Saturday, February 18, 2006

Translation Issues at the ICTR

The official languages of the ICTR are English and French. The vast majority of the 1,500 witnesses who have testified before the tribunal, however, speak only Kinyarawanda, the African-Bantu language that is the most widely-spoken language in Rwanda. As the Hirondelle News Agency reports in a fascinating article, the fact that most of the testimony heard by the ICTR judges has to be translated from Kinyarawanda into English and French has created numerous problems for the tribunal.

The most important problem is that many Kinyarawanda concepts do not translate easily or precisely into English and French. According to Mathias Ruzindana – a Rwandan language expert who testified as an expert in the ICTR’s seminal Akayesu case – Kinyarwanda expressions involving temporal concepts are particularly ill-suited for use in a legal context, because they tend to be far more general than their “equivalents” in English and French:

“Most Rwandans do not own watches, so they usually measure time by the movement of the sun or their routine activities to express time (e.g. grazing cattle)”, he said.

“Expressions like umuseke (dawn), igitondo (morning), umugoroba (evening), etc, exist but they are not precise and do not tally with the precision needed in judicial matters”, explained the Rwandan expert.

He went on to say that Rwandans usually shade these expressions by adding words such as “very early, at about, etc” without giving exact details.

“They cannot for example distinguish between 10:15 and 11: 45, yet an hour or half-an-hour would be enough to establish an alibi”, Ruzindana pointed out adding that it was not uncommon to hear a witness say that “a short moment” passed between two events without even being able to estimate the time.

This kind of exchange is very common and might go on for minutes without the lawyer getting a precise answer. The defence usually ends up getting angry and abandons the line of questioning saying that the witness had refused to answer. Yet in reality one man's ignorance leads to another person's lack of understanding.

The generality of Kinyarwanda temporal concepts, in turn, affects the precision of spatial concepts:

The problem of space usually poses the same problems as those of time. For the uneducated witnesses, estimation will be approximate. It would be difficult for example, for a witness to estimate in court the distance between his house and the local administrator's office.

“The lawyer will be guided by the time it takes someone to cover the distance on foot. Unfortunately, estimating time when one does not and has never owned a watch is not an easy thing”, Ruzindana underscored.

Fabien Segatwa, a Burundian lawyer made the same remarks. The translations by most Rwandans of notions of time and space “are only rough estimates.”

It’s easy to see how such translations problems could negatively affect a trial, where accuracy is at a premium. Dr. Ruzindana’s discussion of an alibi is a perfect example: as O.J. has taught us, 15 minutes can be the difference between a conviction and an acquittal. Moreover, judges and juries alike tend to judge the credibility of a witness by examining the internal structural consistency of a witness’s testimony – a far more difficult task when relationships of time and space are expressed generally.

Because of these (and other) translation problems, the fairness of an ICTR trial will often hinge on the quality of interpreters employed by the tribunal. So it's not surprising that defendants have often complained that a witness’s testimony had been imprecisely translated – damningly so. In Akayesu, for example, the defendant complained that the interpreters had been translating different Kinyarwanda expressions relating to sexual relations simply as “rape.”

The terms gusambanya, kurungora, kuryamana and gufata ku ngufu were used interchangeably by witnesses and translated by the interpreters as “rape”. The Chamber has consulted its official trial interpreters to gain a precise understanding of these words and how they have been interpreted. The word gusambanya means “to bring (a person) to commit adultery or fornication”. The word kurungora means “to have sexual intercourse with a woman”. This term is used regardless of whether the woman is married or not, and regardless of whether she gives consent or not. The word kuryamana means “to share a bed” or “to have sexual intercourse”, depending on the context. It seems similar to the colloquial usage in English and in French of the term “to sleep with”. The term gufata ku ngufu means “to take (anything) by force” and also “to rape”. The context in which these terms are used is critical to an understanding of their meaning and their translation… The Chamber notes that the accused objected on one occasion to the translation of the words stated by Witness JJ (“Batangira kujya babafata ku ngufu babakoresha ibyo bashaka”) as “They began to rape them.” It was clarified that the witness said “they had their way with them.” The Chamber notes that in this instance the term used, babafata ku ngufu, is the term which of the four terms identified in the paragraph above is the term most closely connected to the concept of force. Having reviewed in detail with the official trial interpreters the references to “rape” in the transcript, the Chamber is satisfied that the Kinyarwanda expressions have been accurately translated.

In this situation, the tribunal was most likely correct. Translation problems, however, continue to haunt the ICTR – and, if anything, will be even more acute for the ICC, which has judges that speak many different languages and genuinely global jurisdiction.

See Goldsmith, Scalia, Yoo, et. al. - February 21 at the American Enterprise Institute

Two of America's leading scholars of foreign relations law, John Yoo and Jack Goldsmith, are co-hosting a day-long conference on Tuesday, February 21 at the American Enterprise Institute in Washington D.C (see here for registration details). The conference, entitled the "The Outsourcing of American Law" will feature Justice Antonin Scalia as the keynote speaker (gee, what do you think he is going to talk about?).

In addition to Goldsmith and Yoo (who represent quite different approaches actually, if you believe Time Magazine), the conference will feature top scholars in the field like William Dodge, Beth Stephens and Kenneth Anderson as well as leading blog personalities Tom Goldstein of SCOTUSBlog.

Oh yes (and you knew this was coming!), the conference will also feature yours truly speaking on the first panel about the status of customary international law in domestic courts. Now I know many of our readers live and work in D.C. I hope to see some of you there!

Friday, February 17, 2006

Outraged Moderates and DoD Notes from 9/11

Thad Anderson of (and a St John’s Law student) has posted documents released under a Freedom of Information Act request he had made which include notes of DoD staffer Steven Cambone from meetings with Donald Rumsfeld on the afternoon and evening of September 11, 2001. Cambone’s notes were cited by the 9/11 Commission and by CBS.

Anderson explains:

The released notes document Donald Rumsfeld's 2:40 PM instructions to General Myers to find the "[b]est info fast . . . judge whether good enough [to] hit S.H. [Saddam Hussein] at same time - not only UBL [Usama Bin Laden]" (as discussed on p. 334-335 of The 9/11 Commission Report and in Bob Woodward's Plan of Attack).

In addition, the documents confirm the contents of CBS News' Sept. 4, 2002 report "Plans For Iraq Attack Began on 9/11," which quoted Rumsfeld's notes as stating: "Go massive . . . Sweep it all up. Things related and not." These lines were not mentioned in the 9/11 Commission Report or Woodward's Plan of Attack, and to my knowledge, have not been independently confirmed by any other source. After the Rathergate fiasco, I wondered if CBS had been fooled into publishing a story that, from a publicity perspective, seemed too good to be true.

