A Reversal of International Law PDF Print Email

Part II, Chapter 2 of the book ‘Big Brother in Europa’ (Epo Antwerp Belgium, 2010)

by Raf Jespers, lawyer PROGRESS Lawyers Network Belgium

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The press agency Reuters has always refused to use the word “terrorist” in its reports. This decision is based on the experience of Reuters in the Middle East, with the Tamil Tigers and with the Kurds. “If we label these groups as terrorists, then all the regimes in the world can appeal to us to do the same in connection with their internal conflicts. The world is often made the fool by governments which stigmatize their opponents,” says Reuters.

In September 2008 leading international magazines published a colored Atlas of terrorism. Included in the atlas are: Al Qaida, the Japanese sect Aum and the old German Red Army Faction, but also “classic” liberation movements like the Popular Front for the Liberation of Palestine. Again state terrorism is totally absent from the picture of the atlas. It is an example of how terrorism is seen in the public arena. This vision does not veer away from the international law on politically inspired violence.

A universal standard with which to judge the use of political violence may probably never exist. But international law in the course of history, and especially after the Second World War, has formulated a number of rules that makes it possible to define limits and to differentiate the legitimate use of violence from its non legitimate use.

The supremacy of the law

At the center of this chapter is a passage from the Universal Declaration of Human Rights. This passage states: “... that it is of the highest interest that human rights be protected by the supremacy of the law, so that people are not forced in the final instance to take recourse in rebellion against tyranny and oppression.” A passage in which every word has been considered and weighed.

The Universal Declaration of Human Rights dates from 1948. It is one of the most majestic texts in the history of the world. With the clarity of pure water, it formulates the relationship between human rights, the state and the right to rebellion. This relationship stems from the “supremacy” of the law. The law stands above the state, commands the power of the state. Whenever the state does not respect this, then people may, as a last resort, rebel. The Universal Declaration was the world’s answer to Nazism and Fascism, although it expressed especially the West’s point of view on human rights. After 1945 the idea of freedom made a big advance as a reaction to the dark years which lay in the past. Thus a number of progressive elements were included in international law “to protect future generations from the horrors of war,” as it was hopefully formulated in the Charter of the United Nations. The preamble of the Charter reaffirmed “the faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women as well as of nations, big and small.”

What were the new progressive principles in postwar international law? In the first place limits were placed in the actions of states, in their relations with other states – among others during armed conflicts – as well as in their behavior towards their own citizens. Conflicts with other states must be settled peacefully. The principle was the prohibition to attack another country. The sovereignty of other states must be respected. Violence against another state is permitted only as an exception and under strict conditions. These were laid down in the UN Charter: as self-defense whenever people are attacked or with the permission of the Security Council of the UN.

In armed conflicts international law must be strictly observed. All states must respect a number of fundamental human rights also with respect to its own citizens.

The second pillar of the new law of nations was the right to rebellion against an occupying power or against one’s own government, whenever it practiced a dictatorship and violated human rights. It was against the logic of the Nazis and of some great powers in the 1930s. This logic basically came down to, that everything that the states does is legal, and all reactions against it was illegal. In the eyes of the Nazis the partisans were “terrorists” and thus should be eliminated.

The Universal Declaration of 1948 was later included in official treaties. In 1970 the General Assembly of the United Nations, in the wake of decolonization, passed a resolution which prohibited states from preventing people from deciding their destiny, their freedom and independence.

Human rights themselves were made legally binding by two great UN treaties of 1966: the treaty on political and civil rights and the treaty on social, economic and cultural rights of citizens. Two landmarks.

In the wake of the Universal Declaration also came in 1949 the important Geneva Conventions. These Conventions were a direct reaction to the barbarism of the world war. They set forth international humanitarian law – also called law on war. Military actions were placed under strict regulations. Civilians could no longer be targets during a war. The Conventions also contain clear directions regarding armed resistance against a colonial power, a foreign occupation or an internal dictatorship and makes the laws on war also applicable to civil wars and in internal conflicts, with the intervention of other countries or where multinational military forces intervene. In 1977 the Conventions were supplemented with two protocols whereby liberation movements became legitimate players on the international scene.

