of the fifty states, however, only three states permanently disenfranchise felons – Iowa, Florida and Kentucky, alternatively, two states allow for everyone to vote, despite criminal records – Maine and Vermont.[6]

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In a study conducted of over 45 countries, accounting for the major countries in Europe, North America, Asia, South America, and Australia, almost half of the countries allow for felons to vote despite their prison conviction.[7] The restrictions imposed by countries are vast. For example, the majority of Eastern Europe allows for either full voting rights or impose selective restrictions [Bosnia (selective restrictions), Croatia, Czech Republic, Macedonia, Poland (selective restrictions), Romania (selective restrictions), Serbia, Slovenia, and Ukraine]. Other Eastern European countries such as Bulgaria, Hungary, and Russia only have a voting ban on felons during their prison time. The only one that had a full ban on voting rights for felons during prison and post-conviction was Armenia. Given many of these countries human rights records in other areas, this is a surprising right that is guaranteed.

In contrast, the United Kingdom continues to incorporate prisoner disenfranchisement into its laws, despite a ruling by the European Court of Human Rights in Hirst v. United Kingdom (No. 2), stating that the blanket ban on prisoner voting was unreasonable.[8] However, the United Kingdom does allow those who are only civil prisoners or on remand un-sentenced to vote. There was a bill introduced in 2012 and put into law in 2014, the Convicted Prisoners Voting Bill that limits the scope of disenfranchisement to those who are serving a custodial sentence.[9]

Other countries that allowed a full vote included Canada, Austria, Denmark, Finland, Ireland, Israel, Latvia, Lithuania, Norway, Spain, South Africa, Sweden and Switzerland. Countries that follow selective restriction on voting rights include Germany (which only takes away rights on rare, court-mandated instances), Iceland (if the felony is for a prison term longer than four years), Australia, France, Greece, Italy, Luxembourg, Malta, and Portugal. The only countries that have full disenfranchisement laws for post-conviction felons include Belgium (if a sentence is longer than seven years), Armenia, Chile and in some instances, the United States (on a state-by-state basis).

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Some groups such as the American Civil Liberties Union and The Sentencing Project have started movements in places such as the United States, to recognize that all people should have a right to vote under both domestic law and international law as evidenced by the Constitution and treaties such as the ICCPR.

Prison was created not only as a punishment, but also as a way to rehabilitate those who have broken the law. In the case of rehabilitation, we should work towards the idea that we want those who have broken the law to not only learn from their mistakes and move forward but also to one day reintegrate themselves into society as productive citizens. When stripping them of such a simple, inherent right to be a part of the democratic process that governs them, how do we expect them to reach this goal?

Former prisoner in the United Kingdom, Caspar Walsh, writes about how disenfranchisement inhibits the ability of prisoners to rehabilitate and causes a disconnect between those behind bars and politicians creating the laws that control everyone’s lives.[10] The Sentencing Project published a debate over the topic, “Should Ex-felons be Allowed to Vote?” between Roger Clegg and Marc Mauer. Mauer cites an Israeli Supreme Court case, discussing the right of felons to vote because “society must ‘separate contempt for his act from respect for his right’.”[11] With the amount of people in prisons worldwide, the disenfranchised could have serious effects on elections if they were able to freely vote despite their imprisoned status.

To view further debate on whether or not prisoners should be allowed to vote, more information can be found at 1) Duel: Should Prisoners be able to vote? or 2) Why Can’t Felons Vote?[12]

[1] DISENFRANCHISEMENT, Black’s Law Dictionary (9th ed. 2009)

[2] Statute of the International Court of Justice, art. 38, para. 1 (defines the customary international law as “general practice accepted as law”); International Convention on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (168 countries are parties to the Covenant, evidencing a general practice accepted as law) [hereinafter ICCPR].

[3] ICCPR art. 25.

[4] General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the ICCPR, CCPR/C/21/Rev.1/Add.7, August 27, 1996, Annex V, para. 4 (examples of “objective and reasonable” include setting age limits for voting or denying the right due to established mental incapacity).

[5] Id. at para. 14.

[6] Map of State Criminal Disenfranchisement Laws, ACLU, https://www.aclu.org/maps/map-state-criminal-disfranchisement-laws

[7] International Comparison of Felon Voting Laws, ProCon.org (May 27, 2014), http://felonvoting.procon.org/view.resource.php?resourceID=289.

[8] Convicts ‘will not all get vote’, BBC News, Oct. 6, 2005, http://news.bbc.co.uk/2/hi/uk_news/4315348.stm; Mark Tran, UK Prisoners Denied the Vote Should not be Compensated, ECHR Rules, The Guardian, Aug. 12, 2014, http://www.theguardian.com/politics/2014/aug/12/uk-prisoners-denied-vote-no-compensation-european-court-of-human-rights.

[9] Convicted Prisoners Voting Bill, 2014-5, H.C. Bill 50 (U.K.), available at http://www.publications.parliament.uk/pa/bills/cbill/2014-2015/0050/15050.pdf.

[10] Caspar Walsh, Why Prisoners Should be Given the Right to Vote, The Guardian, June 5, 2012, http://www.theguardian.com/society/2012/jun/05/prisoners-right-to-vote.

[11] Roger Clegg & Marc Mauer, Should Ex-Felons be Allowed to Vote?, Sentencing Project, Nov. 1, 2004 available at http://www.sentencingproject.org/doc/File/FVR/fd_legalaffairsdebate.pdf.

[12] Shami Chakrabarti & Dominic Raab, Duel: Should Prisoners be able to vote?, Prospect, Aug. 20, 2014, http://www.prospectmagazine.co.uk/regulars/duel-should-prisoners-be-able-to-vote; Reynolds Holding, Why can’t Felons vote?, Time, Nov. 1, 2006, http://content.time.com/time/nation/article/0,8599,1553510,00.html.


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International Law Society at the United Nations

Natalie Krajinovic

On January 23, 2015 the International Law Society (ILS) from the University of Baltimore School of Law visited the United Nations (UN) in New York City. The Presbyterian Ministry at the UN hosted ILS, arranged for a number of speakers to discuss human rights law, and facilitated a tour of the UN.* The overall theme of the visit suggested that greater cooperation and action is needed across both legal and social regimes in order to enhance the strength of human rights law internationally.

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Our first speaker was Shulamith Koenig, the Founding President of the People’s Movement for Human Rights Learning (formerly known as People’s Decade for Human Rights Education). She founded the Movement in 1988 with the goal of creating, in the words of Nelson Mandela, “a new political culture based on human rights—and to enable women and men alike to participate in the decisions that determine their lives, and live in community in dignity with one another, moving from charity to dignity guided by the holistic human rights framework.”[1] Mrs. Koenig’s invigorating discussion focused on the inalienability of human rights. She asserted that in order to address human rights abuses, we need to consider human rights as a “framework”, not an “approach.” This framework ultimately requires that every human have the knowledge that they hold human rights and are entitled to dignity. As a strategy for human, social and economic development, Mrs. Koenig advocates for meaningful grassroots discussions to effect change through learning about human rights as a way of life.

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“Human Rights is about recognizing the humanity of the other as your own.” Shulamith Koenig

Renzo Pomi then spoke to our group regarding Amnesty International’s role in the preservation and promotion of human rights. Mr. Pomi is a human rights lawyer with over 30 years experience in the field. He is currently Amnesty International’s Representative at the United Nations, covering areas of human rights and humanitarian law in armed conflict and post conflict settings, international justice and accountability, among others.[2] He is also responsible for Amnesty International’s institutional work at the Organization of American States, in particular the strengthening of the Inter-American Human Rights System. Mr. Pomi spoke about the importance of a legal education in the field of human rights. He further addressed how an international human rights framework is critical to the development of human rights law.

