JURIST Special Guest Columnist Lt. Col. Stephen Abraham (US Army, ret.), formerly assigned to the Office for the Administrative Review of the Detention of Enemy Combatants and the first officer to publicly criticize the Combatant Status Review Tribunals at Guantanamo, says the US Senate has acted appropriately in rejecting an appropriations amendment offered by Senator Lindsey Graham that would have effectively stopped domestic trials for Guantanamo detainees by prohibiting the Justice Department from using federal funds to prosecute them in federal courts...
Yesterday, the Senate, while considering the Commerce, Justice, Science, and Related Agencies Appropriations Act for Fiscal Year 2010, voted to reject an amendment by Senator Lindsey Graham (R-SC) that would prohibit the Justice Department from using federal funds to prosecute any alleged planners or conspirators in the September 11, 2001 attacks in the federal courts. Senators should be congratulated on taking the right course and recognizing that the federal courts are the right forum for trying these individuals.
What’s most troubling about this effort from Senator Graham is that it elevates an act of terrorism, which is innately a criminal act, to an act of war. We should not be so quick to do so, giving traction to the perpetrator's claim of legitimacy. These individuals are nothing more than suspected criminals and we need to treat them as such. If convicted, they should be put in the same prisons in which we place others who have committed offenses against our people and our laws.
Furthermore, resorting to military commissions - the alternative Senator Graham appears to support - is not appropriate. Although recently amended, the military commissions have not been meaningfully reformed. This is certainly the case if the government is not prepared to see its process, results, and actions tested at every instance by an independent judiciary. The military commissions do not uphold the principles of liberty that our Constitution serves - not as a source but as a testament. As Justice Jackson (serving as chief prosecutor during the Nuremburg trials) said, “the world yields no respect to courts that are merely organized to convict.”
This is all part of a larger debate concerning how to close the Guantanamo Bay detention facility properly. This led me to join over 125 Americans, including former members of Congress, diplomats, judges and prosecutors, retired military and government officials, foreign and national security experts, and bar leaders in putting forth Beyond Guantanamo: A Bipartisan Declaration. The Declaration advocates for the use of federal courts to try suspected terrorists and an end to the policy of indefinite detention without charge. Our chorus of voices could not have come at a more crucial moment.
The amendment proposed by Senator Graham demonstrates that the very nature of the balance of power that guards against unwarranted, capricious, and arbitrary abrogation of fundamental human rights, including liberty, may be decided in the context of transient executive priorities and in an environment of fear. This argument unfortunately assumes that the rights we hold dear are anything but inalienable. It is an argument that cannot be allowed to succeed.
Stephen Abraham, Lieutenant Colonel (Ret.), was the first officer to publicly criticize the Combatant Status Review Tribunals at Guantanamo, filing an affidavit before the Supreme Court in Boumediene v. Bush. He served with the Office for the Administrative Review of the Detention of Enemy Combatants in 2004 and 2005 and was in the United States Army Reserve as a military intelligence officer for more than 22 years. The Declaration, Beyond Guantanamo, was coordinated by the Constitution Project and Human Rights First. To learn more, go to: www.constitutionproject.org
JURIST Guest Columnists Laurie Blank of Emory Law's International Humanitarian Law Clinic and Gregory Gordon of the University of North Dakota School of Law say that the most glaring failure of the controversial Goldstone Commission Report on the Gaza conflict has gone unnoticed....
The Goldstone Commission Report on the January 2009 Israel-Palestinian conflict in Gaza — which comes before the United Nations today, November 4, 2009 — has been accused of failure on various levels. Many commentators argue that the Report fails the Israeli-Palestinian peace process. Some say it reflects a failure to understand the deeper historical realities of the Israeli-Palestinian conflict. Still others say it fails the originally conceived purpose of the United Nations Human Rights Council and fails the search for objective truth. Its most glaring failure, though, has gone unnoticed. The Report fails the law.
It does so by striking out in applying the law in three key areas. Strike One: the Report incorrectly claims Israel disproportionately attacked civilians. Strike Two: the Report unjustly accuses Israel of a disproportionate response to Hamas's attacks. Strike Three: the Report treats Israel and Hamas disproportionately by holding them to different standards.
Strike One
Jus in bello is the law governing conduct during war. One of its key principles is proportionality, which requires military personnel to take precautions in targeting the enemy to ensure that the expected civilian losses are not excessive compared to the anticipated military advantage. The commander's perspective at the time of the attack is the central focus. The law assesses whether his actions were reasonable given the information he had access to, taking into account the "fog of war." Proportionality is not measured after the fact by looking at actual civilian casualties or actual military advantages. If it were, no military could ever engage in any operations.
The Report turns proportionality's bedrock premise on its head. It relies substantively on information gathered after the fact and discounts contemporaneous Israeli intentions or actions and the surrounding circumstances. The Report also undermines its own legitimacy by automatically verifying one side's statements and impugning the other's. Israel's real-time information consists of mere "allegations," but retrospective information collected months later in Gaza consists of definitive "statements." Israel admittedly did not cooperate (given the commission's biased conception), but that cannot justify reliance on the wrong information.
Strike Two
Jus ad bellum is the law governing decisions to go to war. Article 2(4) of the U.N. Charter forbids the use of force without Security Council enforcement (Article 2(7)). One exception: Article 51 preserves the right to use force in self-defense. Jus ad bellum mandates that any act in self-defense constitute a proportionate response, meaning a necessary and reasonable means to counter the attack and eliminate future threats.
The Report confuses jus in bello proportionality (as explained above) with this jus ad bellum requirement of a proportionate response. Israel acted legitimately in self-defense to destroy Hamas's tunnels and rocket launchers. Hamas indiscriminately fired thousands of rockets at Israeli civilians for eight years. And yet, the Report does not even mention Article 51. More egregiously, it uses the incorrect assessment that particular Israeli attacks violated jus in bello proportionality to unfairly package Operation Cast Lead as disproportionate overall, a clear misapplication of jus in bello principles in a jus ad bellum framework.
Strike Three
The Report's (unfounded) legal conclusions disproportionately hold Israel and Hamas to different standards. It states unequivocally (but without factual substantiation) that Israeli forces committed grave breaches of the Geneva Conventions, such as willful killing and torture.
Article 85 of Additional Protocol I states that "making the civilian population or individual civilians the object of attack" and launching indiscriminate attacks—the very crimes Hamas committed, according to the Report—are indeed grave breaches. But the Report never considers that Palestinian armed groups committed grave breaches. Accusing Israel of "grave breaches" while failing to similarly identify Hamas' violations exposes the commission's bias to the core.
This uneven treatment pervades the entire report. For example, Hamas and Israel both had obligations to protect civilians in Gaza. The Report's single-minded focus on Israel, however, leads to absurd statements regarding Hamas's breach of those obligations when it used civilian buildings as command centers, munitions storage and rocket launch sites. While quick to condemn Israel flat out for violations, the Report merely suggests that Hamas's actions "would constitute" legal violations.
Reading the Report in an uncritical vacuum suggests that Israel abrogated its obligations under the laws of war. In reality, the main failure lies in the Report itself. The Report fails the law. Why does this matter? Because in maintaining a delicate balance between destruction of enemy capabilities and protection of innocent civilians, the law reinforces our basic dignity and humanity in the face of the horrors of war. We cannot afford to abandon it.
Laurie R. Blank is the Acting Director of Emory Law's International Humanitarian Law Clinic. Gregory S. Gordon is an assistant professor at the University of North Dakota School of Law and Director of the UND Center for Human Rights and Genocide Studies.
JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that a comprehensive solution to the status of Kirkuk must be reached soon lest it become for Iraq the type of intractable and fundamentally corrosive problem slavery had become for the United States by 1861....
As is commonly reported, when faced with the intractable problem of slavery while drafting the Constitution, the Founding Fathers were not able to come up with a solution that would please both the North and the South. So they submitted to the most natural of human impulses, that of procrastination, and punted the question so that it could be dealt with at a later time. Yet the longer the problem of slavery was permitted to fester, the more difficult it became to address and soon the question began to subsume all others, paralyzing legislative work in areas only remotely related to it.
While I don’t profess to be an expert in American history, by most accounts there was no reason that Kansas’ status as a free or slave should ever have been contested; it was not suitable for the type of agriculture upon which the southern states were built and where slavery thrived, and eventually this became rather clear. But, it seems, the slavery question had been allowed to fester for so long, feelings had become so strong, that something approaching an intrastate civil war erupted over this in Kansas before it was resolved. A similar situation exists now with Kirkuk.
Almost since the day that Saddam’s Ba’ath regime fell, the question of what to do about Kirkuk has remained unanswered. The Kurdish authorities in Iraq’s north claim (correctly) that Saddam Hussein engaged in a process of forced Arabization of this historically multiethnic city. They therefore call for this process to be reversed, for the population to revert back to what it was in 1957, and then for a referendum to be held in Kirkuk to determine whether or not its population would choose to join the Kurdish autonomous zone in northern Iraq, a referendum that the Kurds would almost certainly win if held on that basis. The extent of Kurdish influence in the Iraq constitution is apparent by the fact that there is an Article in the Constitution, Article 140, that calls for the implementation of the Kurdish solution.
Naturally, this notion of turning back the clock, and reversing decades of population change, has not sat well with those who would have to be forcibly removed in order to realize it, mainly the Arab and Turkoman populations. They have resisted the implementation of Article 140 largely successfully, to Kurdish dismay. What has resulted has been something of a de facto “Kurdization” of Kirkuk, with tens of thousands of Kurds returning to Kirkuk over the past half decade, but with no substantive implementation of Article 140. The question of Kirkuk has arisen several times, most notably in the provincial elections last year, but for the most part the problem has been met with procrastination rather than decision making on what to do about it by forming committees to study an issue or by delaying an election pending further developments and the like.
In the meantime, to say the least, views have hardened to the extent that the issue of Kirkuk is threatening to delay crucial national elections. The Arab and Turkoman populations of Kirkuk, supported by mostly Sunni nationalist forces in the Council of Representatives, have argued that the forced Kurdization cannot be permitted to stand, and the Kurds who have moved to Kirkuk since 2004 should not be allowed to vote there, but should instead vote in the province from which they came. The Kurds will accept nothing less than a vote in Kirkuk that is no different from the vote in any other province in the country, on the basis of the 2009 voter registry. Attempts to delay the issue one more time, whether via another commission or multiple polling districts- some for voters registered since 2004, others for voters registered thereafter, have not proven fruitful. The Council of Representatives has already missed its self imposed deadline for an election law by more than two weeks, and the United Nations is indicating that if no law is passed soon, the election cannot be held on time.
Much like Kansas, the issue of the national elections is only tangentially related to the fate of the city. The voter rolls for this election have nothing to do with the voter rolls for any future referendum on the city’s joining the Kurdish region, and various draft laws have made that amply clear. Equally importantly, the Kurdish faction in the Council of Representatives is a reflection of the Kurdish population, and it tends to vote uniformly on national issues. So if Kurds left the Kurdish city of Suleymania for the contested city of Kirkuk in 2007, for example, that merely reduced the number of Kurdish representatives in one place and added them in another. It barely affects the actual workings of the Council of Representatives because of the highly ethnic and sectarian stratified matter in which the Council operates (i.e. Kurdish representatives from Suleymania do not vote differently from Kurdish representatives from Kirkuk when they are in Baghdad).
Yet compromises have become difficult, because all sides to this dispute have become frustrated with the procrastination. The Kurds are frustrated by the national refusal to implement Article 140 of the Constitution, the nationalist Arabs and the Turkomen, have become frustrated by clear recent population shifts in favor of Kurds which they claim have been achieved by force. All sides seem to have made this into a litmus test of sorts, and none are willing to compromise, or, more importantly, to procrastinate further.
This is not to say the will to impose one more delay on Kirkuk’s fate will not be found. With the United States, the United Nations, Iraq’s clerical authorities, and the broader Iraqi population all clamoring for some sort of solution to break the impasse, it may well be that all sides will find something to reach an agreement on, a Missouri compromise of sorts, that delays the issue one more time. Even if this is the case, however, it has become abundantly clear that time is running short. A solution, a comprehensive one, must be reached, and compromises must be made soon, or Kirkuk may become to Iraq what slavery became to the United States in 1861.
Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government, experiences he describes in his book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at http://muslimlawprof.org.
JURIST Guest Columnist Christian Henderson of Oxford Brookes University (UK) says that although President Obama has made reforms in a number of areas since taking office last November, he has yet to distinguish his administration's policies on the international use of force from those of the former administration....
There was little doubt that when President Obama took over in the White House he was going to offer some stark contrasts to his predecessor. These have been visible both in style and in substance.
Firstly, there has been a widely recognized dramatic shift towards multilateralism by virtue of many diplomatic initiatives, including: a widely hailed speech in Egypt; a willingness to negotiate with Iran (despite the criticisms of many Republicans); a willingness to be tough with Israel; and the opening of certain barriers with Cuba. Could one imagine the previous incumbent being honoured with the Nobel Peace Prize for “his extraordinary efforts to strengthen international diplomacy and co-operation between peoples?” The now infamous “you are either with us or you are with the terrorists” proposition would suggest not.
