Author Archive for
Gregory Gordon

Garzon Goes After Another Pinochet

by Gregory Gordon

[This is a guest post by Professor Greg Gordon of the University of North Dakota.  Professor Gordon is the Director of the UND Center for Human Rights and Genocide Studies, an expert on international criminal law and a past guest blogger at Opinio Juris.]

Earlier this week, Spanish National Court Judge Balthazar Garzon initiated money laundering proceedings against the widow of deceased Chilean dictator Augusto Pinochet, as well as Pinochet’s former lawyer and two of his bankers. In connection with the probe, Garzon has ordered the suspects to post a $77 million bond, indicating the bond is to “cover whatever financial liabilities might arise” in his probe. The four suspects, along with Banco de Chile, have ten days to pay the bond. If they fail to pay, Garzon has threatened to seize from their bank accounts the amount of the bond, plus an extra third – a total of approximately $103 million. The order, which did not reveal where the accounts are held, is meant to extract payment to “cover whatever financial liabilities might arise” in Garzon’s probe.

Judge Garzon’s actions raise a slew of interesting legal questions, both substantive and procedural, as well as policy questions about the appropriate scope of universal jurisdiction. First, and most fundamentally, under what authority is Garzon proceeding?  Second, should money laundering be considered a “serious” violation of international law?

So Long and Thanks

by Gregory Gordon

I want to thank the folks at OJ for having me over the past two weeks. You have all made me feel at home and I’ve enjoyed it very much. I’ve especially appreciated the opportunity to discuss legal issues stemming from upheaval in the African Great Lakes region. Some of these issues have been on my mind for some time and it was fantastic to have a forum through which to express and develop them. It was even more meaningful given that, during my guest-blogging stint, there were significant related developments on the universal jurisdiction front, Rwanda notified the world that gacaca would soon come to an end, and Hillary Clinton announced a visit to DR Congo as the country became engulfed in yet another wave of cataclysmic violence. It was fascinating to see convergences between my thinking and related current events and to see how those current events were shaping my thinking as I struggled to put it all into words in real time. In that sense, the fortnight was quite energizing. And that feeling was only enhanced by opportunities to discuss other vital issues in the news such as asylum law and gender-crimes and the Sotomayor confirmation hearings. The reader comments related to my posts have been thoughtful and stimulating and I have learnt much from them. To sum it up, these two-weeks of international legal e-dialogue and cyber-camaraderie have been a true privilege. I hope I’ll have the chance to do it again. Good night and good luck.

The Strange Case of Laurent Nkunda

by Gregory Gordon

Until his arrest by the Rwandan military earlier this year, General Laurent Nkunda, a Congolese Tutsi and former chairman of the Congolese Congrès National pour la Défense du Peuple (CNDP), had been considered one of the key destabilizing figures in eastern Congo. Back in 2004, Nkunda and his rebel troops took control of the South Kivu town of Bukavu, claiming this action was necessary to stop the genocide of the area’s Banyamulenge (Congolese Tutsis) at the hands of the FDLR (see my previous post to learn about them). During the fighting, Nkunda’s troops, thought to be taking orders from Rwanda, reportedly carried out war crimes, killing and raping civilians and looting their property.

DR Congo indicted Nkunda the following year but he and his troops continued to prey on the civilian population of the Kivus. Early in 2007, as part of the demilitarization and reintegration process, combatants loyal to Nkunda were incorporated into the national army in a procedure called “mixage.” Unfortunately, the newly established “mixed” brigades killed scores of civilians and committed rapes and other abuses in their operations against the FDLR.

By the summer of 2007, the political agreements between the government and Nkunda had collapsed and many of Nkunda’s former troops returned to his control. Renewed clashes between CNDP troops and government soldiers followed. In the latter part of 2008, after a brief respite, Nkunda launched a new offensive against government forces that resulted in the eventual encirclement of Goma. The fighting forced more than a quarter of a million people from their homes.

In early January 2009, Nkunda was ousted from the CNDP by his Chief-of-Staff, General Bosco Ntaganda (who is himself under ICC indictment — see here –for Ituri-related war crimes). Nkunda was captured by Rwandan forces a couple of weeks later. And he’s been in Rwandan custody ever since. Soon after his incarceration, it appeared that Rwanda was engaging in serious discussions with DR Congo about extraditing him to face Congolese justice. But those talks seem to have petered out.

Critics claim that Rwanda is unwilling to hand Nkunda over to their former rivals and risk damaging revelations about its past close relationship with the accused war criminal. That perception seems to be corroborated by recent comments by Rwandan president Paul Kagame:

Responding to a question on the status of General Laurent Nkunda, President Kagame told members of the press that the former CNDP leader as an individual was not the main problem and that the current challenges being faced needed to be understood in a wider context of the root causes of conflict and instability in the region. He added that Rwanda and DRC are working closely together to appropriately resolve the issue of General Nkunda, and it should not derail the larger ongoing process of establishing peace, long-term stability and cooperation in development in the Great Lakes region.

