The attacks of September 11, 2001, the wars on Afghanistan and Iraq, and the war on terror, mainly Islamist terrorism, have strained the relations with the Muslim world, which considered the US and the West at war with Islam. Part of the failure of the US strategy to engage the Muslim world in the war on terror is the lack of a clear strategy that distinguishes between moderate and radical Islamists. By lumping both radicals and moderates in one basket, the US policy makers and the West have alienated a large number of the Muslims who supported moderate Islamists in general elections, and considered them the hope to change the status quo in the Middle East and end corruption and oppression.
Moderate Islamists can be an effective partner in the fight against terrorism, for their enmity to radical Islamists and the stark differences in their ideologies. Most Mideast analysts would agree that the Muslim Brotherhood (MB), known in Arabic as al-Ikhwan al-Muslimeen, is the most popular and the most formidable grassroots organization in the Islamic world (Walsh, p. 84), and is also a safety valve for moderate Islam (Leiken, p. 6), seeking to translate the abstract theoretical principles of Islamic governance into a practical political platform (Rutherford, p. 707). Moderate Islamists with their effective strategies to combat radicalism, while wining the hearts and minds in their constituencies, can serve well the goals of the fight against international Islamist terrorism. Furthermore cooperation [between MB and US] in specific areas of mutual interest—such as opposition to al Qaeda, the encouragement of democracy, and resistance to expanding Iranian influence—could well be feasible (Leiken, p.14)
Terrorism remains the primary national security challenge confronting the United States and will be for many years (Hamilton, 2005, p. 379). Until the 19th century, religion provided the only justification of terrorism. Then the emergence of the notions of nationalism and self-determination at the beginning of the 19th century, and the growing popularity of radical political thought, embracing Marxist ideology completed the transformation of terrorism from a mostly religious to a predominately secular phenomenon (Hoffman, p. 84). This process of “secularization” was given fresh impetus by the anticolonical/national liberation movements that arose after the Second World War to challenge continued Western rule in Asia, the ME, and Africa and subsequently exerted so profound an influence on ethno-nationalist/separatist and ideological terrorist organizations in the late 1960s and early 1970s (p. 84). While terrorism and religion share a long history, this manifestation was overshadowed by ethno-nationalist/separatist and ideologically motivated terrorism. At the height of the cold war, when the majority of terrorist groups (eight) were left-wing, revolutionary Marxist-Leninist ideological organizations, the remaining three-including the various constituent groups of the PLO—reflected the emergence of the first postcolonial ethno-nationalist/separatist organizations (p. 85). It was not until 1980—as a result of the repercussions of the revolution in Iran the previous year—did the first “modern” religious terrorist groups appear
The attacks of September 11, 2001 and the resurgence of religious terrorism by radical Islamic movements, made it important for policy makers to realize the difference in ideology these groups have with moderate and mainstream Islamic movements (Walsh, 2003, p.82). Mideast experts, following 911, argued that force alone has not resulted in the defeat of terrorism and that diplomatic initiatives directed at coaxing local leaders to encourage or implement change have not yielded the expected effects. As a consequence, these experts favor a “new” idea—namely, bringing the Islamist movements into the political processes of the individual countries of the region. The United States and its allies should therefore encourage Islamists to participate in democratic reforms (Hoveyda, 2005, p. 119)
The dramatic events that followed the 1979 Islamic revolution in Iran brought concept of contemporary political Islam to the forefront of the world’s attention. Journalists, scholars, and other specialists have developed and are continuing to create concepts and a vocabulary to describe the Muslim world and its relationship to the West. The use of the adjective moderate to describe some Muslim leaders and movements is one example of this phenomenon (Hoveyda, 2001, p. 53).
The phrase “moderate Islamists” as opposed to “hard-line Islamists” was first introduced by American journalist of Middle East origin, Geneive Abdo. Until then “Islamist” used as both a noun and an adjective designated Muslims who adhered to the more fundamentalist and extremist views than those of mainstream. Therefore, from that perspective, an Islamist, by definition, is an extremist and cannot be labeled a moderate (Hoveyda, 2001, p. 53)
Especially after 9/11, the phrase “moderate Islamist” is often used in the literature and media to refer to movements of political Islam which reject global jihad while embracing elections and other features of democracy (Leiken, 2007, p. 2), and an extension to the 19th century’s reform ideologies of prominent scholars such as Muhammad Abdoh and Jamal-ed-Din Afghani, who had traveled to Europe, became convinced of the necessity of reforming certain parts of the theological interpretations in light of modern scientific knowledge (Hoveyda, 2001, p. 55)
Most Mideast analysts would agree that the Muslim Brotherhood (MB), known in Arabic as al-Ikhwan al-Muslimeen, is the most popular and the most formidable grassroots organization in the Islamic world (Walsh, p. 84), and has also became a safety valve for moderate Islam (Leiken, p. 6), seeking to translate the abstract theoretical principles of Islamic governance into a practical political platform (Rutherford, p. 707). The Brotherhood differs from earlier reformers by combining a profoundly Islamic ideology with modern grass-roots political activism (Leiken, p.2)
In contrast, radical Islamists, or Jihadists, movements, which developed in an unchanged environment steeped in fundamentalism since the twelfth century, and influenced by scholars such as ibn Taymiyya (fourteenth century, Syria); and Abdal Wahhab (eighteenth century, Arabia) (Hoveyda, 2005, p. 506). These ‘‘extremists’’ are often called Salafis, whose central ideas were crystallized in the teachings of Ibn Taymiyya. Its adherents seek to transform the Muslim community and ensure that Islam as a system of belief and governance will eventually dominate the globe (p. 509)
Shamuel Bar in 2004, argued that radical interpretation of Islamic teachings has become a source of terrorism committed by militant Islamists, which constitute the lion share of terrorists acts and the most devastating of them (p. 27). According to Bar, “radical leaders of Islamist Jihadist-type movements used deeply ingrained religious beliefs to motivate Islamist terrorists and provide them with religious and moral justification to sanction their actions” (p. 28)
Therefore, Bar contended, it’s important to recognize these cultural and religious sources of radical Islamic ideology and address them in order to develop an effective counterterrorism strategy, and without such recognition the war on terror will doom to failure (p. 28 & p .36)
The Islamic Awakening of the early twentieth century, which emerged in response to Western imperialism and colonization, led to the revival of the more “traditional” or “fundamental” form of Islam as a religion and governing system (din wa dawla), where no area of human activity is outside its remit (pp. 28-29). Fundamentalists saw that the decay of the Muslim nations caused by their deviation from the original mores of Islam (p. 28). “Perfection lies in the ways of the Prophet and the events of his time” (p.29) without taking into consideration historical circumstances and developments.
Therefore, in this radical Islamist worldview, the world was dichotomized into two opposing worlds, the House of Islam (Dar al-Islam—i.e. the Muslim countries) and the House of War (Dar al-Harb—non Muslim countries) as it was the case when Islam first appeared (p. 29). The military form of global Jihad was then declared when the Soviets (infidels) invaded Afghanistan in 1980s, which ended with spectacular victory over a superpower. The triumph of Jihadists in Afghanistan and the collapse of the USSR galvanized militant Islamists who argued that the renewal of Jihad against infidels “will result in the rule of Islam in the world” (p. 30)
Fatwas (religious decrees) by religious scholars stipulating that Jihad is a “personal duty” played pivotal role encouraging radicalism and building support for radicals within the traditional Islamic community (p. 32). The controversial concept of irreversibility of Islamic identity –individual or territory—was also instigated by radicals to support their ideology of militant Jihad and to open more fronts not only with non Muslim states but also with apostate Muslims (p. 29)
The Muslim Brotherhood and Islamic radicals share the same long-term goals of implementing Shari’a laws as the basis of national law (Walsh, p. 82). However, Jihadists loathe the Muslim Brotherhood for rejecting global jihad and embracing democracy (Leiken, p. 2). Even among pro-terrorist tendencies within Islamist politics one must be careful not to create artificial uniformity (Schwartz, p. 283). The MB has committed itself to working within the current Egyptian system to achieve this objective and renounces—at least in its official statements—the violent tactics of militant splinter groups such as al-Gama’at al –Islamiyyah and al-Jihad (Walsh, p. 82). It offered the important message that Egyptians can return to “true” Islam and still be materially comfortable (p. 84)
It is important as we are trying to identify the enemy we are fighting (Hamilton, p. 380), to make the distinction between moderate and radical Islamists in order to win the fight against terrorism, but without losing the public support in the Muslim world, which is increasingly rallying behind the moderates in their respective countries for various domestic reasons. Distinction between “Islamist” and “radical Islamist” is as significant as the distinction between “reformer” and “revolutionary” in the contemporary United States (Walsh, p. 36). Islamists are not monolith and lumping them all together in the basket of “radicals” and “terrorists” will hamper the efforts to combat the real roots of terrorism and complicate the efforts to seek common ground with the Muslim world. Leiken and Brook argued in 2007 how the “nuance is lost in much of current Western discourse. Herding these different “beasts” into a single conceptual corral labeled “Salafi” or “Wahhabi” ignores the differences and fault lines between them—and has thwarted strategic thinking as a result” (p. 6)
In their 2007’s study of the “moderate Muslim Brotherhood”, Leiken and Brook elaborated further on the use of various nomenclatures and its different interpretation in Western and Middle Eastern literature. For example they explained that “When we asked Muslim Brothers in the Middle East and Europe whether they considered themselves Salafists (as they are frequently identified), they usually met our question with a Clintonian response: “That depends on what your definition of Salafist is.” If by Salafism we meant the modernist, renaissance Islam of Jamal ad-Din al-Afghani and Muhammad Abduh (turn-of-the-twentieth-century reformers who influenced Banna), then yes, they were Salafists. Yet the ubiquitous Web site www.salafipublications.com, which is run by Salafists who believe that religion should never mix with politics and that existing rulers should be supported almost unconditionally, attacks Afghani and Abduh for being “far away from the Salafi aqidah [creed].” (This is the view, for obvious reasons, of the Saudi religious establishment.) Such “pietists,” most of whom were trained in official Saudi institutions, argue that the Brotherhood’s participation in politics has converted them into the “Bankrupt Brotherhood.”According to one, “The Muslim Brothers have political goals and strategies, which induce them to make concessions to the West. For us, the Salafists, the goal is purely religious.” (p. 6)
Hamilton in 2005, identified five essential elements in order to win the fight against terrorism; these five elements or five I’s” include: identification, integration, international, intelligence, and implementation. He argued the identifying the threat and knowing who the enemy is and therefore designing a strategy to confront it remains one of the most important of these elements (p. 379)
Furthermore, the 9/11 Commission listed al Qaeda, and other Jihadist groups inspired by its radical ideology, as the main terrorist threat to national security. Beyond these groups there are 1.3 billion Muslims around the world, many of whom may be empathetic to the jihadist agenda, even if they disagree with their violent methods. Therefore, it is the ideology of radical Islam that poses a grave and gathering threat, not simply individuals or groups who can be hunted and destroyed. This ideology joins anti-American political grievances with a radical strain of Islam. Sadly, this ideology reaches many Muslims: those who are hopeless or unsettled by modernity; people who hate America and their own repressive governments, and that is why the threat is bigger than just al Qaeda (Hamilton, p. 381)
Therefore, in order to prevail over the ideology of radical Islamists that breeds terrorism, we cannot rely solely on massive military force (Schwartz, p. 291) instead we must implement a comprehensive strategy that uses all elements of America power (Hamilton, p. 382). Failure to address the political and sociological causes of terrorist recruitment will only lengthen the life of and increase the effectiveness of terrorist groups (Schwartz, p. 291)
Moreover, fighting wars against states with significant Islamic populations will curtail security cooperation with states in the Islamic world (Schwartz, p. 285) and enrage its people. However, lethal military force remains crucial to win the struggle against active terrorists by relying on target killing or apprehending them through Special Forces operations. The large number of civilian casualties caused by conventional wars between states is likely to be self-defeating, as they potentially enlarge the recruitment pool for terrorist groups. And such ‘‘collateral damage’’ can be ethically justified only if such attacks were absolutely necessary to curtail terrorism and if the casualties were unintended, as well as unavoidable in achieving a particular military objective (that is, in accord with the just-war doctrine of ‘‘double effects’’). The civilian casualties from high-altitude bombing in Afghanistan were not absolutely necessary to uproot Al Qaeda and its Taliban government hosts (the use of more ground troops would have been ethically preferable (Schwarz, p. 286)
The 9/11 Commission recommended that combating terrorism must rest on an effective strategy to isolate radical Islamists by engaging the people across Muslim world in the battle for ideas, and show them that we are on their side. Right now, millions of Muslims grow up lacking political freedom, economic opportunity, and hope, and suffering at hand of governments, including U.S. allies, which repress their populations and deny them political participation (Hamilton, p. 384)
Isolating radical Islamist ideology without alienating public Muslim opinion can be best achieved by empowering moderate Islamists and pragmatics who are, because of their knowledge of Islamic thinking and ideologies and their increasing public support are better suited to debate radical elements within their societies. The exact same meaning was uttered by the leader of the Jordanian Islamic Action Front, the Muslim Brotherhood’s political party in Jordan, said that his group outdoes the government in discouraging jihad: “We’re better able to conduct an intellectual confrontation, and not a security confrontation, with the forces of extremism and fanaticism.” (Leiken, p. 7). Especially when repressive and undemocratic governments can be a major source of radicalization of the young people which ultimately breeds terrorism.
Historically, oppression of moderate Islamists by their governments has resulted in waves of radicalization. According to Schwartz, 2004, the origins of pan-Islamic global terror partly derived from U.S.-backed regimes suppressing their moderate Islamist political opposition. Then in the late 1970s, Sadat’s brutal suppression of a fairly moderate Muslim Brotherhood, Saudi hostility to any religiously inspired dissent, and Algerian suppression of the Islamic Salvation Front engendered a pan-Islamic political sensibility, as nationally based Islamist parties were no longer viable (p. 282).
Walsh, in 2003, added that because the United States has long condoned the anti-terror campaigns in several Middle East countries; an unfortunate consequence is that though the threat to the regimes from the radicals has been successfully contained, these government continue to receive an international mandate for repression of all dissident Islamic groups, not only the violent ones (p. 82). These governments’ main goal is not to combat terrorism, but rather oppress their political rivals who happened to be moderate Islamists to ensure their continuous grip on power
Furthermore, the suppression of Islamist politics by secularist, often pro-Western regimes and the failure of both Arab socialist and Arab nationalist projects helped introduce global and anti-American elements into the strategy of ‘‘lesser jihad” (p. 282). Therefore, as Schwartz argued, the United States would be more likely to enhance its security through diplomatic and economic pressures in favor of liberalizing Middle Eastern and South Asian regimes, pressuring not just for more liberal treatment of secular dissidents but also for the expansion of political space for nonviolent Islamist movements (p. 284). Leaders who are cooperating with the West in general and with the United States in particular are doing so out of fear of their own people or their rivals at the helm of government in other Muslim countries. By supporting such rulers unconditionally, the United States is ensuring that it will be harmed when the people in the area turn against them and drive them from power (Hoveyda, 2001, p. 51)
Hoveyda in 2005 argued that in addition to the military force we are using in our own defense, we must find appropriate ways to isolate radicals inside the Arab world and to expose the dangers of their ideology for the Arabs themselves (p. 122). Rutherford in 2006 explained how moderate Islamist scholars, mainly in Egypt, with their contemporary interpretations of Islam can help bridge the gaps that divide the Muslim world and Western civilization and remove some of the roots of radicalization and terrorism. These moderate, reconciliatory, and most importantly “authentic” interpretations of Islam are the West’s best hope to end hostilities with the Muslim world and isolate radicals. Once isolated, these radicals can be apprehended or even killed with little sympathy from the public.
For well over a century, Egypt has been an important center for legal thinkers seeking to adapt Islam to the challenges of contemporary governance. This effort began in the late 19th and early 20th centuries with the works of Jamal al-Din al-Afghani, Muhammad 'Abduh, and Rashid Rida. It continues today with a new generation of Islamic thinkers. The most important figures in this effort are Yusuf al-Qaradawi, Tariq al-Bishri, Kamal Abu al-Majd, and Muhammad Salim al-'Awwa (Rutherford, p. 708). They are influential among the leadership of the Muslim Brotherhood, particularly the "new guard" of younger leaders who have grown more powerful within the organization in recent years. Raymond Baker argues that they constitute a coherent school of Islamic reformist thought that he calls the "New Islamists”
These moderate Islamists argue that the Qur'an and Sunna (teachings of the Prophet Mohamed) are silent on many specifics of running a state and, thus, man-made law is needed to manage the details of day-to-day governance. Therefore, unlike radical Islamists, they favor the creation of man-made laws as long as they are compatible with Shari'a. (Rutherford, p. 711). Abu al-Majd argues that Shari'a plays the same role in Islamic legal thought that natural law plays in the American constitutional tradition. It defines the purposes of state power and delineates its boundaries. Within these boundaries, rulers and citizens are free to develop specific laws that respond to the needs of their community (p. 712)
Moderate Islamists believe that state power must be restrained, the government must be held accountable (Rutherford, p. 713), the political authority lies with the people and they are entitled to select their ruler and should participate in day-to-day governance (p. 714). They also believe that these ideas are best realized in contemporary political life through democratic institutions. These institutions include:
Elections: support for selecting public officials through free elections. Each citizen has a religious obligation to vote, since he has a religious duty to convey his knowledge of the candidate for office.
