René Provost | McGill University (original) (raw)

Papers by René Provost

Contents: Historical Evolution: The transformation of the law of state responsibility, Y. Matsui.... more Contents: Historical Evolution: The transformation of the law of state responsibility, Y. Matsui. General Theory of International Responsibility: 'Primary' and 'secondary' rules in the law of state responsibility: categorizing international obligations, J. Combacau and D. Alland The due diligence rule and the nature of the international responsibility of states, Riccardo Pisillo-Mazzeschi State responsibility and international liability for injurious consequences of acts not prohibited by international law: a necessary distinction?, Alan E. Boyle. Consequences of an Internationally Wrongful Act: Is there an international law of remedies?, Christine Gray Counter-measures as interim measures, James Crawford Third state remedies in international law, Jonathan I. Charney Bilateralism and community interest in the law of state responsibility, Bruno Simma The consequences of an international wrong in international and national law, F.A. Mann. Criminalizing State Responsibi...

SSRN Electronic Journal, 2010

How does one get the Taliban in Afghanistan, the FARC in Colombia, Russian troops in Georgia, and... more How does one get the Taliban in Afghanistan, the FARC in Colombia, Russian troops in Georgia, and Blackwater contractors in Iraq, to improve their dismal record of compliance with international humanitarian law? The recipe, inasmuch as one can be surmised, will involve a complex mix of carrot and stick, normative and political, humanitarian and strategic. One basic question is the degree to which reciprocity is a toxic factor in the normative dynamics of international humanitarian law, importing conditionality and offering excuses to match any violation committed by the other side, or whether there lies in reciprocity a force that can be successfully marshalled to improve the protection of the victims of war. A second related question is the extent to which an armed conflict has to involved symmetrical forces in order for reciprocity to operate at all. Should we agree with Marco Sassoli that “reciprocity … does not work in asymmetrical conflicts”? The paper attempts to show that even in asymmetrical conflicts so unreceptive to humanitarian ideals as the ones listed above, reciprocity offers such potential that it should not be discounted as merely another hurdle to overcome in the application of the laws of war, but rather that one of the bases on which legitimate norms can be established to link participants variously positioned in a regime like international humanitarian law.

SSRN Electronic Journal, 2012

Rebel Courts - The Administration of Justice by Armed Insurgents, 2021

Rebel Courts presents an argument that it is possible for non-state armed groups in situations of... more Rebel Courts presents an argument that it is possible for non-state armed groups in situations of armed conflict to legally establish and operate a system of courts to administer justice. Neither the concept of the rule of law nor the general principle of state sovereignty stands in the way of framing an understanding of the rule of law adapted to the reality of rebel governance in the area of justice. Legal standards applicable to non-state armed groups in situations of international or non-international armed conflict, including international humanitarian law, international human rights law, and international criminal law, recognise their authority to regularly constitute or establish non-state courts. The lawful operation of such courts is of course subject to requirements of due process, corresponding to an array of guarantees that must be respected in all cases. Rebel courts that are regularly constituted and operate in a manner consistent with due process guarantees demand a c...

International Review of the Red Cross, 2011

An argument that equality of obligations of states and non-state armed groups under International... more An argument that equality of obligations of states and non-state armed groups under International Humanitarian Law should be reconsidered to accommodate differentiated responsiblities.

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SSRN Electronic Journal, 2017

The Journal of Legal Pluralism and Unofficial Law, 2018

What does it mean for courts and other legal institutions to be culturally sensitive? What are th... more What does it mean for courts and other legal institutions to be culturally sensitive? What are the institutional implications and consequences of such an aspiration? To what extent is legal discourse capable of accommodating multiple cultural narratives without losing its claim to normative specificity? And how are we to understand meetings of law and culture in the context of formal and informal legal processes, when demands are made to accommodate cultural difference? The encounter of law and culture is a polycentric relation, but these questions draw our attention to law and legal institutions as one site of encounter warranting further investigation, to map out the place of culture in the domains of law by relying on the insights of law, anthropology, politics, and philosophy. Culture in the Domains of Law seeks to examine and answer these questions, resulting in a richer outlook on both law and culture.