Renzo Pomi, Amnesty International

John Washburn spoke to ILS regarding the need for the U.S. to ratify the Rome Statute and become a member of the International Criminal Court (ICC).[3] Mr. Washburn has an extensive career in diplomacy and international governmental and non-governmental organizations. He was a director in the Executive Office of the Secretary-General of the United Nations and thereafter was a director in the Department of Political Affairs at the United Nations. He is currently the Convener of the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC), co-chair of the Washington Working Group on the International Criminal Court (WICC), and a past president of the Unitarian Universalist United Nations Office. Mr. Washburn’s discussion on the validity of the ICC focused on the legitimacy of the Court. He emphasized the secular nature of the Court and its focus on justice. He categorized the Court’s aim of justice as punitive justice that is redemptive. For proponents of the ICC, the ICC allows for international acknowledgement of the harm done by perpetrators, which ultimately provides reprieve to victims of crimes when moving forward with their lives.

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Finally, we met with Janette Amer, Human Rights Adviser of UN Women,[4] who discussed equality and gender balance as a human rights issue. She discussed the importance of The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), its achievements and the challenges ahead. In particular, Ms. Amer identified the need for sustainable equality efforts under both the UN and other entities. “The humanity of women alone is insufficient to ensure human rights,” Ms. Amer noted. Ms. Amer emphasized the importance of campaigns, such as HeForShe, in enhancing the substantive opportunities women have. These types of campaigns emphasize not only that women be equal under the law, but also in reality, with their everyday experiences and opportunities. These types of campaigns are of particular importance given the twentieth anniversary of the Beijing Platform for Action this year.

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The seminars’ emphasis on human rights reminds us of one of the purposes of the United Nations: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”[5] The seminars demonstrated the intermingling of various parties’ perspectives regarding human rights. It showed how activists, NGOs, judicial bodies and the UN itself react and promote human rights laws across the globe. The most effective way of achieving these purposes is ultimately through the domestic implementation of international human rights law.

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*The International Law Society would like to sincerely thank the Presbyterian Ministry at the United Nations, specifically The Rev. W. Mark Koenig, Director, Presbyterian Ministry at the United Nations, for organizing this wonderful event.

Natalie Krajinovic is a University of Baltimore School of Law J.D. candidate (’15), with a concentration in Business Law. She holds an Honors Bachelor of Arts in English and East Asian Studies from the University of Toronto, St. George. Natalie has always had an interest in international law and policy. While studying at the University of Toronto, she was the Editor-in-Chief of the Toronto Globalist, an international relations magazine with chapters across the globe. She currently serves as the President of the International Law Society and as the Comments Editor for the Journal of International Law at the University of Baltimore School of Law. Natalie is also a law clerk for John H. Denick & Associates, P.A., a business law firm in downtown Baltimore and is an intern with International Rights Advocates in Washington, D.C.

[1] Shulamith Koenig, PDHRE: The People’s Movement for Human Rights Learning, http://www.pdhre.org/people/shulabio.html (last visited Jan. 31, 2015).

[2] Who We Are, Amnesty International, http://www.amnesty.org/en/who-we-are (last visited Jan. 31, 2015).

[3] About the Court, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx (last visited Jan. 31, 2015).

[4] About UN Women, UN Women, http://www.unwomen.org/en/about-us/about-un-women (last visited Jan. 31, 2015).

[5] U.N. Charter art. 1(2).


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Sweet Home Alabama: How “Amendment One” Will Cause Problems for Alabama Courts

Justin Tepe

On November 4, 2014, Alabama voters passed an amendment to their state constitution that prohibits “the application of foreign law in violation of rights guaranteed natural citizens by the United States and Alabama Constitutions, and the statutes, laws, and public policy thereof, but without application to business entities.”[1] This amendment is problematic though, as it not only will potentially be struck down as unconstitutional but also has the potential to affect international dealings between residents of Alabama.

Alabama-sharia-ban

The bill proposing the amendment was sponsored by Alabama State Senator Gerald Allen. In 2011, Senator Allen sponsored a similar bill, but it was withdrawn prior to being placed on the ballot. The prior bill, titled the Sharia Law Amendment, suggested that Alabama courts should not be permitted to apply Sharia (Islamic law) in particular.[2] Perhaps significant in the Senator’s decision to withdraw the bill was the fact that in November of 2010, the United States District Court for the Western District of Oklahoma held that a similar state statute that forbade state courts from applying Sharia law was unconstitutional under the Free Exercise and Establishment Clauses of the First Amendment.[3] This time, however, the Senator’s bill excludes any mention of a particular sect, cultural group, religion, or set of specific laws that the amendment proposes to exclude from judicial consideration.

While it is surely not the intention of any legislator or proponent of this bill to discriminate against any foreign law or religion, this amendment warrants a closer look…just to make sure. Birmingham attorney Eric Johnston drafted the bill for Senator Allen, and stated that his goal was to “’just do something legal, not political.’”[4] But in the same breath, Mr. Johnston stated that “‘Women’s rights are compromised by Sharia rights if a lawyer in a custody case says, ‘Islam requires you to do this.’”[5] I’ll discuss more of the legal implications below, but this has hints of the same discrimination that was deemed unconstitutional in Awad v. Ziriax. Despite the fact that this amendment does not explicitly state that Islamic law will be banned from state courts, the decision in Awad hinged on the fact that by disallowing a party’s choice of law (namely, Sharia law), the individual is subject to “official condemnation [which] will result in a stigma attaching to his person, relegating him to an ineffectual position within the political community, and causing him injury.”[6] The court in Awad went on to say that the harm that the plaintiff would have suffered was not merely produced by “observation of conduct with which one disagrees”, but was “produced by government condemnation of one’s own religion or endorsement of another’s in one’s own community….”[7]

Sharia-law-Billboard

Amendment One would seem to accomplish the same thing; by condemning and excluding a person’s choice of law, there is a stigma attached to the individual of inferiority. To be clear, the ability to apply Sharia law in United States courts does not apply to criminal matters, but rather civil ones. For example, if a person were to seek to have their will probated under Sharia law, this would not be allowed in Alabama.[8] Additionally, if two parties in a private matter were to contract that any arbitration would be done through an imam, Alabama would say not allow it in their courts.[9]

The drafters of Amendment One may have intended to get around the unconstitutionality of their provision under Awad by stating that the foreign law would not be applicable only if it “violates the rights” of United States or Alabama citizens.[10] Eric Johnston claims that the Amendment “does not affect [foreign marriages and adoptions] at all…[t]hat was a red herring to scare people away.”[11] But what if a couple is married in a country with different divorce laws than the United States and sign a prenuptial agreement? If that prenuptial agreement is governed by law other than the United States and the couple wants a divorce in Alabama, the prenuptial will not be considered by the court. If one of the Alabamian party seeks to have the foreign prenuptial enforced, but the other Alabamian does not, the prenuptial that should be binding on the parties would be excluded from Alabama courts. The foreign governed agreement could be viewed as violating the rights of the Alabama citizen seeking its exclusion.

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The Amendment seems to be a veiled attempt to skirt the holding in Awad, and the statements of the drafters themselves indicates a desire to exclude Sharia law in particular from Alabama. Alabama citizens will only be harmed by this Amendment, and it would not be surprising to see the Amendment to fall the way of the provision that was struck down in Awad.

Justin Tepe is a third-year student at the University of Baltimore School of Law. Justin earned a bachelor’s degree in Political Science with a minor in Philosophy from St. Mary’s College of Maryland. While studying Political Science, Justin developed a passion for foreign politics and international relations. As Editor-in-Chief of the University of Baltimore Journal of International Law, Justin has had the opportunity to build on his passion for international law and help grow the Journal’s impact on the UB community. Justin has worked as a paralegal and law clerk in civil litigation firms over the last three years.