Right to rebellion: a fact under duress

The right to rebellion is prominently present in modern legal history. In the American Declaration of Independence of 1776 for example and in the American Declaration of 1775, the causes and conditions for taking up arms and the rights to revolution in included. Abraham Lincoln talked about “the right to dismantle or to overthrow every government which does not respond to the needs and wishes of the people.” The German constitution of 1949, as a reaction to the horrors of national socialism, also included the right to resistance.

Many legal texts have been written about the right to rebellion. I select two. The Dutch legal scholar J.P. Loof worked on this topic for his dissertation. He writes: “The natural power of the people to defend the original rights to freedom is reborn whenever the state oversteps its borders.” And Loop further writes: “There are a number of constitutive, typical legal principles, which are decisive for the question whether or not a state is a state ruled by law. In any case part of these legal principles are the fundamental human rights. Whenever a state in its legislation violates these constitutive legal principles, then the state loses its character of a state ruled by law. It becomes a state ruled by terror, an unjust state. Then legislation, although formally-juristic passed correctly, is not valid law, but is non-law that cannot claim binding power. Against such intentional injustice (injustice in the legislation itself), active and passive resistance is permitted.

The point of this academic point of view calls for some mental gymnastics but agrees with what the Universal Declaration states in simpler words: if the state does not respect the fundamental human rights, then rebellion is permitted.

Interesting, friendly, active and busy. Four characteristics that are so marked that you notice them as soon as you shake the hands of Edre U. Olalia, the brilliant Filipino lawyer who shares a seat with me in the leadership of the International Association of People’s Lawyers. Edre Olalia wrote an analysis of the status of liberation movements in international law. In his conclusion he speaks of “the strong basis, founded on international legal instruments, in international reality and practice and the growing progressive points of view and trends in international law and international humanitarian law.” Therefore liberation movements have “acquired a level of legitimacy. Their armed struggle can therefore be considered as legal in order to effectuate the right to self-determination against colonial domination, foreign occupation, racist regimes and against other forms of neocolonialism and of systematic oppression of the people.”

An example. The ANC, the liberation movement of Nelson Mandela, had an information office and an official representative in Brussels. It received open support and solidarity for its anti-apartheid struggle. In South Africa itself, the ANC was treated as a criminal and terrorist movement, but not in other places. One of the grounds for such toleration was international law, which allowed the ANC to fight the apartheid regime, also with armed struggle. Also other liberation movements like the Palestinian PLO had official representatives in European countries.

This situation in international law came under increasing pressure during the last decade. President Ronald Reagan refused in 1977 to sign Protocol I of the Geneva Conventions. Washington wanted to have a free hand in fighting liberation movements. Reagan could not allow liberation movements to have a legal status, since that “would give recognition and protection to terrorist groups.” It was the beginning of the attack on the framework with which international law recognized opposition to exploitation and oppression.

After 9/11 this increasing pressure led to a breaking point. Again, as in the 30s, the infallibility of the state was decreed. And as the inevitable face of this coin: the criminalization of the opposition. The European framework decree in 2002 against terrorism stems from the view that states, their armies, their police and their secret services by definition could never commit terrorist acts. “Activities of a country’s security forces during the exercise of their official tasks or in an armed conflict” do not fall under the anti-terror law. They enjoy immunity.

So that is how today liberation movements again get to be labeled “criminal”: the stigma of terrorism. It is trendy to consider movements from Palestine to Paramaribo which are involved in political conflicts, as terrorists. Because of this retrogression of international law, regimes which violate human rights have a lot of space to deal harshly with opposition. Since “anyway they are just terrorists.”

The distinction between legitimate and non-legitimate acts of resistance that after the Second World War was carefully built has disappeared. Whichever kind of resistance you do, also what the state does, all these are no longer criteria.

Belligerent party versus terrorist group

Because of Protocol I of the Geneva Conventions opposition movements can be recognized as a belligerent party. To quality they must submit a unilateral declaration to the Swiss Federal Council. The National Democratic Front of the Philippines, the NDFP, by this method let itself be recognized as a belligerent party. The NDFP is a left coalition of parties, unions and peasant organizations and with an armed guerrilla movement: the New People’s Army. A leader of this Filipino opposition is Jose Maria Sison.

