Friday, October 14, 2005

ICC Watch: Uganda Arrest Warrants Unsealed

The ICC Prosecutor has unsealed the arrest warrants issued in July 2005 against five leaders of the Lord's Resistance Army (LRA). The warrants can be found here. Not surprisingly, these warrants allege pretty grisly crimes including:

murder, abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of camp settlements ... abducted civilians, including children, have been forcibly recruited as fighters, porters and sex slaves and to take part in attacks against the Ugandan army (UPDF) and civilian communities.

I am generally sympathetic to Roger and Peggy's criticism of the effect an ICC intervention into a delicate peace negotiation, although I do think it is worth noting that the ICC does have some moral (and maybe) legal obligation to act. As one of its arrest warrants has pointed out, "LRA commanders are allegedly inclined to launch retaliatory strikes, thus creating a risk for victims and witnesses who have spoken with or provided evidence to the Office of the Prosecutor."

But the jury is still out on whether this intervention will result in more or less violence and suffering for the people of Uganda.

Dutch Court Refuses to Extradite Alleged Al-Qaeda Suspect to U.S.

Speaking of Grotius, a Dutch court ruled this week that it would not extradite an alleged Al Qaeda suspect to the U.S. because his fundamental legal rights could not be guaranteed. The Court held, according to AP: “[t]he risk that the [individual] will be confronted with suspicions of involvement in the al Qaeda network is certainly not imaginary. … This gives sufficient reason to believe that with regard to him, fundamental legal guarantees—such as direct, unlimited and undisturbed contact with a lawyer and timely access to a judge—could be threatened.”

I'm not sure, but I think the Dutch court is concerned that the U.S. might deem the suspect an enemy combatant and try him before military commissions. This seems a bit far-fetched, but I suppose it is within the realm of possibility. But that shouldn't matter, at least not under my reading of the U.S.-Netherlands extradition treaty. None of the provisions permitting a refusal of a request for extradition, e.g. for political or military offenses seems applicable.

Moreover, the problem with the Court's analysis is that it would prevent the Netherlands, or any other country with a similar extradition treaty with the U.S., from ever extraditing someone connected to Al-Qaeda. But maybe I'm misreading something. International Extradition Blog has more analysis here.

War as a Necessary Evil?

Hugo Grotius, the Founding Father of international law, wrote in On the Laws of War and Peace (1625) that "So far from any thing in the principles of nature being repugnant to war, every part of them indeed rather favours it. For the preservation of our lives and persons, which is the end of war … is most suitable to those principles of nature, and to use force, if necessary, for those occasions, is no way dissonant to the principles of nature, since all animals are endowed with natural strength, sufficient to assist and defend themselves.”

On the other hand, the United Nations was established in order to “save succeeding generations from the scourge or war which twice in our lifetime has brought untold sorrow to mankind,” and the U.N. has as its objective “to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security.”

In light of these perspectives, do you agree or disagree with the following:

War is part of the natural order of things and is a necessary part of human existence.
I agree
I disagree


Free polls from

China's Taikonauts Fly Again

In another sign of China's arrival as major world power, China's space program successfully put two Chinese "taikonauts" into orbit Wednesday using their Shenzhou VI rockets. The state-run People's Daily newspaper has set up a website for tracking the progress of the taikonauts here. This is yet another boost to China's self-confidence (the 2008 Olympics in Beijing is another) and another way for the Chinese government to demonstrate the success of its policies and rally nationalist sentiments.

Ironically, the launch took place the same day that the U.S. Congressional-Executive Commission on China has released its (somewhat critical) annual report on human rights in China. I have to admit I had no idea that this commission existed. Apparently, it was created as part of the deal to get congressional support for admitting China to the World Trade Organization back in 2000. This is an odd creation: a free-standing commission existing solely to issue negative and critical reports about China. Even though China certainly deserves criticism, it is odd that the U.S. needs a full congressional-executive commission to complain ineffectually about China's human rights practices. Isn't that what the State Department is for?