Culture in the Domains of Law

Many claims to justice ask law to be responsive to the lived experiences of those to and through ... more Many claims to justice ask law to be responsive to the lived experiences of those to and through whom it is applied. ‘Culture’ is one label attached to collective forms of this lived experience. But what does it mean for courts and other legal institutions to be culturally sensitive? What are the institutional implications and consequences of such an aspiration? To what extent is legal discourse capable of accommodating multiple cultural narratives without losing its claim to normative specificity? And how are we to understand meetings of law and culture in the context of formal legal processes, such as when a criminal defendant invokes the acceptability of domestic violence within his ethnic community, when oral traditions are presented as the basis for an aboriginal land claim, or when the custom of ‘bush marriage’ is evoked as relevant to the prosecution of the war crime of rape? The encounter of law and culture corresponds to a polycentric relation, but these specific questions draw our attention to law and legal institutions as one site of encounter warranting further investigation, to map out the place of culture in the domains of law.

Interpretation in International Law, 2015

In this paper, I focus on the transcultural nature of interpretation in some areas of internation... more In this paper, I focus on the transcultural nature of interpretation in some areas of international law, a topic which encompasses both institutional and normative dimensions. Much of international law, still today, is centered on the state. While Governments are all different, all states do share in a culture rooted in the idea of sovereignty, such that the transcultural dimensions of these norms is much more limited. International criminal law is one area of international law that stands as radically different in that respect, reflecting the fact that it seeks to alter the behaviour of individuals who may not share a common culture of any kind. What’s more, the culture of those individuals to whom international criminal law is applied is often markedly different from the culture of those by whom these norms are applied, or that of the institutions administering international criminal responsibility. Building on previous work on the application of the doctrine of superior responsibility to a witch-doctor by the Sierra Leone Special Court, I consider the appropriate stance of the SCSL with respect to allegations of cannibalism. I proceed by first analysing how legal interpretation unfolds in the international legal order, focusing on actors, process and object, to then turn to consider the impact of cultural difference on the interpretive exercise. The interpretation of international law and the interpretation of local culture emerge as ineluctably interwoven, with international law acting as a tool and a justification to reinterpret local culture through the prism of legal norms devoid of any local rootedness. The danger is an outcome whereby international law fails to be perceived as legitimate by agents whose behaviour it seeks to regulate and, as a result, fails to trigger the kind of normative engagement required to make law real.

Human Rights Quarterly, 2015

From Pussy Riot to Michael Khodorkovskiy, the solidity of the rule of law in Russia seems rather ... more From Pussy Riot to Michael Khodorkovskiy, the solidity of the rule of law in Russia seems rather shaky. This has translated into a troubled relationship between Russia and the European Court of Human Rights since Russia’s ratification of the European Convention in 1998. Various factors explain this tension, including the structure of the judiciary, the status of the European Convention in Russia law, public mistrust of the courts, and ongoing episodes of armed conflicts. This has posed enormous challenges to the European Court of Human Rights, and even the most recent attempts to improve it are unlikely to trigger better compliance in Russia.

