Saturday, February 25, 2006

Grandmothers, Kiwi Gnomes, and Cocaine

On the lighter side of international law, a 52-year-old South African grandmother was arrested and charged with drug smuggling in New Zealand after Nigerians stuffed her suitcases with ceramic gnomes filled with cocaine. As reported here:
Crown prosecutor Bruce Northwood said the Crown did not deny it was a sad story but the woman must have known what she had got herself into.... [T]he woman claims her family were being threatened by a Nigerian drug lord called Peter, who wanted her daughter Lindy to work for him. She made a complaint to South African police, scared something would happen to her family. Her daughter was stopped in London in early 2004 "body packed" - carrying drugs. It was then that Martin embarked on a journey to find the man she believed was responsible for her daughter's situation. Mr Northwood said she was dealing with drug-runners in trying to find out what happened to her daughter. Martin said in statements that she wanted to find Peter and the Nigerians had told her that if she stuck with them they would help her find him. "I just want to look him in the face and ask him if it was his child how he would have felt," she said. Mr Northwood said the Nigerians might have been playing on her situation to get what they wanted but she must have known what was in her suitcase when she flew from South America to New Zealand bound for Brisbane. Mr Northwood said she was given false passports, stayed at a hotel where she saw women swallowing things and saying they were "testing their tummies". Her suitcase was changed by Nigerians and it became much heavier. The woman said the only thing the Nigerians had told her was there was something in the suitcase and she was expected to find it when she got to New Zealand. It was part of her "training". "There is a clear probability that she knew this was a drug-running outfit and what she was getting into," Mr Northwood said. "The accused is no fool. She knew the world she was stepping into for whatever reason."
I guess the book about grandmothers is correct. Grandmothers really are like snowflakes. No two are alike.

Fox News' Insightful Analysis of the Situation in Iraq

Friday, February 24, 2006

Are International Criminal Tribunals a Waste of Money?

The journal Foreign Policy has an interesting post on the cost of international criminal tribunals. I have to admit I had no idea they were so expensive. According to the article, "As of November 2005, the International Criminal Tribunal for Rwanda (ICTR) had handed down judgments for only 25 individuals. More than $1 billion has been spent on the tribunal so far, or about $40 million per judgment." For all my complaining about the ICJ's slowness, at least they aren't profligate with the relatively little money they do have.

You might say that ensuring punishment and the end to impunity is worth the $1 billion, but there is some point when even the end to impunity isn't worth it. Or, more accurately, justice is not actually being achieved if the cost is so high. There are cheaper alternatives, by the way. Rwanda could itself punish the perpetrators or, as the ICTR has started to do, the ICTR could outsource to other countries (as it has started doing)

Seth Weinberger at "Security Dilemmas" weighs in with more typically intelligent analysis here.

Customary International Law After Sosa

Another of the panels at the American Enterprise Institute conference last Tuesday dealt with customary international after Sosa v. Alvarez-Machain. The panel consisted of Julian Ku, David Moore, Beth Stephens, and myself, moderated by Jack Goldsmith.

Not surprisingly, the panelists had different views.Julian Ku advanced an argument that the President should exercise control over customary international law, in part because customary international law is based on state practice and because it is generally the executive who acts for the United States in establishing that practice. He suggested a rule of deference—perhaps even absolute deference—to the President’s interpretations of customary international law. One problem with this position, as Beth Stephens pointed out, is that it does not accord with what the Supreme Court actually did in Sosa. In the end, the Court agreed with the Bush Administration that brief arbitrary detentions do not violate any well-established norm of customary international law, but the Court engaged in its own analysis and showed no deference to the executive. There are at least two other objections. First, from an originalist point of view, the President had very little role to play in establishing the law of nations at the time of the Founding because that law rested on natural law rules deducible by courts rather than on state practice. Second, from a modern point of view, it is not only the practice of the United States that establishes customary international law, and unless the United States is a persistent objector during the creation of a new international law norm it will be bound by such a norm even if the President doesn’t like it.

David Moore, on the other hand, read Sosa as giving control over customary international law not to the executive but to Congress. Of course Congress has constitutional authority to “define and punish” offenses against the law of nations and is presumed also to be able to violate customary international law under the last-in-time rule. But Moore’s argument went beyond this, suggesting that the Sosa Court’s focus on congressional intent means that such intent should determine the extent to which customary international law is incorporated into the U.S. legal system more generally. Moore’s argument is original and provocative but in my view it misreads Sosa. First, it resurrects in somewhat different form the argument that the Supreme Court expressly rejected in Sosa—that Congress must expressly incorporate customary international law before courts may apply it. Second, it places too much reliance on the Sosa Court’s discussion of intent. In a case involving the interpretation of a statute, like the Alien Tort Statute, a focus on congressional intent is perfectly appropriate. That does not mean, however, that congressional intent has anything to say about the place of customary international law in the constitutional structure—its place under Article II’s take care clause, Article III’s grant of federal question jurisdiction, or Article VI’s supremacy clause, for example.

It was to those questions that I turned in my presentation, arguing that Sosa’s approach is to treat the incorporation of customary international law not in an all-or-nothing manner, but issue by issue, an interpretation I advanced in a previous article on Sosa. I argued that the original understanding was that the President is bound by customary international law under Article II, that cases arising under the law of nations are within the federal question grant of Article III, and (perhaps most controversially) that customary international law should bind the states under the supremacy clause.

Beth Stephens was the voice of reason and practicality. Among other things, she discussed Sosa’s impact on the corporate cases, arguing that the violations they allege are clearly actionable under Sosa. She also pointed out that the First Congress recognized both that private actors not acting under color of state law could violate some rules of the law of nations and that aiders and abettors of international law violations could be held liable. One such case, In re South African Apartheid Litigation, is currently pending before the Second Circuit and we will soon see if she is right.

YMCAs and OSHAs: The Foreign Policy Generational Gap

A recent survey by Pew highlights a notable generational gap on foreign policy perspectives. If you look at attitudes of the two extreme age groups that were surveyed -- those who are 18-29 and those who are 65+ -- the differences in foreign policy perspectives are stark. In fact, we have a tale of two Americas. Call them the YMCAs and the OSHAs: Young Militaristic Cosmopolitan Americans and Old Skeptical Historical Americans.

According to survey the younger generation are militaristic. They are far more likely to support military action in Iraq, and more comfortable authorizing use of force to maintain oil supplies, prevent famines, or restore law and order with failing governments. As the survey says, "it is older Americans, not young people, who typically show the greatest wariness about using military force." They also are more "cosmopolitan" in the sense that they have a stronger global perspective. They strongly favor the United Nations, are more willing to cede American power to other countries, are committed to compromise with allies, want to improve the living standards in developing nations, and favor free trade. "[Y]ounger age cohorts are not only more likely to be defenders of internatioanal agreements but also to express concern about the protection of innocents abroad.... [W]hile younger people believe America's best approach to foreign policy is through cooperation and compromise, they also see the use of military force as a tool in the foreign policy toolbox - a practical and tough-minded way to achieve a compassionate end."

