Author Archive for
Gregory Gordon

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!

Defining Incitement to Genocide: A Response to Susan Benesch

by Gregory Gordon

[Gregory Gordon is Professor of Law, University of North Dakota School of Law.]

I would like to begin by thanking Opinio Juris for inviting us to have this important discussion here about the crime of direct and public incitement to commit genocide. I would also like to congratulate Susan Benesch on her excellent article regarding this verbal harbinger and prerequisite of mass atrocity. Professor Benesch provides a much needed exploration of the more complex facets of incitement that will afford jurists, advocates, and would-be offenders greater clarity in assessing the process by which permissible speech corrodes into forbidden exhortation.

But I cannot share in Professor Benesch’s conclusion that the crime of incitement remains “alarmingly” ill-defined. As I point out in my articles A War of Media, Words, Newspapers and Radio Stations: The ICTR Media Trial Verdict and a New Chapter in the International Law of Hate Speech, 45 VA. J. INT’L L. 139, 150 (2004) and From Incitement to Indictment? Prosecuting Iran’s President for Advocating Israel’s Destruction and Piecing Together Incitement Law’s Emerging Analytical Framework, 98 J. CRIM L. & CRIMINOLOGY (forthcoming June 2008), jurisprudence from the Rwandan incitement prosecutions has gleaned four criteria through which speech content regarding race or ethnicity can be analyzed as either legitimate expression or criminal advocacy: (1) purpose; (2) text; (3) context; and (4) the relationship between speaker and subject.

With respect to the “purpose” criterion, this jurisprudence has provided some examples of legitimate objectives: historical research, dissemination of news and information, and public accountability of government authorities. At the opposite end of the spectrum, explicit calls for violence would evince a clearly illegitimate purpose. The International Criminal Tribunal for Rwanda has given examples of discourse falling between these two extremes, including permissible speech focusing on ethnic animosity but geared toward raising ethnic consciousness, not provoking ethnic violence.

The “text” criterion, which entails a rigorous parsing of the words themselves, helps further reveal the purpose of the speech and provides an important piece of the contextual puzzle. The “context” criterion, arguably the linchpin of the entire analysis, mandates an examination of the circumstances external to and surrounding the text so that its true significance can be divined. This includes situating the words and their utterance within the relevant linguistic, social, economic and historical framework. In applying this criterion, we must, among other things, ask whether the speaker embraced the views espoused or distanced himself from them. We also have to consider whether the speaker is using code words or indirect means of inciting the audience in a way that will be grasped by listeners at that time and place.

Finally, the case law instructs the finder of fact to examine the relationship between the speaker and the subject. According to this part of the test, the analysis should be more speech-protective when the speaker is part of a minority criticizing the government or the country’s majority. In all due respect, the application of this four-part test certainly calls into question Professor Benesch’s conclusion that “a mere racist could be convicted of a crime tantamount to genocide, and speech may be unduly and dangerously restricted.”

Still, Professor Benesch refers to a poorly reasoned intermediate court decision in the Léon Mugesera case, subsequently overturned by the Canadian Supreme Court, to illustrate how “alarmingly” ill-defined the crime of incitement remains. In addition to being reversed by the Supreme Court, that decision was at odds with two lower court decisions finding Mugesera’s speech constituted incitement. The decision’s interpretation of Mugesera’s speech as being about “elections, love and courage” is instantly discredited by the language of the portions of the speech at issue. For example:

You know there are ‘Inyenzis’ [cockroaches] in the country who have taken the opportunity of sending their children to the front, to go and help the ‘Inkotanyis’ [Tutsi warriors, fierce fighters] …. Why do they not arrest these parents who have sent away their children and why do they not exterminate them? Why do they not arrest the people taking them away and why do they not exterminate all of them? … [We] must do something ourselves to exterminate this rabble…. I asked if he had not heard of the story of the Falashas, who returned home to Israel from Ethiopia? He replied that he knew nothing about it! [I] am telling you that your home is in Ethiopia, that we will send you by the Nyabarongo so you can get there quickly’…. Another important point is that we must all rise, we must rise as one man … if anyone touches one of ours, he must find nowhere to go.