There are strict conditions for this recognition as a belligerent party. It is about having a real influence on an actual portion of the territory. They must also expressly adhere that they shall put into practice the principles of the laws of war, as stated in the Geneva Conventions. These principles carefully lays down which form of violence are permitted, and those which are not. Attacking military target is allowed but the violence that is used for this purpose must not be out of proportion. Attacking civilians is not permitted. Also murder, hostage-taking, torture and inhuman treatment of prisoners of war are prohibited. The Red Cross must be allowed to extend its services to all concerned parties. It is about a number of strict rules of behavior. Whoever does not respect these rules, loses the official status of belligerent. The NDFP gives training on the laws of war to the people who are active in the military arena.

The Front is also recognized de facto by the Philippine government as a belligerent party. There are peace negotiations between the NDFP and the Philippine government. It gets derailed regularly, but it is a reality.

In 2007 I attended a conference on international humanitarian law in the Philippines. Because of this occasion I visited in the capital Manila the office of the Joint Monitoring Committee, an official institution where representatives of the Philippine government and the NDFP meet each other. The office consists of two neat rooms, both on the same floor of a modern building in a residential district. Here representatives of both sides file complaints against each other, the Philippine state against the guerrillas and the NDFP against the army. It struck me that the pile of complaints against the Philippine army was much higher than those against the guerrillas. But it works.

International humanitarian law thus permits it to make a fine legal distinction between terrorist and legitimate liberation movements. That this difference today is swept under the rug is not only a degradation of the law but is disadvantageous for the struggle against terrorism itself because it undermines the credibility of the struggle against terrorism.

For states like the U.S. it would appear that there are also good terrorists. Luis Posada Carriles, the “Bin Laden avant la lettre of Latin America” sits as the death-head spin in the heart of an international terror network. That network blew up a passenger plane in fight. Shortly before that it liquidated the Chilean foreign minister Orlando Lettelier. The spider Posada organized a bombing campaign against the tourist sector of Cuba and attempted a murder attack on Fidel Castro. Still Luis Posada Carriles lives undisturbed in the United States, despite various requests for extradition. “I sleep like a baby,” he says. Five Cubans who infiltrated the terrorist network in Miami to prevent attacks, and submitted the information to the American investigation bureau FBI, were arrested and sentenced to years of imprisonment in the U.S. They are known as the “Cuban Five.”

Blacklists

The Filipino Jose Maria Sison, who already was mentioned in this chapter, has lived in the Netherlands since the 80s with his wife and son: as exile. Before that he was imprisoned in a Philippine jail for almost 9 years, during the Marcos dictatorship, because he was one of the founders of the Philippine communist party. The former literature professor, “Joma” to friends, is an amiable, humorous man. He is also a poet. On August 13, 2002 he was doing his shopping in Albert Heijn in Utrecht. A few days later he received a letter from the supermarket that his bill had not been paid. Sison inquired his bank and it said that his account has been frozen. The reason? “You are included in the list of terrorists.” He was shocked, nothing about this was told to him.

First the professor was put on the American terrorist list in early August 2002, one day after the visit of the former secretary of state Collin Powell to Manila. A day later the Netherlands also put him on the terrorist list upon request of the U.S. A few weeks later the European Union did the same. But of all this the professor knew totally nothing. He was kept totally in the dark.

In the days of panic after the 9/11 attack the UN Security Council passed a resolution calling on all countries to draw up lists of terrorists groups and people. The financial resources of whoever was included in the list must be frozen – which was an understandable objective – in order to stem the flow of money for terrorism.

The UN itself put up a list. It contained the names of persons and organizations who are connected to the Al Qaida or with the Taliban. In November 2007 there were 362 persons and 125 businesses and organizations on the list.

The European terror list is of another character. It is updated approximately every six months. In 2007 the list counted 35 persons and 30 organizations, an amalgam of Al Qaida members and of Islamic and other fundamentalists, but also the Kurdish PKK and the Turkish DHKP-C, the People’s Mujahedin of Iran, the FARC and the ELN of Colombia are included in the European list. And yes... also the communist party of the Philippines and the New People’s Army.