Political Parties: the theorists also endorse the creation of multiple political parties. Al-'Awwa adds that the presence of multiple parties reflects the principle of tolerance of dissent, which he considers fundamental to the faith. He concludes that, "The existence of political parties ... is necessary for the advancement [of Islamic societies] and for freedom of opinion within them, and to ensure the absence of oppression” (p. 715)
Parliament: The Islamic constitutionalists argue that a parliament is the most effective institution for enabling the public to participate in the drafting of laws in those areas where the Shari'a is silent (p. 716)
Rutherford added that moderate Islamist thinkers note that they borrow these institutions from Western democracies. However, each stresses that this borrowing is done in a highly selective manner. Al-Qaradawi's view is typical when he writes that the Islamic world must "take the best elements of democracy without seeking to duplicate it". The central goals of an Islamic state are to enhance justice and oppose tyranny. At this moment in history, democratic institutions are the best means for achieving these goals and, thus, democracy "is the form of government that is closest to Islam.'" However, democracy in an Islamic context must operate within the ethical framework defined by Shari'a. It must not lead to laws that allow what is forbidden in Islam (such as adultery or alcohol consumption) or prohibit what is required (p. 716)
Furthermore, moderate Islamists stress the importance of justice and freedom of choice in Islam, however, al-'Awwa adds an important caveat: the freedom to leave the Islamic faith is restricted. The Qur'an clearly declares that apostasy is a sin, although it does not specify a penalty. Freedom of thought, inquiry, and speech are essential to the full expression of each Muslim's faith." In addition, al-'Awwa proposes that each Muslim bears an obligation to "enjoin good and forbid evil" within the community. In order to fulfill this obligation, each Muslim must be free to speak out against evil and corruption. Speaking out in this manner is a religious duty and, thus, freedom of speech is divinely sanctioned and mandated (Rutherford, p. 716)
Al-Qaradawi offers the most detailed discussion of women’s rights. He stresses that women have the same duties as men, and that they play an important role in the life of the community. Trying to exclude them from public life "is like trying to breathe with one lung or fly with one wing (Rutherford, p. 716). In his view, women should be allowed to vote and to hold public office (p. 717), and be permitted to hold positions of authority, including the posts of judge and head of state (p. 718). They also advocate protecting the rights of non-Muslims. "No compulsion in religion." (Quran, 2:256). Al-'Awwa makes essentially the same argument, and proposes that sectarian strife has risen in recent years because of political opportunism by trouble makers on both sides (p. 718)
Moderate Islamists, therefore, share core beliefs of liberal democracy. They support freedom of choice and expression, rule of law, political participation and protect the rights of women and non-Muslims. The Muslim Brotherhood has frequently dismissed the notion of an incompatibility between Islam and democracy (Walsh, p. 85). Brotherhood seeks to create a "republican system of government that is democratic, constitutional, and parliamentary and that conforms to Islamic principles." (Rutherford, p. 721)
The Brotherhood’s evolving social network is probably more responsible than anything else for the enormous power the organization could now wield in an open election. These services are compatible with the organization’s Islamist message and thus can serve as an important counterbalance to the supposedly divinely-sanctioned violence of al Gama’ at and al-Jihad (Walsh, p. 84). The MB followed the path of toleration and eventually came to find democracy compatible with its notion of slow Islamization. An Islamic society, the idea goes, will naturally desire Islamic leaders and support them at the ballot box. The MB also repeatedly justified democracy on Islamic grounds by certifying that “the umma [the Muslim community] is the source of sulta [political authority].” In pursuit of popular authority, the Brotherhood has formed electoral alliances with secularists, nationalists, and liberals. Therefore, jihadists view the Brotherhood’s embrace of democracy as blasphemy (Leiken, p. 4)
Instead of the Madrasahs models, run by radicals and Jihadists, which teach students intolerance and radicalism, and even deny girls education, the Egyptian MB created modern schools, where boys and girls are offered equal opportunities for education, learned foreign languages and taught to be effective members in societies. The MB works to dissuade Muslims from violence, instead channeling them into politics and charitable activities (Leiken, p. 6)
Moderate Islamists reject terrorism, violence and killing of innocent civilians who are not involved in combat. As Robert Leiken and Steven Brook argued in 2007, the MB itself played a role in resisting radicalization within its own ranks, when “Sayyid Qutb, then the MB’s most profound thinker, and in response to extreme oppression by Nasser’s regime, produced an answer that would echo into the twenty-first century: these were the acts of apostates, kafireen. Accordingly, the torturers and their regime were legitimate targets of jihad. But from his own cell, Hudaybi (MB General Guide) disputed Qutb’s conclusion. Only God, he believed, could judge faith. He rejected takfir (the act of declaring another Muslim an apostate), arguing that “whoever judges that someone is no longer a Muslim ... deviates from Islam and transgresses God’s will by judging another person’s faith.”Within the Brotherhood, Hudaybi’s tolerant view—in line with Banna’s founding vision—prevailed, cementing the group’s moderate vocation. But it appalled the takfiris, who streamed out of the Brotherhood. Qutb, who breathed his last on Nasser’s gallows in 1966, went on to become the prophet and martyr of jihad. “Qutb has influenced all those interested in jihad throughout the Islamic world,” said a founding member of al-Gama’a al-Islamiyya, an erstwhile jihadist group known for its vicious campaign against foreign tourists in Egypt during the 1980s. “The Brothers,” he continued sadly, “have abandoned the ideas of Sayyid Qutb.” (Leiken, p. 4)
Leiken and Brook further reputed a common myth accusing the MB, and movements of moderate Islam of spawning other terrorist groups. They argued that “having lost the internal struggle for the Brotherhood, the radicals regrouped outside it, in sects that sought to topple regimes throughout the Muslim world. (Groups such as al Jihad would furnish the Egyptian core of al Qaeda.) These jihadists view the Brotherhood’s embrace of democracy as blasphemy. Channeling Qutb, they argue that any government not ruling solely by sharia is apostate; democracy is not just a mistaken tactic but also an unforgivable sin, because it gives humans sovereignty over Allah. Osama bin Laden’s lieutenant, Zawahiri, calls it “the deification of the people.”Abu Hamza al-Masri, the one-eyed radical cleric who presided over London’s notorious Finsbury Park mosque, considers democracy “the call of self-divinity loud and clear, in which the rights of one group of people, who have put their idea to vote, have put their ideas and their decisions over the decisions of Allah.” Abu Muhammad al-Maqdisi (whom a recent West Point study found to be the most influential living jihadist thinker) inveighs, “Democracy is obvious polytheism and thus just the kind of infidelity that Allah warns against, in His Book.” (Leiken, p. 5). In London, Brotherhood leaders contrasted their approach to that of radical groups, such as Hizb ut-Tahrir (ht), that “seek to bring society to a boiling point.” (Leiken, p. 7)
On the other hand, the MB’s success in elections, professional syndicates and social support institutions led to harsh response from the Egyptian government from the mid-1980s, onward. Initially, in 1981, Mubarak offered the MB olive branch, legitimizing it as the primary representative of centrist Islamism, which place militants outside the mainstream. Once they are isolated, he can take forceful measures against them with little protest from Egyptian sympathetic to centrist Islamists (Walsh, p. 82)
However, the MB gained popularity and penetrated professional and student association. In 1990s, the brotherhood had taken over nearly all of the prominent associations. The Brotherhood exploited the longstanding alienation of young, educated Egyptian professionals who had been guaranteed government jobs upon graduation since the days of Nasser but had become heavy burden on the state. The social support network that the Brotherhood had cultivated as the third wing of their campaign during this period was an enormous draw for these professionals; the Brotherhood offered full health insurance and other considerable welfare benefits that no other organization could provide (Walsh, p. 83). The MB experience in the past 20 years have suggested that it may be more capable of providing social services to the Egyptian population, more reliable in keeping the promises it has made, and even more democratic than the secular regime that has enjoyed consistent US support (Walsh, p. 82)
Therefore, and in order to undercut the MB’s chances of presenting itself as viable alternative to the dysfunctional government, Mubarak took measures to crackdown on MB activities that would show a lack of rigid discrimination between radicals and moderates, and very possibly Mubarak’s recognition of the moderates as the greater political threat. In the remainder of the 1990s, there were violent outbreaks that erased the distinction between radicals and moderate Islamists in Egyptian government policy. Warfare erupted between the government and Islamic radicals from al-Gama’at al-Islamiyyah and al-Jihad, launching series of terrorist attacks between 1995-1997, after the Gulf War. The government’s campaign against Islamic radicals succeeded in isolating the violence, but also struck the MB. The regime arrested a number of civic officials, academics, former parliamentarians, and members of professional syndicates
In 2001 and 2002, when several younger MB leaders who were imprisoned in 1995, were released and resumed their positions in the organization. Another turning point occurred in 2004, when the 84-year-old General Guide Ma'mun al-Hudaybi passed away. Al-Hudaybi had been one of the most eminent members of the old guard. His death marked the beginning of a transition toward a new generation of leadership. While the younger generation was not permitted to take the top spot, two of its most respected leaders — Muhammad Habib and Khayrat al-Shatir — were promoted to the post of Deputy General Guide. The new General Guide, Muhammad 'Akif, publicly endorsed the moderate political views articulated by the younger generation (Rutherford, p. 721)
Despite of the MB tolerance and moderation facing increasing repression by the Egyptian government; Egypt’s interior minister said to The Economist,” The Brotherhood is a greater threat to the safety of the state than the terrorists and the militant groups. We are determined not to go Algeria’s way”. In 1994, Mubarak told The New Yorker “The Middle East terrorism is a by-product of our own illegal Muslim Brotherhood” (Walsh, p. 84), despite of lack of evidence that supports the MB violent tendencies (p. 85). MB leader Ahmed Hassanein insists that the Brotherhood has never ordered an act of terrorism, even during the organization’s truly underground days in the peak of the Nasser revolutions. Even today, there have been no concrete links made between acts of terrorism and anyone who might be construed an official of the MB. The Brotherhood does not deny, however, that members of the organization have committed radical acts. Just because the Brotherhood shares the same long-term goal as radical group does not necessarily mean there is an overlap in their short-term methods, and at this point there is no evidence to undermine the Brotherhood’s peaceful rhetoric (p. 86).
According to Leiken & Brook “The Brotherhood claims success at sifting radicalism out of its ranks through organizational discipline and a painstaking educational program. (One Muslim Brother noted that the organization’s motto could be “Listen and Obey.”) If a Muslim Brother wishes to commit violence, he generally leaves the organization to do so. That said, a number of militants have passed through the Brotherhood since its inception, and the path from the Brotherhood to jihad is not buried in sand. Defections have historically occurred when the organization has faced a conjunction of internal and external pressures, as when the takfiri element emerged under repression to produce the Egyptian jihadist movement. Today, however, Brothers who leave the organization are more likely to join the moderate center rather than to take up jihad” (p. 7)
Few of the vices the Western world seeks to combat in the Middle East apply to the Brotherhood, but many of them do apply to the Egyptian regime, which has unquestionably failed to deliver meaningful economic relief to an extremely poor population, remains undemocratic, and uses violence in an arbitrary fashion. In this light, the gap between Western and centrist Islamist interest seems significantly less difficult to close (Walsh, p. 86). Furthermore cooperation [between MB and US] in specific areas of mutual interest—such as opposition to al Qaeda, the encouragement of democracy, and resistance to expanding Iranian influence—could well be feasible (Leiken, p.14)
References
Bar, S. (2004, June). The Religious Sources of Islamic Terrorism. Policy Review
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Hoffman, B. (2006). Inside terrorism. (2nd ed). New York: Columbia University Press
Hoveyda, F. (2001). Moderate Islamists? American Foreign Policy Interests, (23), pp. 53-59.
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Hoveyda, f. (2005). Understanding and fighting Islamist terrorism. American Foreign Policy Interests, (27), pp. 503-512.
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Leiken, R., & Brooke, S. (2007, March). The Moderate Muslim Brotherhood. Foreign Affairs, 86(2), pp. 107-121.
Rutherford, B. K. (2006, Autumn). What do Egypt Islamists want? Moderate Islam and the rise of Islamic constitutionalism. Middle East Journal, 60 (4), pp. 707-731.
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Just-War theory. Metaphilosophy, 35(3), pp. 26-68.
Walsh, J. (2003, Winter). Egypt's Muslim Brotherhood. Harvard International Review, 24(4), 32.
Saturday, August 29, 2009
Sunday, August 2, 2009
Anti-terrorism lessons from the Libya case
Gawdat Bahgat in 2004, argued that the ongoing transformation of Libya, from a “pariah state” (p. 374, & p. 386) refusing to abide by international norms and laws (p. 390), and a state-sponsoring terrorism, into a partner in the fight against terrorism, engaging fully in multilateral economic and political relations with the rest of the world, represents the first time in the history of the international struggle against modern terrorism that the international community has succeeded in imposing and enforcing effective sanctions against a terrorism-sponsoring state under the auspices of the UNSC (p. 384). Furthermore, Ray Takeyh in 2004 contended “the Libya case can provide a model for how to deal with a revolutionary regime that has grown weary of its isolation and ostracism” (p. 72)
Libya’s strained relations with the West began shortly after September of 1969, when the 27 years old Mu’ammar el-Qaddafi, seized power toppling the conservative monarchy of King Idris. As young revolutionary, el-Qaddafi had ambitions to assume the leadership position in the Arab world once held by late Egyptian President and Arab nationalist Gamal abdel Nassar (1954-1970), which led him to direct his anger at what he perceived as “Western injustice” (Bahgat, p. 390), and blaming the West for the Arab world’s problems. Libya also provided terrorist groups throughout the world with money and arms; on top of them was the PLO, which was regarded by all Arab countries as liberation movement (p. 383). Libya’s policies as revolutionary state was similar to other revolutionary regimes in the Middle East like Egypt’s Nasser, Iran, and Iraq, which traditionally antagonized Western interests in the region and allied themselves with terrorist groups they considered liberation movements (p. 374 & 383).
John Cooley argued in 1981 explained how the US oil companies have helped create the conditions that led to Qaddafi’s seize of power in 1969 by supporting and allying themselves in the public eye with the corrupt Libyan elite (p. 74 & 78). Therefore, the US administration initially accepted Qaddafi’s regime, praising his anticommunist ideology and anti-Soviet rhetoric, and showed no sympathy to the ousted king (p. 81). The Nixon administration was also pleased when Qaddafi denounced the Soviet role in the 1971 Indo-Pakistani war in the area, and his approval of the Egyptian President Sadat’s expulsion of the Soviet military advisers from Egypt in July 1972 (p. 75)
However, in mid 1970s, Qaddafi’s support for global revolution and terrorism became more apparent (Cooley, p.84), further straining its relations with the West, in particular the United States. On April 15, 1973, at the peak of the Arab-Israeli conflict, Qaddafi attempted to sink the ship Queen Elizabeth II, which had many Jewish Americans on board (Cooley, p. 86). Furthermore, the US and its European allies were greatly concerned by Qaddafi’s apparent reversal of attitudes toward the Soviet Union since 1974 (p.77). Qaddafi also took a series of decisions that would increase Libyan control over the foreign oil companies (p. 82), and by mid-1974 Libya controlled about 2/3 of its production (p. 83)
Consequently, on May 2, 1980, the US closed its embassy in Tripoli, at times when the Soviets were trying to repair their relations with Qaddafi (Cooley, pp.84-85). Moreover, Qaddafi’s regime opposed Camp David’s peace treaty between Egypt and Israel and joined the camp of Arab states that threatened to wipe Israel off the map (Cooley, p. 75). He elevated his anti-American rhetoric when he accused the Saudi Royal family of desecrating Islamic holy places by allowing a US military presence in their country following the Iraqi invasion of Kuwait in 1991 (Cooley, p. 89)
In the 1980s, Libya’s support of international terrorism widened, and in 1986 the US attacked Libya for its involvement in the bombing of Berlin disco killing two US servicemen (Bahgat, p. 383). Libya responded by the 1988 and 1989 terrorist attacks against Pan Am and French UTA respectively, killing hundreds of civilians from different countries (Bahgat, p. 383). Furthermore, Qaddafi has made it known that his next ambition is to make Libya the first Arab nuclear power. Libya sought but failed to buy nuclear bomb from China, and arranged to share in the efforts and proceeds of the Pakistani nuclear program by financing the Pakistani nuclear program (Cooley, p. 87). Furthermore, in pursuing his nuclear ambitions, Qaddafi attempted to obtain uranium from northern Chad occupied by Libyan troops since 1975 (Cooley. P. 88).
However, Libya’s international hostile policies did not come without a price. The UN in 1992 and 1993 imposed comprehensive sanctions against Libya, which had greatest impact weakening Libyan economy especially the hydrocarbon industry, costing Libya an estimated $26.5 billion (Bahgat, p. 384). The country’s growing oil production declined to less than half by 2003, losing its booming edge of 1960s due bilateral and multilateral devastating sanctions against Libya’s oil and gas industry. The deteriorating economic conditions in Libya-30% unemployment and 50% inflation rates (Takeyh, p. 65)- compounded by the collapse of the oil prices in 1998/1999, which revenues constitute 75% of the government expenditure and the main source of its foreign currency (p. 377-378), led to mounting popular unrest in Libya fueled by Islamist insurgency, and competing politics between pragmatics and hardliners within the Libyan elites, sending the country into chaos by mid-1990s (Takeyh, p. 65).
Takeyh argued that the UN sanctions following Lockerbie—particularly oil and technology embargo—and their devastating effect on Libya’s economy shattered Qaddafi’s long beliefs that Libya’s oil resources and wealth will undermine international unity and render the country immune to sanctions and that the world powers will not have the guts to interrupt the flow of oil from Libya for long (p. 64). Furthermore, according to Takeyh, the collapse of the Soviet Union left Qaddafi Isolated and exposed facing international pressure, especially at times when the Arab world began to negotiate peace with Israel, and seek better relations with the US (p. 64).
Faced with futile revolutionary ideology, deteriorating economy, mounting popular unrest, two military coups, and Islamic insurgency, Qaddafi realized in 1998 that that he had to accept the “passing of the age of revolutions and the arrival of globalization” and economic interdependence (pp. 64-65). As a result, Libya showed interests in multilateral institutions, and the desire to work within the international organizations to reconcile grievances, instead of resorting to terrorism (p. 72)
Qaddafi’s actions were indicative that he would steer Libya in favoring pragmatics within his regime, and shifted his international focus toward Africa & away from the Arab-Israeli conflict thus mediating crises as well as settling conflicts precipitated in working, multilateral institutions (Takeyh, p. 67). Qaddafi also began to implement a series of political and economic reforms aimed at ending Libya’s international isolation, seeking better relations with the West, and encourage foreign investment crucial for Libya’s economic recovery (Bahgat, p. 37 & p. 378; Takeyh, p. 68).
In 1999 and a result of Libya’s transformation, sanctions against Libya began to be lifted (Bahgat, p. 382). By September of 2000, Qaddafi declared the end of his anti-imperialist struggle and declared he will have to “follow the moment” and becomes a part of interdependent world shaped by globalization (Takeyh, p. 66). In 2002, Libya became a party to the 1999 Convention for the Suppression of the Financing of Terrorism, thus Tripoli became a party to all the 12 international conventions and protocols relating to terrorism (Bahgat, p. 386). By 2003 Libya became no longer isolated (Bahgat, p. 382). This allowed European and American oil and gas companies to resume working in Libya in full force to utilize Libya’s vast natural energy resources, which is anticipated to enhance global energy security and reduce prices (p. 382). By 2006, Libya’s oil production reached its 1970s level, and Libya became the 15th oil imports to the United States (Power Point presentation, Week 8)
Similar to Bahgat, Ray Takeyh (2004) contended that the successful shift in Libya’s policies was likely due to a combination of the above international, regional, and domestic developments. They both underscored the effect of economic sanctions on Libyan leader Mu’ammar el-Qaddafi’s “philosophical evolution” leading him to abandon his anti-imperialist struggle in September of 2000, and announcing “the world has changed radically and drastically. The methods and ideas should change, and being a revolutionary and a progressive man, I have to follow this moment” (p. 66).
Moreover, they both concluded adding that “the very fact that Qaddafi surrendered the suspects [in the Pan Am bombing] suggests that international pressure has prompted subtle yet significant changes in his foreign policy.” (p. 63). Furthermore, Bahgat argued that "rising political challenges from fundamentalist Islamist groups capitalizing on poor economy, and the desire by el-Qaddafi to groom his son to succeed him, "have convinced the Libyan leadership that economic reform and acceptance by the international community was a necessary". Therefore, "Libya decided to trade its involvement in international terrorism and its poorly developed WMD for lifting sanctions and the normalization of diplomatic and political relations with the West" (pp. 392-393).
As Qaddafi implemented his new policies towards the West and ended his support to international terrorism, Libya also began in 190s to shift its attitude towards another contentious issue in its relations with the West: the proliferation of WMDs, which the government decided was not in its best interests (Bahgat, p. 390). In December 0f 2003, Libya finally declared it is abandoning its ambitions to seek WMDs and would fully cooperate with the international community and IAEA to destroy tons of chemical weapons, and surrender documents related to its WMDs activities (pp. 386-390), a step praised by major powers including the US and UK (Bahgat, 2004, p. 373). Moreover, Libya took responsibility for several terrorist attacks committed by its intelligence services, agreed to pay compensations to victims’ families (pp. 384-385), and cooperated in the war against international terrorism (p. 386) dissociating itself from terrorist groups (p. 375 & 382). Furthermore, in 2002, Libya became a party to the 1999 Convention for the Suppression of the Financing of Terrorism, thus Tripoli became a party to all the 12 international conventions and protocols relating to terrorism (p. 386).
The dramatic change in Libya’s policies and behavior was regarded by various European countries, as well as China, Russia, Iran and Arab leaders who have been strongly critical of the war in Iraq as indication of how effective economic and diplomatic pressure could be, without the need to use military power (p. 387)
Libyan involvement in international terrorism has been different from that of other countries. Bahgat cited at least five distinctive characteristics of the Libyan case can be identified. The combination of these characteristics makes Libya an almost unique case in the war on terrorism and the states that sponsor it. First, Tripoli’s backed-terrorist operations targeted citizens of several countries (p.383). Second, most states that are accused of sponsoring international terrorism strongly deny these accusations. Tripoli, however, under pressure has accepted legal responsibility for several terrorist operations and paid financial compensations to the victims’ families. Third, the international community was united in condemning Libya’s involvement in international terrorism and took specific measures to compel Tripoli to change its policy and abide by international norms (p. 384). Forth, international sanctions seem to have contributed to shaping a new Libyan attitude on terrorism in particular and on foreign policy in general. Al-Qaddafi has sought to position himself and his country as a power broker in Africa and as an economic intermediary between Europe and Africa (p. 385). Finally, Libya stated in 2004 that its intelligence had been sharing information on al-Qa’eda and other Islamic extremists with Western intelligence services and characterized such cooperation as “irrevocable” (p. 386)
As Bahgat elaborated, the Libyan case was unique compared with other states remaining on the list of sponsoring terrorism today, not only because Libya’s support of terrorism had distinctive characteristics, but also because the anti-terrorism strategies employed successfully by the international community will be difficult to achieve the same success today, for several reasons, among them is that the nature of terrorism itself has changed, in addition to the changing dynamic between the state and the sponsored terrorist group. Furthermore, despite of Qaddafi’s regime ‘s support and practice of terrorism and his anti-Western rhetoric, has never actually destabilized US interests, compared with leader like Saddam Hussien, who twice invaded his neighbors and continued to seek hegemony over the Persian Gulf (Takeyh, p. 68). Qaddafi also has shown himself to be more susceptible to international pressure compared with Saddam Hussien (p. 68), and Ahmadinejad.
While most of the 19th century terrorism that Libya supported was “secular” , driven by the notions of nationalism and self-determination and the growing popularity of radical political thought embracing Marxist ideology (Hoffman, 2006, p. 84), terrorism in last three decades and as a result of the repercussions of the revolution in Iran has began to take religious meaning (p. 85). States –sponsoring religious terrorism are usually less likely to bow to international pressure, since their relation with the sponsored group is based on firm ideology derived from religious belief. Example is the support that Iran provides to terrorist groups such as Hamas and Hezbollah. Unlike Iran, which refuses official contact with the US, Libya is eager to open a diplomatic dialogue (Takeyh, p. 70)
Cooley argued how the US dependence on Libyan oil has been a constant factor deterring US action against Qaddafi, even greater West European dependence on Libyan oil and gas (p. 90). Therefore, in order for the international community to an effective strategy against Libya, the US and European governments had to create contingency plans to cope with an embargo on Libyan oil. Hence, was the strategy to explore possible alternative sources for oil, such as Algeria and Saudi Arabia (p. 91)
Moreover, the US and allies strategy with Libya for two decades was based on the rejection of any direct military action against Libya, and on the constant consultation and coordination with European allies (Cooley, p. 91). Takeyh argued that such unified international pressure was crucial for the success of the anti-terrorism strategy against Libya (p. 63), something that is not possible today, especially with China and Russia’s deep economic relations with countries sponsoring terrorism such as Iran, Syria and Sudan. Therefore, diplomacy should not be mounted against states-sponsoring terrorism only, but also should involve countries that maintain economic relations with them, in order for UN sanctions achieve their desired effects. The US implemented this strategy against Libya, when its European allies fulfilled their part in enforcing the UN sanctions, blocking all life lines to the Libyan regime (Takeyh, p. 71). However, such cohesive and collective international action was threatened by the US unilateral action in waging war against Iraq without UN mandate, which consequently undermined international unity facing regimes such as Iran, Syria and Sudan.
