Saturday, December 31, 2005

Gelukkig NieuwJaar!

As some of you have noticed, my blogging has been very light as of late. As I mentioned in a prior post (I think), I am currently teaching a winter course at the University of the Netherlands Antilles on the Dutch Caribbean island of Curacao. The winter course is co-sponsored by Hofstra, the University of Baltimore, and Erasmus University in Rotterdam. It's a tough job to leave the wet snow in Long Island and to come down to teach amid sunny skies, beaches, and 80 degree weather, but someone has got to do it. (And for those of you readers who are law students, and want a chance to argue with me in person, feel free to sign up for the program next winter).

Due to my Curacao sojourn so I haven't been able to follow up on the zillions of interesting stories including the continued fallout from the NSA spying program, the continuing legal struggle over Padilla and enemy combatants, and all the other stuff I would normally blog about. Thankfully, my co-bloggers have more than picked up the slack.

So let me content myself by wishing all of our readers a Gelukkig NieuwJaar, or Happy New Year and to thank them for keeping us in their bookmark files. This first year of Opinio Juris has been a lot of fun and I look forward to the next year with great anticipation. See you all next year!

Case of the Month: Xenides-Arestis v. Turkey

My vote for the most important international law case in December is the ECHR's decision in Xenides-Arestis v. Turkey. The decision is available here and the official press release is here.

Arestis involved the deprivation of property rights as a result of the continuing division of Cyprus and the Turkish occupation of northern Cyprus. Arestis is a Greek-Cypriot who lives in Nicosia, the capital of Cyprus. She owns land, houses and a shop in northern Cyprus but has been prevented from living in her home or using her property since August 1974 as a result of the continuing division of Cyprus.

The applicant brought a property claim pursuant to Article 8 of the ECHR against Turkey. The Court concluded that the deprivation of her rights to enjoy her property constituted a violation of Article 8 of the European Convention.

But by far the most significant aspect of the decision is the Court's opinion requiring Turkey to address this issue in a systematic way in relation to all similarly-situated applicants:
It is inherent in the Court’s findings that the violation of the applicant’s rights ... originates in a widespread problem affecting large numbers of people.... Moreover, the Court cannot ignore the fact that there are already approximately 1,400 property cases pending before the Court brought primarily by Greek-Cypriots against Turkey..... The Court considers that the respondent State must introduce a remedy, which secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before the Court, in accordance with the principles for the protection of the rights laid down in Articles 8.... Such a remedy should be available within three months from the date on which the present judgment will be delivered and the redress should occur three months thereafter. (paras. 38-40).
In short, the ECHR is ordering Turkey to compensate every Greek-Cypriot who has a claim against Turkey for the deprivation of three decades of use and enjoyment of their property in Turkish-occupied northern Cyprus ("TRNC").

As reported here, one of the principal reasons that the Annan Plan for Cyprus was rejected by the Greek Cypriot community in 2004 was concern for Turkish settlers living on Greek Cypriot owned land. The ECHR decision is an alternative approach to resolving that aspect of the conflict.

Both sides are now trying to interpret the decision, with Greek Cypriots arguing that the decision requires an effective remedy of restoration of properties and compensation for the loss of use, while the Turkish press is arguing that the case affirms the use of an internal compensation commission within the TRNC to resolve the claims.

The Arestis case represents another example of the ECHR using its authority to resolve hundreds of disputes in a mass-claims process. The approach mirrors the earlier decision of the ECHR in Broniowski v. Poland discussed here and here. As I predicted there, "class action" litigation is garnering support in Strasbourg and will grow in popularity.

"Serpico" On Trial in Spain for Torture

As reported here, Ricardo Miguel Cavallo, a.k.a. "Serpico" or the "Angel of Death" can be tried in Spain for alleged torture committed over twenty-five years ago in Argentina. "The National Audience ruled that it has jurisdiction to try Cavallo for the crimes he allegedly committed under the Argentine dictatorship (1976-1983) .... This ruling gives Spanish courts universal jurisdiction to try crimes against humanity, no matter what the victims' nationality."

According to reports here, Judge Garzón has accused Cavallo of having participated in 227 kidnappings and acts of torture concerning 110 people, as well as in the kidnapping of 16 babies who had been removed from their mothers who were in prison.

