I will be spending most of the next two months in Europe, with the following itinerary:
If any OJ readers in those cities — students, academics, activists, etc. — would like to meet for coffee or a drink, please don’t hesitate to contact me: k.heller@auckland.ac.nz.
In the Wall Street Journal editorial Ken mentions below, Goldsmith and Posner argue — in defense of their thesis that Europeans ignore international law if it is not in their interest to obey it — that “when nations led by Europe created the International Criminal Court (ICC), they purported to limit the Security Council’s power to delay or halt ICC trials, also in disregard of the U.N. Charter, which states that Charter obligations trump the requirements of any other treaty.” That argument misunderstands both the ICC and the UN Charter. Goldsmith and Posner seem to be referring to Article 103 of the Charter, which provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” As numerous scholars have pointed out, however, the ICC is not a “Member of the United Nations”; it is an independent international organization with a legal personality that is distinct from the legal personality of the Member States that created it. The Security Council thus has no authority to interfere with the ICC beyond the authority specifically given to it by Article 16 of the Rome Statute — in which case the Security Council’s limited ability to “delay or halt ICC trials” is in no way “in disregard of” Article 103…
I have posted a new essay on SSRN, a draft chapter of a book that Markus Dubber and I are editing for Stanford University Press entitled “The Handbook of Comparative Criminal Law.” In addition to my chapter, which is something of an outlier, the book contains 17 chapters on the substantive criminal law of individual countries. We have attempted to include a wide variety of national legal systems, including (inter alia) Argentina, Japan, China, Russia, India, Iran, Spain, Egypt, and South Africa.
Here is the abstract of my chapter…
The ICC has been holding a competition to determine which architecture firm will build the Court’s permanent home. Yesterday, the jury selected three winners. Here they are, from first place to third place…
The University of Auckland magazine recently published a copy of the university’s 1918 final exam in public international law. I have only the vaguest recollection of the exam I took, but I it wasn’t this hard. (Exhibit A: I didn’t fail.) Have academic standards really declined so precipitously?
How would you fare, readers?
The Institute for War & Peace Reporting has an interesting report today on the Ugandan government’s efforts to prosecute Kony and other LRA members in a special domestic court. According to the IWPR’s report, the problem is not the lack of political will, but the potential retroactivity of the legislation necessary to make the Rome Statute’s core crimes — war crimes, crimes against humanity, and genocide — punishable under domestic Ugandan law:
ICC judges will examine the cases against the rebel Lord’s Resistance Army, LRA, suspects to determine if they should go ahead, as well as to decide if they can be prosecuted in Uganda’s proposed special court – which was reportedly established after LRA leader Joseph Kony refused to face trial in The Hague.
However, analysts point out that Uganda’s lack of legislation to prosecute war crimes is a clear obstacle to putting Kony and his men on trial in the country.
At the centre of the matter lies a bill that has been languishing in Uganda’s parliament since 2004. The legislation proposes to make the crimes of the Rome Statute – which underpins the rules of the ICC – punishable under Ugandan law. If passed, it would allow the country to prosecute war crimes and crimes against humanity, including genocide…
Anyone who still doubts that the ICC’s pursuit of Bashir is unnerving the Sudanese government should take a gander at this article:
An interview with published by Sudan official news agency (SUNA) with British Foreign Secretary David Miliband yesterday is fabricated, according to a statement by the British embassy in Khartoum.
“The statements that SUNA news agency attributed to the Foreign Secretary David Miliband on November 19 are completely inaccurate” the embassy spokesperson said in a statement.
“The Foreign Secretary did not give any interview to SUNA. Nor did he speak about Sudan in the terms described during his recent visit to Damascus” the spokesperson added.
SUNA’s reporter in Damascus quoted Miliband as saying in an interview that London and Paris are working together to introduce a UN Security Council (UNSC) resolution deferring International Criminal Court (ICC) indictment of Sudanese president Omer Hassan Al-Bashir.
“The UK supports the international efforts undertaken in the UNSC aiming to suspend a decision by the International Criminal Court (ICC) to Sudanese president Omer Hassan Al-Bashir for another year” Sudan’s state agency quoted Miliband.
