Programs in International Justice and Society

"The Search for Extraterrestrial Intelligence (SETI) and Human Law - a new research field"

This month’s feature comes from Michael Bohlander, Chair in Global Law and SETI Policy at Durham Law School (UK). Prof. Bohlander previously served as an international judge at the Extraordinary Chambers in the Courts of Cambodia in Phnom Penh (2015-2019), which addressed crimes allegedly committed during the Khmer Rouge period, and is on the roster of international judges at the Kosovo Specialist Chambers in The Hague (2017 to the present). Prior to joining Durham University in 2004, Bohlander was a judge in his native Germany and also served as the senior legal officer of a Trial Chamber at the International Criminal Tribunal for the Former Yugoslavia.

The impact of contact with extraterrestrial intelligence (ETI ) on human society will be serious to catastrophic, depending on the kind of contact. The wider SETI community has considered various contact scenarios and issued a number of declarations, none of which have legal force, however. Law is a discipline that should be at the forefront of creating a proper governance framework. In the words of Steven J. Dick, the former Chief Historian of the US National Aeronautics and Space Administration (NASA), “SETI is way behind the curve when it comes to legal implications of discovering intelligent life”. 

This applies even more in the case of direct contact, which might even trigger military responses on behalf of all of humanity if ETI were to be hostile, and raise questions of whether the interhuman laws of warfare should apply to ETI if humanity were fighting for species survival. If this may seem fringe to some, it is because humanity has not yet developed a planetary or cosmic species awareness, or because many simply accept the prevailing narrative that any ETI contacted will be either vastly more advanced and powerful and hence impossible to resist, or in any event be benign in nature. Neither can be taken for granted. 

If there is a “Galactic Club” to which humanity as a whole might in time wish to aspire, we should expect to fulfil certain membership criteria and be in a grounded position to decide whether these criteria are compatible with global human ethical parameters. Human rights law in particular can serve as a ready guideline for ethical discussions of what humanity might be willing to trade for access to the Club if that was a precondition to accessing technology that could possibly solve all problems around energy, food production, climate, and poverty on Earth. Human rights law has so far been conspicuously absent as an avenue of ethics study in the SETI environment. 

Humanity at this time has no answers for any of those questions. The time to begin serious efforts to address them is now, when reflections about contact of any kind are entering the scientific and popular mainstream much more than was the case previously, especially following the June 2021 report to the US Congress on unidentified aerial phenomena (UAP) and the recent call by NASA in October 2021 to embed the search for extraterrestrial life in all research activities. 

More detail on these arguments can be found in my recent papers: Metalaw – What is it good for? (2021,188 Acta Astronautica, 400 - 404) and Joining the “Galactic Club”: What Price Admission? – A hypothetical case study of the impact of human rights on a future accession of humanity to interstellar civilisation networks (2021,132 Futures, 102801). I am currently finishing a monograph to be published in 2023 in the series Space and Society, with the working title “Conflict with Extraterrestrial Intelligence and Human Law – A speculative study of the impact of interspecies conflict on humanitarian and human rights law.” 

A number of academics from different fields at Durham University are currently developing plans for a multi-disciplinary Centre for Cosmic Impact (CCI). As part of this process, we are organizing a hybrid symposium on 4 July 2022, with the title “Space, Law and Alien Life – Combined Approaches to Astrobiology, Law and the Search for Extraterrestrial Intelligence.” Information on how to attend the event, either in person or remotely, can be found at this link. Durham Law School will also host the 2022 hybrid Annual Meeting of the UK SETI Research Network (UKSRN) on 7-8 July 2022. Find details about how to join the meeting and read the full programme at the conference website.

