Humanitarian Intervention as Justification for the Use of Force

David Trueman

Jus Ad Bellum, the name given to the international law regulating the use of military force, is principally regulated through the United Nations Charter 1945. Clearly, the motivation behind the regulation of the use of force is to prevent war; the overriding motivation behind the creation of the UN itself. In order to ensure that only “just” wars are engaged, Article 2(4) UN Charter provides a general prohibition against any use of force by states. Having said that, states can lawfully use military force against other states in accordance with a ‘Chapter VII’ Resolution, where such force has been expressly authorised by the UN Security Council, or in accordance with the inherent customary international law of self-defence (which stems from the “Caroline case”).

However, some states argue that a broad interpretation of Article 2(4) provides for states to also use force against other states for the purposes of “humanitarian intervention”, irrespective of the fact that the UN vehemently rebuts any suggestion that it is indirectly proscribed within the UN Charter (see the UN Report “A More Secure World – Our Shared Responsibility”). Nonetheless, the USA argued this alleged defence as justification for the force used against Grenada, NATO used it as justification for their intervention in Kosovo, and most recently, Russia used it as an alleged justification for its use of force against Georgia in August 2008.

The alleged humanitarian intervention exception has attracted an extensive array of critics, with several suggesting that it “should remain unlawful” since it is likely to result in wars being raged for “ulterior motives”. However, whilst not strictly proscribed, the writer suggests that previous precedent and willingness of several states to intervene within nations who appear to orchestrating massacres, crimes against humanity or genocide could mean that humanitarian intervention could already formulate the necessary requirements of customary international law; humanitarian intervention could already formulate a lawful exception to Article 2(4), since customary international law itself is vague and ambiguous.

Whether one considers humanitarian intervention to be lawful or not, it is undoubtable that states will continue to try to legitimise the force they use against other states on this basis (as Russia recently did). It is also obvious that acceptance of it as an exception to Article 2(4) could also further support the proposition of pre-emptory self-defence, and generate a new defence of pre-emptory humanitarian intervention where states consider a massacre or genocide as a possible occurrence.

The Virgin of the Rocks

José Anastácio de Sousa Aguiar

The greatest painters of western tradition has chosen for centuries the Bible as a source of inspiration for their works, and one of the most common scenario of that lights was an apocryphal moment of the infancy of Jesus Christ when the Infant John, the Baptist, in protection of an angel, met the Holy Family on the road to Egypt. In this scene, as the tradition assures, John recognizes and worships Jesus as the Christ.

Indeed, there are many painters that have used that set, as Sandro Botticelli, Filippino Lippi and Valerio Castello, however the most famous painting of that moment is The Virgin of the Rocks, painted by Leonardo da Vinci. There are two oficial versions of it, the first one to be painted is in Louvre (Paris) and the second one is in the National Gallery (London).

However, according Dan Brown not everything related to that painting is well explained. In his book Da Vinci Code, he has developed a mystery-detective fiction novel in which Da Vinci was a member (Grand Master) of a secret society (Priory of Sion), which was an enemy of the Roman Catholic Church. The book also suggests that the Louvre version contains hidden symbolism which contradicted orthodox Christian belief, notably the fact that Jesus is shown praying to John rather than the other way round (the novel implies that the baby at the left must be Jesus rather than John, because he is with the Madonna), and the fact that the left hand of the Virgin is in a threating way against the head of baby Jesus and a kindness protection toward the infant John with her right arm, as a way to symbolize Leonardo’s angry against the Church. That first painting (the one that is in Paris) was reject by the Confraternity of the Immaculate Conception for obvious reasons, and as a consequence, he had to paint another (the one that is in London) with a smooth approach.

All Dan Brown’s hypothesis may be fiction, however it is fact that the National Gallery has made amazing discoveries recently in that painting. Its team of experts have used infrared reflectography to find two distinct underdrawings beneath the surface of Leonardo da Vinci’s ‘Virgin of the Rocks’. Though one drawing corresponds with the final version of the painting, another shows a completely different picture of a kneeling figure. Her downcast gaze and pious gestures suggest that Leonardo’s initial idea was to depict the Virgin in Adoration of the Christ Child. There is no sign of the baby Jesus, but this could be because Leonardo abandoned this idea before he came to include him, or not.

Actually, even if all the ideas expressed by Dan Brown turn out to be wrong, he has the merit to expand the interest in Biblical matters, giving it a growing and healthy impetus provided by curiosity of ordinary people.

