Saturday, February 11, 2006

Ahmadinejad on the Cartoon Controversy

For Iranian President Mahmoud Ahmadinejad it's all about Israel. The cartoons were not an act of freedom, they were a desperate act of hostages. This week Ahmadinejad used the cartoon controversy to blame the United States and Europe for "being hostages of the Zionists." He then criticized the double-standard of the freedom to insult the prophet while imposing criminal sanctions on those who deny the Holocaust.

"I ask everybody in the world not to let a group of Zionists who failed in Palestine ... to insult the prophet. Now in the West insulting the prophet is allowed, but questioning the Holocaust is considered a crime ... We ask, why do you insult the prophet? The response is that it is a matter of freedom, while in fact they (who insult the founder of Islam) are hostages of the Zionists. And the people of the US and Europe should pay a heavy price for becoming hostages to Zionists." (Link).

Punish the Zionist hostages, stop insulting the prophet, and don't complain when I deny the Holocaust. Why am I not surprised?

Two Hundred Years of Reliance on Foreign Authority

Steven Calabresi and Stephanie Dotson Zimdahl have recently published in William & Mary Law Review an article on The Supreme Court and Foreign Sources of Law: Two Hundred Years Of Practice and the Juvenile Death Penalty Decision available at 47 William & Mary L. Rev. 743. An earlier version is available on SSRN here.

Here is the summary from their introduction:
Our analysis of the Court's practice leads us to several conclusions. First, we believe that those political and journalistic commentators who say that the Court has never before cited or relied uponforeign law are clearly and demonstrably wrong. In fact, the Court has relied on such sources to some extent throughout its history. Second, the Court has cited foreign law with much more frequency in far more important constitutional cases as the Court has grown older and has increased significantly its use of such sources in striking down legislation only since Trop v. Dulles in 1958. The phenomenon that Justice Scalia complains about is thus a relatively new development. Third, the Court has tended to cite foreign law in some of its most problematic opinions, such as several of the concurring opinions in Dred Scott, and its opinions in Reynolds and in Roe v. Wade. This suggests that Justice Scalia is right to be wary of the Court's movement in this direction. Fourth, the historical evidence suggests to us that citation of foreign law is most (if at all) justifiable when the U.S. Constitution asks the Justices to weigh whether a certain practice is reasonable, as it does in the Fourth Amendment, or whether it is unusual, as it does in the Eighth Amendment. In contrast, citing foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates historically unique American federalism rules, as it was asked to do in Printz v. United States. We suggest that in the overwhelming majority of non-Fourth and non-Eighth Amendment cases, it is inappropriate for the Court to cite foreign law. Citation of such law can, in fact, be a sign that the Court is falling into policymaking, as it did in Dred Scott, Reynolds, and Roe, and this, in turn, suggests that the Justices are behaving illegitimately. We thus substantially agree with the spirit, if not entirely all of the substance, of Justice Scalia's warning against citing foreign law in most U.S. constitutional cases.

US Votes with Iran Concerning LGBT Groups

Strange bedfellows indeed. Yahoo News reports that the United States recently voted in favor of an Iranian initiative to deny UN consultative status to organizations working to protect the rights of lesbians, gays, bisexuals, and transgenders (LGBT).

In May, 2005, two LGBT organizations – the International Gay and Lesbian Association and the Danish National Association of Gays and Lesbians – applied for consultative status with the UN’s Social and Economic Council. Such status is the sole official means through which NGOs can participate in discussions at the UN between member states. Some 3000 groups enjoy consultative status. Led by Iran, a group of states moved to summarily dismiss the organizations’ applications, a nearly unprecedented event. The US first abstained on the vote to end debate over the applications, then voted to reject the applications themselves. The vote put the US in rather unsavory company: in addition to Iran, the other states voting to dismiss the applications were Cameroon, China, Cuba, Pakistan, the Russian Federation, Senegal, Sudan, and Zimbabwe. Chile, France, Germany, Peru, and Romania voted in favor of the applications; Colombia, India, and Turkey abstained. (Cote d’Ivoire was too busy with its internal problems to vote.)

The vote represents a complete reversal of US policy. As recently as 2002, the US voted to support IGLA’s request to have their status reviewed. It’s also an unfortunate reversal, given that the State Department’s recent “Country Reports on Human Rights Practices documents numerous examples of violence – actual and symbolic – against LGBT persons, including Iran's use of the death penalty to punish male homosexual behavior and Zimbabwean President Robert Mugabe's verbal lashing of homosexuals as '”people without rights'” and ”worse than dogs and pigs.” (Human Rights Watch documents more examples here.)

Why did the U.S. reverse course? According to the State Department – dusting off a right-wing shibboleth – because it’s afraid of pedophilia:

Edgar Vasquez , a State Department spokesman, said Friday: "The United States continues to implement a law requiring certification by the United Nations to prohibit funding of NGOs that condone pedophilia. The United States as a policy matter remains concerned about support for pedophilia, and we believe that ILGA must establish a verifiable process" to ensure that neither it nor its member organizations promote or condone pedophilia.

When questioned by a reporter from the Washington Blade, Vasquez admitted the United States opposed ILGA's application because it once included the North American Man Boy Love Association as a member.

That group aims to legalize sexual relations between adults and minors; ILGA expelled it in 1994.

"In this case, we did not vote against the group because it was a gay rights group, but because of its past association with a group condoning pedophilia," said Vasquez, referring to ILGA.

Vasquez claimed he did not know why the United States voted against the Danish group's application.

Vazquez also didn’t explain the U.S.’s 2002 vote in favor of IGLA. In fact, according to the official UN Web site,

The representative of the United States, who said his government had sought the earlier suspension of the organization because of the pedophilia issue, said he had not seen any proof that the organization now condoned pedophilia. On the contrary, he saw evidence that the NGO was saving lives in the struggle against HIV/AIDS.

Friday, February 10, 2006

Interview with New ICJ President Rosalyn Higgins

Although she is not exactly getting lots of press coverage, new ICJ President Rosalyn Higgins took the opportunity to lay out some her views about the role of the court in this interview. The ICJ is preparing for one of its most difficult hearings next month involving Bosnia's claim of genocide against Serbia and Montenegro. The case has been going on for, uh, 13 years which appears to embarrass Higgins.

Higgins sees the ICJ as a unique position, because it is the “primary judicial organ of the UN”, and because its pronouncements of international law or interpretation of treaties is “authoritative”. According to the article, Higgins is keen to maintain the way the court contributes to “the understanding and development of international law [through] high quality judgments” - and she stresses, the judges write “every word” themselves.

I actually think the ICJ's influence on the development of international law is less important than Higgins suggests. The ICJ's interpretations are not always "authoritative" and so its influence must stem from the credibility of the institution rather than from its raw judicial power. Moreover, there are many more international tribunals today than in the past, and none of those tribunals owe any obligation to defer to the ICJ's interpretations of international law. It is the ICJ's credibility is the real source of the ICJ's power, and on this front, Higgins has a lot of work ahead of her.

Bechtel Abandons its ICSID Claim Against Bolivia

In an era in which transnational corporations have become wealthier and more powerful than many countries – GM alone is worth more than 120 – it’s easy to dismiss anti-corporate political activism as naïve, anachronistic, and doomed to failure. But that’s not always true. Case in point: the Bechtel Corporation’s recent abandonment of its claim against Bolivia in the World Bank’s secretive trade court, the International Centre for Settlement of Investment Disputes. Bechtel had sought at least $50 million in damages for profits it ostensibly lost when mass protest in Bolivia over skyrocketing water rates forced Aguas del Tunari, the Bechtel-controlled utility company that imposed the rate hikes, to close up shop. Instead of its $50 million, Bechtel agreed to damages in the amount of two bolivianos – 25 cents.