Perhaps emboldened by such statements, Nkunda recently asked Kagame to free him (see here). And he claims that his erstwhile ally has neither informed him of the reasons for his arrest and detention nor allowed him to appear before a judge.

On top of all this, it would appear that, as mandated by Congolese law, the Nkunda indictment has not been “renewed” by a judge and has thus expired (and apparently, no arrest warrant was ever issued). Not only has Rwanda’s arrest and detention violated its own domestic law and international human rights obligations, it may not, in the end, even have authority to extradite.

So what now? If there is credible evidence that Nkunda is guilty of war crimes (and there appears to be a lot of it), DR Congo ought to renew or refile its indictment and issue an arrest warrant. If it fails to do so (or if it claims it cannot because its dysfunctional justice system lacks capacity), the ICC should step in and indict (pursuant either to Congolese self-referral, which has been the trend, or to a proprio motu investigation). Even in the absence of an indictment or arrest warrant, Rwanda may have a Geneva Convention duty to act under the principle of aut dedere aut judicare (Latin for extradite or prosecute), which obliges the custodial state to investigate and prosecute or extradite persons suspected of having committed grave breaches of the Geneva Conventions and Additional Protocol I, regardless of the nationality of the alleged perpetrator or place where the crime was committed.

On the other hand, Nkunda’s alleged crimes were seemingly committed as part of an internal armed conflict so it’s not clear if the grave breaches provisions would apply (then again, the conflict might be considered internationalized given the alleged involvement of Rwanda – the custodial state!). By the same token, it could be argued that aut dedere aut judicare is implicated when Common Article 3 is violated (regardless of whether it is considered part of the grave breaches regime – I think a violation of Common Article 3 is automatically tantamount to a grave breach – in contrast to the Bush administration’s specious attempt to import the notion of a “grave breach” of Common Article 3 into the Military Commissions Act of 2006). Still, it should be pointed out that the obligation to investigate or extradite persons suspected of grave breaches is one that has rarely been put into practice. Don’t count on Rwanda to buck the trend.

So Nkunda’s current Kafkaesque predicament will likely continue into the indefinite future. Yet another case of justice delayed (if not ultimately denied) in the nightmare that is DR Congo . . .

An “African Marshall Plan” for DR Congo

by Gregory Gordon

It’s the colossal human catastrophe that just won’t go away. And closing our eyes and wishing it were so is not going to work. There are new reports of fresh fighting, and widespread internal displacement and sexual violence in the Democratic Republic of Congo. According to UNHCR, some 56,000 people have been forced to flee renewed armed conflict between government forces and Rwandan Hutu rebels in the eastern portion of the country in the past couple of weeks. This brings the total number of civilians displaced in South Kivu since January to 536,000 and in the whole of eastern DR Congo, the number of displaced has reached over 1.8 million. Experts estimate that approximately 45,000 people die in the country every month. The hellish fate of one such individual is vividly chronicled in today’s Washington Post.

This recent round of maelstrom is the result of a renewed Congolese campaign to root out remaining pockets of extremist Hutu resistance (consisting of a group of rebels known collectively as the Democratic Forces for the Liberation of Rwanda or FDLR) and their local militia allies. The FDLR consists of Rwandan genocide perpetrators who crossed the border as the RPF swept to victory. They initially hoped to refortify, invade Rwanda and topple the current government but their ranks and resources have thinned over the course of Congo’s perpetual fighting (which has included raids by Rwandan and Congolese forces). Now the FDLR, hiding in the bush and linked with various armed groups, including Mai Mai militia, mostly exploit and abuse the local civilian population. In addition to subjecting IDPs to arbitrary arrests, kidnappings, extortion and forced taxation, there are recent accounts of widespread atrocities at the hands of the FDLR, including murder, rape and torture.

In the meantime, the so-called “positive forces” in the conflict have been preying on civilians as well. It was recently reported that four Congolese army officers (including a general) accused of rape (including the rape of children) are still in active military service. Another recent report reveals that members of the UN peacekeeping mission in DR Congo (known as MONUC) may also be engaged in the sexual abuse of Congolese women (over the years there have been other reported instances of sexual abuse by MONUC troops).

At the same time, in a report issued a little over a week ago, the human rights group Global Witness accused a number of multinational corporations of “turning a blind eye” to the source of Congolese minerals they purchase and then sell to manufacturers around the world. The report indicates that these corporations, such as Afrimex, Traxys, and Amalgamated Metal Corporation, are knowingly purchasing minerals (including gold and wolframite) mined through the exploitation of civilians controlled by both the Congolese military and rebel groups. According to the report:

The stakes are high, and those benefiting from the illicit exploitation of resources will not be willing to give up these riches easily. As evidence by patterns of the last 12 years, it is in the interests of all sides in the conflict, as well as unscrupulous businessmen, to prolong the anarchy, as it delivers financial benefits without accountability.