Furthermore, President Obama has commendably identified different priorities and policy initiatives than his predecessor. These can be seen in the closure of Guantanamo Bay; its critical position on the use of torture; concerns regarding climate change; the reversal of the missile defence programme; and negotiations on nuclear disarmament.
However, a troubling aspect of Obama’s first year in the Oval Office has been the confusion generated over his position on the permissible limits on the use of force. Indeed, in this respect it must be questioned whether things are really so very different than they were under his predecessor.
The simplest way to discern a particular administration’s position on the use of force is by taking a look at its National Security Strategy. This document outlines the major national security concerns perceived by the administration and how it plans to deal with them. The 1986 Goldwater-Nichols Act requires the publication of this document by June 15 of a new administration, a deadline which President Obama has failed to meet. However, he is not alone here; no administration has ever met this deadline.
Consequently, and given the fact that he is not expected to produce one this year, we are left to analyze other sources to try and garner the position of the President on this issue.
Perhaps the most direct indication we have on Obama’s policy regarding the use of force is his response to a survey conducted by the American Society of International Law in which several questions were posed to the Presidential candidates in the run-up to the elections in 2008. Rather on point, one of the questions posed was ‘What views do you have regarding any legal constraints on US use of force?’
In answering this question much of what Barack Obama said may equally as well have come from the mouth of George W. Bush:
‘The U.S. has today and has always had the right to take unilateral military action, including the pre-emptive use of force, to eliminate imminent threats to our country and security. No nation or organization has a veto over our right of self-defense - and none ever will. In fact, Article 51 of the U.N. Charter recognizes this right of self-defense for every nation.’
Furthermore, whilst Obama went on to recall “the so-called Bush doctrine” and noted that “[t]he preventive use of force - in anticipation of potential threats that may not be imminent - is a different matter,” he also, and rather confusingly, was clear that “[s]ometimes, the preventive use of force may be necessary.” This was hardly a resounding rejection of the Bush doctrine.
Given a somewhat veiled criticism of preventive force but then making clear that it would be resorted to when “necessary,” it could be questioned whether this was the beginnings of an Obama doctrine of “necessary force?”
To date, there is nothing to suggest that Obama has shifted from this position since taking up residence in the White House. Indeed, whilst not offering anything more on his position, the President chose to classify the war in Afghanistan as a “war of necessity.” Whilst this was arguably not intended as a legal characterization, it does open questions as to where this fits within the international legal regulation of the use of force, and to whether President Obama has given this any thought.
Furthermore, it remains to be seen whether force will be “necessary” if, for example, Iran continues to antagonize and provide confusion as to the ambitions of its nuclear program. And if the US does decide that force is “necessary,” will it undertake such action with the other states that have shown concern over the issue, or will it be restrained if these other countries disagree with it? Whilst his administration’s overtures to multilateralism in other areas have been commendable, Obama was clear in the ASIL survey that “when we do use force in situations other than self-defense, we should make every effort to garner the clear support and participation of others.” (emphasis added) Clearly, he has not ruled out going it alone.
Additionally, the experience of Iraq has clearly not deterred unilateral assessments of evidence. “The experience of Iraq underscores that often perceived threats are not as real as they may seem, and our intelligence may be imperfect. But, when our intelligence is good and defensible we should not rule out the use of force.”
Given these mixed signals and the confusion they’ve provoked, a call is made to President Obama to develop a clear and principled approach to the use of force taking full consideration of the limits imposed by international law. This should come as soon as possible, preferably in the form of the National Security Strategy. Indeed, if what has been set out above are the early signs of an Obama doctrine emerging, more needs to be provided to set out the boundaries of this as, as it stands, it is no more acceptable than the Bush doctrine of pre-emption.
Under Bush, for better or for worse, we knew where he stood. Obama must now do the same.
Dr. Christian Henderson is a Lecturer in Law within the Department of Law at Oxford Brookes University, United Kingdom. His book, The Persistent Advocate and the Use of Force: The Impact of the United States Upon the Jus ad Bellum in the Post-Cold War Era, will be published by Ashgate in 2010.
JURIST Guest Columnist Margaret Maffai of the Cairo Institute for Human Rights Studies says that to prevent governments from hiring private military contractors to dodge their international human rights obligations, lawmakers in countries such as the US must ensure that no corporation or private contract employee can escape prosecution for human rights violations when they occur....
The American public and—to some extent—lawmakers snapped to belated attention in September of 2007 when a small force of private military contractors opened fire on a busy Baghdad traffic square, killing at least 14 civilians and wounding 20 more. A year later, the US Justice Department dutifully brought charges against the six shooters; Blackwater changed its name to Xe Services; and founder Erik Prince resigned amid some truly bizarre accusations including the murder of a whistleblower, a crusade to wipe out Muslims, arms smuggling, and a secret contract with the CIA to assassinate Al-Qaeda leaders. So that’s it, right? Renegade mercenaries brought to justice, the poster child for shadowy military corporations is no more, and the square-jawed, ex-Navy SEAL quietly ducked out of the CEO seat. Justice served. Problem solved.
Not exactly. Though most lawmakers and American citizens recognize, at least on a rational level, that Blackwater is not the beginning and end of the problem of private military and security companies (PMSCs), the indictment of the six gunmen implicated in the Nisour Square shooting seemed to bring a collective sigh of relief…and subsequent legislative stagnation. In truth, contractors are not unique to the Iraq War. They are not unique to the United States. They are not even unique to this century. Rather, PMSCs, operate in every corner of the globe, performing every conceivable support function from food service to infrastructure construction, to building security, to human resources management, to policing, interrogation, and intelligence. States have gradually surrendered their abilities to self-sufficiently perform their responsibilities in the areas of national defense and security in favor of employing private forces. Yet the international community and the individual national governments that employ contractors seem content to ignore this growing threat to human rights and state sovereignty, or at least pretend the threat has abated.
This find-sand-insert-head mentality denies the reality that PMSCs are so thoroughly intertwined with essential government functions the world over that even the most basic security, humanitarian, and infrastructure-building activities would be unsustainable without their support. Private companies, including one implicated in sex-trafficking in Bosnia in 2000, are still actively engaged in training Iraqi police forces and operating Iraqi prisons. South American countries including Chile and Columbia augment regular police forces with private security employees armed both literally (with deadly weapons) and figuratively (with the right to use force against citizens). Prison systems in the U.K., the U.S., and Australia have shifted over the past three decades to privately-run prisons which have been accused by human rights groups of providing insufficient protections for prisoners’ basic health, safety, and civil rights. Conflict between environmental protestors and private guards hired to secure business interests such as oil pipelines in Asia, Africa, and South America have resulted in violence. Though Blackwater made a convincing and convenient symbolic foe for the American justice system, which came late to the game and seems to have left early, it is hardly the be-all and end-all of corporate powers engaged in activities that threaten human rights and the State monopoly on the use of force.
To attempt to resolve the legal problems inherent in surrendering the State monopoly on the use of force to private companies with the indictment of six young men is to attempt to banish the Staten Island landfill with a few puffs of Febreze. Individual accountability is admirable and necessary, but it is no substitute for criminal and civil liability for corporate decision makers for and companies themselves. Moreover, providing criminal consequences solely for individual employees ignores the fact that many employees are, themselves, the victims of human rights violations such as fraudulent hiring practices, human trafficking, false imprisonment, and forced labor.
Even those measures aimed at prosecuting individuals for human rights violations have proven scattershot at best. The Military Extraterritorial Jurisdiction Act (MEJA), which grants federal jurisdiction over civilians charged with certain felony criminal acts committed abroad, has resulted in only a handful of prosecutions. MEJA applies only to contractors “supporting the mission of the Department of Defense overseas,” and therefore does not clearly extend to State Department contractors such as Blackwater. Similarly, a 2006 Department of Defense rule that makes DOD contractors subject to prosecution in military courts martial fails to reach State Department contractors such as Blackwater. Moreover, Reid v. Covert, a 1954 case, held that it is unconstitutional to prosecute American civilians in military courts martial. The case has not been overturned and the constitutionality of the new DOD rule has yet to be tested.
The only reasonable approach to regulating transnational corporations integrated at every level of state, local, and national government is an international commitment to devising comprehensive legislation that provides for criminal and civil accountability for individuals and corporate entities complicit in human rights violations. Most importantly, lawmakers should place clear limitations on the activities in which contractors may engage. There are some activities that are simply not appropriate for outsourcing. Elected representatives, not military commanders, must make rational, responsible decisions based on solid fact-finding about where to draw that line. Key government functions such as interrogation of prisoners, intelligence gathering and counterintelligence operations, and armed interaction with civilians in a foreign battle space are currently performed by private employees. Those with the power to guide corporate and governmental accountability need to consciously decide whether this is acceptable (it isn’t) and firmly impose boundaries on the private performance of inherently governmental functions.
The international community will have the opportunity to take on these definitional challenges within the next several years. The United Nations Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination—in consultation with researchers, watchdog groups, industry representatives, and other civil society groups—has issued a Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies. The Working Group will be approaching states in 2010 in a collaborative process to produce the official draft of the convention, which will be presented to the U.N. Human Rights Council for its consideration in September 2010. Although engaging with other countries in a common effort to address a common challenge represents a necessary commitment to ensuring that the rule of law follows corporations wherever they operate, I would ask that the United States go one step farther.
As a source country for many of the PMSCs operating in conflict areas and in the developing world, I would ask U.S. lawmakers to ensure that even while the legal status of paid soldiers is debated on the international stage, no U.S. corporation, and no U.S. employee will escape prosecution for human rights violations. Draft a comprehensive piece of legislation that spells out decisively what activities are permissible for outsourcing to private companies and reserves to the State—and to the State alone—the legitimate use of force. Kick up investigations into corruption, waste, and fraud in contract bidding and performance. Require companies that wish to bid on government contracts to enforce policies and procedures that ensure compliance with international human rights law and the law of armed conflict and train employees to respect local cultural and religious norms. Increase economic sanctions and exposure to civil liability for corporations that fail to comply with these minimum standards. As we increase our military and private military presence in Afghanistan, ostensibly to combat terrorism and restore the rule of law, we owe it to our national integrity to ensure that every representative of American force abroad operates within the reach of justice.
Margaret Maffai is currently working as a Program Development Officer for the Cairo Institute for Human Rights Studies, an Egyptian human rights NGO located in Cairo, Egypt.
JURIST Guest Columnist Mark Brown, holder of the Newton D. Baker/Baker and Hostetler Chair at Capital University School of Law, says that in the midst of the current furor over health care reform legislation we should remember that America's own revered Founding Fathers authorized, and sometimes embraced, governmental programs that offered essential services to the masses at low or no cost...
The ongoing debate over health-care reform has generated renewed interest in "socialism." Some claim that governmental competition in the health insurance industry is socialism; others insist it is not. For many on both sides of this divide, it seems, whether a “public option” is legitimate depends on how this definitional question is answered. After all, everyone knows that socialism is unconstitutional. It clearly contradicts the ideals of our Founding Fathers.
Actually, it doesn’t. Here’s a shock. Many of our Founding Fathers were socialists. They believed that “essential” services should be provided by government to the public at large for little or no remuneration. The costs of these services would be shared by the whole. This, by most modern accounts, is socialism.
The Constitution of the United States, drafted in the summer of 1787 in Philadelphia by some of the smartest men on this side of the Pond, proves this to be true. In that cherished document, the Founding Fathers demanded socialism. Section 8 of Article I, for example, empowers Congress “To establish Post Offices and post Roads.” That same Section also authorizes Congress “To raise and support Armies,” and even “To provide and maintain a Navy.” Although the text does not preclude privatization of these public institutions — indeed, they continue to include entrepreneurial elements to this day — the Framers understood that they would certainly have public, social elements as well. Alexander Hamilton, James Madison, George Washington, Benjamin Franklin, and John Adams — among others — all signed this document. They agreed that the new national government would facilitate communication and defense through taxation. They agreed that these essential services would not have to be purchased on the open market. They agreed that these services would not be limited to those who could pay fair market value.
The author of the Declaration of Independence, Thomas Jefferson (who skipped the Constitutional Convention in favor of traipsing off to Paris during that hot summer in 1787), also supported the fledgling Nation’s foray into socialism. Perhaps the greatest of all of America’s socialized institutions, the Nation’s modern highway system, was begun in 1806 by then-President Jefferson’s authorization of the Cumberland (National) Road. Transportation, too, was deemed to be one of the Nation’s essential services that could not be relegated to private industry.
The Congress did President Jefferson one better. It socialized the great bulk of America’s navigable waterways in the late eighteenth and early nineteenth centuries. The founding generation recognized early on that the national government needed the power regulate interstate commerce—this was written into Article I of the 1787 Constitution—and waterways provided the most important channel of commerce. The national government, using this authority, opened America’s internal waterways to commerce. These immense “social” highways proved a boon to entrepreneurial activities (and perhaps saved the Nation).
