JURIST - Forum

Beyond Guantanamo

noreply@blogger.com (Bernard Hibbitts) — Fri, 06 Nov 2009 17:34:00 +0000

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

Goldstone, Gaza and (Dis)Proportionality: Three Strikes

noreply@blogger.com (Ingrid Burke) — Wed, 04 Nov 2009 13:02:00 +0000

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.

Kirkuk: The Danger of Delay

noreply@blogger.com (Ingrid Burke) — Tue, 03 Nov 2009 11:47:00 +0000

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.

The Use of Force After the 'War on Terror': A Call for an Obama Doctrine

noreply@blogger.com (Ingrid Burke) — Thu, 29 Oct 2009 17:10:00 +0000

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.

Closing the Loophole: Private Military Contractors and Rights Violations

noreply@blogger.com (Ingrid Burke) — Tue, 13 Oct 2009 17:07:00 +0000

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.

Our Socialist Founding Fathers

noreply@blogger.com (Bernard Hibbitts) — Mon, 12 Oct 2009 16:36:00 +0000

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.

Pittsburgh's Police State: Giving the First Amendment a Beating at the G-20

noreply@blogger.com (Ingrid Burke) — Tue, 06 Oct 2009 14:10:00 +0000

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.

What Obama Should Have Said: US Compliance with International Law

noreply@blogger.com (Ingrid Burke) — Fri, 02 Oct 2009 19:27:00 +0000

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).

A Proposal for Breaking the Israel-Palestine Deadlock

noreply@blogger.com (Bernard Hibbitts) — Mon, 28 Sep 2009 12:20:00 +0000

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.

Obama's Terrorism Policy: Change If Necessary, But Not Necessarily Change

noreply@blogger.com (Bernard Hibbitts) — Fri, 25 Sep 2009 13:04:00 +0000

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.

The ICC and the Middle East: A Needed Relationship

noreply@blogger.com (Ingrid Burke) — Thu, 24 Sep 2009 14:08:00 +0000

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.

6. Head of state or government immunity

Article 27 of the Rome Statute pierces the traditional head of state or government immunity by extending the reach of the Court’s jurisdiction to all those who commit egregious crimes irrespective of their title or status. Immunities afforded to heads of states will not bar the Court from the exercise of its jurisdiction. This rule is in keeping with earlier precedents in the discipline both codified and judicially rendered (see e.g. Genocide Convention (Article IV); Charter of the International Military Tribunal of Nuremburg (Article 7); Statutes of the International Military Tribunal for the Far East Charter (Article 6); International Criminal Tribunal for the former Yugoslavia (Article 7(2)); International Criminal Tribunal for Rwanda (Article 6(2)) and the Special Court for Sierra Leone (Article 6.2). See similarly Article 6 of the Statute of the Special Tribunal for Lebanon with respect to invalidity of amnesties; SCSL Appeals Chamber ruling of 31 May 2004 re Charles Taylor; ICTY Trial Chamber ruling of 8 November 2001 re Milosevic, and ICTY Trial Chamber ruling of 8 July 2009 re Karadzic cases to name a few). Prohibitive non-derogable norms of egregious international crimes like genocide, crimes against humanity and war crimes are arguably jus cogens crimes and cannot reasonably be considered as part of a state’s legitimate functions to justify immunity protection.

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.

Torture Tales: Calling John Durham

noreply@blogger.com (Ingrid Burke) — Fri, 18 Sep 2009 13:49:00 +0000

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

When Criminal Justice Systems Collide: Improving the European Arrest Warrant

noreply@blogger.com (Ingrid Burke) — Wed, 16 Sep 2009 14:52:00 +0000

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)

Reconsidering the 'Rule of Law' in Iraq

noreply@blogger.com (Ingrid Burke) — Tue, 08 Sep 2009 11:43:00 +0000

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.

Reforming Criminal Procedure in France

noreply@blogger.com (Ingrid Burke) — Fri, 04 Sep 2009 08:48:00 +0000

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.

Fair or Foul? Inheritance-Driven Adult Adoption Within Same-Sex Partnerships

noreply@blogger.com (Ingrid Burke) — Mon, 24 Aug 2009 09:28:00 +0000

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.

Jury Trials in Japan: Off to a Good Start, But...

noreply@blogger.com (Ingrid Burke) — Fri, 21 Aug 2009 23:21:00 +0000

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)

Risky Business: An International Tribunal for Guantanamo Detainees?

noreply@blogger.com (Bernard Hibbitts) — Thu, 20 Aug 2009 19:03:00 +0000

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.

Kenya's Dangerous Dance with Impunity

noreply@blogger.com (Ingrid Burke) — Tue, 18 Aug 2009 18:17:00 +0000

JURIST Guest Columnist Charles Jalloh of the University of Pittsburgh School of Law says that while having the International Criminal Court take up cases arising out of the violence that followed Kenya's 2007 elections could be convenient for local politicians seeking to evade responsibility for stoking ethnic hatreds and fomenting violence for personal gain, international prosecutions may have limited impact in healing the raw wounds of the currently divided nation....

Following disputed multi-party elections held on 27 December 2007, shocking and unprecedented violence gripped the East African nation of Kenya. It is estimated that about 1,200 innocent people were killed in the course of three months. Of those, the majority lost their lives because of their ethnicity, political affiliation, or both. Since then, Kenyans have been demanding that the perpetrators of those crimes be brought to justice.

In principle, the country has three choices to prosecute post-election violence. First and most obviously, it could use its domestic courts to do so. National courts are usually the best forum in which to prosecute crimes. That is why they are the default option. Among other things, they are the locus criminis, the place where the crimes occurred, and where suspects, victims, their relatives, and most witnesses reside. State prosecutors can also normally rely on the law enforcement machinery of the domestic criminal justice system (such as the police) to swiftly conduct investigations, draw up charges, execute arrest warrants, and detain suspects.

Unfortunately in Kenya’s situation, the Commission of Inquiry into Post Election Violence (“Waki Commission”), which was established in order to do a post-mortem on the election-related crimes and to recommend a way forward, ruled out this option. Why? Because in the Waki Commission's view, the local justice system was in such a “sorry state” that the public rightly lacked confidence in its ability to dispense credible justice.

In addition, the country’s legal system was plagued by major institutional deficiencies. These had a tendency to encourage rather than deter entrepreneurs of violence because the chances were high they would get off scot-free. On top of that was a lack of political will at the high levels to genuinely address such crimes, as well as fears about prosecuting powerful people among the lower ranks of the police. In such an environment, impunity tends to thrive and the rule of law starts to wither.

Thus, the Waki Commission recommended that Kenya choose the second option available to it, that is: to establish a hybrid Special Tribunal for Kenya (“STK”). The STK, a court of mixed subject matter jurisdiction and staff composition, would investigate and prosecute those “bearing greatest responsibility” for the killings and other atrocities related to the 2007 general elections.

Special courts are in vogue in the international community. They are a better option wherever domestic courts cannot be trusted to dispense justice, whether because of a lack of capacity or a lack in the necessary juridical space to function independently. A key advantage of these types of tribunals, among others, is that they can be grafted onto the existing justice system. This is what happened in Bosnia, East Timor, and Cambodia with United Nations assistance. Alternately, they could be insulated from the travails of domestic legal systems by creating a separate institution altogether. The best examples of this are the Special Court for Sierra Leone, which has jurisdiction over national and international crimes, and the Special Tribunal for Lebanon, which only has jurisdiction over common Lebanese crimes.

Regrettably, Kenya appears to have given up the various advantages of setting up a hybrid court. On 30 July 2009, President Mwai Kibaki and his coalition government rejected the STK idea despite having endorsed it back in December 2008. Instead, the Cabinet decided the country would prioritize “national healing and reconciliation.” Toward this end, they would undertake “accelerated” and extensive reforms in the judiciary, police, and investigative arms of government to try “perpetrators of post-election violence locally” (that is, within the regular national courts).