In order for the international community to neutralize and weaken the Libyan regime, it was necessary to strengthen regimes threatened inside their own countries by overt Libyan action, and constantly monitor the Soviet arsenal in Libya (Cooley, p. 92). The international community is utilizing this strategy currently in Lebanon by aiding its government against attempts by Syria and Iran to destabilize the country to serve their own domestic and international interests.
Furthermore, Takeyh contended that the policy of incremental normalization was important in dealing with Libya in order to enhance constructive Libyan conduct and further pushes its regime towards moderation. This strategy is essential in encouraging more rouge states to seek rehabilitation and integration within the international community (p. 72)
References
Byman, D. (2005) Deadly Connections: States that Sponsor Terrorism (1st ed). New York:
Cambridge University Press
Bahgat, G. (Winter, 2004). Oil, Terrorism, and Weapons of Mass Destruction: The Libyan
Diplomatic Coup. Journal of Social, Political & Economic Studies, 29 (4), pp. 373-394.
Retrieved July 27, 2009, from Academic Search Premier
Cooley, J.K. (Spring, 1981). The Libyan menace. Foreign Policy, (42), pp. 74-93. Retrieved July 28,
from Academic Search Premier
Hoffman, B. (2006). Inside terrorism. (2nd ed). New York: Columbia University Press
Murphy, S.D. (2001). Verdict in the trial of the Lockerbie bombing suspects. The American Journal
of International Law, 95(2), pp.405-407. Retrieved July 28, 2009, from ProQuest Social
Science Journals
Takeyh, R. (2001, May). The Rogue Who Came in From the Cold. Foreign Affairs, 80(3), 62-72.
Retrieved July 28, 2009, from Academic Search Premier
Libya’s strained relations with the West began shortly after September of 1969, when the 27 years old Mu’ammar el-Qaddafi, seized power toppling the conservative monarchy of King Idris. As young revolutionary, el-Qaddafi had ambitions to assume the leadership position in the Arab world once held by late Egyptian President and Arab nationalist Gamal abdel Nassar (1954-1970), which led him to direct his anger at what he perceived as “Western injustice” (Bahgat, p. 390), and blaming the West for the Arab world’s problems. Libya also provided terrorist groups throughout the world with money and arms; on top of them was the PLO, which was regarded by all Arab countries as liberation movement (p. 383). Libya’s policies as revolutionary state was similar to other revolutionary regimes in the Middle East like Egypt’s Nasser, Iran, and Iraq, which traditionally antagonized Western interests in the region and allied themselves with terrorist groups they considered liberation movements (p. 374 & 383).
John Cooley argued in 1981 explained how the US oil companies have helped create the conditions that led to Qaddafi’s seize of power in 1969 by supporting and allying themselves in the public eye with the corrupt Libyan elite (p. 74 & 78). Therefore, the US administration initially accepted Qaddafi’s regime, praising his anticommunist ideology and anti-Soviet rhetoric, and showed no sympathy to the ousted king (p. 81). The Nixon administration was also pleased when Qaddafi denounced the Soviet role in the 1971 Indo-Pakistani war in the area, and his approval of the Egyptian President Sadat’s expulsion of the Soviet military advisers from Egypt in July 1972 (p. 75)
However, in mid 1970s, Qaddafi’s support for global revolution and terrorism became more apparent (Cooley, p.84), further straining its relations with the West, in particular the United States. On April 15, 1973, at the peak of the Arab-Israeli conflict, Qaddafi attempted to sink the ship Queen Elizabeth II, which had many Jewish Americans on board (Cooley, p. 86). Furthermore, the US and its European allies were greatly concerned by Qaddafi’s apparent reversal of attitudes toward the Soviet Union since 1974 (p.77). Qaddafi also took a series of decisions that would increase Libyan control over the foreign oil companies (p. 82), and by mid-1974 Libya controlled about 2/3 of its production (p. 83)
Consequently, on May 2, 1980, the US closed its embassy in Tripoli, at times when the Soviets were trying to repair their relations with Qaddafi (Cooley, pp.84-85). Moreover, Qaddafi’s regime opposed Camp David’s peace treaty between Egypt and Israel and joined the camp of Arab states that threatened to wipe Israel off the map (Cooley, p. 75). He elevated his anti-American rhetoric when he accused the Saudi Royal family of desecrating Islamic holy places by allowing a US military presence in their country following the Iraqi invasion of Kuwait in 1991 (Cooley, p. 89)
In the 1980s, Libya’s support of international terrorism widened, and in 1986 the US attacked Libya for its involvement in the bombing of Berlin disco killing two US servicemen (Bahgat, p. 383). Libya responded by the 1988 and 1989 terrorist attacks against Pan Am and French UTA respectively, killing hundreds of civilians from different countries (Bahgat, p. 383). Furthermore, Qaddafi has made it known that his next ambition is to make Libya the first Arab nuclear power. Libya sought but failed to buy nuclear bomb from China, and arranged to share in the efforts and proceeds of the Pakistani nuclear program by financing the Pakistani nuclear program (Cooley, p. 87). Furthermore, in pursuing his nuclear ambitions, Qaddafi attempted to obtain uranium from northern Chad occupied by Libyan troops since 1975 (Cooley. P. 88).
However, Libya’s international hostile policies did not come without a price. The UN in 1992 and 1993 imposed comprehensive sanctions against Libya, which had greatest impact weakening Libyan economy especially the hydrocarbon industry, costing Libya an estimated $26.5 billion (Bahgat, p. 384). The country’s growing oil production declined to less than half by 2003, losing its booming edge of 1960s due bilateral and multilateral devastating sanctions against Libya’s oil and gas industry. The deteriorating economic conditions in Libya-30% unemployment and 50% inflation rates (Takeyh, p. 65)- compounded by the collapse of the oil prices in 1998/1999, which revenues constitute 75% of the government expenditure and the main source of its foreign currency (p. 377-378), led to mounting popular unrest in Libya fueled by Islamist insurgency, and competing politics between pragmatics and hardliners within the Libyan elites, sending the country into chaos by mid-1990s (Takeyh, p. 65).
Takeyh argued that the UN sanctions following Lockerbie—particularly oil and technology embargo—and their devastating effect on Libya’s economy shattered Qaddafi’s long beliefs that Libya’s oil resources and wealth will undermine international unity and render the country immune to sanctions and that the world powers will not have the guts to interrupt the flow of oil from Libya for long (p. 64). Furthermore, according to Takeyh, the collapse of the Soviet Union left Qaddafi Isolated and exposed facing international pressure, especially at times when the Arab world began to negotiate peace with Israel, and seek better relations with the US (p. 64).
Faced with futile revolutionary ideology, deteriorating economy, mounting popular unrest, two military coups, and Islamic insurgency, Qaddafi realized in 1998 that that he had to accept the “passing of the age of revolutions and the arrival of globalization” and economic interdependence (pp. 64-65). As a result, Libya showed interests in multilateral institutions, and the desire to work within the international organizations to reconcile grievances, instead of resorting to terrorism (p. 72)
Qaddafi’s actions were indicative that he would steer Libya in favoring pragmatics within his regime, and shifted his international focus toward Africa & away from the Arab-Israeli conflict thus mediating crises as well as settling conflicts precipitated in working, multilateral institutions (Takeyh, p. 67). Qaddafi also began to implement a series of political and economic reforms aimed at ending Libya’s international isolation, seeking better relations with the West, and encourage foreign investment crucial for Libya’s economic recovery (Bahgat, p. 37 & p. 378; Takeyh, p. 68).
In 1999 and a result of Libya’s transformation, sanctions against Libya began to be lifted (Bahgat, p. 382). By September of 2000, Qaddafi declared the end of his anti-imperialist struggle and declared he will have to “follow the moment” and becomes a part of interdependent world shaped by globalization (Takeyh, p. 66). In 2002, Libya became a party to the 1999 Convention for the Suppression of the Financing of Terrorism, thus Tripoli became a party to all the 12 international conventions and protocols relating to terrorism (Bahgat, p. 386). By 2003 Libya became no longer isolated (Bahgat, p. 382). This allowed European and American oil and gas companies to resume working in Libya in full force to utilize Libya’s vast natural energy resources, which is anticipated to enhance global energy security and reduce prices (p. 382). By 2006, Libya’s oil production reached its 1970s level, and Libya became the 15th oil imports to the United States (Power Point presentation, Week 8)
Similar to Bahgat, Ray Takeyh (2004) contended that the successful shift in Libya’s policies was likely due to a combination of the above international, regional, and domestic developments. They both underscored the effect of economic sanctions on Libyan leader Mu’ammar el-Qaddafi’s “philosophical evolution” leading him to abandon his anti-imperialist struggle in September of 2000, and announcing “the world has changed radically and drastically. The methods and ideas should change, and being a revolutionary and a progressive man, I have to follow this moment” (p. 66).
Moreover, they both concluded adding that “the very fact that Qaddafi surrendered the suspects [in the Pan Am bombing] suggests that international pressure has prompted subtle yet significant changes in his foreign policy.” (p. 63). Furthermore, Bahgat argued that "rising political challenges from fundamentalist Islamist groups capitalizing on poor economy, and the desire by el-Qaddafi to groom his son to succeed him, "have convinced the Libyan leadership that economic reform and acceptance by the international community was a necessary". Therefore, "Libya decided to trade its involvement in international terrorism and its poorly developed WMD for lifting sanctions and the normalization of diplomatic and political relations with the West" (pp. 392-393).
As Qaddafi implemented his new policies towards the West and ended his support to international terrorism, Libya also began in 190s to shift its attitude towards another contentious issue in its relations with the West: the proliferation of WMDs, which the government decided was not in its best interests (Bahgat, p. 390). In December 0f 2003, Libya finally declared it is abandoning its ambitions to seek WMDs and would fully cooperate with the international community and IAEA to destroy tons of chemical weapons, and surrender documents related to its WMDs activities (pp. 386-390), a step praised by major powers including the US and UK (Bahgat, 2004, p. 373). Moreover, Libya took responsibility for several terrorist attacks committed by its intelligence services, agreed to pay compensations to victims’ families (pp. 384-385), and cooperated in the war against international terrorism (p. 386) dissociating itself from terrorist groups (p. 375 & 382). Furthermore, in 2002, Libya became a party to the 1999 Convention for the Suppression of the Financing of Terrorism, thus Tripoli became a party to all the 12 international conventions and protocols relating to terrorism (p. 386).
The dramatic change in Libya’s policies and behavior was regarded by various European countries, as well as China, Russia, Iran and Arab leaders who have been strongly critical of the war in Iraq as indication of how effective economic and diplomatic pressure could be, without the need to use military power (p. 387)
Libyan involvement in international terrorism has been different from that of other countries. Bahgat cited at least five distinctive characteristics of the Libyan case can be identified. The combination of these characteristics makes Libya an almost unique case in the war on terrorism and the states that sponsor it. First, Tripoli’s backed-terrorist operations targeted citizens of several countries (p.383). Second, most states that are accused of sponsoring international terrorism strongly deny these accusations. Tripoli, however, under pressure has accepted legal responsibility for several terrorist operations and paid financial compensations to the victims’ families. Third, the international community was united in condemning Libya’s involvement in international terrorism and took specific measures to compel Tripoli to change its policy and abide by international norms (p. 384). Forth, international sanctions seem to have contributed to shaping a new Libyan attitude on terrorism in particular and on foreign policy in general. Al-Qaddafi has sought to position himself and his country as a power broker in Africa and as an economic intermediary between Europe and Africa (p. 385). Finally, Libya stated in 2004 that its intelligence had been sharing information on al-Qa’eda and other Islamic extremists with Western intelligence services and characterized such cooperation as “irrevocable” (p. 386)
As Bahgat elaborated, the Libyan case was unique compared with other states remaining on the list of sponsoring terrorism today, not only because Libya’s support of terrorism had distinctive characteristics, but also because the anti-terrorism strategies employed successfully by the international community will be difficult to achieve the same success today, for several reasons, among them is that the nature of terrorism itself has changed, in addition to the changing dynamic between the state and the sponsored terrorist group. Furthermore, despite of Qaddafi’s regime ‘s support and practice of terrorism and his anti-Western rhetoric, has never actually destabilized US interests, compared with leader like Saddam Hussien, who twice invaded his neighbors and continued to seek hegemony over the Persian Gulf (Takeyh, p. 68). Qaddafi also has shown himself to be more susceptible to international pressure compared with Saddam Hussien (p. 68), and Ahmadinejad.
While most of the 19th century terrorism that Libya supported was “secular” , driven by the notions of nationalism and self-determination and the growing popularity of radical political thought embracing Marxist ideology (Hoffman, 2006, p. 84), terrorism in last three decades and as a result of the repercussions of the revolution in Iran has began to take religious meaning (p. 85). States –sponsoring religious terrorism are usually less likely to bow to international pressure, since their relation with the sponsored group is based on firm ideology derived from religious belief. Example is the support that Iran provides to terrorist groups such as Hamas and Hezbollah. Unlike Iran, which refuses official contact with the US, Libya is eager to open a diplomatic dialogue (Takeyh, p. 70)
Cooley argued how the US dependence on Libyan oil has been a constant factor deterring US action against Qaddafi, even greater West European dependence on Libyan oil and gas (p. 90). Therefore, in order for the international community to an effective strategy against Libya, the US and European governments had to create contingency plans to cope with an embargo on Libyan oil. Hence, was the strategy to explore possible alternative sources for oil, such as Algeria and Saudi Arabia (p. 91)
Moreover, the US and allies strategy with Libya for two decades was based on the rejection of any direct military action against Libya, and on the constant consultation and coordination with European allies (Cooley, p. 91). Takeyh argued that such unified international pressure was crucial for the success of the anti-terrorism strategy against Libya (p. 63), something that is not possible today, especially with China and Russia’s deep economic relations with countries sponsoring terrorism such as Iran, Syria and Sudan. Therefore, diplomacy should not be mounted against states-sponsoring terrorism only, but also should involve countries that maintain economic relations with them, in order for UN sanctions achieve their desired effects. The US implemented this strategy against Libya, when its European allies fulfilled their part in enforcing the UN sanctions, blocking all life lines to the Libyan regime (Takeyh, p. 71). However, such cohesive and collective international action was threatened by the US unilateral action in waging war against Iraq without UN mandate, which consequently undermined international unity facing regimes such as Iran, Syria and Sudan.
In order for the international community to neutralize and weaken the Libyan regime, it was necessary to strengthen regimes threatened inside their own countries by overt Libyan action, and constantly monitor the Soviet arsenal in Libya (Cooley, p. 92). The international community is utilizing this strategy currently in Lebanon by aiding its government against attempts by Syria and Iran to destabilize the country to serve their own domestic and international interests.
Furthermore, Takeyh contended that the policy of incremental normalization was important in dealing with Libya in order to enhance constructive Libyan conduct and further pushes its regime towards moderation. This strategy is essential in encouraging more rouge states to seek rehabilitation and integration within the international community (p. 72)
References
Byman, D. (2005) Deadly Connections: States that Sponsor Terrorism (1st ed). New York:
Cambridge University Press
Bahgat, G. (Winter, 2004). Oil, Terrorism, and Weapons of Mass Destruction: The Libyan
Diplomatic Coup. Journal of Social, Political & Economic Studies, 29 (4), pp. 373-394.
Retrieved July 27, 2009, from Academic Search Premier
Cooley, J.K. (Spring, 1981). The Libyan menace. Foreign Policy, (42), pp. 74-93. Retrieved July 28,
from Academic Search Premier
Hoffman, B. (2006). Inside terrorism. (2nd ed). New York: Columbia University Press
Murphy, S.D. (2001). Verdict in the trial of the Lockerbie bombing suspects. The American Journal
of International Law, 95(2), pp.405-407. Retrieved July 28, 2009, from ProQuest Social
Science Journals
Takeyh, R. (2001, May). The Rogue Who Came in From the Cold. Foreign Affairs, 80(3), 62-72.
Retrieved July 28, 2009, from Academic Search Premier
Sunday, June 28, 2009
Why is terrorism hard to define?
Bruce Hoffman in 2006 argued that terrorism is so difficult to define mainly because “the meaning of the term has changed so frequently over the past two decades” (p. 3). Furthermore, Jenkins contended that terrorism should be defined “by the nature of the act, not by the identity of the perpetrators or the nature of their cause” (p. 25).
In his summary of the changing nature of terrorism, Bruce Hoffman explained that until the 19th century, religion provided the only justification of terrorism (p. 84). He added that the emergence of the notions of nationalism and self-determination at the beginning of 19th century, and the growing popularity of radical political thought embracing Marxist ideology completed the transformation of terrorism from a mostly religious to predominately secular phenomenon. According to Hoffman, this process of “secularization” was given fresh impetus by the anticolonical/national liberation movements that arose after the Second World War to challenge continued Western rule in Asia, the ME, and Africa and subsequently exerted so profound an influence on ethno-nationalist/separatist and ideological terrorist organizations in the late 1960s and early 1970s (p. 84)
Going back to the French Revolution, Hoffman explained that “terrorism”-or régime de la terreur- was first used to refer to “revolutionary or antigovernmental activity undertaken by nonstate or subnational entities, and an instrument of governance wielded by the recently established revolutionary state” (p. 3). Then the meaning of terrorism changed at the end of the French Revolution to be associated with “the abuse of office and power—with overt criminal implications”, when the French executed those who abused their power and resorted to régime de la terreur to eliminate political opponents (p. 4)
According to Hoffman, the French Revolution led to the spread of antimonarchical sentiment elsewhere in Europe during a period of time when nationalism and Industrial Revolution have generated massive socioeconomic changes, and hence a new era of terrorism emerged; terrorism based on ideology (p. 5). Pisacane’s dictum of “propaganda by deed” became the inspiration for new form of revolutionary antimonarchical terrorist movements, which dominated the nineteenth’s century, based on new “universalist” ideologies such as communism/Marxism (p. 5). Pisacane wrote “ideas result from deeds, not the latter from the former, and the people will not be free when they’re educated, but educated when they’re free” (p. 5). He argued that violence was necessary not only to draw attention to, or generate publicity for, a cause, but also to inform, educate, and ultimately rally the masses behind the evolution (p. 5). The Russian Narodnaya Volya, or People’s Will in 1878; the Anarchist International, or Black International in London; the Fenian Brotherhood in 1858; the Irish Clan na Gael in 1873; and the Inner Macedonian Revolutionary Organization (IMRO) in 1880s, all have had revolutionary connotations and have been influenced by the Pisacane dictum (p. 11)
By the 1930s, the meaning of terrorism changed again to become more internal, where it became “used less to refer to revolutionary movements and violence directed governments and their leaders and more to describe the practices of mass repression employed by totalitarian states and their dictatorial leaders against their own citizens”( p. 14), a term Hoffman identified as “terror” (p. 16). Hoffman suggested that terror and terrorism are two distinctive terms—terror is described as “ state-sanctioned or ordered acts of internal political violence directed mostly against domestic populations—that is, rule by violence and intimidation by those already in power against their own citizenry”, whereas terrorism is committed by nonstate actors, (Hoffman, pp. 15-16). Examples of terror committed by states are the Fascist Italy, Nazi Germany, and Stalinist Russia (p. 14)
Hoffman’s distinction between terror and terrorism would mean that policy-makers should approach and handle them differently. While terrorism committed by nonstate actors-groups or individuals- is dealt with through countermeasures that may involve military operations across state borders, terror committed by states against its own citizenry is considered a domestic or internal issue that might not invite the same international collective response. For example, several autocratic and authoritarian regimes in the Third World continue to use terror against political opponents and engage in systematic campaign of intimidation, but yet are not dealt with the same way as those groups or entities that practice terrorism. Therefore, in that regards, policy-makers do make distinction between terror and terrorism and that difference is reflected in their policies
Following WWII, Hoffman argued that terrorism regained its revolutionary connotations with which it is most commonly associated today with contemporary terrorism (p. 16). He added that terrorism was used to refer to the violent revolts by “the various indigenous nationalist/anticolonialist groups that emerged in Asia, Africa, and the Middle East during the late 1940s and 1950s to oppose continued European rule” and waging “wars of liberation” (p. 16). Although such movements in Israel, Kenya, Cyprus and Algeria were labeled as “terrorist” groups, many newly independent Third World countries, supported by communist-bloc states, argued that any movement that fought against “colonial” oppression and/or Western domination should not be described as “terrorist” but instead deemed to be “freedom fighters”, according to Hoffman (p.16).
In the 1960s and 1970s, the term terrorism continued to be viewed within its revolutionary contexts but expanded to include nationalist and ethnic separatist groups outside the colonial framework, for example the Palestinian Liberation Organization (PLO), (p. 16)
The PLO, established in 1946, has significantly contributed to transform terrorism into a new era of internationalization by being the first terrorist group to send its members across international borders to attack symbolic targets of its enemy state, Israel (Hoffman, pp. 63-64). The 1968, hijacking of an Israeli El Al flight en route from Rome to Tel Aviv by the Popular Front for the Liberation of Palestine (PFLP), and the 1972 Munich Olympic massacre of Israeli athletes by the PLO’s Black September Organization (BSO), have achieved significant successes for the Palestinian cause, by PLO accounts, which exceeded what diplomats, lobbyists and humanitarian workers have tried to do to (Hoffman, p. 70). Consequently, Israel was forced to negotiate with PLO terrorists, creating a de facto recognition and major media events (p. 64). The incidents also represented a precedent where civilians were targeted to in order to attract worldwide attention to their cause (p. 64). Moreover, PLO ability to accumulate capital wealth (around $600 million of annual income flow) was unprecedented, mainly because the unlimited support it enjoyed from petrodollar rich Arab states and masses in the Muslim world in general.
