Monthly Archives: October 2017

Dealing With Secession: Lessons From Canada To Spain

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CataloniaBy Marianne Dagenais-Lesperance*

The right to self-determination is an internationally recognised principle which has caused ferocious debates, especially recently. Contemporary controversies include the recent results of the Iraqi Kurds’ and Catalonians’ referendum, where the vote for independence from their respective State passed with a strong majority.

Spain and Iraq’s dismissal of the referendums as unlawful and threat or use of violence against the populations of Catalonia and Kurdistan have added fuel to the fire. But how shouldstates respond to such results? What are their obligations towards the expression of the will to secede from part of their territory?

The right to self-determination is the legal right of people to decide their own destiny in the international order. Articulated under Article 1 of the United Nations Charter, and later reaffirmed in United Nations resolutions (General Assembly 1755 (XVII); 2138 (XXI); 2151 (XXI); 2379 (XXIII); 2383 (XXIII); Security Council 183 (1963); 301 (1971); 377 (1975); and 384 (1975)) and international treaties (ICCPR; ICESCR), it does not clearly state who the beneficiaries of the right are and what it entails in practice.

International scholars such as Alina Kaczorowska and Malcolm N. Shaw refer to the Canadian Supreme Court judgment Reference re: Secession of Quebec when discussing the right to unilaterally secede. In the aftermath of the second referendum on Quebec’s independence, the Governor in Council (‘GC’) referred this case to the court. Three questions were submitted concerning the legal situation in the event of a secession attempt by Quebec. The analysis of this judgment from academics is often limited to the conclusion that there is no such right. This conclusion offers only a limited appreciation of the Supreme Court’s judgment as it also gives guidance on the rights and responsibilities held by States and separatist movements in the event of a positive response to a referendum asking for independence. Its legacy goes beyond the limited question of the right to unilaterally secede. Continue reading →

International Humanitarian Law and Cyber Warfare: Old Laws Vs. New Phenomena

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By Jordan Hawthorne

Cyber WarfareWar. A term which traditionally conjures images of uniformed armies, guns, bombs, and other forms of conventional military warfare. Yet the 21st century has seen the rise of a new form of war, one divorced from these traditional methods and means: ‘cyber warfare’.

‘Cyber warfare’ refers to war that is waged not through military hostilities on the ground, but through virtual means and methods, within the domain of ‘cyberspace.’  Despite its unconventional nature, the international legal community agrees that international humanitarian law (‘IHL’) can apply to cyber warfare, provided that attacks are committed within the context of an armed conflict, (see the Tallinn Manual). However, the question of how to transpose and apply IHL rules to this modern phenomenon remains problematic.

One of the greatest challenges arising in the context of a cyber attack is the application of the principle of distinction. The principle of distinction is a cornerstone of IHL, one which requires that parties to a conflict differentiate between civilians/civilian objects, and combatants/military objectives at all times (the latter being legitimate targets in an armed attack, while the former cannot be attacked under any circumstances). Making such a distinction in cyberspace is however wrought with difficulty, due to characteristics of the forum, such as its interconnectivity. Cyberspace is a complex network of countless, interconnected computer systems, spanning across the globe. Civilian and military computer systems therefore may be, and often are, intertwined (with the latter sometimes even relying on the former). As a result, it is incredibly difficult to identify ‘legitimate’ targets, and to limit the effects of an attack to a pure military objective. Continue reading →

Will Seven Million Starving Yemenis Ever Find Justice?

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The control of food importation into Yemen is being used as a weapon of war, seemingly by all sides.

By Catriona Murdoch* and Wayne Jordash**

A photograph from September 2016 shows a malnourished boy laying on a bed outside his family's hut in Hodaida, Yemen [Abduljabbar Zeyad/Reuters]

A photograph from September 2016 shows a malnourished boy laying on a bed outside his family’s hut in Hodaida, Yemen [Abduljabbar Zeyad/Reuters]

The last two decades have seen a significant expansion of international, regional and domestic accountability mechanisms for an array of international crimes and a variety of forgotten victims. Much of this activity has been focused on the conduct of senior military and political leaders who control or significantly contribute to excesses on the battlefield. However, as is becoming clear, this focus does not adequately confront the scale or scope of victims living in the path of armed conflict or under the yoke of brutalising regimes.

This year has seen the resurgence of famine. South Sudan is enduring the first famine to be declared globally for six years. Nigeria, Somalia and Yemen are all on the brink of famine. In each, deliberate political and military action has contributed to the resulting death and injury of thousands of innocent civilians, demanding that serious consideration be given to prosecuting those responsible. Yemen is emblematic of the problem and a may provide a backdrop for the development of the potential remedy proffered by a more imaginative approach to the prosecution of those who engineer, or fail to act to prevent, mass starvation.

Yemen has been described as the “war the world forgot” eclipsed by Syria and complicated by a Saudi-led coalition supported by the United States, the United Kingdomand France. The resulting humanitarian disaster features a famine of cataclysmic proportions. The word “famine” evokes images of dusty pot-bellied children and the wrath of nature. However, the reality is that this is less nature’s cruelty and more mans: “starvation” often more accurately reflects these wholly human-made and preventable catastrophes, where failed diplomacy and ostensible military objectives collide. Continue reading →