The seeds of the dispute were planted in 1997, when the World Bank informed Bolivia that it was conditioning additional aid for water development on the government privatizing the public water systems of La Paz and Cochabamba. In 1999, after a secret process with one bidder, Bolivia turned Cochabamba’s water over to Aguas del Tunari, a utility company whose majority owner was Bechtel. Within a few short weeks, Aguas del Tunari raised water rates by an average of more than 50%, far beyond what most poor families in Cochabamba could afford. The increases sparked a citywide rebellion that has become known simply as the “Cochabamba Water Revolt.” In response, the government declared martial law in the city and sent police and soldiers to quell the rebellion. Finally, after the army killed a 17-year-old boy and wounded more than a hundred others, Bechtel decided to pull Aguas del Tunari out of Cochabamba.

Eighteen months later, in November, 2002, Bechtel filed its $50 million claim with ICSID. The claim was not only for recovery of its lost investment, which amounted to less than $1 million, but also for the profit it claimed to have lost when Bolivia annulled Aguas del Tunari’s contract.

Bechtel’s suit was no more popular than the increase in water rates, largely because of ICSID’s lack of transparency and accountability. ICSID proceedings are closed to the public and press and the tribunal operates outside of national laws – the judges in each case define the applicable norms and procedures. Decisions by the tribunal are not appealable, and a country faces economic sanctions if it does not comply with its rulings. So after a petition to appear before ICSID filed by 300 organizations in 43 different countries was denied, activists took to the streets. Thousands sent e-mails to corporate executives. Protesters in San Francisco blocked the entrance of Bechtel’s corporate headquarters, and San Francisco’s Board of Supervisors passed a resolution calling on Bechtel to drop the case. Activists in DC protested at the home of the Bechtel executive in charge of its water division. Hundreds of articles and editorials were published world-wide.

Finally, Bechtel gave in and withdrew its claim. Sources say that Bechtel’s CEO, Riley Bechtel – weary of having his corporation painted as the poster-child for corporate greed – made the decision himself.

Although the case obviously represents a victory for the poor Bolivians in Cochabamba, its significance is far greater. In the past few years, the number of cases brought by transnational corporations in international commercial tribunals like ICSID has grown exponentially. Many of those cases involve challenges to laws and regulations taken by governments in developing countries to protect their citizens from the worst effects of globalization. Often, perhaps usually, those challenges are successful – witness ICSID’s ruling in May, 2005, that Argentina had to pay CMS Energy $133 million in damages for “expropriation and discriminatory treatment,” ostensibly resulting from the Argentine government’s conversion of energy tariffs from pesos to dollars during its 2002 peso devaluation.

But they are not always successful. Sometimes political activism can make a difference. And therein lies the victory over Bechtel's true importance.

Chavez, Blair, and Invoking International Law


Venezuelan President Hugo Chavez has spun up a tiff with Tony Blair in which the words “international law” are getting flung around a lot. To little effect. According to the BBC:

On Wednesday in the House of Commons, Mr Blair was asked by Colin Burgon, an MP from his Labour party, whether Britain should follow "a really right-wing US republican agenda" in relation to Venezuela.

"It is rather important that the government of Venezuela realise that if they want to be respected members of the international community they should abide by the rules of the international community," Mr Blair replied.

"I also have to say with the greatest respect to the president of Venezuela that when he forms an alliance with Cuba I would prefer to see Cuba a proper functioning democracy."

Mr Chavez, a close ally of Cuba's Fidel Castro, retorted: "You, Mr Blair, do not have the morality to call on anyone to respect the rules of the international community.

"You are precisely the one who has flouted international law the most... siding with Mr Danger [George Bush] to trample the people in Iraq."

The next day, Venezuela’s Vice Foreign Minister Pavel Rondon sent a letter to British Ambassador Donald Lamond which said that Venezuela categorically rejected Blair's comments and noted that international law meant respect for the legality of other countries. CNN reports that the letter said:

"The serious distortion in his words in confusing 'the rules of the international community' with the norms and principles of International Law has not gone unnoticed by our government," the letter said.

"This type of confusion has facilitated, permitted and induced the worst atrocities against the world's peoples."

I plan on writing more on this in the coming days but two quick comments fro the moment:

First, while the rhetoric is hot and the tit-for-tat ousting of diplomatic personnel by the U.S. and Venezuela is a (slight) escalation, for the moment what we still have here is essentially posturing for the domestic audience by Chavez. Oil sales are still proceeding between Venezuela and the U.S. and, until that comes seriously into question, I think what we have here is more an attempt to shore up domestic politics by Chavez as well as a bid for more regional political clout. Whether his rhetoric turns into more active attempts to frustrate American policies remains to be seen. (Actually, I think it probably will…)

Second, despite the ridiculous context of this spat with the British has actually brought up an interesting point: the disparity between what people think international law says versus what it actually says. For a humorous example, think of Roger’s post on the woman invoking the “International Court of Law” in relation to a spelling bee. On a less humorous side, see how Venezuela argues that it is the U.K. misstating International Law (though it is not clear what the actual miss-statement was) and thus Venezuela itself wraps its own actions—legal or otherwise—in the mantle of respectability.

I’ve been wrestling with whole issue of legal rhetoric versus political rhetoric (and how they effect the underlying substance of law and policy) in a couple of articles I am finishing up. I will post some more on this in the coming days and weeks.

Summary of WTO decision on GMO

Joel Tracthman of the International Economic Law and Policy Blog has a good summary of the GMO decision. I like the title: "From 800 pages to 1." Check it out. Rob Howse also adds his thoughts here.

Also, I note with great enthusiasm the new list of contributors to that blog. They have recently added Joost Pauwelyn, Debra Steger, Chantal Thomas, Jeff Dunoff, Joanne Scott, Greg Shaffer, Todd Weiler, and Steve Charnovitz. It should be very interesting to see what they have to say.

Yet another serious, professional, high-class law blog. It underscores how academic blogging has become mainstream.

ICTR Acquits Two High-Ranking Rwandan Officials

The Appeals Chamber of the ICTR has unanimously upheld a Trial Chamber's acquittal of Andre Ntagerura and Emmanuel Bagambiki, two high-ranking Rwandan officials, on charges of genocide and crimes against humanity. The charges stemmed from a series of massacres committed in Rwanda's Cyangugu Province in 1994 that killed more than 800,000 people, mainly Tutsis. The Trial Chamber held – unanimously, as well – that the prosecution had "failed to prove beyond reasonable doubt" that Ntagerura, a former transport minister, and Bagambiki, the former governor of Cyangugu Province, actively participated in the massacres. It also held that Bagambiki could not be held responsible for the acts of soldiers who killed Tutsis, because the prosecution had failed to establish the existence of a superior-subordinate relationship between him and the killers.

The ICTR Statute – like those of the ICTY and ICC – permits the prosecution to appeal an acquittal, reflecting the influence of the civil law on its rules of procedure. (Such appeals are obviously forbidden in the U.S. by the Double Jeopardy Clause, although in 1998 the Seventh Circuit affirmed an Illinois appellate decision permitting retrial of a defendant who bribed the judge presiding at his bench trial to acquit him.) The two grounds for appeal are an error on a question of law sufficiently serious to invalidate the decision and an error of fact that has resulted in a miscarriage of justice.