In an article recently published in the Fordham International Law Journal, I have called for the United States to launch an “African Marshall Plan” for DR Congo — a massive resource and assistance infusion to bring about wide-ranging, organic change and secure the benefits of DR Congo’s free elections and the recent Nairobi/Goma peace process. To date, U.S.-DR Congo policy has been formulated in dribs and drabs, limited in quantity relative to the enormity of the crisis, and without an overarching plan for promoting legal coherence and yielding long-term, systemic change. To be effective, I submit, U.S.-Congolese policy must be crafted and executed with a holistic approach– security, disarmament, infrastructure, food assistance, and health care must all undergird greater efforts to establish the rule of law (including efforts to curb corporate predations). And from a procedural perspective, U.S. policy should be better coordinated internally (rather than the current farrago of individual agency initiatives).  It was announced within the past couple of days that Hillary Clinton will be visiting DR Congo on her upcoming trip to Africa.  One would hope she will be thinking about these larger policy issues during her visit.

Of course, to be successful, any such effort would have to include the participation of, and coordination with, other major donors such as the EU (although, as I point out in my article, due to various bureaucratic and financial restraints, the EU seems limited in the extent of effective assistance it can provide). And I’m not suggesting that this would look anything like an exact replica of the original Marshall Plan. But I do think those two words conjure up the idea of large-scale, effective, coordinated assistance. That’s what’s needed.

Not only is it the right thing to do and the best policy from a humanitarian perspective, it is in the U.S. and global interest that a country the size of Western Europe, lying at the heart of the African continent, attain stability. As the New York Times has noted, “When Congo shakes, Africa trembles.”

Asylum for Battered Women and Beyond

by Gregory Gordon

Recently, advocates for asylum seekers fleeing severe and state-sanctioned domestic violence in their home countries appeared to score a significant victory. In the case of a woman who requested asylum based on fears she would be murdered by her common-law husband in Mexico, the Department of Homeland Security filed a brief in April (unsealed recently as reported by the New York Times here) revealing Obama administration support for the proposition that battered women asylum applicants may be eligible for resettlement in the United States.  (As recently as last year, DHS under the Bush administration had argued in the same case that domestic violence victims could not meet the standards of American asylum law.)

So this represents the latest change in position for the executive branch, which has vacillated for over a decade on this issue in grappling with the case of a Guatemalan domestic violence asylee, Rody Alvarado. Ms. Alvarado endured ten years of brutal beatings at the hands of her Guatemalan soldier husband. Among other things, he raped and sodomized her on a regular basis; kicked her genitalia, causing profuse and sustained bleeding; pistol-whipped her; and violently kicked her in the spine when she refused to abort their fetus. Despite repeated requests, the government and the courts refused to protect her. She tried to escape within Guatamala but her husband found her and practically beat her to death. In 1995, to save her life, she fled to the United States. And the following year a San Francisco immigration judge granted her asylum. But the Board of Immigration Appeals reversed the decision in 1999 and ordered Ms. Alvarado’s deportation to Guatemala.

As a result of the Alvarado decision (Matter of R-A-), women fleeing a wide range of gender-based human rights violations were denied asylum. Desperate victims of sexual trafficking, gang rape, and domestic violence could find no safe haven in the United States. In January 2001, at the very end of the Clinton administration, Attorney General Janet Reno overturned the BIA’s ruling and ordered it to adopt a new decision after the issuance of regulations on the subject of gender asylum. Those regulations were never finalized by the Bush administration, which made noises (via AG John Ashcroft) about deporting Ms. Alvarado but never got around to doing it (although in September 2008 AG Michael Mukasey ordered BIA to reconsider the case, removing the requirement that it await the issuance of regulations). And so the case remained in a state of limbo…

Gacaca’s End and Its Legacy

by Gregory Gordon

The Rwandan government announced today that it will stop taking new gacaca cases as of July 31st and that it intends to wind down gacaca operations within five months. Gacaca is a traditional local justice procedure (gacaca roughly means “justice on the grass” in Kinyarwanda) that the government modified to process the staggering number of low-level genocide cases and help reconcile perpetrators with their communities. Starting in 2002, the Rwandans  began operating a system of more than 10,000 gacaca courts. Regardless of what one may think about its merits, the gacaca experience has represented a Herculean task with hundreds of thousands of cases processed in the past few years. In the words of Lars Waldorf, it was mass justice for mass atrocity. But was it successful? I was asked today on the BBC World Service (interview starts at the 18:53 mark) about gacaca‘s legacy and I noted that it was mixed.