“We realize that these international measures will not solve the crisis but will complicate it even further and may be put the future of peace in Sudan on the brink of collapse” he added.
But the British embassy stressed that UK policy regarding on the ICC is “unchanged”.
I’m not sure what’s more pathetic: fabricating a foreign official’s statement or thinking that you’d get away with it. Either way, it’s clear that Bashir is becoming increasingly desperate to stave off his indictment. Perhaps he knows something we don’t?
Salon.com has an article today about the Obama administration and torture that floats the horrifying possibility — all too real, I’m sure — that Bush will issue a blanket pardon for “anyone who participated in, had knowledge of, or received information about Bush’s interrogation program during the so-called war on terror.” I’m not going to waste precious pixels responding to that possibility; Jonathan Turley said it all when he told the Salon reporter that such a pardon “would allow a president to engage in massive illegality and generally pardon the world for any involvement in unlawful activity.” I’m more interested in one law professor’s rationale for favoring a blanket pardon — that it would make it easier for a truth and reconciliation commission (TRC) to function effectively:
There are, in fact, some constitutional scholars who believe a pardon might actually facilitate more complete participation in a fact-finding commission, by removing the threat of looming liability. “Holding people accountable is certainly nice, but in terms of healing the country and moving forward, so is actually getting a clear picture of what happened and letting the public make an informed decision,” said Kermit Roosevelt at the University of Pennsylvania Law School. “If we had a pardon followed by something like a truth and reconciliation commission, that might not be such a bad outcome.”
I have the utmost respect for Professor Roosevelt, but this statement completely misunderstands the nature of a TRC…
The AP is reporting that the Trial Chamber lifted the stay “after the prosecution agreed to let judges review confidential material it received from the United Nations.” No additional information is available yet; it will be interesting to see what the Chamber does about the documents that are still protected by confidentiality agreements — an issue I discussed here.
UPDATE: According to Galway’s Niamh Hayes, who was at the status conference, “[t]he prosecution has made a complete turn-around and agreed to make all the confidential information available, seemingly without restriction, to both the Chamber and the defence. The Chamber have already had the chance to review it, and it will be released to the defence later this week.” If so, this is a significant victory for the defense (although I’m sure it would have been happier if the Court just let Lubagna walk) and an even more significant victory for the Trial Chamber, which will have left no doubt that it — and not the OTP — has the final say over what evidence the defense is entitled to receive.
John has kindly agreed to let me post his private response to my previous post about his speech at the Fletcher School. Before I do, though, I want to reiterate how important it is to not let the US’s refusal to join the ICC blind us to the many significant contributions the US has made, and continues to make, to international criminal justice — and that includes the ICC. I’ll just mention two ICC contributions here. First, the Elements of Crimes exist only because the US insisted on them. Those Elements represent a significant advance for international criminal law, lending the crimes within the jurisdiction of the Court a precision that goes a long way toward satisfying the principle of legality. Second, as I have pointed out before — and as John expands on below — the US has played an extremely important role in promoting the ICC’s work in Darfur, not least by publicly announcing its intention to veto any attempt to defer Moreno-Ocampo’s investigation of Bashir.
Enough context. Here is John’s response…
The State Department has posted John Bellinger’s recent speech at the Fletcher School on international criminal justice. It is well worth a read, because it quite rightly highlights the US’s many important contributions — past and present — to international criminal justice. That said, the speech regrettably dusts off all of the US’s tired objections to the ICC: not giving the Security Council (and the US, with its permanent veto) control over the ICC’s docket, not exempting Americans from the territorial jurisdiction of the Court, etc. It also contains a few assertions that I think are unsupportable, such as Bellinger’s claim that the Bush administration’s “unsigning” of the Rome Statute was not “a confrontational… rejection of the ICC,” but simply a mild-mannered attempt to clarify the US’s legal obligations toward the Court. Anyone want to buy a nice bridge?
The text of the speech is available here.