Finally, these documents unveil a previously undisclosed part of the 2:40 PM discussion. Several lines below the "judge whether good enough [to] hit S.H. at same time" line, Cambone's notes from the conversation read: "Hard to get a good case."

Links to the released documents are available at the OutragedModerates site.

Italian Court: Suicide Bombings Directed Against US Soldiers Not Terrorism

In a decision bound to upset the US government and most Americans, an Italian appellate court has upheld a lower court's acquittal of three North African men accused of recruiting suicide bombers to attack US soldiers in Iraq. The men had been charged with international terrorism, a crime adopted in Italy following 9/11. The appellate court ruled that, in the context of an armed conflict, suicide bombings directed against the armed forces of one of the parties to the conflict represent guerrilla warfare, not terrorism; such bombings are terrorist acts only when directed against civilians.

The AP describes the appellate court's decision as indicative of "the frequent failure by prosecutors in Italy to win cases against terror suspects." Nevertheless, the horrific nature of the acts in question notwithstanding, it's unclear whether the decision is incorrect. As Philip Carter has pointed out with reference to the infamous attacks on the four civilian contractors in Fallujah,

The Iraqi guerillas define themselves as freedom fighters fighting an unjust occupation. If the Iraqi insurgents can be categorized in some way as combatants, then they are entitled to lawfully kill in wartime just as American soldiers can. Essentially, this doctrine of "combatant immunity" allows soldiers to kill in war as a form of justifiable homicide.

Obviously, American and Iraqi authorities have branded the Iraqi insurgency a criminal -- and indeed, terrorist -- enterprise, and branded its acts unlawful as a result. But there is at least a colorable argument that there should be combatant immunity on the part of the Iraqi insurgents.

Indeed, the US Defense Department's definitions of "guerrilla," "insurgent," and "terrorist" seem to indicate that the Iraqi suicide bombers are guerrillas (or insurgents), not terrorists:
Doctrinally, we (DoD) define terrorism as “the calculated use of violence or threat of violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological.”

Doctrinally, we (DoD) define insurgency as “an organized resistance movement that uses subversion, sabotage, and armed conflict to achieve its aims. Insurgencies normally seek to overthrow the existing social order and reallocate power within the country. They may also seek to: (1) Overthrow an established government without a follow-on social revolution; (2) Establish an autonomous national territory within the borders of a state; (3) Cause the withdrawal of an occupying power. (4) Extract political concessions that are unattainable through less violent means.”

Doctrinally, guerrillas are the “overt military aspect of the insurgency.” They exist alongside their counterparts, the auxiliary and the underground.

On the other hand, the Italian Penal Code's current definition of terrorism -- obviously the only relevant definition here -- does not seem to categorically exclude branding suicide bombings directed at US soldiers as terrorism:
The definition of terrorism in Article 270 bis of the Italian Penal Code has been widened by Law 155/2005, which came into force on 2 August 2005, and includes promoting, constituting, organising, managing or financing organisations which intend to carry out violent activities, or assisting any individual (excluding a close relative) who participates in such organisations. It also includes enrolling or training individuals to carry out violent activities if, in view of their nature or context, such activities might cause grave harm to a country or international organisation, and are intended to intimidate the population or to constrain the powers of the state or international organisations to carry out or not carry out any activity, or to destabilise or destroy fundamental political, constitutional, economic and social structures of a country or of an international organisation. This includes foreign states and international organisations or institutions. This definition is in addition to other acts defined as terrorism or as carried out for terrorist purposes in international conventions or laws to which Italy is bound.
The basic question, I imagine, is whether attacks on US soldiers -- as opposed to Iraqi soldiers -- satisfy Article 270, given that (1) the US military is clearly not part of Iraq's political, constitutional, economic, or social structure; and (2) the US military is probably not an "international organization" for purposes of the Article. If such attacks to do not satisfy Article 270, the appellate court's decision is most likely correct.

In the end, I am simply not competent to pass judgment on the merits of the decision. I am not an expert in Italian substantive criminal law, nor have I read the decision itself. If there are any Italian readers of Opinio Juris who know more about the issue, their thoughts would be most welcome.

UPDATE: Lorenzo Zucca, who blogs at the always interesting Transatlantic Assembly, notes that the Italian Court of Cassation will review the decision. He says that the appeal will apparently focus on the appellate court's conclusion that "only acts exclusively directed against the civilian population" qualify as terrorism. That makes sense, given that a civilian population does not lose its protected status under the Geneva Conventions simply because there are soldiers in its midst. A better rule, therefore, might be that although a suicide bombing that is exclusively directed at soldiers does not qualify as terrorism, a suicide bombing that targets soldiers but also injures or kills civilians does.

Zucca's post is here.

Geoffrey Corn on the New Abu Ghraib Photos

I have solicited the thoughts of Prof. Geoffrey Corn, a law of war expert and former guest blogger at Opinio Juris, on the latest Abu Ghraib photos. Here's his take on the release of the new photos:

On Wednesday, a new batch of Abu Ghraib photographs hit the press. The world is once again reminded of the “shocking and awful” abuse endured by the detainees entrusted to the control of the U.S. Army. While these photos will no doubt reinforce all the negative impressions created by the criminal abuse inflicted on these detainees, they also reinforce two important lessons (which no matter how often learned, seem to just as often be forgotten) about the role of law in war: that respect for the law of war is indelibly linked to maintaining good order and discipline; and that violations of this law can never justify compromising the commitment to subsequent compliance.

The first reality – that compliance with the law of war is linked to a professional and well-disciplined force – is reflected in what I would posit was the reaction of most professional warriors when they viewed these photos: revulsion to the overt manifestation of a total breakdown of discipline. Pity for the victims is no doubt appropriate. But for members of the profession of arms, it is the symbol of arbitrary, immoral, and abusive behavior of American soldiers that is fundamentally inconsistent with what our armed forces are supposed to represent.

The intuitive understanding that the activities of these soldiers reflected a quintessential breakdown of discipline confirms the relationship between the law regulating the conduct of war and a professional and disciplined force. Abu Ghraib must serve as a powerful reminder to all those who serve in uniform – and those who establish policy for them – that in the brutal and dangerous realm of warfare, the law of war provides a barrier between the necessary infliction of harm associated with conflict and the devolution into the unacceptable realm of the infliction of suffering for personal and often perverse reasons. Emphasis of this bright line distinction, particularly during the most brutal phases of an operation, is essential to the preservation of discipline – the “but for” of an effective fighting force.