Dialogues on Human Rights and Legal Pluralism, 2012

At first glance, human rights and legal pluralism make strange bedfellows. To begin with, they ar... more At first glance, human rights and legal pluralism make strange bedfellows. To begin with, they are not conceptual analogues: the first is normative in its essence, capturing a bundle of rights reflecting the interests most fundamental to any human being; the second is conceptual, offering a model of how to construct legal normativity in a society. There are, beyond this distinct nature, further layers of difference which separate rather than unite notions of human rights and legal pluralism, explaining the fact that studies on human rights rarely have embraced a legal pluralism approach and, conversely, that legal pluralistic analysis by and large focuses on norms other than human rights. This book interrogates the chasm that seems to exist between these two notions, to highlight the potential for legal pluralism to bring innovative perspectives to our understanding of human rights, which have become a critical component of modern legal systems. Human rights have experienced momentous growth during the post-World War II era. At the international, state, and local levels, human rights laws, declarations, charters, and covenants have multiplied and endorsed a recurring core of rights and obligations linked to the protection of fundamental human dignity, equality and justice. Nevertheless, there has been a growing concern that simply ratifying or legislating human rights conventions and laws does not lead to the effective enjoyment of human rights in the daily lives of millions of individuals. Legal pluralism offers an approach that translates abstract and broad human rights standards into the vernacular of everyday life, transplanting these norms into ordinary human relations where they can truly achieve their transformative potential.

American Journal of Comparative Law, 2008

SSRN Electronic Journal, 2012

Canadian Yearbook of International Law/Annuaire Canadien de Droit International, 2009

Comparative Law eJournal, 2009

Canada, like many other countries, has struggled with questions of how to prevent terrorist attac... more Canada, like many other countries, has struggled with questions of how to prevent terrorist attacks without undermining human rights. One tool that gained prominence in recent years involves preventive detention under "security certificates." This measure, undertaken through immigration legislation, applies to non-citizens found inadmissible for one of a number of reasons, including a suspicion that they endanger national security. Such detentions have ignited considerable controversy within Canada. In February 2007, the Supreme Court of Canada found the existing scheme unconstitutional. While the Court did not find the scheme to be discriminatory, in spite of its application only to non-citizens, it did find that the potential use of secret evidence contravened procedural fairness. Canada subsequently passed legislation, creating a special advocate system. This article argues that continued problems exist with these detentions, including questions of discrimination and co...

SSRN Electronic Journal, 2010

SSRN Electronic Journal, 2012

Rebel Courts - The Administration of Justice by Armed Insurgents, 2021

International Review of the Red Cross, 2011

SSRN Electronic Journal, 2017

The Journal of Legal Pluralism and Unofficial Law, 2018

Culture in the Domains of Law

Interpretation in International Law, 2015

Human Rights Quarterly, 2015

Dialogues on Human Rights and Legal Pluralism, 2012

American Journal of Comparative Law, 2008

SSRN Electronic Journal, 2012

Canadian Yearbook of International Law/Annuaire Canadien de Droit International, 2009

Comparative Law eJournal, 2009

Resumen: La experiencia de Canadá en la lucha contra el terrorismo se remonta a inicios de la déc... more Resumen: La experiencia de Canadá en la lucha contra el terrorismo se remonta a inicios de la década de los setenta y se desarrolla hasta la época actual (los acontecimientos más recientes han tenido lugar en el año 2017). Las medidas legislativas fueron la vía adoptada por parte de Canadá para contrarrestar los ataques y reflejar el cambio de paradigma político en la esfera internacional con relación al fenómeno del terrorismo. Derechos fundamentales como el derecho a la libre expresión, a la vida privada y a la libertad personal se encuentran particularmente afectados por estas medidas. Un análisis comparativo del sistema canadiense y el sistema interamericano permite identificar las consecuencias de estas medidas. En términos más amplios, la lucha contra el terrorismo genera impactos significativos sobre los derechos humanos en general. Palabras clave: derecho internacional público, terrorismo, derecho a la libertad personal, Canadá, derecho interamericano, historia del terrorismo en Canadá, Ley Antiterrorista, sistema interamericano de herechos Humanos, libertad de expresión, derecho a la vida privada, detención arbitraria Abstract: Canada's experience in the war against terrorism goes back to the seventies, and continues to develop nowadays, with the last direct terrorist activity in 2017. The Canadian Government reacted to these terrorist attacks by enacting a number of statutes that reflect a changing international paradigm in relation to the fight against terrorism. Fundamental rights and liberties such as the freedom of expression, the right to private life and to personal freedom have been curtailed by these legislative measures. The practical consequences of these measures are analyzed via a comparative examination of the Inter-American System of Human Rights. In general terms, the war against terrorism produces significant impacts over the human rights.

