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Emerging Voices: Teeth but No Bite–Can SADC Curb Election Fraud in Zimbabwe?

by Drew Cohen

[Drew F. Cohen is a law clerk to the Chief Justice of the Constitutional Court of South Africa.  He is also a contributing columnist for US News and World Report where he writes about comparative constitutional law, international human rights and global legal affairs.]

Recently, Botswana called on the South African Development Community (SADC) to open an investigation into voting irregularities in the recent Presidential election in Zimbabwe where the incumbent Robert Mugabe won with 61-percent of the total votes amid voluminous allegations of ballot fraud.  Two members of the Zimbabwe Electoral Commission, concerned with voting irregularities, have already resigned.  And Zimbabwe’s Movement for Democratic Change (MDC), the major opposition party, is currently gearing up to legally challenge the election results.

Botswana’s request for SADC to intervene is an intriguing one.  One the one hand, Botswana stressed that any initial inquiry should be limited to fact-finding (i.e. an independent audit) out of fear that launching a more invasive investigation into the alleged voting irregularities would hamper relations between the two countries.  On the other hand, SADC has been gaining traction in the region as an sharp, effective check against state-sanctioned human rights abuses as well as a mechanism to uphold the rule of law.

A bit of background about the SADC Treaty – which provides a binding framework to adjudicate disputes amongst Member States – is useful to understand how the organization could be deployed to ferret out, remedy and, in the future, prevent instances of election fraud.

SADC was constituted under a Treaty signed in Windhoek in August 1992 by a number of Southern African states, including Zimbabwe and Botswana.  The treaty was ratified by the signatory states and came into force in 1993.  The Preamble of the Treaty states that its Members are committed, inter alia, to ensuring “through common action, the progress and well-being of the people of Southern Africa.”  Article 4 of the Treaty, in turn, requires SADC and its Members to act, broadly, in accordance with the principle of “human rights, democracy and the rule of law”.  To give effect to that principle, SADC can create “appropriate institutions and mechanisms,” pursuant to Article 5(2)(c).  This provision, in conjunction with Article 4 of the Treaty, would presumably provide the legal basis for Botswana’s proposed commission to investigate Zimbabwe’s presidential election results.

In the event that Member States are unable to resolve their disputes through internal executive and legislative institutions…

Emerging Voices: The Joint Obligation to Protect Witnesses in the Fight against Transnational Organized Crime

by Laura Salvadego

[Laura Salvadego is a Postdoctoral Fellow at the Department of Law, University of Ferrara. This work has been developed during a research stay at the New York University School of Law – Center for Research in Crime and Justice, funded by Unicredit bank and by 5 per thousand contributions given to the University of Ferrara in 2010]

The need to ensure appropriate protection of witnesses plays a crucial role in the fight against transnational organized crime both at the universal level and in the European context. Rules concerning cooperation among states in this context suggest the existence of a joint obligation to protect witnesses that is functional to punishment of the authors, which in turn is perceived as a goal of the international society as a whole. Indeed, criminal networks of organized crime originate a threat to the entire international society (cf. Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, at 2), particularly because of their transnational ramifications. The global nature of threat requires that states’ efforts are integrated in a common and coordinated repressive project of multilateral nature (Kramer, at 4).

The idea that witnesses in criminal trials enjoy specific rights has gradually gained acceptance in international law (Fenwick, at 318), leading to the explicit acknowledgement of a positive obligation for states to adopt specific legislative and operative measures to assure witnesses’ self-determination and safety (Cf. Council of Europe, Rec. No. R (97) 13Council of the European Union, Res. No. 95/C 327/04 and, among others, Ecthr, Artico v. Italy, para. 33 ff.).

It is actually possible to construe an overall, coherent “statute” for witnesses under international law, drawing from the various rules set by a number of different instruments dealing with the matter. Thus, for example, the 2000 United Nations Convention on transnational organized crime and its Protocols, set forth innovative rules concerning measures to be adopted by Parties to provide for protection and assistance of witnesses subject to reprisals and intimidation (Article 24).

The extent of the required protection and the resulting burdensome obligations for states are justified by the particular vulnerability of this category of persons, whose protection from the trial is functional to the fight against transnational organized crime. In fact, adequate repression of criminal offences would be widely thwarted if the high risk of negative consequences for witnesses’ health and safety could influence their deposition in the trial and, as a consequence, the outcome of the criminal proceedings. Witnesses’ fact-finding contribution is essential to contrast transnational criminal networks; however their fruitful participation is extremely difficult to obtain without appropriate mechanisms to neutralize dynamics of intimidation largely widespread in this context.

Imposing to adopt “appropriate measures within its means” for the purpose of granting witness’ protection, the Palermo Convention sets up a particular due diligence obligation (see Pisillo Mazzeschi, “Due diligence” e responsabilità internazionale degli Stati, 1989) that is not easy to appreciate. In fact, no specific and analytical indication is given concerning the so called…

NASA Visualization of Temperature Anomalies, 1880-2010

by Kevin Jon Heller

Yikes.