The internationalization of Palestinian cause through acts of terror and the success it achieved, has served a model for other ethno-nationalist movements to follow. Groups such as the Armenian ASALA, the Indonesian Free South Moluccan Organization, and the Kurdish PKK attempted to follow the PLO model of international terrorism but with limited success (p. 78).
In the 1980s, and as repercussion of the Iranian Revolution in 1979, terrorism restored its religious face and became “a calculated means to destabilize the West as part of a vast global conspiracy” (Hoffman, p.17). According to Hoffman, in the1980, the first “modern” religious terrorist groups appeared, but there were only 2 out of 64 terrorist groups active in 1980 that could be classified as predominately religious in character and motivation: the Iranian-backed Shi’a organization al-Dawa and the Committee for Safeguarding the Islamic Revolution (p. 85). In 1992, the number of religious terrorist groups had increased from 2 to 11 and expanded to embrace major world religions other than Islam, as well as various obscure religious sects and cults (p. 85). As the number of religious terrorist groups was increasing, the number of ethno-nationalist/separatist terrorist groups declined. Moreover, the post Iranian Revolution era witnessed the emergence of state-sponsored terrorism, whereby weaker regimes in Iran, Libya, Iraq, and Syria became actively involved in sponsoring terrorist groups such as Hamas and Hezbollah, as way to inflict harm on strong rival countries without running the risk of seeking direct confrontation (p. 85)
Therefore, as Hoffman has shown the changing nature of terrorism through his historical analysis, he then admitted that “if we cannot define terrorism, then we can at least usefully distinguish it from other types of violence and identify the characteristic that make terrorism the distinct phenomenon of political violence that it is” (p. 34). He concluded it is that distinction between terrorism and other forms of “crime and irregular warfare”, which can help us understand the meaning of terrorism, and consequently attempt to define it (p. 40) . One significant distinction that Hoffman was keen to make is between terrorists, guerrilla fighters, and criminals. According to Hoffman, guerilla warfare, although share the same tactics as terrorism, “refers to numerically larger group of armed individuals, who operates a military unity, attack enemy military forces [hit -and -run style], and seize and hold territory, while exercising some form of sovereignty or control over a defined geographical area and its population” (p. 35). As implied by Hoffman, it seems that the distinction between guerilla warfare and modern terrorism is important because while the latter is condemned the former can be considered legitimate in certain cases such as fighting a foreign occupation or to attain independence. However, an overlap does exist between the two (p. 36)
Moreover, the distinction between terrorism and guerilla warfare can have far reached implications on foreign policies. For example, while a country might efuse to negotiate or deal with terrorists, it might find it strategically acceptable to negotiate with insurgents who stage guerrilla-like hit-and –run operations against its soldiers in attempt to dissuade them from violence
Another area where the distinction between terrorism and guerrilla warfare can have implications of policies is the decision by governments whether or not to engage these groups either in dialogue or to have diplomatic relations with them if they reach power in their countries. For example, the U.S. categorized Hamas’ militants as terrorists—not freedom fighters, guerilla fighters or insurgents—and therefore, the US refuses to recognize or deal with Palestinian government that include members of Hamas, imposed economic blockade on Gaza and prosecuted US citizens who contributed money to any Hamas entity , as was in the case of the Holy Land Foundation trial.
Moreover, Hoffman found that a distinction between terrorists and criminals can be helpful to further demarcate the boundaries of terrorism. While terrorists, especially religious terrorism, tend to rationalize their violence based on premeditated ideology, criminals, Hoffman argued, use violence to achieve personal gains and based on personal motivations. Therefore, violence in crimes is not designed or intended to have consequences or create psychological impact beyond the act itself (Hoffman, p.36). Similarly, Kornard Kellen argued that a “terrorist without a cause is not a terrorist” (p.37).
However, Walter Laqueur in 1996 argued that “the decision [by terrorists] to use terrorist violence is not always rational one; seldom achieves its aims” (Laqueur, p. 31). He drew examples of futile terrorism in several parts of the world where terrorism failed to bring about any change, including India, Israel, Sri Lanka, Spain and Algeria (p. 27). He added that even in cases where terrorism was effective to the extent of terrorist leaders becoming heads of governments; it only happened after terrorists abandoning violence and adjusted to political success (p. 28).
Moreover, Laqueur argued that terrorists are irrational for the fact that since violence does not yield wanted results, therefore it must be abandoned. However, he did not discuss the rationality of the methods used by terrorists. In other word, he judged the rationality of the aim not the methods of terrorism. Therefore, for Laqueur, violence to achieve political aims—regardless of the nature of that violence—must cease in favor of political participation
Hoffman, on the other hand argued that contrary to the claims that terrorism “more than often has little political impact” as Laqueur argued (p. 27); the examples of anticolonial terrorists groups, most notably the Israel’s Irgun, Cyprus’ EOKA, and Algeria’s FLN, and ANC in South Africa, provide convincing evidence to the contrary (p. 61). These groups led terrorist campaign against an occupier and eventually succeeded in attaining independence for their people. Begin, Ahmed Ben Bella, Makarios, and Nelson Mandela, all leaders of terrorist groups who later became head of governments and states (Hoffman, p.61). Although Hoffman does not deny that in some cases change was also product of a distinct period of time and due to powerful forces other than terrorism (p. 61).
Hoffman also added that successful ethno-nationalist/separatist terrorist organizations carefully choose their level of violence rationally, to be “effective, tolerable, tactically acceptable to the international opinion and sufficiently modulated not to provoke massive governmental crackdown and reaction” (p. 233). While, for example, Hamas’s use of suicidal bombers to indiscriminately and deliberately target Israeli civilians, including women and children, received worldwide condemnation regardless of their reasoning and motivations, and earned the group a spot in the list of terrorist groups. The fallout of these suicide operations is huge and the political consequences make Hamas’ choice of such tactic “irrational”
In summary, although the definition of terrorism remains elusive because it’s changing over time, in general terrorism has two essential characteristics; first, it’s a calculated, planned and systematic act, and second it’s inherently political (pp. 2-3).Therefore, according Hoffman, we can then argue that terrorism is basically is where politics and violence intersect.
However, Hoffman’s approach to understand terrorism by distinguishing it from other forms of political violence and based on historical based evidence did not fully succeed to persuade many countries to agree on the definition of terrorism. In this regards, Jenkins’ argument that terrorism should be defined by “the nature of the act, not by the identity of the perpetrators on the nature of their cause”, more compelling and resonates with many around the world, especially Muslims in dealing with Israel’s disproportionate response to Palestinian suicidal terrorists targeting Israeli civilians. In the 1999 Convention on the Suppression of the Financing of Terrorism, 35 states have refrained from signing, which indicates that there are numerous geographic “holes” in the Int’l law regime as it relates to terrorism (Week 4 lecture, p. 2). These countries were not convinced by Hoffman’s differentiation between terrorism and guerilla warfare.
Because of the apparent lack of consensus among states on the definition of terrorism, there has been no single definition of terrorism in International Law, which remains elusive. One of the main sources of international law, as set forth by Article 38 (1) of the International Court of Justice, is treaty law based on international conventions, whether general or particular, establishing rules expressly recognized by the consenting states (D’Amato & Abassi, 2004, p. 13 & p. 26, Janis & Noyes, 2004, p. 138), therefore, a state consent is required for a treaty law to be binding.
The international community has attempted to set legal framework dealing with terrorism through the Laws Of Armed Conflict (LOAC), also known as the International Humanitarian Law (IHL), which is the body of International Law applicable when armed violence reaches the level of armed conflict, whether international or non-international (ICRC, 2004, p. 1). Geneva Conventions treaties remain the main source of IHL dealing with terrorism, however, it does not provide a definition of terrorism. The fundamental purpose of the Geneva conventions is to protect and assist victims of armed conflict and therefore deal with acts of terrorism only as they occur in the context of an armed conflict or war (ICRC website). However, critics of the Geneva conventions argued of their irrelevance in the war on terrorism since al Qa’eda is a nontate actor and therefore cannot be party to an international agreement (de Nevers, 2006, p. 105) and that they [Geneva conventions] impose overly stringent limitations on interrogation of detainees (pp. 105-107)
On the other hand, supporters of the Geneva conventions argued that following the September 11 attacks, although the Security Council Resolution 1373 added another dimension to the concept of “armed attack” to include attacks by non-state actors such as terrorist groups, it focused primarily on improving states’ cooperation to fight terrorism, (UNSCR 1373, pp. 1-4) and it did not include any new laws or modifications in the 1949 Geneva conventions and their 1977 Additional Protocols. This move by the UN suggests that the international community feels confident that the current IHL have the ability to combat terrorism by criminalizing, apprehending and successfully prosecuting terrorists issues related to terrorism.
Furthermore, as de Nevers argued, complying with the Geneva conventions laws in detaining and interrogating terrorists, will enhance the efforts to fight terrorism, and “reinforces the stark differences between the US and al Qa’eda” and serves US security (p. 107). He added that if populations see the US and its allies working to ensure stability and the rule of law, they are more likely to cooperate against terrorists (p. 109).
References
D’Amato, A. & Abbassi, J. (2006). International Law Today (1st ed). St. Paul, MN: West
Publishing
De Nevers, R. (2006, Spring). Modernizing the Geneva Conventions. The Washington Quarterly, 29 (2), pp. 99-113
Hoffman, B. (2006). Inside terrorism. (2nd ed). New York: Columbia University Press
International Committee of the Red Cross, "International humanitarian law and terrorism: questions and answers", May 2004.
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism-faq-%20050504?opendocument
Laqueur, W. (1996, September). Postmodern Terrorism. Foreign Affairs, 75(5), 24-36. Retrieved
UNSCR 1373, p. 1-4.
https://norwich.angellearning.com/AngelUploads/Content/MDY_LOR_2008_12/
Week 4 Lecture,
https://norwich.angellearning.com/section/default.asp?id=20091212069%5FGR%5FGD542A
In his summary of the changing nature of terrorism, Bruce Hoffman explained that until the 19th century, religion provided the only justification of terrorism (p. 84). He added that the emergence of the notions of nationalism and self-determination at the beginning of 19th century, and the growing popularity of radical political thought embracing Marxist ideology completed the transformation of terrorism from a mostly religious to predominately secular phenomenon. According to Hoffman, this process of “secularization” was given fresh impetus by the anticolonical/national liberation movements that arose after the Second World War to challenge continued Western rule in Asia, the ME, and Africa and subsequently exerted so profound an influence on ethno-nationalist/separatist and ideological terrorist organizations in the late 1960s and early 1970s (p. 84)
Going back to the French Revolution, Hoffman explained that “terrorism”-or régime de la terreur- was first used to refer to “revolutionary or antigovernmental activity undertaken by nonstate or subnational entities, and an instrument of governance wielded by the recently established revolutionary state” (p. 3). Then the meaning of terrorism changed at the end of the French Revolution to be associated with “the abuse of office and power—with overt criminal implications”, when the French executed those who abused their power and resorted to régime de la terreur to eliminate political opponents (p. 4)
According to Hoffman, the French Revolution led to the spread of antimonarchical sentiment elsewhere in Europe during a period of time when nationalism and Industrial Revolution have generated massive socioeconomic changes, and hence a new era of terrorism emerged; terrorism based on ideology (p. 5). Pisacane’s dictum of “propaganda by deed” became the inspiration for new form of revolutionary antimonarchical terrorist movements, which dominated the nineteenth’s century, based on new “universalist” ideologies such as communism/Marxism (p. 5). Pisacane wrote “ideas result from deeds, not the latter from the former, and the people will not be free when they’re educated, but educated when they’re free” (p. 5). He argued that violence was necessary not only to draw attention to, or generate publicity for, a cause, but also to inform, educate, and ultimately rally the masses behind the evolution (p. 5). The Russian Narodnaya Volya, or People’s Will in 1878; the Anarchist International, or Black International in London; the Fenian Brotherhood in 1858; the Irish Clan na Gael in 1873; and the Inner Macedonian Revolutionary Organization (IMRO) in 1880s, all have had revolutionary connotations and have been influenced by the Pisacane dictum (p. 11)
By the 1930s, the meaning of terrorism changed again to become more internal, where it became “used less to refer to revolutionary movements and violence directed governments and their leaders and more to describe the practices of mass repression employed by totalitarian states and their dictatorial leaders against their own citizens”( p. 14), a term Hoffman identified as “terror” (p. 16). Hoffman suggested that terror and terrorism are two distinctive terms—terror is described as “ state-sanctioned or ordered acts of internal political violence directed mostly against domestic populations—that is, rule by violence and intimidation by those already in power against their own citizenry”, whereas terrorism is committed by nonstate actors, (Hoffman, pp. 15-16). Examples of terror committed by states are the Fascist Italy, Nazi Germany, and Stalinist Russia (p. 14)
Hoffman’s distinction between terror and terrorism would mean that policy-makers should approach and handle them differently. While terrorism committed by nonstate actors-groups or individuals- is dealt with through countermeasures that may involve military operations across state borders, terror committed by states against its own citizenry is considered a domestic or internal issue that might not invite the same international collective response. For example, several autocratic and authoritarian regimes in the Third World continue to use terror against political opponents and engage in systematic campaign of intimidation, but yet are not dealt with the same way as those groups or entities that practice terrorism. Therefore, in that regards, policy-makers do make distinction between terror and terrorism and that difference is reflected in their policies
Following WWII, Hoffman argued that terrorism regained its revolutionary connotations with which it is most commonly associated today with contemporary terrorism (p. 16). He added that terrorism was used to refer to the violent revolts by “the various indigenous nationalist/anticolonialist groups that emerged in Asia, Africa, and the Middle East during the late 1940s and 1950s to oppose continued European rule” and waging “wars of liberation” (p. 16). Although such movements in Israel, Kenya, Cyprus and Algeria were labeled as “terrorist” groups, many newly independent Third World countries, supported by communist-bloc states, argued that any movement that fought against “colonial” oppression and/or Western domination should not be described as “terrorist” but instead deemed to be “freedom fighters”, according to Hoffman (p.16).
In the 1960s and 1970s, the term terrorism continued to be viewed within its revolutionary contexts but expanded to include nationalist and ethnic separatist groups outside the colonial framework, for example the Palestinian Liberation Organization (PLO), (p. 16)
The PLO, established in 1946, has significantly contributed to transform terrorism into a new era of internationalization by being the first terrorist group to send its members across international borders to attack symbolic targets of its enemy state, Israel (Hoffman, pp. 63-64). The 1968, hijacking of an Israeli El Al flight en route from Rome to Tel Aviv by the Popular Front for the Liberation of Palestine (PFLP), and the 1972 Munich Olympic massacre of Israeli athletes by the PLO’s Black September Organization (BSO), have achieved significant successes for the Palestinian cause, by PLO accounts, which exceeded what diplomats, lobbyists and humanitarian workers have tried to do to (Hoffman, p. 70). Consequently, Israel was forced to negotiate with PLO terrorists, creating a de facto recognition and major media events (p. 64). The incidents also represented a precedent where civilians were targeted to in order to attract worldwide attention to their cause (p. 64). Moreover, PLO ability to accumulate capital wealth (around $600 million of annual income flow) was unprecedented, mainly because the unlimited support it enjoyed from petrodollar rich Arab states and masses in the Muslim world in general.
The internationalization of Palestinian cause through acts of terror and the success it achieved, has served a model for other ethno-nationalist movements to follow. Groups such as the Armenian ASALA, the Indonesian Free South Moluccan Organization, and the Kurdish PKK attempted to follow the PLO model of international terrorism but with limited success (p. 78).
In the 1980s, and as repercussion of the Iranian Revolution in 1979, terrorism restored its religious face and became “a calculated means to destabilize the West as part of a vast global conspiracy” (Hoffman, p.17). According to Hoffman, in the1980, the first “modern” religious terrorist groups appeared, but there were only 2 out of 64 terrorist groups active in 1980 that could be classified as predominately religious in character and motivation: the Iranian-backed Shi’a organization al-Dawa and the Committee for Safeguarding the Islamic Revolution (p. 85). In 1992, the number of religious terrorist groups had increased from 2 to 11 and expanded to embrace major world religions other than Islam, as well as various obscure religious sects and cults (p. 85). As the number of religious terrorist groups was increasing, the number of ethno-nationalist/separatist terrorist groups declined. Moreover, the post Iranian Revolution era witnessed the emergence of state-sponsored terrorism, whereby weaker regimes in Iran, Libya, Iraq, and Syria became actively involved in sponsoring terrorist groups such as Hamas and Hezbollah, as way to inflict harm on strong rival countries without running the risk of seeking direct confrontation (p. 85)
Therefore, as Hoffman has shown the changing nature of terrorism through his historical analysis, he then admitted that “if we cannot define terrorism, then we can at least usefully distinguish it from other types of violence and identify the characteristic that make terrorism the distinct phenomenon of political violence that it is” (p. 34). He concluded it is that distinction between terrorism and other forms of “crime and irregular warfare”, which can help us understand the meaning of terrorism, and consequently attempt to define it (p. 40) . One significant distinction that Hoffman was keen to make is between terrorists, guerrilla fighters, and criminals. According to Hoffman, guerilla warfare, although share the same tactics as terrorism, “refers to numerically larger group of armed individuals, who operates a military unity, attack enemy military forces [hit -and -run style], and seize and hold territory, while exercising some form of sovereignty or control over a defined geographical area and its population” (p. 35). As implied by Hoffman, it seems that the distinction between guerilla warfare and modern terrorism is important because while the latter is condemned the former can be considered legitimate in certain cases such as fighting a foreign occupation or to attain independence. However, an overlap does exist between the two (p. 36)
Moreover, the distinction between terrorism and guerilla warfare can have far reached implications on foreign policies. For example, while a country might efuse to negotiate or deal with terrorists, it might find it strategically acceptable to negotiate with insurgents who stage guerrilla-like hit-and –run operations against its soldiers in attempt to dissuade them from violence
Another area where the distinction between terrorism and guerrilla warfare can have implications of policies is the decision by governments whether or not to engage these groups either in dialogue or to have diplomatic relations with them if they reach power in their countries. For example, the U.S. categorized Hamas’ militants as terrorists—not freedom fighters, guerilla fighters or insurgents—and therefore, the US refuses to recognize or deal with Palestinian government that include members of Hamas, imposed economic blockade on Gaza and prosecuted US citizens who contributed money to any Hamas entity , as was in the case of the Holy Land Foundation trial.
Moreover, Hoffman found that a distinction between terrorists and criminals can be helpful to further demarcate the boundaries of terrorism. While terrorists, especially religious terrorism, tend to rationalize their violence based on premeditated ideology, criminals, Hoffman argued, use violence to achieve personal gains and based on personal motivations. Therefore, violence in crimes is not designed or intended to have consequences or create psychological impact beyond the act itself (Hoffman, p.36). Similarly, Kornard Kellen argued that a “terrorist without a cause is not a terrorist” (p.37).
However, Walter Laqueur in 1996 argued that “the decision [by terrorists] to use terrorist violence is not always rational one; seldom achieves its aims” (Laqueur, p. 31). He drew examples of futile terrorism in several parts of the world where terrorism failed to bring about any change, including India, Israel, Sri Lanka, Spain and Algeria (p. 27). He added that even in cases where terrorism was effective to the extent of terrorist leaders becoming heads of governments; it only happened after terrorists abandoning violence and adjusted to political success (p. 28).
Moreover, Laqueur argued that terrorists are irrational for the fact that since violence does not yield wanted results, therefore it must be abandoned. However, he did not discuss the rationality of the methods used by terrorists. In other word, he judged the rationality of the aim not the methods of terrorism. Therefore, for Laqueur, violence to achieve political aims—regardless of the nature of that violence—must cease in favor of political participation
Hoffman, on the other hand argued that contrary to the claims that terrorism “more than often has little political impact” as Laqueur argued (p. 27); the examples of anticolonial terrorists groups, most notably the Israel’s Irgun, Cyprus’ EOKA, and Algeria’s FLN, and ANC in South Africa, provide convincing evidence to the contrary (p. 61). These groups led terrorist campaign against an occupier and eventually succeeded in attaining independence for their people. Begin, Ahmed Ben Bella, Makarios, and Nelson Mandela, all leaders of terrorist groups who later became head of governments and states (Hoffman, p.61). Although Hoffman does not deny that in some cases change was also product of a distinct period of time and due to powerful forces other than terrorism (p. 61).
Hoffman also added that successful ethno-nationalist/separatist terrorist organizations carefully choose their level of violence rationally, to be “effective, tolerable, tactically acceptable to the international opinion and sufficiently modulated not to provoke massive governmental crackdown and reaction” (p. 233). While, for example, Hamas’s use of suicidal bombers to indiscriminately and deliberately target Israeli civilians, including women and children, received worldwide condemnation regardless of their reasoning and motivations, and earned the group a spot in the list of terrorist groups. The fallout of these suicide operations is huge and the political consequences make Hamas’ choice of such tactic “irrational”
In summary, although the definition of terrorism remains elusive because it’s changing over time, in general terrorism has two essential characteristics; first, it’s a calculated, planned and systematic act, and second it’s inherently political (pp. 2-3).Therefore, according Hoffman, we can then argue that terrorism is basically is where politics and violence intersect.