In any case, no doubt most Chinese remain unaware of this and other reports detailing various human rights abuses in their homeland. A few might wonder why a country that has a per capita income of $950 is spending billions on a space program. But those are mere quibbles for most Chinese, who are probably breathlessly awaiting the return of their newest national heroes. Nationalism always trumps liberalism, at least in China today.

Thursday, October 13, 2005

The Politics of Unacknowledged Legislators

Percy Bysshe Shelly said that poets are the unacknowledged legislators of the world. If that’s true (and even if it's not), then we need to consider why Harold Pinter has won the Nobel Prize for Literature. Think of this as being another way to assess the mood of our European allies and perhaps world opinion more generally.

As Peggy and Roger have pointed out, the Peace Prize is often used to send a signal. This year’s choice of Mohammed El Baradei and the IAEA can be viewed as sending two signals (a) it is part of the periodic reminders at Hiroshima/Nagasaki decennials of the importance of decreasing the threat of nuclear war and (b) it may be viewed as a rebuff to the current U.S. administration.

But what about the Prize for Literature? The interesting thing is that, according to the BBC World Service, Pinter was not a favorite to win. While one of the living greats, no one was focusing on him this year. A lot of the buzz was about Orhan Pamuk, a Turkish writer whose novels explore Turkey’s history and culture in a manner that some have found reminiscent of James Joyce’s novels about Dublin, or Gabrial Garcia-Marquez’s about Colombia (and Latin America), or Jorge-Luis Borges’ stories, more generally.

So why Pinter? Some argue that he won—and Pamuk did not—because of politics. Pamuk has had a political firestorm around him for his calling on his government and his country to take responsibility for the 1916 massacres (dare I say genocide?) in Armenia.

Pamuk’s public indictment of Turkey’s past actions is uncomfortable for Turkey and the EU as Turkey enters into accession talks; particularly because such human rights abuses are one of the issues that have derailed earlier attempts at Turkey’s EU accession. Pinter has been outspoken politically and, as of late, his main point has been critiques of U.S. policy which some have considered going beyond mere policy disagreements and into the realm of full-scale anti-Americanism. (See here, for example.) This is not to say that Pamuk is a big fan of U.S. policy. But I would note that his criticisms have been more balanced and morally nuanced. (See, for example, his essay from the New York Review of Books.)

By almost all accounts, Pinter deserves a Nobel for his body of work. This isn’t like when Jethro Tull won the Best Metal Album Grammy over Metallica. But what I am interested in is why Pinter got it now, when commentators thought it was Pamuk’s year, based on Pamuk’s recent work. If the answer is indeed politics, then this is an example as to how deep the Atlantic rift may be.

And now for my obligatory moment of dewy-eyed idealism. Literature, at its best, bridges gaps of experience and culture. It helps you stand in another’s shoes. If one of the things we, as international lawyers, care about is a just world then fostering an understanding of each other’s views is an important step in that direction, regardless as to whether we actually agree with those views. You cannot let rhetoric bury nuance, anger bury analysis. Anger can spur great literature and righteous anger can be the seed of political reform, but great literature and just policies are more than angry reactions. Writers (and international lawyers) are fortunately not the world’s legislators. But both can have a profound influence in how we understand and shape our world. And, based on this year’s Nobel (and other current events), I think some of us need to start doing our jobs a bit better.


For an interesting take on the politics of awarding this year's Literature Prize, see this article.

"Civic Death" Penalty Violates European Convention

The Contracting States to the European Convention are obligated to "hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” An English statute dating back to 1870 provides that: "A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election." Last week the ECHR held that the latter violates the former and must be repealed.