It is increasingly clear that just as the United States is the world's most important jurisdiction to litigate civil claims for human rights abuses, Spain is becoming the most important jurisdiction for the criminal prosecution of human rights abusers under a theory of universal jurisdiction.

Friday, December 30, 2005

Human Rights and International Law

Today's New York Times has an interesting piece on the promotion of human/women's rights in Africa and the tension between such rights and local custom. This is an excellent illustration of the central problem with international law (at least from a political science perspective). As I have discussed in several other posts here, the critical tension is between sovereign equality of states and the creation of strong, enforceable law. As the Times article makes clear, international legal standards, especially in an area like human rights, often runs counter to local practice, tradition, and custom in the developing worlds. For example, the rights of women to hold property or the practice of female genital cutting (both mentioned in the article) seem to be clear violations of internationally accepted norms.

In order for international law to be successful, it will have to challenge and likely make illegal many such practices. This is a problem for those believers in cultural relativism, or opponents of western "cultural imperialism." In my experience, many supporters of broadening the breadth and scope of international law into domestic jursidictions like women's rights are hesitant to acknowledge that doing so requires judging other cultures and declaring their traditions barbaric and illegal. This problem is compounded when international law seems to coincide with western standards for human rights or the treatment of women.

So, I'll pose a question to all of you international lawyers out there: How can this problem be resolved? And this is not a rhetorical question. If law is to flourish, it must make judgments about right and wrong. On the other hand, if we are to protect the diversity of other cultures and prevent or slow the spread of western values, then the international community must promote sovereignty instead of law. Are you willing to promote the law at the expense of cultural diversity? Personally, I would be, although I can see few international mechanisms by which such decisions could be made. How can the international community agree on standards that violate the sovereign right of nations and peoples to govern themselves?

ACLU Files First Domestic Violence Case Against the United States at the Inter-American Commission on Human Rights

The ACLU announced yesterday that it has filed a petition against the United States at the Inter-American Commission on Human Rights on behalf of Jessica Gonzales, a Colorado woman and victim of domestic violence. She lost her claim in US federal courts, which she argued all the way to the US Supreme Court, that the failure of local police to enforce a restraining order against her estranged husband was a violation of her substantive and procedural due process rights and that the police were therefore liable under 42 USC 1983 (civil rights claims) for the husband's murder of their three children. The US Supreme Court ruled against her 7-2 (Ginsberg and Stevens in the dissent), finding that she had no individual right to have the restraining order enforced.

As the ACLU explains:

Gonzales is a Colorado woman whose three children were brutally murdered by her estranged husband when local police refused to enforce her restraining order. She repeatedly called the police, telling them of her fears for the safety of her daughters and guiding them to the girls' location. The police failed to respond and several hours later all three children were shot and killed by their father, the abductor, against whom Gonzales had a restraining order. The ACLU said that its concern is not limited to the specific Gonzales case. It extends more broadly to all victims of domestic violence who are not adequately protected by law enforcement. This case is the first individual complaint against the United States brought before any international human rights body for the violation of the rights of victims of domestic violence.
The petition (full text available here) to the IACHR:
seeks compensation for the violation of Gonzales' rights, adoption by the United States of necessary measures to deter the commission of similar crimes, and an advisory opinion from the Inter-American Court of Human Rights on the obligations of the United States under international law to protect victims of
domestic violence.

This may prove an interesting case of human rights advocates using both national and international courts to establish a new cause of action. Those who have been following Medellin and subsequent cases brought under the the Vienna Convention on Consular Relations (see discussion here) may recall that the first international court decision finding that due process obligations can be read into the consular notification provisions of the VCCR was made in a 1999 advisory opinion of the IACHR. Unlike the US Supreme Court, the IACHR is empowered to issue advisory opinions.

Correction posted 1/2/2005: The US has not yet acceded to the CEDAW, despite playing a central role in its drafting. President Carter signed the treaty in 1980, and it was twice discussed and voted favorably out of the Senate Foreign Relations Committee (1994 and 2002). But it has to date not been sent to the Senate floor for a vote. The US is a signatory to the OAS Charter, but it is not a signatory to and has not accepted the jurisdiction of the IACHR. That means that a decision of the Court that would be binding on the US is not possible. But an advisory opinion (as happened in the VCCR case) is still possible based on the US membership in the OAS.

