Opinio Juris » 2006

“Even in this era of global interdependence, it is clear that no economic, social, or political project can replace that gift of self to another through which charity is expressed. Those who act according to the logic of the Gospel live the faith as friendship with God Incarnate and, like Him, bear the burden of the material and spiritual needs of their neighbours…. [M]any forms of charitable work intended to promote development have arisen in the Church: hospitals, universities, professional formation schools, and small businesses. Such initiatives demonstrate the genuine humanitarian concern of those moved by the Gospel message, far in advance of other forms of social welfare. These charitable activities point out the way to achieve a globalization that is focused upon the true good of mankind and, hence, the path towards authentic peace. … [T]he Church today considers it her duty to ask political leaders and those with economic and financial power to promote development based on respect for the dignity of every man and woman. An important litmus test for the success of their efforts is religious liberty, understood not simply as the freedom to proclaim and celebrate Christ, but also the opportunity to contribute to the building of a world enlivened by charity. These efforts have to include a recognition of the central role of authentic religious values in responding to man’s deepest concerns, and in supplying the ethical motivation for his personal and social responsibilities. These are the criteria by which Christians should assess the political programmes of their leaders.”

March 1st, 2006 - 8:32 PM EDT | 3 Comments »

http://opiniojuris.org/2006/03/01/popes-ash-wednesday-message-focuses-on-world-poverty/

Journalists and Self-Defense in Iraq

by Kevin Jon Heller

In the wake of the murder of al-Arabiya correspondent Atwar Bahjat and two of her colleagues, a journalist asked President Jalal Talabani to permit journalists working in Iraq to carry weapons in self-defense. “Send me an official request and I will approve it and inform concerned agencies to give you the right to carry arms,” President Talabani replied.

The exchange prompted an immediate response from the International News Safety Institute, which urged journalists in Iraq to resist the urge to arm themselves. INSI believes that armed journalists would be less safe, not more:

“Journalists increasingly are being targeted in conflict largely because they have lost, in the eyes of certain elements, their status as neutral observers, INSI Director Rodney Pinder said. “If they bear arms they reinforce this misguided belief by placing themselves on one side or another. A journalist with a gun says some people in the situation I’m covering are my enemies and I am prepared to kill them if necessary. That is not the position of a neutral civilian.”
Pinder also said that armed journalists would lose even the protection–”flimsy though it is”–afforded civilians in war by the Geneva Conventions. INSI said the 1977 Additional Protocol to the conventions demands that working journalists in conflict areas must be considered civilians, “provided they take no action adversely affecting their status as civilians.”

“INSI and other organizations concerned with the safety of journalists in conflict believe that the bearing of arms would amount to that action,” the group said.

Although it’s easy to understand why in Iraq would want to carry arms in self-defense — after all, 104 journalists and support staff have been killed there since the war began, the greatest media toll in modern times — INSI’s position seems pragmatically sound. Still, I question whether journalists would, in fact, forfeit the protection of the Geneva Conventions by carrying weapons, particularly if they only carried small arms and kept them concealed. Article 79 of Protocol I specifically provides that

[j]ournalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians… and shall be protected as such under the Conventions and this Protocol, provided that they take no action adversely affecting their status as civilians.

The question, then, is whether a civilian who carries a weapon in self-defense would be taking an “action adversely affecting their status as civilians.” The answer appears to be “no.” Under Article 13 of Protocol II, which elaborates and strengthens common Article 3’s basic rules, “[c]ivilians shall enjoy the protection afford by this Part, unless and for such time as they take a direct part in hostilities.” Carrying a weapon in self-defense would not qualify as taking a “direct part” in hostilities. As the Inter-American Commission on Human Rights has pointed out:

It is generally understood in humanitarian law that the phrase “direct participation in hostilities” means acts which, by their nature or purpose, are intended to cause actual harm to enemy personnel and material. Such participation also suggests a “direct causal relationship between the activity engaged in and harm done to the enemy at the time and place where the activity takes place.”

This interpretation of common Article 3 and Protocol II is supported by Protocol I’s treatment of individuals engaged in civil defense — humanitarian tasks (medical treatment, firefighting, etc.) designed to protect civilians against the effects of hostilities. Article 65 of Protocol I specifically provides:

It shall also not be considered as an act harmful to the enemy that civilian defence personnel bear light individual weapons for the purpose of maintaining order or for self-defence. However, in areas where land fighting it taking place or is likely to take place, the Parties to the conflict shall undertake the appropriate measures to limit these weapons to handguns, such as pistols or revolvers, in order to assist in distinguishing between civil defence personnel and combatants. Although civil defence personnel bear other light individual weapons in such areas, they shall nevertheless be respected and protected as soon as they have been recognized as such.