Of course, the Canadian Supreme Court engaged in the kind of rigorous exegetical analysis necessary for evaluation of incitement allegations and included a contextual examination of the term “Inyenzi” as well the murderous metaphoric significance of transporting Tutsis to an ethnic-stereotype “homeland” via a non-navigable river traditionally used to dispose of corpses after ethnic massacres (even though it did not explicitly and systematically apply the four-part test). Thus, when seen in the larger context, the intermediate court’s decision represents a sui generis aberration in a string of decisions that had no difficulty finding Mugesera’s words constituted incitement. Such an anomaly is certainly not evidence of an “alarming” definitional deficit. (Professor Benesch comments that Mugesera’s speech preceded the Rwandan genocide by too long — seventeen months — but she ignores the essential point, made in the Canadian decisions finding incitement, that the speech itself was preceded and followed by large-scale ethnic violence – that was the context which permitted a finding of incitement.)

Nevertheless, as a solution to this perceived problem, Professor Benesch proposes a brand new test — that a speech be considered incitement to genocide if there is a “reasonable possibility” that genocide can occur when the speech was given. Although Professor Benesch acknowledges that causation has been rejected as a requirement for establishing incitement, I am afraid her proposed test creates enough of a conceptual fissure to let causation slide in through the back door. I submit that a retrospective actuarial assessment of the prospects for genocide is at odds with the fundamentally inchoate nature of the incitement crime. That an inchoate crime is committed prior to, and independently of, the object crime is axiomatic. The main purpose of punishing inchoate crimes is to allow the judicial system to intervene before an actor completes the object crime. The crime carries such a high risk for society that it must be punished without reference to subsequent acts, if any, of genocide. The crime is complete when the words are spoken in the proper context. And while it is true that incitement has never been prosecuted without a subsequent genocide occurring, adopting a test which would tend to perpetuate that pattern would needlessly cabin incitement law, which I believe should be used for its intended function — pre-atrocity deterrence, as opposed to mere post-atrocity punishment.

That said, the likelihood of subsequent violence given the circumstances surrounding a speech and the mental perspective of its listeners indirectly factor into the contextual analysis already called for in the law’s current iteration. Accordingly, the prongs of Professor Benesch’s six-part test do a wonderful job of fleshing out the existing four-part test. And so I view her analysis as an invaluable addition to incitement law.

In fact, I think it important to acknowledge that the analytic framework for incitement law is still developing. As I point out in my articles, the ICTR Media Case does not even explicitly set out a four-prong test – I argue that the test should be further refined to include four prongs, instead of what is formulated as two (purpose and context – although, as I indicate, the ICTR does actually engage in the analysis of text and relationship between speaker and subject without explicitly acknowledging it). And as I recognize above, the Mugesera Supreme Court decision was not sufficiently disciplined in its analysis to apply the test in a systematic, step-by-step way (although it does ultimately cover the essential components of the test). I also lament in my articles that the existing case law does not go far enough in identifying different types of incitement (such as “accusation in a mirror,” among others) and so I believe Professor Benesch’s contribution is timely and vital. I merely propose that her six-prong test be integrated into incitement law’s existing framework, which has been growing organically. In short, there is no sense in throwing the proverbial baby out with the bath water by adopting a new “reasonable possibility” test, which would likely lock incitement into its traditional role of retrospective punishment device and retard its recent evolution toward prospective deterrence mechanism. We must vigilantly protect free speech whenever and however we can but never at the cost of laying the groundwork for another genocide.

Symposium: Gordon Reply to Drumbl

by Gregory Gordon

[Gregory Gordon is Assistant Professor of Law at the University of North Dakota Law School and a conbributor to the Opinio Juris On-Line Symposium]

I think Professor Mark Drumbl’s perceptive comments highlight some of the serious tensions underlying the creation of an inclusive, internally coherent international due process that dispenses justice efficiently while upholding the human rights principles on which it is premised. By no means do I think the United States criminal procedure model, or the adversarial model in general, is without flaws (other systems tend to protect speedy trial rights more effectively, for example). But as observed by Professors Cassese and Zappalà, the adversarial system is designed to be more rights protective than the inquisitorial model. It also tends to be more rights protective than the traditional forms of indigenous justice, such as gacaca, referred to by Professor Drumbl.

