Real-time comments on legal news by newsmakers, activists, legal experts and special guests...

Comments from JURIST - Hotline: January 2009
  • EU accepting Guantánamo detainees would signal global support for restoring rule of law
  • FTC should consider competition from regular supermarkets in review of Whole Foods merger
  • Illinois school prayer case features statute that is mere religious marketing device
  • Plaintiffs in Illinois "moment of silence" case lack standing under the Constitution
  • No transparency on the Obama White House website
  • Change of position by state warrants Supreme Court affirmance in Brillon speedy trial case
  • Guantanamo detainees seeking UK asylum would face uncertain future under current law
  • Abduction of Zimbabwe rights activist Mukoko shows Mugabe's contempt for opposition
  • Obama should appoint commission to examine alleged detainee abuse
  • Obama must not allow Bagram prison to remain an Afghan version of Guantanamo
  • Military judge's ruling to throw out Mohammed Jawad's confession should be upheld
  • President Bush has used pardon power modestly compared to predecessors
  • Bosnian War Crimes Chamber may fail to encourage postwar reconciliation
  • Jarrar settlement promotes security in civil aviation while protecting civil liberties
  • Amnesty International's criticism of Israeli action in Gaza distorts the law of war
  • Germany's use of sovereign immunity to block claims from WWII atrocities lacks basis in international law
  • Amnesty International's anti-Israel stance undermines human rights and international law

  • Saturday, January 31, 2009

    EU accepting Guantánamo detainees would signal global support for restoring rule of law
    9:25 AM ET

    Jennifer Turner [Human Rights Researcher, ACLU Human Rights Program]: "President Obama's recent executive orders to close the Guantánamo Bay prison camp within a year and to reverse many of the Bush Administration's most egregious detention and torture policies were a huge first step in restoring America's standing in the world. With his swift actions, Obama sent a message to the world that the U.S. is newly recommitted to the rule of law. In an encouraging sign, our European allies are now responding to that recommitment. On Monday, European Union (EU) Commissioner Javier Solana announced that several EU member states would likely be willing to accept former Guantánamo Bay prisoners.

    The ACLU welcomes the interest of the European leaders, who are trying to assist Obama in making good on his promise to shut down Guantánamo. Their leadership signals a new day not just in America, but in relations with our European allies. Guantánamo was a problem created by the Bush administration, and the fact that several European countries are willing to assist in this uniquely American legal debacle should be welcomed and appreciated for what it is.

    To encourage other countries to support the Obama Administration's closure of Guantánamo and to facilitate swift restoration of the rule of law, the United States should also accept some of the former Guantánamo detainees cleared of wrongdoing for resettlement in the U.S. As a first step, the Obama Administration should respond to the EU's offer by resettling in the U.S. the 17 Uighur Guantánamo detainees who are members of a long-persecuted Chinese Muslim minority. More than three months ago, a federal judge ordered the government to transfer the Uighurs to the U.S., but that order is on hold due to a pending Bush Administration legal challenge.

    While it is positive news that progress is being made to implement the closure of Guantánamo, it should be noted that the executive order signed by the president merely outlines a process and not the complete plan for shutting down the prison camp. The executive order leaves open questions as to whether terrorism suspects may still be held indefinitely without charge or whether the military commissions will be ended and not just halted.

    The Obama Administration must continue to take steps to fully restore the rule of law as it moves toward shuttering Guantánamo. That means full and fair criminal trials of Guantánamo detainees in U.S. courts, or repatriation to their home countries or resettlement in third countries in cases where detainees would face torture or indefinite detention at home. Assurances from the Obama Administration that indefinite detention will be unequivocally banned and that the Guantánamo military commissions won't be shipped to American shores would help expedite the closing of Guantánamo and the long-delayed release of certain prisoners, and assure the world that the rule of law will be fully restored."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Tuesday, January 27, 2009

    FTC should consider competition from regular supermarkets in review of Whole Foods merger
    8:22 PM ET

    Robert Doyle [Partner, Doyle, Barlow and Mazard, PLLC]: "The FTC's insistence on pursuing the consummated Whole Foods/Wild Oats transaction is based on a fundamental misunderstanding of present competition between traditional supermarkets and organic food stores. The FTC is seeking to undo Whole Foods' acquisition of rival Wild Oats after losing a 2007 preliminary injunction proceeding which was overturned on appeal. Whole Foods and Wild Oats quickly merged prior to the appellate court's reversal.

    Traditional supermarkets and specialty organic food retailers have competed with each other and continue to do so aggressively, particularly now given the deep and growing recession we face and the desire for consumers to balance price and quality, and to seek out the least cost food alternatives. Post acquisition evidence suggests that organic food stores, particularly Whole Foods, have suffered sales and revenue losses to the more traditional supermarkets that now offer a number of new organic food lines. Regardless of what the internal Whole Foods' documents or the company's CEO might have said at the time of its acquisition of Wild Oats, which seem to have formed the basis of the FTC case, the Commission needs to look now at the realities of the marketplace today and judge the state of competition. Though the merged parties may have acknowledged in their past planning and marketing documents the uniqueness of the organic food retail market and shopping experience, present face-to-face competition between Whole Foods and traditional grocery stores speaks volumes of the degree to which these two shopping alternatives now interact in the marketplace. To now argue, as the FTC continues to do, that all organic food stores are a separate market with distinct pricing power, facing no competitive influence from traditional supermarkets, is unrealistic and contrary to everyday observations in the marketplace.

    In addition to pursuing a flawed theory, this continued FTC action wastes Commission resources and directs FTC attention away from more productive conduct and merger enforcement actions. Crafting a remedy may be futile since many Wild Oats stores have been fully integrated into the Whole Foods' system, are in disrepair, or have been shuttered and abandoned. After years of litigation, if the Commission were to win, it may be unrealistic to expect a court to resurrect or reconfigure a set of abandoned stores that could be a viable supermarket competitor in the future. Simply said, it is too costly and too late to unscramble the eggs!"

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Illinois school prayer case features statute that is mere religious marketing device
    5:24 PM ET

    Rob Sherman [Social activist, plaintiff in Sherman v. Township High School District 214]: "The real purpose of the Student Prayer Act was a "see, try and buy" marketing scam by Christian legislators. Christians already had the right to pray before, after and even during school. What they really wanted to accomplish through this law was to force a captive audience of non-religious kids to see the Christian kids praying, in the hope that the non-religious kids would then try it, too, and like it enough to buy into their religious lifestyle. This was all about marketing religion, and nothing about religious freedom.

    As stated above, religious kids already had the right to pray, any time they want, even during school. What we atheists objected to was a law that required the teacher to stop teaching during instructional time so that the religious kids could waste time praying during class time instead of studying like they're supposed to be doing. We atheists certainly resented a law that requires us to waste our time, standing around doing nothing during what should be productive time, just so that Christian kids could make a sales pitch for religion.

    When I learned that the judge was a former Board Member of the ACLU of Illinois, I knew that, basically, all we had to do was show up and we would win. If the Illinois Attorney General appeals, I'll surely lose, because the 7th Circuit is well known to be radically conservative, so I hope that she doesn't appeal.