The acquittals, it’s worth noting, are rare events for the ICTR; since the Tribunal began work in 1994, 20 defendants have been convicted and five (including Ntagerura and Bagambiki) have been acquitted. Ntagerura is also the first minister-level Rwandan official ever acquitted by the Tribunal.

The Appeals Chamber’s decision has not been released yet, so I can’t comment on its legal merits. But the fact that the judges – trial and appellate – are taking seriously the prosecution’s burden of proof in cases as notorious as this one is a good sign both for the ICTR and for international criminal law generally. It's difficult to imagine how a fair tribunal could ever have a perfect conviction record; given the factual and legal complexity of international crimes like genocide, not even the most conscientious investigators and prosecutors can avoid ensnaring at least a few defendants who are innocent or whose guilt cannot be proven beyond a reasonable doubt. After all, the Nuremberg Tribunal itself, with its overwhelming evidence of guilt, resulted in three acquittals.

Arbitrating Disputes at the Winter Olympics

With the Winter Olympic Games opening today in Torino, I thought you might be interested in knowing how athletic disputes arising during the Olympics will be resolved. Every Olympic Games has their share of legal disputes, and this year will be no exception.

Essentially disputes are resolved by an ad hoc arbitral body that is on call to immediately adjudicate any legal dispute. All or almost all national Olympic federations (and their athletes) agree in advance to Court of Arbitration for Sport (CAS) arbitration. The Court of Arbitration for Sport is based in Lausanne, Switzerland, headquarters of the International Olympic Committee. I actually teach a study tour each May that takes our students to London and Geneva (I know, tough life) and it includes presentations in Lausanne from the Secretary General and/or legal staff at CAS.
Of course, only the top of the arbitration profession gets this amazing gig. I happen to know several of the arbitrators who have done it in past years and their stories are quite amazing. They are on call day and night to resolve any dispute, but otherwise they are guests of honor at the Olympics.

The arbitration rules governing Olympic disputes are short, only 10 pages, and are available here under the Ad Hoc Rules tab. Any scholars interested in the subject can find a CAS bibliography of sports law here. Georgetown Law Library also has a nice Olympic and International Sports Law webpage here with good links. There also is a nice summary of the recent history of arbitrating Olympic disputes from the CAS webpage.

Many of the Olympic cases have involved doping, which is unlikely to be of particular interest to our readers. But if there are any interesting disputes arising from the Olympics I will try to post about them.

UPDATE: On Sunday Reuters published a nice story of the Court of Arbitration for Sport here that includes quotes from with CAS Secretary General Mattieu Reeb.

Thursday, February 09, 2006

Videogames and the Red Cross (Updated)

Lest Roger win the competition for the most unusual story of the day, gameindustry.biz is reporting that the Red Cross has been contacting videogame developers to protest the use of its symbols in their games. Such use is widespread:
Just about every video game that involves combat uses the Red Cross symbol in some form or fashion. From medical kits and first-aid stations to ambulances, the familiar red cross is a universal symbol in real life and games for aid. Even MMORPGs like EverQuest use a red cross-type emblem to symbolize healing spells.
According to Michael Meyer, head of the British Red Cross's international law section, "[t]he use of the emblem in videogames is both illegal and detrimental to the special protective value of the emblem." The Red Cross has yet to file suit against a developer, and would prefer not to:

We would be willing to work with a videogame manufacturer to produce a game which shows the emblem in its correct use, as a symbol of protection during armed conflict, and where the player is rewarded for using the emblem correctly. Such a game could reward the player for respecting the rules of war and thereby, help the Red Cross Movement with its work to promote such respect.
As a (somewhat facetious) side note, I assume that, by "illegal," the Red Cross does not mean that a videogame developer commits a war crime by using its emblem in a videogame. Article 8(2)(b)(vii)-4 of the ICC Statute, the war crime of improper use of distinctive emblems of the Geneva Conventions, prohibits using the red cross "for combatant purposes in a manner prohibited under the international law of armed conflict." An essential element of the crime, however, is that "[t]he conduct took place in the context of and was associated with an international armed conflict." Presumably, virtual conflicts don't qualify -- no matter how good the graphics.

UPDATE: Dave Glazier, a regular contributor to the must-read Intel Dump blog and a research fellow at Virginia's Center for National Security Law, provides a much more detailed explanation of the potential criminal liability a videogame developer faces if it misuses the Red Cross emblem. I've edited his comment solely for readability:
[T]he video game use of the Red Cross is likely illegal in most countries, but it is national laws that are being violated, not the law of war per se. Article 27 of the 1906 Geneva Convention required state parties to enact legislation criminalizing use of the Red Cross emblem by anyone other than the ICRC and national Red Cross societies as a separate matter from the criminalization of the perfidious use of the emblem in time of war. In the United States this requirement was met through the enactment of what is now 18 U.S.C. 706, making such use punishable by six months in jail and a fine of up to $500. (Pre-existing commercial use of the red cross symbol was grandfathered, however, which is why Johnson & Johnson can continue to use the red cross on products it has manufactured for a century, but can not on new developments like liquid bandages). While nothing like the penalties a warrior might face for abuse of the red cross emblem on the battlefield, it still should get the attention of game developers who presumably are accustomed to at worst facing the prospect of civil suits over potential intellectual property infringement.
For those interested in exploring the topic further, an article published by the Red Cross itself is available here.

Pushing Back Against the ICC: U.S. Will Slash Military Aid to Bolivia

This IHT report suggests the U.S. is about to slash military aid to Bolivia by 96% in response to Bolivia's failure to ratify agreements shielding U.S. soldiers from the jurisdiction of the ICC. The State Department suggests this is because of a U.S. law requiring such aid to be cut, but it is also truee that federal law allows the State Department to waive aid cuts if it chooses. As Bolivia has just elected a hostile new president, there seems little motivation for giving such a waiver.

Prosecuting Pirates: What Ever Happened to Universal Jurisdiction?

According to this CNN account, the Somali pirates captured last month by the U.S. Navy are challenging the jurisdiction of the Kenyan court that is planning to try them. The U.S. apparently turned over the suspects to Kenya. The pirates were captured in international waters, but as I pointed out here, any nation should still have jurisdiction to try such pirates under the UN Convention for the Law of the Sea. Indeed, nations used to claim universal jurisdiction over pirates, a concept that has been expanded to include violators of fundamental human rights. That idea has not yet been raised in Kenya, apparently, which is odd because if there is no universal jurisdiction for piracy, there is no universal jurisdiction for anything.

UPDATE: Reader Laurence Rothenberg emails me to point out that some scholars, like Prof. Rubin of Tufts, have questioned whether universal jurisdiction for piracy ever existed. Prof. Rubin has in fact published an entire book on this subject, The Law of Piracy. This is a good point, and calls into question the origins of the doctrine of universal jurisdiction.

The Transitional Justice Forum

There’s a relatively new blog out there that I think Opinio Juris readers will find interesting and full of insight: The Transitional Justice Forum. The bloggers at TJF cover all sorts of topics on democratic transitions, post-conflict management, international criminal law, and other related areas. TJF’s bloggers are an impressive group including, among others, Mark Drumbl, Christopher Le Mon, William Schabas, and Ruti Teitel. Recent posts have spanned topics including the problems of the Iraqi special tribunal, conflict resolution in Uganda, why East Timor doesn’t want a tribunal, and Morocco’s truth commission. They also have links to full-text versions of transitional justice articles.