At the other extreme, the oldest generation are skeptical of military force and appear to view the world through the prism of history. They are far more skeptical of the military action in Iraq, and are deeply wary of authorizing the use of force to maintain oil supplies, prevent famines, or restore law and order. They distrust the United Nations, are skeptical of free trade, and are far less likely to favor compromise with allies or ceding America's superpower status. They appear to have a stronger conception of duty, expressing more willingness to fight for our country, right or wrong. As the survey suggests, the oldest generation's views "are shaped by the events and experiences they share such as World War II, Vietnam, and the end of the Cold War."

Here is an edited version of some of the results:




Support War in Iraq (F’03)




Support Force to Maintain Oil Supply




Support Force to Prevent Famines




Support Force to Restore Order




Favorable View of United Nations (O’05)




Should Compromise on Foreign Policy




Should Accept Power Sharing




Support Free Trade




Improve Living Standards Abroad




Fight For Our Country Right or Wrong




Bolton and the Proposed UN Human Rights Council

The United Nations has released the text of its draft compromise on replacing the existing Human Rights Commission with a new Human Rights Council. Here are the key paragraphs:

OP7 ... the Human Rights Council shall consist of 47 Member States which shall be elected directly and individually by secret ballots by the majority of the members of the General Assembly. The membership shall be based on equitable geographic distribution and seats shall be distributed as follows among regional groups: Ahcan Group 13; Asian Group 13; Eastern European Group 6; GRULAC 8; WEOG 7. The members of the Council will serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms.

OP8 ... the membership in the Council shall be open to all Member States of the United Nations. When electing members of the Council, Member States shall take into account the candidates' contribution to the promotion and protection of human rights and their voluntary pledges and commitments made thereto. The General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Human Rights Council that commits gross and systematic violations of human rights.

0P9 Members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, fully cooperate with the Council, and be reviewed under the universal periodic review mechanism during their term of membership.

OPlO The Council shall meet regularly throughout the year and schedule not fewer than three sessions per year, including a main session, for a total duration of no less than ten weeks, and shall be able to hold special sessions when needed at the request of a Member of the Council with the support of one-third of the membership of the Council.

Although the new Council would be substantially better than the existing Commission -- it would meet more often and require periodic review of members states' human-rights practices -- the draft compromise has one glaring weakness: it does not require a 2/3 majority of the General Assembly for election to the Council, leaving open the possibility that serial human-rights abusers could continue to be elected.

Human Rights Watch and Amnesty International both support adopting the draft compromise, although they acknowledge its limitations. The U.S. is more disasstisifed-- and is threatening to re-open negotiations as a result. But as Scott Paul points out at Bolton Watch, the U.S. has only itself -- or, more precisely, its Ambassador, John Bolton -- to blame for the absence of the 2/3 majority requirement:

First, after Anne Patterson successfully included the 2/3 provision in the negotiating text for the September World Summit, Bolton blew the consensus apart by submitting 750 amendments to the text, many of them of questionable importance to U.S. foreign policy and also deeply offensive to developing countries.

Then, in December, Bolton proposed that the permanent five members of the Security Council should get permanent seats on the HRC. There were two problems with this idea. First, since that would mean China and Russia automatically get seats, it implied that the more interested in membership for itself than credible standards in general. Second, no other countries supported the idea. Instead of working towards achievable U.S. goals, Bolton squandered a fair amount of political capital by pushing this non-starter.

In recent weeks, Bolton still did not lobby for the 2/3 provision. Instead, he promoted his own worthless and unachievable proposal: that countries under Security Council sanction would not be allowed to serve. Today, that would exclude a whopping two countries, Sudan and Cote d’Ivoire, from the HRC. Even in the closing days, a united front with Europe in support of the 2/3 majority would probably have been enough to see it through. Secretary Rice was doing her best to advance the 2/3 provision in capitals around the world, and a little support in New York would have gone a long way.

These three were Bolton’s publicly acknowledged gaffes during this process, but there were many subtle failures, too. For example, over the last three months of 2005, when negotiations after the Summit were really taking shape, Bolton rarely bothered to show up. Instead, he spent his time railing against the UN’s shortcomings in the press and on the Hill, leaving Deputy Assistant Secretary of State Mark Lagon to hold down the fort. Lagon did well, but without high-level representation, the U.S. was seriously handicapped in the negotiations.

At this point, re-opening negotiations would most likely do more harm than good -- "death by 1,000 cuts," in the words of Kenneth Roth, the executive director of Human Rights Watch. So although the new Council would not be perfect, it may now be the best we can do. One thing is clear: the least acceptable option of all is a return to the status quo ante.

Thursday, February 23, 2006

Gender, War and Peace: Michigan State Law School Conference, Feb. 24

Michigan State Law School is sponsoring a symposium tomorrow, Feb. 24, on Gender, War and Peace: Women's Status in the Wake of Conflict. MSU Law has lined up a diverse and talented group of scholars and practioners in the areas of women's human rights, international law feminism and post-conflict justice. (I will be offering my take on the role of gender in formal peace processes.) The full schedule and list of participants is here. As always, if there are any OJ readers in the Lansing, MI area, do stop by.

Request for Hiring Information

In response to my post from last week, thanks to those who have submitted information on new and lateral international law professor hires. I have received numerous emails, but wanted to encourage anyone who has not yet sent information to email me and provide 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).

At the suggestion of one of the emails, I will post the information in mid-March as soon as the hiring season is over.

Institutionalizing the War on Terror

At the American Enterprise Institute on Tuesday a panel with diverse viewpoints—Kenneth Anderson, Morton Halperin, John Hutson, and Andrew McCarthy—expressed a remarkable consensus about the need for the President to go to Congress to establish the rules for a lasting “war on terror,” including such issues as intelligence gathering, detention, rendition, and the use of force short of war.

Kenneth Anderson warned that if the Bush Administration does not institutionalize the war on terror, that war will not outlast the Administration. Morton Halperin agreed, characterizing the Administration’s unilateralism as a “fundamental political misjudgment.”

John Hutson, a retired admiral and now dean of the Franklin Pierce Law Center, warned that if we are not careful we may lose the war on terror, and cautioned that “If we lose our soul . . . we ultimately will have lost the war on terror.” War is never a solution by itself, he said, but only buys time to develop other solutions, adding “we need to figure out why they hate us.” Andrew McCarthy replied that it doesn’t matter why they hate us, because knowing would not change our strategy or objective, which is to break the ability of radical Islam to project force.