    As a result of the extreme politicization of our courts by the past three Republican presidents, the courts have lost all credibility. Court cases are decided on the basis of politics, not on the basis of the facts or the law. Most of us can predict the outcome of Supreme Court cases strictly on the basis of politics. Indeed, we can reliably predict not only how many votes each side will get, but also which justices will vote which way. When that happens, it says that court decisions truly are based on politics, not the merits."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Plaintiffs in Illinois "moment of silence" case lack standing under the Constitution
    9:35 AM ET

    Jeremy Tedesco [Legal counsel, Alliance Defense Fund]: "The Northern District of Illinois recently struck down an Illinois law that mandates a brief period of silence before the start of each public school day in Sherman v. Township High School District 214. The lawsuit was brought by a prominent Illinois atheist and his daughter, who attends a public school where the moment of silence was implemented. Among other things, the court's decision illustrates the problem with the lax, indeed nearly non-existent, standing "requirements" that some federal courts apply to Establishment Clause plaintiffs.

    Pursuant to Article III of the United States Constitution, a plaintiff must demonstrate, inter alia, an "injury in fact" for a federal court to exercise jurisdiction over his case. The United States Supreme Court has explained that this injury must be "actual" and "concrete," and cannot be "conjectural" or "hypothetical."

    So what injury can a student possibly claim by being exposed to a room full of completely silent students? There is none. Because every student in a class is silent during a moment of silence, the only way to claim an injury is based on the assumption that other students are praying. But there are several problems with this. First, it is black-letter law that an Article III injury cannot be predicated on mere conjecture, but that is all a plaintiff can rely on in challenging a moment of silence.

    Worse, this "I know what you are thinking" theory of standing asks a court to accept the nonsensical - that a plaintiff is "coerced" to pray because he assumes that other students around him are praying, even though he cannot know if they are praying. If we are making assumptions, why not assume that students are using nonreligious modes of silent activity during the moment of silence, like reflecting on an upcoming math test? Is a student "coerced" to reflect on the math test if he assumes a fellow student is silently reflecting on the test? Of course not, and neither is he "coerced" to pray if he assumes a fellow student is praying. This whole theory of standing is a house of cards that tumbles under the slightest scrutiny.

    While other litigants must show evidence of a direct and actual injury to satisfy Article III's standing requirements, courts all too often allow Establishment Clause plaintiffs to satisfy these requirements by merely alleging that they think a law violates the Establishment Clause, or that they are offended by the law. That is all the plaintiff in Sherman could muster. If this is sufficient to confer standing, that doctrine no longer exists for Establishment Clause plaintiffs."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Friday, January 23, 2009

    No transparency on the Obama White House website
    1:23 PM ET

    Howard M. Friedman [Distinguished University Professor Emeritus, University of Toledo College of Law]: "For an administration that has made so much of both transparency and technology, to date the Obama staff has earned an extremely low grade on content and timeliness of the new White House website. The Bush White House quickly posted Presidential statements and remarks, news items regarding the President’s activities, bill signings, and the like. It also posted transcripts of daily press briefings. The Obama White House website, at least so far, has little of this.

    Much of the website contains fairly static material. The "Briefing Room" section is apparently intended as the repository for current developments. Presumably Obama's section captioned "The Blog" is intended to be the replacement for daily news postings from the Bush White House. However, as of Thursday afternoon the latest Blog posting was Obama's Inaugural Address. The media have chronicled a number of newsworthy events occupying the President on Wednesday and Thursday. One might have at least expected some mention online of the second "swearing-in" of President Obama.

    Like the Bush website, Obama's has sections for the text of Executive Orders and Proclamations. One would have hoped that the important Executive Orders relating to the closing of the Guantanamo Bay detention facility would have been posted immediately upon their issuance. As of Thursday afternoon, they had not appeared.

    I suspect there were press briefings on Wednesday and Thursday. No mention of them, let alone transcripts, appears. There is a section of the website for "Pool Reports." As of Thursday afternoon, none appear.

    A final irritation is that the Obama White House has taken down all the primary source documents (Executive Orders and Proclamations) that were on the Bush White House site. Many of these still have the force of law, and continued access to them in some way would be most helpful.

    Perhaps the new White House webmaster's office has not yet quite gotten its act together. However I would expect more since the first White House Blog posting that appeared emphasized that the new website (put up within minutes of Obama's swearing-in) "will feature timely and in-depth content to keep everyone up-to-date and educated.""

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Thursday, January 22, 2009

    Change of position by state warrants Supreme Court affirmance in Brillon speedy trial case
    3:46 PM ET

    Steven R. Shapiro, Robin L. Dahlberg, Dan Barrett [ACLU], Anthony Franze, Robert Stolworthy and Stanton Jones [Arnold & Porter LLP]: "On January 13, 2009, the Supreme Court heard argument in Vermont v. Brillon, which addressed whether trial delays caused by underfunding, mismanagement, and breakdowns in the State's public defense system deprived an indigent defendant whose trial was delayed for nearly three years of his Sixth Amendment right to a speedy trial.

    The Vermont Supreme Court had reversed the defendant's conviction and ordered the charges dismissed, finding that his trial was unconstitutionally delayed due largely to failures of the public defender system that left the defendant unrepresented for months at a time or merely nominally represented by a series of assigned counsel who did little to prepare his case. The Vermont Supreme Court held that the State, not the indigent defendant, was responsible for these types of delays under the U.S. Supreme Court's longstanding balancing test used to assess speedy trial violations.

    On appeal to the U.S. Supreme Court, the State of Vermont (and its amici curiae, including 40 other states) originally took a bright line position. They argued that delays caused by public defenders can never be attributed to the State because defense counsel are not state actors. Pet. Br. at 26, 30; Utah et al. Amici Br. at 6-8. Vermont further asserted that the Vermont Supreme Court's decision was "a first in the history of American jurisprudence" and "turn[ed] thirty-six years of settled jurisprudence into chaos." Pet. Br. at 1.

    By the time of the oral argument, however, the State appeared to have dramatically changed its position, essentially conceding the core legal issue in the case. Specifically, the defendant's brief correctly pointed out that like Vermont, other courts had repeatedly charged States with pretrial delays such as those at issue. Moreover, on behalf of amici curiae the ACLU, ACLU of Vermont, and the National Association of Criminal Defense Lawyers, we identified decades of jurisprudence in the closely related post-trial context attributing to the State delays caused by breakdowns in appellate defender systems. ACLU et al. Amici Br. at 2-3, 18-30. Beyond that, a group of retired state court justice amici pointed out that, in the lower court, the State's lawyers had conceded that allowing the defendant to go unrepresented for months could be weighed against the State. Justices Amici Br. at 3.

    Thus, at oral argument Vermont retreated from its prior position that in a speedy trial analysis, courts could never attribute to the State delays caused by public defenders. For instance, Chief Justice Roberts asked Vermont's counsel whether the State would be responsible if "[t]he State has so many cases, and it's only willing to hire one lawyer. That lawyer can't possibly handle all the cases." Tr. at 7. Vermont's attorney responded affirmatively. Similarly, the Solicitor General, arguing in support of Vermont, acknowledged during the argument that courts can hold the State responsible for some delays caused by public defense systems, Tr. at 24-25, and recognized that Vermont had conceded as much in the lower court. Tr. at 28.