Notwithstanding that over 25 Contracting Parties to the European Convention currently limit the right of prisoners to vote in free elections, the ECHR has now declared that the "civic death" penalty violates the European Convention. The decision in Hirst v. United Kingdom is here and the press release summarizing the decision is here.
The Court held that "the severe measure of disenfranchisement must ... not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned." (para. 71). Significantly, the Court selectively relied on comparative experiences, looking to decisions of Canada and South Africa, but not the United States (see Richardson v. Ramirez, 418 U.S. 24 (1974)) and others, in concluding that the civic death penalty violated fundamental human rights (paras. 35-39). The Court concluded that "The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1." (para. 82)

Five dissenting judges argued that "the wording of this Article is different from nearly all other substantive clauses in the Convention and its Protocols in that it does not directly grant individual rights and contains no other conditions for the elections, including in relation to the scope of a right to vote, than the requirement that 'the free expression of the opinion of the people' must be ensured." (para. 2) The dissent also noted that a majority of Contracting States impose such a restriction, and therefore "the legislation in the United Kingdom cannot be claimed to be in disharmony with a common European standard." (para. 7) The dissent concluded, "Taking into account the sensitive political character of this issue, the diversity of the legal systems within the Contracting States and the lack of a sufficiently clear basis for such a right in Article 3 of Protocol No. 1, we are not able to accept that it is for the Court to impose on national legal systems an obligation either to abolish disenfranchisement for prisoners or to allow it only to a very limited extent." (para. 9)

The case is an alarming example of an international tribunal finding an individual right where none exists, interpreting that right broadly to require felon suffrage, ignoring historical roots, rejecting the democratic preferences in 60 percent of Contracting States, and selectively relying on comparative experiences to reach the desired result.
Jacco Bomhoff at the ComparativeLawBlog has more.

UPDATE: For another perspective lauding the decision, see here.

Wednesday, October 12, 2005

Peaceful Settlement in Uganda Jeopardized by ICC Arrest Warrants

The story coming out of Uganda bears emphasis for its impact on the ICC doctrine of complementarity. Under Article 17 of the Rome Statute, “the Court shall determine that a case is inadmissible where … [t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” The ICC website indicates that “the International Criminal Court will complement national courts so that they retain jurisdiction to try genocide, crimes against humanity and war crimes. If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute. A country may be determined to be “unwilling” if it is clearly shielding someone from responsibility for ICC crimes.”

So what happens when a country considers the option of granting amnesty as part of a peaceful settlement of a civil war? Is an approach of amnesty – together with a Truth and Reconciliation Commission – one viable approach to resolving such conflicts? Should that qualify as an “investigation” within the meaning of the “complementarity” doctrine? One would hope.

Which makes the news coming out of Uganda all the more alarming. The lead mediator, Betty Bigombe, is according to the Washington Post, “a dynamic Ugandan woman who is shunning her comfortable office at the World Bank headquarters and risking her life to bring peace to the long-suffering people of northern Uganda.” So when Bigombe (pictured above with rebel negotiators) this week expressed concern about the ICC arrest warrants, this should merit world attention. According to reports,

“Bigombe managed to win some trust from both the LRA and the government as a mediator. Backed by the governments of Britain, the Netherlands, Norway, and the United States, she pitched camp in the region to mediate the peace process that had been started by religious leaders in northern Uganda. She came close to brokering a successful ceasefire agreement between the two sides late last year, when she organised the first face-to-face meeting in a decade between a senior government minister and a dozen LRA officials in the bushes in Kitgum district, some 450 km north of the capital, Kampala. However, last minute hitches saw the attempt fail. Bigombe said she had been trying to persuade the LRA leadership to end the rebellion and accept an offer of amnesty from the government. However, the ICC’s move has scuttled the amnesty option for the leaders accused of a number of atrocities…”

One does have the impression that the ICC prosecutor has not shown the better part of caution in issuing these arrest warrants at this time. How can you apply the Article 17 mandate of deference to national court proceedings when the government is in the process of brokering peace and deciding how to respond to the rebel forces by, among other options, considering a grant of amnesty?

