Tag Archive | "Middle East"

Iran’s Aspiration to Establish Peace and Security in the Middle East: Closer to Hegemony or International Law?

Photo Credit: AP Photo

A few hours after the Iranian presidential election, which was held on May 19, 2017, the re-elected moderate President Hassan Rouhani characterized the election as a “victory of peace, reconciliation against tension and violence” in his speech addressing the Iranian nation. According to Rouhani, “the message of [the Iranian] people [in this election] was expressed clearly in the election and today, the world knows well that the Iranian nation has chosen the path of interaction with the world, away from violence and extremism.” Rouhani’s statements are extensions of his statements on Iran’s aspiration to form a global coalition against Islamic extremism (any form of Islam that opposes democracy, the rule of law, individual liberties and mutual respect and tolerance of different faiths and beliefs) instead of the armed coalition in the Middle East.

Considering the latest developments in Iran, this post examines some aspects of Rouhani’s attitude towards security and peace in the world and more importantly in the Middle East.

During the General Assembly of the World Ahl-ul beit Forum that was held on August 15, 2015 in Tehran, Iran’s President Hassan Rouhani remarked,

“Our strength, scientific, moral and political power has never been and will be never used against any of the Muslim countries and neighbors in our region. With our ability and strength, we want to establish peace, stability and security in this region… In Yemen, Iraq, Lebanon, Syria and Palestine, there is no difference between a Shia and a Sunni. We want peace, security and brotherhood for all and development for the whole region.”

Rouhani’s statement at the forum has brought the question to mind of whether Iran is pursuing hegemonic power – influence and political dominance of a state or country over another – in the Middle East or Iran’s new administration is pursuing an attitude closer to international law. Answering this question depends on some critical challenges facing Iran.

After a long-running nuclear tension between Iran and the world powers, the P5+1 and the EU, Rouhani’s administration team succeeded in reaching a Nuclear Deal with those powers on July 14, 2015 in Vienna. In summary, the Nuclear Deal prevents Iran from obtaining nuclear weapons. The main purpose of the Nuclear Deal was to ensure the purely peaceful and civilian nature of Iran’s nuclear activities. The Nuclear Deal was an important achievement of Rouhani’s administration, which prepared the solution grounds of the Iranian nuclear crisis. In continuation of this important progress, Iran found an opportunity to build new connections with its neighbors and the EU and non-EU countries. In any case, improvement of Iran’s international and regional relations and, therefore, the growth of Iranian power in the region were underlying concerns of some neighboring countries, such as Saudi Arabia. Saudi officials believe that “increased Iranian power will lead to political mobilization by Shia inside the Sunni-ruled Gulf states.” Nevertheless, Rouhani stated in reaction that Iran is not seeking regional hegemony but is rather working for a strong Middle East and better relations. In this regard, Rouhani also added that “Iran’s face is the face of fighting terrorism and establishing peace and security in the region and we will continue this path with more power in the 12th administration.”

Another step taken which strengthened these assertions was Rouhani’s Draft WAVE Resolution, proposed on September 25, 2013, entitled “A World against Violence and Violent Extremism (WAVE).” The Resolution was approved by the UN General Assembly on December 10, 2015. The WAVE Resolution, which calls on all nations across the globe to denounce violence and extremism, has been adopted on the basis of President Rouhani’s proposals on the fight against extremism and violence.

Keeping in mind Rouhani’s attitude in improving Iran’s relations after the Nuclear Deal, it should be mentioned that international relations of the states which form their national and international interests, is the main criteria of international law, which depends on a balance of power between the states that prevents a state from breaking international law. In this context, the lack of a community of interests or balance of power, there is no international law. Hans J. Morgenthau, “Positivism, Functionalism, and International Law”, 34 AJIL (1940) at 274. On the other hand, regardless of the continuing anti-Iran rhetoric of the new U.S. administration and Israel, adopting the WAVE Resolution by consensus upgraded Iran’s political position in international structures. Since Rouhani’s administration by such a suggestion showed that Iran demands peace and security in the region, it can be concluded that the WAVE Resolution was the most important step taken in order to create a moderate situation around the world.

At first sight, it may be said that the above-mentioned developments are adequate justifications, which demonstrate Iran’s pacifism and get closer to international law, since leadership in the fight against the factors disrupting international peace and security is the natural province of international law. However, it should be said that such leadership is not unlimited and therefore a state cannot act in violation of the basic rules of international law to protect peace and security. Keeping in mind the fact that the United States and its Middle Eastern allies, mainly Israel and Saudi Arabia, have ever aggressive policies such as war against Iran as an option on the table, it cannot be easily claimed that adopting the WAVE Resolution, in line with Rouhani’s anti-extremism proposals, as an anti-war policy to form a global coalition against extremism legitimizes Iran’s regional attitudes (intervention in internal affairs of the other countries due to lead the establishment of peace and security in the Middle East). In other words, Iran’s aspiration to establish peace and security in the region is not a reflection of its compliance with the international legal order.