Moreover, even if a journalist crossed the line between self-defense and acts harmful to the enemy, they would still not be subject to immediate attack by Iraqi insurgents or the military (Iraqi or US). According to paragraph 1 of Article 65:

The protection to which civilian civil defence organizations, their personnel, buildings, shelters and materiel are entitled shall not cease unless they commit or are used to commit, outside their proper tasks, acts harmful to the enemy. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.

Again, I am not suggesting that journalists in Iraq arm themselves. I much prefer the approach taken by Reporters Without Borders, which lends bulletproof jackets marked “PRESS” to freelance journalists working in war zones. But I don’t believe that a journalist who carried a concealed handgun would forfeit her Geneva Convention protections — even if she was forced to use it.

Comments by readers with greater expertise in the Conventions would be most appreciated.

March 1st, 2006 - 9:48 AM EDT | 1 Comment »

http://opiniojuris.org/2006/03/01/journalists-and-self-defense-in-iraq/

Sarah Cleveland and "Our International Constitution"

by Roger Alford

Sarah Cleveland has just published a very significant article in the Yale Journal of International Law entitled “Our International Constitution.” Cleveland is a great writer and her article is a pleasure to read, even though I sharply differ with her on the appropriateness of using international law to interpret constitutional guarantees (see my articles here, here and here).

Cleveland is an evolving constitutionalist and a strong proponent of the use of international law in constitutional interpretation. She offers a cornucopia of evidence of its historical use. She distinguishes between express references to international law (as with the treaty power or the war power), identifies subjects in which international law provides background principles (such as territoriality and sovereignty), and then highlights instances of its use in protecting or curtailing individual rights.

After canvassing the historical record her conclusions are that there is a longstanding tradition of resorting to international law, that the Court has treated that law as evolving, and sometimes it has even considered international law to be binding. She also recognizes that reference to international law has been opportunistic and has frequently resulted in the expansion of government power and the curtailment of individual rights.

But what really distinguishes Cleveland’s article is her attempt to impose principled limits on the use of international law. She proposes guidelines for its use, including (1) the constitutional receptiveness to the international rule, (2) the universality of the international norm, (3) acceptance of the international rule by the United States, and (4) embracing international law limits that accompany international powers.

The article is interesting in that applying her principled approach, Cleveland offers only the faintest of praise for Roper and Lawrence. She describes Lawrence as raising “thorny questions regarding selectivity and cultural relevance.” She could have gone further and simply stated that Lawrence does not comport with the universality principle. Instead she argues that Lawrence is consistent with a longstanding jurisprudential traditional of looking to Western European practices. But then when she turns to abortion she seems to more strictly enforce the rule of universality, and suggests a requirement of an international consensus, which she contends is lacking. Of course, you could make the counter-argument that there is no international consensus in favor of the practice at issue in Lawrence but there is a Western European consensus against the practice at issue in Roe.

As for Roper, Cleveland says that the U.S. failure to sign or ratify the U.N. Convention on the Rights of the Child was a “mixed factor” and that the ICCPR reservation on juvenile death penalty expressed a clear intent not to be bound by that treaty provision. She nonetheless argues that the United States is not a consistent objector of a customary international norm against juvenile death penalty. But by importing customary international and requiring the United States to be a consistent objector, she has essentially flipped the Eighth Amendment test — which traditionally requires a national consensus that a practice has become cruel and unusual — to a requirement of a national consensus to reject an international norm. She could have placed far greater emphasis on the U.S. reservation in the ICCPR, which guaranteed the right of the States to continue with the status quo, as underscoring that the United States has not accepted this norm. She could have just conceded that the United States has not accepted this international norm and that Roper did not represent a principled approach to the use of international law.

Whether you agree or disagree with Cleveland’s article, you cannot ignore its importance. I seriously question the notion that an evolving Constitution should float with the shifting currents of international values. And I would have preferred a stronger application of her principles to Roper and Lawrence. But as a proponent of the practice, Cleveland deserves great credit for her bounded rationality in the use of international law to interpret our Constitution.

March 1st, 2006 - 8:23 AM EDT | 1 Comment »

http://opiniojuris.org/2006/03/01/sarah-cleveland-and-our-international-constitution/

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