However, Hoffman’s approach to understand terrorism by distinguishing it from other forms of political violence and based on historical based evidence did not fully succeed to persuade many countries to agree on the definition of terrorism. In this regards, Jenkins’ argument that terrorism should be defined by “the nature of the act, not by the identity of the perpetrators on the nature of their cause”, more compelling and resonates with many around the world, especially Muslims in dealing with Israel’s disproportionate response to Palestinian suicidal terrorists targeting Israeli civilians. In the 1999 Convention on the Suppression of the Financing of Terrorism, 35 states have refrained from signing, which indicates that there are numerous geographic “holes” in the Int’l law regime as it relates to terrorism (Week 4 lecture, p. 2). These countries were not convinced by Hoffman’s differentiation between terrorism and guerilla warfare.
Because of the apparent lack of consensus among states on the definition of terrorism, there has been no single definition of terrorism in International Law, which remains elusive. One of the main sources of international law, as set forth by Article 38 (1) of the International Court of Justice, is treaty law based on international conventions, whether general or particular, establishing rules expressly recognized by the consenting states (D’Amato & Abassi, 2004, p. 13 & p. 26, Janis & Noyes, 2004, p. 138), therefore, a state consent is required for a treaty law to be binding.
The international community has attempted to set legal framework dealing with terrorism through the Laws Of Armed Conflict (LOAC), also known as the International Humanitarian Law (IHL), which is the body of International Law applicable when armed violence reaches the level of armed conflict, whether international or non-international (ICRC, 2004, p. 1). Geneva Conventions treaties remain the main source of IHL dealing with terrorism, however, it does not provide a definition of terrorism. The fundamental purpose of the Geneva conventions is to protect and assist victims of armed conflict and therefore deal with acts of terrorism only as they occur in the context of an armed conflict or war (ICRC website). However, critics of the Geneva conventions argued of their irrelevance in the war on terrorism since al Qa’eda is a nontate actor and therefore cannot be party to an international agreement (de Nevers, 2006, p. 105) and that they [Geneva conventions] impose overly stringent limitations on interrogation of detainees (pp. 105-107)
On the other hand, supporters of the Geneva conventions argued that following the September 11 attacks, although the Security Council Resolution 1373 added another dimension to the concept of “armed attack” to include attacks by non-state actors such as terrorist groups, it focused primarily on improving states’ cooperation to fight terrorism, (UNSCR 1373, pp. 1-4) and it did not include any new laws or modifications in the 1949 Geneva conventions and their 1977 Additional Protocols. This move by the UN suggests that the international community feels confident that the current IHL have the ability to combat terrorism by criminalizing, apprehending and successfully prosecuting terrorists issues related to terrorism.
Furthermore, as de Nevers argued, complying with the Geneva conventions laws in detaining and interrogating terrorists, will enhance the efforts to fight terrorism, and “reinforces the stark differences between the US and al Qa’eda” and serves US security (p. 107). He added that if populations see the US and its allies working to ensure stability and the rule of law, they are more likely to cooperate against terrorists (p. 109).
References
D’Amato, A. & Abbassi, J. (2006). International Law Today (1st ed). St. Paul, MN: West
Publishing
De Nevers, R. (2006, Spring). Modernizing the Geneva Conventions. The Washington Quarterly, 29 (2), pp. 99-113
Hoffman, B. (2006). Inside terrorism. (2nd ed). New York: Columbia University Press
International Committee of the Red Cross, "International humanitarian law and terrorism: questions and answers", May 2004.
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism-faq-%20050504?opendocument
Laqueur, W. (1996, September). Postmodern Terrorism. Foreign Affairs, 75(5), 24-36. Retrieved
UNSCR 1373, p. 1-4.
https://norwich.angellearning.com/AngelUploads/Content/MDY_LOR_2008_12/
Week 4 Lecture,
https://norwich.angellearning.com/section/default.asp?id=20091212069%5FGR%5FGD542A
Saturday, May 16, 2009
Is Egypt Violating International Law by Closing Rafah Crossing?
Since Hamas takeover of the Gaza Strip in June of 2007, and even in light of the severe humanitarian crisis in the Gaza Strip in December 2008-January 2009 as the result of Israel’s military offensive against the Gaza Strip, under harsh criticism from the Arab world and Egyptian public opinion, Egypt refused to open Rafah Crossing to regular traffic opposite the Hamas regime (Kadman, p. 132), and supported the reopening according to a renewed agreement of all parties who consented to the AMA—Israel, the PA, the US, and the EU—regarding opening the Palestinian side of the border (p. 126). However, Egypt agreed to open the border, ad hoc, in response to humanitarian needs of the Gaza Strip (p. 125). Furthermore, Egypt viewed Hamas as devoid of international legitimacy and recognizes the PA as the sole legitimate leadership of the Palestinian people (Kadman, p.126), and argued that opening the Crossing opposite Hamas it automatically translates into a new political reality, a de facto recognition of Hamas's legitimacy (Howeidy, 2009. P.1).
However, the Israeli closure of the Gaza Strip created an obligation for Egypt to open Rafah by virtue of its obligation to respect the right of transfer of the residents of the blocked Gaza Strip, and by virtue of its obligation to act against the violation of the Fourth Geneva Convention by Israel (Kadman, p. 160). Moreover, since Egypt was not a party in the 2005 AMA between Israel and PA, therefore, Egypt has no obligation under treaty law to close the Rafah Crossing even when the agreement expired after 12 months of its implantation and was not renewed (Janis & Noyes, 2006, p. 92). Therefore, Egypt seemed to be in violation of the laws of jus cognes, the law of compelling norms, which are human rights violations and humanitarian crisis in Gaza caused by the blockade and the war.
On November 15, 2005, negotiators from Israel and the Palestinian Authority (PA) signed the Agreement on Movement and Access (AMA) facilitating the movement of people and goods within the Palestinian Territories and on opening an international crossing on the Gaza-Egypt border, also known as Rafah Crossing that will put the Palestinians in control of the entry and exit of people. The negotiations were facilitated by US Secretary of State Condoleezza Rice, European Union High Representative for the Common Foreign and Security Policy Javier Solana. The agreement also aimed at promoting peaceful economic development and improving the humanitarian situation in the Palestinian Territories and was heralded as a relative breakthrough in the Israeli-Palestinian stalemate: an agreement on border crossings in and out of the Gaza Strip (Prusher & Murphy, 2006, p. 1). A mix of Egyptian soldiers and European observers would monitor and control transit of goods and people in coordination with the Palestinian Authority (PA) security forces. In theory, it was ideal. Israelis would meet security needs by tracking cross-border travel - but only from a distance. Gazans would enjoy longed-for freedom from loathed Israeli checkpoints.
According to the terms of the AMA which is published on the United Nations Website, the parties have agreed that:
-The PA will ensure that the passages will be protected on the Palestinian side of the border and will train and upgrade the management of all crossings to ensure efficiency and effectiveness.
-The PA will establish, without delay, a unified system of border management.
-It is understood that security is a prime and continuing concern for Israel and that appropriate arrangements to ensure security will be adopted.
-Rafah will be operated by the Palestinian Authority on its side, and Egypt on its side, according to international standards, in accordance with Palestinian law and subject to the terms of this agreement. --Rafah will be opened as soon as it is ready to operate at an international standard in accordance with the specifications of this agreement and as soon as the 3rd party is on site, with a target date of November 25.
-Use of the Rafah crossing will be restricted to Palestinian ID card holders and others by exception in agreed categories with prior notification to the GoI (Government of Israel) and approval of senior PA leadership.
-The 3rd party will ensure the proper procedures are followed and will advise both sides of any information in its possession pertaining to the people applying to cross under these exceptions.
-These procedures will remain in place for a period of 12 months, unless the 3rd party delivers a negative evaluation of the PA running the Rafah crossing. This evaluation will be done in close coordination with both sides and will give due consideration to the opinion of both sides.
-Rafah will also be used for export of goods to Egypt.
-Rafah will be the only crossing point between the Gaza Strip and Egypt (with the exception of Kerem Shalom for the agreed period).
-The PA will act to prevent the movement of weapons and explosives at the Rafah crossing. The 3rd party will have the authority to ensure that the PA complies with all applicable rules and regulations concerning the Rafah crossing point and the terms of this agreement. In case of non-compliance the 3rd party has the authority to order the re-examination and reassessment of any passenger, luggage, vehicle or goods. The 3rd party will be the European Union.
According to Gutman, 2009, the Palestinians took control of the border as soon as Nov. 25, according to the agreement. The Palestinian Authority pledged to prevent smuggling of weapons or militants across the border. European Union representatives on the ground will monitor compliance, as will a joint Israeli-Palestinian-European control room, according to the agreement. Goods coming into Gaza from its revamped border terminal at Rafah will be monitored by sophisticated X-ray equipment. Israel also agreed to ease restrictions it applied to West Bank travel after Palestinian attacks on Israelis
However, in June of 2007, the militant Islamic group Hamas, took control of the internal government in Gaza Strip, ousting the Palestinian Authority and its security forces which belonged to the Fattah movement, Hamas’s rival. In the year between the capture of Israeli soldier Gilad Shalit in June of 2006 and the Hamas takeover in June of 2007, Israel kept Rafah Crossing closed 85% of the time, since June 2007, Rafah Crossing has been closed permanently, except for random and limited openings by Egypt, which meet only 3% of the needs of the residents of the Gaza Strip to enter and leave (Kadman, 2009, p. 7).
Following Hamas’s took control of the Gaza Strip, Israel as well as the EU were no longer involved in the monitoring of the Rafah crossing. Israel imposed a blockade on Gaza borders to force Hamas to concede power, and hence the Rafah Crossing was closed. It was exacerbated when Israel imposed a strict economic siege on Gaza both as a punishment for Gazans having elected Hamas in free and fair elections, and as a tactic to remove it from power. The Rafah border crossing, the Gazans' only gateway to the world that isn't controlled by their occupier, inevitably emerged as a symbol for the latest stage of the 60-year-old conflict, serving as a litmus test of Egypt's relations with the three parties on the other side of the border, Hamas, the PA and Israel (Howeidy, 2009, p.1)
Several Israeli politicians called for a unilateral reoccupation of the "Philadelphi" route, the name for the strip of land between Gaza and Egypt. On December 27, 2008, Israel launched massive air and ground campaign into Gaza in response to rocket attacks by Hamas in the Gaza Strip into northern Israel, in order to destroy Hamas rockets launching capabilities and bombarded the Gaza-Egypt border in what officials say are antismuggling operations (Prusher & Murphy, pp. 1-2).
According to the 2009 report by the Israeli Physicians for Human Rights (Gisha) organization, the closure of Rafah had severe implications for the residents of Gaza Strip, including preventing access to health care services that are not available in Gaza, preventing access to students and employees, forcing long separations of family members on either side of the border. Therefore, the closure of the Crossing was considered a severe violation of the rights of residents of the Gaza Strip (p. 7)
One of the most pivotal points in the Rafah Crossing agreement was that the role of the Egyptian Army in guarding the border to prevent arms and cash (p.3) smuggling or easy access for militants across the border (p. 2). Instead, Israeli officials say, the Gaza-Egyptian border is being used as a route for arming Hamas and other militant groups in anticipation of widely expected battles with the Israel Defense Forces (p. 2)
The 14km Rafah Crossing is one of five ways in and out of Gaza - It's the only crossing not guarded by Israeli forces. The Rafah border crossing has come to epitomize the geopolitical realities between Egypt and the occupied Palestinian territories -- with all their security and legal complexities -- as never before (Howeidy, 2009, p. 1). Since Hamas took control of Gaza in June 2007 the Egyptian-Gaza borders have been free of any Israeli presence for the first time since 1967. This immediately posed a complex problem for the Egyptian regime (p. 1)
Caroll J, 2007, elaborated on Egypt’s dilemma in policing the Rafah Crossing. There is "genuine concern" that Palestinian violence in Gaza could spill over into the Sinai, says Walid Kazziha, chair of the political science department at the American University in Cairo. "It is in Egypt's national interest that they have to look after" the smuggling issue. But he also notes that the Egyptian government faces domestic pressure to support Palestinians. "One thing that embarrasses the Egyptians is the Israelis asking Egypt to take [what would amount to] violence against the Palestinians," he says. "So it's a very tight rope." (p.1). Egypt itself is not a natural ally for Islamist Hamas, which is an offshoot of the country's banned Muslim Brotherhood, the country's powerful opposition movement. Terror attacks in the Sinai over the years have been blamed by the Egyptian government on local Bedouins who have been radicalized by contact with Palestinian militants (Prusher & Murphy, p. 2).
Furthermore, Egypt viewed Hamas as devoid of international legitimacy and recognizes the PA as the sole legitimate leadership of the Palestinian people (Kadman, p.126). Therefore, Egypt increased border patrols in response to Israel's complaints to quell weapon smuggling across the border, and a result Israel's critique has focused more on the smuggling and less on the Egyptian role, perhaps in part due to the sensitive point in negotiations over a possible prisoner exchange (Prusher & Murphy, p.2)
In the course of a week President Hosni Mubarak addressed the issue twice. He said that Egypt will not open the border because Gaza is an occupied territory and remains, therefore, the responsibility of Israel, the occupying force (Howeidy, 2009, p. 1). A few days later he said that Egypt would not open the border "in the absence of the Palestinian Authority and European monitors", a reference to the 2005 border agreement formulated between the Palestinian Authority (PA) and Israel a year before the 2006 Palestinian parliamentary elections brought Hamas to power. The agreement expired a year after it went into effect and has not been renewed since (p. 1)
At the heel of the Israeli offensive in Gaza in December of 2008, various statements by the UN Secretary-General described the level of the humanitarian crisis in Gaza Strip. On December 27, 2008, the Secretary-General expressed deep concern about the heavy bloodshed in Gaza, which he described as “unacceptable”, as well as the continuation of violence in southern Israel. The Secretary-General also “reiterated Israel’s obligation to uphold international humanitarian and human rights law and condemns excessive use of force leading to the killing and injuring of civilians”, and “large scale destruction” in Gaza. Moreover, the Secretary-General reiterated his previous calls for humanitarian supplies to be allowed into Gaza to aid the distressed civilian population. In another statement on December 29, 2009, the Secretary-General “stressed the need for the strict observance of international humanitarian law”, and reiterated his call that “unhindered access should be ensured for the delivery of humanitarian assistance” “much needed assistance and alleviate civilian suffering”. He also stated that “Israel must keep opening all border crossings necessary for the continued provision of humanitarian supplies”
Moreover, the World Bank warned of a growing public health risk because of the lack of drinking water and a collapse of Gaza's wastewater systems that has sent sewage into the streets (Mitnick, 2009, p. 1). The US Congress expressed the signers' "deep concern for the humanitarian situation in the Gaza Strip" and requested "immediate action by the U.S. to address this crisis.” It described in detail the "dire" situation on the ground in Gaza and stated "it is imperative that we work with Israel to open the borders so that the wounded can be treated, basic aid can reach those in need, and rebuilding can begin." Adding that "the failure to address this humanitarian emergency has the potential to produce a crisis of even more unspeakable proportions." (McArther, 2009, p. 23). Congressman Brian Baird (D-WA) after his visit to the Gaza Strip on February 20, 2009 stated that “The amount of physical destruction and the depth of human suffering here is staggering," said Baird. "Entire neighborhoods have been destroyed, schools completely leveled, fundamental water, sewer, and electricity facilities hit and relief agencies heavily damaged. The personal stories of children being killed in their homes or schools, entire families wiped out, and relief workers prevented from evacuating the wounded are heart wrenching--what went on here, and what is continuing to go on, is shocking and troubling beyond words." (Baird, 2009, p.21)
However, since Hamas takeover of the Gaza Strip in June of 2007, and even in light of the severe humanitarian crisis in the Gaza Strip in December 2008-January 2009 as the result of Israel’s military offensive against the Gaza Strip, under harsh criticism from the Arab world and Egyptian public opinion, Egypt refused to open Rafah Crossing to regular traffic opposite the Hamas regime (Kadman, p. 132), and supported the reopening according to a renewed agreement of all parties who consented to the AMA—Israel, the PA, the US, and the EU—regarding opening the Palestinian side of the border (p. 126). However, Egypt agreed to open the border, ad hoc, in response to humanitarian needs of the Gaza Strip (p. 125). Egypt stated that it is committed to the AMA agreement although Egypt itself was not a party to the agreement. Therefore, Egypt says it has not been able to open Rafah to regular traffic since Hamas takeover of the Gaza Strip in June 2007, and by opening the Crossing Egypt would violate the AMA, which requires the presence of the PA and the European force on the Palestinian side of the border, and Israel’s presence at Kerem Shalom—conditions which have not been fulfilled since that date (p. 126)
Egypt further argued that Israel consent to the open the Crossing was necessary since Israel continues controlling the West Bank and the Gaza Strip, and that the peace process, which Egypt supports, includes the gradual transfer of power from Israel to the PA, the legitimate representative of the Palestinians, according to Egypt (p. 126). Furthermore, in order to reach a new or renewed international arrangement on opening Rafah, Egypt is negotiating with various parties including Israel, Hamas, and the PA to open the border, including the EU and the US (p. 130). However, the Palestinian parties’ refusal to compromise on dividing control of the crossing constitutes the largest obstacle to opening Rafah (p. 131). For its part, the Palestinian Authority objected to opening the Crossing on a regular basis by Egypt opposite Hamas, so as not to legitimize the latter’s rule (Kadman, p. 136)
Janis & Noyes, 2006, stated that there are three principal formal sources of IL set forth in Article 38(1) of the ICJ; these are the rules that the Court “shall apply” as it decided “in accordance with IL such disputes as submitted to it”:”(a) International conventions, whether general or particular, establishing rules expressly recognized by the consenting states; (b) international custom, as evidence of a general practice accepted as law; (c) the principles of law recognized by civilized nations. Although the first two sources—treaty and custom—may be said by positivists to be more or less consensual among states, the third source—general principles of law—clearly involves some judicial or doctrinal initiative beyond a search for inter-state agreement on rules (p. 138). Historically, one of the most important sources of the law of nations was natural law, referred to as jus cognes or compelling norms (p. 138)
Compelling norms or jus cognes a norm that enjoys a higher rank in the international hierarchy than treaty law and even ordinary customary rules, principle at most issue cannot be derogated from by States through int’l treaties or local or special customs or even general customary rules not endowed with the same normative force (Janis & Noyes, p. 147)
Vienna’s Professor Alfred von Verdross wrote in 1937, that jus cognes consists of the general principle prohibiting states from concluding treaties contra bonos mores, which means that no judicial order can, therefore, admit treaties between juridical subjects, which are obviously in contradiction to the ethics of a certain community. Furthermore, treaties are regarded as being contra bonos mores if it restricts the liberty of one contracting party in an excessive or unworthy manner or which endanger its most important rights. Those norms of treaties which are incompatible with this goal of all positive law must be regarded as void (Janis & Noyes, p. 144). In other words, Professor Verdross argued, a treaty norm is void if it is either in violation of a compulsory norm of general international law or contra bonos mores. A treaty norm is contra bonos mores if a state is prevented by an international treaty from fulfilling the universally recognized tasks of a civilized state (p. 145). Contra bonos mores is a category Verdross justified as stemming from the general principle of law recognized by civilized nations (p. 146)
The 1937 article above by Vienna’s Professor Alfred von Verdross has been singled out as an important step in the development of Article 53 of the Vienna Convention on the law of the Treaties concerning peremptory norms of international law (Janis & Noyes, p. 146), which stipulates that “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Therefore, Egypt’s claims that it’s obligated by the expired Agreement on Movement and Access, which Egypt was not even a party, not to open the Rafah Crossing unless a new or renewed agreement is reached is considered a violation of the peremptory norm of general international law, which in this case the humanitarian crisis in Gaza and the human rights violations.