First, the basic indicator of convergence of a state to the basic norms of international law and its safeguards should be sought at the national level. As a state in which the fundamental human rights such as the right to life, the rights to freedom of speech, access to information, right to express ideas and opinions, health services, and a clean environment are most seriously violated, talking about compatibility with international law is almost impossible.

Second, as a state in which its government’s form is an Islamic Republic, Iran’s foreign policy is based on the aspiration to be a power of the region, which has been foreseen in the Iranian Constitution. In this regard, Article 152 of the Constitution reads:

“The foreign policy of the Islamic Republic of Iran is based on the rejection of all forms of domination, both the exertion of it and submission to it, the preservation of the independence of the country in all respects and its territorial integrity, the defense of the rights of all Muslims…”

Besides, the contemporary Iranian state practice in “defending the rights of all Muslims” is the most important part of the Iranian political tradition ─ in line with the wide range of privileges and authorities foreseen in the Constitution ─ which has been applied during the whole reign of the ayatollahs. The Iranian political tradition is based on its constitutional monarchy in which intertwined organs of government and laws ensure the authority of the Supreme Leader over the president and the parliament. The Iranian constitutional monarchy is based on the top political organ in the country called the Supreme Leader who delineates the general policies of the Islamic Republic of Iran, Article 110 of the Iranian Constitution. Therefore, the President’s adherence to human rights, at the national level, and international law, at the international or regional level, does not significantly affect Iran’s national and international policies. In this context, it must be kept in mind that applying the policy of defending the rights of all Muslims depends on the maintenance of mutually peaceful relations with others. However, considering Iran’s past regional policies and its Revolutionary Guard Corps’ undeniable role in the Middle East, most notably supporting the other Muslim regimes of the region such as Lebanon, Palestine, Iraq, Syria, Yemen, Qatar etc., it can absolutely be said that despite President Rouhani’s significant achievements ─ the Nuclear Deal as a “victory over war” and approval of the proposal which calls for the World Against Violence and Extremism in the UN General Assembly through consensus ─ Iran has been abusing its international relations in the region. Most importantly, the Iranian regime has continuously violated the principles of sovereign equality and non-intervention in internal affairs of another nation by directly and indirectly intervention in internal affairs of the above-mentioned states. The key point here is that in any case of intervention in other states of the Middle East, Iran had generally justified its attitudes under the guise of restoring regional order and security. In any case, Iran’s influence in the Middle Eastern states’ internal affairs and its continuing intercontinental ballistic missile program under the Revolutionary Guard Corps have promoted Iran to a regional power.

In sum, regardless of the significance of Iran’s achievements during Rouhani’s presidency, its attitude to establish peace and security in the Middle East through intervention in internal affairs of other states of the region committed in line with the Iranian political tradition is a hegemonic posture of Iran towards being a power in the region. Accordingly, the steps taken to restore order to the region are not in compliance with international law and the UN principles, including sovereign equality and non-intervention in the internal affairs of another state.

 

Dr. Saeed Bagheri is the Max Weber Post-Doctoral Fellow in the Law Department of the European University Institute (EUI), Florence, Italy.

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Time to Rethink the Continuing State of Emergency in Turkey

Photo Credit: Daily Sabah

Photo Credit: Daily Sabah

After a failed military coup in Turkey on July 15, 2016, the Turkish government decided to declare a state of emergency to take required measures in the fight against the putschists, and return to normalcy as soon as possible. Considering the extension of the state of emergency to six months, and all measures taken in this period, this post brings up the controversial question of the legality of the continuing state of emergency and continuing accusations across the country.

 

Background and the Growing Process

On July 15, 2016, a group in Turkey’s armed forces attempted a military coup to seize control of the government. On July 21, 2016, after the coup failed, Turkish government declared a state of emergency for a period of ninety days pursuant to Article 120 of the Turkish Constitution of 1982, which provides:

“In the event of serious indications of widespread acts of violence aimed at the destruction of the free democratic order established by the Constitution or of fundamental rights and freedoms, or serious deterioration of public order because of acts of violence, the Council of Ministers, meeting under the chairpersonship of the President of the Republic, after consultation with the National Security Council, may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months”.