Communication, transportation and mutual defense provide only the most obvious examples of the Founding Father’s interests in socialized institutions. Contrary to some popular reports, many in the founding generation had “republican,” communitarian leanings. Our forefathers were not devout disciples of Adam Smith, let alone Herbert Spencer (who in the mid-nineteenth century infamously coined the phrase, “survival of the fittest”). They were pragmatists, capitalists and socialists, willing to try whatever was necessary to insure that the American experiment did not fail.
Of course, the Founding generation did not believe that every human endeavor benefited from governmental competition. The founding generation’s socialism only went so far. The Founders believed in private enterprise.
But it was not long before the Founders’ sons and daughters, grandsons and granddaughters, discovered the benefits of extending socialism beyond communication, transportation and national defense. Libraries, fire protection, police protection and education were all socialized to some extent in the nineteenth century. None of these developments replaced private enterprise—they merely insured that more Americans reaped the benefits.
Would the Founders have objected to these modern developments? No clear answer exists. Private educational institutions were known to the founding generation, and it obviously did not make any concerted effort to extend this benefit to the masses. But formal education was relatively unimportant in the late eighteenth century. I cannot believe that those Founders who favored a socialized communication network — the Post Office — would have necessarily frowned on an additional public institution designed to convey information. Nothing in the document signed in Philadelphia in 1787, at least, prohibits governments from opening public schools.
What about medicine? Would the Framers have objected to governmental competition in the health care context? At the turn of the eighteenth century, of course, the medical profession bordered on witchcraft; few Founders would have wished it on anyone. (George Washington, remember, was bled to death by his doctors. Dr. Benjamin Rush, another important Founder, routinely prescribed mercury for anything and everything.) Assuming that they thought the medical profession could do any good—which is doubtful—no one can say with any certainty whether the Founding Fathers would have rejected measures that made it more accessible. All we know is they wrote nothing into the Constitution to prohibit socialized medicine.
History teaches us that the Framers were not averse to socialism. They authorized, and sometimes embraced, governmental programs that offered essential services to the masses at low or no cost. Communication, transportation, and defense were what the Founders deemed essential at the end of the eighteenth century. That was their time. They did not call it socialism. They called it good government.
Mark R. Brown is the Newton D. Baker/Baker and Hostetler Chair at Capital University Law School.
JURIST Guest Columnist Witold ("Vic") Walczak, Legal Director for the American Civil Liberties Union (ACLU) of Pennsylvania, says that the First Amendment took a serious beating at the recent G-20 summit in Pittsburgh when police and National Guard troops silenced demonstrators using tactics reminiscent of repression methods used in martial law-era Poland in the early 1980s...
Law enforcement officials have, over the past decade, used gatherings of national and international leaders as license to suspend civil liberties. During the recent G-20 Summit, Pittsburgh proved to be no exception. The city was transformed into a police state where our most cherished freedoms, especially the freedom to dissent, were subject to the martial law-type tactics I witnessed behind the Iron Curtain.
While world leaders were quietly secluded behind closed doors, 8-foot-high steel and mesh fences lined most downtown streets. Six thousand police and National Guard troops manned checkpoints, roamed the streets in armored humvees, and were visible everywhere in large groups. In this militarized ghost town, neither common folk nor demonstrators ever got close to the dignitaries.
Before the Summit, local officials paid lip service to the First Amendment. But just as in Poland under martial law in the early 1980's, where only carefully controlled demonstrations sanctioned by communist-party bosses were allowed, protesters who lacked political ties to the establishment in Pittsburgh last week were threatened, harassed, and outright prohibited from peacefully expressing their opposition to G-20 policies.
The gamesmanship began early. Initially resistant to allowing any demonstrations during the Summit, the City eventually relented and permitted several mainstream groups, including former Vice President Al Gore’s climate group, to hold events in a local park.
But when two less politically-connected groups, Codepink and Three Rivers Climate Convergence (3RCC), renewed their requests to use the same park, the City refused. The rich and powerful were welcome in Pittsburgh, but those with edgier critical messages were not.
A federal judge eventually ordered the City to issue permits to Codepink and 3RCC, ruling that no good reason existed for precluding them. Unfortunately, the mistreatment and harassment of 3RCC and other protesters didn’t end with the judge’s order.
Police vehicles blocked 3RCC’s educational and food buses, preventing them from going to the demonstration. City officials permitted the group to leave its tent, artwork, and literature in the park overnight, but would not allow anyone to stand guard- claiming that standing guard would constitute illegal camping. The next day everything was gone. In a moment of surprising candor, the City’s spokeswoman admitted to a local reporter that the Public Works department had confiscated 3RCC’s property. With all necessary props gone, the climate-justice demonstrations never materialized.
Despite this intensive scrutiny, which included dozens of warrantless raids on activists’ homes and meeting places and countless pretextual traffic stops, only one person was arrested prior to the Summit – for giving a nickname instead of her birth name.
In the eeriest parallel to my experiences in martial law Poland, on two consecutive evenings the police inexplicably deemed assemblies of people peacefully gathered in a large, grassy University of Pittsburgh plaza to be “unlawful” and ordered everyone to disperse immediately. Police used an “LRAD” (first-ever civilian use of a military sonic weapon that can cause permanent hearing loss), shot pepper spray into dormitory stairwells, and fired rubber bullets and beanbags at fleeing students and curiosity seekers.
When those assembled tried to follow dispersal orders, many ran into the nearly 1000 riot police that encircled the group. The 100-plus arrestees included many curious, non-participating Pitt students and a few journalists. In this police state, apparently, government-sanctioned assemblies are allowed, but spontaneous demonstrations or gatherings, even peaceful ones, are not.
During the Summit, as expected, a few out-of-town kids broke a dozen windows. Police presence at the crime scenes were minimal, primarily because just a few blocks away the massive manpower surge was suppressing the peaceful gathering at the University. If a few of those police officers had simply stood on street corners around the area, even that little damage would have been minimized, Officers who happened to be standing in front of a targeted coffee shop during the two-person rampage discouraged any vandalism.
Pittsburgh’s use of harassment, intimidation, trickery, and indiscriminate arrests against demonstrators was fairly typical of the recent handling of other large important gatherings at the hands of various groups of law enforcement officials. At times when the imperative to allow freedom of speech and assembly is greatest – when national and international leaders convene – we impose martial law. Surely a more balanced model that provides security and respects civil liberties is possible.
Witold J. Walczak is the Legal Director for the American Civil Liberties Union of Pennsylvania.
JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that to really deliver on his recent declaration at the UN that "international law is not an empty promise, and that Treaties will be enforced," President Obama should have pledged aggressive action to withdraw erroneous US reservations, understandings, and declarations and to enact new legislation showing real domestic commitment to the international rule of law....
President Obama’s historic remarks at the United Nations on September 23rd entitled “Responsibility for our Common Future” are of particular relevance for those who have been waiting for the United States to comply more fully with its treaty obligations in the areas of human rights law and international criminal law. The President noted that some believe more generally that “America has acted unilaterally, without regard for the interests of others,” and that with respect to international law, “[t]he world must stand together to demonstrate that international law is not an empty promise, and that Treaties will be enforced.”
With apologies to the President, I offer (fictitious) follow-up remarks that were not recorded:
Today, I sent formal notice to the U.N. Secretary-General that the United States withdraws its erroneous prior “understanding” that Article II of the Genocide Convention merely reaches prohibited conduct when there is a specific intent to destroy a relevant group in whole or in “substantial” part. The treaty expressly covers an intent to destroy a relevant group “in part” and does not contain the word “substantial,” nor does any other international criminal law instrument that defines the crime of genocide as it exists under customary international law (such as the statutes of the International Criminal Tribunal for the former Yugoslavia [ICTY], the International Criminal Tribunal for Rwanda [ICTR], and the International Criminal Court [ICC]).
Clearly the unilateral prior understanding was in error. “The people of the world want change. They will not tolerate those who are on the wrong side of history” and “transformative change can be forged by those who choose the side of justice.” The United States will now assure that the Genocide Convention is “not an empty promise.” In order to permit enforcement of our treaty obligations under the Convention (which are otherwise later in time and which prevail against inconsistent legislation), I have asked Congress to delete Section 1093(8) of the U.S. genocide legislation. It is clearly incompatible with the object and purpose of the treaty and nearly assures that the United States will not be able to prosecute the crime of genocide and fulfill U.S. obligations under the treaty [see, e.g., 33 Vermont L. Rev. 717 (2009)]. Under present legislation, a perpetrator would have to have an intent to destroy “part of a group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity.” This is clearly improper, it could make our commitment under the treaty an empty promise, and it places the United States “on the wrong side of history.”
I have also asked Congress to finally enact legislation that incorporates “crimes against humanity” by reference, as we have done with respect to piracy and at least one set of laws concerning all violations of the laws of war.
With respect to U.S. obligations under human rights law, I have sent formal notice to the Secretary-General that the United States withdraws the prior U.S. Declaration No. 1 concerning partial non-self-execution of the International Covenant on Civil and Political Rights (which, in any event, did not apply to the mandate in Article 50), since the international community has long recognized that it is substantially incompatible with the object and purpose of the treaty, void ab initio as a matter of law, and of no lawful effect.
I have also withdrawn the attempted reservation to the Convention Against Torture that had declared erroneously that the U.S. “considers itself bound by the obligation under Article 16 ... only insofar as” the treaty’s prohibitions of cruel, inhuman, and degrading treatment match what is covered under the U.S. Constitution. The unilateral consideration was in error and, as the international community has long understood, incompatible with the object and purpose of the treaty and, therefore, has been void ab initio as a matter of law. I have withdrawn a similar putative reservation to the International Covenant that had rested on the same erroneous consideration. I will also ask Congress to pass new legislation that assures full coverage of the Convention Against Torture’s prohibitions of torture and cruel, inhuman, and degrading treatment. We also hereby make known to the world that we formally recognize that human rights law applies during times of armed conflict and that Article 2, paragraph 2 of the Convention Against Torture expressly affirms that “a state of war or a threat of war” cannot obviate the treaty-based prohibition of torture. We will fully comply with our obligations under all relevant treaties, including that of every member of the United Nations to assure “universal respect for, and observance of, human rights.”
With respect to U.S. obligations under international criminal law concerning genocide and crimes against humanity and the obligations of the U.S. under human rights law, “[w]e have reached a pivotal moment. The United States stands ready to begin a new chapter of international cooperation – one that recognizes the rights and responsibilities of all nations.”
Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston. His suggestions for presidential withdrawals of erroneous putative reservations, understandings, and declarations and for new legislation appear in recent writings such as “The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions,” 43 Valp. L. Rev. 1535, 1570-73 (2009); and “The Need for New U.S. Legislation for Prosecution of Genocide and Other Crimes Against Humanity,” 33 Vt. L. Rev. 717 (2009).
JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law says that the Obama administration can break the sixty-year deadlock in negotiations between the Israelis and the Palestinians by supporting the establishment of a special moot court - a quasi-official, transparent, privately funded tribunal that would render a non-binding advisory opinion on the two sides' competing claims...
Sixty years of negotiations between Israel and Palestine have produced nothing of substance. Yet the Obama administration still harbors the magical belief that forcing the two sides to talk to each other will enable them to resolve their differences.
It's not just that negotiations between Israel and Palestine haven’t succeeded, it's that they cannot succeed. Neither side can afford to be persuaded by rational, logical, or fairness arguments. It would be political suicide for a delegate to concede anything of substance in the negotiations and then go home and tell the public that he was suddenly persuaded that the other side was right.
But even if the negotiations involve exchanges and not just assertions, the issues dividing Palestine and Israel are incommensurate. For example, suppose Hamas offers to cease its rocket attacks out of Gaza and asks in return some of the land that Israel is occupying. Israel would undoubtedly reply that the rocket attacks are illegal and therefore Israel is not going to bribe Hamas to stop violating international law. By the same token, suppose Israel offers to move back to the border those portions of its Wall that encroach upon Palestinian territory, in exchange for Palestine rescinding its declaration of permanent war against Israel. Palestine will undoubtedly reply that the International Court of Justice has already advised that the Israeli encroachments are illegal and hence Palestine will not bribe Israel to obey international law.
Adding a third-party mediator, like the United States, will not break the negotiating deadlock. Anything the United States proposes, including seemingly neutral matters such as suggesting an agenda for the conference, will be viewed as political by one side or the other. The more neutral a United States proposal, the more deviously political will it be characterized.
Perhaps the core reason for the failure of negotiations is suggested by the Latin maxim nemo debet esse iudex in propria causa: no one should be judge in his own cause. In bilateral negotiations there are two judges who are judging their own cause.
If instead Israel and Palestine were trying to convince a neutral judge, their arguments would shift from the political to the rational. Fortunately we have a thousand years of experience with neutral adjudication: namely, courtroom trials.
I propose the establishment of a Moot Court to adjudicate the issues dividing Israel and Palestine. Its decision of course cannot be legally binding. It would be purely advisory. Nor by any means will the court itself be partisan like the one-sided Russell Tribunal on Palestine now being set up in Belgium. Our new court should be quasi-official: endorsed by governments, financed privately, open and transparent, with full media coverage, opening up a daily world-wide debate on the issues. No court like this has ever been constituted.
