Archivo de la categoría: Política

Denmark: Impressions of a foreigner – Culture (2)

Recently, I decided to visit the museum of Modern Art of the city of Odense, which is the BRANDTS museum. They have free entrance on Thursday evenings. Temporary and permanent exhibitions can be visited. To serve the purpose of this post, I will focus on mentioning the particular curiosities I found in the permanent exhibition. Sigue leyendo

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Colonial Williamsburg, Virginia

The US state of Virginia is full of history and cities that explain the roots of North American History. In this post I am going to introduce you to the city of Williamsburg, a well-kept historical town, about a 3 hours car ride from Washington DC. Sigue leyendo

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Citizens’ debate on space for Europe

espacio

Credits of the picture to Freepik.es

 

Since I can remember and probably influenced by my family, I have developed an interest for space. The most vivid memory of something related to it, were movies.  My favourite ones: Apollo 13, Contact, Gattaca, the Star Wars franchise, The Martian, etc.  Which has contributed to develop an awareness of the opportunities that the outer space can offer. Every now and then I have been looking for ways to be informed and participate in events connected to this world.   Sigue leyendo

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Reflection on the implications that unconventional resources have for the US

The rise of these resources have brought new opportunities to the market. In this post the interest is focused in how the situation is presented for the US. Sigue leyendo

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Reflection on unconventional energy resources

The panorama of the energy market in the past couple of years has become relevant to the least, to draw enough attention and reflect upon it.

Today, unconventional energy resources have become a reality in the energy world. Shale gas and tight oil or the revival of the LNG market are topics oftenly read across numerous media outlets.

This reflection is to review the role of energy as a subject that has influenced actors, not only in the energy world, but globally. As a recurring topic in some of the posts previously published in the blog, energy security serves as the perspective to analyse the issue.

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Summary of my 2015

I am coming back to you before the end of 2015. There are few thoughts I want to share with you about my year.

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Critical Infrastructure Protection (CIP)

Lately, I have had the opportunity to read interesting material of the topic I am about to write. That said and due to the nature of the work I have carried out in the past few months, I came accross with some documents dealing with the notion of Critical Infrastructure Protection (CIP). Bit by bit I will be commenting certain aspects that I find interesting. I am, thereby, creating a series of posts on the topic. Here I begin:

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Kosovo’s Independence, Advisory Opinion, International Court of Justice, 2010

For this time around, I take the chance to analyse a case that remains on trend: self-determination of a nation. I have studied this particular topic for the course of International Law, that I am studying in the masters programme I am pursuing in Denmark.

It is an observation and analysis of some aspects of the Advisory Opinion of the International Court of Justice on the Unilateral Declaration of Indepence of Kosovo.

Brief summary of the case

International Court of Justice, located in The Hague, Netherlands. Credits of the photography to Google Images

On 22 July 2010, the International Court of Justice (hereinafter ICJ) delivered its advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter General Assembly) on the accordance with international law of the unilateral declaration of independence of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, United Nations Security Council Resolution 1244 (1999) (hereinafter resolution 1244) and the Constitutional Framework for Provisional Self-Government.

Resolution 1244 of the Security Council and the Constitutional Framework.

The ICJ refers to this particular mandate by recognizing that resolution 1244 was expressly adopted under Chapter VII of the Charter of the United Nations (UN), so it imposes international legal obligations. It adds that the resolution, which deals specifically with the situation in Kosovo, is part of the applicable law in this case, which was not questioned by any of the States participating in the process[1].

Next, the ICJ examines if the Constitutional Framework also corresponds to the applicable international law or whether, as several participants noted, is an act of domestic law. If deemed domestic law, the question of the compatibility of the declaration of independence would be outside the scope of the question posed by the General Assembly.

Briefly reasoning and certainly not without its critics, the ICJ notes that the regulations from UN Mission in Kosovo (MIK), within which is included the Constitutional Framework, are published by the Special Representative of the Secretary General (hereinafter SRSG) of the UN under the authority conferred by Resolution 1244 and, ultimately, by the Charter of the UN. Thus, the ICJ considers that the binding force of the Constitutional Framework derives from the binding nature of Resolution 1244, that is, International Law, covering, then international legal character itself[2].