Following the failed coup, President Recep Tayyip Erdogan clarified that, “the state of emergency had been declared in Turkey … for a duration of [three] months with an aim to totally and swiftly eliminate the FETÖ/PDY (Gulenist Terrorist Organization/Parallel State Structure) terrorist organization, which attempted a coup, and all of its elements”. On October 19, 2016, Turkey’s parliament ratified a planned extension of the state of emergency for three additional months to crack down on everyone suspected to be followers of the putschists. On January 19 2017, the state of emergency was extended second time, and most recently extended a third time scheduled to end on July 19, 2017. According to Article 121 of the Constitution 1982:

“The [Grand National] Assembly [of Turkey] may alter the duration of the state of emergency, may extend the period for a maximum of four months each time at the request of the Council of Ministers, or may lift the state of emergency”.

With an emphasis on the necessity of a determinative and quick reaction to any acts of violence aimed at threatening or abolishing democracy in states, the contentious counter-measures taken by Turkish authorities after the failed coup require a discussion in the context of human rights considerations.

 

Assessing under the International Covenant on Civil and Political Rights (ICCPR)

After the failed military coup, the government started to arrest, imprison, and fire anyone connected with the putschists. However, detentions and firing of thousands of journalists and academics as a massive political purge under the state of emergency gave a different dimension to the government’s unbounded counter-measures.

Nonetheless, it’s incontrovertible that all enforcements of slander laws to members of opposing groups and critics, attacks on the independence of the judiciary, using media and other state resources in favor of the government, and censoring the internet websites, are employed as policies against putschists to return normalcy to the country cannot be conceded as justifications for fighting against putschists contrary to the international human rights considerations.

Relevantly, on September 23, 2003, Turkey ratified the 1966 International Covenant on Civil and Political Rights (ICCPR) as an attempt to ensure the protection of civil and political rights. With regard to the state of emergency, the ICCPR reads in Article 4(1):

“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”.

Clearly, a state of emergency is an extraordinary situation in which human rights and freedoms could be suspended temporarily. During the state of emergency, governments have the right to detain and hold suspects without charge. Nonetheless, there are some other fundamental rights and freedoms stated in Article 4(2) of the ICCPR which could not be suspended under any conditions including the right to freedom of thought, freedom from arbitrarily being deprived of liberties, and freedom from torture and inhuman treatment or punishment. From this point of view, holding a large population of the Turkish society, including pro-Kurdish and main opposition Republican People’s Party members of parliament, academics, journalists, and ordinary citizens just because of opposing and criticizing the government’s policies –especially, its quest for constitutional amendments that will be voted on in the referendum on April 2017 on switching to a presidential system– and also infringing media freedom in the country could be considered as violation of Article 4(2) of the ICCPR and that could not be justified under any condition even if done as counter-coup measures. Furthermore, using the failed coup attempt as a cover-up to eliminate and a crackdown on any government opponents and critics regardless of the scope and objective of the coup leaders is a violation of freedom of expression and thought which cannot be derogated under any distressed situations such as the state of emergency. During the continuing state of emergency in Turkey, dismissing about 7,316 academics by the first half of January 2017 from their professions who criticized the government’s national policies or signed peace declaration criticizing curfews declared in Turkey’s predominantly Kurdish Southeastern districts in 2015 cannot be justified under any circumstances. In this sense, the mentioned counter-measures taken by the Turkish government against the society is clearly refusing the rule of law and fundamental rules of the ICCPR on a large scale.

 

Accusations Through the Broad Definition of Terrorism

According to the European Court of Human Rights, more than 5,000 cases were filed by Turkish nationals against Turkey relating to the post-coup purge. In the wake of the failed military coup in Turkey, the government launched a purge against alleged supporters of the coup leader Fethullah Gulen, including military officers, academics, and journalists.

As stated by Jonathan Cooper in his manual prepared for the Organization for Security and Co-operation in Europe (OSCE), “[A]n overly broad definition of terrorism can be used [only] to shut down non-violent dissent and undermine democratic society”. There is a similar tendency in Turkey. The counter-measures taken by Turkish authorities in the fight against putschists coup leaders, connected alleged suspects through a broad definition of terrorism.

The overly-broad definition of terrorism, and measures taken to fight against it, are very dangerous because it will impact a large layer of the society, especially ethnic and religious minority groups, peaceful critics, and opponents, by sabotaging their fundamental human rights and liberties, including the right to freedom of expression. Although the Turkish President has said that the main objective of the state of emergency is the total elimination of the “Gulenist Terrorist Organization” and its elements that attempted a military coup. thousands of Turkish scholars were arrested during the state of emergency on a charge related to supporting the terrorist organization, including statements that do not clearly provoke or incite any act of violence. Relevantly, interpretation and application of laws by sabotaging non-derogable fundamental human rights including freedom of expression, freedom of thought, and freedom from being arbitrarily deprived of liberties are all the steps taken to broaden the scope of terrorism.