Gacaca has certainly helped clear out Rwanda’s shamefully overcrowded prisons and overwhelmed domestic courts. And, in theory, it has conferred the advantages of community-based restorative justice – local participation, perpetrator-victim confrontation and reintegration, community healing, and use of an organically grown, culturally resonant procedure. In so doing, it has nominally eschewed the top-down Western retributive approach that focuses on punishing the individual (what Mark Drumbl calls “Western legal liberalism”).

But I also made reference in the interview to gacaca‘s most visible problems – its endemic corruption (which the Rwandans have attempted to deal with) and alarming due process deficits (that portion seems to be edited out of the interview — but it is important as I suspect gacaca’s imminent demise, coincident with Rwandan criminal justice system reform initiatives, is motivated in part by the government’s efforts to make extradition to Kigali look like a more attractive option to Europeans harboring genocide suspects — not that gacaca is used for such suspects but general justice system appearances can be important). I noted, and academic literature has amply explored, the Frankenstein monster assemblage of a local, non-systematized, oral-tradition civil dispute mechanism (traditional gacaca) with a codified, state-centric criminal justice bureaucracy (what the Rwandan government has been operating). Clearly, traditional gacaca was not meant for hearing cases of genocide.

But somewhere in the process of retrofitting it for mass atrocity, gacaca appears to have lost its core restorative justice defining qualities. In my upcoming article “Complementarity and Alternative Justice” (to be published in the Oregon Law Review), I explore this dilemma in greater depth. I still believe that there is hope for successfully using traditional alternative justice mechanisms to deal with gross human rights violations. For that, a better calibrated hybridization will be necessary. Posterity may not ultimately view gacaca as the ideal blueprint; but it will likely appreciate it as an invaluable testing ground.

Spanish UJ — From Pinochet to Purgatory?

by Gregory Gordon

For critics of universal jurisdiction, Spain’s UJ statute has become the poster child for accusations of excess. How strange it seems that roughly ten years ago it was so widely celebrated as the provision that brought down General Augusto Pinochet. Spain’s indicting the former Chilean dictator and Britain’s detaining him on the attendant arrest warrant and extradition request is still hailed by many as a watershed moment in international law – a breakthrough perhaps as transformative as the Nuremberg trials themselves. So what happened?

For one thing, the Spanish National Criminal Court (or Audencia Nacional), open to private litigants supported by aggressive examining magistrates (such as Pinochet’s nemesis, Baltasar Garzón ), has seemingly become a breeding ground for politically-charged prosecutions having little or no connection to Spain. Investigations have been undertaken against high-ranking American officials including Dick Cheney and Condoleezza Rice related to the torture of terrorism suspects. Seven Israeli politicians and military officers, including former defense minister Binyamin Ben-Eliezer, are the subject of a probe because of a July 2002 Gaza Strip airstrike that resulted in fourteen civilian deaths. Chinese officials are being investigated for abuses in Tibet and forty Rwandan army officers have been indicted in connection with alleged post-genocide reprisal massacres. Critics cry that Spanish UJ has been hijacked by activists pursuing political agendas and settling scores. The Spanish government seems to concur and has been opposed to these far-flung global justice efforts. In fact, Spain’s public prosecutor’s office has openly challenged the UJ power of the Audencia Nacional. And since the heady days of Pinochet, only one defendant has been tried and sentenced under the Spanish UJ law (Argentine naval captain Adolfo Scilingo, who turned himself in to Garzón in 1997 and was ultimately condemned to 640 years in jail for “Dirty War” offenses).

Pressure on Spain to rein in the Audencia Nacional has been exerted by foreign leaders from across the globe and it appears that Madrid, eager to remain a player on the international stage, is ready to cry uncle. The left-leaning Spanish government (with rare bipartisan support from Spanish conservatives) is sponsoring far-reaching UJ legislation that would restrict the scope of future cases to those in which: (1) the victims are Spanish; (2) the alleged perpetrators are present in Spain, or (3) some other clear link to Spain can be demonstrated. On June 25th, the measure overwhelmingly passed the Congress of Deputies (the lower house of parliament) by a vote of 341-2. Passage in the Senate is considered to be a foregone conclusion. The amendment will not have retroactive effect so the most controversial cases may not go away.