John Yoo moderated the panel. Unfortunately he remained silent on the advisability of executive unilateralism in the war on terror, but you can buy his book.

Manzanar War Relocation Center

On February 19, 1942, a few weeks following Pearl Harbor, Franklin Roosevelt signed Executive Order 9066 authorizing the internment of Americans of Japanese ancestry. The purpose of the Order was to ensure the "successful prosecution of the war" which "requires every possible protection against espionage and against sabatoge." Pursuant to that order, 120,000 Japanese Americans were relocated to 10 internment camps throughout the United States.

Over the weekend I had occasion to take my children to visit one of those camps, the Manzanar War Relocation Center. It is a desperately desolate and isolated place near the Sierra Nevadas, with only one large auditorium left of what was once a bustling internment camp housing over 10,000 Japanese Americans. A historical map gives you an idea of what it was like during the war.

The short film was superb and perfectly illustrates the attempted normalcy within the confines of a prison atmosphere. Three stories from the film poignantly illustrated this paradox:
  • First, the children who went to school at Manzanar wanted to pledge allegiance to the United States flag at the start of class each morning. But there was no flag, so the teacher had the children draw American flags and post it in the corner of the school room. Each morning they would pledge allegiance to the children's drawings of the American flag.
  • Second, the Manzanar high school played local teams in high school football. Every game was a home game, for the "Manzanites" were not allowed to travel outside the camp.
  • Third, many Japanese Americans were committed to fighting for the United States in the Second World War. These volunteers established the 442nd Regimental Combat team, a Japanese American volunteer unit. One of those volunteers, Sadao Munemori, posthumously received the Medal of Honor for falling on a grenade and saving others in his regiment. His mother received the medal on his behalf from within the confines of the Manzanar internment camp.
If you are a professor or teacher you can contact the National Park Service (contact details here) for a teaching package that has wonderful information about the camp. It includes a reproduction of the camp newspaper, a timeline, historical material, and best of all, copies of 30 personal stories of individuals who were housed in the camp.

I forced myself to read all thirty stories. Here are two of my favorites. The first offers a glimpse of life in the camp.
Name: M. Nagano
Family Number: 1046
Address in Manzanar: 6-11-5

... The night of Dec. 7, 1941, the day Pearl Harbor was bombed, the FBI took my father in custody as a "dangerous enemy alien" and he consequently lost his business. I was 16 when Pearl Harbor was bombed, and the FBI took my father away.... There were eventually reports in the daily newspapers that the government would remove us from the West Coast. My younger brother was 14 and would not believe that it could happen to us, because we were American citizens.... My father had begun building a new home for us in October 1941. We moved into the house in January 1942 and lived there only two months before we had to leave for Manzanar. My mother was so upset that we packed all of our personal things in boxes and left everything.... We went by train and bus to Manzanar on April 2, 1942.... I had envisioned Manzanar as a camp of little white cottages for each family, like the cottages at Sequoia National Park where we had stayed during vacations. I can still vividly recall my dismay as we pulled into Manzanar off the highway at dusk and saw rows of black, tar-papered barracks ... our home for an indeterminate future. We were registered and then given canvas ticking bags.... We walked to our apartment which we were to share with another couple and their 2 year old son.... My younger brother and I spent our days walking around the perimeter of the camp, looking out at the highway and watching the cars go by and spending time with friends until school was finally established in October.... Our classrooms were in a whole block set aside for the school. We sat in the unheated rooms on the linoleum floor, with no furniture, no textbooks, or supplies at the beginning. I remember one day in particular when we were handed fliers with the Bill of Rights listed on Bill of Rights Day; it caused an angry exchange between the teacher and some of the students.
The second offers broader ruminations about the meaning of the Japanese internment camps for American democracy.
Name: S. Embrey
Family Number: 2614
Address in Manzanar: 20-3-1

... I think Manzanar should stand as a symbol of something that happened in America; had happened before and could happen again. It takes people who are aware of the past to make sure it doesn't get repeated in the future. But also, it's a strength of the American government and American democracy that we were given an apology and we were told that it was a mistake; that we were loyal citizens and law abiding parents and that it was not good for the government and American democracy to do this. We should all be vigilant. Liberty is something very precious we all need to work for and to strengthen. Telling the world that the government is willing to apologize, I think, indicates the strength of our democracy.

Wednesday, February 22, 2006

Justice Scalia on Foreign Law and the Constitution

In a speech at the American Enterprise Institute on Tuesday, Justice Scalia took aim once again at the use of foreign law to interpret the Constitution. While freely admitting that 18th Century English law is relevant to that exercise, he denied that modern foreign legal materials ever are. And in response to a question from Professor Julian Ku, he extended his position to reject the relevance of international law as well.

As he did at the 2004 annual meeting of the American Society of International Law, Justice Scalia pointed out that foreign law is often invoked selectively. Yes, a great many nations do not allow the execution of minors, but a great many also criminalize abortion. Scalia also linked the use of foreign legal materials to what he called the “living Constitution paradigm.” Invoking Justice Holmes, he characterized the law of international human rights as the new “brooding omnipresence in the sky,” portending a return to what Scalia called the “bad old days before Erie.”

During a panel discussion that followed Justice Scalia’s speech, Tom Goldstein (SCOTUSblog) suggested that the current debate over the use of foreign law is a proxy for the debate over originalism. Breyer and other believers in the “living Constitution” are willing to look to foreign materials to help them fashion solutions for modern problems, while Scalia rejects such materials because he believes that all the answers must be found in the original understanding.

If Goldstein is right, a curious thing about this debate is that rejection of foreign and international law is associated with originalism. The “bad old days before Erie” included the 18th Century world of the Framers. They believed in a “brooding omnipresence in the sky” called the general common law, of which the law of nations was a part. The original understanding was that this law of nations was part of U.S. law in myriad ways, and as Professor Sarah Cleveland has shown in her thoroughly researched article “Our International Constitution”, the use of international law to interpret the Constitution stretches back to the Marshall Court.

Perhaps, then, it is really Justice Breyer who is being faithful to the original understanding of foreign and international law’s place in our constitutional system and its relevance to constitutional interpretation and Justice Scalia whose break with that tradition represents--dare I say it--“living Constitutionalism.”

Spanish Prosecutor Wants 9/11 Conviction Quashed

Spain's Public Prosecutor has urged the Spanish Supreme Court to quash the conviction of Imad Eddin Barakat Yarkas, sentenced last year by a lower court to 15 years in prison for "conspiracy to commit terrorist murder" in connection with the September 11. The lower court concluded that sufficient evidence exists to prove that Yarkas helped an al Qaida cell in Hamburg draw up the plan to attack the World Trade Center, but the Public Prosecutor agrees with Yarkas' attorneys that "[t]he evidence considered by the court... is weak and inconsistent... and does not fulfil the level of requirement that it must reasonably and necessarily meet to persuade and convince." (The Public Prosecutor did encourage the Supreme Court to uphold Yarkas' conviction for being a member of al-Qaida.)

