Shifting Paradigms in the Law of International Peace and Security. (Seminar on Foreign Language Competence; 7 I Nr. 3 i.v.m. 9 I Nr.

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1 UNIVERSITÄT ZU KÖLN Rechtswissenschaftliche Fakultät Institut für Strafrecht und Strafprozessrecht Lehrstuhl für Strafrecht, Strafprozessrecht, Europäisches Strafrecht und Völkerstrafrecht Prof. Dr. Claus Kreß LL.M. (Cambridge) Leena Grover B.A. (Hons.), LL.B Albertus-Magnus-Platz D Köln Tel.: +49 (0) Fax: +49 (0) Shifting Paradigms in the Law of International Peace and Security (Seminar on Foreign Language Competence; 7 I Nr. 3 i.v.m. 9 I Nr. 4 JAG NW) Winter 2007/08 Leena Grover, B.A. (Hons.), LL.B. in consultation with Prof. Claus Kreß Do States have a duty to protect citizens of another State against grave human rights abuses? Is terrorism an act of war? Is military pre-emption legal? A number of current political realities have forced debates on the true scope of the law of international peace and security and the adjacent areas of international human rights law and international criminal law. Legal concepts once thought to be well-established are being re-examined in striking and profound ways. In this course, students will be introduced to leading controversies, and given the legal tools to critically examine them. We will carefully look at legal responses that have so far been provided to these debates, and ask whether it is best to depart from or remain faithful to existing legal paradigms. This course will take the form of a seminar and will admit a small number of students. Undergraduate and graduate students are welcome to join the seminar. At a first meeting, the time of which will be announced on the homepage in due course, a regular time for the seminar will be agreed upon taking into account students preferences. The goal is to create a comfortable environment in which students can practice their English language skills. Participation in the discussion is required and weekly readings will be assigned. There is no written requirement. Students who successfully complete the course will receive a certificate for completing a course in a foreign language. In the first class, students will be invited to choose five topics that most interest them from the list below. These topics will form the basis of the course. Please note that students will not be required to read all of the key materials listed under each topic. Instead, short excerpts will be assigned. Part One Accountability under International Law A. Introduction to the Course and to the Concepts of Individual and State Responsibility B. States Both States and individuals can be held responsible for wrongful acts under international law. Since the end of the Second World War, the world community has focused on bringing Internet: claus.kress@uni-koeln.de

2 - 2 - individuals to justice. Recently, however, questions of State accountability have resurfaced. The International Court of Justice (ICJ) has had to determine the legality of Israel building a wall in the Occupied Territories, and Serbia s role in the mass atrocities that occurred in Srebrenica. We will read key excerpts from the ICJ s landmark Genocide decision to determine the legal ingredients of State responsibility (e.g. attribution test). Key Material: Genocide Case, ICJ, 2007 Part Two Legitimate Uses of Force A. Self-Defence The Charter of the United Nations recognizes that its members have an inherent individual and collective right to self-defence against an armed attack. The response to such an attack must be necessary, and proportionate. But what are the outer limits of this right? Was the U.S. invasion of Afghanistan an act of self-defence in response to the terror attacks of 11 September 2001? If not, does the right to self-defence need to be broadened to meet the threat of transnational terrorism? Congo v. Uganda, ICJ, 2005 Caroline Case, 1837 The National Security Strategy of the United States of America, September 2002 William Lietzau, Old Wars, New Wars: Jus ad Bellum in an Age of Terrorism, Max Planck UNYB 8 (2004) at 383 B. Responsibility to Protect The Charter of the United Nations prohibits the use of force by its members. The traditional view is that the only exceptions to this are self-defence and enforcement actions authorized by the Security Council. In 1999 and 2000, however, then Secretary-General Kofi Annan posed the following question: if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica to gross and systematic violations of human rights that affect every precept of our common humanity? In December 2001, a report titled, The Responsibility to Protect was issued by the International Commission on Intervention and State Sovereignty (ICISS), a body formed to assist the UN General Assembly with responding to this stark question. This report forms the core of an emerging responsibility to protect. This report led States at the 2005 World Summit to affirm the existence of this responsibility, which was followed the same year by a report from the UN Secretary-General titled, In larger freedom: towards development, security and human rights for all. On 2 August 2007, the UN Security Council for the first time invoked the responsibility to protect in its resolution to send 26,000 troops to Sudan to protect the civilian population in Darfur. We will examine the legal underpinnings of this obligation to protect and ask ourselves

3 - 3 - whether it is a viable legal concept with merit or, as some have suggested, imperialism in disguise. Security Council Resolution 1769 on Sudan (August 2, 2007) World Summit 2005 Outcome Document ICISS, Report: The Responsibility to Protect (December 2001) Christopher J. Greenwood, Humanitarian Intervention: The Case of Kosovo, 10 Finnish Year Book of International (2000), Carsten Stahn, Responsibility to Protect: political Rhetoric or Emerging Legal Norm?, 101 American Journal International Law (2007), C. Aggression Waging a war of aggression has been described as the supreme international crime. But the International Criminal Court will not be able to try leaders of countries and others for this crime until the international community can agree on a definition for it. Almost 100 years after this effort began, history is about to be made. In December, 2007, States will meet in New York to begin to finalize the definition of aggression. The biggest question is whether the Security Council should have the exclusive power to refer cases of aggression to the International Criminal Court. We will look at the crime of aggression and try to understand the main controversies that continue to divide States. Key Material: Niels Blokker, The Crime of Aggression and the UN Security Council, 19 Leiden Journal of International Law (2007) (forthcoming) Part Three Terrorism Acts of transnational terrorism have forced a number of legal questions to be raised. One of the most fundamental questions is whether terrorism is an act of war or just an ordinary crime. In asking ourselves whether the law of war or the law of peace is best able to respond to terrorism, we will examine these bodies of law, as well as the law governing Guantanamo Bay detainees. We will ask ourselves what the benefits and shortcomings are of these models. Do we need a new legal regime for dealing with terrorist offences? A. Law of War U.N. Definitions of Terrorism, e.g. General Assembly Resolution 49/60 (9 December 1994) The National Security Strategy of the United States of America, September 2002 William Lietzau, Combating Terrorism: The Consequences of Moving from Law Enforcement to War, New Wars, New Laws? Applying the Laws of War in 21 st Century Conflicts, D. Wippman and M. Evangelista Eds. (New York: Transnational Publishers, 2005) ICC Statute