Israel and Palestine would probably oppose the Moot Court. But their approval should not be sought. The case is not about them; it’s about the mutual problem they have failed to solve.
Further explanation will be most efficient if I invent some Frequently Asked Questions and then proceed to give answers that will hopefully provoke readers to give answers that are better than mine.
(1) Will it be a private court or a government court? Neither; it will be an in-between court. Governments and NGO’s can participate in its creation as well as private individuals and groups.
(2) If its decisions are not binding, will anyone care about its final judgment? The interest in this trial, growing with each day of televised hearings, may be the most watched event of all time. Bloggers and news reporters will argue the merits of the case as it unfolds in the courtroom. Speculation about the final judgment will be immense. The educational value to the world public of the form, substance, and application of law will be unique and incalculable.
(3) How much money will be needed and where will it come from? $50 million will be needed, mostly for technology and translators. Twenty-five foundations and charitable trusts from around the world will be given an opportunity on a first-come-first-served basis to contribute no less and no more than $2 million each. These foundations will be listed prominently as the sponsors of the Court.
(4) Who will establish the Court and pick the judges? A group of Organizers, which can include government officials, foundation sponsors, and prominent international lawyers. George Mitchell, for example, should certainly be one of the organizers.
(5) Who will serve as judges? A panel of seven judges from around the world with reputations for wisdom, justice, and legal ability. Two judges will be partisans of Palestine and Israel. But their participation in the Court’s deliberations will assure Israel and Palestine that their positions will be fairly conveyed to the entire panel of judges.
(6) Will Israel and Palestine each appoint a partisan judge? They will have the right to do so, but if they decline, judges will be appointed for them.
(7) What law will govern the trial? The judges will apply international law and international principles of equity.
(8) Plaintiffs have the burden of production. Which country will be the plaintiff? Since Palestine wants to change the status quo more than Israel does, the plaintiff should be Palestine.
(9) Won’t Palestine argue that Israel should be Plaintiff because it has the burden of justifying its illegal occupation of Palestinian territory? The Court cannot begin by assuming either side is acting illegally. NOTE: The argument over who is the Plaintiff is just the kind of issue that brings bilateral negotiations to a screeching halt. Fortunately this Moot Court can be set up without necessarily paying attention to protestations coming from Israel or Palestine.
(10) How will the lawyers for Israel and Palestine be chosen? Israel and Palestine will be able to choose their own lead counsel. If they decline to make a choice, the Organizers will choose lead counsel and two assistants each from among the world’s best attorneys. Lawyers and judges may select their own clerks, who will be paid a modest salary by the Court.
(11) What will the lawyers and judges be paid? They will be paid a continuation of their usual income stream.
(12) Where will the court be located? It should be near the United Nations. The pre-trial location, which will only consist of a few brief meetings, can take place in any available courtroom in Manhattan, including courtrooms in law schools. The trial itself should take place on the campus of a college or community college at a reasonable distance from Manhattan.
(13) What about the pre-trial proceedings? The judges should meet with the attorneys to set schedules and deadlines. The plaintiff should be given a month to submit a Complaint; the defendant a month to submit an Answer and Counterclaims if any; the plaintiff two weeks to reply to the counterclaims. Full jurisdiction is presumed. The court should not entertain any motion to strike or dismiss. There is no statute of limitations. No summary judgment, no discovery, no interrogatories. Based on the papers filed, the court should draw up a list of some ten to thirty contentious issues and hold a hearing with the parties as to the sufficiency of the list. The shorter the list, the better the public will be able to keep track of the proceedings.
(14) What will the trial be like? The trial will follow the format of the average civil-law case, but with no jury. The biggest difference is that the case will be divided into the issues on the judges’ list. Each issue will be a mini-trial, with witnesses and arguments. Except for questions they may ask, the judges will not indicate their views on the issues. Witnesses may be called, including experts. Hearsay evidence will be allowed and no objections permitted, but the judges will not base any part of their final decision on hearsay evidence. Each side will be given at least a day for their opening statement and their summing-up. If the trial is well-managed it should not take longer than six months.
(15) Why should the Obama administration support this idea? The basic interest of the United States in the Mideast, as consistently expressed by Presidents Carter, Reagan, Bush, Clinton, Bush, and Obama, is the stability of the region. The specific issues dividing Israel and Palestine are not as important as a stable peace. Thus the United States would appear to have more of a stake in the legal process of the proposed Moot Court than in the specific conclusions the Court may reach. And since the Court’s final judgment is not binding, it’s hard to see that any harm would come out of implementing this proposal.
Anthony D. Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.
JURIST Guest Columnists Lawrence Friedman and Victor Hansen of New England School of Law say that while newly-announced White House policies on detentions and state secrets represent ostensible departures from Bush administration positions, they maintain the status quo in fundamental ways...
In the past week the Obama administration has made two policy announcements which suggest that President Obama's terrorism policy has come to resemble that of his predecessor. First, Obama announced that the administration would not seek additional authorization from Congress to indefinitely detain terror suspects being held at Guantanamo. Rather than seek additional authorization, the administration will continue to rely for its power over these individuals on the Congressional authorization to use military force enacted after September 11, 2001 (the AUMF). Second, the President announced a new policy regarding assertions of the state secrets privilege.
Indefinite Detention
As the U.S. Supreme Court has concluded, the AUMF likely provides the President with the authority he needs to detain the terrorism suspects at Guantanamo. Many if not all were captured and detained as a consequence of actions that flowed from President Bush’s implementation of Congress’s directives in the AUMF. At this point, moreover, Congressional silence on the matter suggests a tacit acknowledgement that the Obama administration’s view of the scope of the AUMF, like the Bush administration’s, is correct.
To be sure, the Obama administration is departing from the Bush administration in disclaiming reliance upon inherent executive power under the Constitution to justify the indefinite detention of terror suspects. This is all to the good. Absent a true emergency situation—one in which Congress is effectively disabled from acting to authorize Presidential action—the argument that the President has the inherent authority to hold individuals indefinitely without charge or trial is dubious.
It remains, though, that the administration’s current position does not answer the question whether the President will be able to exercise similar power over terror suspects in the future—suspects who could not reasonably fall within the scope of the AUMF. That we will capture such individuals is more than an idle possibility. Congress would be within its constitutionally-assigned role to begin to develop a framework for authorizing this and future Presidents to detain terror suspects, providing flexible guidance as to the circumstances in which this power will exist as well as its operative limits.
At present, neither the President nor the Congress quite knows what to do with the detainees at Guantanamo who for various reasons are not eligible for trial. This is a national embarrassment, and it might have been avoided if President Obama’s predecessor had recognized the role Congress should play in creating a structure for Presidential action. Congressional involvement might not have resulted in the blank check of authority President Bush appeared to desire, but engagement in the democratic process itself would have created a mechanism for greater accountability in respect to the measures the President ultimately elected to pursue.
Further, it might just have avoided the United States being responsible for a couple dozen individuals spending the rest of their days in physical isolation and legal limbo—suspected of the most profound wrongdoing, but ineligible for the most basic determinations of guilt and punishment.
State Secrets
In the second development, Attorney General Eric Holder announced a series of new procedures that must be followed before an executive agency of the federal government can assert the state secrets privilege in any litigation. President Obama’s predecessor was criticized for routinely invoking the state secrets privilege in a number of lawsuits over that administration’s domestic electronic surveillance program and its practice of extraordinary renditions. Many hoped President Obama would reverse or at least limit the controversial practice of asserting the privilege in these and like cases. But President Obama continued the practice of his predecessor in asserting the privilege, effectively shutting down the litigation of many controversial cases.
Perhaps in response to that criticism and to make good on his campaign promises, the President’s Attorney General has implemented a new process for internally evaluating the legitimate invocation of the state secrets privilege. Under this new process, all government agencies, including the intelligence community, must convince a team of Justice Department lawyers and the Attorney General that the release of information would present a significant harm to national defense or foreign relations. This is contrary to the current practice, which permits the head of a department or agency to make the determination that disclosure of information would be harmful to national defense or foreign relations.
There is no doubt that this new procedure, which goes into effect on 1 October 2009, could make it more difficult for an agency to invoke the state secrets privilege. First, the Attorney General, an official who is at least somewhat removed from the requesting agency, theoretically can make a more independent assessment of the issue. Second, a higher standard of harm must be shown in order for the privilege to be asserted. This procedure has been recognized as a step in the right direction by the American Civil Liberties Union and others who have been litigating for the release of protected information.
It is important, however, not to miss what is going on here. By unilaterally declaring a new policy for the implementation of the state secrets privilege, the President seems to be tacitly acknowledging that his predecessor asserted the privilege in situations where it was not justified.
At the same time, if the President alone can set the terms, scope, and procedure for how the privilege is to be invoked, what assurances do we have that this President is invoking it in a more legitimate way and, more to the point, what is to prevent this or some future President from again changing direction and improperly asserting the privilege? By keeping the decision on this issue within the sole prerogative of the Executive, Mr. Obama looks much like his predecessor.
Like the issue of indefinite detention, this is a situation that calls out for congressional action. Given the murky origins of the state secrets privilege, Congress can and should accept responsibility for codifying its dimensions. Codification through the deliberative process, too, would allow for greater accountability through Congress and the courts.
The true benefit of congressional involvement in national security matters is that adherence and respect for our constitutional values will not depend solely upon the personality of the person who occupies the Oval Office or upon the nature of the immediate crisis at hand. Rather, adherence to these constitutional values will be a function of the full engagement in the deliberative process of both political branches of our government.
Lawrence Friedman teaches constitutional law and state constitutional law and Victor Hansen teaches criminal law and criminal procedure at New England School of Law. Their book, The Case for Congress: Separation of Powers and the War on Terror, has just been published by Ashgate.
JURIST Special Guest Columnist Sam Sasan Shoamanesh, a legal adviser with the International Criminal Court (ICC) in The Hague and co-founder and Associate Editor of Global Brief, Canada's first international affairs magazine, says that in order for the ICC to be fully effective in protecting human rights and bringing an end to impunity, Middle Eastern nations and all other states that have not yet ratified the Rome Statute must embrace the ICC.
To date, the Arab world and the nations of what is traditionally known as the ‘Middle East’ (ash-sharq-l-awsat in Arabic, Ha-Mizrah Ha-Tikhon in Hebrew, Khāvarmiyāneh in Persian and Orta Doğu in Turkish), have had, for the most part, reservations in joining the International Criminal Court (ICC). The Hague based Court is the first permanent international judicial institution with jurisdiction to try individuals suspected of genocide, war crimes, crimes against humanity, and crime of aggression; the latter, once its legal definition is finally adopted (Article 5.2 of the Rome Statute). Many from the region, including Middle Eastern leaders and government officials, simply look at international (legal, financial, political, and military) organizations with great suspicion. They perceive them as mere tools of major ‘Western powers’, used (according to the argument) to advance the latter’s politics and national interests cloaked under the banner of, inter alia, protecting human rights. Bluntly put, these views and perceptions find their historical roots primarily in the experience of colonialism and foreign tampering in the Middle East, as well as in the politicized track record of the UN Security Council. The unfavorable Middle Eastern response towards the warrant of arrest issued by the ICC against the acting President of Sudan, Omar Hassan Ahmad Al-Bashir, is said to emanate from these same deeply entrenched perceptions.
Without diving into whether or not such general criticisms are valid, as it relates to the ICC these views are not only ill-founded but sadly are serving to hamper the advancement and protection of human rights for the peoples of the region. And tragically, this in a ‘land’ that has historically experienced countless conflicts and that continues to lay witness to the suffering of millions of its inhabitants whose fundamental human rights have and continue to be trampled upon. A clearer understanding of the legal machinery and independence of the Court will reveal that there is in fact a symbiotic relationship between the ICC and Middle Eastern states, and more generally all sovereigns earnestly concerned about the cause of human rights and ensuring egregious international crimes do not go unpunished. The opportunity for this mutually fruitful partnership is yet to be fully seized.
To date, the Hashemite Kingdom of Jordan is the only state in the region which has ratified the founding treaty of the Court (Rome Statute: EN, FR, Arabic), thus becoming the sole representative of the ‘Middle East’ at the ICC. This status quo must change. This commentary by design is aimed at responding to some of the anxieties and misperceptions which to date have prevented the region's nations from assuming their rightful places amongst the 110 and growing States Parties of the ICC.
1.0. Misconceived reservations about ICC ratification, jurisdiction, and independence
Misconceived notions that the Court is political or easily manipulated by the ‘Great Powers’ representing a threat to state sovereignty are ill-informed and emanate mostly from misapprehensions of the Court’s legal machinery. There are, in fact, layers upon layers of protection existing in the legal edifice of the Court serving to guarantee the ICC’s independence and respect for state sovereignty. 1.1. The complementarity principle
To cite but a few examples, State Parties to the ICC, in the first instance will always exercise jurisdiction over their nationals even if they are accused of crimes falling within the mandate of the Court. The complementarity test under Article 17 of the Statute, in practice, means the ICC operates as a court of last resort, giving primacy of jurisdiction to national courts (see para. 10 of the Preamble and Article 1 of the Statute), exercising its jurisdiction only if the State Party is “unwilling or unable to genuinely” carry out investigations or prosecute violations of the specific crimes falling within the ambit of the Court’s jurisdiction (Article 17.1(a)-(b)). “Sufficient gravity” of the crimes must also exist to warrant the Court’s intervention (Article 17.1 (d)).