For anyone interested staying informed on democratization, post-conflict reconstruction, or transitional justice, TJF is a site you will want to check out regularly.

(Belated) Welcome to the blogosphere!

NAFTA Award in Thunderbird v. Mexico

Last week a NAFTA arbitration panel rendered an award in the case of International Thunderbird Gaming Corp. v. Mexico. The essential issue is whether an investment in certain gaming operations based on assurances given by Mexican authorities could give rise to a NAFTA claim when the government subsequently refused to permit such operations.

The key facts are as follows: A written request to Mexican officials for an opinion on the legality of the operations was submitted on August 3, 2000. (See para. 50). On August 15, 2000, these officials issued a formal response concluding that the proposed machines were skill machines and not gaming machines (i.e. slot machines). (See para. 55). Based on these assurances, Thunderbird made substantial investments. On October 10, 2001, the government declared the machines illegal "gambling equipment" and ordered closure of the facilities. So in short, the issue was if you receive an opinion letter from the government, and rely on it to your detriment, is there a remedy if the government subsequently prohibits activities pursuant to that investment?

There is far more in the case than space available to discuss here. I will just mention a couple of highlights.

First, a jurisdictional question arose over whether Thunderbird, a Canadian company with principal offices in California, could bring the claim based on its minority shareholding of various Mexican entities that operated the gaming facilities. If Thunderbird as a foreign investor did not control these Mexican entities, then the NAFTA panel lacked the authority to resolve these claims against Mexico. The panel ruled that minority shareholders that held de facto control over Mexican entities was sufficient. "The question arises whether 'control' must be established in the legal sense, or whether de facto control can suffice.... The term 'control' is not defined in the NAFTA. Interpreted in accordance with its ordinary meaning, control can be exercised in various manners. Therefore, a showing of effective or 'de facto' control is ... sufficient for the purposes of Article 1117 of NAFTA." (paras. 105-06).

Second, on the doctrine of "legitimate expectations," the panel summarized the requirements under international law and concluded that Thunderbird could not successfully invoke this doctrine. "Having considered recent investment case law and the good faith principle of international customary law, the concept of 'legitimate expectations' relates, within the context of the NAFTA framework, to a situation where a Contracting Party's conduct creates reasonable and justifiable expectations on the part of an investor (or investment) to act in reliance on said conduct, such that a failure by the NAFTA Party of honour those expectations could cause the investor (or investment) to suffer damages. The threshold for legitimate expectations may vary depending on the nature of the violation alleged under the NAFTA and the circumstances of the case. Whatever standard is applied in the present case however--be it the broadest or the narrowest--the Tribunal does not find that the Oficio generated a legitimate expectation upon which EDM could reasonably rely in operating its machines in Mexico" (paras. 147-48).

The Separate Opinion of Thomas Wälde is significant for its much fuller discussion of the legitimate expectations doctrine under international law. In paragraphs 24-57 there is wonderful analysis of legitimate expectations under national laws and international law, as well as analysis of legitimate expectations as applied under the fair and equitable treatment doctrine of Article 1105. If you are interested in the issue, I am not aware of another arbitral opinion that provides greater depth of analysis.

More on Darfur, Kristof and O'Reilly

I received a thoughtful email from a reader yesterday on my post about Darfur, Kristof and O'Reilly. He writes: "Doesn't it beg the question as to 'the extent [to which] in attacking O'Reilly Kristof is attacking conservatives by proxy'? Mainstream media are indeed disturbing, not least because they set up these facile proxies, which figures like O'Reilly and Kristof are happy to exploit. Certainly O'Reilly, in setting himself up for attack on behalf of his constituency, is likely to be as responsible as Kristof for alienating the conservatives of whom you write."
Good point. I totally agree that it did beg the question. Kristof may not have had the intent to paint with such a broad brush. But whatever his intent, what will his readers think? They will associate O'Reilly with conservatives and draw a connection that O'Reilly and his viewers don't care about this issue.

To his credit, Kristof yesterday clarified on his blog that he is using the O'Reilly funding campaign (now at over $92,000) as a "gimmick" to try to shame "him-and other TV networks--into covering genocide." But if that is his goal, why attack only O'Reilly? Why not have a fund for network television hosts to visit Darfur? Why not just convince Oprah to go to Darfur because she actually might go and make a monumental impact covering the genocide? If Kristof's real goal is getting network coverage, isn't there a better avenue than attacking O'Reilly? It reads like a deliberate attack on O'Reilly, and Fox News, and their viewers.
As for O'Reilly, I frankly don't take O'Reilly very seriously, but I do take Kristof seriously. But I probably should have said more about O'Reilly in retrospect. I did think about saying more yesterday, but I thought it would take me into a domestic discussion about law and order and how obvious it is that a guy like Kristof would care about teen rape in Vermont and anywhere else it happened. Kristof is simply using the power of the pen to focus on the most pressing concerns facing our world. It is totally legitimate for Kristof to focus on Darfur and leave to others to address other significant concerns.
And yes O'Reilly does leave the impression that conservatives don't care about this issue. And yes he is encouraging his viewers to discount the importance of this issue. But O'Reilly is not thinking strategically about Darfur whereas Kristof is.
Incidentally, since I published my post we now discover that O'Reilly suddenly has become an internationalist. As Kristof notes, O'Reilly's response is that "[Kristof] continues to lay the Darfur situation at America's doorstep when the United Nations is where his anger should be directed. Of course that great African Kofi Annan could make Darfur a huge issue at the UN, but has chosen not to do so." So O'Reilly is arguing for the United Nations to take the lead on Darfur and urging a limited role for the United States on this issue. I guess even O'Reilly is an à la carte multilateralist.
UPDATE: As of February 10, the O'Reilly fund was at over $215,000. Kristof reports that he is planning an itinerary that will take O'Reilly out of commission for a year. And the tone of the donors underscores my concerns. One donor insisted that he would give $20,000 if O'Reilly only wore light body armor. Another would donate on the condition that O'Reilly in an economy class seat near a toilet. Yeah, nice gimmick to shame the networks into covering Darfur. That clearly is Kristof's agenda here. It has nothing to do with animus toward O'Reilly or conservatives.
Related Links:

The Strange Case of Luis Posada Carriles

President Bush has often insisted that “if you harbor a terrorist, you’re equally as guilty as the terrorists.” In that regard, it’s instructive to consider the ongoing extradition battle between Venezuela and the United States over Luis Posada Carriles, who is currently being held in federal detention in Texas. By any definition, Posada richly deserves the description “terrorist,” yet the Bush administration continues to protect him. Here are a few highlights of his long and varied career, most culled from declassified CIA documents:

  • In October, 1976, Posada masterminded the bombing of an Air Cubana flight from Barbados to Cuba, killing all 73 people aboard. A few days before the bombing, a reliable CIA source heard Posada say, “[w]e are going to hit a Cuban airplane.”
  • In 1998, Posada proudly told a New York Times reporter that he was responsible for a string of hotel bombings in Havana that killed an Italian businessman and wounded 11. “It is sad someone is dead,” he admitted. “But we can’t stop.”
  • In 2000, Posada was convicted in Panama of conspiring to assassinate Fidel Castro (he had 34 pounds of C-4 in his possession when he was arrested). He was pardoned in 2004 by the outgoing Panamanian president, Mireya Moscoso.