4 - 4 - B. Law of Peace Padilla Case, U.S. Fed. Ct., 2007 A(FC) and others v. Home Secretary, UKHL, 2004 U.K. Control Order Legislation Canadian Criminal Law on Terrorism C. Guantanamo and the alternatives Legislation governing Guantanamo Detainees Key U.S. Supreme Court decisions (e.g. Hamdan) Claus Kreß, Völkerstrafrecht der dritten Generation gegen Transnationale Gewalt Privater?, in: G. Hankel (Hrsg.), Macht und Recht. Völkerrecht und Völkerstrafrecht zu Beginn des 21. Jahrhunderts (Hamburg: Hamburger Edition, 2007) (forthcoming) Part Four Peace and Justice A. Transitional Justice The time between the winding down of a conflict and the emergence of a State that achieves enduring peace presents many legal challenges. Should the Prosecutor of the International Criminal Court investigate and prosecute those most responsible for mass human rights atrocities, even if this decision impedes or ends peace talks? Should the Prosecutor recognize national amnesties? Is a theory of transitional justice required to guide key decision-makers and harmonize existing legal concepts? Given the diversity of conflicts, is it unrealistic to attempt to develop general norms? Key materials: Leila Sadat, Exile, Amnesty and International Law, 81 Notre Dame Law Review 3 (2006) at 955 Ruti Teitel, Transitional Justice (Oxford: Oxford University Press, 2000) Case Studies: Uganda, Columbia, South Africa ICC Statute B. Child Soldiers There are more than 300,000 child soldiers in the world. Many are forcibly recruited but many also claim that they enlisted voluntarily. How has and should the international community respond to this phenomenon? We will examine the rights of child soldiers, and the international crime of recruiting child soldiers, with a specific focus on Sierra Leone. In 2007, the Special Court of Sierra Leone handed down two judgements in which individuals were convicted for the crime of recruiting child soldiers. This was the first time that a UN-backed Tribunal convicted

5 - 5 - individuals for this crime. Does the criminalization of the recruitment of child soldiers under international law offend the principle of legality? Key materials: Decision affirming that the recruitment of child soldiers is a crime under international law (SCSL, 2004) (we would also read the dissenting opinion) AFRC Judgement, SCSL (July, 2007) CDF Judgement, SCSL (August, 2007) Convention on the Rights of the Child and the Optional Protocol on the involvement of children in armed conflict Child soldiers and Disarmament, Demobilization, Rehabilitation and Reintegration in West Africa (Côte d Ivoire, Liberia, Sierra Leone, and Guinea), Coalition to Stop the Use of Child Soldiers, December 2006 Part Five Fundamental Freedoms A. Torture The Convention against Torture appears to impose an absolute prohibition against torture. However, current legal and political debates have asked whether torture can ever be justified. In 2007, the European Parliament issued and adopted its report confirming that over 1000 CIAoperated flights used European airspace from 2001 to 2005 and temporary secret detention facilities in Europe. We will examine US legal arguments justifying its practice of flying terror suspects to black sites for interrogation, as well as the European Community s response to this practice. We will also compare two landmark decisions from the Canadian Supreme Court and British House of Lords on the legality, under international law, of deporting a suspected terrorist to a country where he or she may be tortured. If torture remains absolutely prohibited under international law, are certain member states legally responsible for their passivity in the face of these CIA operations? Convention against Torture and Commentary (and a decision like Furunzija suggesting that it is a jus cogens norm) U.S. Torture memos European Parliament s 2007 Report Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 A and others v. Secretary of State for the Home Department, [2004] UKHL 56 B. Religion and Expression The Danish cartoon controversy is one of many that have forced us to ask how the core freedoms of religion and expression can coexist in a democratic society. To begin to answer this question, we will examine recent case law of the European Court of Human Rights to see how it has weighed in on the issue of head scarves worn in school, and texts in the public domain that are critical of certain religions. In addition to examining the scope and limits of the rights to religion and freedom at the international level, we will ask if and how current political factors have influenced the scope and balancing of these rights.

6 - 6 - Resolution 4/9 (Combating defamation of religions), UN Human Rights Council (March, 2007) Human Rights Committee General Comment 22 (1993) The Cairo Declaration of Human Rights in Islam (1990) Organization of the Islamic Conference Sahin v. Turkey, ECHR, 2005 Dahlab v. Switzerland, ECHR, 2001 Giniewski v. France, ECHR, 2006 I.A. v. Turkey, ECHR, 2005