    Having retreated from a bright line rule, the State devoted most of the oral argument to debating the facts – the purported causes of the defendant's trial delays. This prompted Justice Souter to note, "it seems to me that there isn't an issue of principle dividing the parties here, it's a series of issues of details." Tr. at 10. Justice Scalia later lamented, "you began your presentation with a statement that gave me so much hope. You said you were going to give us three reasons why we wouldn't have to get into the hairy facts of the case and could decide it on...issues of law." Tr. at 18.

    In short, once the State was forced to abandon its overreaching and demonstrably incorrect position that the Vermont Supreme Court's approach was unprecedented, and then had to retreat from its original bright line rule, and finally was confronted with its waiver of the issue in the lower court, there remained little doubt that the Vermont Supreme Court's decision not only adhered to decades of lower court jurisprudence, but also presented a poor vehicle for examining the scope of the speedy trial right. The remaining thread by which the State's position hangs is a disputed factual assertion already rejected by the lower state court. That is not the type of determination the Supreme Court should overturn."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Wednesday, January 21, 2009

    Guantanamo detainees seeking UK asylum would face uncertain future under current law
    7:45 AM ET

    Liz Griffith [Policy Officer, Law Centre (NI), Belfast, Northern Ireland]: "President-elect Obama's apparent decision to close Guantanamo has received wide support in the UK government. Nine UK nationals were returned to the UK in 2004 and 2005 following extensive campaigning by civic society and high level representations from the UK government. Three men who were previously lawfully resident in the UK were also returned in December 2007. Organizations, such as Amnesty International, are still campaigning for the release of 3 more men who have connections to the UK.

    Despite speculation, the Foreign Office has confirmed that it has made no formal offer to the US to accept any additional detainees. However, the UK has urged European countries to follow its example in respect of their own nationals and former legal residents.

    This comment outlines a backdrop to some of the legal issues that could arise if the UK agrees to accept additional detainees. This only applies to Guantanamo detainees from other countries, such as Yemen, who have never held UK residency and have no UK connections but who cannot be returned to their own country.

    Exclusion from refugee status

    A Guantanamo detainee may be eligible to submit an application for asylum in the UK under the 1951 Refugee Convention [PDF file]. However, the Refugee Convention contains exclusion clauses that prevent its provisions being extended to persons who are considered to have committed serious crimes or to be a threat to national security. In such circumstances, a person cannot be awarded the usual 5 years limited leave or refugee status, or the equivalent human rights status. Potentially, these exclusion clauses could apply to some Guantanamo detainees. However, none of the returned Guantanamo detainees have been brought to trial in the UK.

    Living in limbo?

    What status, if any, could thus be granted to detainees who are excluded from refugee status? This issue became apparent in February 2000 when nine Afghans intent on fleeing the Taliban hijacked an airplane and flew to London. The then Home Secretary expressed his determination to deport everyone on the airplane. However, the nine hijackers, fearing reprisals, argued that they would be subject to torture or serious harm on return to Afghanistan. The exclusion criteria clearly applied and the UK would be in breach of its human rights obligations if it were to deport the men. The government was determined not to grant the hijackers any form of status that would enable them to work, study or access benefits, thus effectively leaving the men in limbo. The case was heard before the Court of Appeal amidst widespread political controversy and media condemnation. The court ruled it unlawful to leave the hijackers in limbo and ordered a grant of leave, to be reviewed every six months. This was a landmark case in asylum law and could potentially affect Guantanamo detainees.

    Anti-terror legislation and Control Orders

    Another issue that may be relevant to Guantanamo Bay detainees deemed to pose a terrorist threat is Control Orders. Following the events of September 11th 2001, the UK government entered a derogation to the European Convention on Human Rights Article 5(right to liberty and security). This derogation enabled parliament to pass the Anti-Terrorism, Crime and Security Act 2001 which provided for indefinite detention without trial for foreign nationals who were considered a risk to national security but whose deportation would put them at risk of ill treatment. Ten men were detained under these new powers and were not brought to trial as the government argued that prosecution would risk revealing "sensitive and dangerous intelligence." However, after a lengthy legal battle, the government's derogation was quashed by the House of Lords who ruled that even if a public emergency existed, the legislative response was disproportionate and that the discriminatory aspect was incompatible with the Convention.

    The government responded by enacting new anti-terror legislation, the Prevention of Terrorism Act 2005. This provided the legislative basis for Control Orders: a stringent restriction regime sometimes referred to as a "prison without bars." Control Orders have attracted significant legal scrutiny and the courts have declared some of the most intrusive restrictions – such as 18 hour curfews - to be incompatible with human rights legislation. However, in February 2008, parliament renewed Control Orders legislation and their validity. This could mean that a Guantanamo detainee resettled in the UK could become subject to a Control Order.

    The political climate

    It remains unclear what would happen to any additional detainees who are resettled in the UK. Asylum is a highly politicized issue in the UK and each year sees the advent of new, more stringent legislation that affects all forms of immigration. In recent years, parliament has attempted to pass legislation that could undermine human rights such as increasing pre-charge detention to 42 days. In this instance, the House of Lords acted to prevent its implementation. The European Court on Human Rights (ECtHR) has thankfully remained somewhat impervious to the changing political climate and has consistently ruled against states' attempts to reduce human rights obligations. For example, last year ECtHR declared that states could not rely on "memorandums of understanding," a form of diplomatic assurance that European states argued would prevent the torture or ill treatment of a person if deported to their home country. Despite the worrying political trends to the contrary, civic society is hopeful that human rights will gain new respect under the new US administration. All eyes are on Obama!"

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Tuesday, January 20, 2009

    Abduction of Zimbabwe rights activist Mukoko shows Mugabe's contempt for opposition
    8:50 PM ET

    Ambroise Pierre [Africa Desk, Reporters Without Borders]: "As head of Paris-based Reporters Without Borders' Africa desk, I am both concerned and exasperated by the harsh conditions in which the Zimbabwe authorities are holding journalist and human rights activist Jestina Mukoko.

    First of all, I am concerned because her state of health has seriously deteriorated in the last few weeks. We know that she was tortured in prison after she was abducted from her home on December 3, 2008, and then held in secret for nearly three weeks. In addition, she has been put in solitary confinement in Chikurubi high security prison, which will undoubtedly prove extremely grueling for her. Jestina Mukoko is sick and needs medical treatment, which is being denied to her by the men who are holding her.

    Exasperated as well, because it seems that the courts in Zimbabwe, answering to the orders of the country's political authorities, are doing everything to keep her in detention, even though a High Court ruling on December 24 determined that she should be taken to a hospital. The trial of Jestina Mukoko and her co-accused is a sham, the rights of the detainees are being trampled on, and hearings are constantly being adjourned. As for the charges against this director of the human rights organization, the Zimbabwe Peace Project (ZPP), they are absurd and baseless. Hidden behind the charge of "a terrorist plot aiming to overthrow President Robert Mugabe" is the reality of the authorities' determination to hound opposition activists.