Next, the ICJ notes that the Constitutional Framework is part of a special law applicable only in Kosovo and aims to regulate only during the interim phase, issues that usually would be subject to domestic law, not international law[3]. The Court enhances that both Resolution 1244 and the Constitutional Framework were still in force and be applicable on 17 February 2008[4], giving considerable supervisory power to the SRSG on the work of the Provisional Institutions of Self-Government of Kosovo (PISG)[5] and constituting international law applicable to the situation at that time, which must be considered to answer the question posed by the General Assembly in its request for an advisory opinion[6].

Interpretation of the Resolution 1244 of the Security Council

The ICJ must remember various aspects concerning the interpretation of the resolutions of the Security Council of the United Nations, which is considered one of the great contributions of advisory opinion.

In this regard, the ICJ notes that, although relevant appeal to the rules of interpretation of treaties set forth in the Vienna Convention on the Law of Treaties, the differences between Security Council resolutions and treaties require that other factors be taken into account when interpreting the first ones[7].

The resolutions, the ICJ added, are approved by a single collegial body, are drafted following a very different voting procedure that of used for the conclusion of a treaty, in which the opinion of the Security Council is presented as a body and the resolutions can be binding on all Members, regardless of whether or not states have participated in its formulation.

Therefore, the ICJ indicates that the interpretation of the resolutions may require to analyze, among others, statements formulated by the representatives of the members of the Security Council at the time of approval and other resolutions that deal with the same question and the subsequent practice of relevant UN bodies and States affected by those decisions[8].

With regard to Resolution 1244, the ICJ states that it must be interpreted in light of the general principles set out in Annexes 1 and 2, principles that were trying to resolve the crisis in Kosovo ending firstly the violence and repression, in order to establish an interim administration which aimed to long-term implementation of a political process that would finally establish an agreement on an interim political framework providing for a substantial self-government for Kosovo, taking into account the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia (hereinafter FRY)[9].

Republic of Kosovo. Credit of the photography to wikipedia.org

Keeping this in mind, the ICJ recognized a number of features of the Resolution 1244.

First, it notes that the resolution provides an international civil and security presence in Kosovo with full civil and political authority and exclusively responsible for the governance of Kosovo. Thus, estimates that Resolution 1244 and the Constitutional Framework were designed to replace the Serbian legal system and establish an international administration of the territory, so that the deployment of both presences should be understood as an exceptional measure on civil, political and security aspects designed to respond to the crisis that existed in that territory in 1999 [10].

Second, the ICJ indicates that the solution contained in Resolution 1244, namely the establishment of an interim international administration of the territory, was to suspend temporarily the exercise of authority derived from Serbian sovereignty that was still in force over the territory of Kosovo. Furthermore, the purpose of the legal regime established by resolution was to settle, organize and supervise the development of the PISG in Kosovo under the auspices of the Temporary International Presence[11].

Third, the ICJ noted that Resolution 1244 is establishing a provisional regime and cannot be interpreted as settling a permanent institutional framework in Kosovo. UNMIK should only facilitate the desired negotiated solution to the future status of Kosovo, without prejudging the outcome of the bargaining process[12].

In conclusion, the ICJ finds that the object and purpose of Resolution 1244 was to establish a temporary exceptional legal regime, which replaced the Serbian legal system except in certain exceptional cases, which aimed to stabilize Kosovo and to be applied provisionally[13].

The opinions of the judges, can be found in the following link.

Christopher J. Borgen[14] assesses that the Resolution 1244 neither promotes nor prevents Kosovo’s secession. Although operative paragraph 1 of the Resolution 1244 states that a political solution shall be based on the principles of Annexes 1 and 2, those annexes are silent as to the governmental form of the final status.