Article 43 of the Hague Regulation, which are part of international customary law, binding upon all countries imposes upon an occupying power the obligation to maintain public order and guarantee the existence of normal public life for the civilian population. Freedom of movement is necessary to guarantee normal life (Kadman, p. 150). Moreover, Articles 27 & 33 of the Fourth Geneva Convention on the protection of Victims of International Armed Conflicts, to which both Israel and Egypt are parties stated that “protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practice, and their manners and customs” “No protected person may be punished for an offense he or she has not personally committed” and adds that collective punishments are prohibited (Kadman, p. 151)
Egypt has an obligation under international humanitarian law to open the Rafah Crossing to allow the passage of humanitarian aid, which is derived from Israel’s actions by closing other crossings to and from Gaza and uses Rafah Crossing to implement a policy of collective punishment. Therefore, the Israeli closure of the Gaza Strip creates an obligation for Egypt to open Rafah by virtue of its obligation to respect the right of transfer of the residents of the blocked Gaza Strip, and by virtue of its obligation to act against the violation of the Fourth Geneva Convention by Israel (Kadman, p. 160). Moreover, since Egypt was not a party in the 2005 AMA between Israel and PA, therefore, Egypt has no obligation under treaty law to close the Rafah Crossing even when the agreement expired after 12 months of its implantation (Janis & Noyes, 2006, p. 92)
Positivists would argue that Egypt as a sovereign has the power to decide who and what shall enter its territory, and it has no obligation to allow passage through its border, except for its obligation to allow the passage of humanitarian aid, which Egypt continued to do only on ad hoc bases. In fact the judgment of PCIJ in 1927 (Permanent Court of International Justice) in the Lotus case has become of the most usually cited positivist opinions about the nature of IL, because it argued in part III that the “rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law”. The ruling of an evenly divided Court in Lotus maintained that all international legal rules are based on state consent: “restrictions upon independence of States cannot therefore be presumed.” No room was given to general principles of IL: fundamental norms, natural law, or equity as sources of IL; state sovereignty was seen as the fundamental principle of IL from which all other international legal principles and rules are derived (Janis & Noyes, p. 116)
Furthermore, in the 1966 Southwest Africa Cases, the ICJ ruled that humanitarian considerations are not sufficient in themselves to generate legal rights and obligations. The Court can take account of moral principles only in so far as these are given sufficient expression in legal forms. The secret trust itself must be or becoming something more than a moral or humanitarian ideal. It must be given judicial expression and be clothed in legal form. However, the Court in 1970 moved closer to Verdross position when it recognized in the Barcelona Traction Case, the concept of “obligations erga omnes”—the obligations of a state towards the international community as a whole. The Court cited as examples, the international legal proscriptions against interstate aggression, genocide, slavery, and racial discrimination (Janis & Noyes, p. 147)
Therefore, Egypt under obligations erg omnes, has an obligation towards the international community as a whole to intervene using its sovereign power and ease suffering of 1.5 million Palestinians and open the Rafah Crossing to allow the flow of humanitarian aid, and allow Palestinians their basic human right of movement and access. Furthermore, Egypt should invoke Articles 27 & 33 of the Fourth Geneva Convention on the protection of Victims of International Armed Conflicts by allowing civilians in Gaza passage to seek refuge and humanitarian assistance. By not doing so, Egypt is in violation of the law of compelling norms, jus cognes, created by the humanitarian crisis in Gaza and expressed in the UN Secretary-General statements and members of the US Congress.
References
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Baird, B. (April, 2009). U.S. Congressmen visit Gaza, call for immediate relief, changes in U.S.
policy. Washington Report on Middle East Affairs, 28 (3), pp. 21-31.
Carroll, J. (May, 2007). Egypt's Gaza gateway: crossroad of frustration. Christian Science
Monitor, 99 (109), pp.1-4.
Gutman M. (November, 2005) Mideast deal gives Palestinians control of Gaza-Egypt
border. USA Today (n.d).
Howeidy, A. (January, 2009). All eyes on Rafah. Al Ahram weekly.
Kadman, N. (March, 2009). Rafah Crossing: Who holds the keys? Physicians for Human
Rights-Israel.
McArthur, S. (April, 2009). 111th Congress expresses its “vigorous support” for Israel’s Gaza
massacre. Washington Report on Middle East Affairs, 28 (3), pp. 22-23.
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St.
Paul, MN: West Publishing
Mitnick, J. (January, 2009). Can Egypt broker a Gaza true again? Christian Science Monitor, 101 (30), pp. 1-5.
Prusher, I. & Murphy, D. (October, 2006). Trouble sealing Egypt-Gaza border. Christian
Science Monitor, 98 (233) pp. 1-6.
UN-Agreement on Movement and Access (AMA), retrieved from
http://domino.un.org/UNISPAL.NSF/361eea1cc08301c485256cf600606959/c9a5aa5245d910bb852570bb0051711c!OpenDocument,
However, the Israeli closure of the Gaza Strip created an obligation for Egypt to open Rafah by virtue of its obligation to respect the right of transfer of the residents of the blocked Gaza Strip, and by virtue of its obligation to act against the violation of the Fourth Geneva Convention by Israel (Kadman, p. 160). Moreover, since Egypt was not a party in the 2005 AMA between Israel and PA, therefore, Egypt has no obligation under treaty law to close the Rafah Crossing even when the agreement expired after 12 months of its implantation and was not renewed (Janis & Noyes, 2006, p. 92). Therefore, Egypt seemed to be in violation of the laws of jus cognes, the law of compelling norms, which are human rights violations and humanitarian crisis in Gaza caused by the blockade and the war.
On November 15, 2005, negotiators from Israel and the Palestinian Authority (PA) signed the Agreement on Movement and Access (AMA) facilitating the movement of people and goods within the Palestinian Territories and on opening an international crossing on the Gaza-Egypt border, also known as Rafah Crossing that will put the Palestinians in control of the entry and exit of people. The negotiations were facilitated by US Secretary of State Condoleezza Rice, European Union High Representative for the Common Foreign and Security Policy Javier Solana. The agreement also aimed at promoting peaceful economic development and improving the humanitarian situation in the Palestinian Territories and was heralded as a relative breakthrough in the Israeli-Palestinian stalemate: an agreement on border crossings in and out of the Gaza Strip (Prusher & Murphy, 2006, p. 1). A mix of Egyptian soldiers and European observers would monitor and control transit of goods and people in coordination with the Palestinian Authority (PA) security forces. In theory, it was ideal. Israelis would meet security needs by tracking cross-border travel - but only from a distance. Gazans would enjoy longed-for freedom from loathed Israeli checkpoints.
According to the terms of the AMA which is published on the United Nations Website, the parties have agreed that:
-The PA will ensure that the passages will be protected on the Palestinian side of the border and will train and upgrade the management of all crossings to ensure efficiency and effectiveness.
-The PA will establish, without delay, a unified system of border management.
-It is understood that security is a prime and continuing concern for Israel and that appropriate arrangements to ensure security will be adopted.
-Rafah will be operated by the Palestinian Authority on its side, and Egypt on its side, according to international standards, in accordance with Palestinian law and subject to the terms of this agreement. --Rafah will be opened as soon as it is ready to operate at an international standard in accordance with the specifications of this agreement and as soon as the 3rd party is on site, with a target date of November 25.
-Use of the Rafah crossing will be restricted to Palestinian ID card holders and others by exception in agreed categories with prior notification to the GoI (Government of Israel) and approval of senior PA leadership.
-The 3rd party will ensure the proper procedures are followed and will advise both sides of any information in its possession pertaining to the people applying to cross under these exceptions.
-These procedures will remain in place for a period of 12 months, unless the 3rd party delivers a negative evaluation of the PA running the Rafah crossing. This evaluation will be done in close coordination with both sides and will give due consideration to the opinion of both sides.
-Rafah will also be used for export of goods to Egypt.
-Rafah will be the only crossing point between the Gaza Strip and Egypt (with the exception of Kerem Shalom for the agreed period).
-The PA will act to prevent the movement of weapons and explosives at the Rafah crossing. The 3rd party will have the authority to ensure that the PA complies with all applicable rules and regulations concerning the Rafah crossing point and the terms of this agreement. In case of non-compliance the 3rd party has the authority to order the re-examination and reassessment of any passenger, luggage, vehicle or goods. The 3rd party will be the European Union.
According to Gutman, 2009, the Palestinians took control of the border as soon as Nov. 25, according to the agreement. The Palestinian Authority pledged to prevent smuggling of weapons or militants across the border. European Union representatives on the ground will monitor compliance, as will a joint Israeli-Palestinian-European control room, according to the agreement. Goods coming into Gaza from its revamped border terminal at Rafah will be monitored by sophisticated X-ray equipment. Israel also agreed to ease restrictions it applied to West Bank travel after Palestinian attacks on Israelis
However, in June of 2007, the militant Islamic group Hamas, took control of the internal government in Gaza Strip, ousting the Palestinian Authority and its security forces which belonged to the Fattah movement, Hamas’s rival. In the year between the capture of Israeli soldier Gilad Shalit in June of 2006 and the Hamas takeover in June of 2007, Israel kept Rafah Crossing closed 85% of the time, since June 2007, Rafah Crossing has been closed permanently, except for random and limited openings by Egypt, which meet only 3% of the needs of the residents of the Gaza Strip to enter and leave (Kadman, 2009, p. 7).
Following Hamas’s took control of the Gaza Strip, Israel as well as the EU were no longer involved in the monitoring of the Rafah crossing. Israel imposed a blockade on Gaza borders to force Hamas to concede power, and hence the Rafah Crossing was closed. It was exacerbated when Israel imposed a strict economic siege on Gaza both as a punishment for Gazans having elected Hamas in free and fair elections, and as a tactic to remove it from power. The Rafah border crossing, the Gazans' only gateway to the world that isn't controlled by their occupier, inevitably emerged as a symbol for the latest stage of the 60-year-old conflict, serving as a litmus test of Egypt's relations with the three parties on the other side of the border, Hamas, the PA and Israel (Howeidy, 2009, p.1)
Several Israeli politicians called for a unilateral reoccupation of the "Philadelphi" route, the name for the strip of land between Gaza and Egypt. On December 27, 2008, Israel launched massive air and ground campaign into Gaza in response to rocket attacks by Hamas in the Gaza Strip into northern Israel, in order to destroy Hamas rockets launching capabilities and bombarded the Gaza-Egypt border in what officials say are antismuggling operations (Prusher & Murphy, pp. 1-2).
According to the 2009 report by the Israeli Physicians for Human Rights (Gisha) organization, the closure of Rafah had severe implications for the residents of Gaza Strip, including preventing access to health care services that are not available in Gaza, preventing access to students and employees, forcing long separations of family members on either side of the border. Therefore, the closure of the Crossing was considered a severe violation of the rights of residents of the Gaza Strip (p. 7)
One of the most pivotal points in the Rafah Crossing agreement was that the role of the Egyptian Army in guarding the border to prevent arms and cash (p.3) smuggling or easy access for militants across the border (p. 2). Instead, Israeli officials say, the Gaza-Egyptian border is being used as a route for arming Hamas and other militant groups in anticipation of widely expected battles with the Israel Defense Forces (p. 2)
The 14km Rafah Crossing is one of five ways in and out of Gaza - It's the only crossing not guarded by Israeli forces. The Rafah border crossing has come to epitomize the geopolitical realities between Egypt and the occupied Palestinian territories -- with all their security and legal complexities -- as never before (Howeidy, 2009, p. 1). Since Hamas took control of Gaza in June 2007 the Egyptian-Gaza borders have been free of any Israeli presence for the first time since 1967. This immediately posed a complex problem for the Egyptian regime (p. 1)
Caroll J, 2007, elaborated on Egypt’s dilemma in policing the Rafah Crossing. There is "genuine concern" that Palestinian violence in Gaza could spill over into the Sinai, says Walid Kazziha, chair of the political science department at the American University in Cairo. "It is in Egypt's national interest that they have to look after" the smuggling issue. But he also notes that the Egyptian government faces domestic pressure to support Palestinians. "One thing that embarrasses the Egyptians is the Israelis asking Egypt to take [what would amount to] violence against the Palestinians," he says. "So it's a very tight rope." (p.1). Egypt itself is not a natural ally for Islamist Hamas, which is an offshoot of the country's banned Muslim Brotherhood, the country's powerful opposition movement. Terror attacks in the Sinai over the years have been blamed by the Egyptian government on local Bedouins who have been radicalized by contact with Palestinian militants (Prusher & Murphy, p. 2).
Furthermore, Egypt viewed Hamas as devoid of international legitimacy and recognizes the PA as the sole legitimate leadership of the Palestinian people (Kadman, p.126). Therefore, Egypt increased border patrols in response to Israel's complaints to quell weapon smuggling across the border, and a result Israel's critique has focused more on the smuggling and less on the Egyptian role, perhaps in part due to the sensitive point in negotiations over a possible prisoner exchange (Prusher & Murphy, p.2)
In the course of a week President Hosni Mubarak addressed the issue twice. He said that Egypt will not open the border because Gaza is an occupied territory and remains, therefore, the responsibility of Israel, the occupying force (Howeidy, 2009, p. 1). A few days later he said that Egypt would not open the border "in the absence of the Palestinian Authority and European monitors", a reference to the 2005 border agreement formulated between the Palestinian Authority (PA) and Israel a year before the 2006 Palestinian parliamentary elections brought Hamas to power. The agreement expired a year after it went into effect and has not been renewed since (p. 1)
At the heel of the Israeli offensive in Gaza in December of 2008, various statements by the UN Secretary-General described the level of the humanitarian crisis in Gaza Strip. On December 27, 2008, the Secretary-General expressed deep concern about the heavy bloodshed in Gaza, which he described as “unacceptable”, as well as the continuation of violence in southern Israel. The Secretary-General also “reiterated Israel’s obligation to uphold international humanitarian and human rights law and condemns excessive use of force leading to the killing and injuring of civilians”, and “large scale destruction” in Gaza. Moreover, the Secretary-General reiterated his previous calls for humanitarian supplies to be allowed into Gaza to aid the distressed civilian population. In another statement on December 29, 2009, the Secretary-General “stressed the need for the strict observance of international humanitarian law”, and reiterated his call that “unhindered access should be ensured for the delivery of humanitarian assistance” “much needed assistance and alleviate civilian suffering”. He also stated that “Israel must keep opening all border crossings necessary for the continued provision of humanitarian supplies”
Moreover, the World Bank warned of a growing public health risk because of the lack of drinking water and a collapse of Gaza's wastewater systems that has sent sewage into the streets (Mitnick, 2009, p. 1). The US Congress expressed the signers' "deep concern for the humanitarian situation in the Gaza Strip" and requested "immediate action by the U.S. to address this crisis.” It described in detail the "dire" situation on the ground in Gaza and stated "it is imperative that we work with Israel to open the borders so that the wounded can be treated, basic aid can reach those in need, and rebuilding can begin." Adding that "the failure to address this humanitarian emergency has the potential to produce a crisis of even more unspeakable proportions." (McArther, 2009, p. 23). Congressman Brian Baird (D-WA) after his visit to the Gaza Strip on February 20, 2009 stated that “The amount of physical destruction and the depth of human suffering here is staggering," said Baird. "Entire neighborhoods have been destroyed, schools completely leveled, fundamental water, sewer, and electricity facilities hit and relief agencies heavily damaged. The personal stories of children being killed in their homes or schools, entire families wiped out, and relief workers prevented from evacuating the wounded are heart wrenching--what went on here, and what is continuing to go on, is shocking and troubling beyond words." (Baird, 2009, p.21)
However, since Hamas takeover of the Gaza Strip in June of 2007, and even in light of the severe humanitarian crisis in the Gaza Strip in December 2008-January 2009 as the result of Israel’s military offensive against the Gaza Strip, under harsh criticism from the Arab world and Egyptian public opinion, Egypt refused to open Rafah Crossing to regular traffic opposite the Hamas regime (Kadman, p. 132), and supported the reopening according to a renewed agreement of all parties who consented to the AMA—Israel, the PA, the US, and the EU—regarding opening the Palestinian side of the border (p. 126). However, Egypt agreed to open the border, ad hoc, in response to humanitarian needs of the Gaza Strip (p. 125). Egypt stated that it is committed to the AMA agreement although Egypt itself was not a party to the agreement. Therefore, Egypt says it has not been able to open Rafah to regular traffic since Hamas takeover of the Gaza Strip in June 2007, and by opening the Crossing Egypt would violate the AMA, which requires the presence of the PA and the European force on the Palestinian side of the border, and Israel’s presence at Kerem Shalom—conditions which have not been fulfilled since that date (p. 126)
Egypt further argued that Israel consent to the open the Crossing was necessary since Israel continues controlling the West Bank and the Gaza Strip, and that the peace process, which Egypt supports, includes the gradual transfer of power from Israel to the PA, the legitimate representative of the Palestinians, according to Egypt (p. 126). Furthermore, in order to reach a new or renewed international arrangement on opening Rafah, Egypt is negotiating with various parties including Israel, Hamas, and the PA to open the border, including the EU and the US (p. 130). However, the Palestinian parties’ refusal to compromise on dividing control of the crossing constitutes the largest obstacle to opening Rafah (p. 131). For its part, the Palestinian Authority objected to opening the Crossing on a regular basis by Egypt opposite Hamas, so as not to legitimize the latter’s rule (Kadman, p. 136)
Janis & Noyes, 2006, stated that there are three principal formal sources of IL set forth in Article 38(1) of the ICJ; these are the rules that the Court “shall apply” as it decided “in accordance with IL such disputes as submitted to it”:”(a) International conventions, whether general or particular, establishing rules expressly recognized by the consenting states; (b) international custom, as evidence of a general practice accepted as law; (c) the principles of law recognized by civilized nations. Although the first two sources—treaty and custom—may be said by positivists to be more or less consensual among states, the third source—general principles of law—clearly involves some judicial or doctrinal initiative beyond a search for inter-state agreement on rules (p. 138). Historically, one of the most important sources of the law of nations was natural law, referred to as jus cognes or compelling norms (p. 138)
Compelling norms or jus cognes a norm that enjoys a higher rank in the international hierarchy than treaty law and even ordinary customary rules, principle at most issue cannot be derogated from by States through int’l treaties or local or special customs or even general customary rules not endowed with the same normative force (Janis & Noyes, p. 147)
Vienna’s Professor Alfred von Verdross wrote in 1937, that jus cognes consists of the general principle prohibiting states from concluding treaties contra bonos mores, which means that no judicial order can, therefore, admit treaties between juridical subjects, which are obviously in contradiction to the ethics of a certain community. Furthermore, treaties are regarded as being contra bonos mores if it restricts the liberty of one contracting party in an excessive or unworthy manner or which endanger its most important rights. Those norms of treaties which are incompatible with this goal of all positive law must be regarded as void (Janis & Noyes, p. 144). In other words, Professor Verdross argued, a treaty norm is void if it is either in violation of a compulsory norm of general international law or contra bonos mores. A treaty norm is contra bonos mores if a state is prevented by an international treaty from fulfilling the universally recognized tasks of a civilized state (p. 145). Contra bonos mores is a category Verdross justified as stemming from the general principle of law recognized by civilized nations (p. 146)
The 1937 article above by Vienna’s Professor Alfred von Verdross has been singled out as an important step in the development of Article 53 of the Vienna Convention on the law of the Treaties concerning peremptory norms of international law (Janis & Noyes, p. 146), which stipulates that “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Therefore, Egypt’s claims that it’s obligated by the expired Agreement on Movement and Access, which Egypt was not even a party, not to open the Rafah Crossing unless a new or renewed agreement is reached is considered a violation of the peremptory norm of general international law, which in this case the humanitarian crisis in Gaza and the human rights violations.
Article 43 of the Hague Regulation, which are part of international customary law, binding upon all countries imposes upon an occupying power the obligation to maintain public order and guarantee the existence of normal public life for the civilian population. Freedom of movement is necessary to guarantee normal life (Kadman, p. 150). Moreover, Articles 27 & 33 of the Fourth Geneva Convention on the protection of Victims of International Armed Conflicts, to which both Israel and Egypt are parties stated that “protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practice, and their manners and customs” “No protected person may be punished for an offense he or she has not personally committed” and adds that collective punishments are prohibited (Kadman, p. 151)
Egypt has an obligation under international humanitarian law to open the Rafah Crossing to allow the passage of humanitarian aid, which is derived from Israel’s actions by closing other crossings to and from Gaza and uses Rafah Crossing to implement a policy of collective punishment. Therefore, the Israeli closure of the Gaza Strip creates an obligation for Egypt to open Rafah by virtue of its obligation to respect the right of transfer of the residents of the blocked Gaza Strip, and by virtue of its obligation to act against the violation of the Fourth Geneva Convention by Israel (Kadman, p. 160). Moreover, since Egypt was not a party in the 2005 AMA between Israel and PA, therefore, Egypt has no obligation under treaty law to close the Rafah Crossing even when the agreement expired after 12 months of its implantation (Janis & Noyes, 2006, p. 92)
Positivists would argue that Egypt as a sovereign has the power to decide who and what shall enter its territory, and it has no obligation to allow passage through its border, except for its obligation to allow the passage of humanitarian aid, which Egypt continued to do only on ad hoc bases. In fact the judgment of PCIJ in 1927 (Permanent Court of International Justice) in the Lotus case has become of the most usually cited positivist opinions about the nature of IL, because it argued in part III that the “rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law”. The ruling of an evenly divided Court in Lotus maintained that all international legal rules are based on state consent: “restrictions upon independence of States cannot therefore be presumed.” No room was given to general principles of IL: fundamental norms, natural law, or equity as sources of IL; state sovereignty was seen as the fundamental principle of IL from which all other international legal principles and rules are derived (Janis & Noyes, p. 116)
Furthermore, in the 1966 Southwest Africa Cases, the ICJ ruled that humanitarian considerations are not sufficient in themselves to generate legal rights and obligations. The Court can take account of moral principles only in so far as these are given sufficient expression in legal forms. The secret trust itself must be or becoming something more than a moral or humanitarian ideal. It must be given judicial expression and be clothed in legal form. However, the Court in 1970 moved closer to Verdross position when it recognized in the Barcelona Traction Case, the concept of “obligations erga omnes”—the obligations of a state towards the international community as a whole. The Court cited as examples, the international legal proscriptions against interstate aggression, genocide, slavery, and racial discrimination (Janis & Noyes, p. 147)
Therefore, Egypt under obligations erg omnes, has an obligation towards the international community as a whole to intervene using its sovereign power and ease suffering of 1.5 million Palestinians and open the Rafah Crossing to allow the flow of humanitarian aid, and allow Palestinians their basic human right of movement and access. Furthermore, Egypt should invoke Articles 27 & 33 of the Fourth Geneva Convention on the protection of Victims of International Armed Conflicts by allowing civilians in Gaza passage to seek refuge and humanitarian assistance. By not doing so, Egypt is in violation of the law of compelling norms, jus cognes, created by the humanitarian crisis in Gaza and expressed in the UN Secretary-General statements and members of the US Congress.