    It is as though the regime of Robert Mugabe was trying to undermine the power-sharing agreement signed with the opposition in September 2008, as though Mugabe has decided to lay bare his cruelty in gagging any independent and critical voices. Against this background, negotiations between the ruling ZANU-PF party and opposition leader Morgan Tsvangirai's Movement for Democratic Change (MDC) will prove to be complicated."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Monday, January 19, 2009

    Obama should appoint commission to examine alleged detainee abuse
    10:24 PM ET

    Jonathan Tracy [Assistant Director, National Institute of Military Justice]: "Several reports, including the recent Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody [PDF file], confirm that U.S. agents committed or tolerated abuses. Further, the evidence indicates that since September 11, 2001, violations of U.S. law, international human rights law and international humanitarian law have been approved by senior administration officials and carried out by U.S. military and civilian personnel. I hope that once in office, President Obama will not allow these events to pass ignobly into the dark recesses of history. The American public deserves a full accounting of what its representative government did in the name of security. To do otherwise would continue the erosion of America's moral standing in the world, and, more importantly, give further credence to the undemocratic notion that certain individuals and offices exist above the law.

    The U.S. military considers the obligations imposed by the law of war binding upon every soldier, sailor, airman and marine. A Department of Defense Regulation requires that all service members must comply with the law of war "during all armed conflicts, however such conflicts are characterized, and in all other military operations." The prohibition against torture and cruel, inhuman, and degrading treatment has long been considered a violation of the law of war. Corresponding articles of the Uniform Code of Military Justice, the law that governs the prosecution of military personnel, criminalize acts by service members that constitute ill treatment of captured persons. However, an important goal of military law is to not limit responsibility to the lowest persons in the chain of command. The principle of "command responsibility" has long been a theory of liability in military prosecutions. Basically, senior officials can be legally responsible for illegal actions of subordinates when the commander ordered the illegal act, knew of the act, either before or during its commission, and did nothing to prevent it, or should have known and failed to take necessary and reasonable steps to insure compliance with the law of war. Based on this principle, prosecuting only lower-level soldiers is not enough when some responsibility belongs to senior commanders and administration officials. Instead, there must be a thorough investigation and accounting on all rungs of the chain of command.

    I believe that early in his administration, President Obama should appoint a non-partisan commission to examine, and provide a comprehensive report on, allegations of detainee abuse and on the policies and procedures that were implemented by all relevant government offices and agencies. When evidence indicates that senior officials bear responsibility the law must be used to deliver justice. One of the cornerstones of a liberal democracy is that the government will operate openly. Such openness is an essential check on government abuse and the arbitrary application of power. But years of secrecy have diminished this principle, further eroding our democratic principles. To stem this erosion and regain our stature and commitment to democracy, President Obama must allow for an open and comprehensive investigation of this sad chapter in our history. This will allow us to chart a new course."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Saturday, January 17, 2009

    Obama must not allow Bagram prison to remain an Afghan version of Guantanamo
    1:20 PM ET

    Sahr MuhammedAlly [Senior Associate, Law and Security Program, Human Rights First]: "On January 20th, President-elect Barack Obama will inherit the responsibility for thousands of detainees being held by the United States in Afghanistan, Guantanamo Bay, and Iraq. Obama has already pledged to close Guantanamo, and the outgoing Bush Administration has entered into a Status of Forces Agreement (SOFA) with the Iraqi government, which contains provisions for handling the 15,000 remaining Iraqi detainees. (Most will be transferred to Iraqi custody for release or prosecution.) But the future for the 600 plus detainees held by the U.S. at Bagram Air Base in Afghanistan remains unclear.

    The Bagram Detainees

    In comparison to Guantanamo, the public knows little about Bagram. Following the U.S. invasion in Afghanistan in October 2001, Bagram Air Base became the central clearing house for captured detainees. In February 2002, the Bush Administration wrongly denied application of the Geneva Conventions to persons detained in Bagram and Guantanamo. Therefore, no proceedings were held by a "competent tribunal," as required by the Geneva Conventions, to determine the status of detainees. This was the first step in creating legal black holes in both Bagram and Guantanamo. Military and intelligence personnel sent many Afghans and suspected terrorists captured in Afghanistan, Pakistan and elsewhere to Guantanamo for detention and interrogation. Transfers from Bagram to Guantanamo, however, began to decline after the 2004 U.S. Supreme Court decisions in Rasul v. Bush and Hamdi v. Rumsfeld, which recognized limited rights of Guantanamo detainees to challenge their detentions in U.S. courts.

    Like Guantanamo, the prison at Bagram is controlled by the United States. The government states that there are over 600 detainees at Bagram, but an exact number is unknown. Unlike Guantanamo, we don't know the nationalities of many of the detainees, why or how long they have been detained, and the circumstances of their capture. We also know little about the treatment they have received or conditions of confinement at the facility. We do know that at least some of the detainees were not captured on any battlefield, but were brought to Bagram from other countries without the benefit of any legal process. Under generally accepted interpretations of the law, this is known as the crime of kidnapping. Press accounts report that some were held by the CIA before being brought to Bagram. In 2002-2003, reports of detainee abuse, including of deaths of two detainees in Bagram, were widely disseminated. The International Committee of the Red Cross (ICRC) is the only entity allowed to visit Bagram. Neither the United Nations nor any international or Afghan human rights organizations can visit Bagram detainees.

    There is no judicial process afforded to Bagram detainees. Afghan courts are unable to exercise jurisdiction over their own, or any other country's, nationals held by the U.S. military in Afghanistan. According to U.S. government court filings, a panel of three U.S. military officers - called an Unlawful Enemy Combatant Review Board (UECRB) - reviews a detainee's status usually within 75 days of being processed in Bagram and every six months thereafter, and recommends release or continued detention. Before April 2008, detainees were not even permitted to appear before the UECRB. There is no appeal from the UECRB determination. Detainees don't question government witnesses, nor can they call their own witnesses or receive guidance from an advocate.

    Habeas for Bagram Detainees?

    On January 7, 2009, in the Federal District Court of the District of Columbia, the International Justice Network, along with law clinics at Yale and Stanford Law Schools, attempted to shed light on some of the Bagram detainees they represent. The lawyers for the four petitioners allege that their clients were seized in Yemen, Pakistan, Thailand, and Tunisia, rendered to Bagram, and have been detained without charge for up to six years. The lawyers, who have never met their clients, were contacted by family members of the detainees. They argue that their clients should have the same rights as Guantanamo detainees to challenge their continued detention in federal court. Habeas rights were restored to Guantanamo detainees by the landmark U.S. Supreme Court decision in Boumediene v. Bush in June 2008.

    The Bush Administration maintains that the Bagram detainees are enemy combatants and the United States can detain them indefinitely, without charge or access to lawyers, until the end of hostilities, whenever that may be. The Supreme Court has rejected this argument repeatedly in connection with Guantanamo detainees. (See SCOTUSblog for a description of the hearing and see Andy Worthington, Seven Years Of Guantánamo, And A Call For Justice At Bagram).

    Current U.S. Policy

    Unlike Guantanamo, which has a declining population, the population of Bagram is growing. The U.S. is building a larger, more permanent, facility to house over 1,000 detainees. The United States is the only military force that imprisons detainees in Bagram. European allies transfer persons to the Afghan government within 96 hours of capture.

    The United States has released some Afghans through the National Peace and Reconciliation Committee. Others, defined by the Pentagon as "low level enemy combatants," have been transferred to Afghan custody for prosecution in the Afghan National Defense Facility (ANDF), built by the United States, in Pul-e-Charkhi prison in the outskirts of Kabul. (See Human Rights First, Arbitrary Justice: Trials of Bagram and Guantanamo Detainees in Afghanistan [PDF file]). While in ANDF, detainees are tried by Afghan authorities under Afghan national security law. I observed trials of former detainees at the ANDF. These trials fall far short of international or even Afghan fair trial standards. Nevertheless, while in Afghan custody, detainees are able to meet their families. The ICRC, the Afghan human rights commission, and the UN all have access to the detainees. President Karzai also has appointed a presidential review committee to evaluate allegations against detainees transferred from the United States and assess whether they should be prosecuted. The transfer to Afghan custody and use of the regular criminal justice system to adjudicate guilt or innocence, and ultimately the duration of continued detention, is a significant change from indefinite detention without judicial review in U.S. military custody.