Item consists of a digitized copy of a video recording of a Vancouver Institute lecture given by ... more Item consists of a digitized copy of a video recording of a Vancouver Institute lecture given by Rene Provost on April 24, 2010. Original video recording available in the University Archives (UBC VT 2068).

The Social Order of the Underworld – How Prison Gangs Govern the American Penal System, by David ... more The Social Order of the Underworld – How Prison Gangs Govern the American Penal System, by David Skarbek, Oxford University Press, 2014, 224p
Edward John Schaeferhad been an inmate at the San Quentin State Prison in California for just a few days when, coming out in the yard to enjoy the summer sunshine, he was killed by another inmate. He was stabbed to death with a knife made from a piece of metal bunk bed by Frank Souza, who had the words 'WHITE POWER' tattooed across his entire forehead. In July 2013, National Public Radio reporter Steve Inskeep had an opportunity to visit a prison in the Venezuelan city of Barinas. He overcame prison guards' reluctance to admit a foreigner into the jail by mentioning the name of the prisoner he had come to meet. He was then let in, without being put through a metal detector, only to be then vetted by a second set of gate-keepers, inmates this time, who did have a metal detector. Inskeep describes his tour of the prison with the 'pran', the leader of the prison gang that basically rules everything that goes on inside the walls of the prison, noting that the pran's bodyguards seemed to be carrying handguns. What do these two stories from very different prison settings have in common? Both are examples of the ways in which life in jail is governed not only by official rules and institutions, but also by the unofficial social order of the prison. Edward Schaefer's killer, it turns out, did not have anything against him or even know him. Both were white. Souza was simply executing a hit that had been ordered by the Aryan Brotherhood prison gang because Schaefer had killed a nine-year-old girl while driving his motorcycle while completely drunk. This was a crime that warranted the death penalty according to the Aryan Brotherhood, regardless what California law had to say about it. At the end of the day, the prison gang's law proved the most significant to Edward Schaefer's life. There is a broadly shared impression that prison violence is carried out by individuals who are evil, crazy or stupid. In his book, David Skarbek aims to show that, more often than not, the violence evinces the rational choice of actors deeply concerned with preserving stability in prisons. The perspective is that of a political economist, but there is in this study a rich portrait that can be understood in normative terms using the lens of legal pluralism.

No es atípico que el personal militar se encuentre en situaciones en las que niños soldados armad... more No es atípico que el personal militar se encuentre en situaciones en las que niños soldados armados participan directamente en las hostilidades y, en algunos casos, suponen una amenaza inmediata para la vida o la seguridad de las tropas. Cabría suponer que, dada la vasta literatura sobre los niños soldados de las últimas décadas, se trata de una cuestión que ha sido explorada y analizada en profundidad. Sin embargo, en el ámbito del derecho internacional, un repaso a las obras más citadas revela que la mayoría de ellas abordan el ataque directo a los niños soldados de forma elíptica, cuando no en total silencio. Sin embargo, parece importante que la ley proporcione los parámetros más claros posibles al personal militar que se enfrenta a situaciones tan angustiosas, con el fin de conciliar de la mejor manera posible los diversos intereses en juego. El objetivo de este informe es proporcionar un análisis de los parámetros jurídicos que rigen la interacción con los niños soldados que participan directamente en conflictos armados, con el fin de identificar en qué circunstancias y condiciones es lícito que el adversario ataque directamente a estos niños. Se entiende que se trata de una cuestión compleja que se rige por diversos ámbitos del derecho internacional, incluidos el derecho internacional de los derechos humanos y el derecho penal internacional, pero el análisis que aquí se realizará se basará principalmente en el derecho internacional humanitario, que es la lex specialis de la conducción de hostilidades armadas. El análisis se divide en tres etapas distintas, la primera es la caracterización de los niños soldados como combatientes, la segunda parte considera la posibilidad de niños como civiles que participan directamente en las hostilidades, y la tercera, examina la posibilidad de que, aunque en ocasiones sea legal atacar a los niños soldados, existan limitaciones particulares en las medidas y estrategias adoptadas.