[1] Alabama Foreign Laws in Court, S. 4, 2013 Reg. Sess. (Al. 2013).

[2] Amanda Taub, Alabama’s new anti-Sharia law is discriminatory, unnecessary, and could cause real problems, Vox, http://www.vox.com/2014/11/5/7160303/alabama-sharia-ban-problem (Nov. 5, 2014).

[3] See generally, Awad v. Ziriax, 754 F.Supp. 2d 1298 (2010).

[4] Greg Garrison, Amendment banning ‘foreign law’ in Alabama courts passes; will be added to Alabama Constitution, Al.com, http://www.al.com/news/index.ssf/2014/11/amendment_banning_foreign_law.html (Nov. 4, 2014).

[5] Id.

[6] Awad, 754 F.Supp. 2d at 1303.

[7] Id. (internal citations omitted).

[8] Id. at 1304.

[9] Liz Farmer, Alabama Joins Wave of States Banning Foreign Laws, Governing, http://www.governing.com/topics/elections/gov-alabama-foreign-law-courts-amendment.html (Nov. 4, 2014).

[10] Alabama Foreign Laws in Court, S. 4, 2013 Reg. Sess. (Al. 2013).

[11] Garrison, supra note 4.


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A New Yellow Turban Rebellion – Only With Umbrellas

Christian Noble

On October 14th, 2014, pro-democracy protestors in Hong Kong forced police to retreat from a tunnel previously blocked by additional protestors.[i]  As protestors reinforced their barricades, police returned to the tunnel within hours of being forced out and retook the thoroughfare.  It was during this retaking that protestors recorded Ken Tsang, a social worker and member of the Civic Party, on a fifty-one second cellphone video being led around a dark corner where police began kicking Tsang as he lay on the ground.[ii]  This blog will set forth the origin of Hong Kong including the current provision at issue, the Chinese government’s actions that led to the protests, and international repercussions, if any, of China and protestor actions.  What specifically brought about clashes between protesters and police?  It all began on December 19th, 1984 with the release of Breakin’ 2: Electric Boogaloo.

Image: TOPSHOTS-HONG KONG-CHINA-POLITICS-DEMOCRACY

  • History

The Government of the United Kingdom and the Government of the People’s Republic of China (PRC) signed the Sino-British Joint Declaration on the Question of Hong Kong (The Joint Declaration) on December 19th, 1984.[iii]  In The Joint Declaration, the United Kingdom restored Hong Kong to the control of the PRC on July 1st, 1997.[iv]  The PRC would not absorb Hong Kong under socialist rule; the “Hong Kong Special Administrative Region” (Hong Kong) would remain an autonomous region under the principle of “One Country, Two Systems.”[v]  Under this system, Hong Kong would retain the capitalist system it held under British rule while still considered under the purview of socialist China.[vi]

As a part of The Joint Declaration, the Seventh National People’s Congress of the PRC adopted The Basic Law on April 4th, 1990.[vii]  Imposing this law on Hong Kong, The Basic Law sets forth the general principles of the PRC regarding Hong Kong, including the protection of rights and freedoms, the political structure, and external affairs.[viii]  The Basic Law also details the method in which leaders of Hong Kong, specifically the Chief Executive, shall be chosen.  Article 45 of The Basic Law states: “The Chief Executive of [Hong Kong] shall be selected by election or through consultations held locally and be appointed by the Central People’s Government.”[ix]

20140930_China_autonomy

Allowing such a high level of democracy is not characteristic of the PRC as evidenced by the Tiananmen Square protests of 1989, but, per The Joint Declaration, Hong Kong would retain a relatively high degree of autonomy for the next fifty years.[x]  On July 1st, 1997, The Joint Declaration was officially in full effect and the transfer of Hong Kong from the British to the PRC was complete.  Simultaneously, The Basic Law took hold in Hong Kong establishing it as the supreme law.  No matter how autonomous, the PRC always retained a certain level of control over Hong Kong, and recently, the PRC has attempted to assert even more control.

  • Current Crisis

With an election for a new Chief Executive approaching in 2017, Hong Kong politicians began gearing up for election season.  On June 10th, 2014, Beijing published a White Paper reiterating the PRC’s “comprehensive jurisdiction” over Hong Kong.[xi]  State owned newspaper People’s Daily declared, “Hong Kong can maintain prosperity and stability… only when the policy of ‘one-country, two systems’ is fully… implemented.”[xii]  Some Hong Kong residents saw the White Paper as an attempt by the PRC to pressure voters into backing candidates who support the PRC.[xiii]  Two months later on August 31st, the PRC legislature ruled against allowing open nominations in elections for Chief Executive of Hong Kong.[xiv]  This method of choosing the Chief Executive is in direct opposition to the method used in prior elections where an electoral college selects the Chief Executive.

Hong-Kong

Specifically, the PRC will have a 1,200-member nominating body select candidates who will then be presented to the voters of Hong Kong.[xv]  After the vote is taken, the Chief Executive-elect must still be appointed to the position by the PRC.[xvi]  Protestors saw this as an opportunity for the PRC to screen candidates for their loyalties to Beijing.[xvii] The PRC justified its recent ruling by stating that allowing Hong Kong to openly nominate candidates would create a “chaotic society.”[xviii]  State owned tabloid The Global Times warned, “[T]he central government will not allow chaos in Hong Kong and it has ‘a lot of resources and leverage’ to prevent such situation [sic] to take place.”[xix]

As a response to the actions of the PRC, pro-democracy protestors began to occupy significant areas of Hong Kong’s financial district.[xx]  Over time, the protests spread, encompassing uptown Hong Kong and across the harbor to Kowloon.[xxi]  Chief among their demands, protestors are fighting for the ability to freely elect their leaders and the resignation of Hong Kong’s current Chief Executive Leung Chun-ying.[xxii]  After the protestor imposed deadline, Chief executive Chun-ying stated that he has no intention of stepping down.[xxiii]

Consistent with their message on the release of the white paper, the PRC is attempting to characterize the protestors as creating disorder among society.[xxiv]  China’s foreign minister, Wang Yi, noted that “Beijing would not tolerate ‘illegal acts that violate public order.’”[xxv]  The protestors have yet to damage property or inflict injuries on Hong Kong police, but the Hong Kong police have responded with tear gas and violence in attempts to disperse the crowds.[xxvi]  As a result of the police crackdown, Amnesty International reports at least twenty protestors have been detained and sixty called in for questioning.[xxvii]

In addition to promoting “order,” the PRC engaged local groups in order to bolster support for the PRC position.[xxviii]  One local group is the Federation of Trade Unions which is used to churn out counter groups of anti-democracy protesters.[xxix]  The disruption of commercial life in Hong Kong is a common critique of the democracy protesters, especially during the large shopping holiday “National Day week.”[xxx]  Not all groups approached by the PRC have been receptive to joining against the pro-democracy protestors.  The Hong Kong judiciary has ignored calls to be “patriotic” and instead asserted their independence.[xxxi]  What initially appears as an internal issue between China and Hong Kong may have international repercussions.