Because the US is not a signatory to CEDAW, any advisory opinion of the Court would have to draw on other sources of the right. The petition filed by the ACLU relies on the American Declaration on the RIghts and Duties of Man as the source of US obligation as a member of the OAS. And it relies on interpretations of other treaties, including CEDAW, to develop the argument about the contours of the right at issue.

The question of whether private acts -- particularly domestic violence -- can be considered acts of the state for the purposes of international human rights law has been addressed most extensively within the context of women's rights. Female genital mutilation, for example, is mostly a private act. Domestic violence is committed by private actors. But the state has a responsibility to protect the human rights of all its citizens. The argument can thus be made that where a pattern of gender discrimination on the part of the state is established, international human rights obligations may be triggered. For a full discussion, see the CEDAW Committee General Recommendation No. 19, which concluded:

[D]iscrimination under the Convention is not restricted to action by or on behalf of Governments (see articles 2(e), 2(f) and 5). For example, under article 2(e) the Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.

The facts of this case are somewhat different from the scenario contemplated by the General Recommendation. The physical act was not done to the woman herself (though it is clear from the facts she suffered from a pattern of abuse) but to the children. It was a novel claim when it was brought in the federal courts and is, as far as I know, the first such claim to be brought internationally.

Note: The initial post incorrectly stated that the US had acceded to CEDAW and IACHR. The US has signed, but not ratified, CEDAW. It has not acceded to the jurisdiction of IACHR but is a member state of the OAS, which has adopted the American Declartion of the Rights and Duties of Man as a source of human rights obligations for its members. Apologies for any confusion.

Thursday, December 29, 2005

What's Your School?

I've been grading exams this week and reading various student explanations of how a decision on an international legal issue (defining torture) will vary depending on whether the decision-maker has a positivist or naturalist approach to international law. Of course, I could have asked my students to consider other "schools" of international legal theory -- e.g., the New Haven School, championed by scholars such as Myres McDougal and Michael Reisman, or the New Stream scholarship of Martii Koskenniemi and David Kennedy. Moreover, I could've asked my students to draw on the whole set of "international law and . . ." scholarship, whether it's Anne-Marie Slaughter's work integrating international relations theory with international law or my colleague Jeff Dunoff's work with Joel Trachtman advocating an international law and economics approach. And that's just the tip of the iceberg.

My question though is how much of this matters to the international law practitioner? I know when I worked at the State Department there was little discussion of international legal theory or reference to how it might influence the outcome of particular cases or problems. Now, of course, I think about theory much more. But I do wonder how often lawyers in practice rely on it, or even consider how the analysis of a particular problem they are facing might vary depending on which "school" of international law they apply. Put another way, I'd be interested in knowing whether those readers who practice international law rather than teach it, self-identify with a particular school of thought, and if so, which one?

"Munich" and the Role of Law

I saw Munich over the weekend and found it quite an astounding achievement by Steven Spielberg. One of the most complex and engaging movies he has produced in years. It certainly ranks up there with Schindler's List and Saving Private Ryan. There are plenty of good reviews of the movie. The New York Times has two reviews here and here, and David Brooks' take on it is here, and they are all worth reading. I will not attempt to replicate.

But there is one aspect of the movie that is intriguing and, as best I can tell, missing from the movie reviews so far. That aspect is the morality play about the role of law in the conduct of war and the role of law in preserving the humanity of a killer.

Law featured prominently in the movie through its absence. The early meeting with Golda Meir, the total secrecy of the mission, the lack of respect for codes of conduct, the flagrant and repeated violations of territorial sovereignty, the extrajudicial killings, the willful transgression of national and international laws. The lawlessness of the mission is not opaque, and the dialogue among the avengers is replete with reference to their breach of the rule of law.

But what is most interesting about the movie is the impact that this lawlessness has on the hero assassin, Avner. Because Avner recognizes his lawlessness, he becomes tormented with his own humanity, his own evil. He descends into an inferno of fear. Fear not so much of death, but the loss of his soul.

The chilling dialogue between Avner and his mother at the close of the movie suggests that she has the heart of a terrorist who is willing to do anything, sacrifice anything, for home. Her words echo the words of the PLO terrorist's words earlier in the movie yearning for native land. But she does not know at what cost these ends were achieved. She doesn't want to know. But Avner's torment is not about ends, but means.