    The Way Forward

    While a U.S. court is examining the reach of the writ of habeas corpus, the incoming Obama Administration should break with past policies and commit to the application of the rule of law to Bagram detainees. Bagram should not be allowed to remain a law-free zone.

    Release or Transfer Detainees for Prosecution: In June 2002, the government of Hamid Karzai was elected, and the international armed conflict between the United States and the Taliban government ended. In an internal, non-international armed conflict, such as the present conflict in Afghanistan, persons can only be detained pursuant to domestic law. Thus, where appropriate, persons captured by Coalition Forces in Afghanistan after June 2002 should be treated as criminal suspects under Afghan law and transferred to Afghan authorities for prosecution. Some of these detainees can also be prosecuted in U.S. federal courts if suspected of having committed offenses against the United States. Those who cannot be prosecuted should be released. Detainees captured overseas and brought to Afghanistan should be repatriated, released, or transferred for criminal prosecution in their home country or in U.S. federal courts.

    This will be a lengthy process, requiring on-going U.S. diligence. To reduce the risk of further abuses, it will be critical to immediately implement mechanisms to monitor post-transfer Afghan proceedings and to ensure that those transferred are not subjected to ill-treatment.

    Assist with Judicial Reform: Fair trial and treatment of Bagram detainees transferred to Afghan authorities will require significant resources for training judges, prosecutors, lawyers, law enforcement agencies, and the development of court and prison infrastructure. The United States is one of the largest donors for justice sector reform in Afghanistan and, in coordination with European nations, should extend judicial reform efforts to improve the fairness of trials in Afghan courts for persons engaged in hostile actions against Afghan and Coalition Forces. The U.S. should provide more personnel and resources to Judge Advocate General (JAG) officers - the judicial arm of the U.S. military - in Afghanistan so they can assess and prepare evidentiary files for detainees and train soldiers on evidence collection as is done in Iraq. A serious contribution to the rule of law in Afghanistan could be a true lasting legacy of the United States.

    End Practice of Bringing Detainees to Afghanistan: The Obama Administration must end the practice of transferring persons captured outside of Afghanistan to Bagram and detaining them until the "cessation of hostilities."

    A prison such as Bagram created with an express purpose of avoiding compliance with the law is fundamentally at odds with American values. Strategically, it's also a mistake. Detaining a large number of prisoners indefinitely and without criminal charge is not the best way to win the "hearts and minds" and cooperation of the local population in Afghanistan. A real commitment by the Obama Administration to bring the United States within the rule of law is not limited to closing Guantanamo, but must involve creative thinking to reverse the policy mistakes of the Bush Administration. Bagram must not become Obama's Guantanamo."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Thursday, January 15, 2009

    Military judge's ruling to throw out Mohammed Jawad's confession should be upheld
    1:47 PM ET

    Asim Qureshi [Senior Researcher, Cageprisoners]: "One of the key components of the Bush administration's understanding of torture is the extreme technicality with which they approach the topic. When the teenager Mohammed Jawad was captured in Afghanistan in 2002, his abuse at the hands of his captors was by Afghans and not US personnel. It is this fact that provides the Bush administration with the technicality they need in order to attempt to bypass the rules against torture.

    This form of legal manipulation in many ways is symptomatic of the US led War on Terror. The humanity of the strongest norms of human rights and international law have been reduced to a difference of legal opinion in a process where the US has sought to pave its own will into international legal order.

    What is forgotten in the process of legalizing torture, arbitrary detention and rendition, is that the norms that were established to protect the innocent and guilty were put into place to directly deal with the world in which we live in today. The Geneva Conventions and Convention Against Torture find their most relevance in today's world, a world where the lines of humanity are being blurred by all.

    Using technicalities to circumvent the rule against torture only serves one purpose, and that is to deny the essence of the rule and its importance to the world and future generations. In the case of Jawad the ruling of judge Stephen Henley that Jawad's confessions were obtained in circumstances that amount to torture and duress should be commended and ordered to stand, for such judgments truly recognize the ethics of the law."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Tuesday, January 13, 2009

    President Bush has used pardon power modestly compared to predecessors
    6:11 AM ET

    Gerald L. Baliles [former Governor of Virginia; Director, Miller Center of Public Affairs]: "The lineage of the pardon power and executive clemency generally runs to ancient Rome. British practice in the colonial period and before, itself drawing on antiquity, was the immediate precedent for the presidential pardon power found in the Constitution. The power is broad, based on British royal prerogative: "The President...shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

    In some regards, just as the founders saw the president's veto power as a check against the legislative branch, they saw the pardon power as a check against the judicial branch. Presidents indeed have typically used the pardon power to address matters of individual clemency when they have deemed a court sentence to be too severe, just as President Bush has done in recent weeks.

    Presidents have varied greatly in the number of pardons they have given. Franklin Roosevelt, elected to four terms (two more than any other president), gave by far the most pardons – more than 3600. Woodrow Wilson, Harry Truman, and Calvin Coolidge all gave significant numbers as well - more than 2400, 2000, and 1500 respectively. George Washington by contrast gave just 16 in eight years. Recent presidents likewise have not given significant numbers of pardons by historical standards. President Bush has given fewer than 200, and President Clinton before him gave fewer than 500, although many of those came at the close of his presidency outside the ordinary review process, which drew criticism.

    Since the 1860s, the U.S. Department of Justice's Office of the Pardon Attorney and its predecessors have been in place as a channel for those seeking clemency. The Office reviews requests and makes recommendations to the president, though the president in the exercise of his constitutional pardon power is not bound by those recommendations or by the processes of the Office of Pardon Attorney. Certainly some of the most famous pardons have been made outside this process, such as Gerald Ford's pardon of Richard Nixon.

    Pardons at a president's own prerogative usually have had a political impetus, or - perhaps put in a different light - have contemplated high matters of state. Such use of the pardon power though is also not without precedent in the founders' own thought and practice. In Federalist 74, Alexander Hamilton noted that "in seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the Commonwealth." In fact, several of George Washington's few pardons when in office went to leaders of the Whiskey Rebellion of 1794. Abraham Lincoln similarly, in sweeping fashion, pardoned Confederate soldiers and supporters. More recently, Jimmy Carter issued a general pardon to those who evaded the Vietnam draft.

    The presidential pardon power is indeed broad, and the extent of its use has varied. Since the 1860s a review process for clemency has been in place at the Department of Justice, but presidents at times have still acted at their own prerogative for reasons of politics and statecraft, as the founders contemplated may at times be prudent."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Monday, January 12, 2009

    Bosnian War Crimes Chamber may fail to encourage postwar reconciliation
    10:16 AM ET

    David Chandler [Professor of International Relations, Department of Politics and International Relations, University of Westminster]: "Nearly two decades after its establishment, in 1993, the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) plans to close by the beginning of 2012 and is slowly winding down. In the process, the ICTY is transferring the task of pursuing prosecutions arising from the 1992-1995 Bosnian war to the domestic Bosnian courts, with the recently established Bosnian War Crimes Chamber (WCC) playing a central role.