Further, the contention that the complementarity test will favor Western nations that have well established legal systems is not entirely accurate. The complementarity test is not gauged against a universal gold standard, but rather, guided by the criteria outlined in Article 17 of the Statute, it is applied on a case-by-case basis based on the specificities of the legal system in question. In effect, the Court fully respects the autonomy of national legal systems. Yet of course, the proceedings at the national level must be genuine, impartially and independently carried out “with an intent to bring the person concerned to justice,” and they must respect the “principles of due process recognized by international law” (Article 17.2). Otherwise, the state in question will be considered “unwilling” to carry out the investigation and where warranted, the prosecution. The “inability” to investigate or prosecute test outlined in Article 17.3 of the Statute concerns the “total or substantial collapse or unavailability” of the national judicial system, or relates to situations where the system is “unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” The legal requirements of Article 17.3 are designed to respond to, for instance, failed state situations or other cases where internal political dynamics and reality on the ground do not make it possible for lawful prosecutions to be carried out. Other situations where the state may be considered unable to adequately investigate and prosecute is where the domestic legal environment is operating in the midst of an active conflict or post-conflict situation. The complementary assessment does not, therefore, aim to scrutinize the substantive nature of a given domestic legal system.
Additionally, the complementarity principle in practice would translate into a situation where nations that have ratified, in order to strengthen their primary jurisdiction, will be inclined to initiate legislation and projects aimed at fortifying the domestic legal landscape and incorporating international crimes under the Court’s jurisdiction into domestic law – clearly a positive ancillary consequence of ratification in the overall aim of promoting human rights.
Lastly, it is important to highlight an important point contained in the Policy Paper of the Office of the Prosecutor. Guided by the wording of the preamble (para. 4) and other pertinent provisions of the Statute (Article 5.1), ICC prosecutions are solely concerned with “those who bear the greatest responsibility” for the “most serious crimes of concern to the international community” within the Court’s jurisdiction. In effect, this means that the Office of the Prosecutor as a general rule will only be interested in the ‘big fish’ and will not be investigating every potential violation committed by actors positioned lower in the hierarchy. This policy is yet another ICC reality which minimizes the Court’s scrutiny into otherwise sovereign domain. The “sufficient gravity” principle encapsulated in Article 17.1(d) of the Statute, again, further confines the intervention of the ICC to only exceptional cases where a clear threshold of “gravity” of the acts constituting the crimes in question and the degree of participation in their commission have been reached to justify further action by the Court. 1.2. Preconditions and exercise of jurisdiction
The ICC exercises its jurisdiction over natural persons and attributes individual criminal responsibility to those who: either (i) as nationals of a State Party have committed offences within the jurisdiction of the Court, or (ii) committed such crimes in the territory of a State Party. Further, the Court exercises its jurisdiction rationae temporis and without retroactive application. Therefore, the Court can have jurisdiction only with respect to crimes committed after the entry into force of the Statute (1 July 2002). As it concerns nations that ratify after the entry into force of the Statute, the Court can exercise jurisdiction over crimes committed after the date of ratification by that state. An exception to this rule is provided for in Article 12.3 of the Statute where a state can make a declaration under the provision to bring itself under the jurisdiction of the Court with respect to a crime(s) previously committed (with 1 July 2002 being the cut off date).
The Court may exercise its jurisdiction when a situation is referred to the Prosecutor by a State Party or the Security Council, or finally, when the Prosecutor initiates an investigation proprio motu (on its own accord) (Article 13). Where the ICC Prosecutor initiates an investigation on his own, in all such instances, it is up to the Pre-Trial Chamber of the Court consisting of a panel of international judges – a separate and independent judicial organ – to review the evidence and determine whether or not the Court has jurisdiction and whether a “reasonable basis” exists for the Prosecutor to proceed with investigations (Article 15.3-4). It is also the Pre-Trial Chamber which decides if a warrant of arrest is to be issued in response to an application filed by the Office of the Prosecutor (Article 58). Even where an investigation is undertaken by the Prosecutor, within a defined period, the State Party whose national is under investigation can inform the Prosecutor it is or will carry out its own investigations of the crimes in question. If done in good faith, the State Party can then undertake the prosecution at the national level. Further, the prohibition against double-jeopardy is entrenched in the ICC Statute, so that a person who has already been tried by a national court for crimes falling within the jurisdiction of the Court cannot be re-prosecuted by the ICC (Article 20). Again, the trial at the national level has to be fair and impartial and not merely a ploy to shield the person from criminal responsibility.
More importantly, even when the Security Council refers a situation to the Prosecutor acting under Chapter VII of the UN Charter (Article 13(b)) – as was the case with Sudan for instance – contrary to popular belief, the Prosecutor is not automatically bound to follow the referral. The Office of the Prosecutor will independently assess the information and evidence received from all sources and gauge whether there is a “reasonable basis to proceed” to initiate an investigation (Article 53). In the words of the Office of the Prosecutor: “[t]he triggering mechanism does not in any way change the way the Office selects situations, cases or individuals to be investigated. It does not make a difference whether the situation is referred by a State Party or the UNSC [United Nations Security Council]. The selection of situations, cases inside the situations, and persons to be investigated is always an independent prosecutorial decision based on the Statute and the evidence collected.”
These independence mechanisms are the sine qua non of the Court’s legitimacy and credibility. In sum, the Court operates independently de jure and de facto.
The above should therefore clarify for the Middle Eastern critic why at this juncture in the Court’s evolution the ICC could, for instance, pursue cases related to the 30 African states, or the other 80 nations that have ratified the Court’s Statute, but not in other situations. It also bears noting that in the past, the Office of the Prosecutor has scrupulously analyzed allegations of war crimes, genocide, and crimes against humanity allegedly committed in Iraq by the UK army (the UK is a State Party). The Office of the Prosecutor has even determined that based on “all the available information, […] there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely willful killing and inhuman treatment” (“War Crimes”: Article 8). Yet having conducted a thorough analysis, it concluded that the Article 17 gravity threshold was not met in the case. “4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment” by the UK army were identified based on the materials before the Office of the Prosecutor. Further, it was determined that the complementarity test was satisfied in the case; meaning that “national proceedings [in the UK] has been initiated with respect to each of the relevant incidents” under study. Additionally, in April 2008, the Chief Prosecutor of the ICC confirmed his office was analyzing the situation in Afghanistan – a State Party –, and amassing information to gauge if and when to commence official investigations into alleged crimes committed on Afghan territory. Recently, he has echoed his previous statement stating that the office is gathering data on possible war crimes committed in Afghanistan relating to both NATO and Taliban forces. Again, outside of the African continent, the Office of the Prosecutor is also busy conducting preliminary inquiries in Georgia and the Gaza Strip. It is interesting to note that the fact-finding mission mandated by the UN Human Rights Council to investigate the Gaza War of 2008 has just concluded that there is evidence indicating that both the Israel Defense Forces and Palestinian armed groups committed actions amounting to war crimes and potentially crimes against humanity. The 574-page report of the mission, headed by Justice Richard Goldstone, recommends the Israeli and Palestinian authorities to undertake “credible” investigations and prosecutions into alleged violations and report their progress to the Security Council within six months. More interestingly for the purposes of this commentary, the report concluded that upon expiration of the deadline if the parties have failed to oblige, the Security Council should refer the situation to the ICC Prosecutor. Whether or not this transpires will be known in time, and will depend on the workings of the Security Council.
Therefore when objectively examined, the issue is not a question of a ‘bias’ in the modus operandi of the Court, but simply the reality of the Court’s jurisdiction limited primarily by the very fact that Middle Eastern states – except Jordan – amongst other nations have to date failed to ratify. This limiting reality can change for the benefit of all who genuinely value human rights as more nations ratify the Statute.
2. Benefits of ratification
The grim lessons of the region’s modern history, further complicated by its geopolitical reality and strategic importance, combine to support the notion that ICC ratification can in fact prove beneficial by acting as a deterrence mechanism and by providing legal recourse in the event that nations from the region fall victim to aggression by neighboring states. Examples of disparaging regional interstate conflicts in recent memory include: Iraq’s invasion of Iran and Kuwait in 1980 and 1990 respectively, Israel’s offensive on Lebanon in 2006, and the wars waged against Israel in the 1948 Arab-Israeli War or the Yom Kippur War to name a few. Furthermore, the ICC could protect the region's states from external threats similar to the Persian Gulf War in 1990 or the 2003 American invasion of Iraq.
By becoming a State Party, Middle Eastern states would facilitate the jurisdiction of the Court over crimes covered by the Statute committed by a foreign military force or armed groups on their territory, even if the aggressor(s) are not nationals of a State Party. A real life example which highlights the importance of ratification is the 2008 South Ossetia War. Georgia was a State Party at the time the conflict broke out, during which the Russian military was engaged on Georgian territory. The fact that Georgia has ratified the Statute has meant that the Court has territorial jurisdiction and could potentially investigate alleged crimes committed on Georgian territory by all sides to the dispute. This includes the Russian army, notwithstanding the fact that Russia is not a State Party of the Court. The Georgia matter is currently under analysis by the Office of the Prosecutor.
Of course, ratification would also mean that should States Parties commit the crimes listed in the ICC Statute in their own territory or elsewhere against their own populations or the nationals of another state, whether a State Party or otherwise, their own actions would become subject to examination under the Court’s jurisdiction – again a positive result if we are genuinely committed to protecting human rights and bringing an end to impunity. In each scenario, the complementarity test and other questions of admissibility must be positively answered before the Court will exercise its de facto jurisdiction. Nonetheless, one can see how ratification could (i) have a deterrence value for would-be aggressors, (ii) provide an avenue for judicial recourse for violations committed by internal and external actors, and (iii) help cultivate a culture of human rights and awareness of international criminal law in the region. 3. Rights of the defense at the ICC
Yet another anxiety contributing to reservations of joining the ICC is the question: what happens to the state’s nationals once implicated in proceedings before the Court? What kind of legal representation and defense are they afforded? These are legitimate questions that any sovereign should pose before surrendering its nationals to another jurisdiction to be tried.
From a legal framework, the Court’s legal texts are replete with safeguards concerning the rights of the defense. Fundamental guarantees are found in the Statute, which include, inter alia, the codification of the principles of Ne bis in idem (Article 20); prohibition against the creation of ex post facto laws (Article 22); grounds for excluding criminal responsibility (Article 31); and presumption of innocence (Article 66). The rights of the accused to a public, impartial and fair hearing, amongst other minimum guarantees are provided in Article 67 of the Statute. Article 67 rights of the defense are consistent with international instruments providing the same guarantees (e.g. Article 14 of the International Covenant on Civil and Political Rights, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms). The exercise of such rights is effectively assured by the judicial control of the Court’s Chambers. Moreover, Rule 20 of the Rules of Procedure and Evidence places a positive obligation on the Registrar of the Court to organize “the Registry in a manner that promotes the rights of the defense consistent with the principle of a fair trial.”
Building on the lessons acquired from the experience of hybrid special courts and the UN ad hoc tribunals, with the aim of achieving ‘equality of arms’ between the prosecution and the defense, the ICC has in place the most robust systems. From ensuring that defendants freely choose their lead counsel from a pool of qualified independent lawyers, and benefit from capable legal teams reinforced by substantive legal assistance provided by the Office of Public Counsel for the Defense, to a structured favorable legal aid scheme and other support services, the defense pillar at the Court is alive and well, and continues to be bolstered. Admission to the Court’s List of Counsel eligible to represent suspects and accused persons in ICC proceedings is open to all lawyers worldwide who meet certain quality assurance requirements (see Rule 22 of the Rules of Procedure and Evidence: EN, FR, Arabic; and Regulation 67 of the Regulations of the Court: EN, FR, Arabic). Qualified lawyers from the Middle East and beyond ought to apply to the Court’s List of Counsel to get involved in ICC proceedings first hand, contribute to the Court’s legacy, and carry the knowledge acquired back to their home jurisdictions. Lawyers need not be citizens of a State Party to apply to the Court’s List of Counsel.