The extradition battle between the U.S. and Venezuela began in April, 2004, when Posada requested political asylum in the U.S. The Venezuelan government immediately sought Posada’s extradition, pursuant to its 1922 treaty with the U.S.; it intends to retry him for the bombing of the Air Cubana plane. Posada had been acquitted of that charge by a Venezuelan military court in the mid-1980s, but a higher military court overturned the acquittal, ruling that Posada should have been tried in civilian court. Posada then escaped from a Venezuelan jail before the retrial.

At first, the State Department questioned whether Posada was actually in the country – adding that the charges against him “may be a completely manufactured issue.” The Department of Homeland Security only took Posada into custody in Miami after he held a series of public press conferences and a number of declassified CIA documents were released about his violent past (and his cozy relationship with the CIA), creating headlines around the world.

On September 28, 2005, an immigration judge ruled that Posada could not be extradited to either Venezuela or Cuba (which also sought his extradition, but does not have an extradition treaty with the U.S.) because he “faced the threat of torture in Venezuela.” It was clear from the beginning that DHS’s heart was not in the case; even after the immigration judge indicated that Posada had presented a strong argument that he would be tortured, DHS did not call a single witness in rebuttal. Nor did it appeal the judge’s ruling to the Bureau of Immigration Appeals – thus foreclosing the possibility of his extradition to Venezuela for good. The only question now is whether Posada will be released from custody or extradited to a country other than Cuba or Venezuela. Outright freedom is a distinct possibility: no country has yet said that it would accept him, and Immigration and Customs Enforcement only has until March to determine his fate. (An internal DHS memo states that ICE’s policy is to “favor release of aliens who have been granted protection relief by an immigration judge.”)

It’s not surprising, of course, that the U.S. government is protecting Posada. According to CIA documents, he was on the CIA’s payroll from 1965 to 1976, usually training paramilitary forces in the dark arts of sabotage and explosives. And he was deeply involved in the Iran-Contra scandal after he escaped from prison in 1985, shipping arms and supplies to the Contras under the code name “Ramon Medina.”

Still, Posada’s case is thick with irony – not least the glaring disparity between Bush’s tough talk about harboring terrorists and his administration’s kid-gloves treatment of Posada. Even more ironic, though, is the legal authority the immigration judge cited in defense of his refusal to extradite Posada to Venezuela: Article 3 of the UN Convention Against Torture, which prohibits extradition “to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” This is, of course, the same Convention that the Bush administration has systematically violated with its well-documented history of “extraordinary renditions.” As Human Rights Watch notes:

The CIA has regularly transferred detainees to countries in the Middle East, including Egypt and Syria, known to practice torture routinely. There are reportedly 100 to 150 cases of such “extraordinary renditions.” In one case, Maher Arar, a Syrian-born Canadian in transit in New York, was detained by U.S. authorities and sent to Syria. He was released without charge from Syrian custody ten months later and has described repeated torture, often with cables and electrical cords. In another case, a U.S. government-leased airplane transported two Egyptian suspects who were blindfolded, hooded, drugged, and diapered by hooded operatives, from Sweden to Egypt. There the two men were held incommunicado for five weeks and have given detailed accounts of the torture they suffered (e.g. electric shocks), including in Cairo’s notorious Tora prison. In a third case, Mamdouh Habib, an Egyptian-born Australian in American custody, was transported from Pakistan to Afghanistan to Egypt to Guantánamo Bay. Now back home in Australia, Habib alleges that he was tortured during his six months in Egypt with beatings and electric shocks, and hung from the walls by hooks.
UPDATE: A tip-of-the-hat is due to Michael Froomkin, who mentioned the case on his Discourse.net blog last month.

Testing Complementarity: Sudan's Local War Crimes Courts

This on-the-ground report from Sudan provides a brief but interesting glimpse at Sudan's effort to avoid transferring defendants to the International Criminal Court. Sudan has created special tribunals to try individuals of suspected war crimes. If its domestic processes are deemed sufficient by the ICC, then the ICC cannot exercise jurisdiction over alleged war crimes in Sudan. This has always been one of the fundamental principles of the ICC, but the very fuzziness of the concept has also been the source of criticism from ICC opponents. Here is the first chance for the ICC to give the concept some more substance.

International Law of Spelling Bees

Here is a weird story. An eighth grader in Nevada entered a spelling bee but was eliminated despite spelling the word "discernible" correctly. The mother was livid and threatened legal action. "I'm a momma bear with her bear claws out. Spellers and academic children don't get all the accolades that the sports kids do. This is one of their few chances to shine, to get attention and look what happens.... I'll take this to the U.S. Supreme Court. I will take this to the International Court of Law to fight for my baby's rights."
I double checked the Convention on the Rights of the Child but could not find the provision addressing spelling bees. The closest I could find was Article 29: "States Parties agree that the education of the child shall be directed to: (a) The development of the child's personality, talents and mental and physical abilities to their fullest potential." That should do it. Just argue her international law right to develop to her fullest potential was violated. I'm sure that will do the trick before the International Court of Law.

Wednesday, February 08, 2006

U.S. "Enemy Combatant" May Be Transferred to Iraqis

The U.S. military may transfer custody of U.S. citizen "enemy combatant" to the Iraqi government, according to this AP article. The article suggests that it would be the first time that a U.S. citizen "enemy combatant" is transferred to Iraq, although it would not be the first time that a U.S. citizen enemy combatant has been transferred to a foreign government. Yaser Hamdi, for instance, was apparently transferred to the Saudi Arabian government last year.

This case reminds me of the usefulness of the concept of an "enemy combatant" - a non-uniformed soldier using tactics in violation of the customary laws of war against U.S. military personnel. At least in this context, this doesn't seem like some crazy idea cooked up by the U.S government. One can imagine its practical usage - especially on the battlefield. The individual in question here is alleged to be a Al Qaeda operative in Iraq.

But U.S. courts' skepticism of the enemy combatant concept is probably why the U.S. is transferring him to Iraq. Leaving him in U.S. custody means that he could bring a habeas action, which, even if limited under recent legislation, could still complicate U.S. military policy. It will be interesting to see if the federal courts are willing to reach out and block this transfer and future transfers of U.S. citizen enemy combatants.

The Iraqi Special Tribunal and the Right to a Fair Trial

In my initial post yesterday, I discussed some of the ways international tribunals limit the right of defendants to an effective defense. That difficulty, not surprisingly, is not unique to the tribunals; national criminal prosecutions that apply international law – substantively and procedurally – are usually no better, and are often far worse.

The current trial of Saddam Hussein, which is based on an unstable blend of international criminal law and Iraqi criminal procedure, is a case in point. Article 19 of the Iraqi Special Tribunal Statute provides defendants with fair-trial rights that are essentially similar to the ICCPR’s, including the right “[t]o have adequate time and facilities for the preparation of his defense and to communicate freely with counsel of his own choosing and to meet with him privately.” As Human Rights Watch has thoroughly documented, however, the IST has repeatedly undermined the rights of Saddam, his co-defendants, and the other “High Value Detainees” to a fair trial and an effective defense.

First, between June, 2004, and December, 2004, when the IST became operational, U.S. investigators used Iraqi government documents to question at least thirty detainees. Those interrogations took place before any of the detainees were represented by counsel, and it is highly unlikely that the detainees were informed of their right to counsel and right to remain silent, both protected under the IST Statute. The IST has assured HRW that it will not use any uncounseled statements made by the detainees as evidence against them at trial, but nothing in the IST Statute, the IST Rules of Procedure and Evidence, or the Iraqi Code of Criminal Procedure requires such exclusion. Moreover, the IST refused to guarantee HRW that it will exclude inculpatory evidence obtained through investigations initiated as a result of uncounseled statements (no “fruit of the poisonous tree” doctrine).