Talks of institutional reform were obvious attempts to turn the fail grade that the Waki Commission had given the domestic system into a passing mark. In any case, the government would now deploy local trials alongside the recently established Truth, Justice, and Reconciliation Commission (“TJRC”). It appears that the TJRC is more popular among the powers that be because it emphasizes forgiveness and reconciliation, not criminal prosecutions. It can also grant amnesties for some crimes (albeit conditional ones) which is why many Kenyans question whether, in reality, the government plans to set "justice" aside in order to put in place a process devoted exclusively to truth and reconciliation.

In theory, as United States Secretary of State Hillary Clinton observed during her recent visit to Nairobi, the ideal situation would be for domestic prosecutors, judges, and law enforcement officials to “step up to their responsibilities” and remove the impunity question. Indeed, Kenya, like other countries, should aspire to render justice through its regular courts.

In practice, however, this poses a huge problem because some Kenyan leaders who have apparently been implicated by the Waki Commission are unlikely to sit idly by while tribunals with long arms are created to reach them and their cronies. Those politicians have reportedly been fighting a rear guard action to kill the STK idea since last year. They seem to have succeeded. In the meantime, the government now promises to fix the local justice system to prosecute post-election violence.

What the government is not telling Kenyans is that it takes significant resources and time to implement the extensive reforms that would be required to credibly prosecute perpetrators. This is especially so when we consider the Waki Commission’s damning indictment of the domestic legal system. Not only did it point a finger at the judiciary, but it also questioned the effectiveness of key players in the justice process, including the Attorney-General. The latter has the power to block prosecutions, and in the past has not hesitated to use it, especially those brought against prominent individuals.

The good news is that the skeptical commissioners left Kenyans a back-up plan in case the politicians fail, for whatever reason, to establish the STK. It therefore gave custody of evidence and an envelope containing a list of alleged suspects of post-election violence to Kofi Annan. Annan, the former UN Secretary-General, chairs the Panel of Eminent African Personalities that the African Union dispatched in 2008 to help the rival political camps reach political settlements. He was to hand over the material to Prosecutor Luis Moreno-Ocampo of the International Criminal Court (ICC). Essentially, the Waki Commission tried to shame the government into dealing with impunity domestically through a locally driven but internationalized STK process- or, failing that, for it to refer itself to the ICC for investigations and possible prosecutions.

In early July 2009, the Kenyan authorities sent a high level delegation to meet with the ICC prosecutor in The Hague. This suggested that the government is indeed serious about dealing with the accountability question. On the other hand, by choosing to scuttle the STK recommendation just a few weeks later, the politicians appear to be playing games- not only regarding impunity, but regarding the future stability of the country as well. In the end, time will tell what their motives were. But if this turns out to be political maneuvering, as evidenced by the experiences of other African countries, Kenyan leaders would be engaging in a dangerous dance with impunity.

Annan, by this point one of Africa’s leading post-conflict paramedics, has recently transmitted the evidence and list of suspects to the ICC Prosecutor. The question now is whether the proposed domestic prosecutions would square with the country’s obligations under the Rome Statute. Part of the answer can be found in Article 17(1).

Under that provision, a case is inadmissible before the ICC if it “is being investigated or prosecuted by a State which has jurisdiction over it.” However, where the concerned state proves to be either “unwilling” or “unable genuinely to carry out the investigation or prosecution,” the presumption of complementarity will be reversed, thereby rendering the case admissible in the ICC. Unwillingness exists where national authorities undertake sham investigations to shield suspects from prosecution, where there is unjustified delay indicating that there is in fact no intention to prosecute, or where proceedings are not conducted impartially.

The Waki Commission found that, historically, impunity has reigned supreme for election related violence in Kenya. So, in a way, one could quickly consign the country to the “unwilling” category and, on that basis, argue for ICC involvement. Indeed, what is known about the post-election violence raises serious concerns about whether there is a genuine commitment to investigate and prosecute post-election crimes given the alleged links between perpetrators, politicians, and other higher level persons associated with the current government.

There are also serious problems affecting justice delivery in Kenya. The weakest link is apparently the investigative arm of the police. Yet the country relies heavily on police prosecutors who apparently conduct the majority of all cases in Kenya due to the limited capacity of the Attorney-General’s office. Because of heavy police involvement in the violence, this raises serious questions about fundamental principles of natural justice. But the threshold for inability under the Rome Statute appears so high that it would only be met where there is a “total” or “substantial collapse” of the national legal system. Thus, for the “unable” prong of the Article 17(1) test, a strong argument can be made that Kenyans have some ability to prosecute the crimes locally. The system may be tattered, but is not yet a write off from an Article 17 point of view.

Nevertheless, the politicians probably figured that they are better off opting for “self-referral” because, under Article 17(1)(b), the ICC would not possess jurisdiction if Kenya investigates and decides not to prosecute. This would be so unless there is evidence of bad faith tending to show unwillingness or inability to prosecute. It is also hard for the Prosecutor to exercise jurisdiction if someone is prosecuted within a Kenyan court, and say because of subtle pressure on a judge, is exonerated in a local trial. Double jeopardy rules would apply to the ICC proceedings as per Article 17(1)(c).

But the clincher behind the latest insistence on domestic prosecutions may lay elsewhere. They probably know that the ICC Prosecutor must analyze the “seriousness” of information received about alleged crimes under Article 15(2) of the Rome Statute. Ocampo announced in February 2008 that he is undertaking preliminary investigations into the Kenyan situation. However, to invoke his jurisdiction he must find that one or more defined ICC crimes in Article 5 (i.e. genocide, crimes against humanity or war crimes) were perpetrated.

It seems to be settled that ethnicity was a key factor in the post-election violence. However, the Waki Commission did not discover any evidence of genocidal intent. At best, there was an internal disturbance after the elections so war crimes are also not in issue. Nevertheless, according to the commissioners, the evidence of attacks against civilians may amount to “crimes against humanity.” Even here, there are serious difficulties because it is uncertain that the post-election violence in Kenya would necessarily match the definition in Article 7 of the Rome Statute.

First, on the positive side crimes against humanity no longer require a nexus to an armed conflict to be punishable. On that score, Kenya would pass the first hurdle.

Second, Article 7(1) prohibits certain acts that were apparently perpetrated in Kenya, including: murder, deportation or forcible population transfers, unlawful imprisonment, torture, sexual violence such as rape or other acts of comparable gravity, persecution against identifiable political or ethnic groups, and enforced disappearance. In addition, specific features of the post-election violence that caused victims great suffering or serious bodily or mental injury, such as the forced circumcision of Luo men, could conceivably fall into the residual category of “other inhumane acts” in the same way that forced marriage, which was a salient feature of the Sierra Leonean conflict, has since been jurisprudentially determined to constitute an inhumane act.

On the more challenging side, in order to show that crimes against humanity were committed in Kenya, the Rome Statute requires proof of the “contextual elements” that would transform an ordinary offense such as murder into an international crime. This requires that the prohibited acts, in the language of Article 7(1), be found to be “part of a widespread or systematic attack direct against any civilian population.” The first part of this test is disjunctive so only proof of one of the two elements is required. The second half requires an “attack,” which is generally taken to mean “multiple“ (as opposed to random or isolated) acts against a civilian population. It is certainly arguable that there were widespread attacks against Kenyans after the elections. The more difficult argument to sustain is that those attacks were carried out deliberately as a result of some state or organizational policy. This is especially so considering the finding that some of the post-election violence was spontaneous rather than organized.