This article examines the proportionality assessment in International Humanitarian Law to argue t... more This article examines the proportionality assessment in International Humanitarian Law to argue that when determining whether the damage to civilian life is excessive in relation to the anticipated military advantage, the harm to the life of a child would gain a higher value as compared to harm to other civilian life. Accordingly, implicit in this article's claim is the argument that the proportionality calculation should be assessed within a framework of International Humanitarian Law which creates stratifications amongst different groups of civilians. Likewise, children are provided higher safeguards in International Humanitarian Law. Therefore, providing a higher value to children in the proportionality calculation is consistent with its larger protective framework. Additionally, the article submits that in practice, militaries tend to assign a heightened worth to lives of children due to moral and political reasons. Such reasons stem from the vulnerability of children which makes them ideal victims, along with the innocence attached to them as a result of harmlessness and moral blamelessness due to their presumed lack of agency. For these reasons, harm to children's lives generate a higher backlash and scrutiny from the international community, including tribunals. Accordingly, the article argues that not only do militaries attribute a higher focus on harm to children's lives in assessing collateral damage but also that such heightened worth attributed to children's lives is consistent with the principle of proportionality as interpreted within the larger framework of International Humanitarian Law.

“Why can’t people understand that we are victims?” asked us a young man born further to the rape ... more “Why can’t people understand that we are victims?” asked us a young man born further to the rape of his mother during the 1994 genocide in Rwanda. This is a cri de coeur that calls for unpacking, both in the assumptions that underly it and in the framework that is called upon to answer it. The need to respond to this question arises from previous research that has uncovered the reality of stigma, victimization, violence and socio-economic marginalisation of children born of war (CBW). Children themselves across a variety of post-conflict context have, through extensive in-depth interviews, told us that their entire life trajectory has been shaped by their birth origins. While they consider themselves as victims, domestic and international actors largely have failed to recognise CBW within legal conceptions of victimhood. Whether a child born of harmful behaviour should be seen as a victim has been significantly explored in law only in relation to so-called ‘wrongful life’ and ‘wrongful birth’ cases in the law of private responsibility. On the whole, courts have been extremely reluctant to accept claims of that nature because of a perceived tension between what has been refereed to as the “gift of life” and any harm associated with the circumstances of birth. Generally, the concept of the victim has remained under-theorised in criminal law, a regime squarely focussed on the perpetrator as the centre-point of the legal narrative of accountability. International Criminal Law is a site in which a significant discussion of who should be considered a victim has occurred. The announced shift to a ‘victim-centred’ approach with the adoption of the Rome Statute of the International Criminal Court has led to the elaboration of a more nuanced legal understanding of who should be considered a victim. Drawing from elements of the concept of victimhood as articulated in international criminal law leads us to conclude that CBW should indeed be considered as victims. This important finding challenges the policies and practices of domestic and international actors that have failed to recognise CBW as victims in post-conflict transition.

Summary: The fact that children are drawn to join the ranks of armed forces or non-state armed gr... more Summary:
The fact that children are drawn to join the ranks of armed forces or non-state armed groups is a terrible reality that persists despite concerted efforts to eradicate the practice. No facet of this reality is perhaps more shocking than children’s direct participation in hostility, in that it raises the specter of combatants directly targeting children. International humanitarian law doctrine had been largely silent on this specific aspect of child soldiering, leaving the military to improvise its stance when confronted with child soldiers. The Canadian Armed Forces in 2017 adopted what is said to be the first official doctrine on child soldiers. This paper analyses this doctrine in light of the regulation of the use of force against child-soldiers under International humanitarian law. It assesses whether children can ever be full-fledge combatants, when they can be considered civilians directly participating in hostilities and, if children can be directly targeted, what limits humanitarian law imposes on means and measures of war employed.