London/UK, June 23th 2009

Longo Vôo

Marcelo Alves Dias de Souza

Sou da estranha raça dos que desejam viver e amar por inteiro
Procuro não ser pequeno
Nem nas minhas poucas qualidades
Nem nos meus inúmeros defeitos

Se queres caminhar ao meu lado
Amiga e amante, desde já segura a minha mão

E saibas que, se um dia, nessa nossa jornada,
Caíres (ou melhor, cairmos)
À semelhança do albatroz de Baudelaire
Tristes, trágica ou mesmo comicamente desamparados,
Vítimas do destino, dos nossos defeitos ou das nossas qualidades,
Estarei, amiga e amante,
Solidário e amorosamente, sempre ao seu lado

Mas estejas também certa, amiga e amante,
Que incessantemente lutarei e, um dia, levantar-nos-ei para ti

E nesse dia de júbilo, nesse dia de alçarmos o longo vôo,
Nas asas do albatroz gigante,
Príncipe das alturas e companheiro dos meus (e dos seus) sonhos,

Estarei eternamente abraçado a ti,
Admirando o tom suave do céu,
Divino reflexo do azul dos teus olhos,
Recompensado pelos meus inúmeros defeitos,
Vítima das minhas poucas qualidades.

Abortion – An issue unapproachable under human rights law

David Trueman

Abortion, the deliberation termination of pregnancy, is an issue enshrined with controversy and disagreement. Those believing in the sanctity of life, so-called pro-life campaigners, vehemently postulate disapproval against abortion, whereas other pragmatists accept that abortion is necessitous for the health and interests of women. Inevitably, the controversial inception of abortion as an available procedure called the legality of such procedures in to question; does abortion constitute a human right? Does abortion directly contravene human rights law?

The answer to these questions is ambiguous. Abortion is legal in some countries (such as the UK, USA and Japan), yet illegal in others (such as Nicaragua and Niger); the legality of abortion is heterogeneous amongst states. Moreover, universal human rights instruments (such as the UDHR and ICCPR) are silent on the issue of abortion.

As a consequence of such international legality diversity, the European Court of Human Rights (ECtHR) does not consider abortion to constitute a human right in itself. Instead, it contends that each individual state (within Europe) ought to be offered a “wide margin of appreciation” to determine whether abortion is legal within their own domestic jurisdiction. Such a margin is also afforded to states to determine the applicability of foetal right to life.

Consequently, in the opinion of the ECtHR, abortion is neither inhibited nor prohibited by the European Convention on Human Rights. Some commentators believe the approach of the ECtHR to be unsatisfactory, that the “pressing issue” was avoided; the ECtHR “fudged the issue”.  However, had the ECtHR expressly ruled upon the legality of abortion under the ECHR, this may have been even more controversial than its obvious reluctance. Rendering abortion in contravention of human rights law would have resulted in women being forced into the continuation of a pregnancy, and would have meant that foetal right to life gained supremacy. However, had it been expressly held as a human right, the proposition of foetal or fathers right would have been strictly forbidden.

Consequently, abortion is an issue so contentious, so disputatious, that it is rendered unapproachable within the realms of international human rights instruments.

Who was the Pharaoh of the Exodus?

José Anastácio de Sousa Aguiar

It is written in Bijbels museum in Amsterdam – Nederland: “In the Bible, in the Old Testament, we read how the people of Israel come to Egypt, stay there four hundred years, and finally set out for the Promised Land under the leadership of Moses. This journey out of Egypt is called the “Exodus”. (…) The Pharaohs who play a role in this story are not named in the Bible. There are no Egyptian sources that relate this episode either, nor can any date be found. Yet many biblical scholars have come to the conclusion that this history may have taken place in the 13^th century B.C. Pharaoh Seth I would then be the Pharaoh who put the Israelites to work as forced labourers. His son, Ramses II, is the Pharaoh who takes a stand against the God of Moses and lets the people go after the terrible “Ten Plagues”. (Genesis 37-50, Exodus1-15).”

Indeed, this is the traditional approach related to the attempt to try to identify the Pharaoh of the Exodus. On the other hand, recent researches, especially a documentary named “The Exodus Decoded”, created by Jewish Canadian filmmaker Simcha Jacobovici and the producer/director James Cameron have brought some evidences that point out to Ahmose I, as the Pharaoh of that period.

 Jacobovici suggests that the Exodus took place around 1500 BC, during the reign of pharaoh Ahmose I, and that it coincided with the Minoan eruption (or Thera eruption, now known as Santorini). He suggests that the Biblical Exodus took place shortly after that eruption, which is thought to have happened some time between 1650 BC and 1600 BC. The dates are disputed, depending on the use either of archaeological dating results (1600 BC to 1550 BC), or of radiocarbon dating results (1650 BC to 1600 BC). Jacobovici, however, accepts a date around 1500 BC. He goes on to explain how each of the Mosaic plagues, and even the parting of the Sea of Reeds, could be explained by earthquakes, faulting and a limnic disaster, all caused by Santorini.