  • International Repercussions

International influence existing and invited regarding the internal strife in Hong Kong is different depending on whose viewpoint is characterized.  Senior officials in the PRC noted that “Hong Kong affairs are China’s internal affairs,” and “[a]ll countries should respect China’s sovereignty.”[xxxii]  Further, PRC President Xi Jinping regularly blames “foreign forces” for encouraging the pro-democracy protests.[xxxiii]  The last time the PRC handled completely internal democracy protests occurred in June 1989 with the deaths of students at Tiananmen Square.[xxxiv]  International reaction and pressure to deaths as a result of the current protests will, undoubtedly, be swift and condemning, but so far, pressure on the PRC has been muted at best. Secretary of State John Kerry reiterated the United States’ long-standing support of “…universal suffrage in Hong Kong, accordant with the Basic Law.”[xxxv]  Maybe hoping the PRC would see the light, Kerry added, “…we have high hopes that the Hong Kong authorities will exercise restraint and respect the protestors’ right to express their views peacefully.”[xxxvi]

Image: A riot policeman uses pepper spray during clash with protesters, as tens of thousands of protesters block the main street to the financial Central district outside the government headquarters in Hong Kong

China’s international agreements are similarly without teeth. As a signatory on the International Covenant on Civil and Political Rights (ICCPR), China is only required to uphold the object and purpose of the treaty, the object and purpose being the civil rights of its citizens.[xxxvii]  This fact coupled with a restrictive interpretation of the ICCPR could lead to a ratified treaty purporting to protect civil rights, while restricting them under the guise of protecting national and public safety.[xxxviii]  A narrative the PRC is persistently weaving to counter pro-democracy protestors.  In the absence of an international agreement, the argument of international intervention on the basis of jus cogens or erga omnes violations is not applicable.  The PRC transitioned to socialism in 1949.[xxxix]  Certain civil rights have never been a part of the PRC’s socialist regime.  As such, the PRC has a good argument that it is consistent in objecting to the withholding of certain rights, labeling itself a persistent objector.  This would relieve the PRC of any obligation under the ICCPR to respect the civil rights in question.

If the PRC wishes to continue its socialist policies, it is important that it not give into pro-democracy demands.  Giving in to democracy in an area where the PRC can exert a large amount of influence could lead to increased pressure over Taiwan, an internationally recognized “unsettled” state over which the PRC claims sovereignty.[xl]  With no clear end in sight, little support entering the area, and an entire state against them, pro-democracy protestors may be fighting, a battle, albeit a noble one, that they can’t win.

Christian Noble is a third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and a concentration in International Law. He graduated from the Penn State University in June of 2008 with a Bachelors of the Arts in International Politics with a minor in Sociology. He has also studied Japanese and Korean language. During the winter of his second year, Christian studied abroad in Curaçao taking classes in International Law and European Union Law. The following summer, Christian studied abroad in Japan taking classes in International Business Transactions and the Japanese legal system. While in Japan, Christian interned with Nakamura & Partners, a Japanese IP firm located in downtown Tokyo.In addition to being a CICL Student Fellow, Christian serves as the Emerging Issues Editor for the Journal of International Law, Vice President of the Immigration Law Association, Treasurer of the Latin American Law Student Association, Treasurer of OutLaw, and 3L Representative of the International Law Society. Christian is also currently serving as a Maryland Rule 16 Student Attorney with the Immigrant Rights Clinic.

[i] http://online.wsj.com/articles/footage-of-beating-prompts-hong-kong-police-to-launch-investigation-1413343131

[ii] Id.

[iii] http://www.basiclaw.gov.hk/en/facts/index.html#3_7

[iv] Joint declaration of the government of the united kingdom of great Britain and northern Ireland and the government of the people’s republic of china on the question of Hong Kong, Para. 2

[v] Supra note iii.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Xianggang Jiben Fa art. 45 (H.K.).

[x] Supra note iv at annex 1.

[xi] http://www.bbc.com/news/world-asia-china-27790302; See also http://news.xinhuanet.com/gangao/2014-06/10/c_1111067166.htm (text of White paper in Chinese).

[xii] http://www.bbc.com/news/world-asia-china-27790302

[xiii] Id.

[xiv] http://www.theguardian.com/world/2014/aug/31/china-rules-out-open-elections-hong-kong

[xv] Id.

[xvi] Supra note iv at annex 1.

[xvii] Supra note xii.

[xviii] Id.

[xix] Id.

[xx] http://alj.am/1tT3MXH

[xxi] http://time.com/3447838/hong-kong-democracy-china-protests-anson-chan/

[xxii] http://www.aljazeera.com/news/asia-pacific/2014/10/hong-kong-protesters-set-midnight-ultimatum-201410252253727739.html

[xxiii] Id.

[xxiv] http://www.bbc.com/news/world-asia-china-29453490

[xxv] Supra note xx.

[xxvi] http://time.com/3453736/hong-kong-stands-up

[xxvii] http://www.washingtonpost.com/world/hong-kong-strategy-both-sides-eye-end-game/2014/10/01/b9af3bf6-4980-11e4-b72e-d60a9229cc10_story.html

[xxviii] http://oneline.wsj.com/articles/whats-at-stake-in-hong-kong-1412204981

[xxix] Id.

[xxx] http://alj.am/1uGUTGe

[xxxi] Supra note xxviii.

[xxxii] Supra note xii.

[xxxiii] Supra note xxvi.

[xxxiv] http://www.theguardian.com/commentisfree/2014/oct/01/china-doesnt-know-how-respond-umbrella-revolution-hong-kong

[xxxv] Id.

[xxxvi] Id.

[xxxvii] https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg_no=iv-4&lang=en

[xxxviii] http://chinesejil.oxfordjournals.org/content/6/1/17.full

[xxxix] http://monthlyreview.org/2004/07/01/introduction-china-and-socialism/

[xl] John J. Tkacik, Jr., Taiwan’s “Unsettled International Status: Preserving U.S. Options in the Pacific (June 19, 2008


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Sweden and Finland – To Join NATO or not to Join NATO? That is the Question!

Clark Smith

Events this year, primarily those orchestrated by Russia, have again reignited the debate over whether Sweden and Finland should join the North Atlantic Alliance.  Most concerning to both NATO allies and Europe’s non-Alliance members alike was Russia’s annexation of Crimea earlier this year, followed by Russian activities in the east of Ukraine.  In scenes reminiscent of the Cold War, , Sweden embarked upon its largest maritime mobilization since the end of the frozen conflict in its search for a mystery vessel suspected of being some type of Russian mini-submarine in Swedish territorial waters.  The Swedish maritime search, along with repeated and recent violations of Finnish airspace by Russian combat aircraft, has these two nonaligned Scandinavian countries on edge and rethinking their defense postures.  Sweden and Finland both successfully navigated military nonalignment throughout and following the Cold War, though under very different circumstances. However, with a newly invigorated Russia that appears to disregard international law at every turn, now may be the time for Sweden and Finland to advance discussions on joining NATO.  

Finland NATO Sweden

Sweden, historically an adversary of Russia, lost the eastern third of the Kingdom of Sweden to Russia during the Finnish War from 1808 to 1809.  Thereafter, Sweden devised and maintained its military policy of nonalignment, which kept them out of both World Wars and the Cold War.  That eastern third of Sweden, however, became the Grand Duchy of Finland and remained under Russian control until Finland declared independence during the 1917 Russian Revolution. Finland fought Soviet aggression throughout World War II, even briefly aligning with Nazi Germany in what Finland calls the Continuation War Finland ended up paying reparations and ceding territory to the Soviet Union following the war and signed the Agreement of Friendship, Cooperation, and Mutual Assistance with the Soviets in 1948.  Left out of the Marshall Plan, Finland lagged economically behind its West European neighbors until the 1970s.  With the fall of the Soviet Union in 1991, Finland emerged from the Soviet shadow as truly independent.  So, while Sweden’s choice to pursue nonalignment was actually of its own accord, Finland’s had more to do with concern over possible Soviet retaliation.