The second reality is that the breach of the obligation to respect the law of war in no way justifies subsequent non-compliance. Indeed, if this law is to have any meaning, the exact opposite must be the reality. This lesson is much more subtle in relation to the release of these photos, but is also intertwined with the ongoing effort of the ACLU to obtain release of additional Abu Ghraib photos. The ACLU and the Australian television network that released these latest photos share a common purpose: to maintain public interest in the Abu Ghraib story. Many observers applaud these efforts, and are quick to condemn the government for opposing the requested release. However, a review of the photos released Wednesday warrants consideration of a fundamental question: what have we learned from those photos that we did not already know?

If the answer to that question is “a great deal”, then perhaps the continued humiliation of the victims of the abuse is justified. However, if the value lies not in new information, but in simply prolonging the public interest in the story, every observer troubled by the denigration of human dignity that occurred at Abu Ghraib should carefully contemplate whether the benefit truly justifies the cost.

Regardless of how this question is resolved, it does suggest that the ongoing government opposition to release of additional photos might in fact be justified by an effort to mitigate the suffering inflicted on these victims. Reasonable minds can certainly differ on the technical rules related to protecting detainees from public curiosity. (See Corn Declaration, Cummings Declaration, Sassoli Declaration, and Horton Declaration). However, the obligation of the U.S. government and the armed forces to respect the law of war, and more specifically the principle of humane treatment, is in no way modified because of the prior violations that occurred at Abu Ghraib. Instead, ever greater commitment to compliance is the proper response. Therefore, while it is fair to question the cost/benefit analysis associated with opposition to releasing additional photos, there is no justification for condemning government efforts to ensure future compliance with the principle of humane treatment. Characterizing such efforts as an exercise in hypocrisy ignores the complexity of this issue.

What transpired at Abu Ghraib was awful. Soldiers engaged in criminal misconduct, and were properly tried, convicted and punished. Serious questions linger related to the scope of the disciplinary effort, and the causal connection between government policies and the abuse. These questions must be resolved with some legitimate sense of finality and credibility. The prospect of Abu Ghraib being perpetually associated with the type of lingering taint related to the response to the My Lai investigations and prosecutions is unacceptable. It is understandable that proponents of such a resolution believe the continued public interest likely to result form the release of additional photos will contribute to their efforts. The question is at what point do the ends cease justifying the means?

Thursday, February 16, 2006

Intellectual Property and Internet Watermarks

IBM Research is doing some amazing work on protecting the intellectual property of Internet images through watermarks. The purpose of the watermark is to provide a secondary image which is overlaid translucently on the primary image that can be used to protect intellectual property or to provide authentication and validation of images. For example, this top image has embedded within it an invisible watermark (the image below) that identifies its origins. You can also use visible watermarks. For an example of a visible watermark, click here.

Primer on "The Great Firewall of China"

Robert McMahon at the Council on Foreign Relations has a nice primer on Chinese efforts to curtail political speech. The post includes a discussion of how China does it, what role U.S. firms play in the process, how important the Internet is to China, whether Congress is planning any action, and technological efforts to bypass the censorship through proxy servers. Check it out.

Can We Force-Feed Saddam?

This and other very interesting questions are being discussed over at the Grotian Moments. (By the way, the answer appears to be yes, as long as certain guidelines are followed).

The Lumber Trade Fight, Round XVIII (I've Lost Count)

Canada appears to have lost a round in the never-ending dispute over U.S. duties on softwood lumber. A WTO panel has ruled that U.S. duties do not violate WTO obligations. Canada's view, of course, is that the U.S. duties do violate WTO obligations, in part because they also violate NAFTA obligations. Essentially, the U.S. has consistently lost in the NAFTA tribunals, but has consistently won in the WTO cases. Technically this shouldn't matter since each treaty represents a different set of trade obligations. But the fact that the WTO is fine with the U.S. duties does lend some intellectual support to the U.S. position. All of this confusion and uncertainty suggests litigation here is becoming a collossal waste of time and money. Ironically, the various litigation venues has impeded a deal in this case. Someone end the madness and settle this dispute.

The UN Human Rights Commission Finally Releases "Draft Report"

After a few days of selective leaking drafts of their report to major news outlets, the Special Rapporteurs of the U.N. Commission on Human Rights have finally released their report on the situation in Guantanamo Bay.

As I suggested earlier, the report sounds impressive, but it doesn't add a whole lot to the existing debate. It provides no new facts or new allegations. The investigators did not visit Guantanamo Bay (they refused an invitation because they wanted more access to the detainees) and it mostly rehashes news reports and other public information about Guantanamo. It accepts uncritically pretty much every accusation made against Guantanamo, despite U.S. government denials, in coming to its final recommendation that Guantanamo should be shut down.

The report is useful, however, in highlighting the difference in legal analysis and worldviews between the U.N. human rights community and the U.S. government. The UNCHR report concedes there is a military conflict going on, at least in the U.S. actions in Afghanistan, but it goes ahead and demands that the U.S. apply all of the protections under the International Covenant on Civil and Political Rights (ICCPR) to anyone detained in this conflict. This is a remarkable position, given that the ICCPR requires rather broad judicial protections similar to U.S. criminal procedure rights for civilians. Under the UNCHR's view, the U.S. must treat its detainees with essentially the same rights as civilians, which is far more than they would get if they were detained as prisoners of war. The UNCHR doesn't really recognize the possiblity of an "unlawful combatant" and even if they did, such a combatant would get all of the rights of a civilian.

What's odd about this analysis, as the U.S. points out, is that if you violate the laws of war in attacking a U.S. soldier in Afghanistan, you automatically get all the rights of the ICCPR. If you follow the laws of war and are captured, you get none of those rights.

The UNCHR should have stuck to their strongest argument, which is the allegations of torture and degrading treatment at Guantanamo in violation of the Convention Against Torture as well as U.S. laws and policies. This is really should be the heart of the debate over Guantanamo, and not this attempt to import all of human rights law (including the "right to health") into the discussion. That only undercuts the credibility of the special rapporteurs (which is not all that high to begin with).

The Iranian Democracy Fund and the Algiers Accords

The Washington Post is reporting that the United States is prepared to spend $75 million to promote democracy in Iran. According to the report, "the United States hopes to capitalize on the 'disturbing trend of Iranian diplomacy' since Ahmadinejad's election, including the refusal to continue negotiations on the nuclear program.... [and that] the administration would press countries that have ties to 'begin to think what they can do to push back against what has been a radical series of proposals out of the government of Iran.' The officials sidestepped questions about whether the administration is seeking 'regime change.'"

This is very welcome news. There is one small caveat. It may violate our international treaty obligations. There is a little-known provision in the Algiers Accords, signed by the United States and Iran on the closing days of the Iranian hostage crisis, that stipulates that "The United States pledges that it is and from now on will be the policy of the United States not to intervene, directly or indirectly, politically or militarily, in Iran's internal affairs."