Since its genesis, the ICC has aimed to be a model judicial institution capable of delivering quality justice. The ICC has in practice demonstrated that it is cognizant of the fact that a strong defense pillar at the Court and the conduct of fair trials before an independent judiciary that pay homage to the rights of the defense are pivotal in ensuring that the virtuous principles and goals defined in the preamble of its Statute can be achieved. Moreover, a viable defense and the conduct of fair trials are critical to achieving universal jurisdiction – an important aim of the Court. Lastly, trials that are conducted in conformity with the highest judicial standards and respect for due process rights of defendants also prevent the adverse result that would otherwise exist where warranted convictions are obtained, yet victims are re-victimized and their ordeals cheapened by critics of the system who would label the proceedings as partial or tainted with due process failures. The Court is very much in tune with these concerns. While there is always room for improvement, an objective assessment of the record to date illustrates that the Court makes every effort to avoid such an undesirable outcome, ensuring that individuals implicated in proceedings before it benefit from fair trials. The stay of proceedings by Trial Chamber I in the case of Prosecutor v. Thomas Lubanga Dyilo is a case in point. The judges of the Trial Chamber in that case ruled that the Prosecution’s inability to disclose to the defense exculpatory materials in its possession obtained through confidential agreements with the United Nations pursuant to Article 54.3(e) of the Statute had worked to the detriment of the rights of the accused to a fair trial. On appeal, the Trial Chamber’s decision to stay the proceedings was upheld by the Court’s Appeals Chamber. A myriad of other examples are to be found in the growing ICC jurisprudence and in the policies and modus operandi of the Registry of the Court.
Consequently, any person ever brought before the Court will be afforded all the requisite facilities, legal assistance, and safeguards in an effort to ensure he/she undergoes a fair trial.
4. Lack of judges trained in Islamic traditions
A further expressed concern is that there are no judges at the ICC trained in Islamic law. The argument is as follows: given that ICC judges are not accustomed to the intricacies of Islamic law, they will judge Middle Eastern states – whose legal systems are for the most part influenced by the Shari’a – unfairly. Again this is a misconception. The hierarchy of applicable law at the Court is provided in Article 21 of the Statute, which stipulates that in the first instance, the legal texts of the Court should be applied, second, followed by international treaties and principles and jurisprudence established in international law where appropriate, and lastly, when the other two sources are exhausted, reference can be made to the general principles of law as found in national laws of legal systems of the world. Hence, a judge’s religious training or personal background are immaterial to the extent that these have no real bearing on what law should be applied. This means that no matter the personal belief of a particular ICC judge, whether secular, Muslim, Jewish, or Christian, he or she is strictly bound to apply the sources of law defined in Article 21 of the Statute and in the sequence required. At best, a judge’s theological training or background at the national level may have a bearing when a last-resort reference is made to national laws. Even then, national laws could be relied upon provided they are not inconsistent with the Statute, “international law and internationally recognized norms and standards.”
For what it is worth, should any Middle Eastern state become a State Party, it will have the right to nominate its own candidates for election as ICC judges (Article 36). The Statute also requires that judges are selected in view of representation of all legal systems of the world as well as equitable geographical considerations (Article 36(8)). Hence, it is fair to conclude the possibility of having such nominees elected are rather probable. Moreover, membership with the Court will mean Middle Eastern prosecutors, judges, lawyers, and other relevant professional can apply and take up vacancies in all organs of the institution, seeing firsthand how the ICC operates while having the opportunity to contribute to the Court’s development.
5. The ‘cultural relativism’ hurdle
International humanitarian law and international criminal law are designed to deter and minimize the suffering and occurrence of war, and to hold those responsible for the commission of the most serious crimes of concern to the international community accountable for their actions. The unsightly face of war is universal. The same is true for the laws created to bring method to the madness of war. Hence, to the honest observer, the position that such laws have ‘Western’ orientations and therefore, should not be applied to Eastern Islamic societies does not withstand the slightest objective scrutiny. This holds particularly true in light of the fact that the Qur’an itself, apart from embracing the notion of “justice” as one of its core principles, contains countless provisions itemizing unacceptable conduct during hostilities. For instance, under Islamic Law in the ‘Siyar’ (Arabic for ‘behaviour’) war can only be waged in self-defence (Qur’an 2:190, 193). Further, Islamic scholars assert that concepts such as the ‘principle of distinction’, that belligerents must distinguish between civilians and combatants; the principle of ‘necessity and proportionality'; the proper treatment of prisoners of war (Qur’an: 9:5, 47:4) and the prohibition against their executions; and the prohibitions against enslavement, plunder, destruction of civilian objects, and the use of poisonous weapons are all Islamic doctrines enshrined in the Qu’ran and the Hadith, oral traditions based on the spoken words and conduct of Prophet Muhammad during his lifetime.
To claim, therefore, that certain provisions of the Statute may not be compatible with Islamic law (Shari’a) – applied strictly in only a handful of Middle Eastern states – and therefore, they cannot ratify the Statute is a patently untenable position to maintain. In particular when countless States Parties of the ICC have Islamic Constitutions; Islam as their official religion, or as the religion of the majority of their population (circa 50 percent or more). The table below lists these countries, with other relevant details.
*NB: Additionally, two other States Parties to the ICC that have substantial Muslim populations are Bosnia and Herzegovina (40 per cent) as well as Tanzania (35 per cent).
In view of the above, should Middle Eastern nations adopt a rigid position vis-à-vis ratification, while the 110 member states of the Court and growing will embrace the 21st century and reap the protections afforded by the ICC, the region will find itself exposed and isolated from an increasingly interconnected international community. Finding themselves positioned in a historically quarrelsome region, it is in the interests of Middle Eastern nations to recognize that joining the ICC is in fact in their national interests. Should such states wish to import into ICC law elements of, inter alia, Islamic jurisprudence, -rationale and -approach which are in conformity with universally accepted legal norms, they can do so by engagement and involvement, not by alienation and isolation.
While heads of states or other senior officials of governments in the Middle East and elsewhere might feel anxious with respect to this provision, failing to ratify on this ground alone cannot possibly be in line with a genuine commitment to the cause of human rights both domestically and internationally. Surely we can all agree the principle of immunity in international law should not be used as a shield to protect the hostis humanis generis from due prosecutions.
To conclude, certainly it is a most notable position to advance that we want justice applied equally to all those who commit crimes which shock the human conscience. We must equally understand that if there is any international judicial institution which has the right history and founding, and the potential to be a truly international court of criminal justice, it is the ICC. It is not by rejectionism that we can better ensure the balance of international justice and rule of law remains impartial and free from political interference, but by involvement and support for the Court. It is through ratification and through helping the Court achieve universal jurisdiction that the net of the ICC can be cast ever wider to catch all those who are criminally responsible whether at home or abroad.
The Middle East offered the world the first legal code crafted by Urukagina in 2300 B.C.; the Code of Hammurabi (1790 B.C.); the Cyrus Cylinder (539 B.C.), considered to be the first charter of human rights in recorded history, and the Treaty of Kadesh (1274 B.C.), the world’s first international peace treaty. The region has been the birthplace of many of the major canons of human morality – Zoroastrianism, Judaism, Christianity, and Islam to name a few – carving human philosophical reflections over the ages into rudimentary yet fundamental questions of ‘right’ and ‘wrong,’ detailing codes of acceptable human conduct (i.e. Ten Commandments…). In the 21st century, the region can stay true to its prolific beginnings by embracing the International Criminal Court, truly a first in its class and for its time. By so doing, Middle Eastern states can dramatically change the status quo for the benefit of the region and the cultivation of a culture of respect for human rights globally. With active participation they can help make the international face of the Court shine ever brighter with diversity, all the while assisting it to better achieve the notable aims outlined in its founding treaty.
The world is a complex place dominated by realpolitik considerations. By shedding traditional self-defeating rejectionist postures and by espousing the ICC as State Parties, those in power in the Middle East can enhance the region's standing in the international legal order, and more importantly, they can demonstrate whether they are truly committed to the protection and promotion of the inviolable human rights of their citizens. Imagine an international criminal justice system under which “no ruler, no state, no junta and no army anywhere will be able to abuse human rights with impunity.” It is by ratification that Middle Eastern states and all nations that are yet to embrace the ICC can bring us ever closer to this ideal existence. It is only then that we can finally proudly proclaim that we as citizens and nations of the world recognize the inviolability of human rights and will not allow violations and violators to go unpunished.
Sam Sasan Shoamanesh is an international lawyer and has worked for several international legal institutions. He is a legal advisor with the International Criminal Court (ICC) in The Hague, Netherlands, a position he has held since 2005. He is the co-founder and Associate Editor of Global Brief, Canada’s first international affairs magazine. The views expressed in this article have been provided in the author’s personal capacity, and do not necessarily reflect the views of the ICC or Global Brief.
JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that justice would be better served by former Bush Administration officials if they would talk to federal prosecutor John Durham about the administrative missteps that led to detainee torture at Abu Ghraib and Guantanamo Bay instead of saving their stories for crowds at high-profile conferences....
Upon returning from “After Guantanamo,” a debate held on the eighth anniversary of 9/11 at Case Western Reserve Law School where members of the former administration regaled the audience with stories about the mistakes made and the arrogance demonstrated by persons with whom they had worked on the issues of detention, interrogation, and military commissions, something occurred to me...
With the bipartisan appointment of John Durham (first by Mukasey and now by Holder) to investigate and prosecute low-level CIA types with regard to departures from the bad legal advice given to them by the torture lawyers, it would seem preferable for the former administration members to tell their stories to the federal prosecutor rather than to audiences at conferences. After all, the stories of arrogant disdain for military lawyers (“they can’t be good or else they would be in the private sector” was a comment reportedly said by someone of consequence in the prior administration), the sheer lack of knowledge of the basics of military law (Manual for Courts-Martial, anyone?), and the general indifference of those tasked with developing detention, interrogation, and military commission policy in the prior administration to the changes in military law that have occurred since Ex parte Quirin were simply appalling.
Names were not named in the conference, but names should be named to John Durham. He is permitted to “follow the facts wherever they lead,” but if those lawyers, other civilians, and uniformed types who know where the dogs are buried refrain from coming forward, they will make the task more arduous than it needs to be.
Everyone who has a story is a witness in piecing together what really went on. Every lawyer has also sworn an oath to be an officer of the court and is under an ethical duty to refrain from abetting crimes. Help John Durham find the facts.
But beyond legal or ethical obligations, the real question is of what these architects of detention, interrogation, and military commission policy are made of. Are they made of the stuff that led Specialist Darby to clearly see what was wrong with detainee treatment in Abu Ghraib, thus prompting him to provide Military Investigators with the incriminating photos? Or are these persons made of the stuff of cowards that hope this will all go away if they do not say anything to anyone– posturing in public and cowering in private?
As we all know, in DC there are crimes and there are cover-ups. Every time a document is released with blackened pages provided by some intelligence or military office of the government, we know that the censorship is based partly on classic bureaucracy; not on national security alone.
I would go a step further. As we all know, a criminal prosecution against six lawyers of the previous administration has started in Spain. Having seen many of them valiantly defend the apocryphal work they did, surely they would seek to defend their reputations by flying to Spain to voluntarily advocate for their own honor in front of the Spanish court. Or is that too much to ask of torture lawyers? I am sure tickets to Spain can be bought at a reasonable price online.
If that is too much to ask, then man up and call John Durham; especially if you are a professor playing a role in shaping future lawyers and other students minds. Surely one can expect these persons to be honorable men and women and help John Durham. Is that too much to ask? Or have the mighty been brought low by what they know?
If your memory does not serve you as to how to reach John Durham, just try the Department of Justice main switchboard number at 202-514-2000. I am sure they will put you through.
Benjamin Davis is a professor at the University of Toledo College of Law
JURIST Guest Columnist Raneta Lawson Mack of Creighton University School of Law says that in order to reconcile the procedural disparities inherent to the collision between inquisitorial and adversarial systems, the European Arrest Warrant can and should provide mechanisms to obtain dismissal of warrants issued based upon processes that were undertaken without notice to the person and which a reasonable person under the circumstances would not expect to occur...
The recent case of Deborah Dark, a grandmother currently residing in the UK and wanted in France for a crime she was convicted of in absentia 20 years ago, exposed some procedural loopholes in the European Arrest Warrant (EAW) surrender policies. Ms. Dark was arrested at the French border in 1989 and charged with a drug offense. After a trial in France, she was found not guilty and released from jail, and she returned to her home in the UK. At that point, Ms. Dark likely had no reason to expect that her case in France would proceed any further. From her perspective as a citizen of the UK, the term "acquittal" probably meant finality just as it would to any person with a common law orientation. Indeed, at that time, except in very rare circumstances, an appeal from an acquittal was not possible in the UK, and the finality of such judgments was recognized as a fundamental component of due process and liberty guarantees.
However, the inquisitorial system in France permits the prosecutor to appeal acquittals in certain cases as a matter of course. Therefore, the fact that the prosecutor appealed Ms. Dark's case would not have been unusual in the French system, and likely would have been expected in certain cases. But, only individuals familiar with France's inquisitorial system would have had this knowledge or expectation, and that category of individuals seemingly did not include Ms. Dark. Moreover, to compound the discrepancy between the UK and French criminal justice systems, it appears that the French courts did not provide Ms. Dark with notice of the appeal. In 1990, Ms. Dark's acquittal was overturned. She was convicted in absentia and ordered to serve six years for the drug offense. In 2005, France obtained an EAW for Ms. Dark's surrender to serve the sentence that had been imposed 15 years earlier.