    In this context, international commentators have stressed that it is now up to Bosnians themselves to ensure that their war criminals are held to account. It is argued [pdf file] that by bringing justice closer to the people of Bosnia the domestic judicial process will assist much more in the task of bringing reconciliation. There is little doubting the activism of the Bosnian courts, evidenced by the Bosnian Prosecutor's announcement, on January 8, 2009, that 8 former Serb military police were being indicted for war crimes committed on Mount Vlašić in August 1992. The men are alleged to have taken part in the massacre of over 200 Bosniak and Croat men, throwing their bodies into the deep ravine.

    However, Bosnian dissatisfaction with the judicial approach to war crimes has little to do with whether alleged war criminals are pursued by the ICTY or the domestic WCC. The attempt to apply the law to atrocities committed in the Bosnian war looks set to continue to lead to frustration, disappointment and division. Understanding civil conflict as a series of war crimes neither helps reconciliation nor the development of a collective sense of justice. Human Rights Watch argues that, "There are literally thousands of war crimes cases emanating from the conflict, which have not yet been addressed...the criminal justice system as a whole - is not in a position to handle all of these cases." For families who lost relatives and loved ones to the war, the special recognition of some deaths as war crimes and not others is seen as a slight to their own suffering.

    It is clear that the ICTY and the WCC can only ever be selective in their judgments, and that legal approaches to war crimes can never include every act of war or recognise every victim. Through its external pressure, the international community has forced Bosnian discourse to become mired in a competition over claims to recognition of victim status - claims which can never be satisfied and can only be divisive. Postwar reconciliation has little to do with legal judgments and much more to do with the practice of getting on with life and developing shared interests in the present. The high international judicial profile given to the Bosnian war has become a major barrier to Bosnian people focusing on their shared future, rather than their divided past."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Saturday, January 10, 2009

    Jarrar settlement promotes security in civil aviation while protecting civil liberties
    2:49 AM ET

    Nusrat Jahan Choudhury [Attorney, Karpatkin Fellow, American Civil Liberties Union]: "A year and a half after the American Civil Liberties Union and New York Civil Liberties Union filed a federal lawsuit on behalf of Raed Jarrar, the defendants - two Transportation Security Administration officials and JetBlue Airways - agreed to pay him $240,000 to settle his claims that they discriminated against him on the basis of his racial and ethnic background and violated his First Amendment rights.

    This settlement is a victory. Even absent a court judgment, it marks progress in the fight to promote safety and security in civil aviation while protecting the civil rights and liberties that are the hallmark of this country.

    When TSA and JetBlue officials prevented Mr. Jarrar from boarding his flight at John F. Kennedy Airport until he covered his t-shirt, they treated him differently from all of the other passengers in the gate area. When JetBlue decided to move Mr. Jarrar from his seat in row 3 to the back of the airplane, it once again singled him out for differential treatment.

    Why? Ostensibly because other passengers had expressed concern about what he wore: an ordinary black t-shirt that featured the sentence "We Will Not Be Silent" in Arabic and English.

    The lawsuit revealed, however, that neither the TSA officials involved nor JetBlue could identify a single passenger who had supposedly been "concerned" by Mr. Jarrar's t-shirt. Nor had they inquired whether the nature of any purported "concern" was based on a legitimate reason or an illegitimate racial bias, perhaps grounded in the stereotyping of Mr. Jarrar as a "terrorist" simply because he is Arab and wore a shirt with Arabic script. The lawsuit also revealed that the defendants took their actions even though they did not consider Mr. Jarrar to pose a security threat.

    Mr. Jarrar was nevertheless singled out for differential treatment. And according to him, not only did JetBlue and two TSA officials make it clear that he would be unable to fly unless he covered his t-shirt, one TSA official told Mr. Jarrar that wearing a shirt with Arabic script on it was akin to "wearing a t-shirt at a bank stating, 'I am a robber.'"

    The t-shirt that Mr. Jarrar wore on August 12, 2006, reflected who he is - an Iraqi-born U.S. resident and a vocal critic of the war in Iraq. Its "We Will Not Be Silent" message was coined by student peace activists challenging the rise of Nazism before World War II. That the t-shirt featured this message in both English and Arabic, Mr. Jarrar's native language, further reflected Mr. Jarrar's identity as an Arab immigrant to the United States.

    Requiring Mr. Jarrar to cover his t-shirt and moving him to the back of the plane did nothing to promote safety or security. It did, however, relegate him to the status of a second-class citizen for being and expressing who he is.

    This incident underscores that ordinary, law-abiding Muslims, Sikhs, Arabs, South Asians, and people perceived to be of these backgrounds continue to experience differential treatment by airlines and government officials when engaging in air travel - even though they do nothing to warrant heightened security scrutiny.

    This treatment is unacceptable. In our country, diversity, inclusiveness, and a commitment to equality and liberty are defining characteristics and rank among our greatest strengths.

    Mr. Jarrar courageously challenged the racial profiling he experienced and the infringement of his First Amendment rights by filing a lawsuit. The settlement of his claims for a landmark sum of $240,000 sends a clear message: airlines and government officials cannot discriminate against passengers based on their race or the ethnic content of their speech.

    We have the ability to promote security in air travel while protecting rights to freedom of speech and freedom from racial discrimination protected by the Constitution and civil rights laws. When airlines and government officials fail to respect these rights, they should be held accountable."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Wednesday, January 07, 2009

    Amnesty International's criticism of Israeli action in Gaza distorts the law of war
    6:00 PM ET

    Marc D. Stern [Acting Co-Executive Director/General Counsel, American Jewish Congress]: "Amnesty International reads the law of war as if it was a law banning war. In evaluating Amnesty's criticisms of Israel's actions in Gaza, one needs to take into account the manifold ways it distorts a body of law which actually permits, while regulating, war.

    Amnesty perversely reads that body of law in ways that unduly handcuff nations with legitimate reasons for military action. Indeed, in a recent letter to Secretary of State Condoleezza Rice about the Gaza conflict, Amnesty imposes a new - and entirely unfounded - restriction on the use of military force: that it be "strictly necessary." Presumably Israel's assault on Gaza is not "strictly necessary." Israel could live with ongoing rocket attacks or simply accept whatever terms Hamas dictates as a condition for stopping its rocket fire. Fortunately for the rest of us, peace at any price or yielding to blackmail by rocket fire is not required by international law.

    These distortions are plainly evident in a series of statements and letters Amnesty has written since Israel began its invasion of Gaza. Although these statements rely repeatedly on the principle of distinction - requiring combatants to do their best to distinguish between civilians and combatants - Amnesty manages to not once mention Hamas' plain duty under that principle to avoid placing its military assets (i.e., rockets and rocket launchers) amongst civilians in civilian neighborhoods. If one wants to protect civilians, that is the place to start.

    There is no question that such a duty exists and that, as demonstrated by a report [PDF file] by Israel's Intelligence and Terrorism Information Center, Hamas pays it no mind. Amnesty necessarily also elides the point that Hamas' violation does not immunize dual use military sites from attacks which inevitably have collateral consequences of harm to civilians.