The annexes only state that an «interim political framework» shall afford substantial self-governance for Kosovo and take into account the territorial integrity of Federal Republic of Yugoslavia. Paragraph 11(a), states that the international civil presence will promote «the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo…». The substantial autonomy language is thus addressed to the interim status of Kosovo. Moreover, Borgen notes, the references to the territorial integrity of Serbia are only in the preambular language and not in the operational language. The document is therefore silent as to what form the final status of Kosovo takes.

Borgen continues that in addition to the Resolution 1244, Kosovo’s independence can be assessed under the international law of secession. While international law does not foreclose on the possibility of secession, it does provide a framework within which certain secessions are favored or disfavored, depending on the facts. The key is to assess whether or not Kosovo meets the criteria for the legal privilege of secession.[15]

My opinion about the case

For the ICJ, the Resolution 1244, which sets international obligations, aims to regulate and impose a transitional period of international administration for Kosovo, a territory in which the control by Serbia is temporarily suspended, in order to achieve the establishment, pending its final status, of a system of substantial autonomy for Kosovo within the framework of a respected territorial integrity and sovereignty of Yugoslavia (Serbia). The Resolution 1244, the ICJ insists, does not regulate or deals with the final status of Kosovo.

With the data already presented, the ICJ argued that the UDI (2008) does not violate the Resolution 1244, because the UDI does not address the transitional arrangements but the final status of Kosovo (paragraphs 114 – 115 of the ICJ Advisory Opinion) and also because the UDI has not been the work of the PISG of Kosovo but of «persons who acted together in their capacity as representatives of peoples of Kosovo outside the framework of the interim administration» (paragraphs 105, 109 of the ICJ Advisory Opinion).

The second statement is debatable, as the opinions of judges Tomka (statement, ¶11-12), Sepúlveda-Amor and Yusuf (individual opinions, para. 30 and 20, respectively) or Bennouna (dissenting opinion, para. 44 ff.) show and, in any case, the student wonders even if the UDI was not originated formally in the PISG of Kosovo, but the same individuals in a different capacity, whether this is an argument that can be acceptable in order to legally justify the act in question. As the Judge Bennouna points out in para. 46 of his dissenting opinion, “si on suivait jusqu’au bout un tel raisonnement, il suffirait, en vuelque sorte, de se mettre hors la loi pour ne plus avoir à respecter la loi«).

The first argument of the ICJ deserves a separate reflection. Isn’t it referred in the Resolution 1244 the final status of Kosovo? A review of the para. 11 of the resolution, in which the powers of the international administration of the territory are listed, shows two letters that are of interest, (a) and (e):

(a) Promoting the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo, taking full account of annex 2 and of the Rambouillet accords (S/1999/648);

(e) Facilitating a political process designed to determine Kosovo’s future status, taking into account the Rambouillet accords (S/1999/648).

Letter (a) is concerned about the transitional international regime that will operate trying to increase the autonomy for Kosovo but taking full account of annex 2 and of the Rambouillet accords, and in these, it is considered that in the former Yugoslavia remains intact the territorial integrity and sovereignty.

The letter (e) makes it clear that the future status of Kosovo must take into account the Rambouillet accords, which logically cannot be interpreted otherwise than understanding that the future status must respect the territorial sovereignty of Yugoslavia (Serbia today).

Even accepting, under the ICJ’s argument that the Resolution 1244 was only referring to the provisional administration and not the final status, the reasoning leading to the ICJ decision that the UDI does not violate the Resolution 1244 omits in this particular part of its opinion the big question: Can the people who formally remain part of an independent and sovereign State unilaterally declare secession thereof?; for Judge Yusuf , the IJC ought to respond to it (individual opinion, paragraph 6).

***

References:

[1] ICJ Advisory Opinion, ¶ 85.

[2] Ibid, ¶ 88.

[3] bid, ¶ 89.

[4] Ibid, ¶ 91.

[5] Ibid, ¶ 90.

[6] Ibid, ¶ 93.

[7] Ibid, ¶ 94.

[8] Ibid.

[9] Ibid, ¶ 95.

[10] Ibid, ¶ 97.

[11] Ibid, ¶ 98.

[12] Ibid, ¶ 99.

[13] Ibid, ¶ 100.