Despite the two Nordic countries’ nonalignment policy, both maintain advanced, competent militaries and possess both NATO and US equipment, including, for example, the McDonnell Douglas (now Boeing) F-18C/D (Finland) and the Lockheed (now Lockheed Martin) C-130 (Sweden).  Additionally, both are part of NATO’s Partnership for Peace program, train frequently with NATO forces, and integrate well with NATO, US, and other European militaries.  Swedish and Finnish forces have even deployed to Afghanistan with NATO’s International Security Assistance Force (ISAF).  Thus, meeting the standards of and effectively integrating with NATO would not present the type of challenges similar to those of recent NATO, and former Warsaw Pact, countriesBoth countries would, however, need to increase their defense budgets if they wanted to meet NATO’s agreed target of two percent of a country’s GDP.  According to 2012 figures, Sweden’s defense budget was 1.2% of their GDP and Finland’s was 1.5%. However, it is not a precondition that the two percent figure be met prior to joining the Alliance, as many current NATO members regularly fall short of that target.

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More challenging than military interoperability would be mustering the political will in both countries to affect such a partnership in acceding to the Treaty.  Unlike the US, where the President and two-thirds of the Senate can commit the country to a treaty, the constitutions of Sweden and Finland require a referendum.  But neither country has the support from a majority of the voters, with recent polls indicating that just over one-fifth of Finns and just under one-third of Swedes favor joining NATO.  Those who prefer the tradition of nonalignment to a multilateral defense pact believe a better option is reinforcing bilateral defense cooperation or, preferably, even strengthening Nordic defense cooperation.  Entering into defense arrangements with regional partners can certainly reduce the financial impact of developing and sustaining a robust defense force, most notably in the areas of research and development and weapons and systems procurement. However, Sweden and Finland will be limited in their Nordic partnership pursuits since NATO members Norway and Denmark will continue to modernize their militaries first and foremost through the Alliance.  Despite the impediments to joining NATO, particularly from the voters, political and military leaders of both countries increasingly recognize the importance of advancing from debate to action the process towards membership.  In response to a discussion about whether or not Sweden could hold out even a week against a Russian attack, former NATO Secretary General Anders Fogh Rasmussen remarked that “Sweden cannot count on military support from NATO unless it becomes a member state.”Bear Finland Sweden

Though Russia has no legal basis for preventing the two countries from joining NATO, their threatening rhetoric would seem to indicate they believe otherwise.  In 2013, Russian Prime Minister Dimitri Medvedev stated that Sweden and Finland joining NATO would upset Europe’s balance of power and force Russia to respond.  A senior adviser to Russian President Vladimir Putin, in response to the possibility of Sweden and Finland joining NATO, remarked that “anti-semitism started World War II, [and] Russophobia could start the third.”  Russia’s former chief of their armed forces, speaking to a national defense audience at the University of Helsinki, asserted not only that Finnish-NATO cooperation threatens Russian security, but even questioned Finland’s right to hold military exercises on its own soil.  Following their annexation of Crimea, Russian forces in the north then held military exercises on Finland’s border.

Arguing against Sweden and Finland joining NATO because it antagonizes Russia is hardly a rational, if even a reasonable, argumentBut provocative or even hostile comments threatening a sovereign nation for exercising its political and military rights, along with both overt and covert actions that violate the territorial integrity of another sovereign nation, would seem to be both reasonable and strong evidence of behavior implicating Article 2(4) of the UN Charter.  As Russia and its president advance their anti-western rhetoric and activities, Sweden and Finland should advance their discussions around a defense posture that provides certain security in an increasingly uncertain environment.

Clark Smith is a third-year law student pursuing a concentration in International Law. He has undergraduate and graduate degrees in Political Science and International Relations. In addition to being a Student Fellow, he is the Submissions Editor for the Journal of International Law. His previous experience includes work in both security and policy and his previous overseas postings include Western Europe, the Balkans, the Middle East, and South Asia. His professional interests include international development.


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Eliminating the IS Threat – Why a U.S. Led Coalition Was the Only Way It Would Work

Lindsay Stallings

The Islamic State (IS), also known by the acronyms ISIS (Islamic State of Iraq and Syria) or ISIL (Islamic State of Iraq and the Levant), has been growing in their power and their influence around the Arab world. However, while they are creating a daily panic in Syria and Iraq, they are causing great concern for the rest of the world.  IS is largely autonomous. They have stolen, robbed, or bartered for their money, weapons, and even slaves. The international concern for IS’ activities stems not only from their humanitarian violations against those in Syria and Iraq; but more, the fear that comes from their sheer power. It is for this reason that President Obama, who had once had been so adverse to relying on the 2001 and 2002 AUMFs, felt it necessary to rely on these very legal instruments to bolster his arguments for air strikes against IS. In doing so, he has made his smartest and most mature foreign policy decision of his Presidency – taking charge and leading a coalition of states in eliminating the IS threat.

In the middle of August of 2014, IS released their first viral video – the beheading of American journalist James Foley, who was beheaded for the sins of the Americans. They have beheaded innocent people, have raped and pillaged villagers, and have terrorized countless populations; and there seems to not be an end in sight. [1] President Obama has admitted that US intelligence on the strength of IS was lacking.[2] Over the past few years of Syrian unrest, IS has been able to use widespread lawlessness to recruit and develop their jihad. The United States, along with five Arab nations and France,[3] began air strikes against IS two weeks ago. From outside reports it seems that strikes are currently being aimed at infrastructure and oil strongholds.[4] Thus far, there is a general avoidance of targeting individuals and more of a focus on materials. This makes it clear that the US and their allies recognize the importance of IS’ resources. It is obviously important to not underestimate the strength of IS’ message, both in the Arab world and globally, but their resources will run out long before their passion for the advancement of the Islamic State and, in reality, the loss of resources will hurt them first.  However, to compound the obvious hole in U.S. intelligence, an IS combatant has publicly stated that IS was prepared for the U.S. airstrikes, claiming they have been ineffective against IS.[5] _77944799_iraq_syria_air_strikes_624_01_10_14_v2 The US made the first move on the airstrikes and did so without the full support of the international community. Should the world and, potentially more importantly, US citizens take notice of this deviation in President Obama’s approach to unrest in the Middle East? In a time when the US is fighting an image battle in the Middle East, this was a bold move, and one that seems to have been made less for political reasons than it was for moral ones. It is worth a great deal of commendation that our administration is willing to take this step. Mind, we are not doing this alone, there are multiple Arab countries fighting for their own borders, along with French, British, Belgium, and Danish support, a total of fifty countries have signed on to support the airstrikes.[6] This support comes in the form of ground support, air support, and of course, political support. But, this all began before President Obama went to the United Nations. Before he was forced to explain why the US thought they could, should, and had the right to get involved. The event to be considered here is why the President of the United States decided to commence air strikes and then, at least two weeks later, plead with the international community for their support and encourage action to be taken against ISIS. During the course of his presidency, President Obama has rarely taken international action without wandering around the world, garnering as much support, either implicit or explicit, as he could. But here, he essentially said, “World, we know what we are going to do to deal with this -what are you going to do?” UN-SECURITY COUNCIL-OBAMA This shows a certain level of foreign relations maturity on the part of POTUS. He and his advisors made a decision that we could not stand by and let ISIS terrorize Iraq, Syria, Christians, Jews, the Yazidi (a Kurdish ethno-religious community who practice Yazidism in Iraq), and threaten to lash out at America, without doing something. The President ran his first campaign on the auspices that the “War On Terror” must end. He ended the war in Iraq, he started to pull out of Afghanistan – and is continuing that effort for all intents and purposes – but the Middle East is still in constant, bubbling, turmoil. And, in the end, the US is the US. The world’s savoir, the moral-driven, freedom to all races and creeds-focused, rescuer of all, right!? But, is that our job? Is that the job of the American Armed Forces to step in and save all of those deemed unable to save themselves? I think that President Obama’s decision to direct airstrikes against IS is indeed his most mature foreign policy move to date. He did not wait for the rest of the world powers to support him, he did not ask permission from anyone aside from Congress[7], and did what was right for the United States and the areas in the Arab world we have taken responsibility for over the last ten years. It would have been sadistic on the part of the U.S. to just sit back and watch as Iraq, a country we essentially decimated over the past decade, to struggle to fight this new radical bastardization of Islam that currently terrorizes them. The US took on this responsibility in 2001. We tried to establish communities and governments that would help the weakened and tired populations of the Arab world. We tried to empower them and build democracy. It has not worked yet and we are, clearly, not done. So, when a new group rises up, a group more terrifying than Al-Qaeda has ever been, we cannot step away. The President put on his ‘I am a world leader’ pants and he worked with those who were suffering the most. He created a coalition of the willing and took responsibility for the role the United States played in allowing this to happen. French When President Obama spoke to the United Nations he did not tell the world that we were doing the right thing for everyone. He made it clear that this was important to the US, and why. He did not tell the United Nations that the US was better than the rest of them for taking action; he actually made clear that the US has struggles too.[8] There are school shootings, race riots, militarizing police forces, renegade shooters targeting law enforcement officers, individuals setting wild fires – the list of domestic struggles the US is facing is not less than that of any other country. And finally, President Obama recognized that by not pretending we were better than every other country, those countries were more willing to listen to our silent pleas for help. The President was begging for other countries to step in, to step up and recognize that the threat from IS is not just against those in the Arab world or just against the US, it is a threat to the general level of safety most citizens of the world feel as they go about their daily lives. The French joined in the airstrike offensive on September 19 with the US and Arab partners.[9] Thus far, France has only acted in Iraq, wary to move into Syria and encourage any more disturbances. However, as of Friday, September 25, they have said they are considering moving into Syria on the tail of a French tourist’s beheading by an Algerian terror organization.[10] Yesterday, the UK carried out its first air strikes in Iraq[11]  after voting last Friday to authorize action in Iraq.[12] No mention was made of the UK going into Syria, which shows that they too are wary of moving into an area where they are not invited. UK Parliament Each country currently involved or considering involvement in this offensive is doing so for country-specific reasons, not based on the perceived duty owed to the international community as a whole. A sense of general duty did not work as well as they hoped ten years ago in Iraq, but maybe this time there will be more successful. Personal involvement, a sense of devotion the protection of oneself, will hopefully deal with this matter with less bureaucracy and more effectiveness. Only when there is an understanding that this is not only a worldwide threat but also a worldwide responsibility can we finally defeat IS.