Ultimately, the answers to these legal questions will be fact driven. It is therefore hard to allege that crimes against humanity were committed in Kenya without detailed evidence. In fact, even the Waki Commission, which spent months studying the post-election crisis, hesitated to reach a definitive conclusion on this point. Much of the evidence gathered was apparently insufficient to prove the suspects’ guilt in a regular criminal trial, and as such was meant to serve as a springboard for further investigations. Significantly, the report admitted that the evidence “may even fall short of the proof required” for crimes against humanity.

The possibility that only one international crime may have been committed in Kenya will be weighed by the ICC prosecutor alongside the numbers of victims, amongst other factors, in deciding whether to pursue the Kenyan situation. Furthermore, while tragic and unprecedented, he is free to conclude that the post-election violence does not meet the gravity threshold when considered against other situations from around the world. In other words, under Article 17(1)(d), he may find that there is insufficient gravity to warrant further investigations or prosecutions.

Where does this analysis leave Kenya? If the desire is to mete out credible justice for the post-election crimes, Kenya’s best option remains the STK, as the Waki Commission argued back in October 2008. But since agreement on a hybrid court seems to be elusive, or is caught up in survivor politics, Kenyan leaders have opted to prosecute cases domestically. This clearly gives them more control and influence over the process. Whether local prosecutions would ultimately pass ICC muster would depend upon how they are carried out. That in turn depends on how speedily reforms can be implemented in a judicial system that apparently enjoys little confidence amongst ordinary Kenyans.

The final option is for an ICC self-referral. Contrary to popular commentary within Kenya, the so-called “Hague option” is not, and should not be seen as, a magic bullet for the country’s impunity problems. For one thing, as shown here, there is no guarantee that the Prosecutor would invoke his jurisdiction to pursue the crimes there. Even if he does so for his own reasons, say to prove the point that some African states still support instead of oppose the ICC, he can only prosecute those “most responsible” for the violence. An “impunity gap” would result except if Kenyan authorities prosecute middle and lower ranking perpetrators, while sending the “big fish” to The Hague.

In any case, distant trials at the ICC would offer little comfort for those to whom it matters the most: the Kenyan victims of the violence. Why? Because they would effectively be denied the opportunity to watch their tormentors face justice. In turn, while this could be a good way out for the politicians seeking to evade responsibility for stoking ethnic hatreds and fomenting post-election violence for personal gain, international prosecutions may ultimately have limited impact in healing the raw wounds of the currently divided nation.

Charles C. Jalloh is an assistant professor at the University of Pittsburgh School of Law. He previously worked at the Special Court for Sierra Leone and the UN International Criminal Tribunal for Rwanda.

The Geneva Conventions Between War and Peace: Sixty Years and Counting

noreply@blogger.com (Ingrid Burke) — Mon, 17 Aug 2009 14:29:00 +0000

JURIST Guest Columnist Kevin Govern of Ave Maria School of Law in Naples, FL (formerly at Ann Arbor, MI) examines the relevance of the four Geneva Conventions signed in August 1949, 60 years ago this month, in the context of untraditional conflicts that he describes as being "between war and peace"...

The nature and proliferation of national and international armed conflicts from the 20th Century through the present day have challenged traditional notions of what is or is not a "war," and which legal principles apply to such conflicts. Sixty years ago, on August 12, 1949, sixty-four countries that had lived through the tragedy of war came together to sign the Geneva Conventions, the cornerstone compacts of international humanitarian law (IHL) that regulate the conduct of armed conflict and seek to limit its effects.

These four Conventions included:

The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug 12, 1949 (GWS). This Convention represents the fourth updated version of the Geneva Convention on the wounded and sick following those adopted in 1864, 1906, and 1929;
The Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked; Members at Sea, Aug 12, 1949 (GWS Sea), This Convention replaced the Hague Convention of 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention;
The Geneva Convention Relative to the Treatment of Prisoners of War, Aug 12, 1949 (GPW), which replaced the Prisoners of War Convention of 1929; and,
The Geneva Convention Relative to the Treatment of Civilian Persons in Time of War, Aug 12, 1949 T.I.A.S. 3365. (GC) (Geneva Conventions, 1949) adopted before 1949 but signed in 1949.

The Geneva Conventions and their Protocols Additional of 1977 are looked to as instruments circumscribing, prescribing, and proscribing the permissible use of armed force within the context of a variety of other internationally recognized legal bases for use of force in relations between States found in both customary and conventional law. Generally speaking, however, modern jus ad bellum (the law of resort to war) is reflected in the United Nations (UN) Charter. The Charter provides two bases for the resort to force: Chapter VII enforcement actions under the auspices of the Security Council, and self-defense pursuant to Article 51, which governs acts of both individual and collective self defense. (Charter, 1945).

The UN Charter, specifically Chapter VI: Pacific Settlement of Disputes (Articles 33-38), and Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (Articles 39-51), envisioned a Security Council role in assisting parties to “any dispute likely to endanger the maintenance of international peace and security” as they strive to resolve conflicts through “peaceful means of their own choice.”

The four Geneva Conventions were drafted to protect civilians and health/aid workers who are not taking part in the hostilities, as well as those “out of combat” who are no longer participating in the hostilities, including wounded, sick, and shipwrecked soldiers and prisoners of war.

Today, the use of force and threats thereof present challenges regionally and globally to individuals, corporations, nations, and other organizations of persuasion. At its most benign and pacific, force or the potential use thereof may encourage and nurture peace or deter aggression. At its most belligerent, force or the potential use thereof may be a dramatic and overwhelming tool of compulsion. A multitude of new terms have emerged to describe such armed conflicts, including (but not limited to):

Brushfire wars, Complex Emergencies, Complex Humanitarian Operations, Complex Contingency Operations, Contingency Operations, Crises, Dirty Little Wars, Disaster Operations, Guerilla War, Humanitarian Operations, Insurgencies & Counterinsurgencies, Internal War/Armed Conflict, Irregular Warfare, LIC (low intensity conflict), LRC (localized regional conflicts), MOOTW (military operations other than war), OMO (other military operations), OO (other operations), OOTW (operations other than war), Partisan War, Peace Operations, Peace Support Operations, People’s war, Revolutionary Warfare, Rebellion, SASO/SOSO (stability and support operations, Small Wars, UW (Unconventional Warfare), Wars of National Liberation

. . . and many others!

Not all of these terms/acronyms hold the same legal, political, or operational significance to the counselor, commander, coordinator, civilian, or political leader affected by or effecting change during these armed operations “between war and peace.” This begs the question: just exactly what is war? It is generally recognized that, aside from political declarations, war is a contention, i.e., a violent struggle through the application of armed force.” Elements of what constitutes a war may include: a) a contention; b) between at least two nation states; c) wherein armed force is employed; d) with an intent to overwhelm.

In that context, a multitude of applicable legal principles and broad statements of law have become particularly contentious in the instances of intranational armed conflicts, and certain international “undeclared” wars or armed conflicts, yet with respect to “international armed conflict,” this threshold is codified in Common Article 2 of the Geneva Conventions of 1949.

Common Article 2 states: “[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” This is a true de facto standard, where the subjective intent of the belligerents is not relevant. Armed conflicts such as the 1982 Malvinas (Argentina)/Falklands (UK) War, the Iran-Iraq War of the 1980s, and the first (1991) and second (2003-04) U.S.-led Coalition wars against Iraq could be considered “international armed conflicts” to which the Law of War applied. The 1977 Protocol I Additional to the 1949 Geneva Conventions has expanded this scope of application to include certain wars of “national liberation” for parties to that convention. According to Pictet’s Commentary on the Geneva Conventions, the law of war applies to: “any difference arising between two States and leading to the intervention of armed forces.”