To be clear, Turkish authorities do not consciously separate terrorist actions from general criticism, or political and ethnic dissents in the country. Therefore all measures were taken under the state of emergency, and within the limits of the international obligations have prepared the grounds to suppress the right to freedom of thought and expression in violation of the rule of law. In simple words, in order to prevent legitimate exercise of the fundamental and non-suspendable human rights, Turkish authorities criminalize not only the acts that are properly accepted as terrorist actions in nature, but also any lawful statements, criticism, demonstrations, meetings, and any other attitudes that do not fall within the scope of terrorism under any circumstances.

It is very clear that Turkish authorities, by defining “criticizing the government’s policies” and “clarification of the opposing views” as terrorist actions have moved away from the main objective of the continuing state of emergency in Turkey. By contrast, all of these attitudes of Turkish authorities towards a large number of the society, mainly academics and journalists, are the significant steps in the direction of restricting democracy and freedom of expression and thought.

 

Saeed Bagheri is a faculty member at Akdeniz University in Turkey with a Ph. D in Public law and a Master’s of Human Rights Law.

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Loss of Culture: Can laws prevent the destruction of antiquities?  

“Without memory, there is no culture. Without memory, there would be no civilization, no society, no future.” – Elie Wiesel

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ISIS fighters destroy antiquities in Iraq. Courtesy of Chicago Tonight. hicagotonight.wttw.com/2015/03/10/destruction-antiquities-iraq

Over the course of human history, great and mighty civilizations have emerged, such as the Romans and Aztecs,
only to fall to plague, pestilence or conquest. However, the lasting effects of these civilizations are the archaeological sites and artifacts left behind. Artifacts, like the Rosetta Stone, the Terra Cotta Army, and the David, and ancient ruins, like Machu Picchu, the Coliseum, and the Great Wall of China, give the world insight into how ancient civilizations lived, and contribute to the future development of the human race. Through the discovery and preservation of artifacts such as these, the human race can continue to preserve ancient cultures and ensure that they may help shape the future of humanity.

Recent world events show a lack of regard for preserving these jewels of the past in the 21st century.  For example, the world was recently shocked by Islamic State’s destruction of ancient artifacts and archaeological sites in Syria and Iraq. This is not unprecedented, however, as this type of destruction happens all over the world; not just in the Middle East, but in South America, and China, and is attributable to numerous causes, including urban development and war.

The international community has attempted to ensure the integrity of the world’s cultural sites through the creation of the United Nations Educational, Scientific, and Cultural Organization and two international treaties: the Convention Concerning the Protection of the World Cultural and Natural Heritage and the Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Convention Concerning the Protection of the World Culture and Natural Heritage, also knows the 1972 World Heritage Convention, created the World Heritage List allowing for archeological sites of “outstanding universal value” to be placed on a list that tries to keep the sites protected. For example, the Statute of Liberty, the Tower of London, and the city of Venice are just some of the sites on the World Heritage List. The World Heritage List also includes cites that are in danger, such as the Old City of Jerusalem and its Walls.

Although these safe guards ensure archaeological sites and artifacts are recognized, and the conventions include sanctions which deter member States from breaching the conventions, it is the sovereign duty of each State to ensure that its archeological sites are protected. It is also the duty of each State to bring charges against parties that destroy or harm archaeological sites. In some cases, when a State does nothing to protect a site, or does not punish parties who destroy artifacts, the archeological artifact can be lost forever. Even though state parties to the above-mentioned treaties agree to protect their antiquities, the international community does not enforce its sanctions provisions against states who fail to protect. As of yet, no State has been brought before the International Court of Justice for a lack of protection. For example, China did little to protect artifacts when construction for an IKEA store unearthed an ancient tomb. Although China imposes a fine on companies who destroying ancient tombs, it does not enforce these law strongly, and as a result, an irreplaceable piece of history has been lost. The larger issue is that China was not brought before the ICJ for failure to protect in this case.