Still, NGOs (such as Human Rights Watch here) and certain commentators (such as IntLawGrrls here) have cried foul. They see the Spanish National Criminal Court as the last refuge for victims who can seek justice in no other venue. I have to confess to mixed feelings. I can think of no crusades with higher stakes than the global fight against impunity and effective UJ has to be a part of that. I wholeheartedly cheered the Pinochet outcome in the House of Lords way back when. But it does seem like a reassessment of the Spanish formula is now in order. UJ should never be exploited as a political leverage mechanism but, as noted above, Spain’s system appears to have been quite vulnerable to that tactic. According to World Politics Review (in an article by Soeren Kern):

Spanish lawmakers are now worried that the media-savvy judges are more interested in scoring political points than in upholding the law. They are also concerned that Spain’s judicial system is being hijacked by activists who are out to pursue a political agenda. Indeed, most of the cases, including those involving Pinochet, Israel and the United States, have been the handiwork of Gonzalo Boyé, a “human rights lawyer” who earned his law degree through correspondence courses while serving a 10-year sentence in a Spanish prison. Boyé was convicted of collaborating with the Basque terrorist group ETA in the kidnapping of Emiliano Revilla, a well-known Spanish businessman. Prior to that, Boyé was a member of the Movimiento de Izquierda Revolucionaria, a Marxist-Leninist revolutionary group based in Chile, where Pinochet was his nemesis.

And then much has changed since Spain first enacted its UJ law in 1985. Aside from the scores of countries that have since passed their own UJ statutes, as well as the advent of the ad hoc and hybrid tribunals, the International Criminal Court has come into existence and is now operational (in fact, many nations have adopted UJ laws to satisfy their Rome Statute obligations). There is less need for Spain to serve as a global court. And the current version of Spanish UJ lacks checks and balances (such as an authorizing prosecutor).

So does it still make sense for the country that gave us Don Quixote to keep judicially tilting at superpower windmills? Some might argue that’s not the point. Garzón and his band of crusading magistrates bring to light human rights violations otherwise easily obscured by world powers flexing their muscles. The purpose of Alien Tort Claims Act actions in the United States, they might note, is typically not to obtain actual money damages; it’s about raising awareness and exposing malefactors. In this context, it’s nice to know that someone is at least investigating Dick Cheney and thumbing a nose at Chinese threats and thuggery.

But the cost may be too great. The lack of safety valves and checks and balances in the Spanish system is problematic. As is the Spanish statute’s disregard for the principle of complementarity – there is no statutory mechanism in place to halt a case when territorial courts have in good faith launched their own investigation or initiated their own prosecution (although there is admittedly a Spanish Constitutional Court ruling to that effect, Spain’s seeming disregard of an Israeli investigation into the Gaza case gives pause). And nothing in the current statute mandates the slightest nexus between the forum state and the case or its parties. Finally, there is no consideration of gravity in the UJ trigger calculus. This will be the subject of an entire article I have started writing, but I submit we need a global Universal Jurisdiction treaty to foster consistency and fairness. Short of that, Spain’s imminent reform is probably a good start.

Sweden Decides to Extradite . . . And Then Changes Its Mind

by Gregory Gordon

A couple of weeks ago, Sweden did something unprecedented for an EU nation — it indicated it would proceed with the extradition of an accused Rwandan génocidaire to Kigali. Sylvere Ahorugeze, a 53-year-old former director of Rwanda’s civil aviation authority, is implicated in the 1994 murder of a group of civilians in the Kigali suburb of Gikondo. He was arrested on an international warrant last year at the Rwandan Embassy in Stockholm, where he was attempting to renew identification papers for his wife (he had previously been detained on similar charges in Denmark, where he had been a resident for several years, but was released and supposedly awarded damages because of an alleged lack of evidence). The Swedish Supreme Court ruled on May 26th that there were no legal obstacles to extraditing the man. On July 9th, the Swedish Justice Ministry announced it agreed. It was undoubtedly influenced by the recent domestic justice reforms initiated by Rwanda in response to concerns expressed by various European governments (the United Kingdom, France, Germany, and Switzerland have all recently refused to extradite Rwandan genocide suspects). Among other things, the Rwandans have abolished the death penalty and initiated a witness protection program.

Ahorugeze promptly filed a petition with the European Court of Human Rights, which has granted provisional measures asking Sweden not to extradite him “until further notice.”  (I have not been able to find a reference to the case on the ECHR website and press reports have not alluded to interim measures but this is clearly what must have happened).  Sweden, for its part, complied with the request.  Professor William Schabas has noted on his blog that the Europeans are holding the Rwandans to an unfair standard. He notes that the former are following the lead of the International Criminal Tribunal for Rwanda, which has refused to authorize the transfer of several suspects that it would rather not try itself because of concerns regarding due process standards and judicial independence. According to Professor Schabas:

They insisted that Rwanda, an impoverished third world country, provide a witness protection programme for defence witnesses that would not exist in most European countries, and dismissed Rwanda’s proposed solution to address the problem of reluctant defence witnesses living abroad, which was to hear them using videoconference, as being unfair. Be that as it may, the unintended consequence of these recent rulings of the International Tribunal, spurred on by certain human rights NGOs, has been to enhance impunity, not reduce it. Several genocide suspects, including four in the United Kingdom, have simply been released.