And such a list leaves behind tracks. In Denmark vendors of t-shirts the sales of which were intended for social projects of the Colombian FARC were sentenced because these movements are included in the European terrorist list. And Professor Sison? He had to find out that the label “terrorist” was enough for someone to be robbed of his means of existence. Since not only his bank credit – a few thousands euros – were frozen, but also his health insurance was stopped. He no longer receives social insurance, his must vacate his flat. In short, he must no longer live. Even the police must no longer protect him against criminals. And all these punishments were imposed without even the intervention of a single court. Sison’s treatment is reminiscent of the “civil death” of the French Ancien Regime by which a citizen was completely shut out from social life. The French Revolution removed the “civil death.” Also in the Belgian constitution it is stated in so many words: “Civil death is removed; it can not again be instituted.” The Sison case, that is the derailment of the war on terror whenever international law is let go.

The blacklisting of Professor Sison

There was a state of emergency in the Philippines during the time of the Marcos dictatorship in the 70s and 80s. Civil rights were suspended, six million peasants were ejected from their lands. As a reaction, the NDFP was set up. After the fall of Marcos in 1986 the Philippine government of President Aquino negotiated with the NDFP, in order to end the armed conflict. The peace negotiations went positively and in 1992 a common declaration was signed in The Hague in order to achieve “just and lasting peace.” In the 90s partial agreements were signed, among which the establishment of the Joint Monitoring Committee in Manila.

Starting in 2000 the Philippine government changed its strategy. The new president, Arroyo ended the thaw and chose for a military solution, and she received from the U.S. some 4.6 billion dollars as military support and on top of that 30 million dollars for the war against terrorism. In the field, the military fight against the NPA increased. The regime chose for a “total war” and pounced hard against various people’s organizations, their leaders and activists. Today there are already thousands of social leaders murdered and many others persecuted, sentenced, tortured. The Philippines has become famous for extrajudicial killings, the killing of opponents without any form of trial, by paramilitary groups. In a report of 2007 the UN-rapporteur Philip Alston painted a shocking picture of this extrajudicial repression.

This choice for a military solution totally fitted in into the strategy of the war on terror of the U.S. That Jose Maria Sison landed in the terror list, was part of that strategy. It was a pressure mechanism to force Sison and the NDFP to capitulate to the one-sided demands which the Philippine government wanted to impose.

One thing is clear: it had nothing to do with the fight against the financing of terrorism. This masquerade fell away. During the colloquium at the Free University of Brussels, according to Gilles De Kerckhove, the Belgian who coordinates the anti-terror policy in the European Union, the lists are essentially political instruments in order to force persons and organizations which appear in these lists “to change their behavior.”

As easy as Jose Maria Sison was included in the terrorist list, so was it as difficult to be removed from it. His lawyers, who asked on what grounds the professor came to be included in the terrorist list, received as answer from the European Commission that the grounds were confidential. But how can anyone defend oneself from a secret complaint? It would seem that human civilization had regressed to the time of the Spanish Inquisition. It also used secret complaints and allowed anonymous witnesses appear in order to be able to send someone to the stake. The lawyers had to litigate for years before the European Court of Justice in Luxemburg to permanently remove the professor from the list because of the total absence of procedural guarantee such as the absence of justification.

Since just before the European Court decided in 2007 on the Sison case, the European Council of Ministers, which had seen the storm coming, already made a new decision, this time accompanied by the formal justification. It was about a totally cosmetic approach. Like “if the European Court asks for a justification, then we shall provide one.” This justification counted only one sheet of paper. Professor Sison is dangerous because ... the Dutch Council of State had said it as a consequence of his asylum request. This justification was not only grotesque but also absurd, since the Dutch Council of State precisely had twice declared Professor Sison correct, in place of wrong, in his case against the Dutch state. But the European ministers concluded nothing from that and put Sison back in their terror list. A case had again to be filed at the European Court of Justice. That court again declared Sison correct on September 30, 2009. The blacklisting was again annulled, and this time, definitely. The professor was unjustly included on the European terror list for seven years.