Having worked as a law clerk with one of the American judges at the Iran-U.S. Claims Tribunal, I came to know the Algiers Accords quite well. Generally, this agreement works to the United States' advantage, ensuring that our citizens have adequate judicial recourse before an international tribunal for Iranian breaches of contracts and unlawful expropriations arising out of the revolution. But not always.

This "internal affairs" provision is rarely litigated before the Tribunal. (There currently is pending before the Tribunal a claim that U.S. sanctions against Iran violates this "internal affairs" provision.) The provision was a condition the Iranians imposed on President Carter to avoid in the future what they perceived to be past meddling by the United States. In the final days of the Carter Administration in January 1981, the United States reluctantly conceded to this international obligation, hoping that it would never become an issue. I have heard one intimately knowledgeable about the drafting of the Algiers Accord concede that the provision was a non-negotiable requirement of Iran, and one that was most unwelcome to U.S. negotiators. It is a discredit to Carter that he ever acquiesced to such an open-ended provision, but there it is: a treaty obligation to never politically or militarily interfere in the internal affairs of Iran.

If the Iranian democracy fund goes forward (or if we respond militarily to a nuclear Iran), Iran could file a claim before the Iran-United States Claims Tribunal alleging that the action is a violation of the Algiers Accords. (Never mind that the Iranians have regularly violated the Algiers Accords, including the obligation to provide adequate funding to a security account reserved for American claimants appearing before the Tribunal). I doubt that the Tribunal would ultimately conclude that there was a violation, but it is not outside the realm of possibility.
At a minimum, the treaty obligation will somewhat constrain the traditional freedom the United States otherwise has in conducting international relations.

Wednesday, February 15, 2006

Germany Disarms Itself Against September 11 Attacks

Germany's Constitutional Court has invalidated a law that would have permitted the German government to shoot down a hijacked plane if that plane was being used as a weapon endangering other people, like in the September 11 attacks. The Court found that the German law "infringed the right to life and human dignity" guaranteed by the German equivalent of a constitution.

I haven't read the decision (which is in German and can be found here), but based on the BBC's description of the decision and the Court's English language summary, the Bundesverfassungsgericht's decision seems almost indefensible. The law would have guaranteed civilian control over any decision to fire on an hijacked airliner. It would have required that decision to be the last resort of any government. Yet, apparently, the German government has no right to take the lives of the hijacked airline passengers to save the lives of others.

Here is the Court's English summary of its analysis of why the law violates the "right to human dignity."

2. § 14.3 of the Aviation Security Act is also not compatible with the right to life (Article 2.2 sentence 1 of the Basic Law) in conjunction with the guarantee of human dignity (Article 1.1 of the Basic Law) to the extent that the use of armed force affects persons on board theaircraft who are not participants in the crime.The passengers and crew members who are exposed to such a mission are in a desperate situation. They can no longer influence the circumstances oftheir lives independently from others in a self-determined manner.

This makes them objects not only of the perpetrators of the crime. Also the state which in such a situation resorts to the measure provided by §14.3 of the Aviation Security Act treats them as mere objects of its rescue operation for the protection of others. Such a treatment ignores the status of the persons affected as subjects endowed with dignity andinalienable rights. By their killing being used as a means to save others, they are treated as objects and at the same time deprived oftheir rights; with their lives being disposed of unilaterally by thestate, the persons on board the aircraft, who, as victims, are themselves in need of protection, are denied the value which is due to ahuman being for his or her own sake. In addition, this happens under circumstances in which it cannot be expected that at the moment in whicha decision concerning an operation pursuant to § 14.3 of the AviationSecurity Act is taken, there is always a complete picture of the factual situation and that the factual situation can always be assessed correctly then.

Under the applicability of Article 1.1 of the Basic Law (guarantee of human dignity) it is absolutely inconceivable to intentionally kill persons who are in such a helpless situation on the basis of a statutory authorisation.

The assumption that someone boarding an aircraft as a crew member or as a passenger will presumably consent to its being shotdown, and thus in his or her own killing, in the case of the aircraftbecoming involved in an aerial incident is an unrealistic fiction.. Also the assessment that the persons affected are doomed anyway cannot remove from the killing of innocent people in the situation described itsnature of an infringement of these people’s right to dignity. Human lifeand human dignity enjoy the same constitutional protection regardless ofthe duration of the physical existence of the individual human being.The opinion, which has been advanced on some occasions, that the persons who are held on board have become part of a weapon and must bear beingtreated as such, expresses in a virtually undisguised manner that thevictims of such an incident are no longer perceived as human beings. The idea that the individual is obliged to sacrifice his or her life in theinterest of the state as a whole in case of need if this is the onlypossible way of protecting the legally constituted body politic from attacks which are aimed at its breakdown and destruction also does notlead to a different result. For in the area of application of § 14.3 of the Aviation Security Act the issue is not the defence against attacks aimed at abolishing the body politic and at eliminating the state’s legal and constitutional system. Finally, § 14.3 of the AviationSecurity Act also cannot be justified by invoking the state’s duty to protect those against whose lives the aircraft that is abused as a weapon for a crime is intended to be used. Only such means may be used to comply with the state’s obligations to protect as are in harmony withthe constitution. This is not the case in the case at hand.

I understand that there are very complex moral and philosophical questions involved here. Can you take a life to save a life? But although this is an agonizing option, it is not an option that should be ruled out of hand unconstitutional before any particular circumstance arises. That only invites the likelihood of someone trying out this or other tactics.

Maybe I'm missing something or maybe I'm too Americanist in my thinking. If President Bush had ordered the downing of the two planes heading for the World Trade Center on September 11, I think it could have been morally justified. I certainly don't think it would be unconstitutional. But I look forward to hearing from folks about why I'm wrong.

Damning Evidence Against Saddam

The Australian Broadcasting Corporation is reporting that prosecutors in Saddam Hussein's trial have produced written orders allegedly signed by Saddam ordering the execution of 140 Shiites in Dujail in 1982. If so, the evidence provides the first concrete link between Saddam and the executions; although numerous witnesses have described how Iraqi 's security forces killed the Shiites in "response" to a failed assassination attempt against Saddam, none were in a position to know whether the executions were ordered by Saddam himself.

French Court Strikes Down Pro-Colonialism Law

On a (somewhat) lighter note, France’s Conseil Constitutionnel has struck down a provision in a 2005 law that required history teachers to stress the “positive aspects” of French colonialism. The Council, which was established in 1958 and is responsible for reviewing the consistency of Acts of Parliament with the Constitution, held that the enacting the provision was outside competence of the legislature.

The 2005 law, ironically enough, was intended to recognize the contribution of the “harkis,” the 200,000 or so Algerians who fought alongside French colonial troops in Algeria’s war of independence before being abandoned when the French withdrew from Algeria. About 130,000 of the harkis were later executed as traitors.