    Amnesty's silence about that systematic violation of the law of war is made worse by the fact that Hamas' "fighters" often wear no uniform or identifying symbols as soldiers of national armies must do, so that it is far more difficult to distinguish them from civilians in the first place.

    These human shield tactics, used as well by Hezbollah in Lebanon, and the Taliban in Afghanistan, are what put civilians in harm's way, not Israel's attacks. Pretending such a duty does not exist, but insisting that Israel may not attack such sites because they endanger civilians, is to confer on Hamas de facto immunity from military action except at the precise instant a rocket is being launched and then only if no civilians are in the vicinity, a circumstance that does not often exist in Gaza. It is certain that those nations which ratified the Geneva Conventions and the Additional Protocols did not intend for international law to be a terrorist's most impenetrable shield.

    It is equally telling that while Amnesty repeatedly denounces Israel's attacks as "disproportionate," it never explains to what the attacks are disproportionate. Reading its materials, it appears to understand proportionality to mean "too many Palestinian casualties," an irrelevant figure in calculating proportionality. But even on this made-up test of proportionality, Israel's actions pass muster. By Amnesty's own figures, the overwhelming number of persons killed are not civilians, but Hamas personnel. Hamas has so admitted, boasting of its "martyrs." By Israeli figures, some three-quarters of the dead are not civilians.

    More importantly, the actual texts of the Geneva Conventions use an entirely different proportionality calculus. The texts talk of civilian casualties disproportionate to the expected military advantage, not casualties disproportionately on one side or the other. Amnesty makes no effort whatsoever to make any military advantage calculus, evidently on the theory that it is legally irrelevant.

    We know, too, from prior correspondence with Amnesty that whatever shrunken conception of military advantage it has is at odds with that of the sovereign nations that have ratified law of war treaties. Amnesty thinks every individual attack (bullet) must be analyzed. The history of the relevant treaties established that what is relevant is whether the individual attack makes a measurable contribution to the overall military objective. In Amnesty's view, destroying a small missile depot or a single rocket launcher, insufficient in itself to change the strategic or tactual balance, can never justify harm to civilians. The law however is otherwise, so long as the attack has more than a trivial effect on the overall war effort. Wars are typically won by cumulating small actions, not by a few decisive blows.

    Finally, Amnesty perversely criticizes Israel for warning civilians that attacks are planned. If Israel does not warn civilians, its attacks are, for Amnesty, indiscriminate; if it warns civilians (thereby often alerting legitimate targets as well, so that they too can flee), it is guilty of fear-mongering. This makes sense only if one thinks international law gives an absolute immunity to civilians from the costs of war. It doesn't.

    Civilian casualties as such are always truly unfortunate, and to be avoided if possible. They are not illegal on the law as it exists, nor should they be so long as war is legal. Amnesty - if its real game is not simply sympathy for Hamas - might like it to be otherwise. It is free to urge a change in the law of war; it is not free to impose such a change unilaterally by distortion."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Monday, January 05, 2009

    Germany's use of sovereign immunity to block claims from WWII atrocities lacks basis in international law
    8:00 PM ET

    Alexandros-Ioannis Kargopoulos [Attorney (Thessaloniki-Greece), Faculty member - Hellenic National School of Judges]: "Germany's action against Italy has, once more, fueled the debate around a quite controversial legal subject: the issue of state immunity and WWII civil actions brought in national courts. This subject has been in the epicenter of many judgments delivered during the last decade. However, it was the Italian Supreme Court, which by issuing a landmark judgment on the Ferrini case, held that Germany was not entitled to immunity for the serious violations committed by its armed forces of occupation during WWII. It is the rationale adopted in these judgments that Germany's action is directed against and it does so by invoking the application of state immunity that the Italian courts have rejected.

    The proponents of state immunity, like Germany in this instance, widely envisage state immunity as a fundamental right of the state flowing from customary international law and uphold its value by resorting to the principle par in parem non habet imperium, according to which a state cannot be submitted to the judicial organs of another state because they are equal. Moreover, in a subsidiary basis, state immunity is invoked in order to avoid discord in international relations and cooperation. However, this conception of state immunity is defective as state immunity is not a "right," but only an exemption to the fundamental principle of the exclusive adjudicatory jurisdiction of national courts. As the President of the ICJ, Judge Rosalyn Higgins has stated in the past: "It is very easy to elevate sovereign immunity into a superior principle of international law and to lose sight of the essential reality that it is an exception to the normal doctrine of jurisdiction."

    In particular, according to the fundamental principles of international law, state sovereignty, territorial integrity and adjudicatory jurisdiction, a state enjoys absolute and exclusive adjudicatory jurisdiction inside its borders due to its sovereignty. Therefore, the capacity of a foreign state as a subject of rights diminishes, when it "conflicts" with another state's exclusive jurisdiction, especially when this conflict takes place inside the territory of the forum state where the perpetrator state and its organs have no authority at all. In result, any persons and property found inside the forum state should be under its sole control and authority. For none of the fundamental principles of international law, neither the theory par in parem non habet imperium, can persuasively lead to the conclusion that a state is barred from applying its adjudicatory jurisdiction over another state and especially when the dispute concerns acts conducted by the foreign state inside the territory of the forum state. Hence, "there is not a rule of international law obliging states to grant jurisdictional immunity to other states" and thus, the forum state has absolute competence, by implementing its internal legal rules, to adjust the privileges of jurisdictional immunities of foreign states. State jurisdictional immunity can not be considered a right, but only a privilege granted by national law and courts acting on their discretion. Furthermore, pleas of state immunity can be rejected, even in the light of opposite case law or legislation, directly by the supreme nature of jus cogens rules. Those rules create, according to the ICJ, obligations erga omnes and thus, widen the right, but also dictate the duty of states to act against these violations. Consequently, jus cogens rules should be afforded supreme means of enforcement and should quash pleas of state jurisdictional immunity.

    This is clearly reflected in Article 12 of the 2004 UN Convention on the Jurisdictional Immunities of States and their Property [PDF file], which specifically provides that states cannot plea immunity in order to evade their civil liability arising out of death or injury of natural persons and out of damage or loss of property. It is also noteworthy that the implementation of that treaty does not depend on the characterisation of the disputed acts as iure imperii or iure gestionis and that it applies even in the event of civil claims arising out of acts or omissions of armed forces, whether those acts were conducted during peacetime or during the course of war. The same position more or less has been adopted by common law countries, which in contrast to most European countries that resolve this issue as a matter of international law, deal with state immunity as an internal legal issue and regulate it through the use of national legal rules and legislation, which provide for similar instances where a foreign state is to be held liable in national courts, even if it acts iure imperii.

    For all those reasons, it has been suggested that state jurisdictional immunity grants states with disproportionate protection than that which is provided for by international law precepts, especially when the respective claims arise due to gross violations of human rights and humanitarian law. In reality, a foreign state is granted immunity due to commands originating from the political authorities and not due to international law imperatives. Therefore, whenever the principle of sovereign immunity is applied to cover acts that bear the seal of sovereign power, the judiciary is actually pre-empted from hearing the dispute. Accordingly, courts resort to the distinction of iure imperii and iure gestionis acts with the purpose of avoiding the adjudication of politically sensitive cases.