If the Supreme Court agrees with the Public Prosecutor, it will mean that a high-profile trial of 24 alleged al-Qaida members in Spain last year ultimately failed to convict anyone in connection with 9/11. Three of the 24 defendants were accused of 2,973 murders in connection with the attacks -- charges that carried potential jail terms of more than 74,000 years -- but were acquitted last September by Spain's High Court. (18 of the 24 defendants were convicted of other charges, in most cases being members of al-Qaida.)

Interestingly, the Public Prosecutor urged the Supreme Court to uphold the conviction of Tayseer Alouni, an al-Jazeera journalist who was sentenced to seven years for collaborating with al-Qaida. His conviction -- which was based almost exclusively on the fact that he interviewed Osama bin Laden not long after the 9/11 attacks -- has been fiercely criticized the by media organizations such as Reporters Without Borders.

Justice Scalia on the Role of Foreign Authority

Justice Scalia was the keynote speaker yesterday at the American Enterprise Institute on the subject of the role of international law in American courts. The agenda for the full program, which included Julian Ku and guest blogger Bill Dodge, is available here. The speech is available on C-Span here (via How Appealing).

Here is an abstract of his speech:
  • Foreign law is relevant in the interpretation of treaties (Real Player, 2nd minute)
  • Foreign law is relevant to the meaning of a statute, or where the issue for resolution depends on an understanding of foreign law (3rd minute)
  • Foreign law is relevant to rebut “sky is falling” arguments regarding a proposed practice where that practice has been successfully adopted in other jurisdictions (5th minute)
  • “Old” foreign law is relevant to understand the original meaning of the Constitution. (6th minute)
  • Modern foreign legal materials are never relevant and occasionally (i.e., Printz) the Court has adopted this approach (7th minute)
  • The Court has increasingly relied on foreign law in Eighth Amendment jurisprudence (9th minute)
  • Recently the Court has expanded the reliance on foreign law beyond the Eighth Amendment as in the case of Lawrence v. Texas (11th minute)
  • Use of foreign law will continue at an accelerated pace because of (1) living constitutionalism (12th minute); (2) “because it is there” and the Court needs analytical tools for philosophical conclusions (18th minute); and (3) foreign authority increases the scope of judicial discretion, not unlike the use of legislative history (21st minute)
  • “One who believes that it falls to the courts to update the list of rights guaranteed by the Constitution tends to be one who believes in a platonic right and wrong in these matters which wise judges are able to discern when the people at large cannot.” (14th minute)
  • “This notion of an overarching moral law that is binding upon all of the nations of the world and that judges of all the nations of the world are charged with interpreting has replaced the [pre-Erie] common law.” (15th minute)
  • Human rights law is the new brooding omnipresence in the sky. (16th minute)
  • The Court has selectively chosen when to use foreign law. Abortion law does not reference foreign authority. “I will become a believer in the ingenuousness, though never in the propriety of the Court’s newfound respect for the wisdom of foreign minds when it applies that wisdom in the abortion cases.” (22nd minute)
  • Founders did not aspire to emulate Europeans (24th minute)
  • Civil law countries have adopted practices very different from our own (25th minute)
  • “Few of us would want our life or liberty subject to the disposition of French or Italian criminal justice, not because those systems are unjust, but because we think ours is better. What reason is there to believe that other dispositions are so obviously suitable to the morals and manners of our people that they can be judicially imposed through constitutional adjudication.” (27th minute)

As reported here and here, the question period was disrupted by hecklers and protesters. There were a few serious questions, and they included the following exchanges:

  • Q. (Bill Dodge, Hastings) “The Framers believed there was a brooding omnipresence in the sky, it was called natural law, it lay behind the general common law and the law of nations. By saying that it is no longer valid as a source after Erie, aren’t you being anti-originalist or worse yet, a living constitutionalist?” A: I believe in natural law, but the issue is whether the people or the courts adhere to it and adopt it. It isn’t a fight of natural law people vs. non-natural law people, but who enacts it. (29th minute)
  • Q. (Julian Ku, Hofstra, Opinio Juris) Do you make a distinction between international and foreign law? When you say foreign authority do you mean both international law and the domestic law of foreign countries? A. Yes, except for international law to which we have subscribed. (40th minute)
  • Q. (Tom Goldstein, Goldstein & Howe, SCOTUSblog) Minimum levels of rationality are included in the Constitution. What are your thoughts of looking to the experiences of other countries that have considered similar questions on issues such as irrational discrimination under the 14th Amendment? A. No, I don’t think there is much difference between a foreign court saying something is stupid and it saying that it is really stupid. My decision should be based on our text and our traditions. (41st minute)
  • Q. (Michael Greve, AEI): The biggest supporters of international law in cases where you don’t like it are also the biggest opponents of using international law where you would use it (such as interpreting the Warsaw Convention or determining whether the European Commission is a tribunal). Can you speculate why international law aficionados’ enthusiasm wanes in such cases? A. I’m not sure it breaks out quite that cleanly. I don’t think there is any correlation. (47th minute)

Tuesday, February 21, 2006

US Involvement in Croatian War Crimes?

When I wrote last week about the EU’s threat to suspend membership talks with Serbia if it does not find General Ratko Mladic and turn him over to the ICTY -- which it looks like it is about to -- I noted that the EU had successfully pursued a similar strategy to prod Croatia to arrest General Ante Gotovina, accused of being responsible for the murder of at least 150 Serbian civilians and the eviction of more than 150,000 Serbs from the Krajina region in August, 1995. As it turns out, Croatia might not have been the only state less than enthusiastic about bringing Gotovina to justice; according to a disturbing recent report in Spiegel Online, the US might have been reluctant as well -- because it helped Gotovina plan and carry out the Krajina offensive:

Croatian military sources told SPIEGEL that Gotovina had direct though secret support from both the Pentagon and the Central Intelligence Agency in planning and carrying out the "Storm" offensive, which was designed to retake the Krajina region from the Serbs. The International Criminal Tribunal for the Former Yugoslavia (ICTY) behind chief prosecutor Carla del Ponte has charged Gotovina and the late Croatian leader Franco Tudjman with committing a "joint criminal undertaking" with the goal of ethnically cleansing the Serbs from Croatia.

