Tag Archives: international law

US Supreme Court Rejects Blackwater Appeal – What does this mean for the accountability of Private Military Firms?

There are serious legal and human rights concerns about private military companies providing “security services” in conflict areas. Where the strict hierarchical discipline of the military is avoided, you may wonder who these companies are accountable to.

The recent Supreme Court decision regarding Blackwater Worldwide the US private security firm that operated in Iraq has left the door open to the possibility of holding these private firms accountable for unlawful violence in war zones.

On September 16, 2007 heavy gunfire erupted at the busy Nisour Square junction, killing at least 14 civilians including a 9 year old boy and leaving dozens injured. The shots were fired from a convoy of four armoured vehicles manned by Blackwater guards, who maintain that they were acting in self-defence after being shot at by insurgents.

Witnesses claim that the contractors were never in any danger and shot at civilians mercilessly and unprovoked. The chief prosecutor Kenneth Kohl disclosed that other Blackwater guards who had been on the convoy involved in the Nisour Square shootings reported the incident to Blackwater management, one guard describing it as “murder in cold blood“. However it appears that the  management failed to report these statements to the State Department.

The case had previously been thrown out by federal judge Ricardo Urbina on December 31, 2009 who cited misuse of statements made by the defendants by investigators.  The state department had ordered the guards to explain the details of the incident to investigators under the threat of losing their jobs. Their lawyer argued that using these statements to charge the four men amounted to a violation of their  constitutional right against self-incrimination and were made under duress.

However the charges were reinstated in April 2011 when a federal appeals court reopened the case and ordered the review of evidence against each individual defendant. The US Supreme Court refused to dismiss the manslaughter and weapons charges against the four defendants Paul Slough, Evan Liberty, Dustin Heard and Donald Ball and has declined to comment.

This is a small victory in holding private firms accountable for their actions in war zones. The privatisation of war and the use of private military firms is becoming increasingly prevalent and raises serious concerns over accountability. While this is not an isolated incident and it is likely that many unlawful actions by such contractors can go unnoticed due to the nature of their work, it provides a step towards creating a framework in which these companies could be held responsible for their actions.

Due to the transnational nature of many private military firms it is increasingly difficult to hold these companies responsible for the actions of their employees. The fact that these firms work in states in which the government has collapsed or is unable to enforce the necessary laws due to the condition of the state the operations of these firms often go unnoticed even if they are largely acting outside of the law.

Blackwater later changed their name to Xe Services, and after being unable to shake their bad reputation decided on a further name change now calling themselves Academi.

Children In A Legal Vacuum: International Child Abduction

Many of us take on work or studies in a foreign country, and some of us end up having a family with someone of a different nationality. All great for international understanding? Well usually. But if the relationship breaks down, this type of globally mobile lifestyle brings new challenges for the family courts. Where do you file for a divorce? What about custody and visitation? What if the custody battle turns acrimonious?

With the increase in transnational marriages, international parental child abduction has become a serious problem that affects both individual states and the international community.  Parents who feel unfairly treated by the family courts may  “forum shop” taking the kids into a new legal jurisdiction that will be more likely to rule in their favour, thus sparking a re-run of their custody case. The Hague Convention on International Child Abduction is designed specifically to prevent this border-hopping between nations; signatory countries agree to accept decisions already made in another jurisdiction and to promptly return abducted children to their place of habitual residence.

The UN Convention on the Rights of the Child also obliges states to ensure that national borders are not used to prevent children from having contact with their family. Signatory states commit to ensuring the continuity of a child’s life when a substantial part of it resides in another country.

Yet it is one thing to accept that is in the child’s best interests to maintain contact with their family and promptly return home; it is another to actually carry this out.

While international legal conventions are designed to regulate cross-border disputes and harmonise legal proceedings, these are not always enforced with appropriate urgency and are frequently evaded or blatantly disregarded. Although parental abduction has been defined as amounting to child abuse, the rights of the child are sadly often ignored in international abduction cases, with nationalistic posturing taking precedence.

Families living abroad are away from the steadying influences of friends and extended family, and may also slip through society’s safety nets of schools, doctors, social workers and counsellors. Who is going to follow up on a family that has moved abroad? Who will bother to find out the background of a family newly arrived in a country? If you don’t speak the language, how can you seek advice and counselling? National laws governing family issues must be adapted to the changing international culture and to reflect the ease of international travel and the transnational nature of many modern families.

US-Italy-Russia

The recent case of the Grin/McIlwrath children highlights the numerous failings of the Russian authorities to work together with their Italian counterparts to protect the children involved. Grin, a Russian-born US citizen who was living in Italy, abducted her four children from their American custodial father in Florence. She travelled to Russia with the children despite Italian court rulings which removed her custody rights and indicated that the children were at risk if they remained with her. Her children have since been placed in Chabad-Lubavitch institutes/orphanages in St Petersburg at her request “for their own safety”.

The plight of the children, who are fluent in both English and Italian, has not even been acknowledged by the Russian authorities. It appears that the obligation of the state to ensure their safety and well being, and contact with their family and friends in Italy in the US, has been completely overlooked since they have been moved into a new jurisdiction, despite the fact that Italy, the US and Russia are all signatories to the Hague Convention.

Russian authorities have similarly done nothing to end the children’s isolation from family and friends, nor ensured they are safe from the risks identified in the Italian court proceedings.