Lindsay Stallings is third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and concentration in International Law. She graduated from The Ohio State University in June of 2011 with a Bachelors of Science in Political Science with minors in Sociology and International Studies. She has also studied  Spanish and Arabic language and culture extensively. While at The Ohio State University, she was a member of the International Affairs Scholars program, through which she studied abroad in Bulgaria. She was active in the Undergraduate Student Government and was a member of various academic and student life university-level committees.  Her primary interests are international law, national security, and U.S. Military and diplomatic policies. Through her coursework and relationships with our international law faculty she has developed a more focused interest in the policies surrounding international conflict and the capabilities of international courts. Lindsay currently serves as the Careers Director on the International Law Society and is a Staff Editor on the Journal of International Law. Her legal coursework and extracurricular activities have given her the opportunity to mold her passion for cultural studies and problem solving into an exciting international legal career.

[1] Rod Mills, Family anguish over Glasgow schoolgirl turned jihadi (Sep. 4, 2014) http://www.express.co.uk/news/uk/506765/Family-anguish-over-Glasgow-schoolgirl-turned-jihadi; Teenage jihad: 2 Austrian girls stopped en route to join ISIS, (last edited Sep. 10, 2014) http://rt.com/news/186536-austria-schoolgirls-join-isis/.

[2] Stephen Rex Brown, President Obama admits U.S. ‘underestimated ISIS’ strength – but knocks other superpowers for failure to act (Sep. 28, 2014) http://www.nydailynews.com/news/politics/obama-admits-u-s-underestimated-strength-rise-isis-article-1.1955804.

[3] France Says Carried Out Air Strikes In Iraq September 25 (Sep. 25, 2014) http://www.rferl.org/content/iraq-france/26605701.html.

[4] Scott Neuman, Airstrikes Move to Syria, Target More Than Just ISIS (Sep. 23, 2014) http://www.npr.org/blogs/thetwo-way/2014/09/23/350820165/airstrikes-move-to-syria-target-more-than-just-isis; New airstrikes, new tactic to beat ISIS (Sep. 25, 2014) http://www.cbsnews.com/news/u-s-arab-allies-airstrikes-target-isis-oil-refineries/.

[5] Arwa Damon and Holly Yan, ISIS fighter says U.S. airstikes aren’t effective (Sep. 29, 2014) http://www.cnn.com/2014/09/29/world/meast/isis-fighter-and-defector-interviews/index.html?hpt=hp_t1.

[6] Stephen Castle and Steven Erlanger, Nations Offer Limited Support to Attack on ISIS (Sep. 26, 2014) http://www.nytimes.com/2014/09/27/world/europe/british-parliament-vote-isis-airstrikes.html?_r=2; Michael Pearson, Greg Botelho, and Ben Brumfield, Anti-ISIS coalition grows, but that doesn’t mean victory is near (Sep. 27, 2014) http://www.cnn.com/2014/09/26/world/meast/isis-syria-iraq/index.html.

[7] Lisa Mascaro, Congress mostly approves of airstrikes in Syria so far (Sep. 23, 2014) http://www.latimes.com/nation/politics/politicsnow/la-pn-congress-syria-airstrikes-20140923-story.html (explaining that Congress approved of support of training and equipping moderate Syrian rebels).

[8] Stewart M. Patrick, President Obama’s UN Speech: Defending World Order (Sep. 24, 2014) http://blogs.cfr.org/patrick/2014/09/24/president-obamas-un-speech-defending-world-order/.

[9] France Carried Out Airstrikes, supra note 2.

[10] Id.; France Considers Airstrikes Against ISIS in Syria After Beheading (Sep. 25, 2014)  http://www.nbcnews.com/storyline/isis-terror/france-considers-airstrikes-against-isis-syria-after-beheading-n211221.

[11] Jenny Gross, U.K. Carries Out First Airstrikes in Iraq (Sept. 30, 2014) http://online.wsj.com/articles/u-k-ministry-of-defense-raf-carried-out-its-first-airstrikes-in-iraq-1412097556

[12] Nicholas Winning and Jenny Gross, British Parliament Approves Airstrikes in Iraq Against Islamic State (Sept. 26, 2014) http://online.wsj.com/articles/david-cameron-calls-for-u-k-parliament-to-vote-for-iraq-airstrikes-on-islamic-state-1411725035


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Justification for Attacking IS – Is it Legal?

Clark Smith

In the wake of the President’s address to the nation on forthcoming US-led action against the Islamic State (IS) in Iraq and Syria, foreign officials abroad and legal scholars at home are lambasting the President for his presumed lack of legal justification.  In a primetime speech on September 10, the President laid out his strategy to “degrade and ultimately destroy” IS.  In short, his four-part strategy includes: continued air strikes against IS targets, though now expanding to Syria; increased support to forces fighting IS, in the form of additional US uniformed trainers and advisors in Iraq and providing of arms, equipment, and coordination for training to forces inside Syria; continued counterterrorism efforts aimed at denying IS necessary logistics and support by working with international partners to cut off funding, stem the inflow of foreign fighters, and countering IS propaganda; and further humanitarian assistance to those displaced by IS.  Although the President claims bipartisan support, he also claims “the authority to address the threat from ISIL.”  It is the airstrikes planned for Syria-based IS targets and the President’s presumed basis for authority to attack IS more broadly that concerns legal experts.