The International Court of Justice (ICJ) has announced with sadness the death of Judge Antônio Augusto Cançado Trindade of Brazil. He joined the ICJ bench in February 2009 and, after re-election in 2018, was due to end his current term in February 2027. Cançado Trindade, a noted figure in the fields of international law and human rights, was judge of the Inter-American Court of Human Rights from 2008 to 2015, serving as president from 1999-2004. Brandeis University was proud to host Judge Cançado Trindade as a participant of the 2003 Brandeis Institute for International Judges, organized around the theme “Authority and Autonomy: Defining the Role of Regional and International Courts." Read more about Judge Cançado Trindade in an ICJ press release.

Philanthropist George Soros, founder and chairman of the Open Society Foundations, recently told those gathered in Davos, Switzerland for the World Economic Forum that the world is currently experiencing a struggle between two diametrically opposed systems of governance. “In an open society, the role of the state is to protect the freedom of the individual; in a closed society, the role of the individual is to serve the rulers of the state. Other issues that concern all humanity – fighting pandemics and climate change, avoiding nuclear war, maintaining global institutions – have had to take a back seat to this systemic struggle. That’s why I say our civilization may not survive.” During his remarks, Soros mentioned the problematic collusion of Russian and Chinese leaders, the dangers of artificial intelligence, and the need for a more united Europe. Read the full text of his Davos address. Learn more about George Soros in a 2019 documentary film by director Jesse Dylan.

The Inter-American Commission on Human Rights (IACHR) recently noted the upsurge in violence against women, girls, and adolescents in Mexico and urged the State to strengthen its efforts to investigate, prosecute, punish, and provide reparation for gender-based violence. The Commission also said that the Mexican State must take effective measures to prevent and avoid the repetition of patterns of violence. The high incidence of femicide has long been documented in Mexico, dating back to the 1990s and early 2000s. But 2022 has seen a marked increase in violence against women, which activists say is exacerbated by the botched and apathetic response from Mexican authorities.

After 20 years, a fugitive from the International Criminal Tribunal for Rwanda (ICTR) has been located – but too late to be brought to justice. Protais Mpiranya, the former commander of the Rwandan presidential guard indicted for genocide in Rwanda by the ICTR, was found in a cemetery outside of the Zimbabwean capital, Harare. His body was exhumed last month at the request of UN investigators, and Mpiranya’s identity was confirmed by DNA analysis. According to The Guardian, “his death, like much of his life, had been swathed in secrecy by his family and supporters. Mpiranya had been living in Zimbabwe under an assumed identity for four years, despite its government’s insistence that he was not in the country.” Read more in a press release from the United Nations International Residual Mechanism for Criminal Tribunals (IRMCT). 

Several days later, the IRMCT confirmed the death of Phénéas Munyarugarama in the Democratic Republic of the Congo. This notable figure in the 1994 genocide against the Tutsi was yet another fugitive from the ICTR. There still remain at large four individuals accused of atrocity crimes in Rwanda by the UN tribunal. IRMCT Chief Prosecutor Serge Brammertz stated: “This result is yet another important step in my Office’s efforts to secure justice for the victims of the 1994 Genocide against the Tutsi in Rwanda and complete our mandate. For the victims and survivors of Munyarugarama’s crimes in the Bugesera region, we hope this result brings some closure.”

In other ICTR news, one of the men acquitted by the Tribunal, under house arrest in Niger since December 2021, has died while awaiting a resolution of the situation. Defense lawyer Peter Robinson, counsel of another acquitted man, has been calling attention to their plight during the months of their detention. Niger originally agreed to host the eight men – four of them acquitted by the ICTR, and the other four convicted and having served their sentences – but then sought to expel them. The men now find themselves in limbo and, in late-breaking news, the IRMCT has declined to bring them to The Hague. The man who died, former Rwandan Affairs Minister Jérome Bicamumpaka, wished to rejoin his family in Canada but was not granted a visa despite his acquittal. 