The good news is that such arrest warrants may indeed provide a chilling effect for those contemplating the further commission of war crimes. That cannot be underestimated. But neither can one ignore the chilling effect that such arrest warrants may have on attempts to broker peace. War crimes may cease, but war will continue.

The Arctic Gold Rush: Another Reason to Ratify the Law of the Sea Treaty?

For better or for worse, the Arctic ice caps may be melting, opening up lots of virgin territory for economic development, the NYT reports. It may also raise the stakes over U.S. non-ratification of the U.N. Convention on the Law of the Sea (UNCLOS).

There appears to be lots of money to be made from melting ice caps. A Denver entrepreneur, for instance, bought a port from Canada that might turn into a $100 million port facility for a mere $7. Maybe as much as "one quarter of the world's undiscovered oil and gas resources lies in the Arctic, according to the United States Geological Survey."

The NYT suggests that the prospect of an Arctic gold rush may finally spur the U.S. Senate to move on the UNCLOS, which gives countries the right to claim the continental shelf extending from their territory under the sea. Russia has already invoked this treaty to claim the shelf under about half of the Arctic. The U.S., currently a signatory but not a party to the treaty, cannot directly invoke UNCLOS procedures and rules to challenge Russia (although we can be sure Canada will).

On the other hand, the U.S. already recognizes the relevant provisions of UNCLOS related to the continental shelf as customary international law. So the U.S. would follow the same rules. All it would miss out on is the UNCLOS dispute resolution procedures. But that may actually work to the U.S.'s long term benefit, forcing other states to bargain with the U.S. rather than litigate.

Tuesday, October 11, 2005

The Social Epidemic of Piracy

Great story in Sunday's L.A. Times about the global web of pirated movies. The amazing sequence of events outlined in the article underscores the social epidemic of piracy. The story of bootlegged copies of Spider-Man 2 after it premiered in New York on June 30, 2004 is quite alarming:

  1. June 30, 2004, one minute after midnight: A cammer illegally records Spider-Man 2 at a theater in Manhattan.
  1. The recording is transferred to a computer and, often, posted online. The master copy is delivered to a manufacturer either as a DVD or electronically.4 a.m. the same day: Pirates of the Theatre, a group of bootleggers ... posts [online] a copy of Spider-Man 2.
  1. The manufacturer starts churning out discs, then sells to a network of distributors. They, in turn, sell to teams of vendors and street peddlers.Hours later: Movie is downloaded and thousands of copies are made. First counterfeit DVDs for sale are seized in New York, New Jersey and the Philippines.
  1. Other bootleggers get the bogus DVD and start making their own versions. Meanwhile, online pirates obtain the disc and post its contents to the Internet.A week later: Bootleg DVDs of "Spider-Man 2" have been seized in nine countries.
  1. Manufacturers around the globe download the movie file from the Internet and produce more copies to feed their own networks of distributors and retailers. By the end of July: Authorities have recovered contraband copies in 22 countries. Virtually all the copies can be traced to three illegal recordings, done at 12:01 a.m. June 30.

That last paragraph bears emphasis: Thousands of pirated copies sold in almost two-dozen countries thirty days after the film's release can all be traced to three illegal recordings at Manhattan theaters on opening night.

Quite reminescent of the social epidemic theory outlined in Malcolm Gladwell's The Tipping Point. According to Gladwell, the key to an epidemic is "the law of the few", "the stickiness factor", and "the power of context." A couple of cammers ("the few) record and distribute on the Internet extraordinarily popular ("sticky") movies, and the global culture of online contraband movies ("context") creates a tremendous market for the product. The end result: a global epidemic of a popular pirated movie.

Gladwell's response to criminal epidemics is James Q. Wilson's theory of "Broken Windows." "If a window is broken and left unrepaired, people walking by will conclude that no one cares and no one is in charge. Soon more windows will be broken, and the sense of anarchy will spread from the building to the street on which it faces, sending a signal that anything goes." (p. 141). He suggests that the solution to major crime is to change the environment that spawns minor crime.

