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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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.

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The ICJ Got it Right: Why Japan’s Whaling Practices Could Not Pass as Scientific Research

The ICJ Got it Right:  Why Japan’s Whaling Practices Could Not Pass as Scientific Research

Jillian Bokey

In a case that took almost four years to play out, the International Court of Justice (ICJ) has finally handed down a decision in Whaling in the Antarctic (Australia v. Japan).  On May 31, 2010, Australia filed its application instituting proceedings against Japan over Japan’s controversial JARPA II (Japanese Whale Research Program under Special Permit in the Antarctica) program, which commenced in late 2005.[1]  Australia alleged that Japan was breaching its obligations under international law, specifically, those obligations outlined in the International Convention for the Regulation of Whaling (ICRW).[2]  As remedies, Australia requested that the ICJ declare Japan to be in breach of their international obligations in their implementation of JARPA II, to cease JARPA II activities, to revoke any authorizations and permits allowing activities, and to have Japan provide assurances and guarantees that they will take no further action under JARPA II—essentially Australia was looking for the immediate cessation of whaling activities by Japan in the regions in question.[3]

The portions of the ICRW in question are Article VIII, paragraph 1; paragraph 10(e) of the Schedule to the ICRW; paragraph 10(d) of the Schedule; and paragraph 7(b) of the Schedule.  For the purposes of laying a foundation, a summary of each is provided[4]:

Provision Summary
Article VIII, paragraph 1 Party may grant to its nationals a special permit authorizing that national to kill, take or treat whales for scientific research; actions pursuant to this Article are exempt from the operation of the Convention.
Paragraph 10(e) of Schedule Catch limits for the killing for commercial purposes of whales from all stocks, starting with the 1985/1986 season shall be ZERO.   Japan objected at first then withdrew its objection.
Paragraph 10(d) of Schedule No taking, killing or treating whales, except minke whales, by factory ships or whale catchers attached to factor ships.
Paragraph 7(b) of Schedule Prohibits commercial whaling in the Southern Ocean Sanctuary region.  Objected to by Japan.

Australia believed that Japan was conducting commercial whaling activities under the guise of scientific research.  By way of example and explanation for that hypothesis, Australia noted the following in its Application[5]:

  1. Around the same time that Japan purportedly ceased commercial whaling, they launched JARPA, under the context of Article VIII, paragraph 1 of the Convention.
  2. In the seasons between 1987 and 2005, Australia alleged that Japan had killed approximately 6,800 Antarctic minke whales, compared to the 840 Japan had killed globally  for scientific research in the thirty-one (31) years prior to the moratorium (prior to the limit being set at zero by paragraph 10(e) of the Schedule to the Convention).
  3. JARPA II commenced in 2005, this time including fin and humpback whales along with minke whales, in the quota numbers.
  4. Japan refused to consider or comply with recommendations of the International Whaling Commission (IWC).

Japan continued to contend that the purpose of JARPA II was to “undertake research on the appropriate means of managing whaling.”[6]

The ICJ was faced with a task of applying the Convention and its Schedule to Japan’s controversial JARPA II program.  The ICJ, in doing so, did not find it necessary, and did not feel that it was called upon, to resolve any matters of scientific or whaling policy, as the court understood that the global community’s views differ on whaling.[7]  Therefore, the ICJ carefully articulated the appropriate standard of review for examining a grant of a special permit that authorizes the killing, taking and treating of whales pursuant to Article VIII, paragraph 1 of the Convention—they must determine 1) whether scientific research is involved and 2) whether the program’s design and implementation are reasonable, in the use of lethal methods, to achieving the program’s stated objectives.[8]  While Australia provided a set of characteristics of scientific research, the ICJ declined to agree or provide their own list of criteria.  Instead, they focused on whether the use of lethal methods is for purposes of scientific research.[9]  Considerations for this include any decisions regarding use of lethal methods, the scale of lethal sampling, the methodology Japan used in determining sample sizes, target sample sizes versus actual take, timeline of the program, the scientific output of the program, and how much, if at all, the program coordinates with other scientific research programs or activities that are related to the object of Japan’s program.[10]  Note that the intentions of the government officials are not included in the list of considerations posited by the Court.[11]

In applying these considerations to the Japan’s JARPA II program, the ICJ faulted Japan in many areas:

  1. There was no finding that Japan conducted any studies on the possibility of using non-lethal methods, in setting sample sizes, or maintaining sample sizes.[12]
  2. There was no finding that Japan conducted studies regarding whether fewer lethal samples and more non-lethal samples.[13]
  3. The objectives and methods were quite similar between JARPA and JARPA II, so the court questioned why Japan was doubling the sample sizes for Antarctic minke whales and now also including samples of fin whales and humpback whales.[14]
  4. Japan was taking significantly fewer whales than what the target sample sizes called for, but still maintained those targets without any explanation.[15]
  5. The timeframe is not determinable and does not have a terminating date in sight.[16]
  6. Only two papers resulted from the first 6-year phase of the program, and the court found that the papers do not even relate to the stated objectives of JARPA II.[17]
  7. The level of cooperation with other research projects and programs was insufficient.[18]

 