Second, the IST has consistently interfered with the ability of defense attorneys to meet with their clients. In some cases, the IST has delayed or refused to accept attorney’s applications to register as counsel. Requests to meet with a particular defendant have been ignored or delayed, and when access has been granted it has often been timed to coincide with the defendant’s questioning by an investigative judge – when counsel was required by Iraqi law to be present. On more than one occasion, a U.S official with knowledge of Arabic has been present in the interview room when a defense attorney was conferring with his client. (The right of a defendant to meet in private with his attorney was only added to the IST Statute in October, 2005.) And just yesterday the IST confirmed that it was prohibiting the attorneys for Saddam and his co-defendants from meeting with their clients, ostensibly as punishment for leaving the Tribunal last week after clashing with the judge.

Third, defense attorneys have not been present when the investigative judge has interviewed witnesses and collected relevant evidence, even though Article 57 of the Iraqi Code of Criminal Procedure permits the presence of counsel unless the investigative judge enters into the record an explanation of why counsel’s presence was not permitted. The absence of defense attorneys during the investigative stage is particularly troubling, because the dossier prepared by the investigative judge for the trial court constitutes substantive evidence of a defendant’s guilt. In this respect, the IST lags far behind international criminal law generally: the ICTY specifically held in Kordic and Cerkez that such wholesale admission of a dossier is inconsistent with the right to a fair trial; instead, the trial court must examine each category of evidence in the dossier, sensitive to the need to guarantee the evidence’s authenticity and to the dangers of admitting evidence not tested by cross-examination.

Fourth, defense attorneys have consistently been prevented from adequately examining the evidence against their clients, despite the fact that Rule 40 of the IST's Rules of Procedure and Evidence specifically provides that the defense is permitted "to inspect any books, documents, photographs and acquire these things, which are material to the preparation of the Defence, and also inspect any books, categories of, or specific documents, photographs and tangible objects in the accused custody or control which are intended for use by the Criminal Court as evidence at the trial." Defense attorneys were routinely denied access to documents and evidence during the investigative phase, and transcripts of judicial questioning were never made available, despite numerous requests. Moreover, attorneys have consistently been denied sufficient time to review the investigative judge's dossier -- and have often been forced to conduct even that limited review in public areas of the court.

Fifth, Rule 40 of the Iraqi Code of Criminal Procedure only requires the prosecution to disclose witness statements and all other evidence 45 days before trial. 45 days is a patently insufficient amount of time to prepare a defense to charges of crimes against humanity and genocide, especially given that Iraqi law permits imposition of the death penalty for both.

Sixth, and finally, all of these problems are compounded by the lack of equality of arms between the prosecution and defense. Although Saddam Hussein and other high-profile defendants have access to skilled defense attorneys (when they're allowed to meet with them), many future defendants will have to employ or be assigned Iraqi attorneys with little or no experience in international criminal law. Moreover, those attorneys will face a prosecution team with far superior resources and training: the U.S. has allocated $128 million to investigating and prosecuting former Iraqi officials, and has established a fifty-person office, the Regime Crimes Liaison Office, that has played an active role in interviewing detainees, reviewing documents, and training IST staff.

In the wake of the murders of two defense attorneys involved in Saddam’s trial, numerous scholars and human-rights groups have called on the Iraqi government to move the IST out of Iraq. There is no question that such a move would improve the security situation, but it would not address the central problem with the IST: as presently constituted, defendants are unlikely to get a fair trial no matter where the trials are held.

ICC Elects New Judges

On January 26th, the Assembly of State Parties to the International Criminal Court elected six judges to serve nine-year terms. This is the second such election; 18 judges were elected in 2003, six for three-year terms, six for six-year terms, and six for nine-year terms. With the exception of Ekaterina Trendafilova of Bulgaria, the five other judges were all elected in 2003 to three-year terms.

Pursuant to Article 36 of the Rome Statute, the 100 Representatives were effectively required to vote for at least one candidate from an African State, at least one candidate from an Asian State, at least two candidates from Eastern European States, and at least one female candidate. The ballot also contained two lists of candidates. Candidates on List A had established expertise in criminal law, while candidates on List B had expertise in relevant areas of international law.

I thought Opinio Juris readers might be interested in knowing something about the six newly-elected judges. They are:

Elected from List A (Criminal Law)

Ekaterina Trendafilova (Bulgaria)

Received 82 votes. Prior to her recent election, Judge Trendafilova was a full professor of law at Sofia Unversity, from which she holds a Ph.D. She is also a professor of law at Veliko Turnovo University. She served as the Bulgarian representative to the UN Commission for Crime Prevention and Criminal Justice and has worked extensively with the European Commission CARDS Regional Project. She is also a trained Barrister.

Sang-hyun Song (Korea)

Received 70 votes. Prior to his election in 2003, Judge Song was a professor at Seoul National University. As a member of the advisory committee to the Korean Supreme Court and Ministry of Justice, he participated in the reform of the Korean Penal Code and the Code and the Court Rules of Criminal Procedure. He has served as Vice-President of UNICEF/KOREA and has been a visiting law professor at Columbia NYU, and Harvard, among others. He also holds a J.S.D from Cornell, an LL.M from Tulane, and a LL.B from Seoul National University.

Elected from List B (International Law)

Hans-Peter Kaul (Germany)

Received 67 votes. Prior to his election in 2003, Judge Kaul was the Ambassador and Commissioner of the Federal Foreign Office for the ICC. He also served as the head of the German delegation to the ICC Preparatory Committee. As the director of the Public International Law Division of Germany’s Federal Foreign Office, he was responsible for several cases before the International Court of Justice. He holds a law degree from the University of Heidelberg.

Erkki Kourula (Finland)

Received 73 votes. Prior to his election in 2003, Judge Kourula was the Director General for Legal Affairs at the Finnish Ministry for Foreign Affairs. He has also served as the Finnish Ambassador to the Council of Europe and as Minister Counsellor and Legal Advisor at the Permanent Mission of Finland to the United Nations. He was the head of the Finnish delegation to the Rome Conference. He holds a Ph.D in International Law from Oxford and was a Professor of International Law at the University of Lapland.

Akua Kuenyiha (Ghana)

Received 72 votes. Prior to her election in 2003, Judge Kuenyiha was Dean of the University of Ghana Faculty of Law, where she taught criminal law, gender and the law, international human rights law, and public international law. A Barrister and Solicitor of the Supreme Court of Ghana, she holds a BCL from Oxoford and an LL.B from the University of Ghana.

Anita Usacka (Latvia)

Received 77 votes. Prior to her election in 2003, Judge Usacka was a Judge of the Latvian Constitutional Court. She was also a full professor in the Department of Constitutional Law of Latvia University, where she had been academically affiliated since 1975. She has expertise in international humanitarian and public law, with a particular focus on the rights of women and children. She holds a Ph.D in law from Moscow State University and a law degree from the Latvian University.