Iraq map locator

Both Syria and its ally Russia assert that any US airstrikes against targets in Syria would be in violation of international law.  A Syrian government spokesman warned that “any action [against IS] without the consent of the Syrian government would be an attack on Syria.”  And despite ongoing Russian involvement in the Ukraine, a Russian spokesman warned that any US action in Syria absent “an appropriate decision of the UN Security Council, [] would become an act of aggression, a crude violation of the norms of international law.”  Article 2(4) of the UN Charter would certainly seem to support Russia’s assertion of the Syrian position.  And with Russia’s position on the Security Council, a Security Council decision supporting the US strategy is all but impossible.  But, a Security Council decision condemning, or even prohibiting, the forthcoming US action in Syria is equally impossible.  Just as international law has been ineffective in curbing Russian aggression in the Ukraine, so too will it be ineffective in facilitating the efforts of any of the US’s detractors in dismantling IS.  Even if legitimate international law concerns did exist regarding the US strategy for addressing the IS threat, the US interests do, and should, outweigh those concerns (I make this argument here in my law article, on page 192).

Mapping the Syrian Conflict

More concerning to legal scholars, at least from a domestic perspective, is the President’s claim that he already has “the authority to address the threat from ISIL.”  Presumably, the President is referring to the Authorization for Use of Military Force (AUMF) passed by Congress in 2001 in response to the 9/11 attacks.  The key language of that AUMF indicates…

“…the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Since being passed for combat operations in Afghanistan, the AUMF has also provided the legal basis for attacks against al Qaeda, and affiliates, in Pakistan, Yemen, and Somalia.  Just last year Pentagon legal experts defended broad authority under the AUMF when testifying at a Senate Armed Services Committee hearing.  According to the Pentagon legal experts, “the broad interpretation of the AUMF [] gives them the flexibility to deal with the changing threat in a lawful, effective manner.”  Members of the Committee disagreed with the broad authorization assessment, yet no specific solutions were suggested.  Just weeks after that Senate Committee hearing, the President called for a repeal of the AUMF referring to it as the “perpetual war” law.  What he did not call for, however, was a deadline by which to repeal it.  Probably not a calculated risk, but not addressing the “perpetual war” law was a good move in hind-sight.

Obama IS Announcement

In recent months, the Commander in Chief appeared to be relying on his Article II powers to prosecute the limited campaign against IS targets in Northern Iraq.  This was evidenced by the multiple War Powers Resolution letters sent to Congress keeping them informed.  Relying on this authority for the limited strikes and in light of several AUMFs being considered, if not avoided, in Congress in the run up to the President’s speech, it was no doubt quite a surprise when the President claimed he already had the necessary authority to prosecute a sustained campaign against IS.  Experts question why the President did not insist first on Congressional support, but the President has been down that road only a year earlier when Congressional support for action against Assad’s Syrian regime for their use of chemical weapons on their own citizens was clearly, and embarrassingly, unobtainable.

The President’s justification for waging sustained conflict against IS, reliance on the 2001 AUMF, is a stretch indeed.  But it is plausible.  According to the language of the AUMF, the President determines those persons or organizations that participated in the 9/11 attacks.  That was clearly al Qaeda.  Since that time, the President has retained authority to use that AUMF to attack al Qaeda affiliates in South Asia, the Arabian Peninsula, and Africa.  The stretch, albeit a plausible one, is identifying IS as an al Qaeda affiliate or at least something that was at one time an affiliate of al Qaeda.  IS was born of al Qaeda in Iraq and only recently did Ayman Zawahiri disavow IS.  This same organization, regardless of name, attacked US forces in Iraq during the Iraqi war and continues to carry on the legacy of the former al Qaeda leader, Osama bin Laden.

In the end, the point may be moot if the President can get the Congressional authorization he very much wants, but is very reluctant to ask for.

Clark Smith is a third-year law student pursuing a concentration in International Law. He has undergraduate and graduate degrees in Political Science and International Relations. In addition to being a Student Fellow, he is the Submissions Editor for the Journal of International Law. His previous experience includes work in both security and policy and his previous overseas postings include Western Europe, the Balkans, the Middle East, and South Asia. His professional interests include international development.


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Time to Break the Silence:  Shining a Light on the Conflict in the Central African Republic

Jillian Bokey

International human rights violations are the modern-day plague—wiping out hundreds of thousands of people in short periods of time and the international community is facing so many of these plagues today.  Unfortunately, a large portion of the world is unaware of the atrocities taking place every day across the globe.  The most well known violations are taking place in Ukraine and Syria—it seems that there is new coverage every day on Ukraine.  Every once in a while the media catches us up on Syria, where a civil war has taken the lives of well over 100,000 people and displaced millions.[1]  Recently, barrel bombs were dropped on a school, killing young children, two men were crucified in the streets, and the use of sarin and other poisonous gases has become more and more regular.[2]  It is the politically charged actions that get the most attention in the media.  But what about the rest of the world?

Ukraine and Syria are not the only places with human rights issues; they plague the entire world.  This post seeks to shed a little light on the crisis in the Central African Republic (CAR)—a place we never hear about and a people entrenched in havoc and tragedy.  It is important that we break the silence on the crisis and give a voice to the people that desperately need help. 

Image Source: BBC News

Brief Introduction of the Role of Human Rights in International Law 

I think it is fair to say that when people think of international law, they probably think about a couple of different topics:  war, terrorism, foreign policy and relations, and human rights.  Of course I make this statement without having conducted any poll or survey.  Human rights have become an extremely relevant and important topic in modern international law.[3]  The atrocities that took place during World War II prompted a change in international law—a change that brought human rights concerns to the forefront, starting with the creation of UN.[4]  The UN Charter included the importance of fundamental human rights, the dignity and worth of each human person and the equal rights of men and women.[5]  Numerous conventions centering on human rights quickly followed, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), The International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Prevention and Punishment of the Crime of Genocide.[6]  Rights and responsibilities recognized under human rights law include the right to self-determination, the right to equality and nondiscrimination, the right to life, the right to not be enslaved or forced labor, the right to not be tortured or ill-treated, the right to fairness in the criminal process and the administration of justice, the right to not be detained or imprisoned, the right to privacy, the right to travel, the right to seek asylum and refugee status, the right to citizenship or nationality, the right of protection for family, the right to own property, freedom of religion and belief, freedom of expression, freedom of association and assembly, the right to participate politically and vote, and many more.[7]  The recognition of fundamental human rights has had a dramatic effect on the treatment of peoples and public opinion across the globe.

Ignorance in the Media

It is unfortunate that media outlets, specifically those in the United States, do not share the stories of human rights violations.  Only those that are “popular” are shared with the American public.  That is a problem.  The United States, along with the international community, has a responsibility to stand for and respect fundamental human rights, to be the voice for others that cannot share their own stories, to be the people that somehow find a way to give others hope in their own future even if they are located in another country.  It is important that a conversation about these global human rights violations is started and shared throughout the world in order to educate our global society about the injustices taking place in and outside of the places we all live.  Picking and choosing the topics of discussion on human rights violations is just perpetuating an ignorance and false impression about the status of the people of our world.