    Nevertheless, the Italian courts have, quite courageously, shown in practice that the necessity to affirm values of extreme significance, is leading to fundamental changes when dealing with the issue of state liability, since what has led them to refuse jurisdictional immunity to the German state was not "...merely the formal supremacy of the jus cogens category,...but the substantial importance which can be attributed to the values protected by these norms, in contrast to the traditional principle of state sovereignty." National courts have exclusive adjudicatory jurisdiction and thus are able, but more importantly, are obliged to adjudicate these matters due to the importance of jus cogens norms and erga omnes obligations to the international legal order. Although, on the one hand, it may true be that enforcement of these judgments is a distinct issue to which legal limitations apply, on the other, there is nothing obliging the courts to refrain from issuing decisions on the merits of cases involving gross violations of jus cogens norms of international humanitarian and human rights law. Quite the opposite, by acknowledging that private persons have a limited capacity to respond against crimes committed by foreign states and that a state has the right, but also the obligation, to protect its own citizens and respond to such violations by recognizing them as a violations against itself, it follows that, national courts are the appropriate forum to deal with the respective claims.

    Concerning the specific action, it seems to be ironic that Germany is a big supporter of the ICC and of the fight against impunity of international crimes and one of the few supporters of the attribution to the ICC of a true and unlimited universal jurisdiction, while, at the same time, it persistently refuses to withhold the same commitments in regards to the so many heinous crimes that its armed forces committed during WWII. Truly, in the eyes of an objective observer, it is obvious that Germany, by resorting to an outdated conception of state immunity and claiming to herself an immune status, is egoistically applying a different set of criteria to herself than to others. More importantly, in that way Germany practically renounces her undeniable responsibility for the commission of those dreadful crimes vis-à-vis those who were mostly affected: the victims and their descendants. Every crime must bring consequences for the perpetrators and if this means that Germany is to be found liable in national courts then it should be held so. Quite significantly also, it should be borne in mind that the ultimate function of state immunity should be to protect a state from its arbitrary subjection to a foreign sovereign, which pursues its own political ends.

    In this instance, this is far from the truth, as the Italian courts are not pursuing political ends, but they rather aim at the attribution of justice through the implementation of supranational legal norms in protecting what is the undisputed and grossly violated rights of victims of unimaginable atrocities. In this manner, the Italian courts not only have reinforced some of the most fundamental principles of international law, but more importantly, they have upheld the function of the rule of law and the independence of the judiciary against executive power at international level. As such, Germany's complaint is aimed not only against the highest values of international law and the precepts of human rights and humanitarian law, but against the independent functioning of national courts which deliver substantial justice. And as such, the ICJ, should acknowledge, by reference to Art 38 par 1 (b) and (d) of its statute, the validity of the Italian judgments and uphold the same values that the Italian courts have promoted and thus enhance both the implementation of international law at the national level and the independence of the judiciary by not submitting to the will of the executive -in this case that of Germany."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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    Amnesty International's anti-Israel stance undermines human rights and international law
    12:23 PM ET

    Avi Bell [Director, Global Law Forum, Jerusalem Center for Public Affairs]: "It is tragic when distinguished human rights organizations soil their reputations by resorting to falsehoods and legal misstatements in the service of political propaganda. Unfortunately, this is the only way to characterize Amnesty International's January 2 broadside against Israel in an open letter [PDF file] to the US Secretary of State.

    Amnesty purports to be "deeply concerned about the escalation of human rights abuses following the series of Israeli air strikes on the Gaza Strip that began on December 27th," but it fails to mention nearly all of them. Newspaper reports indicate that the Hamas terrorist organization has dispatched death squads to summarily execute Palestinians accused of "collaborating" with Israel. Hamas has seized children [video] and other civilians and illegally used them to shield combatants from attack. It has hidden weapons and combatants in mosques and hospitals, and dressed its combatants in civilian dress in illegal acts of perfidy. Hamas has targeted and murdered Israeli Jews in the service of an explicitly genocidal ideology [PDF file]. Hamas has denied wounded Palestinian civilians permission to cross the border to waiting Egyptian ambulances in Sinai. Hamas has sought to preempt challenges to its post-coup d'etat rule in Gaza by preemptively detaining, maiming and murdering rivals in the Fatah terror group/militia. And, of course, Hamas itself is a terrorist organization to which states must deny material support and safe haven under Security Council Resolution 1373 and various international conventions. Other than a pro forma reference to Hamas' indiscriminate rocket attacks, Amnesty's letter mentions none of these facts, nor any of the other human rights abuses Hamas has inflicted upon the Palestinian population under its control in Gaza, such as restrictions on religious practice, speech and due process.

    Instead, Amnesty bristles at imaginary Israeli wrongdoing. Amnesty writes that "aid agencies and residents of Gaza have long ago run out of provision reserves due to the Israeli blockade" just two days after the UN's World Food Program informed the Israel Defense Forces that it would not be resuming shipment of food commodities to Gaza through Israeli crossings because WFP warehouses were already at full capacity. In service of its indefensible claim that Israel is not acting in "legitimate self-defense," Amnesty carefully omits the material fact that the current round of fighting began when Hamas, on December 19, announced an end to the cease-fire and attacked Israeli cities with the declared aim of bringing thousands of Israeli civilians "under fire." In contrast, Israel's air strikes on Gaza were only commenced 8 days later, in response to the more than 100 Hamas attacks in the preceding week. Amnesty falsely insinuates that Hamas has done no wrong in hiding its combatants within the civilian population, and falsely insinuates that Israel has no legal right to strike at Hamas combat targets in urban areas due to the expected collateral damage. Amnesty falsely insinuates that Israel is not allowing Palestinians passage for medical treatment even as Israel treats Palestinian wounded in Israeli hospitals at Israeli expense. Amnesty accuses Israel of failing to meet the legal requirements of necessity, proportionality and distinction in its combat operations, despite all the evidence to date that Israel is complying fully by solely targeting Hamas positions. And Amnesty implies that because Hamas has thus far failed in its mission of slaughtering mass numbers of Israeli Jews, the rule of proportionality grants Hamas forces near-total immunity from defensive Israeli measures. This perverse interpretation of the rule of proportionality has never been accepted or even proffered in any other conflict in the world, and legal scholars commenting on the fighting thus far, from traditional opponents of Israel to supporters (Kevin Jon Heller, Eric Posner, Alan Dershowitz, Marko Milanovic and Dapo Akande, so far), have universally rejected it.

    Amnesty's attack is not simply Israel's problem. It is a tragedy for human rights supporters everywhere. By abusing the language of human rights and international law to promote a political agenda based on factual and legal falsehoods, Amnesty International undermines the cause of human rights and international law. Amnesty's letter seems designed to convince rank-and-file Israelis to ignore international law, because their country will be attacked as guilty no matter what it does. Simulataneously, Amnesty's letter signals to Hamas and other anti-Israel terrorist groups that they can violate human rights and commit war crimes, yet still enjoy human rights organizations' de facto support. Unfortunately, Amnesty is not alone in its campaign against the values it purports to uphold; Human Rights Watch too issued an anti-Israel statement on December 30 containing many of the same falsehoods and material omissions as Amnesty's letter. But Amnesty International's company in wrongdoing is no excuse; indeed, it makes the need for accuracy all the more pressing.

    Shame on Amnesty International. The many Palestinian and Israeli victims of Hamas's war crimes and crimes against humanity deserve better."

    Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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