Article 2 effectively requires that the law be applied broadly and automatically from the inception of the conflict. Howard Levie in The Code of International Armed Conflict opined that the following two facts result in application of the entire body of the law of war: (1) A dispute between states, and (2) Armed conflict. An exception to the “dispute between states” requirement arises where there is a conflict between a state and a rebel movement recognized as belligerency. This concept arose as the result of the need to apply the Laws of War to situations in which rebel forces had the de facto ability to wage war. The Law of War ceases to apply under Article 5, GWS and GPW and Article 6, GC upon: (1) final repatriation (GWS, GPW); (2) general close of military operations (GC); or (3) occupation (GC), in which case it applies for one year after the general close of military operations. In situations where the Occupying Power still exercises governmental functions, however, that Power is bound to apply for the duration of the occupation certain key provisions of the GC. For military operations under circumstances other than armed conflict (e.g., peacekeeping and peace enforcement in Somalia, Haiti, and Bosnia), the Law of War, in general, will also apply, but the applicability of particular treaties is open to interpretation.

Conflicts which are not of an international character “…occurring in the territory of one of the High Contracting Parties” will fall under Common Article 3, and make up the majority of the ongoing conflicts. International regulation over such conflicts is more regulated than under international armed conflicts, and domestic law may control the application and use of force or other economic, political, or military applications of state authority.

While there is no objective definition for what lies “between war and peace,” IHL is somewhat clearer on what constitutes an “internal armed conflict.” Although no objective set of criteria exists for determining the existence of a non-international armed conflict, Pictet listed several suggested criteria: (1) the rebel group has an organized military force under responsible command, operates within a determinate territory, and has the means to respect the Geneva Conventions; and, (2) the legal Government is obliged to have recourse to the regular military forces against the rebels, who are organized and in control of a portion of the national territory. Protocol II of The 1977 Protocols Additional to the Geneva Conventions, December 12, 1977, was intended to supplement the substantive provisions of Common Article 3. It formalized the criteria for the application of that convention to a non-international armed conflict: (1) Under responsible command; and (2) Exercising control over a part of a nation so as to enable them to carry out sustained and concerted military operations and to implement the requirements of Protocol II.

The International Committee of the Red Cross (ICRC), the official custodian of the conventions, does provide some guidance in its commentary, in distinguishing between civil war and mere riots or disturbances. One test suggested by the ICRC for determining whether wartime or peacetime rules apply is to examine the intensity of hostilities. In addition to the intensity of hostilities, the ICRC suggests considering such factors as the regularity of armed clashes and the degree to which opposing forces are organized. Whether a conflict is politically motivated also seems to play an unacknowledged role in deciding whether it is “war” or not.

Knut Dörmann, head of the ICRC's Legal Division opined on the occasion of the Geneva Conventions’ sixtieth birthday that “the vast majority of people support the core principles of IHL and the idea that even wars should have limits,” but that “what we really need is better compliance with the law.” Regardless of the legal justifications for – and limitations upon - such operations, the ICRC found through an opinion poll in eight nations affected by conflict and violence that, in reality, “few [polled] are aware that the rules exist,” and that “some doubt that the law has a real impact on the ground.” Armed conflict has not only legal ramifications but also practical impacts of death, destruction, displacement, and despair. As we examine – and implement the spirit and the letter of the Geneva Conventions, perhaps we should heed the words of Sun Tzu from many centuries prior:

The art of war is of vital importance to the State. It is a matter of life and death, a road either to safety or to ruin. Hence it is a subject of inquiry which can on no account be neglected.
– Sun Tzu, The Art of War, 490 B.C.

Kevin Govern is a professor at Ave Maria School of Law. He began his legal career as an US Army Judge Advocate, serving 20 years at every echelon during peacetime and war in worldwide assignments involving every legal discipline. He has also served as an Assistant Professor of Law at the United States Military Academy and has taught at California University of Pennsylvania. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the U.S. Government, Department of Defense, or Ave Maria School of Law.

Italian Immigration Law: For the Common Good?

noreply@blogger.com (Ingrid Burke) — Fri, 14 Aug 2009 19:18:00 +0000

JURIST Special Guest Columnist Archbishop Agostino Marchetto of the Vatican's Pontifical Council for the Pastoral Care of Migrants and Itinerant People says in light of recent Italian legislation on immigrants that while states have the right to control their borders, they must also consider justice and the universal common good....

The Italian Parliament recently passed a law regarding public security (Law no. 94 of 15 July 2009) which also regulates immigration into the country and provides norms regarding the condition of foreigners therein. There has been much debate regarding the provisions of the new law and the votes cast leading to its approval were far from unanimous. I myself have expressed a very critical view on this matter.

Public opinion regarding the presence of immigrants in the country has recently been fed with media reports on atrocious crimes committed by foreigners, exacerbating feelings of insecurity, fear, and even xenophobia among Italians. However, those who are benefiting from the services of immigrants, in the care for children and the elderly, in domestic work and other blue collar jobs that fewer and fewer Italians are willing to do, claim that injustice is being done to them in not reporting these aspects as well. Mass media operators have to take their responsibility in this regard.

Today, Italy, which has been considered the “least fortress” among the countries in fortress Europe, is fast approaching the hard line that other states in the continent have long adopted and is even surpassing them.

Before entering into the merits (demerits, I should say) of the law in question, it is important to mention very briefly the world situation and the context in which emigration and immigration are taking place today.

In his report to the General Assembly of the United Nations on 9th September 2002, two years after the Millennium Declaration was adopted, then Secretary General Kofi Annan affirmed that “it is time to take a more comprehensive look at the various dimensions of the migration issue, which now involves hundreds of millions of people and affects countries of origin, transit and destination” and that “we need to understand better the causes of international flows of people….”

It does not require a great effort to know that today people are fleeing from their countries due to wars, violence, violation of human rights, or famine, and other natural or man-made catastrophes. There are also those who leave their countries to be able to provide for their needs and those of their families, or simply to find better opportunities abroad. When they approach our national borders, do we ask what reasons moved them to be there, or are we so biased that we immediately regard them with suspicion and consider them a potential danger or threat, as our Instruction Erga migrantes caritas Christi (The love of Christ towards migrants) warned against? I certainly do not mean to disregard the fundamental distinction and difference in legal treatment, as far as international law is concerned, between migrant workers, and refugees and asylum seekers. This disregard for differences was evident in the last cases of refoulement ordered by the Italian government to be inflicted on the people who were traveling by boat from the African coast towards Italy. We know that the principle of non-refoulement is essential in the protection of persecuted people.

In any case, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by the UN General Assembly resolution 45/158 of 18 December 1990 and in force since 1 July 2003, points out that “the human problems involved in migration are even more serious in the case of irregular migration” (Preamble). It therefore encourages “appropriate action … in order to prevent and eliminate clandestine movements and trafficking in migrant workers” (ib.). It is worth noting that the measures it deems should be taken, within the jurisdiction of each State concerned, are not directed to irregular migrants, but to those who cause the phenomenon. It in fact calls for “appropriate measures against the dissemination of misleading information relating to emigration and immigration” and the imposition of “effective sanctions on persons, groups or entities which use violence, threats or intimidation against migrant workers or members of their families in an irregular situation” (art. 68). It instead urges signatories to assure the protection of the fundamental human rights of irregular migrants (Preamble).

Indeed, it affirms that “every migrant worker and every member of his or her family shall have the right to recognition everywhere as a person before the law” (art. 24) and that appropriate measures should be taken “to ensure that migrant workers are not deprived of any rights … by reason of any irregularity in their stay or employment.”

The new Italian law, on the contrary, has tightened the norms related to the irregular status of foreigners, and has transformed irregular migration into a criminal offence instead of the administrative breach that it used to be. This change has significant repercussions in the concrete life of the migrant and his family. I consider it an “original sin” in the legislation on migration. To start with, it will be difficult for the irregular migrant to find lodging, since whoever rents an apartment to people in his condition runs the risk of imprisonment. It will be difficult if not impossible for him to send remittances back home through money transfer services, since this requires the presentation of a regular permit to stay in the country. This is a serious concern for the welfare of the families who have stayed behind in the home country and also deprives their countries of origin of that income that their poor economies badly need.