Ms. Dark first became aware of the EAW when she was arrested in Spain in 2008. She spent one month in prison in Madrid before the Spanish court refused to execute the EAW because of unreasonable delay and the potential for unfairness to Ms. Dark. She was released and returned to the UK, where she was arrested yet again. The UK court similarly refused extradition due to the passage of time between the conviction and the securing of the EAW. The UK court was also concerned that Ms. Dark would likely suffer undue prejudice upon retrial if extradited. To date, the EAW is still outstanding and Ms. Dark's ability to freely move about the EU has been significantly curtailed because authorities in EU Member states are required to detain her upon entry into their countries.
There are at least four options available to Ms. Dark at this juncture:
1. She can remain in the UK secure in the knowledge that she will not be extradited. But, according to Ms. Dark, this option isn't practical because she has an ailing father in Spain whom she would like to visit and care for. Although a court in Spain has refused to extradite Ms. Dark, there is no guarantee that she would not be detained again in Spain because the EAW is still in effect.
2. She can allow herself to be extradited back to France. Pursuant to Article 5 (1) of the EAW Framework Decision, she is guaranteed an opportunity to apply for retrial if the sentence or detention order was imposed in absentia. However, this is another problematic course of action for Ms. Dark because her original trial occurred 20 years ago and the potential for witness unavailability and stale evidence is very high.
3. She can allow herself to be extradited back to France on the condition that she can return to the UK to serve her sentence pursuant to Article 5(3) of the EAW Framework Decision. This option is not acceptable to Ms. Dark because from her perspective an acquittal means a final judgment that a person is not guilty. Of course, in France an acquittal may not necessarily represent the final judgment in a criminal case.
4. She can petition the French courts to dismiss the EAW, thus releasing Member States from the obligation to detain her. This appears to be the approach she is taking at this point, but there is no clear process for an individual to raise such challenges short of surrendering to the EAW. Instead, the EAW contemplates dialogue and cooperation between judicial authorities in Member States. Therefore, it is unclear whether this approach will be effective and until the EAW is dismissed each Member State is required to comply with its terms.
While this unfortunate scenario presents several issues that will undoubtedly need to be resolved within the EAW Framework Decision, at the heart of the case is a collision between two justice systems: the inquisitorial system which permits retrials after acquittal and the adversarial system which, for the most part, adheres to principles of double jeopardy. The EAW certainly cannot take into account all of the procedural disparities among criminal justice systems across the EU. But it can and should provide mechanisms (short of surrender) to obtain dismissal of warrants issued based upon processes that were undertaken without notice to the person and which a reasonable person under the circumstances would not expect to occur. Fairness and justice dictate that diverging procedural approaches should not be taken advantage of to the detriment of Member State citizens.
Raneta Lawson Mack is a professor at the Creighton University School of Law and author of Comparative Criminal Procedure; History, Processes and case Studies (W.S. Hein, 2008)
JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that outside observers purporting to assess adherence to the "rule of law" in Iraq should pay less attention to compliance or non-compliance with formally enacted codes, and more to social practice...
There is a conventional wisdom concerning law and social order that is prevalent in the West. This is that somehow once a law on any particular subject is enacted, social compliance necessarily follows. The only real hurdle, then, is to make sure the law is passed according to proper procedures, in accordance with what H.L.A. Hart would refer to as “the rule of recognition” whereby a pronouncement is recognized to be “law.”
While it is true that anyone who considered this proposition carefully would immediately find problems with it (jaywalking in New York City and marijuana consumption in California are both technically against the law), it nonetheless informs much of American policy in Iraq. This mistaken assumption underlay much of the lawmaking work of the Coalition Provisional Authority (“CPA”), the US/UK institution that ran Iraq from the end of the invasion until the restoration of Iraqi sovereignty.
The CPA took great care to ensure that its legislation, generally characterized as CPA Orders, was issued in accordance with accepted procedure. There were justifications (albeit controversial ones) for the Orders based on international law, and the CPA took steps to ensure that the Orders were published in the Official Gazette, which is under normal circumstances the final step to the enactment of law. They even put these issues of the Gazette online so that there could be no question of their issuance. To some extent this worked quite well, in the sense that Iraqi lawyers generally concede that the orders issued by the U.S led coalition remain valid Iraqi law unless repealed. This, it was assumed, was all that was necessary, the rest being up to the Iraqis.
The track record of the CPA Orders, as measured by actual effect on social practice, is not terribly good. Very few are paid much attention to; most Iraqi lawyers and judges barely know what they say. Rather than revise the original (and clearly mistaken) assumption of an inherent link between law and social practice, instead the reaction has been to tie all of this to the “rule of law”, which apparently it is assumed we in the United States have and Iraq does not. Simply train them in the “rule of law” and then the link between law and social practice will appear in Iraq as it does in the United States.
Recent Iraqi legislation demonstrates this to be almost as naïve as the first assumption. It not only ignores San Francisco marijuana, New York City jaywalkers, and moderate amounts of speed limit violations just about everywhere; it also seems to ignore the realities of Iraq, where some laws are enforced. The police arrest people every single day for basic felonies. Even lesser laws such as traffic laws have some force. I have been shocked, for example, by the growing level of compliance in Iraqi Kurdistan with seat belt laws. Where wearing a seat belt was at one time to self-identify as a foreigner (thereby leaving the expatriate Iraqi like me in a bit of a pickle: either risk your life without a seat belt or expose yourself as a foreigner and risk your life that way), now drivers wear seat belts almost universally. The passengers do not — for some reason the law does not encompass them — but there would be no reason to believe that they would not wear them if the law was amended to require it. At the same time, other laws (among them, a ban on smoking also enacted in the Kurdish region) are universally ignored.
So it would be a mistake, then, to view the near universal noncompliance with the smoking ban, compare it as against the near universal compliance of similar bans in the United States and Europe, and conclude that the discrepancy had to do with some ephemeral notion of the rule of law, as our policymakers seem to want to do. One may as well conclude that there is a deficiency in the United States with the rule of law as Iraqi anti-drug laws are vigorously enforced and nobody smokes pot on the public streets in the Karrada neighborhood of Baghdad as they might in Haight-Ashbury. Rather, in gauging social compliance in any society it is important to look deeper than the mere fact of enactment to its broader circumstances. Again, while this may seem obvious, almost banal, to some, clearly our country has not learned any such lesson in its dealings abroad.
The reality is that Iraqis care little about smoking and tend to dismiss discussion on the dangers of smoking as a concern of rich nations with fewer dangers. These laws are passed more as a signal by a legislature to demonstrate acceptance of growing global standards than anything else. The idea that anyone would think to follow them because people in Paris do is absurd. Iraqis are, however, (at least in the north) becoming increasingly aware of the dangers of not wearing a seat belt. The deaths by car accident are astonishingly high, and this has resulted in a social campaign against speeding. When this is accompanied by a law, one might well expect broader compliance. As for the CPA, I suppose it should be obvious what the problems are going to be when a foreign government attempts to impose law, even uncontroversial law, on a populace by enacting Orders in a foreign language and then assuming that they will be enforced because they are, after all, “law.”
I do not mean to suggest that all developing and developed nations may be treated uniformly. Clearly the resources for enforcement and the respect given to the government in pronouncing law, vary widely across the globe. My only point is that sometimes, we might do well to pay a little less attention to enacted codes, and a little more to social practice, when trying to understand why societies react to different laws in the way that they do.
Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government, experiences he describes in his book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at http://muslimlawprof.org.
JURIST Special Guest Columnists Judith Sunderland and William Bourdon of Human Rights Watch say that the French government needs to ensure that all suspects in police custody have the right to see a lawyer immediately, have access to a lawyer during interrogation, and are informed of their right to remain silent, regardless of the crime allegedly committed....
During his four days in police custody, Emmanuel Nieto was subjected to 45 hours of interrogations. Bachir Ghoumid endured 40 hours, Saliha Lebik: 30 hours, Radicha Alam: 25 hours. None of them had a lawyer present. None of them were told they had the right to remain silent. All of them experienced sleep deprivation, disorientation, and intense psychological pressure. What else do they have in common? All of them were held under special counterterrorism laws.
These stories are the norm - not the exception – of terrorism investigations in France. Terrorism suspects are held in police custody for four days (up to six days in some cases), and are only permitted to see a lawyer for 30 minutes after three days of questioning. Uninformed of their right to refuse to answer questions and often denied the right to contact family or friends, those arrested under suspicion of terrorism are subjected to often oppressive questioning in sessions whose only record is what the police themselves create.
Proposed reforms to improve safeguards on police custody in France would leave this regime intact. The Léger Committee, tasked with drawing the outlines of a broad reform to criminal procedure and which issued its final report on September 1, has recommended narrow adjustments to the rights of those held in police custody that neither go far enough nor apply to everyone. Far from creating a “habeas corpus à la française,” in the Committee’s words, the reforms would still leave France far short of its obligations under international human rights law.
The Committee proposes reforms for ordinary criminal cases that would allow suspects to see a lawyer after 12 hours in custody, rather than the current 24 hours, in addition to a visit at the outset of detention. The person’s lawyer would have access to the transcripts of interrogations for the meeting after twelve hours, which is not the case under the current rules. If police custody is extended beyond 24 hours, the lawyer would be present during all further interrogations.
Under the reforms, suspects in drug trafficking cases would be able to see a lawyer for the first time after 48 hours, a day earlier than permissible under current law. When it comes to terrorism cases, however, the Committee has ruled out any changes to the police custody regime lest the justice system be rendered “dangerously powerless.” Yet there is no reason to believe that a properly conducted investigation would be compromised by ensuring that terrorism suspects have the right to a proper defense.
Any system of justice must be measured not only by its efficiency but also by its fairness. International fair trial standards, set out in binding treaties such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights, require that all persons suspected or accused of a crime have the right to defend themselves. Access to a lawyer during police custody and the right to remain silent are integral to that right.
The European Court of Human Rights, for example, has said that the UK violated the European Convention when it denied access to a lawyer even for 24 hours of questioning in terrorism investigations because the rights of the defense could be “irretrievably prejudiced” in that time. The United Nations Human Rights Committee urged France in July 2008 to ensure that terrorism suspects have access to a lawyer “without delay”, be told of their right to remain silent under questioning, and be brought “promptly” before a judge.
Prompt access to a lawyer is also a fundamental safeguard against torture and ill-treatment. In the course of our research on counterterrorism laws and procedures in France, Human Rights Watch learned of disturbing accounts of physical violence and other ill-treatment in police custody. A half-hour meeting with a lawyer three days after arrest is no protection against such abuse. That is why the European Committee for the Prevention of Torture has urged France repeatedly since 1996 to allow all suspects in police custody to see a lawyer from the very outset of detention.
The Léger Committee and the Outreau Commission rightly recommend that all police interrogations be recorded regardless of the nature of the offense under investigation. This would be an improvement since terrorism, drug trafficking and organized crime cases are currently excluded from this obligation. But audio- and video-taping, vital as they may be, are no substitute for the presence of proper legal counsel at a critical stage in criminal proceedings.
Acts of terrorism are horrifying crimes and law enforcement authorities have a clear obligation to prevent and investigate these crimes and to prosecute suspects. But denying due process to those accused of terrorism is unnecessary and counter to France’s fundamental values and international obligations.
A true “habeas corpus à la française” cannot allow for half-measures or exceptions. All suspects in police custody, no matter the alleged crime, should have the right to see a lawyer immediately, to have access to a lawyer during interrogation, and to be informed of their right to remain silent. The French government will need to look beyond the Leger Committee if it is committed to real criminal justice reform.
Judith Sunderland is senior researcher for Western Europe at Human Rights Watch. William Bourdon is a criminal lawyer and a member of Human Rights Watch’s Paris Committee.
JURIST Guest Columnist Terry Turnipseed of Syracuse University College of Law says that the increasing frequency of adult adoption within same-sex partnerships as a means of ensuring the receipt of inheritances may have set in motion an irreversible legal freight train that won't stop until same-sex marriage is legalized in every state....
There is a growing trend in this country—startling to many—of adopting one's adult lover or spouse for various (although mostly inheritance-based) reasons. Courts all around the country are struggling to figure out whether or not these adoptions should be upheld. Though few seem to realize it right now, the outcome of this battle might well impact millions of American lives.
On July 23, Maine's Supreme Judicial Court approved the adult adoption by Olive Watson of her lesbian lover. Now deceased, Olive was the granddaughter of Tom Watson, one of IBM's founders and the highest-paid CEO in the 1930s, and the daughter of Tom Watson, Jr., who took over the reins of IBM from his father in 1952. Watson Jr. established a very large trust fund for the benefit of his children and grandchildren. He stipulated that his children would receive assets during their lifetimes and that his grandchildren would receive large trust payments after the passing of Watson Jr. and his wife and upon reaching the age of 35 years old. The fortunate adoptee and benefactor of last Thursday's court ruling, Patricia Spado, may now be in line to be an unanticipated grandchild-beneficiaries of the Watson Jr. trust.