In the meantime, as noted above, the Rwandans have made improvements to their justice system and initiated legislative reforms. And, in light of these developments, ICTR Chief Prosecutor Hassan Jallow has indicated a willingness to reapply for authorization to transfer cases to Rwanda. So perhaps in the end the Swedes will ultimately have the blessing of the ECHR (but that might take some time) and the extradition will proceed. I suspect, however, that there are lingering concerns about executive meddling in Rwandan judicial affairs. One would hope any such worries will soon be assuaged but, sadly, one should probably not hold one’s breath (and certainly the Kagame government, even if currently focused on appeasing the Europeans, has not been a model democracy). In the meantime, it is certainly unacceptable for Rwandan mass murderers to take advantage of this state of limbo and evade justice.  Justice in Rwanda may never be perfect but it’s probably at the point of being good enough.  After all, the entire world needs a proper “completion strategy” for bringing Rwandan genocide perpetrators to justice.  Let’s hope the bulk of it can be done properly in Rwanda.  And soon.

Should Mere Presence in the Forum State Be Enough to Trigger Universal Jurisdiction?

by Gregory Gordon

Related to my post yesterday about the presence requirement for invoking universal jurisdiction (with respect to the UK’s new genocide law amendment), QC Ken Macdonald (visiting professor at the London School of Economics) has proposed in The Times an interesting possible solution to deal with what I would call the “Colin Powell” (or, per Macdonald, “Henry Kissinger”) dilemma:

Of course a law can easily be crafted to protect our national sense of decency, while at the same time avoiding vexatious and foolish litigation at the expense of a batch of ageing Henry Kissingers. Indeed, we already have laws that allow us to arrest visiting torturers and hostage takers. They have been applied sensibly and haven’t led to diplomatic meltdown. Why should we be able to prosecute visiting torturers but not war criminals and génocidaires? The simple device of requiring the Director of Public Prosecutions to consent to the instigation of proceedings would prevent abuses and ensure that only appropriate cases can be brought.

It bears pointing out that a mere presence requirement certainly does not represent the most liberal version of universal jurisdiction. I believe this passage from the Joint Separate Opinion of ICJ Judges Higgins, Kooijmans and Buergenthal in the Democratic Republic of the Congo v. Belgium case provides some helpful context with respect to the UK law:

But a State is not required to legislate up to the full scope of the jurisdiction allowed by international law. The war crimes legislation of Australia and the United Kingdom afford examples of countries making more confined choices for the exercise of jurisdiction. Further, many countries have no national legislation for the exercise of well recognized forms of extraterritorial jurisdiction, sometimes notwithstanding treaty obligations to enable themselves so to act. National legislation may be illuminating as to the issue of universal jurisdiction, but not conclusive as to its legality. Moreover, while none of the national case law to which we have referred happens to be based on the exercise of a universal jurisdiction properly so called, there is equally nothing in this case law which evidences an opinio juris on the illegality of such a jurisdiction. In short, national legislation and case law — that is, State practice — is neutral as to exercise of universal jurisdiction.

It should be noted that some municipal jurisdictions, such as Spain, permit initiation of cases even if the defendant is not physically present in the forum state (although that may be changing — more on that in a later post). Certain versions of this type of UJ have not even required a nexus with the territory, perpetrator or victim (Belgium’s old universal jurisdiction statute is a prominent example of that). And those jurisdictions have also permitted private citizens to initiate criminal actions against would-be defendants. I have argued elsewhere (including as part of a presentation I made at a London UJ conference last year), that this is going too far. But I do not consider “mere presence” to be problematic – especially if a public official countenances initiation of the prosecution. Macdonald provides a compelling conclusion:

The consequences of his failing to do so [providing for a mere presence UJ trigger] are frankly unappealing. According to a report in The Times in 1999, the individual suspected of supplying, on an industrial scale, most of the machetes used in the Rwandan slaughters [Félicien Kabuga] stopped over in Britain on holiday. If the law is not changed, this unusual tourist is safe to return at any time. Recent research by the Aegis Trust has also carefully documented the scores of suspected war criminals who are believed to be present in the UK. They include suspects from Iraq and Zimbabwe, warlords from Somalia and Afghanistan, and suspected génocidaires from Rwanda. As you would expect, since they cannot be prosecuted here, these men calmly arrive for a wide variety of reasons. Some come for medical treatment and others to do business but, unsurprisingly, they take care to avoid residency. They’re not stupid and they know that they risk nothing more alarming than deportation — where that is even possible. But all too often it isn’t and we find ourselves caught in a devil’s trap. We cannot prosecute these men because they’re not UK residents, but our courts won’t deport them either in case they face mistreatment on their return. Certainly the human rights of suspects must be respected, but the dilemma becomes very stark in the face of atrocity crime. They end up living among us while their victims wait for justice. If the Government opposes the Carlile amendments, our message to war criminals will be a good deal less stern than Washington’s. And the people who have committed these ghastly crimes will continue to haunt us. But an important part of making the world a safer place for innocent people is to make it a lot less safe for their tormentors. Our law should stop providing comfort to international criminals.