The new law does not seem to be “family-friendly”. Since all legal acts regarding the civil status requires the presentation of a regular permit to stay, an irregular migrant cannot be registered as a parent of a child who may even have a legal status in Italy. The child will therefore have to be identified as one with unknown parent(s). The authoritative financial newspaper “Sole 24 Ore” recently published, in its August 3rd issue a whole page on the serious problems deriving from the new law that will need to be solved.

The same permit is necessary to be able to get married even to an Italian citizen. In its absence marriage has to be postponed, or celebrated abroad where marriages can be solemnized without an Italian permit to stay. However, the non-Italian party can become an Italian citizen only after two years of residence in Italy, or after three years of residence abroad. Fortunately, the presence of children, even adopted ones, can shorten the period of waiting by half. Questions regarding marriages are particularly sensitive for the Church in Italy because of the civil recognition given to religious marriages.

Another point is the option for doctors to report to the authorities the presence of irregular migrants in the territory. The latter would be scared to approach public health services. This would make them vulnerable to clandestine health care, exposing them to unsafe services, jeopardizing not only their own health but also that of the people around them, including Italians.

Under the new law, an immigrant, whose permit to stay for employment reasons is not renewed within a period of six months, will be canceled from the National Register. Moreover, all those who have no fixed dwelling cannot be entered into the National Register. For civil purposes, these individuals do not exist. “Clochards” are instead obliged to be included in a special list at the Ministry of the Interior.

Certainly, States have the right to control their borders and make sure that it is not a porous entry for criminals, who may also take advantage of the misery and desperate conditions of would-be immigrants. However, justice and solidarity are not antonyms, they come hand in hand, just like public security and welcome. National common good, in any case, has to be considered in the context of the universal common good.

Archbishop Agostino Marchetto is the secretary of the Vatican's Pontifical Council for Pastoral Care of Migrants and Itinerant People and Titular Archbishop of Astigi

Nuremberg and the Torture Memos: An American Dilemma

noreply@blogger.com (Ingrid Burke) — Thu, 13 Aug 2009 17:18:00 +0000

JURIST Guest Columnist James Friedman of the University of Maine School of Law says that despite the potential political cost to President Obama of investigating the torture memos released by the former Bush administration, failure to act on the memos may take an even more costly toll on our identity and well-being as a nation....

In light of the current controversy concerning the responsibility of certain lawyers in the Bush administration for the torture of detainees, it is worth recalling with some particularity the war crimes trials the United States initiated after World War II. A primary purpose of the trials was to articulate values fundamental to the United States.

The first trial of the Germans at Nuremberg was held before the International Military Tribunal (IMT) from November 1945 to October, 1946. This was the trial of the “major German war criminals,” the surviving leaders of Nazi Germany. As Justice Robert Jackson, Chief American Prosecutor, put it, this was the first international criminal assize of governmental leaders in history. The Charter of the Tribunal charged with waging aggressive war, war crimes, and crimes against humanity. The charges were established by the Charter of the Tribunal. The case was entitled United States v. Goering, et al.

One often comes across references to the “Nuremberg principles.” While there is no fixed meaning to this phrase, I think it is most often used to connote that neither official governmental office nor superior orders constitutes a defense to charges of war crimes or crimes against humanity.

At a philosophical level Nuremberg represents a rejection of the Germans’ defense of legal positivism. To put it simply, the Tribunal held that Nazi offenses were so egregious that even if they were “legal” when committed under the law of the Third Reich, the defendants should have known that mass murder and other atrocities were contrary to the “law of civilized nations.”

Less famous than the trial of the major war criminals before the IMT were a series of trials held before American Military Tribunals, also at Nuremberg, from October of 1946 to May of 1949. These eleven cases, known as the Nuremberg Military Tribunal (NMT) cases, were brought against lesser known figures in the Nazi bureaucracy as well as private persons who committed war crimes or crimes against humanity. The prosecutions were brought under Allied Control Council Law No. 10 which closely tracked the definitions of criminal conduct under the Charter of the International Military Tribunal. Torture was categorized as a crime against humanity as well as a war crime under both the IMT Charter and Control Council Law No. 10.

Recently two of the NMT cases, “The Justice Case” (United States v. Alstotetter,) and “The Ministries Case” (United States v. Von Weisaecker) have been subjects of renewed interest among legal scholars. “The Justice Case” involved the prosecution of individuals in the Reich Ministry of Justice for a variety of atrocities including everything from theft of Jewish property to death sentences for individuals who had opposed Hitler to mass murder. In sum, certain defendants were convicted for what the American court called “the perversion of law and justice.”

“The Ministries Case” also involved lawyers. Defendants Von Weizaecker and Woermann were high ranking legal advisers in the foreign office who advised the German Foreign Office that the deportation of French Jews to Auschwitz was lawful. The American Military Tribunal convicted Von Weizaecker and Woermann of crimes against humanity for their disastrous legal advice.

The reason for the renewed interest in these cases has been the declassification over the last several years of legal memorandums written by lawyers of the Bush administration authorizing torture as a lawful means of interrogation. The first and perhaps most notorious memo is dated August 1, 2002. This memo was requested by Alberto Gonzales, then the President’s lawyer. Mr. Gonzales wished to know what constituted permissible interrogation techniques in light of the prohibition against torture in the U.S. criminal code (18 U.S.C. 2340-2340A) and the prohibitions contained in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment, a multilateral treaty that had been ratified by the United States. The memo was written by Justice Department lawyer John Yoo and signed by then Assistant Attorney Jay Bybee. The memo constituted a formal legal opinion of the Office of Legal Counsel (OLC) of the Department of Justice.

Another memo, recently declassified, was written in May of 2005. This memo justified waterboarding as a lawful means of interrogation by CIA employees. It was written by Assistant Attorney General Steven G. Bradbury, again as an opinion of the Justice Department’s OLC.

John Yoo’s 2002 memo was bizarre. Its most notorious conclusion was that for an interrogator’s act to constitute torture it must cause pain “equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death.” Any physical abuse short of this was legally permissible.

What was as remarkable as Yoo’s definition of torture was the legal authority he cited for the definition. He relied upon West Va. Univ. Hosps., Inc v. Casey, 499 U.S. 83 (1991). The issue in the West Virginia case was not torture, but the scope of coverage under Medicaid reimbursement. This non sequitur citation was consistent with the quality of Yoo’s legal arguments more generally.

He concluded in Part V of the memo that federal laws such as the anti-torture statute were unenforceable against executive branch officials as they would interfere with the President’s ability to wage war. Mr. Yoo did not speak to the language of the Constitution in Article One, section 8, clause 14 which states that Congress shall have the power “To make Rules for the Government and Regulation of the land and naval Forces.” Nor did he address issues of military law.

Yoo’s torture memo was withdrawn as an OLC Opinion by Jack Goldsmith in 2004 before Goldsmith resigned from the Justice Department. Torture did however occur during the period when the OLC Opinion was in effect. Given the quality of Yoo’s legal reasoning, it is hard to conclude Yoo’s memo was written in good faith.

Unfortunately U.S. torture of detainees did not stop in 2004. I mentioned the Bradbury memo of 2005 because the controversy over waterboarding apparently continues. Bradbury concluded that waterboarding is a lawful form of interrogation under certain circumstances. There is no reference in the Bradbury memo to U.S. convictions of Japanese officers after World War II for waterboarding American POWs.

One could go on about other Bush Justice Department memos, but my point is a simple one. The United States stood for very different values in the Nuremberg prosecutions after World War II. These values were more in line with Lincoln’s sensibilities as Commander-in-Chief, when he refused to engage in reprisals for Southern war crimes against Union prisoners of war. The question now is: shall we remain who we have professed to be?