The provision was immediately assailed by historians, writers, and intellectuals, more than 1,000 of whom signed a petition demanding its repeal. One eminent French historian likened it to the Japanese government’s approach to the Sino-Japanese war:

In Japan, a law defines the contents of history lessons, and textbooks minimise Japan's responsibility in the Sino-Japanese war. If France wants to be like that, it's going the right way about it.

The provision is not, however, the first or only example of a law dictating how certain periods of French history should be taught. A 1990 law outlaws denial of the Holocaust, and a 2001 law requires the slave trade to be described as a crime against humanity.

Outsourcing International Criminal Justice: Norway Fills in for Rwanda Tribunal

Norway has agreed to try a suspect accused of participating in the 1994 Rwanda genocide. Norway will try the Rwandan Hutu Michel Bagaragaza in its own courts, accepting a request by the International Criminal Tribunal for Rwanda (the ICTR), to take over for the backlogged court. Bagaragaza, a former tea industry leader, is accused of organizing his employees to massacre Tutsis.

I haven't been following the ICTR, but it is apparently seriously backlogged and it must finish up by 2008. So this move makes some practical sense. Choosing Norway makes somewhat less sense. The obvious place to try Mr. Bagaragaza is Rwanda, but the ICTR won't turn him over unless Rwanda pledges not to impose the death penalty. I applaud the high principles of the ICTR, but the maximum under Norwegian law is only 21 years. That seems way too low for someone convicted of mass genocide.

"Google Bombing" Ahmadinejad and Radical Islam

Today we learn that Islamic fundamentalists are burning fast-food restaurants in Pakistan to protest the Danish cartoons. It is hard to ever feel sorry for McDonalds, but I do today. I checked the McDonald's menu for Pakistan, including the "McArabia," and could not find anything that was particularly offensive to the Prophet. I guess it was the cheese Danishes.

Meanwhile, the Iranian dissident Hossein Derakhshan over at proposes a more peaceful, digital protest against Ahmadinejad and radical Islam. It is called "Google bombing." A Google bomb is "a certain attempt to influence the ranking of a given page in results returned by the Google search engine. Due to the way that Google's PageRank algorithm works, a page will be ranked higher if the sites that link to that page all use consistent anchor text. A Google bomb is created if a large number of sites link to the page in this manner." Read the whole entry on Wikipedia for popular examples.

Here is Hoder's proposal: "I'm thinking of organizing something such as a collective visit by Iranians abroad to Holocaust museums around the world, or ask anyone who disagrees with Ahmadinejad's denial of systematic killing of Jews by Nazis to link to a speceifc page about Holocaust. The latter is called Google bombing and is known as a common way to protest online.... There is no bigger threat to Iran's national security ... than Ahmadinejad."

I think Hoder's idea of "Google bombing" Ahmadinejad as a way to protest his radical Islamic beliefs is a very interesting idea. Anyone who types in the word "Ahmadinejad" in Google would then get a particular site that highlights his Holocaust denial and his radical ideology. I will keep you informed if anything develops.

UPDATE: It has come to my attention that if you type in the phrase "Hamas Party" in Google the top link is my post on "The Hamas Party Platform." This is an example of how a popular post can have the unintended effect of a "Google bomb." Currently the top post in a Google search for Ahmadinejad is an October 2005 BBC profile, followed shortly thereafter by an antiseptic Wikipedia profile and a positive June 2005 profile in Al Jazeera. All three are out-of-date, inaccurate, and make no mention of the current threat that he has become. By contrast, the top post for a Google search of his alternative spelling of "Ahmadinejah" is my post on the "The Madness of Mahmoud Ahmadinejah." It is incomplete, but more accurately gives voice to the true threat that is Mahmoud Ahmadinejad.

Participatory Democracy and Customary International Law

Christiana Ochoa of Indiana Law School has just published in the University of Cincinnati Law Review an interesting article entitled, Towards a Cosmopolitian Vision of International Law. The article and an abstract is available on SSRN here. The article addresses Sosa and the role of the judiciary in establishing customary international law.

But it is Part VI that really caught my attention regarding participatory democracy in the formation and definition of CIL. Here is a taste:
The CIL of human rights, no less than treaty law, has direct effects on individuals. It sees them as the subjects addressed by those provisions that have attained the status of CIL. Unlike treaty law, though, there is no space in the traditional formulation of CIL for individual participation in the CIL formation process. As a result, there is currently an uncomfortable disjuncture in the CIL of human rights. Individuals are its subjects but are not seen as legitimate participants in its formation.... The traditional state-centric conception of CIL, at least within the CIL of human rights, is incongruent with models of participatory democracy.
Although I doubt that international law will progress toward genuine participatory democratic prescription of a CIL of human rights, she is right to identify the democratic concerns in the creation of CIL human rights law. But rather than criticize CIL as undemocratic, she identifies the judiciary as providing a key role in starting and informing dialogue among the citizenry. It is an interesting argument for the least-political branch--the judiciary--playing an essential democratic function in the formation of CIL. Democratic participation through human rights litigation, not the ballot box.

Not sure I agree, as ATS litigation is not exactly a vehicle for representative democracy which, in Robert Dahl's language "inculcates among people of all walks of life a justifiable feeling that they have the power to participate in decisions which affect them." But very interesting and worth a read.

Surprising Poll Numbers on Bush, the UN, and Iran

Given how unpopular the UN seems to be these days in the US, the results of a recent CNN/USA Today/Gallup poll question about Iran are rather surprising (courtesy of Think Progress):

How confident are you in the Bush administration’s ability to handle the situation in Iran?

  • Very or Somewhat Likely: 45%
  • Not Too Confident or Not At All Confident: 55%

How confident are you in the United Nations’ ability to handle the situation in Iran?

  • Very or Somewhat Likely: 47%
  • Not Too Confident or Not At All Confident: 51%

To be sure, the numbers likely reflect the toll that Iraq has taken on Bush's credibility more than any new-found trust in the UN. As other polling questions suggest, Americans believe that Bush's foreign-policy priorities are misplaced and that he is too quick to use military force:

How concerned are you that the U.S. will not do enough to prevent Iran from developing nuclear weapons?

  • Very Concerned or Somewhat Concerned: 67%
  • Not Too Concerned or Not Concerned At All: 30%

How concerned are you that the U.S. will be too quick to use military force in an attempt to prevent Iran from developing nuclear weapons?

  • Very Concerned or Somewhat Concerned: 69%
  • Not Too Concerned or Not Concerned At All: 30%

Tuesday, February 14, 2006

ECHR Decides Important Police Brutality Case

Though the news is a couple of weeks old, it’s worth calling attention to a unanimous decision by the European Court of Human Rights Court that the Russian Federation violated the European Convention on Human Rights by allowing local police to torture a Russian citizen, Aleksey Mikheyev, and by subsequently failing to adequately investigate his allegations of mistreatment. The court awarded Mikheyev €250,000 ($304,000) in compensation.