Sotomayor, International Law, Context, and the Confirmation Hearings Charade

by Gregory Gordon

Considering Sonia Sotomayor’s testimony last week from an international law perspective, much seems to have been made about her April speech to the Puerto Rican Chapter of the ACLU. In that speech, she did opine that “ideas have no boundaries,” and that “international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.” She added that to frown on the use of foreign or international law would “be asking American judges to close their minds to good ideas.” Conservative pundits have seized on these bits of text to ascribe to Sotomayor an expansive view of international law in constitutional interpretation. But as pointed out here by (in exposing mischaracterizations by CNN’s Lisa Sylvester on Lou Dobbs Tonight), the relevant portions of that speech have been taken out of context. I join in finding it instructive to consider what else she said in that speech:

I always find it strange when people ask me, “How do Americans’ courts use foreign and international decisions — law in making their decisions?” And I pause and say, “We don’t use foreign or international law. We consider the ideas that are suggested by international and foreign law.” That’s a very different concept, and it’s a concept that is misunderstood by many. And it’s what creates the controversy that surround — in America, especially — that surrounds the question of whether American judges should listen to foreign or international law. And I always stop and say, “How can you ask a person to close their ears?” Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think, and to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to good ideas — to some good ideas. There are some ideas we may disagree with for any number of reasons, but ideas are ideas, and whatever their source — whether they come from foreign law, or international law, or a trial judge in Alabama, or a circuit court in California, or any other place — if the idea has validity, if it persuades you — si te comprense — then you are going to adopt its reasoning. If it doesn’t fit, then you won’t use it, and that’s really the message that I want you to leave with here today. I’m going to try first to understand the way that American law is structured against the use of foreign and international law, because American analytical principles do not permit us to use that law to decide our cases. But nothing in the American legal system stops us from considering the ideas that that law can give us.

While I think it safe to say that Judge Sotomayor would not counsel the American judiciary to stick its collective head in the sand of domestic law, the text just quoted is hardly the stuff of legal revolution or constitutional subversion. I realize that Judge Sotomayor has spoken elsewhere about international law (especially in her forward to the 2007 book “The International Judge”) and that certain passages may seem more charitable in their take on international sources than others. But on the whole, I think Sotomayor had struck a thoughtful balance between fidelity to the Constitution and receptivity to the organic growth of legal thought. Quite simply, one aspect of our becoming a global village is that all legal systems (including the American one) are increasingly connected to all the other legal systems. This is a reality no matter how much Justice Scalia might close his eyes, plug his ears, pinch his nose, and scream that he wishes it were not so. Although Judge Sotomayor may have hedged her language, her testimony last week largely acknowledged this reality and was mostly of a piece with her previous position.

To the extent her hedging smacks of political obfuscation, as some have charged, we might do well to reflect on the charade that Supreme Court confirmation hearings have become. Partisan bickering certainly has something to do with it. But I submit these hearings are premised on a misleading and dangerous conceit: that judges are akin to autonomous robots who mechanistically and abstractly apply inbred, dry legal principles to meticulously pruned fact patterns. To the contrary, good judging is an intensely human and dynamic experience. American Justice Oliver Wendell Holmes spoke of this eloquently last century and Judge Richard Posner has done so in this one.

And, on a macro level, good judging requires growth of the entire judicial collective conscience. Being aware of what is going on in the wider world is certainly an integral part of that. And it is, I dare say, essential for the effective delivery of justice in modern times. It will certainly go a long way, in any event, toward allowing us to reassert our leadership on the world stage. In that regard, I am heartened by Judge Sotomayor’s approving citation to Justice Ginsberg that “unless American courts are more open to discussing the ideas raised by foreign cases and by international cases, [we] are going to lose influence in the world.” Here’s hoping that Judge Sotomayor’s imminent elevation to the highest court in the land will help stem that recent ugly tide.

The UK’s Genocide Law Amendment Proposal

by Gregory Gordon

British Justice Secretary Jack Straw recently proposed amending the United Kingdom’s International Criminal Court Act of 2001 (which permits universal jurisdiction prosecution of atrocity crimes) to allow authorities to file cases for atrocities committed as far back as January 1, 1991. This would close a loophole that has been giving safe haven to génocidaires who enter the UK after committing crimes abroad. According to certain sources, there are at least 18 suspected war criminals living in Britain, from countries including Rwanda, Zimbabwe, Somalia, Sierra Leone, Sri Lanka, and Iraq. In April, a British High Court ordered (reversing a lower court ruling) that four Rwandan genocide suspects — Vincent Bajinya, a British national and doctor who had changed his name to Brown, Celestin Ugirashebuja, Emmanuel Nteziryayo and Charles Munyaneza (collectively implicated in the murder of thousands of innocent civilians) must be set free. The Court did not question the quantity or quality of the evidence but ruled that the UK universal jurisdiction law only applied to crimes committed as of 2001 (the crimes at issue, of course, were committed in 1994). Moreover, the Court held that the suspects should not be extradited because they could not receive a fair trial in Rwanda. The proposed amendment would clear the way for their prosecution in British courts.