Olive simply wanted what many want for their loved ones: to ensure that her lover Patricia was well cared for in case Olive died. As such, she adopted the older Patricia. Activists in the gay community said that the case showed just how far same-sex couples must go to obtain the rights that those legally able to marry are routinely granted. At the time, obviously, Maine did not allow same-sex marriages.
For homosexuals in jurisdictions that do not recognize same-sex marriage (or something close that yields many of the same benefits and burdens), adoption is one darn sure (or darn close to darn sure), albeit drastic (read "irrevocable"), way to ensure an inheritance. There are many contract-based methods that are available to any competent individual who has reached the age of majority: wills, trusts, life insurance, retirement plans, powers of attorney for financial and health care matters, etc.; but all are subject to the claims of heirs-at-law (those who would take probate property absent a will) of undue influence against the partner-recipient of the assets. These suits are more successful than one might imagine since anti-gay biases are often quite evident in jury verdicts. If a lover or spouse is a "child", however, this status keeps biological relatives from even having the right to sue.
In many states, however, there could well be one pretty serious repercussion to all of this for the adopter and the adoptee: the possibility of an incest conviction resulting in serious jail time. Think about it: the person is having sexual relations with his or her legal child. Is that not incest? At least 25 states and territories, representing over 140.8 million people (approximately 46 percent of the total population) in the U.S., are subject to laws that include the adopted parent/adult child relationship within the definition of incest. However, even if a state agrees that this behavior is incest, there is now some question regarding whether the 2003 U.S. Supreme Court case Lawrence v. Texas (which struck down an anti-sodomy law) might now protect this behavior, preventing these people from being successfully prosecuted for this type of incest. This will be the first post-Lawrence Supreme Court individual sexual privacy rights case. Given the three new Justices on the Court since Lawrence was handed down, no one can be certain how such a case will be decided.
In no less than four instances, Justice Scalia's dissent in Lawrence (in which he was joined by three other Justices) warned that adult incest can no longer be outlawed by state or federal governments: with the decision in Lawrence, Justice Scalia lost his incest repellant. Indeed, if this type of incest is now protected by the U.S. Constitution, might the whole house of sexual-crime cards fall with it? Along with this strand of incest laws might also go laws addressing the so-called “core” incest (sexual relations between a biological parent and an adult child or adult biological siblings), adultery, bestiality, masturbation, fornication, bigamy, and possibly even the brass ring of same-sex marriage protection.
Because of its potential importance to the issue of whether same-sex marriage is constitutionally protected, everyone should be paying much more attention to these adult adoption battles that are occurring with increasing frequency across the nation. Olive and Patricia may well have unwittingly set in motion an irreversible legal freight train that may not stop—for better or worse, for richer or poorer—until same-sex marriage is available in every state.
Terry L. Turnipseed is an associate professor at Syracuse University College of Law. His full-length article on adult adoptions of lovers and spouses can be downloaded here.
JURIST Guest Columnist Raneta Lawson Mack of the Creighton University School of Law says that while Japan's establishment of a jury trial system is a bold effort to democratize its criminal justice process, it's yet to be seen how the new system deals with the inevitable "bumps" in the road....
Japan’s first jury trial in more than 60 years apparently went off without a hitch earlier this month. The defendant, a 72 year-old man charged with murdering his 66 year-old neighbor, had already confessed to the killing, explaining that he attacked his neighbor with a knife because she knocked over some bottles of water on his property. Thus, the jury of six laypeople and three professional judges had only to decide the level of culpability and the severity of punishment, not whether the defendant was guilty of committing the act. The jury ultimately convicted the defendant of murder and sentenced him to 15 years in prison.
Prior to the reinstitution of jury trials in Japan in 2004 (known as “saiban in"), there was a great deal of skepticism about adding citizen participation to the criminal justice process. The Japanese culture of deference to authority was thought to be a significant impediment to impaneling lay jurors who would be willing to participate in the process. Additionally, the lack of transparency in the criminal justice system had left much of the population in the dark about the operations of criminal justice in Japan.
In an attempt to address these concerns, Japan instituted a jury system based upon a model used in many inquisitorial systems of justice, i.e., lay jurors deliberating with professional judges. Although this is not a jury of one’s peers in the purest sense, there are some advantages to having individuals skilled in the law in the deliberation room, especially if the lay citizenry has been effectively shielded from the criminal justice process for a prolonged period. Of course, there is also significant concern that the professional judges may dominate the proceedings, and this concern is particularly acute in Japan with its culture of deference to authority.
To combat the potential for judicial dominance, Japan established a voting system that could reduce such influence. Each of the nine jurors has a vote, but even if all three professional judges vote guilty, five of the lay jurors can essentially “veto” the judges by voting not guilty. However, if all six lay jurors vote guilty, they need at least one professional judge on board to prevail.
Allowing jurors to directly question the defendant and witnesses during the trial is another feature that enhances citizen participation in Japan’s jury trial process. This is dramatically different from the process in the U.S., in which jurors are, for the most part, seen but not heard from until the verdict. This is also quite different from many inquisitorial systems in which lay jurors are allowed to question the defendant and witnesses, but must often do so through the presiding judge who acts as a “filter.”
In Japan’s recently concluded jury trial, lay jurors demonstrated their understanding of the core issues by asking questions about the particular knife used by the defendant (why a survival knife instead of a kitchen knife?) and questioning why the defendant didn’t seek help for the victim even though he thought she could die (the defendant claimed that he thought another neighbor would call for help). Although this particular jury trial appeared to go smoothly and the lay jurors took an active role as expected, this is a process that is still in its infancy, which means there will inevitably be some bumps in road.
For example, this was a trial about the level of culpability as opposed to a question of guilt or innocence. What will happen when lay jurors are confronted with a trial in which the actual guilt or innocence of the defendant is in question? As anyone familiar with the U.S. criminal justice system knows, when those types of questions are left in the hands of jurors, the results can be unpredictable and cause for heaping copious amounts of criticism on the U.S. jury trial system.
Additionally, Japan has an exceptionally high conviction rate (> 99% by most estimates). While this can certainly be attributed, in part, to prosecutorial selectivity, it is also clear that most of the criminal cases in Japan are presented to the courts wrapped neatly with confessions by defendants. In most instances, these confessions are obtained without the benefit of counsel and within the secret confines of the interrogation room. Japan has so far resisted repeated calls for general audio- or videotaping of interrogations explaining that recording could impede the interrogation process.
This situation will present two challenges to the newly established jury system. First, what will happen when jurors are presented with a challenge to the credibility of a confession? Can Japan continue to resist calls for recorded interrogations when the voluntariness of confessions becomes key to determinations of guilt or innocence? Second, what will happen if, or when, the conviction rate drops? Perhaps Russia’s “experiment” with jury trials might be instructive in this regard. Russia reestablished jury trials in 1993, only to eliminate them for some cases in 2008 due to a perception of excessive acquittals and leniency by jurors.
Finally, will Japan be able to maintain the requisite level of citizen participation in the jury trial process? During the first trial a lay juror withdrew and had to be replaced due to illness. As mentioned above, Japanese culture exhibits strong deference to authority. This inclination is in sharp conflict with the responsibilities of jury service, which will sometimes require challenging the prosecutor’s evidence and might require debating with the professional judges. Will lay jurors come to accept these challenges as a natural part of the process or will jurors simply seek to avoid jury service altogether?
Japan’s establishment of a jury trial system is a bold effort to democratize its criminal justice process. Lay citizen participation in the criminal process adds transparency and a level of credibility to the criminal justice system. Observers of this change in Japan will undoubtedly be watching to see how this new system deals with the inevitable “bumps” in the road and whether this degree of openness in the trial system yields similar results for the interrogation process.
Raneta Lawson Mack is a professor at the Creighton University School of Law and author of Comparative Criminal Procedure; History, Processes and case Studies (W.S. Hein, 2008)
JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that the notion of setting up a special international tribunal to try Guantanamo detainees - most recently floated in an op-ed in the New York Times - is not as promising as it might at first appear...
Mssr. Guénaël Mettraux, a respected defense counsel for international criminal tribunals in The Hague, has suggested in the New York Times that creation of an international criminal tribunal would be the best way for the Obama Administration to deal with the Guantanamo Bay detainees. This idea has been floated before, but has not gained much traction. True, it would shore up American support for international law and multilateral institutions, raise our stock in the U.N. Security Council, and finally provide some kind of legal process for those lingering in the legal black hole of Gitmo. But the flipside of this proposition is characterized by extraordinarily lengthy and costly trials probably located somewhere distantly removed from the evidence and witnesses needed for both prosecution and defense. Trials of major war criminals at the Yugoslav tribunal extended for years and cost millions.
And, although I am a supporter of international criminal tribunals, it must be noted that these institutional creatures are not all apples and apples. The International Military Tribunal at Nuremberg established by the Allied powers after World War II, glowingly noted in Mettraux's op-ed, was widely viewed as nothing more than victor's justice. The Tokyo Tribunal moreso. They were important antecedents to today's tribunals, but they were hardly perfect. The Yugoslav and Rwandan tribunals were established in The Hague and Arusha - physically removed from the countries where the underlying atrocities took place so as to neutralize them, and staffed exclusively with international specialists to ensure impartiality. This was, in part, a corrective to the Nuremberg and Tokyo experiences, which took place in the ravaged countries of the defeated powers, and in part necessary in the case of the Yugoslav tribunal as the Balkan wars were still underway when the court was established.
The weaknesses of these experiences were thought to have been corrected by the time so-called "hybrid" tribunals began to walk the international landscape. Tribunals for atrocities in Sierra Leone and Cambodia were located back in the countries in question and staffed with a blend of internationalists and local judges and attorneys. Again, the record of success that emerges is mixed. The Sierra Leone tribunal got off to a good start under the leadership of David Crane, its first prosecutor, but faced with the trial of Charles Taylor, the Liberian warlord responsible for most of the suffering in that area, the tribunal had to send him to The Hague for trial in the face of increasing security concerns, thereby undermining one of the key aspects of the hybrid tribunal model. The Cambodian tribunal has since its inception been beset by political intrigue trickling down from the unstable government in Phnom Penh. Several years on, progress on prosecuting the perpetrators of the killing fields remains elusive.
The new Lebanon tribunal, designed to investigate and prosecute those involved in the assassination of former Lebanese prime minister Rafik Hariri, reflects yet another adjustment. Located outside Lebanon and staffed with 2/3 internationalists and 1/3 Lebanese judges and attorneys, the court's jurisdiction encompasses what amounts to terrorism. This is a new wrinkle, especially as there is no agreed international legal definition for the crime of terrorism. Traditionally, ad hoc criminal tribunals dealt with only the "big 3" - genocide, war crimes and crimes against humanity.
Any international tribunal for Gitmo detainees would have to encompass prosecution for terrorism as well as violations of the laws of war. Placing it in Afghanistan (where most of the detainees were captured) would be problematic for obvious reasons. So to would be staffing it with a blend of local and international specialists. Afghanistan is barren of an effective bench and bar. About the best that could be done is for international judges and lawyers to participate alongside those from other Islamic societies, which would actually be a big step forward. Participation from the Islamic legal world in the development and functioning of international criminal law institutions is meager. Buy-in from that sector would be critical to the tribunal's legitimacy. Geographic placement in Cairo instead of The Hague would also be a symbolic and meaningful gesture. The well-developed lawyer class in Egypt could be tapped to assist, as well as the penal system - keeping Islamic convicts in jail in an Islamic country. But such a venture must be undertaken only with the caveats mentioned above fully in mind.
To the extent that the crimes of the Gitmo detainees occurred after July 1, 2002, prosecution at the permanent International Criminal Court could be an option if its jurisdiction were altered to include crimes of terrorism. That would be a contentious definitional quagmire. But states parties to the Rome Statute that created the court would be well-served to tackle this issue and include it in the ICC's mandate for future use. Domestic prosecution in the U.S. is fraught with difficulty - both legal and political. The Obama Administration is apparently in talks with Governor Jennifer Granholm of Michigan to secure a prison facility north of Detroit to house the detainee population that remains. It is also considering rescuing the military commissions system in Gitmo. There are no good options at this point, only "least worst" ones. Mssr. Mettraux's suggestion, echoing one I made on these pages last year, may be a "least worst" option, but the perils of failure are still quite high. That's no reason not to try, but it would be wise to remain cognizant of them.
Michael J. Kelly is Professor of Law, Associate Dean for International Programs at Creighton University in Omaha, Nebraska, and Chair of the Association of American Law Schools Section on National Security Law. The views expressed here are not those of the AALS.
E-mail Forum submissions (about 1000 words in length - no footnotes, please) to JURIST@pitt.edu.
SYNDICATION
Add Forum op-eds to your RSS reader or personalized portal:
E-MAIL
Subscribe to Forum op-ed alerts via R|mail. Enter your e-mail address below. After subscribing and being returned to this page, please check your e-mail for a confirmation message.
MyBlogAlerts also e-mails alerts of new Forum op-eds. It's free and fast, but ad-based.
FORUM SEARCH
CONTACT
JURIST and our op-ed authors welcome comments and reaction from readers. E-mail us at JURIST@law.pitt.edu