But Professor Drumbl questions whether a system offering the highest levels of due process, as arguably embodied in the adversarial system, “should be the normative baseline in terms of its suitability for redressing atrocity.” He fears it might not, given its alien character and its imposition of “externalized justice” on victim societies. While I appreciate Professor Drumbl’s concerns for cultural authenticity and local integration, I would point out that mass victim societies are often trapped in cycles of violence that have culminated in atrocity and will likely perpetuate themselves absent external intervention. Part of that intervention, I submit, involves instituting systems of justice that respect the dignity of all human beings and heightened levels of due process for atrocity defendants are an integral part of that. In any event, such standards are not necessarily “alien.” Most of them are embodied in the International Covenant on Civil and Political Rights, to which most of the nations of the world are parties.

While it is true that the ICCPR does not include all of the due process rights to which I allude in my article, I advocate for a process of “hybridization.” The right to a jury trial, which incorporates notions of local peer review that Professor Drumbl seems to prefer, is a perfect example. Appropriately modified, it could be suitable (or indeed preferable) for international criminal adjudication. In this sense, I could not agree more with Professor Drumbl’s calls for incorporation of indigenous and traditional systems of justice into the international model.

I would caution, however, that to the extent the wells of traditional, indigenous justice have been poisoned by a culture of impunity, we should always keep our focus on the due process features mandated by bedrock principles of human rights. In my article, I point out that experts have generally classified justice systems into three separate categories: domestic legal justice, international criminal justice, and “hybrid” criminal justice, a term used to describe newly emerging forms of mixed national-international criminal adjudication as found in, for example, the Sierra Leone and proposed Cambodia tribunals. As specific domestic structures are grafted onto “hybrid” criminal procedure, my article does not include analysis of them within its scope. For purposes of my article, the term “international criminal procedure” is meant to encompass the rules developed by truly international courts (i.e., in addition to having multinational traits, not being moored to one specific domestic tradition), including the International Military Tribunal at Nuremberg, the ad hoc tribunals for the Former Yugoslavia and Rwanda, and the International Criminal Court.

While Professor Drumbl’s suggestions are clearly essential in considering the appropriate scope and nature of “hybrid” criminal justice, they may not always be suitable for “international” criminal justice. The latter is geared more toward the prosecution of “big fish” and is often better suited for adjudication outside the immediate zone of the crime scene. In that regard, the removal of Charles Taylor’s trial to the Hague is illustrative. The alternate sanctioning mechanisms suggested by Professor Drumbl – such as restitution, community service, re-integrative shaming, and reparations – may be appropriate for the legions of foot soldiers that will return to post-conflict society, but I submit they will not do for the Adolph Hitlers and the Théoneste Bagosoras. For such architects of genocide, I believe we should reject diluted “modalities of accountability that transcend the criminal trial” and eschew any proposals that dispense with “the correctional preference for sequestered incarceration.” And with respect to such criminal masterminds, in war-torn countries such as post-Nazi Germany or post-Interahamwe Rwanda, I submit that there can be no peace without justice.

By the same token, “local bottom-up justice approaches,” even for the foot soldiers, could lead to the Orwellian excesses of the Military Commissions Act of 2006 (MCA), which Professor Drumbl rightly condemns as inconsistent with the system of due process that governs penal adjudication in the United States. The MCA, which does away with such fundamental protections as habeas corpus, has created a no-man’s land of adjudication that adheres neither to the criminal nor to the traditional military paradigm of justice. We should be careful not to condemn atrocity adjudication in post-conflict societies to the same kind of twilight zone. In that sense, meaningful and robust due process is essential.

That said, we must, as Professor Drumbl persuasively argues, find ways to incorporate the best due process features of the different and varying indigenous systems into the international model. His wise suggestions will surely be part of molding the world’s disparate systems into an effective, inclusive, and lasting international criminal procedure.

Symposium Paper 2: Toward an International Criminal Procedure: Due Process Aspirations and Limitations

by Gregory Gordon


The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial appeal. Existing literature has pointed out these deficits but has failed to offer a systematic or comprehensive explanation for them. While such literature is helpful in identifying the problem, it has failed to provide a conceptual framework necessary for formulating solutions. This article constructs such a framework and uses it to provide a starting point for expanding international due process protections. It contends that three separate phenomena contribute to the restriction of international due process growth: (1) fragmentation of enforcement; (2) integration of conflicting legal systems; and (3) gravity of the crimes involved. It also analyzes the interplay among these three restricting phenomena and argues that any future growth of due process will hinge on efforts to achieve greater degrees of structural globalization, procedural hybridization, and transnational public awareness.

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