Because the objectives between JARPA and JARPA II were so closely related and similar, the ICJ found it unreasonable for such an increase in sample sizes and the inclusion of two additional species.[19]  Furthermore, the take levels, with the exception of the first two seasons of the JARPA II program, had been significantly less than the target sample levels, with no adjustment to the target levels to match the actual take numbers while Japan continued to rely upon JARPA II’s research objectives to justify the use and extent of lethal sampling called for in the program.[20]  Furthermore, the open-ended timeframe of the JARPA II program along with the lack of scientific contribution or output and lack of cooperation with other related scientific projects did not give the impression of a legitimate scientific research program.[21]

For the foregoing reasons, the ICJ found, in a 12-4 decision, that even though the activities of the program could generally be deemed as scientific research, the evidence demonstrated that the design and implementation of the program were not reasonable to meet the stated objectives of JARPA II.[22]  What does this mean for Japan?  The activities associated with JARPA II are not being conducted for the purposes of scientific research, and therefore, the exception permitted within Article VIII, paragraph 1, of the ICRW, does not apply to Japan’s program.[23]  Because Japan’s activities cannot legally be characterized as scientific research, Japan is in breach of paragraph 10(e), 10(d), and 7(b) of the Schedule of the ICRW.[24]  As such, the ICJ ordered Japan to revoke all permits issued under JARPA II and to refrain from granting any more. [25]

The ICJ seemed to be extremely cautious to avoid delving into the intricacies of scientific explanation and reasoning.  The Court believed, as they echoed in their judgment, that they can reach a decision through objective reasoning regarding whether the design and implementation of the program in question were reasonable in light of the program’s objectives, without conducting a scientific analysis of the activities, methods, or policy themselves.  Leaving science to scientists seemed to be the goal of the ICJ in this case—and that was probably a wise decision.  Having the history of the JARPA program certainly assisted the Court in its analysis of the reasonableness of JARPA II’s methods.  However, because the Court did not rely solely on the comparison between the two programs in their analysis of whether the methods were reasonable to the objectives, I believe that the standard of review articulated by the ICJ in Whaling in the Antarctic will still be applicable to future situations and cases where the program potentially in question is the first of its kind for that country—meaning that there would be no historical program perspective.  I am of the opinion that the ICJ got the analysis correct.  Taking all of the evidence together, Japan’s design and implementation of JARPA II combined with the lethal sampling were not reasonable in achieving the program’s stated objectives.  I believe that Japan was utilizing Article VIII, paragraph 1, of the ICRW as a loophole to the moratorium on commercial whaling, to which they originally objected but then withdrew.

Whether or not Japan will adhere to the ICJ ruling is a question that will be answered in the coming years.  The ICJ and the international community anticipate Japan’s adherence to the decision.  Japan has halted their whaling plans for the upcoming 2014-2015 season.[26]  However, there are already reports of plans to head back to the Antarctic to conduct whaling activities following the 2014-2015 season.[27]

 

Jillian Bokey is a CICL Fellow for 2013/2014 and is a fourth-year, part-time evening student at the University of Baltimore School of Law. She is a graduate of the Pennsylvania State University where she received a B.S. in Business Management with a minor in the Legal Environment of Business. Jillian is the Managing Editor for the University of Baltimore Journal of International Law. While in law school, she was Director of Client Employee Relations at Tidewater Property Management, Inc. However, she has now begun her transition into a legal career, accepting a position as a law clerk at a firm in Annapolis as of January 2014. For Jillian, studying international law is interesting because it applies across different areas of practice. She is also interested in how various countries view and interpret international law and how that affects the progression of international law.

[1] Whaling in the Antarctic (Austl. v. Japan:  NZ intervening), Application Instituting Proceedings [hereinafter Application] (May 31, 2010), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=0.

[2] Id.

[3] Id.

[4] Id.; International Convention for the Regulation of Whaling [hereinafter ICRW], art. VIII, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72; ICRW, Schedule, ¶¶ 7(b), 10(e), 10(d).

[5] Application, supra note 1.

[6] Id.

[7] Whaling in the Antarctic (Austl. v. Japan:  NZ intervening), Summary of the Judgment of 31 March 2014, 4 (Mar. 31, 2014), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=5

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 5.

[12] Id. at 6.

[13] Id. at 6-7.

[14] Id.

[15] Id. at 7.

[16] Id. at 8.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id. at 8-9.

[22] Id. at 9.

[23] Id.

[24] Id. at 9-10.  Note that they are in breach of paragraph 7(b) only as to the taking of fin whales and not to Antarctic minke whales since Japan objected to this paragraph at the time it was created.  Id.

[25] Id. at 10.

[26] See Japan Cancels Next Antarctic Whaling Hunt after ICJ Ruling, Global Times (Apr. 3, 2014, 11:38pm), http://www.globaltimes.cn/content/852633.shtml.

[27] See Andrew Darby, Japanese Whalers Plan New Antarctic Hunt, sydney morning herald (Apr. 12, 2014, 1:56pm), http://www.smh.com.au/environment/japanese-whalers-plan-new-antarctic-hunt-20140412-36jnf.html; See Japan Cancels Next Antarctic Whaling Hunt after ICJ Ruling, Global Times (Apr. 3, 2014, 11:38pm), http://www.globaltimes.cn/content/852633.shtml.