What if every country that tolerated piracy was treated by the world community like an urban neighborhood that tolerated broken windows? Will changing the social context in these countries on "petty" theft like piracy alter their attitude about the rule of law for more serious offenses? What if we were to employ, as USTR recently announced, "all tools and resources at our disposal to bring pressure to bear on countries to reform their intellectual property regimes"? This list of recent enforcement efforts is encouraging. Piracy epidemics will no doubt continue, but stricter enforcement efforts brought to bear against targeted countries might stem the tide. That's good not simply for fighting piracy, but for pomoting the rule of law in those countries.

Monday, October 10, 2005

Gore Drops Litigation With Lieberman in Bush Cabinet

Well ok, not exactly. But that is how an American television drama would portray an American version of what has happened today in Germany. Coalition governments are nothing new in Europe, but to an American ear the idea that major opposition parties will have a coalition with Merkel’s CDU cabinet filled with key members of Schröder’s team is, well, a recipe for disaster. As the London Times reports, “She has won the chancellorship at last, but it's a poisoned chalice. Far from being Germany's equivalent to Margaret Thatcher many people believe she is going to be a short-term leader.” Her power is severely limited. Social Democrats have taken eight of the 16 ministries (including foreign affairs, reform, employment, health, transport and finance). Merkel’s Christian Democrats will have eight ministries (including interior, economy, defense, agriculture, family and education), but she must give “two or three away to the Christian Social Union, her sister party in Bavaria. This leaves her only five or six posts.”

They are calling it a Grand Coalition, although it sounds more like a Grand Collision.

U.S. Senate Ratifies Three Possibly Meaningless Treaties

Lest it seems like the U.S. Senate is the graveyard of all treaties, it is worth noting that the U.S. Senate has recently ratified two conventions: the United Nations Convention Against Transnational Organized Crime and the Inter-American Convention Against Terrorism as well as a Protocol of Amendment to the International Convention on the Simplification and Harmonization of Customs Procedures. The two conventions passed by division vote and the protocol won an 87 votes in support and none against.

None of these treaties are particularly controversial and none may be all that important, given that no newspaper has or will cover their ratification. Indeed, it is unclear what obligations these treaties impose that the U.S. does not already impose on itself. For instance, the U.S. has tacked on an "understanding" to the Transnational Organized Crime Convention that essentially limits the treaty's obligations to whatever is required under existing federal and state law. Here is the partial text of the reservation shielding state laws from any obligations under the treaty:

(1) The United States of America reserves the right to assume obligations under the Convention in a manner consistent with its fundamental principles of federalism, pursuant to which both federal and state criminal laws must be considered in relation to the conduct addressed in the Convention. U.S. federal criminal law, which regulates conduct based on its effect on interstate or foreign commerce, or another federal interest, serves as the principal legal regime within the United States for combating organized crime, and is broadly effective for this purpose. Federal criminal law does not apply in the rare case where such criminal conduct does not so involve interstate or foreign commerce, or another federal interest. There are a small number of conceivable situations involving such rare offenses of a purely local character where U.S. federal and state criminal law may not be entirely adequate to satisfy an obligation under the Convention. The United States of America therefore reserves to the obligations set forth in the Convention to the extent they address conduct which would fall within this narrow category of highly localized activity. This reservation does not affect in any respect the ability of the United States to provide international cooperation to other Parties as contemplated in the Convention.

Further, the Senate added that:

The United States of America declares that, in view of its federalism reservation, current United States law, including the laws of the States of the United States, fulfills the obligations of the Convention for the United States. Accordingly, the United States of America does not intend to enact new legislation to fulfill its obligations under the Convention.

So the signing and ratifying the treaty will not require the U.S. to in anyway alter its domestic laws. I don't have a problem with this, although it does make me wonder why it took four years from the treaty being signed to the time of its ratification...