[14]Christopher J. Borgen. Kosovo’s Declaration of Independence: Self-Determination, Secession and Recognition. Volume: 12. Issue: 2. February 29, 2008. Asil.org.

[15] Ibid. Asil.org.

***

Sources of Information:

United Nations Security Council Resolution 1244 (1999)

International Criminal Court Advisory Opion – about the accordance with international law of the unilateral declaration of independence in respect of Kosovo. Summary of the Advisory Opinion.

Rambouillet Accords

American Society of International Law:

  • Christopher J. Borgen. Kosovo’s Declaration of Independence: Self-Determination, Secession and Recognition. Volume: 12. Issue: 2. February 29, 2008.

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U.N. & the concept of Commander Responsibility in the case of the Massacre in Srebrenica

Credit to BBC News

Recently I had the chance to read through the Srebrenica case of genocide occurred during the Bosnian War.

Caught my attention two factors regarding several documents I read: the role of the United Nations (hereinafter, U.N.) troops, famously known as «Blue Helmets» and the figure of “Commander Responsibility».

Briefly I am going to present some facts about the case: the U.N. troop’s role in the conflict and the judicial case by one the parties to the conflict (Hasan Nuhanović). I am confident that you, dear reader, are going to find interest in the facts of the genocide, so I am going to suggest you to watch a documentary about this genocide in the city of Srebrenica, produced by the BBC.

Context of the war:

On July 11 of 1995, the Bosnian Serbs, led by General Mladic, overran Srebrenica, a Muslim-enclave which had been designated as a U.N. (UNPROFOR) safe-zone. In total, about 8,000 Muslim men and boys were killed over the course of one week, 200 of them had been thrown off the Dutch base. Surviving relatives filed a criminal complaint against three Dutch battalion (hereinafter, Dutchbat) officials claiming they aided and abetted the genocide and war crimes that took place in Srebrenica.

Credit to BBC News

The Supreme Court of the Netherlands (hereinafter, the Dutch Court) decided that the Netherlands, whose troops retreated to a nearby compound during a Bosnian Serb attack, is responsible for the deaths of the three Bosnian men left behind. They were killed alongside thousands of Muslim men and boys at Srebrenica in the middle of July 1995. The three men had sought refuge in the compound of the Dutchbat.

Nevertheless, the Dutchbat made the decision not to evacuate them and informed the men on 13th July 1995 that they had to leave the U.N. safe-zone of Srebrenica. Shortly after leaving the compound the men were killed by the Bosnian-Serb army.

U.N. Blue Helmets:

According to Resolution 836 of June 4, 1993 the U.N. Security Council (hereinafter, Resolution 836) extended the UNPROFOR mandate on the basis of chapter VII of the Charter in order to enable UNPROFOR to counter attacks on the safe areas by deterrence.

According to how the U.N. system is structured, whenever any resolution of the U.N. Security Council (hereinafter, U.N. S.C.) mandates a certain operation, State parties to the U.N.S.C. can voluntarily contribute with all sorts of means (material or of any other kind) at their disposal to respond to the mandate if they wish to, always in respect to the U.N. Charter in general, chapter VII in this particular situation. It happened (as it can be seen in the documentary of the BBC -mentioned at the beginning of the post-.) that not all parties to the U.N.S.C contributed to the Resolution 836 and certainly not with enough means (air support, etc.) which provoked that the Dutchbat was not correctly equipped to deter Mladic’s troops. As a result, the mandate was not successful, and the Dutchbat failed in their responsibility of providing protection to the safe-zone of Srebrenica.

Up until now, the U.N., as an organization, independently of the states responsibility, has not  been held responsible for the deaths of the civilians. It has not been clearly defined under International Public Law, how to accommodate the responsibility of organizations such as the U.N., which creates a halo of immunity avoiding any criminal responsibility.

Notion of Commander Responsibility:

Article 28 of the Rome Statute disposes superior responsibility liability for military commanders (also observed under articles 86.2 and 87.1 of the Additional Protocol I of the Geneva Conventions) and other superiors. The rule clearly separates military from other command situations and applies a different mens rea requirement to these situations.