I realize the enormous political cost to the Obama administration of a public inquiry or criminal investigation of officials of the previous administration. The dilemma is that to ignore U.S. memos authorizing torture may do greater damage to our identity and well-being as a nation. To paraphrase Justice Brandeis, we would be tacitly endorsing “men of zeal without understanding.”

James Friedman is Professor of Constitutional Law at the University of Maine School of Law. He previously served as Distinguished Visiting Professor of Law at the United States Military Academy, West Point.

Judging Gaza: The Israeli Government Report

noreply@blogger.com (Ingrid Burke) — Fri, 07 Aug 2009 18:31:00 +0000

JURIST Guest Columnist Robbie Sabel of the Hebrew University Faculty of Law in Jerusalem, Israel, says that despite its partisan nature, a report issued by Israel's government on the legal and factual underpinnings of the December-January Gaza offensive is a development that should be welcomed by the legal community....

The Israeli government has lately posted on its website a lengthy and detailed examination of the legal and factual background of its military operations in Gaza during December and January of this past year. The Report is avowedly partisan and is no doubt intended as a response to calls for an international enquiry made by various international NGOs and to a complaint submitted to the ICC by the Palestinian Authority. However the very fact that a government involved in a controversial military operation consequently publishes in real time a detailed legal and factual brief is a development to be welcomed by the legal world. It could transform the public debate from an exchange of sound bite-like recriminations into a discourse as to the very real legal dilemmas involved in a regular army fighting irregular fighters of a non-state actor.

Self Defence Against Non-State Actors?

Among the issues studied is the cardinal issue of whether Israel had the right in the first place, to use armed force against the Hamas in Gaza. The Israeli report lists the armed attacks by Hamas against Israel and, not surprisingly, concludes that Israel was acting in accordance with its inherent right of self defence. The report bases its conclusion on the wording of Security Council Resolution 1368 which recognized “the inherent right of individual or collective self-defence,” in connection with “threats to international peace and security caused by terrorist acts” and Security Council Resolution 1373 which noted that “international terrorism constitute[s] a threat to international peace and security” while “reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368”. The report does not ignore the ICJ advisory opinion on the Separation Wall which concluded that a right of self defence applies only to attacks by a State . The report quotes various authorities (see Report footnote 48) including dissenting judges Buergenthal and Higgins for the conclusion that the Court had erred in its opinion on this issue.

The Applicability of the Laws of Armed Conflict?

The report questions whether the laws of armed conflict applied to the conflict in Gaza and if so whether it was an internal or international conflict. Here the Report applies a pragmatic approach quoting the decision of the International Criminal Tribunal for the former Yugoslavia in the Tadić case, that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” The Report concludes that "The conflict between Israel and Hamas in Gaza meets this definition". (Report, paragraph 28). The report added that "Israel as a matter of policy applies to its military operations in Gaza the rules of armed conflict governing both international and non-international armed conflicts. At the end of the day, classification of the armed conflict between Hamas and Israel as international or non-international in the current context is largely of theoretical concern, as many similar norms and principles govern both types of conflicts". (Report, paragraph 30). This pragmatic approach was the approach adopted by the Israel Supreme Court which ruled in a series of cases that the Israel armed forces were bound to comply with the laws of war whenever they were engaged in armed conflict, regardless of the classification of the conflict and without regard to the behavior of the other side.

Civilian Casualties

The Report admits that there were heavy casualties among the civilian population of Gaza but adds a caveat that "The fact of civilian casualties in an armed conflict, even in significant numbers, does not in and of itself establish any violation of international law. In fact, the doctrine of proportionality operates in scenarios in which incidental injury and collateral damage are the foreseeable, albeit undesired, result of attack on a legitimate target”. (Report, paragraph 90) The Report criticizes NGOs and UN bodies for concluding that there were violations of the laws of war based on the uncontested fact that there were civilian casualties. The Report points out that "non-governmental organizations and rapporteurs and committees acting under mandates from international organizations too often jump from reporting tragic incidents involving the death or injury of civilians during armed combat, to the assertion of sweeping conclusions within a matter of hours, days or weeks, that the reported casualties ipso facto demonstrate violations of international law, or even “war crimes". (Report, paragraph 34) The Report points out that in the law of armed conflict "any assessment of the legality of particular conduct cannot focus only on the consequences (whether civilians were harmed). Instead, the proper focus is on whether the persons carrying out the attack, based on what they knew and the conditions they faced at the time, complied with the applicable rules of international law". (Report, paragraph 93) The report brings legal authority that "the presence of civilians at a site (whether voluntarily or involuntarily) does not by itself forbid an attack on an otherwise legitimate military target." (Report, paragraph 99). "Military operations that cause unintended and unwanted damage to civilians do not constitute violations of the Law of Armed Conflict, much less a war crime." (Report, paragraph 114). In other words, there is no indication of a “war crime” simply because others conclude after the conflict that a different decision — often, a snap decision taken on the battlefield — could have led to fewer civilian casualties. To the contrary, if the commander in the field did not intend and did not know that the attack would cause clearly excessive levels of civil harm, there is no legal basis for labeling it as war crime". (Report, paragraph 129).

What if the Enemy Purposely places Civilians in Danger?

The Report states that the Hamas policy of placing "weapons systems in or near apartment buildings, schools, mosques or medical facilities, or to encourage civilians to gather in areas that are likely military targets — violates the Law of Armed Conflict, because such tactics inevitably increase civilian casualties beyond what otherwise might occur in connection with an attack on a legitimate military target." (Report, paragraph 139). Such behavior is certainly a violation of the laws of war but the Report does not claim that such Hamas behavior negates the obligation of the other side, in this case Israel, to ensure proportionality. The Report leaves open the thorny question of whether such behavior by Hamas should affect if at all the obligations of the other side as regards targeting such military objectives.

Is Hamas Bound by the Laws of War?

The Report refers to Hamas violations of the laws of war and to war crimes that can be attributed to the individual members of the Organization. The Report refrains from examining whether Hamas as an organization is bound by international law including the laws of armed conflict. The question could be asked for instance whether Al Qaeda is subject to international law and I believe the answer here again to be that individual members are guilty of war crimes and there is no utility in examining whether such non-state actors who act completely outside international legal frameworks are subject to international law. The analogy could perhaps be made to a non-incorporated criminal gang in national legal systems. It is the individuals who violate the law.

The Complementary Principle in Applying Universal Jurisdiction

The Report, for obvious reasons, stresses that third party States should intervene by prosecuting alleged violations of the laws of war only where the State involved either lacks an independent legal system of its own or lacks the will to undertake a bona fide investigation. The report quotes at length from the decision of the Spanish court of appeal that refused to deal with a complaint against an earlier Israeli bombing in Gaza as "Israel’s system of appellate review was independent and impartial". (Report, paragraph 306).

Conclusion

A legal report on its military operations issued for international consumption by any government is bound to be partisan. Nevertheless the issuing of such a detailed and well researched report is a valuable precedent and it is to be hoped that we will see in the future similar reports by other governments.

Robbie Sabel is a visiting Professor of International Law at the Hebrew University in Jerusalem

Civilians Can Keep Secrets Too: Trying Terror Suspects in Federal Courts

noreply@blogger.com (Ingrid Burke) — Tue, 04 Aug 2009 17:35:00 +0000

JURIST Guest Columnists Victor M. Hansen and Lawrence M. Friedman of New England School of Law say that while there may be reasons not to try terror suspects in civilian courts in the United States, the problem created by the need to safeguard classified information is not one of them....

Today, almost eight years after the terrorist attacks of September 11, debate continues over whether the United States should try the suspects being held at Guantanamo Bay in military commissions or in civilian courts, or in some combination of the two, depending on the suspect and the allegations. One of the arguments that has been made repeatedly is that a problem with trying terrorism suspects in civilian courts is the potential disclosure of classified information. The risk that such information may be revealed in the course of a trial is unreasonably high, the argument goes, and the more flexible rules governing military commissions are therefore preferable.