As the Russia/Ukraine war enters its fourth month, international justice groups are keeping a tally of the toll this military activity has taken on civilian populations. Courthouse News Service reports that there have been over 7,000 civilian casualties in Ukraine, including almost 3,500 deaths. The article notes the numerous international processes that are underway to hold the aggressors accountable, as well as the universal jurisdiction investigations underway by the authorities in 14 countries. However, “[a]gainst this backdrop, human rights groups are calling for more. Eight organizations, including Amnesty International and Human Rights Watch, published a letter calling on European Union lawmakers to expand the options available for justice. They want the EU to provide more financial support to the [International Criminal Court] and create specialized war crimes units in countries to assist with investigations.”

It is not only the human population that suffers during military conflict, however. A Justice in Conflict post reminds us of another, and sometimes forgotten, victim of war – the natural environment. David Krott of the Vrije Universiteit Brussel asserts the need to consider the environmental damage inflicted by the war in Ukraine. He writes that this war “has challenged international relations and brought unspeakable harm to the population of Ukraine, its culture, and its infrastructure. In these kinds of conflicts, the natural environment often recedes into the background. But the environment in Ukraine is still suffering a great deal under the war. The threat of environmental harm in Ukraine reaches far across the country’s borders and should be viewed through the eyes of international criminal law.” Krott notes that the deployment of atomic weapons would clearly have a devastating impact on the global environment, although their usage is not directly forbidden under international law.

In other environmental news, Chile is currently debating a new "ecological constitution" that would enshrine principles from the Paris Agreement, the first country to take this bold move. The action comes at a time when the world is facing three interconnected environmental threats: climate change, biodiversity loss and toxic pollution. Inside Climate News reports that “[a]mong the concepts already approved for inclusion in the convention’s draft constitution are the rights of nature (the idea that ecosystems have legal rights to exist and regenerate), the rights of animals to live free from abuse and human rights to environmental information and participation in environmental decision making. The draft also includes recognition that the climate crisis is a consequence of human activity, and the recognition of the government’s duty to promote efforts to mitigate and face the climate crisis.”

The draft constitution must be completed by 5 July and ratified in a national vote before next September. 

The United States was recently rocked by yet another mass shooting, this one in a Uvalde, Texas school, the worst to occur in an educational institution in a decade. Yet mass shooting events – defined as those in which four or more individuals are shot and either injured or killed, excluding the gunman – are only too frequent in the US. National Public Radio reports that at least eight mass shootings occurred in the week following the highly publicized one in Uvalde. The Council on Foreign Relations, in order to put these statistics into a wider perspective, recently published a commentary entitled “U.S. Gun Policy: Global Comparisons”. The commentary can be summarized in three points: "1) The debate over U.S. gun laws has raged for decades, often reigniting after a high-profile mass shooting. Gun violence has surged in 2020 and 2021 amid the COVID-19 pandemic. 2) Gun ownership and gun homicide rates are high in the United States in comparison to rates in other advanced democracies. 3) Mass shootings in Australia, Canada, and the United Kingdom prompted those governments to tighten gun laws." It is unclear whether increasing rates of gun violence in the US will finally convince law makers to take action. This violence has, however, spurred Canadian Prime Minister Justin Trudeau to call for a freeze on the sale, importation and transfer of handguns in his country. Read more about gun restrictions in Canada from Axios.

Two indigenous groups from Africa are struggling to exercise their right to self-determination. A 2017 judgment of the African Court on Human and Peoples’ Rights clearly recognized the Ogiek community of Kenya as an indigenous people which deserves special treatment due to their vulnerability and decades of marginalization. The Ogiek wish to have a voice in any decisions made about their ancestral territory in the Mau Forest, but the Kenyan government has yet to implement the Court’s decision. The Star reports, "[i]n its first-ever of such cases, the court found the Kenyan government had violated various articles of the African Charter on Human and People’s Rights, including denial of Ogiek land rights and their religious and cultural and hunter-gather practices.”