As I watched the movie it struck me just how important the laws of war are to the soldiers who do the killing. Sterile academics dissect jus in bello and parse neat distinctions between enemy and non-enemy combatants. But soldiers actually live these rules of war. And the line between a tormented assassin and a noble and heroic soldier is the rule of law. Extrajudicial killing is portrayed in the movie as a type of moral relativism that begins to destroy the avenging assassin as much as the evildoers they are killing. That is why a soldier so desperately needs to know that his actions -- his "judicial" killings -- are not simply necessary, but morally justified. By sanctioning his conduct through the rule of law, society cleanses his killing of others and the soldier thereby preserves his humanity.

The movie brought to mind an excerpt from Elie Wiesel's The Accident. This book is the last of Wiesel's trilogy (Night, Dawn and the Accident) and one of his most thoroughly depressing. In short, it is about a Holocaust survivor who becomes a terrorist. In the book, Wiesel suggests that in the conduct of war, the terrorist soon forgets the night of terror, but the victims never forget. In their eyes, he who has killed is a killer for life. The terrorist may choose another occupation, hide under another identity, but for the victims he is an executioner, and an executioner he remains even after the backdrop has changed and he is acting in another play upon a different stage.

Spielberg's morality play that is Munich posits that neither the victims nor the terrorists ever forget. Avner in the end abandons his mission, abandons his country, and seeks refuge in another land. But his soul cannot rest. A line has been transgressed and an assassin like Avner can never go back.

Update on Trial of Turkish Writer

This is a quick follow up on my post and Seth’s post, concerning Orhan Pamuk, the Turkish writer who was shortlisted for the Nobel and also faces criminal charges for insulting the Turkish nation.

Pamuk is a great Turkish writer, however he is also a controversial figure, having criticized Turkey for ignoring Armenian and Kurdish massacres. This controversy is something Turkey (and Europe) would like to downplay as Europe is trying to smooth-out Turkey’s accession to the EU. (The winner of the Nobel, Harold Pinter has made his name most recently for his vocal criticism of U.S. policies--if not of America istself--which I gues is not a politically controversial topic for the Nobel Committee.)

So Pamuk didn’t get the Nobel. And, moreover, his problems in Turkey were only beginning.
Pamuk had said in a magazine interview that "One million Armenians and 30,000 Kurds were killed in these lands and nobody but me dares talk about it." The government of Turkey claims that this violated Turkey’s Article 301, which, according to the BBC, “makes it illegal to insult the republic, parliament or any organs of state. A guilty verdict can carry a prison sentence of up to three years.” And so he is being tried for insulting “Turkishness” and also the Turkish armed forces.

Today Pamuk finally gets a little good news, such as it is: the prosecutors have decided to drop the “insulting the armed forces” charge, although the trial is going forward concerning his alleged insult to the Turkish state.

The EU, though, gets some bad news. The BBC reports:

The same nationalist lawyers behind Mr Pamuk's indictment have succeeded in opening an investigation into comments made by a Euro MP, who was part of an EU delegation attending the writer's hearing.
Joost Lagendijk, who chairs the EU parliament committee on Turkey, is accused of insulting Turkey's armed forces after allegedly saying troops were provoking clashes with Kurdish separatists.

I'll close with a couple of choice quotes (as reported by CNN) from Turkish Prime Minister Tayyip Erdogan and Pamuk concerning the wisdom of trying people ofr offending "Turkishness":

"We should not hurry. This is a new law, let's see how it works, what the outcomes are," Erdogan said in reference to the law used to put Pamuk on trial for insulting "Turkishness." "If there are serious problems, then of course the legislature will sit down, make a new assessment and take a new decision."

In an interview published on Thursday, Pamuk told daily Aksam newspaper that the government should carry out real -- not cosmetic -- reforms to expand freedom of expression if it really wants to carry the country into the EU.

"For a country to enter the EU, there has to be full respect of minority rights, freedom of thought and expression," Pamuk said. "If you drag your feet and make cosmetic changes ... then this won't do. To believe that, you would need to be a child."

Nice to see that this law doesn't seem to have much effect in quieting down Pamuk.