The premise of this argument does not withstand close consideration. Judges in our federal district courts have multiple tools at their disposal to ensure that no classified information is revealed beyond what is necessary for the lawyers on both sides of the case to do their jobs.

Indeed, the current rule governing classified information in the military commissions reads very much like the Classified Information Procedures Act (CIPA) and equivalent rule governing military courts-martial. As the military commissions in Guantanamo have continued to evolve to resemble ordinary military courts-martial, moreover, with evidentiary rules and procedures that favor fairness over expediency, they have demonstrated ways in which classified information necessary to hearings nonetheless can be protected.

In a Guantanamo Bay hearing room, for example, observers are separated from the commission, lawyers and suspects by a glass partition. Sound from the hearing reaches observers via speakers and on a 40 second delay. This set-up allows the audio feed to be blocked if someone in the courtroom makes mention of classified material. A person in the courtroom monitors the proceedings and has the ability to mute them with a press of a button if classified information is discussed. When this occurs, a red light flashes so that everyone in the courtroom, and particularly the judge, is aware that classified information is being discussed.

One of us recently had the opportunity to observe hearings in Guantanamo. At a hearing concerning the 9/11 co-conspirators, this system of muting classified evidence was employed for a brief period. Observers were not able to hear what was being said and, as important, when the audio feed returned the judge cautioned the defense counsel not to discuss the classified topics in this forum—there was a classified session of the hearings scheduled for later that afternoon to which the public was not invited. The judge made factual findings on the record stating that the interest in national security outweighed the public's right to know in respect to the matters that would be discussed at the closed hearing. Even though the public would be excluded from the hearing, the accused and counsel would be present. This system appeared to function in an orderly fashion.

As President Obama and his advisers continue to consider what to do with the detainees at Guantanamo and whether any of their cases should be tried in civilian courts in the U.S., we would do well to remember that the need to safeguard classified intelligence information need not preclude the fair administration of justice in American courts of law. Civilian judges, like their Commission counterparts, are capable of striking the appropriate balance in determining whether the discussion of certain information must be confined to the attorneys and the suspects, and also of taking the steps necessary to ensure that such information is not inadvertently disclosed.

And, while the debate over where to try the detainees continues, the federal district court in Washington, D.C. continues to entertain habeas petitions from the detainees and evaluate their merit. Like the military commissions, the judges on the district court have proved themselves fully capable of protecting classified information while at the same time ensuring the suspect a fair hearing. There may be reasons not to try terror suspects in civilian courts in the United States, but the problem created by the need to safeguard classified information is not one of them.

Lawrence Friedman and Victor Hansen teach constitutional law and criminal law courses, respectively, 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.

Strong-arm Rule or Rule of Law? Prospects for Legal Reform in Russia

noreply@blogger.com (Ingrid Burke) — Fri, 31 Jul 2009 19:21:00 +0000

JURIST Guest Columnist Pamela A. Jordan, an associate professor of history at the University of Saskatchewan (Canada) who writes on politics and human rights developments in Russia, says that the recent murder of Chechnya human rights activist Natalia Estemirova may help jolt average Russians into demanding that their leaders finally get serious about legal reform....

Prospects for legal reform in Russia are closely linked to the country’s wider political context, particularly the regime’s threat perception and its concerns about economic development. In 2008, Russian liberals had some reason to invest their hopes in their newly elected president, Dmitry Medvedev, despite his being a protégé of his predecessor, Vladimir Putin. Unlike Putin, he has no KGB past and, born in 1965, came of age during Mikhail Gorbachev’s perestroika. Before his election, Medvedev — a lawyer by training — publicly stated his intention to combat “legal nihilism,” by ensuring judicial independence, fighting corruption, and educating average Russians about the law.

So far, though, it remains unclear whether Medvedev truly supports full governmental transparency and accountability or encourages reforms that would check the power of the Kremlin, two necessary ingredients for legal reform. In evaluating Russia’s prospects for legal reform, we also need to distinguish between structural reform (the adoption and implementation of laws governing courts and the legal profession) on the one hand, and attitudinal changes on the other. The latter are far more difficult to foster among law-enforcement officials, judges, and even the public at large. Russians are now using the civil and arbitrazh (commercial) courts in higher numbers than before to resolve their conflicts. However, despite this promising trend, they still do not trust the courts to satisfy their claims against public officials, as shown by data published in a report on Russian public opinion (March 2008-March 2009) by the independent Levada Analytical Center.

Putin’s Legal Legacy

What kind of legal system did Medvedev inherit from Putin, who, as prime minister, is still widely viewed as the dominant ruler of Russia? Putin, himself trained as a lawyer, famously proclaimed a “dictatorship of law” as a strategy for empowering the Russian state through a universal observance of federal legislation and government decrees. Despite his reputation in the West as an authoritarian ruler, there is some evidence that he actually strengthened the foundations for a future rule-of-law state during his eight-year presidency (2000-2008). He supported the adoption of new laws that—at least on paper—fostered an independent judiciary and built on earlier, although more modest, achievements made during Boris Yeltsin’s presidency (1991-99).

These measures included liberal, reform-minded criminal procedure, civil, civil procedure, and land codes, as well as a new law on the advokatura (the Russian bar). For instance, the criminal procedure code injects adversarial elements into an existing inquisitorial process, while the civil code promotes a free market system. The new law on the advokatura was meant to protect advocates against prosecution and state intervention and to enable the bar’s professional organs to maintain a minimum level of quality control for new entrants. Putin also supported a law creating new justice of the peace courts, in an attempt to alleviate judges’ heavy caseloads. During his presidency, jury trials in more serious criminal cases were instituted in every region but Chechnya, and Russia ratified international conventions, including the UN Convention Against Corruption and the Criminal Law Convention on Corruption of the Council of Europe, which obligate it to meet certain standards of compliance. Thanks to increasing oil and gas revenues, Putin’s federal budgets allocated more operating funds to Russia’s 2,600 courts and significantly increased the salaries of its 37,000 judges. Even a June 2009 Council of Europe report about politically-motivated abuses of the Russian criminal justice system found that “strong improvements in the social status of judges and prosecutors in recent years have all but eliminated their dependence on executive bodies for housing and other basic needs and should help in reducing judicial corruption.”

Russia’s membership in the Council of Europe and participation in cases adjudicated by the European Court of Human Rights have resulted in some positive, though limited, effects on the Russian legal system. Russia joined the Council of Europe in 1996, and it ratified the European Convention on Human Rights and Fundamental Freedoms, which grants Russian citizens the right to file complaints against Russia in the ECtHR after exhausting their options for redress in domestic courts. Most complaints have centered on either the widespread failure to execute court decisions in civil cases or to honor the due process rights of defendants in criminal cases. The number of ECtHR judgments in which Russia was a defendant rose from two in 2002 to over 700 in May 2009. In the spring 2009 issue of Demokratizatsiya, Alexei Trochev found that “Russian judges increasingly refer to the jurisprudence of the ECtHR despite Russia’s losses in the Strasbourg court, the insistence of Russia’s leaders that ECtHR decisions are ‘politicized’, and the resistance among certain circles in the legal academy to recognizing the binding force of ECtHR judgments on Russia’s courts.”

In the end, however, Putin’s commitment to legal reform was limited, and problems in the justice system remained widespread. He first and foremost served the interests of his fellow siloviki (officials in law-enforcement agencies and the military), and, predictably, did not reform conservative law-enforcement agencies. As a result, corruption became even more entrenched during his presidency, to a point where it was undermining further economic development and deterring many foreign businesspeople from investing in Russia. It should be no surprise, then, to learn that Transparency International ranked Russia 147th out of 180 countries in its 2008 Corruption Perception Index.