Mikheyev v. Russia is one of the most extreme cases in the short history of post-Soviet policing. On September 10, 1998, Mikheyev, a traffic cop, was arrested and charged with the rape and murder of a teenage girl whom he and a friend had given a ride. Mikheyev said he dropped the girl off at a bus stop near his flat and never saw her again. His friend, however, told the police he saw Mikheyev rape and kill the girl. (It later became clear that that the friend had been coerced into making the statement.) The police then extracted a written confession from Mikheyev by torturing him for nine days. Wires were attached to his earlobes and electric shocks administered, a police interrogation technique known informally as zvonok Putinu (“a phone call to Putin”).

On September 19, Mikheyev decided he could take no more. Left by himself for a moment, he broke free from the chair he was tied to and threw himself out of his cell window. He landed on a police motorcycle and broke his back, rendering him a paraplegic. Soon afterwards, the “murdered” girl turned up unharmed and said she had been staying with friends.

On September 21, 1998, a criminal investigation was opened into the Mikheyev’s fall from the window. The criminal proceedings were discontinued two months later, however, for lack of evidence. The case was subsequently reopened and closed numerous times. On September 5, 2002, the prosecution service discontinued the investigation, finding that no criminal offense had been committed. The case was then again reopened and closed a number of times.

Three years later, in 2005, two policemen who had participated in the questioning of the applicant on 19 September 1998 were prosecuted for mistreating Mikheyev. The police officers were convicted of abuse of official power associated with the use of violence. As of this date, however, the judgment is not yet final.

The Court vindicated Mikheyev on all counts. To begin with, the Court concluded that Russia had violated Article 3 of the Convention, which provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Court noted that throughout the official “investigation” Mikheyev had provided a consistent and detailed description of who had tortured him and how. He also had witnesses to support his allegations. Moreover, Russia had no plausible explanation of why, if he had not been tortured, he would commit try to commit suicide even though he knew he was innocent. Finally, the Court noted that there was evidence other detainees had suffered, or been threatened with, similar ill-treatment.

The Court also held that the deliberate ineffectiveness of Russia’s investigation violated Article 3. It noted, for example, that many investigative measures were carried out after a significant lapse of time – for example, the forensic report on Mikhevev’s injuries was dated more than five weeks after the alleged ill-treatment – and that there was a clear link between the officials responsible for the investigation and those allegedly involved in the torture. It also emphasized that that it took seven years for the case to reach trial.

Finally – and of critical importance to future cases – the Court dismissed Russia’s claim that Mikheyev’s failure to wait for the formal completion of its investigation barred him from bringing his case to the Court.

One can only hope that the ECHR’s decision will help deter future police and governmental misconduct in Russia. Mikheyev v. Russia, unfortunately, is only the tip of the iceberg; according to Amnesty International,

Incidents of torture and ill-treatment in prisons and detention centres throughout the Russian Federation as well as poor conditions there continue to be reported on a regular basis. Impunity remained the norm for serious human rights abuses in the context of the Chechen conflict, where authorities are implicated in the torture, abduction, secret detention and "disappearances" of civilians… Measures against human rights violations are seldom taken and as a rule police and army act within a climate of impunity… The Russian Federation is the only member state of the Council of Europe that still does not allow for the full publication of reports of the Council of Europe's Committee against Torture.

Olympic Speedskating and Darfur

U.S. gold medalist Joey Cheek has announced he will donate all of his $25,000 award (from the U.S. Olympic Committee) to a foundation providing aid to children injured by the war in Darfur, Sudan. Cheek actually had a prepared statement, apparently drafted the night before his race. Talk about confidence! Still, his heart is obviously in the right place and his announcement is a nice reminder of how the Olympics could be about more than just medal counts and future commercial endorsements. It could also be about recognizing the interconnectedness of individuals across national boundaries - in this case, the connection is sports.

Cheek seems like an interesting guy. According to his bio website, "In his spare time, Cheek enjoys playing the guitar, producing movies with fellow skaters, Kip and Cory Carpenter, and online investing. After skating is over, he would like to attend law school and begin a successful law practice in his native North Carolina." One of the coolest future lawyers out there.

Love, War, and Saint Valentine

Okay, you think the title is a stretch. But if you look behind the history of the holiday you may conclude that Valentine's Day has less to do with love than war. Legend has it that under the reign of Roman Emperor Marcus Aurelius Claudius Gothicus (A.D. 214-270) (not the Marcus Aurelius played by Richard Harris in Gladiator, but it's a good photo op), the Roman Empire was constantly at war, and in constant need of more soldiers. So what did Emperor Claudius II (his common appellation) do with his perennial shortage of men? He banished love from the empire. And in response Saint Valentine rose up in quiet revolt. For his rebellion Valentine was executed on February 14, 269, leaving a farewell note to the jailer's daughter, whom he had befriended, signed, "From Your Valentine."

Here is how one article describes it:

Another legend touts of a well loved priest called Valentine living under the rule of Emperor Claudius II. Rome was constantly engaged in war. Year after year, Claudius drafted male citizens into battle to defend and expand the Roman Empire. Many Romans were unwilling to go. Married men did not want to leave their families. Younger men did not wish to leave their sweethearts. Claudius ordered a moratorium on all marriages and that all engagements must be broken off immediately. Valentine disagreed with his emperor. When a young couple came to the temple seeking to be married, Valentine secretly obliged them. Others came and were quietly married. Valentine became the friend of lovers in every district of Rome. But such secrets could not be kept for long. Valentine was dragged from the temple. Many pleaded with Claudius for Valentine's release but to no avail, and in a dungeon, Valentine languished and died. His devoted friends are said to have buried him in the church of St. Praxedes on the 14th of February.

More on the legend here, here and here. Somehow knowing the history makes me thankful not just for love, but also that our government demands only a few good men. They make war, so we can make ... well, the best of it on this holiday.

Happy Valentine's Day.

Monday, February 13, 2006

Bolton on the UN Human Rights Commission

I completely agree with Julian's dire assessment of the UN Human Rights Commission. But before we get too carried away lauding the U.S.'s reform efforts, it's worth noting that Ambassador Bolton's most recent suggestion for "reform" is to guarantee all five permanent members of the Security Council permanent seats (presumably with veto power) on the new Human Rights Council, as well. Mark Leon Goldberg at the always informative Bolton Watch reports on the implications -- and irony -- of that proposal:
At the UN right now, negotiations are currently underway over the membership criteria and mandate for a new Human Rights Council that would replace a Human Rights Commission that had long ago become discredited for including such bastions of human freedom like Sudan and Libya. During these negotiations, Ambassador Bolton has made it clear that one of his principle goals at the moment is to secure the United States a seat on the Council. To that end, Bolton proposed that the five permanent members of the Security Council also be guaranteed seats on the Human Rights Council. This, of course, that means Russia and China would also be given free lifetime memberships to the club.

