The fight against terror and conflicts between norms in international law.
The article discusses certain aspects of international law in light of the terror attacks on the United States on September 11 2001. The UN Security Council adopted a binding resolution (SCR 1273(2001)) on measures to combat the financing of international terrorism, which all UN member States are required to implement. Such measures may impose restrictions on human rights and other international legislation aimed at protecting the individual. One might therefore ask, in case of such possible conflicts of international norms, which norms should prevail? The article aims at giving an overview over the legislative and other measures that States are required to impose according to the above mentioned Security Council Resolution and the UN Convention for the Suppression of the Financing of Terrorism. Likewise it aims at giving an overview over possible provisions within international human rights law, international humanitarian law and refugee law that may conflict with anti-terrorist measures. The article also suggests how conflict between international norms might be resolved according to the methods and sources of international law, including the rules on peremptory norms.
State responsibility for crimes against humanity
The author discusses whether states can incur international responsibility for crimes against humanity when the victims are their own populations. Such an approach is not consistent with traditional doctrine requiring states to be materially or morally injured to invoke state responsibility. However, through, inter alia, case law and the work of the International Law Commission it is accepted that some obligations are not only owed to particular states but to the world community as such (so-called obligations erga omnes). The norms breached by crimes against humanity have undoubtedly character of erga omnes. A state will be responsible for such crimes imputed to it. And every state has a corresponding legal interest in invoking the responsibility. The obligations of the responsible state are also discussed. The obligations incurred by such gross human rights violations, should lead to more serious consequences than the traditional state responsibility. However, international law does not offer any clear-cut answers. There is no such thing as criminal responsibility for states in general international law. Other states may claim reparation in the interest of the victims of the human rights violations. Finally, the article touches on enforcement of the responsibility, which is probably the weakest part of implementing state responsibility.
Islam as seen from Strasbourg: A critique of the Refah judgment
In 2001, the European Court of Human Rights found, surprisingly, that the ruling dissolving the Turkish Refah (Welfare) Party in 1998 did not violate the Article 11 right to freedom of association.
The Court’s majority found that statements and acts by Refah members showed that Refah intended to introduce a system of legal pluralism, apply the sharia, and use jihad and political violence. It concluded that Refah held a theocratic political vision, inimical to human rights, that the party had the political power to realize, as fundamentalists had done elsewhere. This seems implausible in view of Refah’s actual record.
The Court relied on a particular “fundamentalist” construction of Islam, the sharia and the history of Muslim societies to interpret scarce evidence. In so doing, the Court ignored historical counter-examples as well as the radical polysemy of religious symbolic expression and political sloganeering. The Court could, instead, have made better use of expert witnesses; refrained from wide-ranging speculations over religious terms (as did the dissenting minority); or preserved its moral authority by criticizing the human rights problems in Islamic law even while finding a violation of Article 11.
Pragmatism and human rights
The article introduces pragmatism as a school of thought and its expression in the form of pragmatic legal theory. The article then examines the justification of human rights from a pragmatic point of view rejecting its justification in natural law as well as the legalistic approach. Human rights are justified as a sound reaction to different kinds of abuse of political power, and the human rights system is criticized for the absence of democratic methods to modify existing rules and principles in the light of experience. After commenting on human rights of children, wage earners and
the situation in the Third World, the article finally draws some general conclusions on the advantages of a pragmatic approach in this field.