Résumé :
Le fait que des enfants se joignent aux forces armées ou à des groupes armés non-étatiques est une terrible réalité qui résiste aux efforts de la communauté internationale pour l’éliminer. La participation directe aux hostilités par des enfants-soldats constitue possiblement l’aspect le plus troublant de cette réalité, en ce qu’elle soulève la possibilité de devoir attaquer directement ces enfants. Le droit international humanitaire reste à ce jour plutôt discret quant à cette facette de la participation des enfants aux conflits armés, laissant les forces armées improviser leur réaction. Les Forces armées canadiennes ont adopté en 2017 ce qui est présenté comme la première doctrine militaire sur les enfants-soldats. Le présent texte propose une analyse de cette doctrine à la lumière de la réglementation de l’emploi de la force contre les enfants-soldats en droit international humanitaire, pour déterminer si les enfants peuvent jamais devenir des combattants à part entière, à quelles conditions ils peuvent participer directement aux hostilités, et quelles limites le droit humanitaire impose quant aux choix des moyens et mesures de guerre employés.

In the more than half-century of civil strife in Colombia, there has been a constant ebb and flow... more In the more than half-century of civil strife in Colombia, there has been a constant ebb and flow in the sharing of power between the Government and rebel groups, the largest of which is the Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC). The FARC is a highly structured group controlled by a designated hierarchy, said to have encompassed as much as 17,000 fighters at its peak in the early 2000s. While it has excercised total control of national territory only for quite small areas during limited periods, it has been a dominant presence in more than half of Colombian municipalities over long periods of time. In those areas of mixed control, the population has had to navigate between governance de abajo (from below, in the plains) emanating from state institutions, and governance de arriba (from above, in the hills) emanating from the FARC. The latter adopted a dual strategy of instrumentalization and neutralization, attempting to infiltrate official institutions to coopt them to follow a line dictated by the rebels or, failing that, impeding the operations of these institutions. As a result, the FARC has been involved, in a period of time extending over several decades, in the management of a wide array of social issues, including labour relations, commerce, family life, taxation, and much more. One facet of this rebel governance has been the administration of justice. It appears that FARC judicial institutions grew out of internal disciplinary mechanisms, commonly established by non-state armed groups to ensure tactical effectiveness. The paper, relying on recent ethnographic research by anthropologists and sociologists in Colombia as well as my own field work, will map out the emergence and evolution of these FARC ‘courts’ with a view to appraise the extent to which they correspond in any meaningful manner to the concept of the judicial function. This will in turn serve to interrogate, relying on the insights of legal pluralism, the concept of the rule of law that is embodied in international legal instruments in the fields of international human rights and international humanitarian law. Unpacking the idea of the rule of law applicable in situations of armed conflict, I argue that a cogent concept of the rebel rule of law can be articulate to serve as yardstick to measure and guide insurgents in their legal governance.

Derecho PUCP, 2017

La experiencia de Canadá en la lucha contra el terrorismo se remonta a inicios de la década de lo... more La experiencia de Canadá en la lucha contra el terrorismo se remonta a inicios de la década de los setenta y se desarrolla hasta la época actual (los acontecimientos más recientes han tenido lugar en el año 2017). Las medidas legislativas fueron la vía adoptada por parte de Canadá para contrarrestar los ataques y reflejar el cambio de paradigma político en la esfera internacional con relación al fenómeno del terrorismo. Derechos fundamentales como el derecho a la libre expresión, a la vida privada y a la libertad personal se encuentran particularmente afectados por estas medidas. Un análisis comparativo del sistema canadiense y el sistema interamericano permite identificar las consecuencias de estas medidas. En términos más amplios, la lucha contra el terrorismo genera impactos significativos sobre los derechos humanos en general.