Darfur, Nicholas Kristof, and Bill O'Reilly

There is an angry debate going on right now between liberal columnist Nicholas Kristof of the New York Times and conservative television host Bill O'Reilly. Kristof has devoted an entire column yesterday to attacking Bill O'Reilly and launching a fund to pay for Bill O'Reilly to travel to Darfur. "[M]aybe Mr. O'Reilly's concern is cost, so I thought my readers might want to give him a hand. You can help sponsor a trip by Mr. O'Reilly to Darfur, where he can use his television savvy to thunder against something actually meriting his blustery rage." On Kristof's blog (yes, NY Times columnists now have blogs) he reports that he has raised over $75,000 to fund an O'Reilly trip to Darfur.

Bill O'Reilly has responded with a nasty post about how Kristof cares about troubles abroad but not problems at home. In this article entitled Darfur vs. Vermont he criticizes Kristof for ignoring the light sentence imposed on a teenage rapist in Vermont. "The 60-day sentence for a child rapist came to light. Because Kristof had referenced teenage rape in his criticism of me, I fully expected to see him and The New York Times all over the Vermont story. After all, this human rights violation happened just a few hundred miles north of New York City.But The New York Times did not cover the Vermont story--did not even mention it. And there was not a word from my pal Nicholas Kristof, the human rights guy." Of course, O'Reilly is simply ridiculous to suggest that we should care about teenage rape in Vermont, or genocide in Darfur, but not both.

The Kristof-O'Reilly exchange highlights one of the things that is most disturbing to me about mainstream media. There is lots of heat but very little light. Lots of shouting but very little dialogue. The hidden message behind the debate is that conservatives don't care about human rights and that liberals don't care about law and order. It makes for good ratings, but of course neither are true.

One of the greatest living human rights activists in America right now is Gary Haugen at International Justice Mission. IJM is a Christian human rights organization that garners tremendous support from evangelicals and other conservatives. They are doing amazing work to combat sex trafficking, bonded labor, and other human rights abuses in numerous countries. I know because I have been to India with IJM and seen their work on bonded labor first hand. Their summer overseas internship program draws law students from the best law schools in the country. How did it all begin? As you can read here, Haugen started IJM after covering the genocide in Rwanda.

Or take Freedom House's Center for Religious Freedom. Spend just one hour with Paul Marshall, a Senior Fellow at the Center and author of the best-selling book Their Blood Cries Out, and you will walk away terribly impressed with his religious conviction and breadth of knowledge regarding the global threat to religious liberty.

Having watched this conservative embrace of human rights for decades, I could give far more examples if space and time allowed. We could talk about John Paul II and the fall of communism, or Rick Warren's work on poverty in Africa, or Fuller Theological Seminary's government grant to promote Muslim-Christian dialogue, or Advocates International's global effort to do justice, love mercy, and walk humbly with God. I could also give very personal examples of conservative law students I mentor who desperately want to work in the human rights field.

Suffice it to say that Kristof is doing great work highlighting the genocide in Darfur. I deeply admire and respect those efforts. But to the extent that in attacking O'Reilly Kristof is attacking conservatives by proxy, he is a doing a great disservice to the current movement of human rights. Please don't alienate conservatives and pretend they don't care about human rights. Please don't encourage those on the left to believe that those on the right don't care about genocide. Let's not make Darfur a political wedge issue.

Brain Drain of Devout Muslim Women

I have previously reported on the appalling decision of the European Court of Human Rights in the case of Şahin v. Turkey that upheld the right of Turkey to prevent devout Muslim women from wearing headscarfs (hijabs) to graduate school.

Last week the Chronicle of Higher Education had a very interesting article (subscription required) that highlights the brain drain of devout Muslims who are fleeing Turkey to study abroad. The article discusses Ms. Sahin's situation in particular, but also addresses the broader subject of the adverse impact that ill-advised policies regarding religious practices are having on Turkey.
"[C]ritics of the policy--and there are many on campuses here--say that a law supposedly designed to protect the country from religious intolerance and move Turkey into the modern era has had the opposite effect. Human-rights experts estimate that hundreds of Turkish women unwilling to adapt to the law in their home country have left in order to complete their education elsewhere--in Europe, in the United States, or in other countries that allow them to wear Islamic dress. Others have abandoned higher education altogether, hampering efforts to raise the education level of Turkish women..."
Forcing devout Muslim women to choose between faith and learning is a terrible policy that violates basic human rights. But it also happens to be bad public policy that will have serious adverse repercussions for the future labor market in Turkey. If Turkey wants to move forward economically, it should not espouse backward religious policies. If Turkey doesn't want the best and brightest devout women in its country, Europe or the United States will educate them.

So when will Turkey stop the offensive practice of outlawing headscarfs of the devout? Many speculate that it will not be until after Turkey secures membership in the European Union. The article suggests that Turkey has been so intent on proving its western, secular credentials to the European Union that it is trying to "out-secularize" secular Europe. So the irony is that for now, devout upwardly-mobile women like Sahin are welcome in western Europe, but not their native Turkey.
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Tuesday, February 07, 2006

WTO Watch: EU Restrictions on GMO Crops Violates Trade Rules

According to the Washington Post, a WTO dispute settlement panel has found EU rules restricting the sale of genetically modified foods violates WTO rules (the actual report has not yet been released publicly but for more background, see here). The decision appears to be a victory for the U.S., Canada, Australia, and other agricultural nations that rely on GMO crops. Given the seriousness of resistance to GMO goods in Europe, this decision will no doubt be appealed and dragged on for a few more years.

First 9/11 Convict Released (For Now) in Germany

In an interesting counterpoint to Roger’s post on the conviction of Abu Hamza, Reuters reports that Germany’s Federal Constitutional Court has ordered the release of Mounir el Motassadeq, the first person to be convicted in connection with the attacks on 9/11, pending resolution of defense and prosecution appeals. The court agreed with el Motassadeq’s lawyers that the Hamburg judges had been wrong to order him to return to custody with the appeals still pending, because doing so “infringed on his basic right to liberty.”

El Motassadeq was convicted in 2003 of more than 3,000 counts of accessory to murder for helping pay tuition and other bills for three 9/11 hijackers, including Mohamed Atta, while they plotted the attacks. He was also convicted of membership in a terrorist organization. After an appellate court threw out the convictions, a Hamburg state court convicted el Motassadeq only on the membership charge; it found him not guilty of the 3,000 accessory counts. The court sentenced el Motassadeq to seven years in prison.

El Motassadeq’s release – and the court’s ruling does not affect the validity of his conviction – illustrates an important difference between German and U.S. criminal law regarding “mere” membership in a terrorist organization. Such membership is criminal under Section 129a of the German Penal Code. Under U.S. law, by contrast, the defendant must have, at a minimum, conspired with or aided and abetted a terrorist organization, harbored a terrorist, or provided a terrorist organization with some sort of material support. Membership alone is not enough.

(It's worth noting, by the way, that it's not clear the U.S. couldn't criminalize mere membership in a terrorist organization like al-Qaida. The Supreme Court case usually cited to that effect, Scales v. United States, only dealt with a group -- the communist party -- that had both legal and illegal aims. For such a hybrid group, the Court held in Scales, proof of membership is not enough to sustain a conviction; the government must also prove that the defendant specifically intended to further the group's illegal aims. Notably, the Court did not hold that the government cannot criminalize membership in a group whose ends are solely illegal, as al-Qaida's almost certainly are -- though the same could not be said of many of the groups the U.S. government has designated as "foreign terrorist organizations." For such groups, proof of membership alone might suffice to prove that the defendant specifically intended to further the group's illegal aims.)