Canada-Poland

In a parallel case two Canadian boys, Alexander and Christopher Watkins, were abducted by their Polish mother after her custody was revoked due to child-neglect. The boys were taken via the US and into Germany where the trail went cold. The Canadian authorities voiced serious concerns about the safety of the children and the ability of the mother to care for them, an Interpol red notice was issued and the mother was put on Canada’s most wanted list. When the children were finally located in Poland, the father immediately applied to have the boys returned home. At the December hearing in Poland the judge ruled that the children are now settled in Poland and should not be returned to Canada. This is despite the boys’ school in Poland independently suing the mother for child neglect. The appeal will be heard on May 16th 2012.

Leaving the children in the care of a demonstrably neglectful and potentially abusive parent is a clear breach of the Convention on the Rights of the Child. Refusing to return the children to the custodial parent is a violation of the Hague Convention. That Poland as an EU member state is not being held accountable for the misapplication of these laws and agreements as well as blatantly ignoring Interpol red and yellow notices raises concerns for the quality of European law.

Although both cases have a non European element they both involve EU borders. The issues of cross-border problems arising from divorce or family problems should be tackled more effectively within the EU. While there is often talk of the unification of laws in the EU there is a clear lack of co-operation when it comes to family law. In a region in which members of EU states can move freely between and within numerous jurisdictions the legal tools must exist to deal with the resulting problems of this freedom of movement.

It’s not clear why the Hague Convention is largely ignored in many states, possibly it is percieved by the national judiciary as meddling from outside, maybe it’s just a sign of the general distrust of and reluctance to co-operate with another country’s legal systems, or it could just be plain nationalism: siding with the parent of the same nationality.

If the unification of laws in the corporate sector is moving ahead, why are the laws governing our private lives being left behind? The creation of networks such as Interpol, Europol and various UN initiatives have offered little assistance in addressing problems arising from transnational familial relationships, especially those involving children. While numerous national and international legal measures have been created to uphold the rights of the child, their application has been limited. The enforcement of existing laws and international agreements has not been enough to protect children from the dangers of international child abduction.

Immediate action is essential in cases of child abduction because of the age and vulnerability of the children compounded by the volatility of a parent who is putting their own child through the trauma of abduction. Yet both Poland and Russia have failed to act on these cases, posing a serious risk to the children involved. The person posing the greatest danger to an abducted child is the abductor.

This article is also available on the Huffington Post.

Amnesty and Human Rights – Is Forgetting Justifiable?

The case of Baltasar Garzón has started a debate not only regarding judicial activism and the role of judges, but also around the recognition of amnesty for alleged war criminals.

Baltasar Garzón, a magistrate in Spain’s national court, was previously responsible for the arrest and attempted extradition of Chilean ex dictator and war criminal, Augusto Pinochet, from London in 1998. The British courts agreed due to the nature of the case, which related to the alleged torture of Spanish citizens under Pinochet, that the public international law principle of universal jurisdiction could be applied. However, the then home secretary, Jack Straw, turned down the extradition application on health grounds, due to the former dictator’s age and illness. Despite this, the arrest of General Pinochet encouraged the Chilean judicial system to prosecute past abuses.

Garzón was recently suspended after opening a formal court investigation into human rights abuses committed by Spain’s former dictatorship. He was seeking to investigate the deaths of 114,000 opponents of the Franco regime between 1936 and 1975. Garzón is now facing charges for abuse of power in his trial that opened in the Supreme Court in Madrid yesterday.

Baltasar Garzón

His judicial activism has been widely criticised and condemned by other judges, who claim he is harming the legitimacy of the judicial system. He has also been accused, by both high profile opponents and the media, of vanity and being motivated by his own interests. Nevertheless, Garzón maintains that opening the investigation was based on the same principles used to order the arrest of Chile’s Augusto Pinochet.

In 1977, during the transition to a democratic system in Spain, an amnesty was put in place to cover all crimes of a “political nature” committed during the regime. Mr Garzón argued that the amnesty law does not apply to crimes against humanity and that he was applying the same principles to the Franco regime as to that of Pinochet. However, a Supreme Court judge stated that his actions amounted to a breach of his duties as a judge and that his arguments had no basis under international law.

Under international law, the criminal prosecution of individuals responsible for human rights abuses is an essential part of a victim’s right to justice. The granting of an amnesty is not uncommon in certain situations following conflict; where violations of international humanitarian law have occurred on a massive scale, often involving a large section of the population. However, there is also a need to balance the victim’s rights to justice with the need of the State to promote reconciliation in dealing with past atrocities without provoking further conflict. Where States like Spain have enacted amnesties in periods of transition, it’s necessary to consider whether such amnesties should be recognised internationally.

So the question arises, should international principles apply to a (domestic or international) court’s decision on whether to recognise amnesties covering war crimes? When there is a threat to peace, there may be need for an amnesty, and other accountability measures, to deal with those responsible. This would of course not be the case in Spain, which almost half a century after the death of Francisco Franco, is a stable and democratic country.

It appears that the basis for trying Baltasar Garzón is not in fact relating to a  breach of the 1977 amnesty law, but rather a fear of his judicial activism.  Spanish courts have been criticised for trying to bury the past, failing to investigate or seek accountability for atrocities committed during the Franco regime, and during the Spanish Civil War. Why is there such a reluctance to address the crimes of the past? In 2009, the European Court of Human Rights held that an amnesty law is generally incompatible with the duty of a state to investigate acts of torture or barbarity.

Why has Garzón’s role in seeking to investigate human rights abuses landed him on trial? It appears that the judiciary does not want to recognise its role in examining the validity and relevance of this law. Its decision to criminalise questions regarding the regime seems both disproportionate and confused. Rather than trying Garzón for his actions as an individual, the judicary could be working together as a body to take an investigative role, and come to terms with its violent history dating back to the Spanish civil war.

Here is a short clip about Baltasar Garzón on the Guardian website.