The larger issue is that state sovereignty protects most state decisions regarding antiquities. Also, under the treaty, only a State Party may bring a suit against another State Party for violation of a treaty or convention provision. Thus, the principally affected shareholders, like the existing Mayan populations in Belize whose ancestor’s pyramids were destroyed, have no avenue by which to make the State answer for its lack of protection. In most cases, States are able to pressure principally affected stakeholders into forgoing a public fight, likely due to lack of enforcement by the international community. For example, the 1972 World Heritage Convention only asks Party States to “endeavor, in so far as possible” to protect the culture of the State. These archeological sites and artifacts are the backbone of ancient civilizations, and in essence are owned by the people of the State and the existing decedents of those civilizations. Yet, principally affected stakeholder have no recourse to stop the destruction.

So what can be done?

A model that States can follow to ensure preservation of archeological sites and artifacts is that of the United States. The United States strives to ensure the rights to cultural sites and artifacts are given to decedents of the creating civilization. The Native American Graves Protection and Repatriation Act of November 16, 1990 gives the right of ownership over human remains and sacred objects to Native American tribes, after certain requirements are met, such as showing a relationship of lineal descent. Likewise, the Archaeological Resources Protection Act of 1979 protects the archaeological sites and resources of Native American lands. If other States follow a similar model as that of the United States, then the archeological sites and artifacts have a better chance of survival. Even if a State does everything to try and curb the destruction of archeological sites and artifacts, once destruction has occurred, the history, the memory, the civilizations are lost forever.

Teresa Milligan is a 2L law student at the University of Denver Sturm College of Law and is Editor in Chief for the Denver Journal of International Law and Policy.

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Critical Analysis: Egyptian Election

May 23 and 24 marked Egypt’s first free presidential election since the 2011 Arab Spring revolution ousted Hosni Mubarak from over 30 years as Egypt’s unchallenged leader.  The mood in Egypt was excited, as many waited hours to cast the first meaningful vote of their lives.  There were eleven challengers (two of the 13 candidates listed on the ballot had withdrawn).  No candidate, however, won a majority.  Because of this, there will be a runoff election June 16-17 between the Muslim Brotherhood’s Mohamed Morsi and Ahmed Shafiq, Mubarak’s last Prime Minister.  That race kicked off today.

Egypt Votes

This election is a monumental achievement for those who helped topple President Mubarak last spring.  But it is only one step in Egypt’s march toward democracy.  The transition from single party rule through the military’s transitional government to democracy will be difficult.  Some 30,000 volunteers fanned out to make sure the election was conducted fairly; few violations were reported.  There was, however, an underlying fear the military would try to hijack the election, even thought armored vehicles drove through the streets with loudspeakers broadcasting the military’s intention to hand over power to an elected civilian government.  Despite these assurances, some fear that the military will not withdraw completely from the political sphere.  One analyst predicted Egypt would go the way of Turkey and Pakistan: formal democracies where the military can nonetheless affect significant events.

As the results of the first round were announced on Monday, protesters stormed the headquarters of one of the two finalists.  Protests swept through Cairo and Alexandria.  The two contenders, Mohamed Morsi and Ahmed Shafiq, are the most polarizing figures in the race.  They are seen as extremist candidates – Morsi’s Muslim Brotherhood does not have broad appeal with centrists and there is much distrust of those, like Shafiq, who served in President Mubarak’s regime.  These protests signal the challenges each candidate faces in the coming weeks.  Before the June 16th election, each candidate must amass a broad coalition of support, using only three weeks and the equivalent of $333,000.  On one hand, Mr. Morsi’s party is well established across the country.  Mr. Shafiq, on the other hand, has the vast network of Mubarak’s outlawed National Democratic party and the security forces behind him.  The candidates, however, must paint themselves as appealing to centrists to win the top spot.

The ultimate results of the election spells uncertainty for Egypt’s relations with Israel and the United States.  Both candidates, however, seem more inclined to “play the Egyptian street” than Mubarak.  This means a foreign policy less inclined to friendly relations with both the US and Israel.  Public opinion, under either candidate, will play a larger role.  And the public are not as pro-US or pro-Israel as the Mubarak regime generally had been.  For example, the Camp David Accords are likely to be reviewed.  Already, the transitional military government ended shipments of natural gas to Israel.  “Mubarak was dependable” on the international front; the new regime is likely to be less so.  The United States and Israel may have to put up with more hostile rhetoric, at least in the interim, from an emboldened public and an Egyptian parliament playing to a different crowd.

Regardless, the true effects will be seen when the results of the run-off election are announced in late June and the military hands over control of the government on July 1.  Egyptians have yet to draft and approve a new Constitution, so the president’s powers are not yet determined.  Whichever candidate wins will face the challenge of uniting a disgruntled country.  But, he will have a strong voice in shaping the Constitution and in driving the relationship with the West.  All eyes are on Egypt as it dives into the waters of democracy.

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