(In)equality of Arms at the International Tribunals

My thanks to everyone at Opinio Juris for inviting me to guest blog for the next couple of weeks – especially Julian, who proves his graciousness by letting me blog even though I’ve often used the comments section to criticize his posts.

As Peggy said, I currently teach international criminal law and evidence at the University of Georgia; I’ve been on the faculty since 2004. In June I will be leaving Georgia to join the Faculty of Law at the University of Auckland, where I’ll teach international criminal law and domestic (New Zealand) criminal law. In the spirit of full disclosure, I am nowhere near as expert in public international law as my hosts; I’m a former criminal-defense attorney, and my writing to date has largely focused on various theoretical issues in substantive criminal law.

Because I am a relative newcomer to international law, I thought I would focus this initial post on a topic I do know something about: how difficult the international tribunals make it for persons charged with serious international crimes to receive an effective defense. The right to such a defense is firmly ensconced in international law; to take only one example, Article 14(d) of the ICCPR guarantees criminal defendants “a fair and public hearing by a competent, independent and impartial tribunal established by law.” One of the key element of that guarantee, according to the European Court of Human Rights (and many other courts), is “equality of arms” between the prosecution and the defense – the idea that the defense should never be placed at a “substantial disadvantage” vis-à-vis the prosecution in terms of its ability to present its case.

In practice, however, the right to equality of arms between the prosecution and defense is often honored only in the breach. First, the international tribunals simply allocate far more resources – financial, material, human – to the prosecution than to the defense. Consider, for example, the Special Court for Sierra Leone, a hybrid tribunal established by agreement between Sierra Leone and the UN. Alone among the tribunals, the SCSL has a permanent organ within the Court, the Office of the Principal Defender, dedicated to ensuring that defendants receive a fair trial. Moreover, the SCSL has embraced the idea that “equality of arms” means equality of resources, whereas the ICTY and ICTR have said, following the latter’s decision in Prosecutor v. Kayishema, that it means only equality of rights.

Unfortunately, despite these lofty ideals, there is no equality of arms between the prosecution and the defense at the SCSL. Here's James Cockayne:

The Prosecution has been overseeing investigations for two years; most Defense teams are only began investigations after the commencement of trial. The Prosecution investigates with court vehicles, satellite phones, dedicated drivers and security, translators, and professional international investigators; Defense team staff are not formally permitted to use Court transport (transport costs are supposed to be covered by each team's budget), have no dedicated drivers or security or access to logistical equipment, and must find their own translators and investigation staff, with only national-level salaries for those staff covered by their budgets. Until recently, investigators (who are employed – and therefore approved – by the Defense Office) had to have a background in policing; many of the defendants are charged with attacks on police as a crime against humanity. That policy was recently changed, but only after a significant delay resulting in some defendants starting trial without investigators. The Prosecution, in contrast, has relied heavily on skilled, practiced international investigators, many with ICTY and ICTR experience. The Prosecution budget takes up a large percentage of the overall U.S. $83 million budget; the Defense teams receive around U.S. $4 million altogether. Prosecution staff are permanently stationed in Freetown; many Defense counsel come and go (with the associated travel costs significantly eroding Defense budgets). The Prosecutor is an Assistant Secretary General; the head of the Defense Office is many rungs lower in the U.N. employment hierarchy. The Prosecution has until recently received approximately five times the office space assigned to the Defense, and also greater access to office resources.

Nor is the SCSL exceptional. Although the Special Panel for Serious Crimes Unit in East Timor is dramatically underfunded as a whole, the lack of funds is particularly acute for the defense. Because of budgetary constraints, for example, the Public Defender’s Office did not call a single witness in any of the SCU’s first fourteen trials. Similarly, although the ICTY has come a long way since its inception – in its first case, Tadic, the defense attorney was paid $26/hour – the funding gap between the prosecution and defense remains unacceptable: for the biennial period 2004 and 2005, the defense budget was $29.5 million, while the prosecution’s budget was $99.9 million.

The inequality of arms at the international tribunals, however, is not limited to funding. The quality of defense counsel is equally problematic, especially relative to the quality of the prosecutors. Although the ICTY now requires defense counsel to have at least seven years of experience in criminal law, prior to 2004 it only required counsel to have “reasonable experience in criminal and/or international law” – a requirement that the tribunal interpreted generously, to say the least. In practice, many attorneys who appeared before the ICTY had little criminal-defense experience, and even less knowledge of public international law. Moreover, most of the defense attorneys came from the non-adversarial systems of criminal law in the Balkan states, and were thus often unprepared – no matter how dedicated – to navigate the largely adversarial system embraced by the ICTY. As Patricia Wald, the former Chief Judge of the DC Circuit and a judge at the ICTY pointed out, the results weren’t pretty:

Understandably, the bulk of defense counsel are Balkan-trained lawyers and are typically not experienced at cross-examination. Some are quick learners, but others are painfully awkward and unfocused on just what they are trying to accomplish. They sometimes argue with or even criticize the witnesses. They also go off on tangents that are not always relevant to the case. The Tribunal is now operating training courses for appointed lawyers, but, candidly, it is not easy to acculturate lawyers in a wholly new legal system in a few days of lectures or even simulated exercises. As an American judge, I frankly find many ICTY defense cross-examinations painfully unhelpful to my own judgment.

It is too soon to tell whether the ICC will do a better job of guaranteeing equality of arms than its predecessors. On paper, there is reason to be optimistic: the Court has adopted comprehensive regulations governing the qualifications required of defense counsel and the provision of resources to the defense. In terms of qualifications, the ICC requires all defense counsel to have at least 10 years experience in international or criminal law and procedure, including relevant experience – whether as judge, prosecutor, or defense attorney – in criminal proceedings. Moreover, the Court has created an Office of Public Counsel for the defense that is responsible for protecting the rights of the defendant during the initial stages of the investigation (before counsel has been chosen or appointed) and providing the defense with research and advice during trial. Most importantly, the Office of Public Counsel is wholly independent of the ICC’s Registry – a significant improvement over the structure of the ad hoc tribunals, where the Registries served the prosecution as well as the defense and were, as a result, often viewed with considerable suspicion by defendants.

Regarding resources, the ICC has also adopted a regulation that guarantees that the Court will cover “all costs reasonably necessary” for an “effective and efficient” defense. Those costs include payments to counsel and staff, expenses involved in gathering evidence, overhead, translation and interpretation costs, and travel costs. Best of all, the ICC Regulations specifically require parity between the salaries of attorneys in the Office of the Prosecutor and the fees paid to members of the defense team.

These regulations are steps in the right direction. One can only hope that, despite the magnitude of the crimes committed by defendants brought before the ICC, the political will exists to make sure they are honored in practice, not simply in the breach.

Hamza Found Guilty of Inciting Murder

A couple of weeks ago I reported about the Abu Hamza trial for inciting murder in London. Earlier today Hamza was convicted of 11 of the 15 charges he faced. The verdicts were as follows:
  • Guilty of six charges of soliciting to murder;
  • Guilty of three charges relating to stirring up racial hatred;
  • Guilty of one charge of owning recordings related to stirring up racial hatred;
  • Guilty of one charge of possessing terrorist encyclopedia;
  • Not guilty of three charges of soliciting to murder;
  • Not guilty of one charge relating to stirring up racial hatred.
Having followed the trial closely I am very pleased that Hamza has been found guilty. His words by any common understanding called for jihad against infidels and Jews and were direct incitements of murder. They were, in short, criminal words calling for criminal deeds.
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