Volume 17, Issues 1 and 2 (Spring 2013)

The UCLA Journal of International Law and Foreign Affairs (JILFA) presents Volume Seventeen, Issues One and Two. The first four pieces focus on the international law implications raised by the Arab Spring. The final three pieces focus on internal humanitarian law, international human rights law, and international criminal law issues, including children forced in piracy, journalists reporting from combat zones, and reparations for commission of war crimes. Available online at HeinOnline.

Re-Democratizing Palestinian Politics by George E. Bisharat. 17 UCLA J. Int’l L. Foreign Aff. 1 (2013).

The main objective of this article is to examine the contemporary challenges to re-democratization in Palestinian politics. Such an examination is timely as the current leadership of the Palestinian people, institutionalized in the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA), is viewed by many Palestinians as out of touch with their needs, and overly prepared to sacrifice their perceived rights and interests in negotiations with Israel. Palestinian politics have never been fully democratic. It follows that for Palestinian politics to be successfully democratized today, it is not sufficient to simply return to past practices nor to restore pre-existing institutions to their previous statuses. This article analyzes the impact of two persistent obstacles to Palestinian democratic development-geographic dispersion and fragmentation of the Palestinians; and intervention by external powers, including the Arab states, the United States, and Israel-and considers the extent to which these obstacles were overcome in the past. It addresses the process of de-democratization to which Palestinian political institutions and practices have been subjected since the high water mark of Palestinian democratic achievement during the first intifada (1987-1993).

Responding to Ethnic and Religious Conflict in the Emerging Arab Order: The Promise and Limits of Rights by Omar M. Dajani. 17 UCLA J. Int’l Foreign Aff. 29 (2013).

Intercommunal conflict has marred the political transitions unfolding in a number of states in the Middle East, raising questions about the status and protection of ethnic and religious minorities in the region’s evolving political order. In view of the transnational character and regional scale of the problem, this Article considers the efficacy of one potential regional response-the development of an Arab convention on minority rights. The Article begins by describing three types of “minority problems” that have been sources of conflict in the Middle East: (1) religious minorities and Islamist majoritarianism; (2) nationalist minorities and territorial disputes, and (3) politically dominant minorities and survivalist minoritarianism. The Article then sketches the international legal context, focusing in particular on the Council of Europe’s Framework Convention on National Minorities. Turning back to the Middle East, the Article concludes that while a treaty exercise of that kind is probably premature, an effort to begin building consensus about regional norms would be a valuable means of promoting discourse about the contours of local norms and their harmonization-both with one another and with evolving international human rights standards.

The Least Religious Branch: Judicial Review and the New Islamic Constitutionalism by Intisar Rabb. 17 UCLA J. Int’l Foreign Aff. 75 (2013).

In the aftermath of the 2011 uprisings dubbed the “Arab Spring,” Egypt’s new constitution expands the constitutionally recognized role of Islamic law in state legislation and judicial review. Like the old constitution, the new constitution stipulates in Article 2 that the “principles of Islamic law are the main source of legislation.” Uniquely amongst Islamic constitutional countries, however, the new constitution adds two more clauses that further recognize Islamic law and the jurists who historically have been charged to interpret it. Alongside wildly fluctuating political events, this new constitutional twist raises serious questions about the role of courts and of judicial review in what we might call an era of the “new Islamic constitutionalism “–a species of the global new constitutionalism that includes judicialization of politics, rights, and religion under fledgling democratic rule. Evoking fears that religion in this new era threatens democracy, some comparative constitutional law scholars argue that the proper role of courts is to use judicial review to “contain” Islam and produce “secularizing effects.” In other words, this argument implicitly suggests that courts safeguard democracy when they act as the least religious branch. This Article argues that this conception of courts is conceptually and normatively flawed. Conceptually, a survey of the Egyptian Supreme Court’s prior judicial practice reveals a form of judicial review that engaged rather than contained or secularized Islamic law. Normatively, the survey suggests that the more the Court engaged, the more it produced positive “deliberative effects;” that is, the stronger and more legitimate the bases for the Court’s decisions seemed to be. This recent history of judicial review in Egypt is worth attention. As the new Islamic constitutionalism raises new questions of judicial review understanding the Egyptian Court’s jurisprudence on issues of Islamic law in the past is key to grasping the possibilities for judicial review of Islamic law in the future.

The Arab Revolution and Transitions in the Wake of the “Arab Spring” by Cherif Bassiouni. 17 UCLA J. Int’l L. Foreign Aff. 133 (2013).

Democracies are based on institutions whose foundations are social, but depend on legal institutions whose ligament is the Rule of Law. Democracies require frameworks, institutions, decision-makers, and operators who come out of these very traditions and who are part of a culture that is supported by the values and practices of a given society. Democracies are the product of practices whose best protection is not only its value-oriented goals, but also the commitment of those making up the society. Indeed, precedent and practice are indispensable, and so far they are absent in the Arab World. But as an Arab proverb states, “the longest journey starts with the first step. “

Hijacked Childhoods, Under the Radar: How the International Community Can Help the Youth Associated with Somali Piracy-And Why it Must by Emily Holland. UCLA J. Int’l L. Foreign Aff. 175 (2013).

This article considers the latest disturbing development in the Somali pirate crisis: the use and abuse of Somali youth. It explores legal interventions that may help, immediate practical steps stakeholders can take, and why they must.

Journalists as a Protected Category: A New Status for the Media in International Humanitarian Law by Elizabeth Levin. 17 UCLA J. Int’l L. Foreign Aff. 215 (2013).

The nature of modern warfare has vastly changed the role of journalists in conflict and, therefore, the reliability of the protections afforded to them. Countries such as the United States have interpreted international humanitarian law in such a way that leaves journalists vulnerable to targeting decisions based solely on the content of their writings. International law must take a firm step forward in not only securing defacto protection for journalists, but in reaffirming their importance to the public. Such a step may best be taken by adopting a new status for journalists. Under this new status, a journalist could not be said to have directly participated in conflict without a proven intention to incite violence and would therefore remain immune from direct targeting no matter how much the content of the reporting supports or undermines the objectives of a belligerent party.

Methods of Reparations in the International Criminal Court: The Impossibility of Individual Awards in the Democratic Republic of Congo by Nell Moley. 17 UCLA J. Int’l Foreign Aff. 251 (2013).

After reaching its first ever conviction of Thomas Lubanga Dyilo for the commission of war crimes, the International Criminal Court faces unanswered questions regarding payment of reparations to victims of mass atrocities and war crimes. This Comment examines the current situation in the Democratic Republic of Congo, and discusses whether reparations should be given to victims individually or collectively. This Comment takes the position that reparations should be paid collectively. Part I discusses the statutory mandate of reparations in the ICC. Part H highlights the difficulties in identifying and apportioning individual awards. Part Ill examines the problems posed by gender inequality, and Part IV discusses the possibility of theft of reparations. Finally, Part V looks briefly into the alternative of collective reparations. These analyses demonstrate that individual awards are not feasible in the Democratic Republic of Congo, and should not be considered as a viable reparations scheme in the region.

Available online at HeinOnline.

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