References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing
Baird, B. (April, 2009). U.S. Congressmen visit Gaza, call for immediate relief, changes in U.S.
policy. Washington Report on Middle East Affairs, 28 (3), pp. 21-31.
Carroll, J. (May, 2007). Egypt's Gaza gateway: crossroad of frustration. Christian Science
Monitor, 99 (109), pp.1-4.
Gutman M. (November, 2005) Mideast deal gives Palestinians control of Gaza-Egypt
border. USA Today (n.d).
Howeidy, A. (January, 2009). All eyes on Rafah. Al Ahram weekly.
Kadman, N. (March, 2009). Rafah Crossing: Who holds the keys? Physicians for Human
Rights-Israel.
McArthur, S. (April, 2009). 111th Congress expresses its “vigorous support” for Israel’s Gaza
massacre. Washington Report on Middle East Affairs, 28 (3), pp. 22-23.
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St.
Paul, MN: West Publishing
Mitnick, J. (January, 2009). Can Egypt broker a Gaza true again? Christian Science Monitor, 101 (30), pp. 1-5.
Prusher, I. & Murphy, D. (October, 2006). Trouble sealing Egypt-Gaza border. Christian
Science Monitor, 98 (233) pp. 1-6.
UN-Agreement on Movement and Access (AMA), retrieved from
http://domino.un.org/UNISPAL.NSF/361eea1cc08301c485256cf600606959/c9a5aa5245d910bb852570bb0051711c!OpenDocument,
Monday, May 4, 2009
Keeping the peace in 21st century, role of international organizations
In the 19th and 20th centuries, the international legal circuits rejected the just war doctrine prevailed during the 5th and 6th centuries, which was pursued to avenge injuries against the enemy. War became a legitimate exercise of sovereign power, and sometimes inevitable if the parties involved chose so. Despite of its perceived legality, use of force was subject to restraints set forth by treaties, for example the 1907 Hague Convention No. II, and the authority of the general international law.
According the UN Charter, the Security Council should be the sole grantor of legitimacy regarding the use of force, assuming that all member states abide by Article 2 (4). The exceptions to the use of force without Security Council's approval would be the states' inherent right of self-defense (individual or collective) against an armed attack and only pending UN measures. Chapter VII lists several other measures to combat a belligerent state such as sanctions, with the approval of the major powers, before agreeing on the collective use of force to counter threats to peace and security. Article 51, which held legitimate “the inherent right of individual or collective self-defense in response to an “armed attack” even before the Security Council takes “the necessary measures to maintain international peace and security”
The Caroline case has been regarded as legal foundation of international law rules governing the legality of use of force in self-defense. The Caroline dictum says that every state has a right to strike first when the threat posed is "instant, overwhelming, leaving no choice of means and no moment for deliberation.". The Nuremberg Tribunal invoked the rule in Caroline when rejecting German leaders’ arguments that they had been entitled to attack Norway in self-defense. The concept of anticipatory or preemptive self-defense was then created, particularly in the context of nuclear strategy by some publicists as result of the Caroline case arguing that the right of self-defense was available when “the necessity of that self-defense is instant, overwhelming and leaving no choice of means and no moment for deliberation”. However, following WWI, states adopted new legal constraints on the use of force (p. 547). After WWII, the UN Charter generally prohibited the unilateral use of force by states.
Less than a decade into the 21st century, there is already a widespread sense that the world faces challenges and threats of unprecedented scope, scale and complexity. Global terrorism emerged as one of the main challenges to international peace and security since beginning of the 21st century. The current rules of international law were written for conventional, inter-state conflicts, while even the definition of terrorism and terrorists remains elusive and ill-defined. Yet, in the era of globalization and heightened interconnectedness, the existing international organizations, mainly the UN through its organizations such the Security Council, the General Assembly and International Court of Justice should remain at the forefront to meet the challenges of world peace in the 21 century.
Paul Szasz in 2002 argued that in recent years the Security Council has increasingly adopted decisions that deal not with any particular conflict or situation but, rather with conflicts in general. Thus, it has addressed the protection of children and civilians, the role of women with respect to peace and security, humanitarian questions and even international terrorism. Nevertheless, the operative paragraphs of these resolutions are not formulated in compulsory terms. He added that the council might even consider extreme violations of human rights or humanitarian law, or massive assaults on the international environment, to constitute unacceptable threats to the peace. Furthermore, the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change endorsed the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent
On September 28, 2001, the Security Council departed from its previous limited and cautious practice and adopted Resolution 1373, by which it decided that all states shall take certain actions against the financing of terrorist activities, as well as a miscellany of other actions designed to prevent any support for terrorist activities. Security Council’s Resolution 1373 added another dimension to the concept of “armed attack” to include attacks by non-state actors such as terrorist groups, which then gave the State(s) the right of individual or collective self-defense under Article 51. However, in order to ensure that the authorization to use force to combat terrorism will further contribute to peace and stability; the UN Charter still imposed restriction on the right of states to use force in self-defense against an armed attack of sufficient scale and effect by requiring the victim state to abide by the rules of “necessity” and “proportionality” in assessing an armed attack and measuring its [state] response.
Richard Gardner, critic of the Bush's Doctrine, suggested four modest reinterpretations of the UN Charter, which seem to be in the right direction that the world should head into in response to unprecedented circumstances of terrorism and issues of states’ rights to self-defense. These measures include:
(1) Armed force may be used by UN member even without the Security Council approval to destroy terrorist groups operating on the territory of other members when those other members fail to discharge their international law obligations to suppress them
(2) Armed force may also be used to prevent a UN member from transferring WMDs to terrorist groups
(3) Article 51 continues to limit self-defense to cases of actual or imminent armed attack in accordance with the Caroline doctrine, but self-defense can be extended to permit a state to rescue its citizens (and others) faced with clear threat to their security.
(4) A right of “humanitarian intervention” permits military action by the UN or regional organizations to prevent genocide or similar massive human rights violaitons
Furthermore, the Report of the High-Level Panel on Threats, Challenges and Change, in 2004, asserted that the effectiveness of the global collective security system depends ultimately not only on the legality of decisions but also on the common perception of their legitimacy. In considering whether to authorize or endorse the use of military force, the Security Council should always address at least five basic criteria of legitimacy:
(a) Seriousness of threat. The threat must be considered clear and serious.
(b) Proper purpose. Is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question?
(c) Last resort. Has every non-military option for meeting the threat in question been explored?
(d) Proportional means. Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question?
(e) Balance of consequences. Will the consequences of action not likely to be worse than the consequences of inaction?
However, wider participation by other states is required the decision-making process in order to ensure Security Council’s Resolutions regarding war and peace more credible and representative of the will of the international community. The Uniting for Peace Resolution in 1950, or Acheson Plan, argued based on Articles 10, 11, 14 of the Charter making the Assembly the Council’s partner in wielding “authority and responsibility for matters affecting international peace, sounds more promising today in circumventing the veto-bound Council, which has often been accused of yielding to the wishes of its permanent members. By giving the Assembly more authority, it would step in to organize the collective use of force against an aggressor as it happened during the Korean conflict.
Among areas where international organizations’ efforts are falling short are peacekeeping efforts and effects of economic sanctions invoked by Chapter VII on ordinary population and non-target states. The Suez crisis in 1956 thus confirmed the UN in its most fruitful line of endeavor: the stationing of international peacekeeping forces between mutually hostile antagonists at the crucial moment in a dispute when both sides perceive disengagement as preferable to continued hostilities. In order to make the complex peacekeeping or peace-building operations more effective, it is important to identify specific authority for peacekeeping in the text of the Charter.
Furthermore, the 1962 ICJ ruling that the Assembly should not recommend measures while the Council is dealing with the same matter unless the Council requests it to do should also be overturned in order to allow the Assembly to approve peacekeeping operations when the Council refused to act. Another challenge to make the peacekeeping or building more effective is to ensure reliable funding for and national support of broad UN mandates.
Sanctions imposed through Chapter VII of the UN Charter prohibit imports into a target country, exporters in other states and the economies of other states may be harmed (double-edged sword). Security Council should take appropriate measures to ensure that sanctions do not create severe hardships for the ordinary population of a target state and to mitigate the hardships of sanctions in non-target states. Furthermore, a mechanism must be regularly available to review the humanitarian impact of sanctions.
References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing
According the UN Charter, the Security Council should be the sole grantor of legitimacy regarding the use of force, assuming that all member states abide by Article 2 (4). The exceptions to the use of force without Security Council's approval would be the states' inherent right of self-defense (individual or collective) against an armed attack and only pending UN measures. Chapter VII lists several other measures to combat a belligerent state such as sanctions, with the approval of the major powers, before agreeing on the collective use of force to counter threats to peace and security. Article 51, which held legitimate “the inherent right of individual or collective self-defense in response to an “armed attack” even before the Security Council takes “the necessary measures to maintain international peace and security”
The Caroline case has been regarded as legal foundation of international law rules governing the legality of use of force in self-defense. The Caroline dictum says that every state has a right to strike first when the threat posed is "instant, overwhelming, leaving no choice of means and no moment for deliberation.". The Nuremberg Tribunal invoked the rule in Caroline when rejecting German leaders’ arguments that they had been entitled to attack Norway in self-defense. The concept of anticipatory or preemptive self-defense was then created, particularly in the context of nuclear strategy by some publicists as result of the Caroline case arguing that the right of self-defense was available when “the necessity of that self-defense is instant, overwhelming and leaving no choice of means and no moment for deliberation”. However, following WWI, states adopted new legal constraints on the use of force (p. 547). After WWII, the UN Charter generally prohibited the unilateral use of force by states.
Less than a decade into the 21st century, there is already a widespread sense that the world faces challenges and threats of unprecedented scope, scale and complexity. Global terrorism emerged as one of the main challenges to international peace and security since beginning of the 21st century. The current rules of international law were written for conventional, inter-state conflicts, while even the definition of terrorism and terrorists remains elusive and ill-defined. Yet, in the era of globalization and heightened interconnectedness, the existing international organizations, mainly the UN through its organizations such the Security Council, the General Assembly and International Court of Justice should remain at the forefront to meet the challenges of world peace in the 21 century.
Paul Szasz in 2002 argued that in recent years the Security Council has increasingly adopted decisions that deal not with any particular conflict or situation but, rather with conflicts in general. Thus, it has addressed the protection of children and civilians, the role of women with respect to peace and security, humanitarian questions and even international terrorism. Nevertheless, the operative paragraphs of these resolutions are not formulated in compulsory terms. He added that the council might even consider extreme violations of human rights or humanitarian law, or massive assaults on the international environment, to constitute unacceptable threats to the peace. Furthermore, the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change endorsed the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent
On September 28, 2001, the Security Council departed from its previous limited and cautious practice and adopted Resolution 1373, by which it decided that all states shall take certain actions against the financing of terrorist activities, as well as a miscellany of other actions designed to prevent any support for terrorist activities. Security Council’s Resolution 1373 added another dimension to the concept of “armed attack” to include attacks by non-state actors such as terrorist groups, which then gave the State(s) the right of individual or collective self-defense under Article 51. However, in order to ensure that the authorization to use force to combat terrorism will further contribute to peace and stability; the UN Charter still imposed restriction on the right of states to use force in self-defense against an armed attack of sufficient scale and effect by requiring the victim state to abide by the rules of “necessity” and “proportionality” in assessing an armed attack and measuring its [state] response.
Richard Gardner, critic of the Bush's Doctrine, suggested four modest reinterpretations of the UN Charter, which seem to be in the right direction that the world should head into in response to unprecedented circumstances of terrorism and issues of states’ rights to self-defense. These measures include:
(1) Armed force may be used by UN member even without the Security Council approval to destroy terrorist groups operating on the territory of other members when those other members fail to discharge their international law obligations to suppress them
(2) Armed force may also be used to prevent a UN member from transferring WMDs to terrorist groups
(3) Article 51 continues to limit self-defense to cases of actual or imminent armed attack in accordance with the Caroline doctrine, but self-defense can be extended to permit a state to rescue its citizens (and others) faced with clear threat to their security.
(4) A right of “humanitarian intervention” permits military action by the UN or regional organizations to prevent genocide or similar massive human rights violaitons
Furthermore, the Report of the High-Level Panel on Threats, Challenges and Change, in 2004, asserted that the effectiveness of the global collective security system depends ultimately not only on the legality of decisions but also on the common perception of their legitimacy. In considering whether to authorize or endorse the use of military force, the Security Council should always address at least five basic criteria of legitimacy:
(a) Seriousness of threat. The threat must be considered clear and serious.
(b) Proper purpose. Is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question?
(c) Last resort. Has every non-military option for meeting the threat in question been explored?
(d) Proportional means. Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question?
(e) Balance of consequences. Will the consequences of action not likely to be worse than the consequences of inaction?
However, wider participation by other states is required the decision-making process in order to ensure Security Council’s Resolutions regarding war and peace more credible and representative of the will of the international community. The Uniting for Peace Resolution in 1950, or Acheson Plan, argued based on Articles 10, 11, 14 of the Charter making the Assembly the Council’s partner in wielding “authority and responsibility for matters affecting international peace, sounds more promising today in circumventing the veto-bound Council, which has often been accused of yielding to the wishes of its permanent members. By giving the Assembly more authority, it would step in to organize the collective use of force against an aggressor as it happened during the Korean conflict.
Among areas where international organizations’ efforts are falling short are peacekeeping efforts and effects of economic sanctions invoked by Chapter VII on ordinary population and non-target states. The Suez crisis in 1956 thus confirmed the UN in its most fruitful line of endeavor: the stationing of international peacekeeping forces between mutually hostile antagonists at the crucial moment in a dispute when both sides perceive disengagement as preferable to continued hostilities. In order to make the complex peacekeeping or peace-building operations more effective, it is important to identify specific authority for peacekeeping in the text of the Charter.
Furthermore, the 1962 ICJ ruling that the Assembly should not recommend measures while the Council is dealing with the same matter unless the Council requests it to do should also be overturned in order to allow the Assembly to approve peacekeeping operations when the Council refused to act. Another challenge to make the peacekeeping or building more effective is to ensure reliable funding for and national support of broad UN mandates.
Sanctions imposed through Chapter VII of the UN Charter prohibit imports into a target country, exporters in other states and the economies of other states may be harmed (double-edged sword). Security Council should take appropriate measures to ensure that sanctions do not create severe hardships for the ordinary population of a target state and to mitigate the hardships of sanctions in non-target states. Furthermore, a mechanism must be regularly available to review the humanitarian impact of sanctions.
References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing
Wednesday, April 15, 2009
International Law and Individuals' Rights
During the 19th and early 20th century, individuals were viewed as “objects” of IL, and were not deemed to be”subjects” of IL (Janis & Noyes, 2006, p. 363). Positivists like Jeremy Bentham in 1789 created the term “International Law”, which he defined as the law that relates to the “mutual transactions between sovereigns as such”, and therefore, categorizing laws on the basis of “the persons whose conduct is the object of the law”. Bentham concluded that IL had only states as its subjects (Janis & Noyes, p. 364).
Positivists viewed International Law (IL) as a set of rules with states as its subjects, whereas municipal law was thought of as pertaining to individuals who are subjects of a single state. Legal positivism had taken the 18th century law of nations, a law common to individuals and states, and transformed it into public and private IL. The former was deemed to apply to states, the latter to individuals. Positivists criticized both sides of the discipline. Public IL was “international” but not really “law”. Private IL was “law” but not really “International”. In short, positivists reject the notion that individuals are proper subjects of IL (p. 364)
Before positivism, there was no theoretical insistence that the rules f the law of nations applied only to states (Janis & Noyes, p. 363). The dominant sentiment was of those like William Blackstone who viewed both individuals and states were as the proper subjects of the law of nations. Blackstone distinguished his law of nations from other sorts of law not on the basis of its subjects, and saw that the rule of law of nations as universal, emanating either from natural justice or from the practice of many states. Municipal legal rules, however, emanated from a single state (p. 364)
However, only in recent decades has there been a fundamental shift in beliefs that the rights of individuals may be more important than the needs of states, not simply within nations but across the international system (Week 6 lecture, IL and Human Rights, p. 1). While law can be categorized on the basis of its subjects, in practice, the law of nations and IL have concerned more than the legal rights of states (Janis & Noyes, p. 365). Even during the high tide of positivism, the US Supreme Court had no difficulty seeing individuals as subjects of IL. The Court held that “IL is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination (p. 364)
As Janis & Noyes explained, the concept that individuals can be subjects, as well as objects, of IL logically divides into individual rights at IL and individual duties. The principle that law should protect the rights of individuals against the abuses of governments can be at least be dated back to John Locke’s Two Treaties of Government published in 1690. He believed that human rights, not governments, came first in the natural order of things. In the 18th century, the American declaration of Independence, the French Declaration of the Rights of Man and Citizen, and the US Bill of Rights constituted the documentary foundation on which two centuries of legal protection of human rights in municipal law which has been built (p. 368)
Nonetheless, the trials of Nazi war criminals after the Second World War highlighted the limitations of positivism. Nuremberg re-established plainly and forcefully that the rules of IL should and do apply to individuals. The Charter of the International Military Tribunals at Nuremberg explicitly made individuals subjects to Int’l rules relating to crimes against peace, war crimes, and crimes against humanity (Janis & Noyes, p. 365). Among the main lessons from the Nuremberg Tribunal is that there are individual international rights and obligations that transcend state boundaries. Prior to Nuremberg, it was argued that one of the cornerstones of the Westphalian system of international relations was the principle that sovereign states should be free of outside interference in regulating their own citizens in their own territories (p. 367).
However, the Nuremberg tribunals upheld the fact that individuals rights at IL permeate state sovereignty, permitting outsiders to evaluate how well a state does protecting the rights of inviduals, citizens as well as aliens, in its own territory. It argued that it is wrong, both in terms of describing reality and in terms of preferential expression, for the theory of IL to hold that individuals are outside the ambit of IL rules. Hence, the definition of “nation” under International Law became not limited only to the national state but also the individuals who are the nationals of state. Furthermore, necessary measures taken by all states and international organization to suppress behaviors contrary to IL were consistent with generally recognized principles of IL and should not be considered as intervening in the internal affairs of a state (preservation of the right to self-determination, the prevention of discrimination, the prevention and punishment of genocide, the prohibition against slavery and similar systems and customs, and the prevention and punishment of terrorism) ( D’Amato & Abbassi, p. 111)
Moreover, during the Nuremberg Trial, it was argued that individuals who commit atrocities against humanity must have known that they were acting in defiance of all international laws, and it would be unjust if their wrong was allowed to go unpunished (Janis & Noyes, pp. 373-374). Therefore, the Tribunal rejected the argument that IL is concerned with the actions of sovereign states and provides no punishment for individuals, and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State (p. 375). The judges ruled that crimes against IL are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of IL be enforced (p. 376). The judges in the Nuremberg Tribunal have relied on precious treaties to reach their verdict, among them was the Treaty of Versailles, which was signed in 1919, and whose Article 7 stipulated that “the official position of defendants shall not be considered as freeing from responsibility, or mitigating punishment. Individuals have int’l duties which transcend the national obligations of obedience imposed by the individual state. Article 3 indicated that “the fact that defendant acted pursuant to orders of his government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment (Janis & Noyes, p. 370). However, the emergence of int’l human rights law in the mid-20th century has been described as the most radical development in the whole history of IL, since it so speedily reestablished individuals as well as states as subjects if IL, although, the rapid emergence of the rules of int’l human rights law, the development of effective international human rights legal process has been more gradual (p. 377)
Among the main challenges to extending International Law to the individuals rights and wrongs are the notions of state protections and responsibilities. However, the traditional doctrines of state protections and state responsibility have at least three significant limitations. First, individuals may only be protected by their national states, with its elusive national links. Second, when the notion of national links is extended to corporations, even more confusion can result. Finally, and most importantly, the objective view of individuals leaves nationals open to abuse by their own states, since its impractical to conceive of a state protecting its own nationals against itself in IL (Janis & Noyes, p. 339)
Furthermore, the doctrine of state responsibility examined in the Nottebohm and Barcelona Traction provided partial protection, but only so as long as a foreign national injured by a state was effectively protected at the international level by that individual’s national state. However, neither the doctrine of the state sovereignty nor its counterpart, the doctrine of state protection, could shield individuals from abuses committed by their own governments (Janis & Noyes, p. 370)
Among other challenges is that international human rights treaties can trigger a “backlash” against international human rights regimes even in democratic societies when treaties call for behavior with which most voters disagree (Janis & Noyes, p. 388). Cultural norms and religious beliefs constitute another challenge in dealing with both states and individuals who violate international law. Proponents of universal international law like Robert Sloane argued that it’s not cultural values that inhibit societies from realizing a legal order that respects universal human rights; it is the self-serving manipulation of these values by elites. Authoritarian leaders often invoke cultural relativism to cloak the characteristic abuses of totalitarian rule (D’Amato & Abbassi, p. 112). The same argument was echoed by Celestine Naymu, who added that the vague notion of culture provides a convenient scapegoat for government institutions and obscures the state’s responsibility in redressing inequalities (p. 115). Ann Elizabeth, rejected international law should accept that fundamental human rights to be restricted by reference to the requirement of any particular religion (p. 115). Therefore, aggrieved citizens within those religious or cultural communities are thus left without formal legal or constitutional remedies. Unless the overlap between cultural norms and formal law and policy is acknowledged and analyzed, the government can exonerate itself by attributing any negative outcome to culture (p. 117).