Meanwhile, in neighboring Tanzania, there are plans to resettle the Maasai population living in the vicinity of the Ngorongoro Conservation Area (NCA), a UNESCO world heritage site. While the government claims that this relocation is voluntary, UN Special Rapporteurs have expressed their concern over the “plans for resettlement, forced evictions, home demolitions and additional restrictions.” According to the Oakland Institute, “[t]he dominant framing used by international conservation agencies and Tanzanian government departments — that the NCA must choose between conservation and Indigenous livelihoods — ignores the evidence that empowering Indigenous communities is the most effective way forward to ensure environmental sustainability.”

A recent Opinio Juris symposium confronts head on the existence of racism and sexism in legal academia. As Mohsen al Attar writes in the introductory commentary, “few academics acknowledge the dialectics of racism and sexism. Even if no one endorses them outright, racism and sexism produce winners and losers. Like poverty, racism and sexism are not abstract conditions but relationships with profound material outcomes.” Al Attar outlines what he calls the “practices of delegitimation” of racialized and gendered legal scholars, insights that call for self-examination by institutions of higher learning and their faculty members. Other contributions to the symposium address the skewed legal publication records of Oxford University Press and Cambridge University Press; the need for structural transformation in legal academia; and “the dual commodification and marketisation of legal education, showcasing the racialised climate cultivated by a system beholden to Global North ranking metrics.” Al Attar notes that “[o]ur symposium on anti-racism and anti-sexism in legal academia stresses not only the agency of racialised and gendered scholars but also what a culture of resistance and a politics of transformation look like. Each intervention is a gift of story, of strength, and of sight. It is also a gift of humanism.” 

Does reconciliation ask too much of those who have suffered mass human rights violations? A special issue of the Journal of the Royal Anthropological Institute delves into the notion of “irreconciliation” – the idea that not all post-conflict situations should be resolved through an imposed discourse of unity and forgiveness but instead can take the path of legal accountability and disruption of the structures that have fostered violence in the first place. In her introduction to the issue, Nayanika Mookherjee writes, “Rather than being in opposition to ‘peace’, irreconciliation allows us to interrogate the status quo by refusing to forgive endemic impunities, particularly in the aftermath of staged processes of justice and the absence-presence of the rule of law… Irreconciliation allows an important examination of the rule of law within processes of unresolved genocidal injustices and debates relating to slavery, Black Lives Matter, and institutional responses.” In his afterword to the issue, Richard Ashby Wilson notes that it has fallen to anthropologists to critique “the veritable industry” that promotes restorative justice, reconciliation and post-conflict peace building. He explains that the term "irreconciliation" encompasses "a range of emotional dispositions and practices that defy political leaders' exhortations to reconcile."

A new book, freely accessible online, features the research accomplishments of iCourts. This Danish National Research Foundation's Centre of Excellence for International Courts, located at the University of Copenhagen, is dedicated to the study of international courts, their role in a globalising legal order and their impact on politics and society. The purpose of the book is to document how iCourts has become an internationally leading research environment over its ten-year lifespan, thereby impacting a whole field of research. The Making of iCourts: New Interdisciplinary Legal Research, edited by Henrik Stampe Lund and Henrik Palmer Olsen, includes contributions by professors, researchers and staff members that address a broad array of legal issues arising in diverse institutions across the globe.

In the Fall 2022 issue of the Australian professional journal Bar News, scholars Laura Smith-Khan and Alexandra Grey provide an overview of their recent jointly-edited thematic issue of the Griffith Law Review (Volume 30, Issue 1, 2021): “Linguistic Diversity as a Challenge for Legal Policy.”  The editors believe that “this is an important topic for legal practitioners and law makers, as they may be unaware of the myriad ways linguistic minorities may be unfairly disadvantaged within legal systems, effectively undermined in their equal access to justice and full enjoyment of their rights.” The law review issue, explain Smith-Khan and Grey, adopted the unique approach of dividing the contributed articles into those relevant to courts and the judiciary, the legislature, and the executive branch.