It’s unclear, however, how widely shared this view is among others in the administration. Earlier this week, for example, Deputy Assistant Secretary of State for International Organization Affairs Mark Lagon spoke to the Congressional Human Rights caucus on this issue and never brought up P-5 membership in his opening statement. For his part, Bolton articulated the merits of P-5 membership in great detail at a press briefing attended by yours truly a couple of weeks ago.

I happen to agree with Bolton’s broader point that having the US on the Human Rights Council will make it a stronger body. But if the only way to guarantee US membership is by extending an offer to China and Russia than its hard to see how the new council can be much of an improvement over the current discredited Human Rights Commission. Not withstanding China’s own horrible human rights records, they—as opposed to the US—are far more willing to defend at the United Nations unsavory regimes who routinely abuse their own citizens. A lot of the inaction over Darfur at the UN, for example, stems from the fact that China buys a lot of oil from Sudan (and to a lesser extent, because Russia sells a lot of advanced weaponry to them).

Presumably, Bolton fears that if the US is excluded from the Council, it will just be another forum that countries can use to vent their anti- Americanism. Still, it’s hard for me to see how, exactly, that this is much of a threat to American interests. Other countries can complain till their blue about rendition, torture and Guantananmo, but that hasn’t changed our behavior at all. Really, the only influence that the Council is likely to be able to yield will be over countries like Zimbabwe, Burma or any number of sub-equatorial countries that are weak enough to have to respond to demands made by the United Nations.

Bolton sees US membership on the new Council as an end itself in the negotiations. If that remains the case as the negotiations continue, and P-5 membership is guaranteed, then the new council will just mirror the bad old days when countries sought membership for the sole purpose of avoiding condemnation over their own human rights practices.

The (U.S.) Consensus on Reforming the U.N. Human Rights Commission

Speaking of the semi-ridiculous U.N. Human Rights Commission, I somehow missed this statement last week from the U.S. criticizing the existing proposal to reform the Commission. Talk about an easy position to develop. The U.S. is holding out for a new Human Rights Council that will have human rights standards for nations sitting on the new council. That appears to be too much for the delegates so far. The whole thing will be voted on by May so this is the crucial negotiating time.

Curiously, conservatives like the folks at National Review are very interested in the outcome of this battle, even though they often deride the U.N. as useless. This suggests, contrary to typical thinking about U.S. politics, that the U.S. conservatives are not anti-U.N. They are just against this particular version of the U.N. And with respect to the Human Rights Commission, there seems to be no serious division between liberals and conservatives, between Human Rights Watch and National Review. So that's something, at least.

Request for Info on Hiring of New and Lateral International Law Professors

I am compiling a list of all the new and lateral international law professor hires for the coming academic year. If you have information please email me and I will include it in the list. (You can find my email on my profile to the right).

In your email please include the new institutional affiliation, the name of the professor, specializations (if known), and the name of the former institution (or indicate "new professor" if applicable). Information on any law school anywhere in the world is welcome.

I will post the complete information in a couple of weeks.

The EU Pressures Serbia to Find Mladic

The U.S. media have done a decent job covering Serbia’s admission that hard-liners in its military are hiding war-crimes suspect General Ratko Mladic, wanted by the ICTY for allegedly orchestrating the 1995 massacre of 8,000 Muslim men and boys from Srebrenica. There has been relatively little coverage, however, of a particularly interesting aspect of the story: the European Union’s threat to suspend talks with Serbia regarding membership in the EU if it does not find Mladic and turn him over to the ICTY. The strategy appears to be working: after weeks of denying any knowledge of Mladic’s whereabouts, Serbia not only admitted the military-Mladic link, it began investigating the officers involved, formed a central authority to pool information gathered by the civilian Security-Information Agency and the army’s military security and intelligence agencies, and appointed a highly-respected local prosecutor to serve as an intermediary between the Serbian intelligence agencies and the ICTY. Moreover, a few days ago Serbia arrested a former army officer believed to have helped Mladic evade capture.

This is the second time the EU has used the possibility of membership to coerce a reluctant state to get serious about apprehending one of its war criminals. A similar strategy motivated Croatia to begin looking for one of its war criminals, General Ante Gotovina. Gotovina was ultimately arrested by Spanish police in December, 2005, on the island of Mallorca. The ICTY credits Gotovina’s arrest to an extensive Croatian surveillance operation that monitored the fugitive general’s supporters and family members for much of last year.

The EU’s willingness to connect EU membership to cooperation with the ICTY is a very positive sign for international criminal law. In the aftermath of internal armed conflicts, tribunals such as the ICTY, ICTR, and ICC depend upon the cooperation of the war-torn state to identify, locate, and apprehend individuals responsible for international crimes. As the Serbian and Croatian examples indicate, however, such cooperation is rarely forthcoming – given that the perpetrators are often (if not usually) government officials or members of the military themselves, the state rarely has any incentive to do so. That’s where the EU comes in: to provide the incentive that is otherwise lacking. With EU membership – and the vast economic and political benefits that comes with it – potentially hanging in the balance, even the most reticent state has to think twice about stonewalling an international criminal tribunal.

U.N. Special Rapporteurs Find That Gitmo Violates International Law

Big surprise. The U.N. Human Rights Commission's special rapporteurs investigating Guantanamo Bay has concluded that the U.S. is violating international treaties on human rights and torture in its treatment of detainees in Guantanamo Bay. This Latimes summary is not quite clear for the basis of the special rapporteurs' conclusions, although it does note that the special rapporteurs have based their report almost entirely on interviews with detainees who were released from Guantanamo. The investigators rejected a U.S. offer to visit the prison claiming they would not have received sufficient access (it is worth reminding ourselves that the U.S. has no legal obligation to admit the U.N. investigators).

I don't think this report will add much to the conversation about Guantanamo. This does not mean the policies they describe in Guantanamo are not troubling (they are), but this report does not appear to have any new information or access to any information more reliable than the press reports about Guantanamo. The rapporteurs, as I've pointed out before, have no particularly special qualifications in doing their work, nor do their opinions provide any greater evidence of what international law does or does not require.

