Journal of Conflict and Security Law - current issue

Editorial

White, N. — Sat, 08 Aug 2009 22:11:14 PDT

The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study

Barber, R. — Sat, 08 Aug 2009 22:11:14 PDT

Cyclone Nargis struck Myanmar on 2 and 3 May 2008, devastating the Irrawaddy Delta, affecting 2.4 million people and leaving an estimated 130,000 people dead or missing. In the weeks following the disaster, in the face of enormous humanitarian needs, the government of Myanmar imposed significant restrictions on the delivery of humanitarian aid. The restrictions imposed, and the frustration felt by the international community, led to intense debate regarding the potential application of the ‘responsibility to protect’, and to suggestions that the legal doctrine could be invoked to justify military intervention for the purpose of delivering humanitarian aid to the survivors of the cyclone.

Using Cyclone Nargis as a case study, this article examines the meaning of ‘responsibility to protect’ in the aftermath of natural disaster. The status of humanitarian intervention and the ‘responsibility to protect’ in customary international law is discussed, followed by a consideration of whether the ‘responsibility to protect’ could have been invoked in the aftermath of Cyclone Nargis as a justification for military intervention. This article concludes that while the restrictions imposed by the government of Myanmar fell short of what would be required to justify military intervention, it is possible to envisage situations where, in the aftermath of natural disaster, a government's refusal to allow access to survivors might be so complete, and the humanitarian needs so immense, that the use of force may be warranted.

Darfur Symposium: An Introduction

Sedman, D. — Sat, 08 Aug 2009 22:11:14 PDT

Darfur and Humanitarian Law: The Protection of Civilians and Civilian Objects

Yihdego, Z. — Sat, 08 Aug 2009 22:11:14 PDT

The Darfur armed conflict, which is still ongoing between Sudanese armed forces, their affiliated militia and various rebels (some of whom receive external support), has inflicted unspeakable consequences upon civilians, their villages, towns, homes and other civilian objects—in particular relief assistance. The international community, including Sudan, has made, and is still making, albeit slowly, various efforts to secure peace and to stop violations of humanitarian principles in Darfur, including the controversial referral of some criminal cases to the ICC (which led to the indictment of the president of Sudan and the first head of state to be so) and the deployment of peacekeepers/enforcers which constitute the main features of the responses. Scholarly focus has been on the criminal side of the issue. This article deals with international humanitarian law (IHL) rules relating to the protection of civilians and civilian objects in the conflict. It examines the nature of the conflict, the applicable rules and compliance with those rules and the weakness and strengths, if any, of the responses of the international community in providing physical protection to civilians and their objects. It is argued that while the primary responsibility to stop violating civilian immunity rests on the warring parties there, and the regional approach to prevent widespread IHL violations in Darfur may have some obvious advantages, the erga omnes nature of the concerns at issue necessitates a concerted, adequate and timely global action to prevent further atrocities on the ground. The paper concludes with some suggestions which may help further prevent/mitigate armed violence against civilians.

The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court

Williams, S., Sherif, L. — Sat, 08 Aug 2009 22:11:14 PDT

In March 2009, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) authorized the issue of an arrest warrant in respect of President al-Bashir of Sudan in relation to the alleged atrocities committed in Darfur. The request for the arrest warrant raised the issue of whether a serving head of state may rely upon immunity under international law to shield themselves from proceedings before international criminal tribunals. The decision was the first occasion on which the question of state immunity has been raised before the ICC and the first time an international criminal tribunal has considered the issue in respect of an incumbent head of state. This article will first consider the current status of head of state immunity in customary international law. It will then assess the applicability of the immunity of heads of state or government before international criminal tribunals, in particular the ICC, before examining the decision of the PTC as to whether the immunity enjoyed by President Bashir precluded proceedings before the ICC. Finally, the article will discuss the obligation of states, including Sudan, to comply with the Court's request for cooperation in the execution of the arrest warrant.

The United Nations and the African Union: Assessing a Partnership for Peace in Darfur

Barnidge, R. P. — Sat, 08 Aug 2009 22:11:14 PDT

In Resolution 1556, the Security Council, with the conflict in Darfur clearly in mind, determined that the ‘situation in Sudan constitutes a threat to international peace and security and to stability in the region’. This article focuses on the response by the United Nations, in particular the Security Council, and the African Union to the Darfur conflict. It begins by exploring the role of peacekeeping operations and regional arrangements or agencies in the overarching architecture of international peace and security. Having laid this frame of reference, it then looks at the modalities of peacekeeping in Darfur. These operations began with the African Union acting in isolation but have transitioned to an increasingly important role being played by the United Nations and a hybrid peacekeeping presence. Finally, this article asks whether, assuming that a legally dispositive conclusion can be drawn that genocide has taken place in Darfur since the outbreak of hostilities there in 2003, there exists a legal justification, or even obligation, for non-compliance by states with the sanctions regime established by Security Council Resolutions 1556 and 1591. This regime of sanctions has played an important part in the Security Council's approach to Darfur but has been, unfortunately, left largely unexamined from the standpoint of international legality.

Resurrecting Siyar through Fatwas? (Re) Constructing 'Islamic International Law' in a Post-(Iraq) Invasion World

Ali, S. S. — Sat, 08 Aug 2009 22:11:14 PDT

This article seeks to explore the impact of the Iraq war on Siyar or ‘Islamic international law’ from a range of Muslim perspectives by raising some critical questions and addressing these through the lens of a selection of Fatwas solicited by Muslims from a range of countries and continents, on the Iraq war and its implications for popular understandings of Siyar and Jihad. This article suggests that the Iraq war presents an opportunity to revisit and potentially revive historical Siyar pronouncements of a dichotomous world, i.e. dar-al-harb and dar-al-Islam. I argue that in so doing, this discourse has invigorated the notions of a universal Ummah within the normative framework of Siyar hitherto marginalized by ascendancy of the nation state, international organizations and contemporary Muslim state practice. Finally, I argue that a wider Internet access to Muslim communities in the global South has facilitated a modified institution of ifta to reflect popular understandings of Siyar and Jihad and influence its reformulation in the backdrop of the Iraq war.

Efficiency and Accountability in War Powers Reform

Jenkins, D. — Sat, 08 Aug 2009 22:11:14 PDT

This article examines the UK government's Draft Detailed War Powers Resolution, recently put forward in its White Paper on the Constitutional Renewal Bill. Responding to calls for reform of the Crown's war prerogative, the Government has rejected primary legislation that would require parliamentary approval for its war-making decisions. Instead, the proposed resolution would preserve the prerogative, while purporting to give Parliament a greater consultative role. In critically assessing that proposal, this commentary takes a comparative look at how the US Constitution divides war powers between the President and Congress. Different interpretative schools in that country suggest that the structural distribution of war powers ultimately reflects competing preferences between values of operational efficiency and democratic accountability. Judged by these values, the British government's proposed resolution is seriously flawed. It heavily favours the executive branch by giving the Prime Minister the initial decision to seek authorization, allowing him or her excessive discretion in making exceptions, and offering little possibility for Parliament to make and enforce limitations on the government. Accordingly, the proposed resolution might actually undermine democratic accountability, by allowing the government to shield its prerogative decisions in future with a shallow and meaningless veneer of parliamentary approval. Any serious attempt to enhance the democratic accountability of executive war-making decisions must therefore address a more fundamental constitutional problem—the strict party system that allows ministers to control a parliamentary majority and prevent meaningful, independent legislative scrutiny of government war policy.

Dieter Fleck (ed.), The Handbook of International Humanitarian Law

Gazzini, T. — Sat, 08 Aug 2009 22:11:14 PDT