The European Court meanwhile has made similar decisions with regard to the Iranian People’s Mujahedin and the Kurdish PKK. Their blacklisting was annulled.

In 2007 Dick Marty made a report about the terrorist lists for the Council of Europe. His conclusion did not beat about the bush: they “violate the fundamental principles of human rights and of the law-abiding state.” According to rapporteur Marty, “These processes are unworthy of international institutions such as the United Nations and the European Union.” The Italian professor Antonio Cassese, the chairman of the Yugoslavia tribunal and who is an internationally recognized authority on international law, remarked regarding the blacklisting of the People’s Mujahedin, that the EU “flagrantly misused its power,” and “fundamental rights were seriously violated.” A high British court in a ruling called the inclusion of the People’s Mujahedin in the list “perverse,” – unusual language for a legal institution.

Also the European Court sharply criticized the European Council of Ministers, who are responsible for the listings: “In that respect it should be recalled that the European Union is a community of law and that the fundamental rights form an integral part of the general legal principle.” It is already a serious state whenever the political excellences of the EU must be reminded “that we live under the rule of law.”

Patricia Vinck and Nabil Sayadi, terrorists ?

“It was a Friday in January. A Friday like so many others: the older ones had swimming at six o‘clock. Nabil and Yassine are coming along. The telephone rings at 5:30. A journalist from Het Laatste Nieuws asks my reaction to the freezing of our personal bank account... Silence... Would you please repeat the question? Again silence. Are you not aware that you are on the list because of your involvement with Al Qaida? No! The journalist then just sends by fax the news report by Didier Reynders and then I see it in black and white: “Definite measures against certain persons of entities who are connected with Al Qaida and with the Taliban,” followed by our names. Everything became black before my eyes, I was out of breath.... All hell broke loose, the public trial had started.”

What you are reading is a text by Patricia Vinck. She lives with her husband Nabil Sayadi and their four small children in Putte near Mechelen. The Muslim charity where Sayadi works was linked by an unknown hand in the United States to Al Qaida and because of it became included in the blacklist, The offices of the charity organization in Albania and Bosnia were visited by the police. Staff were arrested. Two staff members from Kosovo were detained for almost forty days in an American base, interrogated and tortured,’ said the couple.

For the family Sayadi-Vinck that Friday in January in 2003 meant the end of every normal family life. From one day to the next the family went without income and had to live on social security. And there was no defense. It was a long Calvary. Only after two years, in January 2005, a Belgian judge decided that Belgium “must urgently ask the Sanction Committee of the United Nations to remove them from the list.” If not a fine of 250 euro per day will be imposed. Belgium made the request. The Sanction Committee of the UN replied coolly that the couple will remain on the list if the United States did not want them removed.

As a desperate measure a complaint was filed with the Human Rights Committee of the UN in Geneva, with a long list of basic rights which were violated in this case. Nothing worked, until the Sanction Committee of the UN finally decided on 29 July 2009 to remove them from the list. The Belgian government then put the plume on its hat and said that since the court order in 2005 it had repeatedly made reversal of policy on scrapping. But Rik Van Cauwelaert wrote in Snack: “The Belgian state at that time took the side of the decision of the UN Sanction Committee against its citizens.” And Rik Van Cauwelaert decided: “A government which cannot justify its administrative decisions towards its citizens is not to be trusted. Only rogue states use the means of reasons of state to silence its opponents.”

And “state terrorism”?

“The terrorism of the modern state powers and their technological arsenal exceed by big measures the political violence that is used by the groups which challenge oppression and are for liberation.” Thus it is stated in the Geneva Declaration on Terrorism of the International Progress Organization. This Declaration is not a legal text of international law but had in 1987 great political and moral significance. The first signers were the Nobel laureate Sean MacBride, the former US minister of justice Ramsey Clark and Johann Galtun and Richard Falk of Princeton University. They spoke strongly of state terrorism as “a state system of structural violence and domination that denies the people the right to self-determination.”