In preparing for the offensive, Croatian soldiers were allegedly trained at
Fort Irwin in California and the Pentagon purportedly aided in planning the operation. Additional training assistance is said to have come from the American firm Military Professional Resources Incorporated. Immediately prior to the offensive, then-Deputy CIA Director George Tenet allegedly met with Gotovina and Tudjman's son -- then in charge of Croatian intelligence -- for last minute consultations. During the operation, a US aircraft is said to have destroyed Serbian communication and anti-aircraft centers and the Pentagon allegedly passed on information gathered by satellite to Gotovina.

Spiegel also reports – even more sensationally – that then-President Clinton was aware of and condoned Gotovina’s intentions:

Earlier this month, the Zagreb weekly Globus, claiming sources within Gotovina's defense team, alleged that then US President Bill Clinton knew all about the planned offensive. Clinton, the paper alleged, was angry at the Serbs for having overrun the UN protected Bosnian "safe area" of Srebrenica the previous month and wanted them punished.


Gotovina has pled not guilty to the war crimes charges levied by the Hague tribunal. News reports have indicated that Gotovina's lawyers may be planning to rest his defense on the American participation in the offensive.

Because these allegations come courtesy of Gotovina’s defense team, it's easy to dismiss them as self-serving. They're given credence, however, by the fact that -- according to Spiegel -- an American lawyer, Greg Kehoe, has joined the defense team at the insistence of the Pentagon.

It remains to be seen whether, in light of Kehoe’s participation, Gotovina's the-US-let-me-do-it defense goes ahead as planned. Kehoe is a distinguished attormey; before entering private practice, he spent five years as an ICTY prosecutor and served as an advisor to the Iraqi Special Tribunal. So he can hardly be accused of being soft on war criminals. Then again, he's now on a defense attorney. Stay tuned…

NOTE: A grateful tip of the hat to Professor Charles Bobis of St. John's School of Law for alerting me to the Spiegel article.

Big Changes at Opinio Juris

It is a week of transition here at Opinio Juris, as we prepare to migrate to a new and much improved location in the blogosphere. After finishing our first year here on blogger, we will emerge next week fully loaded at, a new site that will have added functionality and subject matter searchability. If you are signed up for the RSS feed from the blogger address, please be sure to register for the new feed.

As we tweak the features of the new site, we will post to both locations. Please check out the new site and let us know (via email or comment below) if you have ideas for improvements or features you would like to see added. And, as always, check this space for updates.

O Centro Espirita and Charming Betsy

The Supreme Court today rendered an important decision in Gonzalez v. O Centro Espirita concerning religious practices that are in violation of statutory and treaty obligations relating to controlled substances. The discussion of the treaty obligation is quite short:

Before the District Court, the Government also asserted an interest in compliance with the 1971 United Nations Convention on Psychotropic Substances …. The Convention, signed by the United States and implemented by the Controlled Substances Act, calls on signatories to prohibit the use of hallucinogens, including DMT. The Government argues that it has a compelling interest in meeting its international obligations by complying with the Convention.

The District Court rejected this interest because it found that the Convention does not cover hoasca…. The court reasoned that hoasca, like the plants from which the tea is made, is sufficiently distinct from DMT itself to fall outside the treaty…

We do not agree. The Convention provides that “a preparation is subject to the same measures of control as psychotropic substance which it contains,” and defines “preparation” as “any solution or mixture, in whatever physical state, containing one or more psychotropic substances.”… Hoasca is a “solution or mixture” containing DMT… [T]he UDV seeks to import and use a tea brewed from plants, not the plants themselves, and the tea plainly qualifies as a “preparation” under the Convention.

The fact that hoasca is covered by the Convention, however, does not authomatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs…. We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under RFRA invocation of such general interests, standing alone, is not enough.

This is quite a significant holding, although difficult to apply to other statutes. The case suggests that mere invocation of Charming Betsy is not enough to satisfy the compelling interest requirements under RFRA. RFRA expressly requires the Government to establish a compelling interest and utilize least restrictive means to further that compelling interest. In that context, application of the Charming Betsy doctrine is problematic to apply because reconciliation of the international law obligation is not enough. One does not simply interpret RFRA consistent with international law obligations, one establishes that the statutory burden is satisfied because of international law concerns. Significantly, the Supreme Court did not say that compliance with international law is not a compelling state interest. It simply said that the Government had failed its evidentiary burden of establishing that this particular international obligation met that standard.

Related Links:
Charming Betsy and Psychedelic Tea

Wall Street Journal on Blogs and Law Reviews

Brandt Goldstein at the Wall Street Journal has an interesting article today addressing the current debate in the legal academy regarding the relative merits and demerits of law reviews and academic blogs. But in an interesting twist, he challenges the legitimacy of law reviews as much as engaging the current debate about the role of academic blogging. Here is an excerpt:
The focus of much current scholarship -- theoretical work with no real application for judges, practitioners, or policymakers -- has reduced the audience for it outside the legal academy. Hard statistics on law review readership are hard to come by, but anecdotal evidence suggests that practitioners simply don't pay much attention to them these days...

Twenty years ago, little outside of the occasional book or magazine article deflected attention from law reviews. Today, legal blogs are siphoning away the attention of law professors and lawyers on issues of the day. Blogs such as The Volokh Conspiracy, Opinio Juris, and SCOTUSBlog attract tens of thousands of readers and feature informed discussion on everything from constitutional theory to law-related television shows. Blogs now occupy so many professors, in fact, that at the American Association of Law Schools annual conference, a panel was held to debate the influence of blogs in the legal academic community....
The debate about law reviews isn't simply academic. Rather, the issue puts into question the role of what professors should do when they're not teaching. "Legal scholarship is at a crossroads," says Ethan Lieb, a young professor aiming for tenure at Hastings College of the Law in San Francisco. "The question we're asking is: Is our job to advance knowledge through contributions to academic journals, or is it to contribute to the public conversation about law?"
I find this article quite helpful. My impression is that in an ideal world law professors should participate in both academic and public conversations. I would hazard that most law professors hope to make a measurable difference in their chosen field, and to fulfill that objective requires determined engagement at multiple levels in multiple conversations. Amici briefs, op-eds, television commentary, blogs, teaching, conferences, public-oriented books, and formal scholarship are all part of a vibrant conversation about the contours of law and policy. For example, the current conversation about the role of foreign authority in constitutional interpretation is occurring at every level one can imagine, from Supreme Court confirmation hearings, to academic symposia, to friendly dinner conversation among informed lay people. There is no inherent reason why law professors should not engage that discussion at every level. And the luxury of academic life is that there is sufficient time to join in that conversation at multiple levels. Blogging is simply a particularly efficient manifestation of the public side of the conversation.
The article concludes by noting that Rosa Brooks at LawCulture has chosen to abandon law reviews for blogging and books. But I for one am more than happy to continue the conversation through the media of blogging, books, ... and law reviews.