It can be deduced (as of the case that I am mentioned below) from the decision given by the Dutch Court; the consequences of the situation in Srebrenica are clearly attributable to civil authorities too (in this case to the Dutch government). Noting it is a very open interpretation of Superior responsibility applies to civilian authorities, in line with article 28 (b) (iii), once it can be established that indeed they had effective control over their subordinates.

Judicial aspects:

In the course of ‘Laws of War’ that I have studied for the master’s programme I am currently pursuing in Denmark, I chose to analyse this case of genocide. For that matter, I paid particular attention to the legal aspects of the Judgment in the case of the State of the Netherlands v Hasan Nuhanović (victim of the massacre).

Mr. Nuhanović filed a criminal complaint against the State of the Netherland stating that it was responsible for the deaths of three Bosnian men. The case resulted with a positive response to Mr. Nuhanović from the Supreme Court of the Netherlands.

It is interesting to observe how the consequence of this judicial decision has to do with the notion of Commander Responsibility, the responsibility of the Dutch State as a result of the nature of the U.N. Peacekeeping troops.

The consequences of the decision of the Supreme Court of the Netherlands entails in this case, besides the criminal liability of the Dutch battalion, the Dutch government (as the authority also having command and control of the troops; likewise the U.N. itself) with disciplinary power and criminal jurisdiction, was responsible for the deaths, therefore the U.N. cannot be considered the only one responsible for it.

My personal thought on the case

One clear idea that popped into my mind while reading the different resolutions of the U.N.S.C. related to the case of the Bosnian War, the U.N. as an international body, having command and control over the Peacekeeping troops, should have been held responsible for what happened since the chain of command should have been aware, as it was, of what was happening in Srebrenica. Criminal responsibility to the Dutchbat and the government, respectively, for the deaths of the three men left behind, checked. What about the U.N.’s responsibility? Inconclusive.

Another aspect that caught my attention are the thousands of deaths occurred in the safe-zone when Mladic’s troop overrun the city. Besides Mladic’s individual criminal responsibility, what happens to the responsibility of the Dutchbat or that of the U.N.? They clearly failed in their obligation. Families of the thousands of victims filed a criminal complaint against the Dutch government. According to a recent article published by the BBC, «a Dutch court has ruled that the Netherlands is liable over the killings of more than 300 Bosniak (Bosnian Muslim) men and boys at Srebrenica in Bosnia-Hercegovina in July 1995«.

In my analysis of the case for the course of my master’s programme, I was proposing the hypothesis, whether military commanders can be held criminally responsible for their actions, in the case of omission to prevent serious crimes perpetrated by a third party (I have not found the proper legal answer yet).

It can be deduced from the article of the BBC, that indeed criminal responsibility for actions committed by a third party is possible. I am happy to read this news, even though the situation and the meaning of this latest ruling is very complex.

The safe-zone of Srebrenica, falling and resulting in such a massacre was a misfortune chain of small mistakes and bad luck that shouldn´t have happened. Colonel Karremans recognised in the BBC documentary that they were not ready or mentally prepared for such a situation that was about to happen.

Dear reader, thank you one more time for taking time to read my posts.

***

Sources of information:

– Supreme Court of the Netherlands. Judgment in the case of the State of the Netherlands v Hasan Nuhanović. Court of Appeal The Hague, LJN: BF0181 (September 6, 2013).

– Rome Statute of the International Criminal Court.

– United Nations Peacekeeping Website.

– United Nations Charter, Chapter VII.

– Resolution 836 of June 4, 1993 the United Nations Security Council.

 

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The role of the U.S. for the Energy Security in Asia (last part)

Finally, I present the last of the series of posts (part 1 and part 2) about energy security in the Asia-pacific region, after quite some time occupied with the exams I have passed of the masters programme I am currently pursuing.

Going to the point and interest of the post that we have in hand. The last part is an analysis of the relation among the three most influential actors in the region -the US, China & Japan- and how does it affect to security matters in the area. To close the circle of the chapter series, the post ends up with a the conclusion about the situation that has been talked.

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