While this may seem fitting, it could raise some difficult issues. Most glaringly, the amendment is a blatant example of an ex post facto law. Technically, this is not a problem in the UK, which considers Parliament “sovereign.” Under the doctrine of “parliamentary sovereignty,” a properly passed Act of Parliament, regardless of the topic or its merits, is accorded absolute legal effect by the courts. In practical terms, this absolute power to legislate encompasses the right to enact ex post facto provisions that have the express consequence of overturning any judicial decision or previous act of parliament. And, at least as far as the British courts are concerned, this power is not limited in any way by contrary international laws or conventions.

On the other hand, ex post facto criminal laws are prohibited by Article 7 of the European Convention on Human Rights (ECHR), to which the UK is a signatory. By the same token, pursuant to Article 27 of the Vienna Convention on the Law of Treaties, to which the UK is also a signatory, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty obligation. And certainly, ex post facto criminal laws are frowned upon in the UK. But given that the proposed amendment seeks to lessen impunity for the crime of genocide, the crime of crimes, it may seem less controversial than at first blush.

Moreover, in any event, there may be an exception to the prohibition on retroactive laws. Art. 7, para. 2 of the ECHR (and ICCPR, Art. 15, para. 2, for that matter) allows signatories to adopt retroactive laws concerning an act which “at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.” Consistent with this, I believe other European criminal codes (Lithuania’s, for example) have imposed retroactive punishment for genocide and other international crimes and ECHR because international law allows retroactive laws concerning international crimes.

The other potentially sticky issue relates to the persons subject to prosecution under the amendment. The current legislation applies only to British citizens and residents. War criminals merely passing through the UK, no matter how egregious their crimes, would be beyond the reach of the law. It should be noted that, in recent years, notorious war criminals such as Félicien Kabuga (genocide financier and founder of the infamous RTLM radio station – I referred to him in my previous post) and Chucky Taylor (Charles Taylor’s son, who was convicted by a U.S. court last year of torture) have passed through the UK without so much as receiving a traffic citation. Perhaps persons subject to the statute should be expanded to include those who are merely present. That is already true for Britain’s torture statute. But then, people like Colin Powell might have to be concerned about attending a conference in London.

Beginning My Fortnight

by Gregory Gordon

I want to thank Opinio Juris for having me over the next couple of weeks as a guest-blogger. I noticed that Eugene Kontorovich’s thought-provoking posts last week dealt primarily with the issue of Israeli settlements in the West Bank. My posts to start will not be that focused. If I had to discern one overarching theme for this week, at least at the outset, it likely would be the issue of how to treat human rights violators and victims found in countries where the violations did not take place. Inevitably, this will implicate the topic of universal jurisdiction. It is perhaps ironic that I will be writing about it when Eugene Kontorovich, who writes widely on the subject, did not touch on it last week But I think it is timely as we are roughly at the 15th anniversary of the end of the Rwandan genocide.

Since the full extent of the Rwandan horror revealed itself to the world a decade and a half ago, what kind of success has the international community had in bringing the perpetrators to justice? The results have been mixed. There have certainly been some high-profile convictions (including Bagosora and the RTLM founders) and the cases of thousands of lower-level participants have been processed through Rwandan domestic forums (including gacaca). But many high-profile perpetrators remain at large (the ICTR still seeks the arrest of at least 13 of them). This includes Félicien Kabuga, chief financier of the massacres and a founding member of RTLM (one of the targets I worked on at ICTR). Kabuga apparently lives in the lap of luxury in Kenya (although a Kenyan court froze his assets in May and the order was recently upheld). Many other perpetrators are currently found in Europe and North America and their presence there raises a whole host of legal issues that I think merit discussion. This is particularly true as the ICTR eyes closing shop at the end of next year.

But these problems are not limited to the Rwandan genocide. I also hope to touch on issues related to human rights violations in the Democratic Republic of Congo, Sudan, and Latin America. And I anticipate my posts will not be confined to criminal topics. Immigration law issues, I expect, will also be handled. And I’m sure other posts will suggest themselves as the fortnight progresses. I might even have some thoughts on the Sotomayor confirmation hearings (although OJ has already covered that quite well). In any event, I’m looking forward to an interesting couple of weeks!