No "Smoking Gun" at Saddam's Trial

A few days ago I mentioned a report that prosecutors had produced written orders by Saddam ordering the execution of 140 Shiites in Dujail in 1982 -- the proverbial "smoking gun." As it turns out, the documents are not so damning after all. According to the AP, the prosecution produced two documents at trial Feb. 13-14: one that shows Saddam signing off on bonuses for security agents who investigated the attempt on his life; and one that shows Saddam approved of death sentences for Dujail residents. Although both documents strengthen the prosecution's case, neither prove that that Saddam knew of or ordered the Dujail massacre:

Documents submitted last week include Saddam's approval of a recommendation allegedly made by Barzan Ibrahim, his half brother and co-defendant, to reward intelligence officers for their "confrontation against subversive and armed elements ... in the Dujail area."

However, that could simply be referring to their role in the gunfight that followed the attempt on Saddam's life in July 1982 -- or the rounding up of suspects who were later tortured and killed. Ibrahim was chief of intelligence in 1982.

Similarly, Saddam's approval of death sentences handed down by the Revolutionary Court against Shiites from Dujail could not prove incriminating unless there is compelling evidence that Saddam knew the defendants were railroaded.

Also, orders for arrests or transfers of detainees from one facility to another mean little unless the prosecution can prove that Saddam knew they would be tortured.

"There is nothing in these documents that show anything beside President Saddam exercising his constitutional authorities," said Khamis al-Obeidi, one of Saddam's retained defense lawyers. "As president, he ratifies death sentences and approves promotions."

The chief prosecutor, Ja'afar Moussawi, has promised to introduce an even more damning document -- a communication between Saddam and the intelligence agency -- when the trial resumes on February 28th. Stay tuned.

Monday, February 20, 2006

Torture, Memos, and Fig Leaves

Jane Mayer of The New Yorker has published an excellent article on the Administration’s attempts to thwart critics of its use of what can only be called torture on detainees in the War on Terrorism. It focuses in part on the experiences of Navy General Counsel Alberto Mora in trying to end such practices. The article is long and it is worth reading in its entirety. Following are a few excerpts I found particularly interesting in relation to the topics we discuss on this blog.

First up is an excerpt concerning the Yoo “Torture Memo”:

"The memo espoused an extreme and virtually unlimited theory of the extent of the President's Commander-in-Chief authority," Mora wrote in his account. Yoo's opinion didn't mention the most important legal precedent defining the balance of power between Congress and the President during wartime, Youngstown Sheet & Tube Company v. Sawyer. In that 1952 case, the Supreme Court stopped President Truman from forcing the steel worker's union, which had declared a strike, to continue producing steel needed in the Korean War. The Court upheld congressional labor laws protecting the right to strike, and ruled that the President's war powers were at their weakest when they were challenging areas in which Congress had passed legislation. Torture, Mora reasoned, had been similarly regulated by Congress through treaties it had ratified.

In an e-mail response to questions this month, Yoo, who is now back at Berkeley, defended his opinion. "The war on terrorism makes Youngstown more complicated," he said. "The majority opinion explicitly said it was not considering the President's powers as Commander-in-Chief in the theater of combat. The difficulty for Youngstown created by the 9/11 attacks is that the theater of combat now includes parts of the domestic United States." He also argued that Congress had ceded power to the President in its authorization of military force against the perpetrators of the September 11th attacks…

A little later, the article recounts that:

On February 6th, Mora invited Yoo to his office, in the Pentagon, to discuss the opinion. Mora asked him, "Are you saying the President has the authority to order torture?"

"Yes," Yoo replied.

"I don't think so," Mora said.

"I'm not talking policy," Yoo said. "I'm just talking about the law."

Fast forward to a few months ago. By now, Yoo’s memo has been repudiated. But then:

… Mora attended a meeting in Rumsfeld's private conference room at the Pentagon, called by Gordon England, the Deputy Defense Secretary, to discuss a proposed new directive defining the military's detention policy. The civilian Secretaries of the Army, the Air Force, and the Navy were present, along with the highest-ranking officers of each service, and some half-dozen military lawyers. Matthew Waxman, the deputy assistant secretary of defense for detainee affairs, had proposed making it official Pentagon policy to treat detainees in accordance with Common Article Three of the Geneva conventions, which bars cruel, inhumane, and degrading treatment, as well as outrages against human dignity. Going around the huge wooden conference table, where the officials sat in double rows, England asked for a consensus on whether the Pentagon should support Waxman's proposal.

This standard had been in effect for fifty years, and all members of the U.S. armed services were trained to follow it. One by one, the military officers argued for returning the U.S. to what they called the high ground. But two people opposed it. One was Stephen Cambone, the under-secretary of defense for intelligence; the other was Haynes. They argued that the articulated standard would limit America's "flexibility." It also might expose Administration officials to charges of war crimes: if Common Article Three became the standard for treatment, then it might become a crime to violate it. Their opposition was enough to scuttle the proposal.

In exasperation, according to another participant, Mora said that whether the Pentagon enshrined it as official policy or not, the Geneva conventions were already written into both U.S. and international law. Any grave breach of them, at home or abroad, was classified as a war crime. To emphasize his position, he took out a copy of the text of U.S. Code 18.2441, the War Crimes Act, which forbids the violation of Common Article Three, and read from it. The point, Mora told me, was that "it's a statute. It exists-we're not free to disregard it. We're bound by it. It's been adopted by the Congress. And we're not the only interpreters of it. Other nations could have U.S. officials arrested."

Not long afterward, Waxman was summoned to a meeting at the White House with David Addington. Waxman declined to comment on the exchange, but, according to the Times, Addington berated him for arguing that the Geneva conventions should set the standard for detainee treatment. The U.S. needed maximum flexibility, Addington said. Since then, efforts to clarify U.S. detention policy have languished. In December, Waxman left the Pentagon for the State Department.

(By the way, Cambone is the same person who’s notes from 9/11 were recently released in a FOIA request.)

This is just scratching the surface of this article; it is well worth reading the complete text.

We as Americans will constantly argue over the proper balance between law and policy, between national security and individual rights. But for this to be an honest discussion in pursuit of balance, then the idea of law has to actually mean something. If law and legal opinions are just a fig leaf, then we've lost more than just our innocence.

Court Dismisses Lawsuit Challenging "Extraordinary Renditions"

A New York federal court has dismissed the complaint by a Canadian who alleged he had been "rendered" to Syria by U.S. government officials in order to be tortured. Maher Arar had sued former U.S. Attorney General Ashcroft as well as a number of other U.S. officials alleging he has a right to damages under the Torture Victim Protection Act as well as for violations of his Fifth Amendment Due Process rights. The court, per Judge Trager, dismissed Arar's complaints on a variety of grounds.