Government Shuts Down Volokh Conspiracy

There is a great post by Lyle Denniston at SCOTUSblog on the Solicitor General's filing in Padilla yesterday. But what really caught my attention came from the comments. There was wild speculation that the U.S. government was so concerned about the heated discussion at Volokh on Hamdi, Padilla, and domestic surveillance that perhaps the government "has taken down Volokh. Anyone know anything?" When others expressed skepticism, the response was "I would reserve judgment on whether the Volokh issue is conjecture -- maybe the WH [White House] can explain."

Not to worry. The Government has reconsidered its actions and the White House has decided to let Volokh Conspiracy continue. It is back up and running today.

"You've Been Indicted!"

Interesting story from South Korea about prosecutors using text messaging to inform citizens that they have been indicted. In a country where 75 percent of the population carries mobile phones, the government concluded that it was more efficient to provide legal notices to citizens electronically instead of by mail. So if your battery dies or your phone is stolen and you never receive the indictment, can you claim inadequate service of process?

Of course, the "service" is not limited to legal notices of criminal prosecution. The government will also text message you if you owe a fine or penalty.

Wednesday, December 28, 2005

Social Audits as a Defense Against ATS Litigation

Owen Pell at White & Case has a chapter in our book Holocaust Restitution entitled, "Historical Reparation Claims: A Defense Perspective." The chapter in essence argues that a company that wishes to defend against historical reparation claims must have detailed knowledge about its company history. He writes, "A crucial lesson of the Holocaust asset cases is that companies must invest heavily in historical research so that they will have control and an intimate understanding of the facts." (p. 331-32).

Pell's advice is sound for historical reparation claims. But if that is the approach corporations should take to address claims of historical misdeeds, what should corporations do to prevent claims of human rights or environmental abuses today? In short, with globalization and outsourcing, how can a multinational corporation avoid the risk of corporate ATS litigation? If I were advising corporate counsel, one of the most important steps I would recommend is to invest heavily in research on what actually is occurring on the ground in the manufacture of their products.

One of the most innovative approaches to such research is the use of independent "social audits." The idea of social audits is that a multinational can be a better corporate citizen and avoid international human rights litigation if it takes preventive action through independent social auditors.

A U.S.-based NGO by the name of Verité is at the forefront of this new approach to curtailing human rights abuses abroad. This NGO works with corporations to research what is occurring in their factories abroad. Verité has conducted social audits in 60 countries for clients such as Wal-Mart, Timberland, Tommy Hilfiger, Nike, Gap, Reebok, Adidas, and Disney. Verité has performed over 1,300 social audits to assess factory compliance with local and international labor, health, safety and environmental regulations, company codes and industry best practices. It provides factory management with specific recommendations to remedy problems, as well as capacity-building training for factory management, manufacturer representatives, and workers. Verité’s factory audits cover the full range of labor standards outlined by the International Labor Organization and national law.

In recognition of its efforts, Verité recently was honored by Fast Company magazine as one of 25 groups that are changing the world. The company was founded by Heather White, who taught at MIT's Sloan School of Management. The genesis of the idea came from a class she led on Asian economic growth, where a guest speaker shared stories of conditions in Asian factories: forced pregnancy tests for women, beatings, child labor, and harassment. But the students were unmoved. "Their attitude was, 'This happens in every country. Any jobs are better than no jobs.' " White said she was "was disturbed that we were producing business leaders who didn't feel corporations had responsibility for labor practices in their factories." So she founded Verité in the hope that with constructive prodding, companies could wield their influence to change workers' lives.

Social audits are good for corporations, not only in helping them to become better citizens, but also to avoid the risks associated with ATS litigation based on their global supply chain practices.

Unwarranted Surveillance and Standing

Over at the Exploring International Law blog, run by Anthony Arend (a former professor of mine at Georgetown), is an excellent post on the question of how any suits regarding warrantless NSA surveillance might reach the courts. I'm sure my colleagues here at Opinio Juris are much more qualified and capable of addressing this question than am I, but from a political perspective, it seems that this is a important issue. While Julian and I may disagree as to the legality of the spying, I do tend to agree with Tony that it's very unlikely that this will be decided in the courts soon (although the New York Times reports that several men accused of ties to al Qaeda will challenge the legality of the surveillance) . Rather, it will take a political confrontation between Congress and the administration to settle whether or not the president does indeed have sufficient authority to conduct such a surveillance campaign without the explicit authorization from Congress.