Federal District Court Rejects VCCR Individual Rights

Last week a federal district court in Virginia issued an important decision in Bell v. True, available here, holding that the Vienna Convention does not create individual rights. Here is a key excerpt:
[T]he ICJ in LaGrand did not go so far as to hold that Article 36 of the Vienna Convention creates individually enforceable legal rights that a detainee may assert in a domestic criminal proceeding to reverse a conviction. However, a few years later in Avena, the ICJ explained that "what is crucial in the review and reconsideration process is the existence of a procedure which guarantees that full weight is given to the violation of the rights set forth in the Vienna Convention, whatever may be the actual outcome of such review and reconsideration." Avena, 2004 I.C.J. at 65. Thus, Avena did hold that the United States has an obligation to permit detainees to raise Article 36 claims in our domestic courts. While Avena and, to a lesser degree, LaGrand support Bell's contention that Article 36 of the Vienna Convention creates individually enforceable rights of consular notification, these ICJ decisions do not constitute binding precedent on domestic cases involving different parties. The statute of the ICJ states that its decisions have "no binding force except between the parties and in respect of that particular case." Statute of the International Court of Justice, Article 59. "Just as I.C.J decisions are not considered binding precedent by the I.C.J, nor are they considered authoritative statements of international law in domestic courts."...

In light of the LaGrand and Avena cases, the Supreme Court's vague comments on whether Article 36 is individually enforceable, the State Department's position on the issue, and the general presumption that international treaties do not confer individual rights, "[i]t remains an open question whether the Vienna Convention gives rise to any individually enforceable rights." United States v. Minjares-Alvarez, 264 F.3d 980, 986 (10th Cir.2001). Indeed, one circuit has held that the Vienna Convention confers individual rights, other circuits have held that it does not, and still others have stated that it remains unclear. See United States v. Villa-Ortega, 2005 U.S. Dist. LEXIS 28234, at *11 (D.Kan.2005) (citing a Seventh Circuit case holding it does confer individual rights; First, Second, Fifth, and Sixth Circuit cases holding that it does not confer individual rights; and Third, Ninth, and Tenth Circuit cases stating that it is unclear). Because no clearly established federal law directs that Article 36 creates an individually enforceable right to consular access, it cannot be said that the Supreme Court of Virginia's determination that it does not confer such a right is contrary to, or involves an unreasonable application of, clearly established federal law. Thus, I must deny relief on this claim.
Of course, it is anticipated that in two pending cases the Supreme Court will clarify whether the Vienna Convention creates individually enforceable rights. The cases of Bustillo v. Johnson and Sanchez-Llamas v. Oregon are scheduled for oral argument on March 29, 2006. The Supreme Court briefs in those cases have been submitted and provide much fodder for thought.

Law professors who argue in an amici brief (2005 WL 3530557), available here, that the Vienna Convention does create individually enforceable rights are David Sloss, David Bederman, Frederic Bloom, Erwin Chemerinsky, Sarah Cleveland, Constance De La Vega, William Dodge, Martin Flaherty, Greg Fox, Roger Goldman, Laurence Helfer, Ronald Slye, Beth Stephens, Michael Van Alstyne, Beth Van Schaack, David Weissbrodt, and Ingrid Wuerth.

Law professors who argue in an amici brief (2006 WL 259988), available here, that the Vienna Convention does not create individually enforceable rights are Paul Stephan, Samuel Estreicher, John Harrison, Julian Ku, John McGinnis, Mark Movsesian, Ruth Wedgewood, Mark Weisburd, Ann Woolhandler, and Ernest Young.

Julian has posted about these cases here and about law professor amici briefs here.

Sunday, February 12, 2006

Progress on the Khmer Rouge Tribunal

The UN and the Cambodian government have set up an administrative office in Phnom Penh for the hybrid tribunal that will try former leaders of the Khmer Rouge, who are accused of murdering nearly 2 million people during the 1970s. The establishment of the office marks the transition from the planning stage to the actual functioning of the court, which will be known – easily breaking the record for the longest name of an international tribunal – as the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea.

According to the agreement between Cambodia and the UN, the Trial Chamber will have three Cambodian judges and two international judges, while the Appeals Chamber will have four Cambodian judges and three foreign judges. The judges should be elected within the next six months, with the first prosecutions intended to commence in early 2007. The tribunal will have jurisdiction over serious violations of Cambodian and international law committed between April 17, 1975, and January 6, 1979 – the period during which the Khmer Rouge was in power.

Only two Khmer Rouge leaders are currently in detention: Ta Mok, the former head of Cambodia’s south-western region known as “the Butcher”; and Kang Kek leu, known as Duch, the head of the notorious Tuol Sleng interrogation center. Both have been charged with genocide, war crimes, and crimes against humanity. The architect of the Khmer Rouge regime, “Brother Number One” Pol Pot, died in 1998, but other leaders, including ''Brother Number Two'' Nuon Chea, former head of state Khieu Samphan, and former foreign minister leng Sary, are living free in Cambodia.

The three-year budget for the trials is about $56.3 million, $43 million from the UN and $13.3 million from Cambodia.

Shafer on Kristof on O'Reilly

In a piece on Friday, Jack Shafer at Slate echoes my criticism here and here of Nicholas Kristof's attack on Bill O'Reilly. Here is a taste:

Don't get me wrong. Bill O'Reilly deserves it in the shins—or even higher—at least two times a week. His bullying, grandstanding, and modern know-nothingism make him a plump target. But Kristof doesn't want to engage or debate O'Reilly, he wants to embarrass him by playing dada games. Those whom the gods wish to destroy they first make a newspaper columnist. Most columnists start off with a bag full of ideas and endless energy. But the job begins to weigh on even the most talented journalist. He starts writing columns about columns he's written, about his kids, or about the deaths of relatives. He composes columns as open letters to world leaders—or writes from inside their heads. He quotes cab drivers. His columns become more assertion than argument. Finally, he starts picking silly, protracted fights with other media machers. Kristof, a Times columnist since November 2001, can do better than this. If he's run out of gas, why doesn't he re-enlist as a reporter?


The Hazards of Olympian Baldness

Last week in this post I told you I would report on interesting CAS arbitration cases coming out of the Winter Olympics. Well, we already have one. The USA Today has reported that Zach Lund of the United States was suspended from the Olympics for using a hair replacement product that contained an agent that masks steroids. The arbitrators concluded that Lund was not a cheat, he was just ... bald. And if you're bald and use a hair replacement product, you better know what is in that product.

At a news conference he said, "After five years of checking [updates to the prohibited list] I got comfortable that I was taking a little harmless product that helps me keep my hair. . . . I didn't understand something could be legal for five years, and then could be illegal. . . . That blows my mind."

Despite the setback, Lund sounds like a class act. A former national champion, Lund said, "I know in the next four years I will prove I'm a true champion," he said. "I've faced many hardships in my career and the reason I was on top is I overcame them. I will use this to build on and become stronger."

I guess we now know a balding man must choose between a little hair or an Olympian dream. You can't have both.

UPDATE: The CAS decision is available here.