Tag Archive for international law

Reflections on the Israel-Hamas Conflict in Gaza and Stray Voltage on Genocide, Proportionality, Apartheid, Collective Punishment, and the Impact of the (Demise of) the Right of Conquest  

Disclaimer: The posts, views and opinions expressed on this site are completely my own and do not represent the views or opinions of my employer, the Department of Defense (DoD), the Armed Services, nor any part of the Defense Industrial Base.

It has been a long time since I posted anything to Kapok Tree. But there is just so much going on in the world with the Ukraine-Russia conflict, the Israel-Hamas conflict, rising antisemitism, flagrant violations of international law, rising national debt, etc.  I thought this might be a good time to lay a couple things on the table that might get us thinking.  I do want to talk about the conflict in Gaza and clarify a couple things on proportionality, apartheid, collective punishment and genocide, as well as do something unique by looking at the right of conquest, but I’m not going to get into an analysis of U.S. policy or what the U.S. should or shouldn’t do.  I will aim to keep my discussion confined to the topic of international law.  Let’s get into it.

The Permanence of Warfare (well, until Jesus comes back) 

What is happening with Israel and Hamas is really nothing new considering biblical truth.  Warfare and violent conflict have always been a sign of spiritual failure. 

James 4:1-3 says: 

“Where do wars and fights come from among you? Do they not come from your desires for pleasure that war in your members? 2 You lust and do not have. You murder and covet and cannot obtain. You fight and war. Yet you do not have because you do not ask. 3 You ask and do not receive, because you ask amiss, that you may spend it on your pleasures” (Bible Gateway, NKJV, 1982).  Jesus added, “Put your sword in its place, for all who take the sword will perish by the sword” (Matthew 26:52, NKJV).  This principle of ‘violence begetting violence’ applies even if the cause is just.  There’s no way around it. 

Moreover, there is no justification in international law or the Bible for an indiscriminate use of violence to deal with injustice, no matter how bad the injustice.  Warfare is not a tool to be taken lightly and used for dubious reasons when other methods of conflict resolution might prove successful.  It is important to note that God wants man to live in peace. “If it is possible, as much as depends on you, live peaceably with all men” (Romans 12:19, NKJV).   Jesus said to, “Love your enemies, and bless those who curse you” (Mt. 5:44, NIV).  It’s good to be a peacemaker. 

Having said all of that, warfare is not going away, at least not anytime soon.  Both the Council on Foreign Relations and Crisis Watch put out Global Conflict Trackers.  The CFR map reveals numerous conflicts ongoing in Africa and the Middle East, not to mention that a genuine threat of genocide exists in the Sudan, Myanmar/Burma, Darfur and Nigeria.  Genocide, though, is one of those words that get tossed around and applied to all sorts of conflicts without much thought to the actual definition, often depriving genocide of its true meaning and impact thereof.   

What is Genocide? 

According to Article 2 of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide, the term is defined as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:  

  • killing members of the group;  
  • causing serious bodily or mental harm to members of the group;  
  • deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;  
  • imposing measures intended to prevent births within the group 
  • {and] forcibly transferring children of the group to another group 

Based upon that strict definition, I do Not believe that genocide is occurring in Gaza, or in Ukraine, or to Native American Indians in the 1800’s for that matter, where disease claimed 75-90% of the dead.  I should add that motives are an integral part of proving genocidal intent, and that the convention fails to address what percentage of a group must be impacted to qualify as genocide. Genuine examples of genocide include (but are not limited to) the Holocaust and genocides in Armenia (1915-1917), Rwanda (1994), and Cambodia (1975-1979).   In the international laws of armed conflict (LOAC), Intent and Context are everything. 

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Engaging the Dragon Through Peaceful Deterrence: Japan’s Need to Recalibrate Its Strategy of Accommodation with China

“Engaging the Dragon Through Peaceful Deterrence: Japan’s Need to Recalibrate Its Strategy of Accommodation with China” by Kapok Tree Diplomacy

© Kapok Tree Diplomacy. Oct 2012. All rights reserved. Jeff Dwiggins. 

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Theoretical Framework

The grand strategies and values of Japan and China will be evaluated from a “Balance of Threat” and “Defensive Realism” theoretical framework.  This essay posits that given China’s rise and Japan’s moment of opportunity to counter, it is important to gauge the feasibility of a values-based concert of democracies within this theoretical framework. Stephen Walt argues that states tend to balance or bandwagon with a rising power depending on their assessment of the perceived threat.[1] Japan’s past, present and future behavior towards China is thus assessed within the parameters of defensive realism which point to Japanese formation of strategic alliances to deal with the anarchy and security dilemma that characterize the international system and create uncertainty of intentions and inadvertent mistrust and conflict.[2] Read more

Blind Man’s Bluff: Kazakhstan’s Mirage of Compliance with International Obligations to Uphold the Freedom of Expression and Freedom of Assembly and Association

“Blind Man’s Bluff: Kazakhstan’s Mirage of Compliance with International Obligations to Uphold the Freedom of Expression and Freedom of Assembly and Association” by Kapok Tree Diplomacy

© Kapok Tree Diplomacy. May 2011. All rights reserved. Jeff Dwiggins.