Nobel Nuclear Disarmament Decennial Peace Prize

I always follow the news of the Nobel Peace Prize with great interest and occasionally I find myself pleased with their choices. But this year something struck me as particularly odd. Every ten years the Nobel Peace Prize returns to the subject of nuclear disarmament, and each time it goes to a peaceful dove and not a peace-loving hawk.

In 1975 it went to nuclear physicist Andrei Sakharov who made his name as an opponent of nuclear proliferation and spoke eloquently in his Nobel Lecture about the need for nuclear disarmament.

In 1985 it went to the little-known organization called the International Physicians for the Prevention of Nuclear War (IPPNW), which is "dedicated to mobilizing the influence of the medical profession against the threat of nuclear weapons."

In 1995 it went to the Pugwash Conferences on Science on World Affairs "for their efforts to diminish the part played by nuclear arms in international politics and, in the longer run, to eliminate such arms."

Now, in 2005 the prize goes to the International Atomic Energy Agency (IAEA) "for their efforts to prevent nuclear energy from being used for military purposes..."

Which raises the very serious question of whether only NGOs and IGOs should be recognized for their peaceful nuclear disarmament efforts, or whether military force should be recognized for its role in maintaining and restoring peace.

The Nobel Peace Prize has been awarded to a military recipient only once: in 1988 when it went to U.N. Peacekeeping Forces. Even then it was because "their presence made a decisive contribution towards the initiation of ... peace negotiations." Of course, military men have won the Nobel Peace Prize in the past as well--think George Marshall in 1953 and Teddy Roosevelt in 1906--but never for their military exploits.

It appears that with such awards the Nobel Committee is committed as much to the means of peace as to its ends. The message: peaceful means to secure peaceful ends. But what of military means to secure peaceful ends? Of course few would quibble with the obvious truth that force is sometimes the only way to secure and restore peace. Article 39 of the U.N. Charter recognizes the tautology that threats to the peace or breaches of peace shall be met with measures necessary (i.e., force) to maintain and restore international peace and security.

And if so, then why shouldn't military exploits that truly do secure peace be rewarded? Why weren't George H.W. Bush and the U.N. Security Council awarded the Nobel Peace Prize in 1992 for their monumental efforts to liberate Kuwait and restore international peace and security? More obviously, how can you justify awarding the Nobel Peace Prize in 1947 to the Quakers instead of Winston Churchill? Norway and all of Europe owed its peace to the courage of Winston Churchill and the blood of Allied Forces, not the pacificism of the Society of Friends.

So who will win the Nobel Peace Prize in 2015? It won't be West Point or the Royal Military Academy in Sandhurst, England. But perhaps one of them should.

Sunday, October 09, 2005

David Brooks: The "Hardest Working People on Earth"

Interesting column by David Brooks in the New York Times on Sunday. Money quote:
I believe that social mobility is the core of the American experience. I believe that society should be structured so that as many boys and girls as possible can work, and rise the way young Hamilton and Lincoln did.

If something is going to make American society more fluid and dynamic, then I am for that thing. That's why I love globalization, even while I am aware of its costs. I love the fact that American businesses are going to be improved via competition with Chinese and Indian rivals. I love the fact that to compete we are going to have to reform our lobbyist-written tax code into something flatter and fairer. I love the fact we'll have to make health insurance competitive and portable, so workers can move and companies can thrive.

I can't believe people want to shield America behind the walls of "fair trade agreements." I can't believe some people think we're going to be overrun by those hustling Asians. Americans are the hardest-working people on earth and the most mobile....

When I cut myself loose from the push and shove of today's weary political titans, and go back to basics, I find myself strangely invigorated.

International trade and competition are nothing to fear if you are an American. I would bet others will disagree that Americans are the hardest-working, mobile people on earth. But we are happy to compete on that score.