I am no conspiracy theorist. I do not think that Bush and Cheney cooked up this scheme to seize power and spy on average everyday Americans or to subvert this country into their own private fiefdom. However, I do believe in the limitation of the power of government. And in this "war" in particular, specifically one that has no metrics for victory and no imaginable end, it seems that we need to be especially careful when we give the president unusual powers to conduct secret operations on American soil. It is hard to envision feckless congressmen mustering the political courage to challenge the president on this in the face of charges like "unpatriotic" and "soft on terror." This is why, in my mind, it is so important to keep the domestic use of executive power on a tight legislative leash.

Tuesday, December 27, 2005

More Predictions of Israeli Airstrike on Iran

I have written on the madness of Mahmoud Ahmadinejah and the threat Iran poses to Israel. See here, here, and here. Other bloggers are now joining the fray.

David Bernstein at Volokh Conspiracy has just returned from Israel and has this prediction: "I predict that Israel will strike Iran within the next few months, with the goal of disrupting or terminating Iran's nuclear program." He notes that "[g]iven that the anti-Iranian consensus is so solid even on the Left, I would be very surprised if the Israeli government fails to follow through on its promise to prevent Iran from acquiring atomic weapons--assuming, of course, that Iran isn't stopped by other international forces."

I will follow David Bernstein's prediction with two of my own: As long as Iran continues its current course and does not take outright belligerent action against Israel: (1) The United Nations Security Council will not authorize the use of force against Iran; and (2) the United States will not unilaterally attack Iran.

I would be curious what our readers think. Scroll down and vote.

Which of the following do you think is most likely to occur in 2006:
Israel will preemptively strike Iran to thwart its nuclear capability
Iran will take offensive action against Israel before any such preemptive strike by Israel
The U.N. Security Council will authorize the use of "all necessary means" to prevent Iran from attacking Israel
The United States will preemptively strike Iran to thwart it's nuclear capability
None of the above will occur in 2006


Free polls from

Pinochet Fit to Stand Trial

The chances that Augusto Pinochet, age 90, may one day face prosecution increased dramatically this week after the Supreme Court of Chile ruled that he was fit to stand trial. Here is a link from the BBC, which has the best English coverage of the news. Photos and video clips from Chile showing Pinochet and the Supreme Court are available here.

Monday, December 26, 2005

Judge Alito and Immigration

Last week, Yale Law School professors and students who oppose the nomination of Samuel Alito have published a paper called the "Alito Project." (Link) It analyzes Judge Alito's judicial decisions, but does not purport to do so objectively. Indeed, many of the participants in the project were quoted in the New York Times last month as openly opposing Judge Alito.
As I have posted on Judge Alito's immigration opinions in the past, see here and here, I was curious to see how the Alito Project would portray his immigration decisions. Unfortunately, I found myself disappointed with the manner in which Owen Fiss, Bruce Ackerman and other members of Yale community represent Alito's immigration decisions.
The paper begins the immigration discussion with a patently false attempt to contrast Alito with other federal judges. It begins with the statement that "Judge Alito's immigration opinions suggest a belief in a smoothly functioning system that merits judicial deference. This vision of the immigration system stands in stark contrast to that of other federal judges." It then references an opinion by Judge Posner that the Seventh Circuit has reversed a "staggering 40 percent" of BIA cases in the past year. The purpose of this lead paragraph is quite obviously to suggest that Judge Alito is miserly in reversing immigration decisions as compared to other appellate judges.
So what are the actual numbers? A comparison with other federal appellate judges reveals that Judge Alito is 44 percent more likely to reverse the BIA than the typical federal appellate judge. Judge Alito has affirmed the BIA in seven of eight deportation decisions, and affirmed the BIA in seven of nine asylum cases. That's a reversal rate of 3 out of 17 cases, or 18 percent. That may sound harsh to the folks who wrote the Alito Project. But it is not. According to an article in the New York Times today, the government wins more than 90 percent of immigration cases in federal appeals courts. So while the average federal appeals judge will reverse no more than 10 out of 100 immigration cases, Judge Alito would on average reverse 18 out of 100 immigration cases, or 44 percent more cases than the typical appellate judge.
The immigration section of the Alito Project concludes with a back-handed compliment to Judge Alito. It states with negative overtones that "Judge Alito has voted to deny an asylum request or to uphold an order of deportation in nearly all of the immigration cases about which he has written. He has followed the law when it was clear but has deferred to the government position in virtually all cases where it was not." That is precisely what black-letter administrative law requirements of judicial deference require: No deference where Congress has clearly spoken and the agency departs from that mandate, but deference where the agency has rendered a decision that is a permissible interpretation of the statutory obligation.