As most readers likely know, Germany recently arrested Rose Kabuye, the President of Rwanda’s chief of protocol, on behalf of France, who intends to prosecute her for being involved in shooting down then-President Juvenal Habayarimana’s plane, the event that triggered the Hutu-led 1994 genocide. It appears that Kabuye actually wants to be prosecuted, because it will give her — and by extension the Rwandan government — a public platform to discuss France’s role in the genocide. Indeed, the Rwandan government has announced that it intends to indict a number of high-ranking French officials for being complicit in the slaughter, including former Prime Ministers Dominique de Villepin and Edouard Balladur.
Both issues — whether Rwanda’s ruling party, the Rwandan Patriotic Front, assassinated Habyarimana and whether France helped enable the genocide — are extremely complicated, with more than enough room for reasonable people to disagree. That’s why Stephen Kinzer’s editorial in the Los Angeles Times yesterday is so disappointing. To read Kinzer, Kabuye’s arrest is little more than France’s last-gasp attempt to undermine Rwanda’s government and prevent Rwanda from defecting to the British Commonwealth…
In case you’re tired of stodgy old international law, you might want to check out a new blog written by Jay Wexler, a professor at B.U., a leading law and religion scholar, and — far more importantly — a friend of mine from law school. I’ve tried to think of how to capture the cleverness of Jay’s writing, but for once words fail me. So I’ll just quote the titles of the last few posts to give you a taste: “Hullaballoos Endorsement: Randy Moss for the Supreme Court,” “Memoir Monday: High School Dodgeball,” and my favorite, “Former Porn Screenwriter Weighs in on Scalia’s New Sex Phrase.”
Take a look!
I have often argued that suspending the ICC’s investigation of Bashir in the name of “peace” would be a mistake, because Bashir has taken peace seriously only when faced with the prospect of significant international sanctions. Today Michelle F. at Stop Genocide makes that argument far better than I ever could. Here is a taste:
Yes, we are talking about millions of lives, but who’s to say those lives will be saved if the indictment is suspended? The dynamics of power that are slowly shifting out of Khartoum’s favor would reverse course, encouraging the government to step up its efforts to crush the rebel movement in Darfur–to finish what it started, so to speak. And more often than not, civilians are targeted in the guise of “counterinsurgency measures.” Bashir and the NCP have been doing this ever since they took power in 1989, and an indictment suspension will be carte blanche for them to continue on their merry, gun-wielding, carpet-bombing ways.
Go read the entire post here.
Jews are no strangers to the idea of persecution and for years, Jewish groups have been at the forefront of the movement to save Darfur save Darfur, a region in western Sudan, which is awash in cultural genocide. Today, they join with Tents of Hope on the National Mall to show solidarity with the refugees of Janjaweed aggression.
Sixth & I has planned a few ceremonies to commemorate this day, including an inter-religious prayer service from 10 to 11 a.m. But November 9 isn’t just important due to the rally, it is also the 70th anniversary of Kristallnacht (Night of Broken Glass.)…
Let us hope that the actions of these groups today help to change the memory of November 9 from a time of hatred to a time of peace. In remembering the atrocities of the Holocaust and of Darfur, we can raise world consciousness and shout out with conviction, never again.
I wish I could have been there. If any of our DC readers were, your thoughts would be appreciated.
Two items of Sudan news to report. First, the Sudanese government has lawyered up, hiring the prominent British firm Eversheds LLP to represent it at the ICC. I wonder if that means Bashir is expecting the Pre-Trial Chamber to issue the arrest warrant; although Article 19 of the Rome Statute is not the picture of clarity, it seems to allow a State to challenge the admissibilty of a case only after a warrant has been issued.
Second, an official of the Sudanese government has announced that it has received approval from the IAEA to pursue nuclear power. I have nothing against using nuclear power to generate electricity, but the idea still bothers me. And it doesn’t make me feel much better that Sudan is a signatory to the Nuclear Non-Proliferation Treaty.
Today is the 70th anniversary of Kristallnacht, the Night of the Broken Glass, during which 92 Jews were murdered, 25-30,000 Jews were arrested and deported to concentration camps, and more than 200 synagogues and Jewish businesses were destroyed.