The conviction of Yukos Oil owner Mikhail Khodorkovsky in 2005 on charges of fraud and tax evasion signaled that the Putin regime was willing to use the justice system as an instrument for undermining its critics, especially potential political rivals like Khodorkovsky. Some Kremlin critics ended up dead, including journalists Anna Politkovskaya and Paul Khlebnikov, as well as former KGB officer Alexander Litvinenko. A select number of regime critics like Roman Nikolaichik were incarcerated in psychiatric wards, and law-enforcement officials regularly harassed and sometimes arrested defense attorneys and breached attorney-client confidentiality in high-profile criminal cases. While Putin waged a second war in Chechnya, Russian forces tortured and murdered Chechen civilians with impunity. Inside the courts, “telephone law” (whereby public officials lean on judges to rule in their favor in politically-sensitive cases) was still sometimes practiced, along with the arbitrary interference of court chairpersons in judicial decisions. In terms of civil cases, state agencies and courts often failed to execute rulings and to defend property rights.

Developments Under Medvedev

One year into Medvedev’s presidency, the signs of a new push for legal reform are mixed. Some recent developments appear to signal change, particularly in light of the fact that Medvedev has publicly expressed his opposition to Putin’s stance on certain policies (i.e., Russia’s application for WTO membership). The signs of legal reform include the release on parole of former Yukos Oil attorney Svetlana Bakhmina, a Russian arbitrazh court’s dismissal of the majority of claims filed by the Federal Tax Service against the British Council, and the dismissal of a corrupt judge. In terms of state-society relations, this July Medvedev approved amendments to a controversial 2006 law that had strengthened state regulation of nongovernmental organizations (NGOs). The amendments are meant to ease several restrictions and are generally viewed as a positive development for civil society.

Other developments are more ambiguous. For instance, Medvedev supports a change to the rules for selecting the chair of the Russian Constitutional Court that would allow him to nominate, and the Federation Council to appoint the chair — who is presently elected by the Court’s justices themselves. The Federation Council is the upper house of Russia’s parliament, and the president indirectly appoints half of its members. Critics of this move say that it is meant to strengthen the so-called executive power vertical, while supporters claim that the change will not compromise judicial independence.

In addition, several recent developments strongly call into question President Medvedev’s professed commitment to end legal nihilism. These include incidents and trends outlined in the aforementioned Council of Europe report, including the murder of human-rights lawyer Stanislav Markelov and journalist Anastasia Baburova on a Moscow street in January. The report argues that “Court chairpersons have disproportionate power over individual judges, in particular because of their power to decide on the distribution of cases. Legal protection for judges resisting such pressures is very limited, as the judges’ councils have not yet developed sufficient independence and standing.” Similarly, an Amnesty International report about widespread human rights abuses in the North Caucasus, especially in Chechnya, finds that law enforcement officials “conduct counter-terrorism measures which, in many instances, entail serious human rights violations…There has been an almost total failure of political will to uphold the rule of law and address impunity for present and past abuses of human rights in the region.” On July 15, Natalia Estemirova, an esteemed human-rights activist in Chechnya, was found murdered. To his credit, Medvedev quickly condemned her murder and praised Estemirova for her work with the NGO Memorial. But Russian human-rights activists insist that his words will not suffice and that Estemirova’s killers will likely remain at large.

Other developments suggest the further politicizing of the legal system. For instance, as William Pomeranz argues in the spring 2009 issue of Demokratizatsiya, Medvedev appears to be looking for more legislative ways to bolster the power vertical, possibly by reinforcing the dominance of Putin’s party of power, Unified Russia, in regional legislatures. In January, Medvedev approved legal amendments that ended jury trials in cases involving terrorism, treason, and other politically-sensitive charges. Also this year, the state launched a second criminal case against Khodorkovsky.

Even if Medvedev is sincere about promoting rule of law, he faces considerable barriers. Conservative factions in the Kremlin reportedly continue to dominate decision making and obstruct legal reform, which would involve transforming a corrupt system that has well served their political and economic interests. Besides conflicts among political clans, the chief obstacles are entrenched interests in the law-enforcement agencies and the powerful Procuracy, which supervises criminal investigations and prosecutes criminal cases. Even many judges are former law-enforcement officials and thus more prone to accusatory bias. In general, as Trochev’s research shows, judges face a host of internal and external pressures that prevent them from applying measures in the European Human Rights Convention.

In addition, as demonstrated by widespread banditry in the North Caucasus, adherence to federal law is not universal. According to the 1993 Russian Constitution, federal law takes precedence over regional law, but in reality this measure is not yet observed in all 83 regions of the Russian Federation. It is also important to note that, while on the one hand, the Kremlin strives to centralize power in Moscow, it has, on the other, turned a blind eye to illegality in some regions. For example, human-rights activists have attributed Estemirova’s murder to Chechen President Ramzan Kadyrov, a corrupt warlord whom President Putin appointed in 2007. Estemirova herself reported that the Kremlin “gave a green light to the special service and local militia to do as they please here, on the condition that they provide Chechnya’s absolute loyalty to Russia.”

Long-Term Prospects for Legal Reform

Medvedev and Putin are more likely to support legal reforms over which they have a semblance of vertical control, including as primary drafters of legislation and as the overseers of a new television channel called Law TV, than those proposed by, say, independent human rights NGOs with ties to Western groups. Russia’s leaders tolerate autonomous NGO activity so long as they feel sure that it does not threaten the regime’s legitimacy or the power bases of key political and economic elites.

Certain reforms may stand a better chance of being implemented if they correspond to Russia’s obligations under international legal conventions, especially those embedded in intergovernmental organizations that are important to Russia’s international prestige. Legal reforms may also be internalized if Russia’s leaders perceive that doing so will result in more foreign direct investment, which is crucial to diversifying Russia’s economy. According to Valery Zorkin, the chair of Russia’s Constitutional Court, “Flagrant nihilism in regard to international legal values becomes too costly during the solution of any serious problem, be it privatization, or regulation of the securities market.” Unfortunately, Russia’s commitment to international law was severely compromised after its invasion of Georgia last August.

The good news is that Russia has a core group of dedicated legal reformers (academics and practicing lawyers), in addition to a dwindling number of courageous human-rights activists and investigative journalists who document the state’s corrupt practices and human-rights abuses. Russian legal reformers already have strong blueprints for change that build on the Concept of Judicial Reform of 1991, the 1993 Russian Constitution, and other key documents. Take, for instance, the report “The World Rule of Law Movement and Russian Legal Reform,” which was published in 2007 by the Moscow City Chamber of Advocates in cooperation with leaders of the International Bar Association and other foreign legal experts. It contains several articles outlining well-designed ways to promote legal reform. The authors stress that, for legal reform to take hold, Russian legal education must improve, especially in regards to training judges and lawyers, teaching legal ethics, and keeping abreast of Russia’s obligations under international law and frequent revisions to its own domestic laws.

The major obstacles to legal reform can be chiefly attributed to attitudinal factors, specifically, a lack of political will among law-enforcement officials and the Kremlin itself, rather than a lack of viable blueprints for change. If Medvedev is attempting to break free of Putin’s dominance and transform Russian society along more democratic lines, now is the time for him to capitalize on whatever good will is left among legal reformers and other liberals.

Recent accounts, including a piece in the New York Times, suggest that “there are signs of a growing demand for civic discourse,” especially as Russians see that the regime has further limited their freedom of speech and assembly and has dealt irresponsibly with the economic recession and long-standing demographic problems in Russia. If any good can come from Estemirova’s murder, it might very well be that it will jolt average Russians into demanding that their leaders finally get serious about legal reform.

Pamela A. Jordan is associate professor of history at the University of Saskatchewan, Saskatoon, Canada. She is the author of Defending Rights in Russia: Lawyers, the State, and Legal Reform in the Post-Soviet Era (University of British Columbia Press, 2005).