(1) Arar's TVPA claim fails because the TVPA was intended to protect only U.S. citizens, U.S. officials here were not acting under the TVPA-required "color of foreign law" element, and because Congress has specifically refused to create a private right of action for complainants like Arar in other statutes.

(2) Arar's Due Process claims fail under an exception to the Bivens doctrine (which allows individual enforcement actions of constitutional violations). In cases implicating national security, courts may refuse to allow private enforcement actions of constitutional rights. As the court held:

[W]hether the policy be seeking to undermine or overthrow foreign governments, or rendition, judges should not, in the absence of explicit direction by Congress, hold officials who carry out such policies liable for damages even if such conduct violates our treaty obligations or customary international law.

The Court also dismissed Arar's other claims stemming from his detention in the U.S. but he can replead them excluding the claims about rendition.

The Center for Constitutional Rights, who are Arar's attorneys, are obviously unhappy (see their reaction here) and plan to appeal. But I think Judge Trager's decision is well reasoned and thoughtful. It also is going to be difficult to reverse on appeal because he relied on fairly narrow grounds for his holdings. Still, CCR has a decent shot at getting Counts 2 and 3 reinstated. Those counts turn on the scope of an alien's constitutional rights and his ability to enforce them. This is relatively new stuff without lots of really binding precedent.

Whether CCR should win on appeal, however, is quite another question. I have to say that I'm a bit torn. The facts alleged by Arar here are quite compelling. If true, then it seems a true injustice if he can't get a remedy somewhere for what happened to him.

On the other hand, extending constitutional rights (and the right to sue to enforce those rights) to every nonresident alien outside the U.S. would be a momentous and potentially revolutionary move. Every U.S. agent or soldier operating abroad might have to provide Fifth Amendment Due Process rights to foreigners they encounter. While you might say, not a big deal. The Constitution follows the flag, etc. But just wait for that flood of litigation from Iraq and Afghanistan ...

Welcome to Guest Blogger Bill Dodge

I'd like to welcome Professor Bill Dodge as a guest blogger at Opinio Juris. Bill teaches at UC Hastings College of Law and is an expert on international business and economic law, in particular the emerging law of NAFTA Chapter 11 disputes. He is co-author of one of the leading casebooks on transnational business law, and has also written extensively on extraterritoriality and the alien tort statute. His SSRN page is here. We look forward to Bill's contributions over the next couple of weeks.


Holocaust Denial and the Additional Protocol to the Convention on Cybercrime (Updated)

To follow up on Peggy's post about David Irving, it's worth noting that Article 6 of the Additional Protocol to the Convention on Cybercrime contains the following controversial provision:

1. Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right:

distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party.

Article 6 does, however, allow a Party to either

a. require that the denial or the gross minimisation referred to in paragraph 1 of this article is committed with the intent to incite hatred, discrimination or violence against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors, or otherwise

b. reserve the right not to apply, in whole or in part, paragraph 1 of this article.
28 Member States of the Council of Europe (and Canada, a non-Member) have signed the Additional Protocol. Notable exceptions include the UK, Italy, Spain, and Russia. Four Members -- Albania, Cyprus, Denmark, and Slovenia -- have ratified the Additional Protocol, one short of the number needed for it to enter into force.

The US is a signatory to the Convention on Cybercrime itself, but has refused to sign the Additional Protocol on First Amendment grounds.

Although I am Jewish and lost family in the Holocaust, I'm with the U.S. on this one. In my view, laws criminalizing speech invariably do more harm than good, because they turn minor figures into martyrs and disseminate their repulsive beliefs far more widely than would be the case otherwise. Irving is a case in point; according to the AP,
Irving's lawyer, Elmar Kresbach, said last month the controversial Third Reich historian was getting up to 300 pieces of fan mail a week from supporters around the world and was writing his memoirs in detention under the working title "Irving's War."
UPDATE: Irving has been sentenced to three years in prison. Although the sentence could certainly have been more severe, it's still disappointing that the court felt it was necessary to incarcerate him. I don't know what other options were available under German law -- readers? -- but it seems to me that some combination of fines, public statements, and community service would have been more appropriate punishment.

LATER UPDATE: Irving has announced his intention to appeal the sentence, saying he is "shocked" by its severity.

David Irving Pleads Guilty in Austria to Holocaust Denial

London Times correspondent Roger Boyes has posted these interesting observations about the goings on in the Vienna courtroom where Briton David Irving pled guilty this morning to the criminal charge of denying the Holocaust. Irving faces up to ten years in jail for speeches he gave in Austria in 1989 in which he claimed that the Holocaust never happened:

It's becoming like a free speech seminar. You've got al-Jazeera here, you've got Jyllands-Posten [Danish newspaper], all the people affected by the cartoon war. Everyone one is asking why it's taboo to attack the Holocaust but not to attack the Prophet Muhammad. But the case is being fought on the detail of what he said, testing whether he's really retreating, whether his apologies are really worth anything, whether we can believe in Irving's remorse.

Mr Irving arrived with a phalanx of black-shirted riot police 20 minutes before the trial started, held up his book, Hitler's War, and basically held an impromptu press conference in which he dismissed the trial as ridiculous, saying it was 16 or 17 years since he made these comments.

When he got into court, the audience was a mixture of law students, concentration camp survivors and right-wing sympathisers - including a couple from Britain. But there was no unruliness.

Irving walked in with a swagger but soon ended pushed up against the wall in cross-questioning by the judge that forced him to apologise or express regret for almost every utterance he had made over the past 20 years. He admitted saying in 1989 that there were no gas chambers in Auschwitz. But he is saying that since he saw various documents in 1992 he has changed his mind and now accepts that Jews were killed.

It's a jury trial and Irving keeps on making references to his daughter, hoping that he will get a suspended sentence so he can leave Austria tonight. But the judge is pushing him all the time, demanding apologies - he's being even tougher than the prosecutor.

The essential weakness of Irving's case is that the libel case in London, which finished in 2000, showed him even then to be a distorter of the historical truth and exposed lots of his arguments as false. So it's hard for him to claim that he stopped being a Holocaust denier back in 1992.

So he's pleaded guilty and is claiming that he's changed his spots. The judge, through his tough questioning, is trying to challenge that - and, in so doing, is trying to influence the jury to impose a custodial sentence.

Sharia Law in Britain

This story coming out of Britain is quite amazing: "Four out of 10 British Muslims want sharia law introduced into parts of the country, a survey reveals today.... Islamic law is used in large parts of the Middle East, including Iran and Saudi Arabia, and is enforced by religious police. Special courts can hand down harsh punishments which can include stoning and amputation. Forty per cent of the British Muslims surveyed said they backed introducing sharia in parts of Britain...."