To conclude, expanding the reach of international law beyond traditional state-to-state interactions into matters directly involving the rights and wrongs of individuals, have ensured that violators of international law will be brought to justice and held accountable for their crimes, and can argued to have improved the status of international human rights in particular. However, despite the rapid emergence of the rules of international human rights law, the development of effective international human rights legal process has been more gradual (Janis & Noyes, p.377). The debate also continues as to whether culture, religion and matters related to state protection, sovereignty and responsibility (as in the case of US rejection of ICJ) can be reconciled with International Law, or whether International Law should transcend all these factors.
References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing
Positivists viewed International Law (IL) as a set of rules with states as its subjects, whereas municipal law was thought of as pertaining to individuals who are subjects of a single state. Legal positivism had taken the 18th century law of nations, a law common to individuals and states, and transformed it into public and private IL. The former was deemed to apply to states, the latter to individuals. Positivists criticized both sides of the discipline. Public IL was “international” but not really “law”. Private IL was “law” but not really “International”. In short, positivists reject the notion that individuals are proper subjects of IL (p. 364)
Before positivism, there was no theoretical insistence that the rules f the law of nations applied only to states (Janis & Noyes, p. 363). The dominant sentiment was of those like William Blackstone who viewed both individuals and states were as the proper subjects of the law of nations. Blackstone distinguished his law of nations from other sorts of law not on the basis of its subjects, and saw that the rule of law of nations as universal, emanating either from natural justice or from the practice of many states. Municipal legal rules, however, emanated from a single state (p. 364)
However, only in recent decades has there been a fundamental shift in beliefs that the rights of individuals may be more important than the needs of states, not simply within nations but across the international system (Week 6 lecture, IL and Human Rights, p. 1). While law can be categorized on the basis of its subjects, in practice, the law of nations and IL have concerned more than the legal rights of states (Janis & Noyes, p. 365). Even during the high tide of positivism, the US Supreme Court had no difficulty seeing individuals as subjects of IL. The Court held that “IL is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination (p. 364)
As Janis & Noyes explained, the concept that individuals can be subjects, as well as objects, of IL logically divides into individual rights at IL and individual duties. The principle that law should protect the rights of individuals against the abuses of governments can be at least be dated back to John Locke’s Two Treaties of Government published in 1690. He believed that human rights, not governments, came first in the natural order of things. In the 18th century, the American declaration of Independence, the French Declaration of the Rights of Man and Citizen, and the US Bill of Rights constituted the documentary foundation on which two centuries of legal protection of human rights in municipal law which has been built (p. 368)
Nonetheless, the trials of Nazi war criminals after the Second World War highlighted the limitations of positivism. Nuremberg re-established plainly and forcefully that the rules of IL should and do apply to individuals. The Charter of the International Military Tribunals at Nuremberg explicitly made individuals subjects to Int’l rules relating to crimes against peace, war crimes, and crimes against humanity (Janis & Noyes, p. 365). Among the main lessons from the Nuremberg Tribunal is that there are individual international rights and obligations that transcend state boundaries. Prior to Nuremberg, it was argued that one of the cornerstones of the Westphalian system of international relations was the principle that sovereign states should be free of outside interference in regulating their own citizens in their own territories (p. 367).
However, the Nuremberg tribunals upheld the fact that individuals rights at IL permeate state sovereignty, permitting outsiders to evaluate how well a state does protecting the rights of inviduals, citizens as well as aliens, in its own territory. It argued that it is wrong, both in terms of describing reality and in terms of preferential expression, for the theory of IL to hold that individuals are outside the ambit of IL rules. Hence, the definition of “nation” under International Law became not limited only to the national state but also the individuals who are the nationals of state. Furthermore, necessary measures taken by all states and international organization to suppress behaviors contrary to IL were consistent with generally recognized principles of IL and should not be considered as intervening in the internal affairs of a state (preservation of the right to self-determination, the prevention of discrimination, the prevention and punishment of genocide, the prohibition against slavery and similar systems and customs, and the prevention and punishment of terrorism) ( D’Amato & Abbassi, p. 111)
Moreover, during the Nuremberg Trial, it was argued that individuals who commit atrocities against humanity must have known that they were acting in defiance of all international laws, and it would be unjust if their wrong was allowed to go unpunished (Janis & Noyes, pp. 373-374). Therefore, the Tribunal rejected the argument that IL is concerned with the actions of sovereign states and provides no punishment for individuals, and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State (p. 375). The judges ruled that crimes against IL are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of IL be enforced (p. 376). The judges in the Nuremberg Tribunal have relied on precious treaties to reach their verdict, among them was the Treaty of Versailles, which was signed in 1919, and whose Article 7 stipulated that “the official position of defendants shall not be considered as freeing from responsibility, or mitigating punishment. Individuals have int’l duties which transcend the national obligations of obedience imposed by the individual state. Article 3 indicated that “the fact that defendant acted pursuant to orders of his government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment (Janis & Noyes, p. 370). However, the emergence of int’l human rights law in the mid-20th century has been described as the most radical development in the whole history of IL, since it so speedily reestablished individuals as well as states as subjects if IL, although, the rapid emergence of the rules of int’l human rights law, the development of effective international human rights legal process has been more gradual (p. 377)
Among the main challenges to extending International Law to the individuals rights and wrongs are the notions of state protections and responsibilities. However, the traditional doctrines of state protections and state responsibility have at least three significant limitations. First, individuals may only be protected by their national states, with its elusive national links. Second, when the notion of national links is extended to corporations, even more confusion can result. Finally, and most importantly, the objective view of individuals leaves nationals open to abuse by their own states, since its impractical to conceive of a state protecting its own nationals against itself in IL (Janis & Noyes, p. 339)
Furthermore, the doctrine of state responsibility examined in the Nottebohm and Barcelona Traction provided partial protection, but only so as long as a foreign national injured by a state was effectively protected at the international level by that individual’s national state. However, neither the doctrine of the state sovereignty nor its counterpart, the doctrine of state protection, could shield individuals from abuses committed by their own governments (Janis & Noyes, p. 370)
Among other challenges is that international human rights treaties can trigger a “backlash” against international human rights regimes even in democratic societies when treaties call for behavior with which most voters disagree (Janis & Noyes, p. 388). Cultural norms and religious beliefs constitute another challenge in dealing with both states and individuals who violate international law. Proponents of universal international law like Robert Sloane argued that it’s not cultural values that inhibit societies from realizing a legal order that respects universal human rights; it is the self-serving manipulation of these values by elites. Authoritarian leaders often invoke cultural relativism to cloak the characteristic abuses of totalitarian rule (D’Amato & Abbassi, p. 112). The same argument was echoed by Celestine Naymu, who added that the vague notion of culture provides a convenient scapegoat for government institutions and obscures the state’s responsibility in redressing inequalities (p. 115). Ann Elizabeth, rejected international law should accept that fundamental human rights to be restricted by reference to the requirement of any particular religion (p. 115). Therefore, aggrieved citizens within those religious or cultural communities are thus left without formal legal or constitutional remedies. Unless the overlap between cultural norms and formal law and policy is acknowledged and analyzed, the government can exonerate itself by attributing any negative outcome to culture (p. 117).
To conclude, expanding the reach of international law beyond traditional state-to-state interactions into matters directly involving the rights and wrongs of individuals, have ensured that violators of international law will be brought to justice and held accountable for their crimes, and can argued to have improved the status of international human rights in particular. However, despite the rapid emergence of the rules of international human rights law, the development of effective international human rights legal process has been more gradual (Janis & Noyes, p.377). The debate also continues as to whether culture, religion and matters related to state protection, sovereignty and responsibility (as in the case of US rejection of ICJ) can be reconciled with International Law, or whether International Law should transcend all these factors.
References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing
Thursday, April 2, 2009
International and Municipal Law
The term International Law (IL) in itself implies a framework of rules and regulations, which states are either legally or morally bound by (D’Amato & Abbassi, 2006, p. 13 & p. 26, Janis & Noyes,2006, p. 3). J.L. Brierly in his classic British introduction to International Law defined the discipline “as the body of rules and principles of action which are binding upon civilized states in their relations with one another” (Janis & Noyes, p. 24).
Mark Janis, 2006, wrote about the historical background of International Law and how has it developed over time. He explained how the Romans knew of a jus gentium, a law of nations or a law “common to all men” (Janis & Noyes, p. 1). In the Seventeenth century, a Dutch jurist named Hugo Grotius in his 1625 writing “The Law of War and Peace” recognized law of nations as a set of rules that bound sovereign states, which then became the foundation of the modern discipline of the law of nations. In 1789, the English philosopher Jeremy Bentham renamed “international law”. Today, the law of nations and International Law are used interchangeably (p. 1).
There is an inherent reciprocity in International Law in a sense that for an independent state to be entitled to full benefits of sovereignty and recognition by the international community it must respect the sovereignty and the entitlements of other states (D’Amato & Abbassi, p. 17). Therefore, international law restrains the state power from threatening the sovereignty of other states; otherwise the offending state will lose its entitlements and be subject to hostilities by other countries. The international community accepted the legality of violating nation’s entitlements in order to repudiate that nation initial offense (D’Amato & Abbassi, p. 22).
Among the various sources of International Law where such rules and regulations are identified are treaties and customary laws accepted by the international community. When neither treaties nor customary laws provide a rule or able to decide on a case involving IL; then the judge may look at other sources including the general principles of law recognized by civilized nations, natural law, and jus cogens or compelling norms (Janis & Noyes, p. 128 & p. 138)
Treaties are contracts between two countries or group of countries. Each country can negotiate the terms of such contracts and either becomes a party obligated to fully carry out the terms of the agreement, or makes specific reservations, understandings or declarations. In practice, treaties have become the main source of International Law, where states are bound to the terms of the agreement and are held accountable if they violate them (D’Amato & Abbassi, pp. 24-26). Disputes are often brought before International Court of Justice (ICJ), whose opinions are not legally binding; however, it provides states with rationale to resolve their problems (Janis & Noise, pp. 27-57). Therefore, treaties are considered international contracts, similar to the domestic legal analogy of drafting a contract (Janis & Noise, p. 54). “Whatever the term used, all agreements have the same legal status, except as their provisions or the circumstances of their conclusion indicate otherwise” ( p. 55).
Among the main criticism to the treaty practice is that treaties never bind all states—only signatories. Moreover, treaties don’t cover every aspect of International Law, hence the need for customary law and other sources of IL. Some treaties are not self-executing, which means that a treaty cannot be enforced without an implanting legislation (D’Amato & Abbassi, p. 53). Furthermore, except for humanitarian treaties (D’Amato & Abbassi, p. 51), and in order to obtain a universal ratification; States can generally refrain from binding by certain provisions of a treaty either by declining to be a party in a treaty or submit reservations as a condition of ratifications in order to protect its domestic interests. However, in treaties covering human rights issues, states might get away with submitting reservations that violate the basic understanding of the treaty, since other states might not object to such reservations if their domestic interests are not implicated (p. 56)
On the other hand, customary law seems to have all the answers to the critics of treaties’ law—it is binding to all states even without their consent, which seems more compelling than law of treaties, and it applies to every dispute whenever a more specific treaty provision does not (D’Amato & Abbassi. p. 59). Customary law is formatted based on previous similar “incidents” or disputes and consequently draw a similar resolution or points in the same direction to obtain one (p. 60). However, developing criteria for what really constitute an incident and when it starts or ends remains a challenge (D’Amato & Abbassi, pp. 64-65). Moreover, certain facts surrounding an incident might not be available till years later, which in turn undermine the validity of the initial resolution (p. 65). Furthermore, since customary law is designed to settle disputes that had precedents in history, it is not capable of addressing non conventional threats like terrorism and WMDs (p. 66).
As Janis and Noyes explained, International Law depends on municipal law—in most instances, when legal rules are applied in practice, they are applied by municipal courts. Moreover, the incorporation of international legal rules into domestic laws is usually done by municipal law governed by the constitution (Janis & Noyes, p. 180). However, there is a debate between monists and dualists as to whether the Constitution should be used as filter to ensure that International Law conforms to national laws—nationalization of International Law (Slaughter, 1997, p.192), or should International Law be allowed to penetrate through the national legal order—denationalization of Constitutional Law (De Burca & Gerstenberg, p. 244)-creating a more universal legal order (Week 4 PDF notes, p. 1). Most governments currently adhere to the ‘dualist’ paradigm, viewing national and international legal systems as separate, each with its own power to settle the effect of any rule from the other system within its own bounds (Week 4 lecture, p. 1)
The U.S constitution gives treaties (provided that treaties are self-executing) and federal laws equal force, and they both trump states laws. The most important US constitutional law decision concerning the relationship of international law and US municipal law is Foster & Elam (J & N., p. 180). Article VI (2) of the US constitution, the Supremacy Clause: The constitution, and the laws of the US and all treaties made or shall be made, under the authority of the US shall be the supreme law of the land. Anything in the constitution or laws of any state to the contrary notwithstanding. In the Asakura v. City of Seattle case is an example of a state law being trumped up by US treaty rule. The case cited Foster & Elam for the proposition that a treaty “operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts (J. & N. p. 185).
Moreover, the U.S. Constitution also recognizes customary law and, like treaty and federal law, receives the benefits of the Supremacy Clause (Week 4 lecture, p. 4). In the Sosa v. Alvarez-Machan, the Supreme Court Justices stipulated that the US bound to receive the law of nations, in its modern state of purity and refinement (N. & J., p. 248). However, more than 95 percent of all international agreements concluded by the US are in the form of executive agreements. Over the years, Congress tried to curb presidential executive power. The President still enjoys predominant power in foreign affairs (Week 4 lecture, p. 3). Even when the Senate consents to a treaty, the Constitution gives only the President the authority to negotiate, without intrusion by the Senate, as in the case of United States v. Curtiss-Wright (J. & N., p. 211).
Despite the fact the both International Law and Municipal Law depend on each other as we previously explained, De Burca & Gerstenberg in 2006 argued that both politicians and legislators have expressed reservations about the role and function of International Law in domestic affairs. Moreover, legislators are usually skeptical about the authority and utility of International Law and how it should be given effect within domestic system (p. 243). De Burca & Gerstenberg suggested that both International and constitutional norms should be understood as “contextually competing rule-of-law rather than as conflicting legal sources vying against one another” (p. 244)
References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing
De Burca, G. & Gerstenberg, O. (2006, Winter). The denationalization of constitutional law. Harvard International Law Journal, 47(1), pp. 243-262.
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing
Slaughter, A. (1997, Sep/Oct). The real new world order. Foreign Affairs, 76 (5), pp. 183-197
Mark Janis, 2006, wrote about the historical background of International Law and how has it developed over time. He explained how the Romans knew of a jus gentium, a law of nations or a law “common to all men” (Janis & Noyes, p. 1). In the Seventeenth century, a Dutch jurist named Hugo Grotius in his 1625 writing “The Law of War and Peace” recognized law of nations as a set of rules that bound sovereign states, which then became the foundation of the modern discipline of the law of nations. In 1789, the English philosopher Jeremy Bentham renamed “international law”. Today, the law of nations and International Law are used interchangeably (p. 1).
There is an inherent reciprocity in International Law in a sense that for an independent state to be entitled to full benefits of sovereignty and recognition by the international community it must respect the sovereignty and the entitlements of other states (D’Amato & Abbassi, p. 17). Therefore, international law restrains the state power from threatening the sovereignty of other states; otherwise the offending state will lose its entitlements and be subject to hostilities by other countries. The international community accepted the legality of violating nation’s entitlements in order to repudiate that nation initial offense (D’Amato & Abbassi, p. 22).
Among the various sources of International Law where such rules and regulations are identified are treaties and customary laws accepted by the international community. When neither treaties nor customary laws provide a rule or able to decide on a case involving IL; then the judge may look at other sources including the general principles of law recognized by civilized nations, natural law, and jus cogens or compelling norms (Janis & Noyes, p. 128 & p. 138)
Treaties are contracts between two countries or group of countries. Each country can negotiate the terms of such contracts and either becomes a party obligated to fully carry out the terms of the agreement, or makes specific reservations, understandings or declarations. In practice, treaties have become the main source of International Law, where states are bound to the terms of the agreement and are held accountable if they violate them (D’Amato & Abbassi, pp. 24-26). Disputes are often brought before International Court of Justice (ICJ), whose opinions are not legally binding; however, it provides states with rationale to resolve their problems (Janis & Noise, pp. 27-57). Therefore, treaties are considered international contracts, similar to the domestic legal analogy of drafting a contract (Janis & Noise, p. 54). “Whatever the term used, all agreements have the same legal status, except as their provisions or the circumstances of their conclusion indicate otherwise” ( p. 55).
Among the main criticism to the treaty practice is that treaties never bind all states—only signatories. Moreover, treaties don’t cover every aspect of International Law, hence the need for customary law and other sources of IL. Some treaties are not self-executing, which means that a treaty cannot be enforced without an implanting legislation (D’Amato & Abbassi, p. 53). Furthermore, except for humanitarian treaties (D’Amato & Abbassi, p. 51), and in order to obtain a universal ratification; States can generally refrain from binding by certain provisions of a treaty either by declining to be a party in a treaty or submit reservations as a condition of ratifications in order to protect its domestic interests. However, in treaties covering human rights issues, states might get away with submitting reservations that violate the basic understanding of the treaty, since other states might not object to such reservations if their domestic interests are not implicated (p. 56)
On the other hand, customary law seems to have all the answers to the critics of treaties’ law—it is binding to all states even without their consent, which seems more compelling than law of treaties, and it applies to every dispute whenever a more specific treaty provision does not (D’Amato & Abbassi. p. 59). Customary law is formatted based on previous similar “incidents” or disputes and consequently draw a similar resolution or points in the same direction to obtain one (p. 60). However, developing criteria for what really constitute an incident and when it starts or ends remains a challenge (D’Amato & Abbassi, pp. 64-65). Moreover, certain facts surrounding an incident might not be available till years later, which in turn undermine the validity of the initial resolution (p. 65). Furthermore, since customary law is designed to settle disputes that had precedents in history, it is not capable of addressing non conventional threats like terrorism and WMDs (p. 66).
As Janis and Noyes explained, International Law depends on municipal law—in most instances, when legal rules are applied in practice, they are applied by municipal courts. Moreover, the incorporation of international legal rules into domestic laws is usually done by municipal law governed by the constitution (Janis & Noyes, p. 180). However, there is a debate between monists and dualists as to whether the Constitution should be used as filter to ensure that International Law conforms to national laws—nationalization of International Law (Slaughter, 1997, p.192), or should International Law be allowed to penetrate through the national legal order—denationalization of Constitutional Law (De Burca & Gerstenberg, p. 244)-creating a more universal legal order (Week 4 PDF notes, p. 1). Most governments currently adhere to the ‘dualist’ paradigm, viewing national and international legal systems as separate, each with its own power to settle the effect of any rule from the other system within its own bounds (Week 4 lecture, p. 1)
The U.S constitution gives treaties (provided that treaties are self-executing) and federal laws equal force, and they both trump states laws. The most important US constitutional law decision concerning the relationship of international law and US municipal law is Foster & Elam (J & N., p. 180). Article VI (2) of the US constitution, the Supremacy Clause: The constitution, and the laws of the US and all treaties made or shall be made, under the authority of the US shall be the supreme law of the land. Anything in the constitution or laws of any state to the contrary notwithstanding. In the Asakura v. City of Seattle case is an example of a state law being trumped up by US treaty rule. The case cited Foster & Elam for the proposition that a treaty “operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts (J. & N. p. 185).
Moreover, the U.S. Constitution also recognizes customary law and, like treaty and federal law, receives the benefits of the Supremacy Clause (Week 4 lecture, p. 4). In the Sosa v. Alvarez-Machan, the Supreme Court Justices stipulated that the US bound to receive the law of nations, in its modern state of purity and refinement (N. & J., p. 248). However, more than 95 percent of all international agreements concluded by the US are in the form of executive agreements. Over the years, Congress tried to curb presidential executive power. The President still enjoys predominant power in foreign affairs (Week 4 lecture, p. 3). Even when the Senate consents to a treaty, the Constitution gives only the President the authority to negotiate, without intrusion by the Senate, as in the case of United States v. Curtiss-Wright (J. & N., p. 211).
Despite the fact the both International Law and Municipal Law depend on each other as we previously explained, De Burca & Gerstenberg in 2006 argued that both politicians and legislators have expressed reservations about the role and function of International Law in domestic affairs. Moreover, legislators are usually skeptical about the authority and utility of International Law and how it should be given effect within domestic system (p. 243). De Burca & Gerstenberg suggested that both International and constitutional norms should be understood as “contextually competing rule-of-law rather than as conflicting legal sources vying against one another” (p. 244)
References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing
De Burca, G. & Gerstenberg, O. (2006, Winter). The denationalization of constitutional law. Harvard International Law Journal, 47(1), pp. 243-262.
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing
Slaughter, A. (1997, Sep/Oct). The real new world order. Foreign Affairs, 76 (5), pp. 183-197
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