Christian anti-balaka attack the property of Muslim civilians in an effort to destroy everything in their commumity

Image Source: The Telegraph 

Starting a Conversation about the Crisis in the Central African Republic

The current conflict in CAR can be traced back to the coup in 2003 that removed then President Ange-Félix Patassé from office.[8]  François Bozizé, the army’s chief of staff, formed a relationship with Chad’s President Déby, and seized control of CAR, remaining in power for the next eight years with the help of Déby and the Chadian troops.[9]  When Bozizé began to change the dynamic of the business relationship, and sought connections with South Africa, Déby began to encourage a coalition of Muslim rebels—The Seleka—from CAR to take over the country.[10]  The Seleka was comprised of factions of different organizations.[11]  The Seleka’s campaign to overthrow the government and President Bozizé started in December of 2012, stating that they sought to “liberate the country and bring peace and security to the people.”[12]  Violence ensued, resulting in the Seleka taking control of the capital of CAR, Bangui, and fifteen of the sixteen CAR provinces.[13]  One of the leaders of the Seleka appointed himself as interim president.[14]  The Seleka members have destroyed rural villages, looted all over CAR, have raped women and girls, have deliberately killed numerous women, children, and elderly individuals, deliberately destroyed homes, destroyed and stole food and seed stocks creating a massive food shortage, and have left residents to fend for themselves without clean water or shelter.[15]  The Seleka do not seem to be the only guilty party as there are reports of major human rights abuses taking place under the Bozizé government.[16]  The abuses by the Seleka forces prompted Christian militias to organize counterattacks and defenses—the groups are known as anti-balaka fighters.[17]  They too have committed abuses, but against the Muslim population.[18]  The anti-balaka fighters attack those they believe are supporting the rebel coalition.[19]  The use of child soldiers has been a widespread issue as well.[20]

Soldiers drag the lifeless body of a suspected Seleka rebel after he was killed. (Jerome Delay/AP)

Image Source: The Washington Post 

Some of the accounts of violence are shockingly brutal.  Human Rights Watch tells of a story of how one Muslim woman was forced to watch the anti-balaka fighters slit the throat of her three-year old son, two other young boys, and an adult relative.[21]  The organization also recounted the story of an adult man who witnessed anti-balaka fighters slitting the throats of 13 of his loved ones.[22]  Seleka fighters sought revenge by ravaging a Christian village killing numerous people and destroying homes.[23]  Although this sounds like a religious conflict, pitting Christians against Muslims, the violence is, at the root of it, economic and political. CAR ranks at the bottom of the UN’s Human Development Index (ranked 180 out of 187).[24] 

Although the Seleka are no longer in power and a transitional government has been put into place, violence continues and the forced enlistment of child soldiers has not ceased.[25]  International efforts are woefully inadequate in addressing the issues, and the international community has not been keeping up with the crisis, even with troops on the ground.[26]  HRW calls upon the United Nations to deploy a full-scale peacekeeping effort in the region in order to provide protection to the civilians and provide aid to the displaced.[27]  The international community is slowly starting to be cognizant of the abuses, taking action one step at a time.  On May 13, 2014, President Obama ordered sanctions against five individuals tied to the violence and abuses and made way for the potential of future sanctions or penalties.[28]  In issuing the sanctions, President Obama noted that over 2.5 million people, which accounts for half of the population of CAR, need humanitarian assistance, and over 1 million are displaced.[29] 

Conclusion

The international community needs to do more to educate themselves on the status of the conflict in CAR.  Widespread atrocities, from killings to rape to the use of child soldiers are taking place daily.  The international community has a responsibility to act to help put an end to the human rights violations taking place in CAR.  The fighting between the anti-balaka fighters and the Seleka will not stop on its own—too much has happened for a ceasefire to be possible without international influence.  With over half the country in need of humanitarian assistance and a fifth of the country’s citizens already displaced, the time to act is now.  The more people that know about the conflict, the more support an international peacekeeping mission would receive, and the quicker that the millions of innocent CAR civilians can receive the aid, protection, and dignity that they so desperately need and deserve.

 

[1] Loveday Morris, 3 Grim Statistics from 3 Years of Conflict in Syria, Washington Post (Mar. 14, 2014 9:55am), http://www.washingtonpost.com/blogs/worldviews/wp/2014/03/14/3-grim-statistics-from-3-years-of-conflict-in-syria/

[2] Salma Abdelaziz, Death and Desecration in Syria:  Jihadist Group Crucified Bodies to Send Message, CNN (May 2, 2014 3:11pm), http://www.cnn.com/2014/05/01/world/meast/syria-bodies-crucifixions/; Holly Yand & Saad Abedine, 25 Children Killed in Elementary School Bombing, Syrian Activists Say, CNN (April 30, 2014 7:47am), http://www.cnn.com/2014/04/30/world/meast/syria-civil-war/index.html?hpt=imi_c2; Claims of New Poison Gas Attack in Syria, BBC News (Apr. 12, 2014 11:15am), http://www.bbc.com/news/world-middle-east-27001737.

[3] Dinah Shelton, Remedies in International Human Rights Law 1 (2nd ed. 2005).

[4] Dinah Shelton, Remedies in International Human Rights Law 104 (2nd ed. 2005).

[5] Id.

[6] Id. at 105.

[7] David Weissbrodt & Connie de la Vega, International Human Rights Law:  An Introduction 30-119 (2007).

[8] Human Rights Watch, “I Can Still Smell the Dead”:  The Forgotten Human Rights Crisis in the Central African Republic, p. 29 (Sept. 2013).

[9] Graeme Wood, Hell is an Understatement:  A report from the bloody, crumbling Central African Republic, New Republic (Apr. 30, 2014), http://www.newrepublic.com/article/117519/central-african-republic-conflict-africas-bloodiest-fight.

[10] Id.

[11] Human Rights Watch, “I Can Still Smell the Dead”:  The Forgotten Human Rights Crisis in the Central African Republic, p. 29 (Sept. 2013).

[12] Id. at 5.

[13] Id.

[14] Id. 

[15] Id. at 5-6.

[16] Id. at 7.

[17] Human Rights Watch, “They Came to Kill”:  Escalating Atrocities in the Central African Republic, p. 1 (Dec. 10, 2013), http://www.hrw.org/reports/2013/12/18/they-came-kill.

[18] Id.

[19] Human Rights Watch, Central African Republic: A Country In Turmoil, One Year On, Security, Aid, Justice Remain Essential (Mar. 23, 2014), http://www.hrw.org/news/2014/03/23/central-african-republic-country-turmoil.

[20] Obama Orders Sanctions Against 5 Over Central African Republic Violence, Wall Street Journal (May 14, 2014 12:18am), http://online.wsj.com/news/articles/SB10001424052702304081804579560532520785604.

[21] Human Rights Watch, “They Came to Kill”:  Escalating Atrocities in the Central African Republic, p. 5 (Dec. 10, 2013), http://www.hrw.org/reports/2013/12/18/they-came-kill.

[22] Id.

[23] Id. at 6.

[24] Jim Wallis, Don’t Blame the Central African Republic Conflict on Religion, Time (Apr. 9, 2014), http://time.com/55813/dont-blame-the-central-african-republic-conflict-on-religion/.

[25] Obama Orders Sanctions Against 5 Over Central African Republic Violence, Wall Street Journal (May 14, 2014 12:18am), http://online.wsj.com/news/articles/SB10001424052702304081804579560532520785604.

[26] Human Rights Watch, Central African Republic: A Country In Turmoil, One Year On, Security, Aid, Justice Remain Essential (Mar. 23, 2014), http://www.hrw.org/news/2014/03/23/central-african-republic-country-turmoil.

[27] Id.

[28] Obama Orders Sanctions Against 5 Over Central African Republic Violence, Wall Street Journal (May 14, 2014 12:18am), http://online.wsj.com/news/articles/SB10001424052702304081804579560532520785604.

[29] Id.