Saddam Could be Executed "Soon"

The chief prosecutor in Saddam Hussein's trial said yesterday that Saddam could be executed "within months" if he is convicted -- which seems increasingly likely. Article 27 of the IST Statute provides that all sentences "must be executed within 30 days of the date when the judgment becomes final and non-appealable."

The prosecutor's statement contradicts the assertion of some commentators that the Tribunal would stay any judgment in the Dujail case to allow Saddam to be tried for far more serious crimes, such as the ethnic cleansing of Kurds in northern Iraq in 1988, which is estimated to have killed as many as 182,000 people. According to the prosecutor, Ja'afar Moussawi, "[o]nce one of the accused on the Dujail case... has been sentenced to death, then he won't be tried on other charges. Other charges will automatically be dropped against that particular defendant, even if the case itself is brought against others."

Iraq would not violate international law by executing Saddam. According to Article 6(2) of the International Covenant on Civil and Political Rights,

[i]n countries which have not abolished the death penalty, sentence of death may be imposed... for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

Nevertheless, as currently written, Article 27 of the IST Statute does violate international law. The Article prohibits any government authority, including the President of Iraq, from "grant[ing] a pardon or mitigat[ing] the punishment issued by the Court." Article 6(4) of the ICCPR, however, specifically provides that
Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

Iraq is a party to the ICCPR.

A Million Tiny Holes in the Chinese Firewall

The Washington Post has published a wonderful article on the Chinese government's failing attempt at Internet censorship. The overwhelming impression of the article is that, try as they might, the Chinese government is not going to be able to effectively censor information on the Internet. There are so many channels of information that the Chinese censors are flailing.

The article is consistent with other information I have heard on the same subject. Following my earlier post about Microsoft's role in facilitating Chinese censorship, I was contacted by a very prominent technology expert who has traveled to China and follows the issue of Chinese censorship quite closely. In a long telephone conversation, his short summary was that the Chinese information network is very sophisticated and that information flows are extraordinarily complicated. The tools of the trade are legion, and include word of mouth, physical transmission of data, aviation information couriers, the Internet, text messaging, emails, and instant messaging. Then he said something quite interesting: the Chinese government censors know they have lost the battle. But they are easing toward a transition of freedom of information. They censor newspapers, stop a blog here and there, shut down sites, reopen them, etc. It is all a cat-and-mouse attempt to encourage self-censorship.

But there are a million tiny holes in the Chinese firewall. With over 100 million Internet users in China, how can they stop it? It is only a matter of time before the wall breaks. And when the information firewall breaks, one can only imagine what true freedom of the press will wrought for politics in China.

Go read the article. It will leave you quite encouraged.

Sunday, February 19, 2006

UN Criticizes Switzerland for Amending its War Crime Law

According to SwissInfo, the United Nations is upset with Switzerland for amending its Code pénal militaire suisse to restrict the country’s ability to prosecute war crimes committed abroad. Article 2 of the Swiss Military Penal Code provides that military tribunals have jurisdiction over civilians or members of foreign forces who commit violations of international law during armed conflict. Prior to the disputed amendment, that jurisdiction was effectively universal; Article 9 expressly provided that Code applied to both violations committed in Switzerland and those that have been committed abroad:

This code applies to offences committed in Switzerland and to those which have been committed in a foreign country. Any custodial sentence served in a foreign country in respect of the offence being prosecuted in Switzerland will be deducted from the sentence given.

The recent legislation amends Article 9 to permit jurisdiction over war crimes committed in a foreign country only when the perpetrator has a “close link” to Switzerland, such as owning property or having family in the country. Holding a Swiss bank account or being present in Switzerland on vacation will no longer suffice.

Although the Swiss Foreign Ministry has insisted that the new Article 9 merely codifies existing Swiss practice, Amnesty International notes – in an unbelievably comprehensive report on universal jurisdiction, including a global survey of national legislation on the subject – that Swiss prosecutors were traditionally willing to open a criminal investigation into foreign war crimes when the suspect was believed to be in Switzerland. Presumably, suspected presence is no longer enough to trigger an investigation; present or not, the suspect must also have the “close link” required by the new Article 9.

New Article 9 also seems to contradict Switzerland’s obligations under the Geneva Conventions and Protocols I and II, all of which Switzerland has ratified. States that are party to the Conventions and Protocols are required to search for a person suspected of grave breaches of the Conventions and of Protocol 1 and either (1) prosecute him in the appropriate national court, (2) extradite him to a state party willing to do so, or (3) surrender him to an international criminal court:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided that such High Contracting Party has made out a prima facie case.

Under the Geneva Conventions, grave breaches involve the following acts, inter alia, when committed in connection with an international armed conflict against protected persons or property: wilful killing; torture or inhuman treatment; extensive destruction and appropriation of property not justified by military necessity; compelling a POW or otherwise-protected person to serve in the forces of the hostile power; and unlawful deportation or transfer of a protected person.

Protocol I, in turn, provides that grave breaches of the Geneva Conventions are grave breaches of the Protocol if committed against other kinds of protected persons, such as refugees and medial personnel, and extends the Conventions’ list of grave breaches to include, inter alia, harming the physical or mental health of protected persons, apartheid, delayed repatriation of POWs, and attacks on cultural property.

The obligation to search for persons suspected of grave breaches is not limited to the territory of the state party. It includes territory occupied by the state party; territory where the state party has peace-keepers, and the high seas, as well.

It is also worth noting that customary international law may impose a similar obligation on states to prosecute or extradite (aut dedere aut judicare) war crimes committed during international armed conflicts that do not qualify as grave breaches. In 1973, the General Assembly declared that

war crimes… wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and if found guilty, to punishment.

Article 9 of the ILC’s 1996 Draft Code of Crimes likewise provides that “the State Party in territory of which an individual alleged to have committed a [war] crime shall extradite or prosecute that individual.”

Finally, the Preamble of the Rome Statute states that because “the most serious crimes of concern to the international community as a whole must not go unpunished and… their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,” it is “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” (Switzerland is a party to the ICC.)

International law scholars in Switzerland are optimistic that the Swiss government will heed the UN’s plea to reconsider new Article 9. If it does, it will be a major victory for international criminal law. Switzerland has long been one of the few states – along with Australia, Austria, Belgium, Canada, Denmark, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, the UK, and the US willing to invoke universal jurisdiction to investigate and prosecute serious international crimes. In 1999, in fact, Switzerland became the first state to successfully prosecute a Rwandan for atrocities when a Swiss military tribunal in Lausanne convicted Fulgence Niyonteze, the former mayor of Mushubati, for various breaches of the Geneva Conventions and Protocol II. If Switzerland retreats from universal jurisdiction over war crimes now, therefore, the damage – real and symbolic – could be incalculable.