Perhaps, these new evidences have brought more doubts than light to solve this millennial puzzle, but doubtless, it is a very interesting and exciting theory to the diggers of the past.

 Paris/FRA, June 14^th 2009.

The perilous extra-territorial application of regional human rights instruments

David Trueman

Recent judgments in the European Court of Human Rights (ECtHR) could have far-reaching implications on the sovereignty of states and their domestic laws. Resultant from the case (Issa v Turkey) the European Convention on Human Rights (ECHR) can, in “exceptional circumstances”, apply against states possessing “effective control” over a region or country outside of their traditional geographical or territorial jurisdiction. Indeed, in the case of R (Al-Skeini) v Defence Secretary, the ECHR was applied against UK armed forces stationed in Iraq. Whilst foreign military jurisdiction isn’t ground-breaking (several states have their own jurisdiction within the compounds of their military bases abroad), the acceptance that the ECHR can apply extra-territorially is far more revolutionary.

Arguably, recognition of the extra-territorial application of the ECHR could result in a host of potential problems. ‘Controlling’ states would be able to impose their own laws irrespective of host-state legislation and practices forbidden in by host-state legislation or in contravention to host-citizens’ beliefs could be lawfully enforced as a result of the ECHR. For example, might a broad interpretation of the extra-territorial extent of the ECHR legalise abortive procedures conducted on women in the custody of ECHR-state forces in non-ECHR-based host-states, where such a procedure was necessitous for the woman’s survival, even though the host-state itself prohibits abortion on all accounts? Could it lead to indefinite imprisonment of host-state nationals under the derogation system of Article 15 ECHR?

The extra-territorial effect of regional human rights instruments could generate considerable resentment between nations, considerable hostility among ‘controlling’ states and local community, and undoubtedly has the potential to impose obligations and standards on those who are unwilling to adopt such measures themselves. Subsequent ECtHR-cases must be strictly interpreted if the aforementioned inevitable consequences are to be effectively avoided.

American “War on Drugs” in Colombia – Part TWO

Victor De Martino

Continuing my previous article, now I am going to discuss the ineffective results of the America’s policy toward Colombia during the last decades.

Regarding the “War on Drugs”, the latest US Department of State’s International Narcotics Control Strategy Report states that in 2008 the joint-efforts between US and Colombia managed to destroy more than 220,000 hectares of coca. They also seized 223 metric tons of cocaine in 2008, an all-time record, destroyed 3,500 cocaine labs and extradited 208 suspects.

On the other hand, figures pointed that coca leaf and cocaine production in the Andean region appear to have set new records in 2007. If the objective was to slash by 50% the production of cocaine, as established by the Plan Colombia in 2000, the American policy is far from succeeding.

Furthermore, the price of cocaine has been decreasing, despite the enormous amounts of money invested in its combat. In 1990, the cocaine retail price in the US was 284 dollars per gram. In 2007, its price was estimated in 119 dollars.

In some aspects, one might defend that for the Colombian state and society the US-Colombian policies have developed, to some extent, satisfactory results, such as:

> By 2004, the paramilitary and guerilla groups had lost most of their popular support—AUC had 10% of approval, the FARC had 3% and the ELN only 2. On the other hand, the President  and the Armed Forces had more than 70% of support;
> During the current administration of the President Alvaro Uribe (picture), the homicide rate was reduced by 19%, the kidnappings by 39%, terror attacks by 42% and new internal displacements by 46%;
> Lately, the Colombian state has sought to regain control of the country by increasing the numbers and capacity of troops and police units and by deploying them across the country to challenge the guerrillas.

However, there are also some negative aspects to be considered, including:

> Due to the efforts to eradicate the drug issue, there has been a severe deterioration in the dimensions related to effective protection of civil liberties and subordination of the military in Colombia;
> Despite all the efforts so far, Colombia remains the world’s major cocaine producing country;
> After the dismissal of the Medellín and the Cali drug cartels in the 1990s, it is estimated that some 140 much smaller groups appeared, and some of them moved to Mexico and Haiti;
> Finally, it is inevitable to say that the FARC and the ELN are still active in Colombia. Even if their power are not as dangerous as 10 or 15 years ago, they are still there.

If we take both the American and the Colombian societies’s perspectives to evaluate this “War on Drugs”, it seems fair to argue that those partial results are certainly below the acceptable, especially if we consider the social, political and financial costs of this war so far. A change in this policy must come. But the recommendations for the future will be discussed only on my final article about this issue.