There has developed since the Second World War, with fits and starts, laws and jurisprudence which make clear that states can be held responsible whenever they do not uphold international humanitarian law. Immediately after the world war, international courts were set up in Nuremberg and Tokyo to prosecute the Nazi leadership and the Japanese leaders. It was a signal that leaders of states can no longer permit everything.

It took almost fifty years before successor to Nuremberg and Tokyo arose, with the Yugoslavia tribunal in The Hague and the Rwanda tribunal in the Tanzanian capital Arusha.

Also in the 1990s came the birth in Belgium and Spain of special anti-genocide laws to prosecute war crimes, irrespective of the nationality of the perpetrator and the victim and irrespective of the territory where the crime was committed. People spoke of universal jurisdiction. The idea behind these anti-genocide laws was that the Geneva Conventions and international humanitarian law must not remain dead letters whenever those who violated them are not prosecuted in their countries. On the basis of the Belgian anti-genocide laws four Rwandans, “the four of Butare,” were sentenced to heavy punishment in 2001 by the Belgian Court of Assisen because of their participation in the Rwandan genocide.

A milestone against the immunity from prosecution of states was the establishment in 1998 of the permanent International Criminal Court with its seat in The Hague, where leaders of official states as well as the leadership of opposition groups can be prosecuted.

The first cases of the Court concerned violations of humanitarian law in Africa. There were complaints against Jean-Pierre Bemba, who was a former presidential candidate in Congo, and against Omar al-Bashir, the president of Sudan. Also the leaders of Israel risk prosecution because of war crimes committed during the Gaza war which started in early 2009. Israel made it known that it was under no obligation to allow even one soldier or politician to go to the Criminal Court. It wants to change international law on armed conflict and the Geneva Conventions not to be applicable to those who fight terrorist organizations. In that case there can never be a case of war crime, no matter how gruesome the behavior of states are.

The International Criminal Court strengthens the moral and legal power of international law. But it is clear that as in the procession of Echternach it is the same with international law: two steps forward and one step backward, whereby nothing definite is achieved. The retrogression through the war on terror is an illustration of this.

The U.S. is notoriously an opponent of the Criminal Court. It has concluded agreements with various countries where those countries promised never to hand over American citizens to The Hague. Twenty five countries which did not want to sign such an agreement have been slapped with sanctions by the U.S. Russia and China have also not recognized the International Criminal Court. They call the tribunal a breach of their national sovereignty and intervention in internal affairs. Indeed it is proper to file prosecutions in the countries where the war crimes took place since it is part of sovereignty that each country itself takes care of justice. In this way, a better account can be taken with the historical and cultural backgrounds that are involved in each armed conflict.

The Criminal Court respects this principle. It may only intervene if the state where the acts took place does not do anything, or an investigation or prosecution cannot lead to a good end. Still it remains a delicate question which war crime can and cannot be prosecuted. African countries have expressed the justified suspicion that the first cases of the Criminal Court are all connected with conflicts on the African continent. Small fry are indeed prosecuted, but the big fish escape the net. The double standard was also exhibited at the Yugoslavia tribunal which focused only on the political and military responsibilities of the former Yugoslavia but totally ignored the NATO bombardment of Serbian targets and civilians. Who is and who is not prosecuted before an international court is partly determined by the power relations in the world arena.

Must there be total punishment for there to be justice? Are there no other possible mechanisms? In South Africa after the fall of the apartheid regime the choice was for a truth commission and for criminal prosecution. Countries must be able to decide for themselves how to resolve the barbarian of a regime or an occupying power.

European lawyers compiled in 2003 their writings on the war in Iraq in the book ONU, droits pour tous ou loi du plus fort? They raise questions about the fact that the UN as the highest organ of international law sided with the right of the mighty. These lawyers were especially critical of their own responsibility. “The extent of the resistance to the war was extremely broad, enthusiastic and without precedent.” Still the war was not prevented. “Could there have been stronger use made of the argument of international law?” By judging the war in general terms and leaving it to governments, particularly those who are members of the Security Council, submitting sharp petitions to remind them of their responsibilities that are laid on them by the UN Charter, gave them a far to great manouevre space to navigate between big words and self-interest. The primacy of the law? More than sixty years after the Universal Declaration of Human Rights it remains a challenge. #