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Section One – The Right to Freedom of Expression

ICCPR Principles and Obligations. The Universal Declaration of Human Rights (UDHR), though not legally binding, declares that “Everyone has the right to freedom of opinion and expression … and to seek, receive and impart information and ideas through any media and regardless of frontiers” (Art. 19).The ICCPR, which Kazakhstan ratified in 2006 (UN Treaty Collection), expands upon this definition and binds state parties “in accordance with its terms and with international law” (Steiner, Alston and Goodman (SAG) 152). Treaty obligations are to be governed by the Vienna Convention’s Article 26 fundamental principle of pacta sunt servanda which states, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” (Dunoff, Ratner & Wippman (DRW) 58). Article 19 of the ICCPR declares:        Read more

Were the rulings of the International Military Tribunal (IMT) more dependent upon customary or statutory international law?

(C) Kapok Tree Diplomacy. 2011. All rights reserved. Jeff Dwiggins. FREE CONTENT

Customary international law (IL) derives from a “combination of ‘state practice’ and opinio juris, the belief that a certain type of conduct under IL is an obligation (Byers 4).  According to Byers, new rules require “widespread support” before they become part of customary IL (4). Cerone adds that the Martens Clause of the Hague Conventions binds IMT“belligerents to remain under the protection and the rule of the principles of the law of nations” until such time as custom becomes statutory in some form or fashion (qtd. in Mertus & Helsing 219-220). Thus, custom serves as a “gap-filling” measure that universally binds all states and may apply to scenarios where IL has not yet been formalized into statutes (Mertus & Helsing 220). Read more

Challenges Facing Outside Actors in Balancing Punitive and Reconciliatory Measures in Nation/State-Building and the Optimum Division of Labor to Overcome Them

“Challenges Facing Outside Actors in Balancing Punitive and Reconciliatory Measures in Nation/State-Building and the Optimum Division of Labor to Overcome Them” by Kapok Tree Diplomacy

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I.    Punitive and Reconciliatory Measures Available in Nation/State-Building

A.    Definitions

B.     Tasks of Nation/State Building (NSB)

C.     Punitive and Reconciliatory Measures Available in NSB Processes

1.     Military Security

2.     Political

3.     Economic

4.     Justice and Reconciliation

II.    Challenges Facing Outside Actors in Nation/State Building

A.    Military/Security Pillar – Challenges Facing IOs, Coalitions and MNFs, and  States

B.    Political and Governance Pillar – Challenges Facing IOs, Coalitions and MNFs, and States

C.    Economic Pillar – Challenges Facing IOs, Coalitions and MNFs, and States

D.    Justice and Reconciliation Pillar – Challenges Facing IOs, Coalitions and MNFs, and States

III.    Section Three – Optimum Division of Labor to Meet NSB Challenges

A.    Proper Mix – International, Regional, Local, Multilateral & Bilateral

B.    Military/Economic/Political Division of Labor

IV.    Summary

Section One – Punitive and Reconciliatory Measures Available in Nation/State-Building

DefinitionsNation-building and state-building are similar but not identical concepts with context often determining which term is applicable. Mary Thida Lun defines nation-building as “the indigenous and domestic creation and reinforcement of the complex social and cultural identities that relate to and define citizenship within the territory of the state” (v).   Read more

Is International Law Genuine ‘Law’?

(C) Kapok Tree Diplomacy. 2011. All rights reserved. Jeff Dwiggins. FREE CONTENT

In answering this question, I must first appeal to the American Law Institute’s “Restatement of the Law, Third, Foreign Relations Law of the United States.” In Section 101 it defines international law as follows: “international law consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”

Section 102 of this document refers to the sources as “customary law,” “international agreement,” and “derivation from general principles common to the major legal systems of the world.” Section 103 refers to the evidence of international law being “judgments and opinions of international judicial and arbitral tribunals;” “judgments and opinions of national judicial tribunals;” “the writings of scholars;” and “pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states.”

Thus, to answer the question of whether international law is law, one must look at its rules and principles inherent in its definition, its sources, and its evidence to make a determination as to its strength, validity, coherence and legitimacy. I would submit that the whole point of law is to bring about justice as a vehicle for truth and liberty. Does international law result in justice? Do its sources and evidences comport with truth and equality? Read more

The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy

“The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy” by Kapok Tree Diplomacy

PREVIEW      Written in August 2010

Section One – History, Structure and Mandate of the ICC

Background.  The United States has supported bringing human rights violators to justice for many decades. After World War I, the Allies charged Kaiser Wilhelm II of Germany in the Versailles Treaty with “a supreme offense against international morality and the sanctity of treaties,” a first in holding a head of state accountable for his actions (Feinstein & Lindberg 23). The Nuremberg and Far East tribunals affirmed “individual culpability for crimes against peace” following World War II by indicting several senior officials in a multinational setting (Fletcher 235).  The UN General Assembly subsequently charged the International Law Commission (ILC) in 1948 with drafting a statute for an international criminal court (Murphy 4). Read more