Sunday, December 25, 2005

The Child Who Cheated Fate

On this day of celebration for Jews and Christians, I thought I would spare you the daily grind of international news and commentary and give you a more human story. This is a true and inspiring story retold with permission from the person who lived it. I hope it will make you feel blessed that we live in a time of peace, prosperity, and security. Blessed that one man cheated fate and grew up to be good and great. Blessed that today our children need not cheat fate to grow up and have a chance to be good and great.

One year ago this November, my family and I had the privilege to have lunch in The Peace Palace with Judge Thomas Buergenthal, the American judge on the International Court of Justice. I had had the honor to work closely with Judge Buergenthal at the Claims Resolution Tribunal in Zurich, Switzerland a few years back. He was quite fond of my children then, and now welcomed the chance to become reacquainted with them.

As we arrived at the Peace Palace, Judge Buergenthal and his wife Peggy graciously greeted us in his chambers and escorted us to the judge’s dining quarters at the Peace Palace. It is an intimate and warm restaurant reserved for the judges and their guests. My wife and I warned our children, then 8 and 10, about just how important this man was and how much we respected him. I desperately wanted them to be on their best behavior. Thankfully, they were.

After a delightful lunch on white-linen cloth, I gathered up the courage to ask Judge Buergenthal if he might be willing to tell my children what he was doing when he was their age. My children had just finished visiting the Anne Frank house in Amsterdam and they knew full well that Hitler was intent on finding and killing Jews during World War II. But they had never heard a real story of the Holocaust from the perspective of an actual child survivor.

I knew Judge Buergenthal was fairly open about discussing his experience at Auschwitz, see here, but I did not want to presume that this was the appropriate occasion for such a discussion. Happily, the judge was more than willing to oblige. As my children’s eyes widened with astonishment, he said, “When I was your age I was a soldier in the Polish army.” He then told a long story about what life was like as a child survivor of Auschwitz sixty years ago.

He said you had to be clever, street-smart, to have any hope to survive each day of the Holocaust. Every morning at roll call he knew the routine. The Germans would pick off the weakest of the group for the gas chamber. Young Tom knew that he had to be invisible to avoid that fate. So he would hide in the back rows during roll call, answer when called upon, and then quickly sneak back to the barracks to hide in the shadows. It was a constant, daily game of cat and mouse for the young boy of Auschwitz.

In early 1945 young Tom was forced to participate in the Auschwitz death marches. To avoid getting shot as a straggler, he and two other boys would run to the front of the line, rest a few minutes while the rest of the group passed him by, and then repeat the routine over and over. As a result of the death march, young Tom became seriously ill. He was sent to the health ward at Sachsenhausen for treatment for frost bite. He knew that this injury meant his death, for the next stop would be the gas chamber. But as he lay there recovering in the ward, he suddenly noticed a strange silence. The Germans had all fled. No guards, no staff, no watchmen. As he sat in that ward, awaiting his imminent death, it was then that he realized that the Allied forces had liberated the camp. The Russians had arrived. Tom Buergenthal was one of three child survivors of the Auschwitz death marches.

Judge Buergenthal then told my children his remarkable experience after his liberation from Auschwitz. He said that when the Russians learned he spoke Polish, they sent him over to the nearby Polish army. The Polish army adopted this young ten-year-old as their mascot. They gave him a small horse, put a Polish uniform on him, and gave him a musket. This ten-year-old mascot of the Polish army was there rooting the Russians and Poles in the 1945 Battle for Berlin.

As Judge Buergenthal finished speaking, my children’s eyes were wide and receptive. They said scarcely a word. They could hardly believe this story of this old man who now sat on the International Court of Justice who was once a ten-year-old child survivor of Auschwitz and a young soldier in the Second World War.

As we left the lunch and were waiting in the lobby at the Peace Palace my oldest son asked for his diary from his backpack. He began retelling the story to himself in his halting cursive. The diary entry began, “Today I met a great man…”