I was in Vienna for the 60th anniversary. Late that night, I was walking through the Heldenplatz, where Hitler announced the anschluss of Austria to the German Reichstag, on my way to a friend’s apartment. It was cold, damp,and foggy. As I approached the plaza, I saw four gigantic speakers standing in each corner. The same stentorian voice boomed from each speaker, reading the names of the Jews that died that night in an endless loop. The speakers were time delayed, so the voice overlapped with itself. In the center of the square was a row of viewfinders — modern versions of the View Master toys we enjoyed as kids. Inside the viewfinders were photos of the murdered Jews, the burning synagogues, and the destroyed businesses. It was an overwhelming experience, one that brought me to tears. The memory is as vivid today, ten years later, as it was the next morning.
Time magazine has a wonderful photo essay on Kristallnacht here.
UPDATE: Hands, meet brain. As Howard points out, Kristallnacht is not, in fact, the Night of the Long Knives, Hitler’s 1934 purge of the SA. I have edited the post accordingly. My German isn’t that bad…
UPDATE 2: At Volokh Conspiracy, Jim Lindgren has posted the fascinating — and disturbing — results of a 1938 Gallup poll about Europe’s Jews.
The Butare trial is the ICTR’s largest and longest — it began in June 2001, involves six defendants accused of genocide, and shows no signs of ending anytime soon. The trial is likely to go on even longer because two of the defendants, former Governor Alphonse Nteziryayo and ex-Mayor Elie Ndayambaje, are ill. And that comes not long after one of the prosecution’s key witnesses admitted that he perjured himself in 2004:
“I gave false testimony and I have highly regretted since then,” said prosecution witness code-named “QA” as everybody in the courtroom heard in complete disbelief, at least for the prosecution side. However, he did not elaborate what motivated him to lie before the UN Court.
The witness gave evidence before the International Criminal Tribunal for Rwanda (ICTR) on March 18, 22 and 23, 2004.
“I promise, this time I will speak the truth but previously I told lies,” insisted QA before the three-bench judges led by William Sekule of Tanzania. The rest of the hearing was in closed session.
The Chamber in its ruling dated 28 October, 2008, granted a motions filed by two accused — Joseph Kanyabashi, former Mayor of Ngoma commune and Sylvain Nsabimana, former Governor — who wanted to cross examine witness QA on additional topics as they had suspected that he had lied before the court.
It remains to be seen what effect QA’s perjury will have on the trial. The article implies that, at most, the additional cross-examination will slow the defense case. Seven years in, however, any delay is a bad sign. See, e.g., Milosevic…
Last month, I noted that the ICTR had formally reprimanded its Prosecutor for failing to disclose exculpatory evidence to the defense in the Military II trial. Now Jerome Bicamumpaka, the Minister of Foreign Affairs in the interim government who is accused of genocide, has made similar allegations:
Inspired by this sanction inflicted to the prosecution by another formation of judges, Bicamumpaka accuses the prosecutor of having hidden documents from him proving that the testimony for the prosecution of protected witness “GAP” was part of a plot conspired at the central prison of Ruhengeri, northern Rwanda.
In January 2004, GAP, thus designed to preserve his identity, had affirmed to have killed a Tutsi following an inciting speech which Bicamumpaka would have given during the swearing in of the new prefect of Ruhengeri, Basile Nsabumugisha, in April 1994.
Disputed by the defence, the presence of the defendant at this ceremony had also been reported by another witness, GFA. But the latter later reconsidered his allegations, explaining that he had given a false testimony which had been entirely assembled, with the complicity, according to him, inter alia, of the administration of the prison of Ruhengeri and GAP…
Remember the halcyon days of the election when Obama was a socialist and a marxist? Well, funny thing. According to the RNC, he’s actually a moderate Republican:
In all, with Barack Obama’s promises to cut taxes, merit pay for public school teachers, and renewed offshore drilling, I would say he simply ran the most successful moderate Republican presidential campaign since Dwight Eisenhower.
What do you think explains the volte-face? A crushing defeat at the polls, or the right rediscovering that handy little thing called a dictionary?
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