Moving to SOAS

by Kevin Jon Heller

Yes, the twitter rumour is true: as of January 2014, I will be Professor of Criminal Law at the University of London, SOAS. (Formerly known as the School of Oriental and African Studies.) I am very excited about the move; SOAS is a superb law school with one of the most diverse and most interesting faculties in the world. It is also a law school in the midst of an exciting transition: SOAS as a whole is getting a new building in 2015, and I am one of seven new law hires, two at the professorial level, this year. The law school has justified ambitions of being every bit as good as UCL and the LSE; I hope I can play a role, however small, in helping SOAS realize those ambitions. And I look forward to being much closer geographically to the tribunals and to my many good friends and colleagues in Europe.

All that said, it is with considerable sadness that I leave Melbourne Law School. I have had the most amazing five years in Melbourne, and I will profoundly miss my colleagues and my students. I have been privileged to be part of one of the great international-law faculties in the world, and I will always sing Melbourne Law School’s praises to anyone who will listen. I also hope to remain formally affiliated in some way with the law school; what that affiliation will look like remains to be determined.

My thanks to Melbourne Law School for supporting me these past five years. And my thanks to SOAS for viewing me as part of the their next five years — and beyond.

Crossing Lines S01E03

by Kevin Jon Heller

Every week, for as long as the show survives, I’ll be blogging about Crossing Lines, the new NBC drama that features a team of detectives who work for the ICC. Today, my expert analysis of the second episode:

It’s about art thieves.

Really. It’s about art thieves.

I’m not kidding.

(And don’t get me started about how the team threatens to let a wounded man bleed to death if he doesn’t give them valuable information. Must have missed that provision in Art. 21(3) of the Rome Statute.)

Back again next week!

“Crossing Lines” Is Going to Be a Disaster…

by Kevin Jon Heller

Ever since my friends at Wronging Rights flagged the upcoming NBC series Crossing Lines, which is about an ICC police unit, I’ve been scouring the internet for more information about what will no doubt be an absolute train-wreck of a TV show. Tonight I found this:

Set in exotic locations around Europe, “Crossing Lines” follows a disgraced New York cop, played by William Fichtner, who finds redemption after joining an international police unit based at the Intl. Criminal Court in the Hague that investigates cross-border crimes and hunts down brutal criminals.

[snip]

“Fans of procedural crime shows will feel very much at home with this new team, but at the same time, the global setting will add a color and flavor to the show that will take audiences on a new and exciting ride.

“Crime has gone global like everything else in our lives and now there is a weekly procedural that dives into this world. At the end of the day, we’re all frightened and concerned about the same things and problems no longer tend to stay regionally contained for too long anymore.”

The series will tackle topical crimes and illicit global trades such as plutonium poisonings, serial killings, kidnappings, human trafficking and drug smuggling, added Bauer.

Where to begin? First, the ICC doesn’t have a police force, international or otherwise. (Perhaps the show should have been set in the OTP — which at least has investigators.) Second, international crimes do not have to be transnational. (Which is the whole point of genocide and crimes against humanity.) Third, the ICC does not have jurisdiction over poisonings (except in armed conflict), serial killing (unless its like Srebrenica), kidnappings (unless they’re like during the Dirty War), or drug smuggling (sorry, Trinidad & Tobago). Fourth, and finally, it will be a very chilly day in the bad place when the ICC investigates a crime committed in Europe.

Other than that, the show sounds completely accurate.

We Should Try This in the U.S. (Minus Donald Trump, Of Course)

by Kevin Jon Heller

I’ve seen some strange reality TV in my time, but (mock) picking the next Palestinian head of state?

The hit show, called simply The President, has grown out of widespread frustration among Palestinians at their own moribund politics in the real world.

The current president of the Palestinian Authority, Mahmoud Abbas, remains in office four years after his mandate expired.

His party, Fatah, rules over the West Bank while in Gaza, Hamas, the Islamist movement labelled a terrorist organisation by many countries in the West, reigns – also years beyond the mandate it won in 2006.

The Palestinian assembly hasn’t met for many months. The roster of leaders hasn’t changed for decades.

Part Apprentice part X-Factor, viewers are gripped by a show in which they get to chose who should be their next president.

Enter Raed Othman, the director general of the Ma’an broadcast network.

“I thought of this programme because we have to show that the Palestinian people understand and want real democracy. We want elections – real elections. But if we cannot have them then we can do our own,” he said backstage during the filming of the latest episode of his show which has whittled 1,200 potential presidents to 16.

He added:  “There are a lot of people who say we don’t have leaders, so we need to prove to them that there are a lot of leaders in Palestine. We want to teach the people that democracy is possible whenever we want”.

Contestants are filmed taking on tasks – being an ambassador to a European country for a day, running a major corporation, taking questions from foreign and local journalists, even how to inspect guards of honour.

They are then put through the ringer by a panel of judges, among them leading politicians like Hannan Ashrawi, a former spokeswoman for the Arab League. Viewers combine votes sent in by text message with the judges’ marks in early rounds.

The winner doesn’t actually become President; he or she just gets a car. Then again, considering the sorry state of Palestinian politics, that’s probably a more desirable outcome.

Cruel Window No More

by Roger Alford

With the publication by the Journal of Legal Education’s recent “Fiction Issue,” and the London Review of International Law announcing that they will include poetry with the goal of expanding and enriching the international legal conversation, I thought this poem was particularly timely. It is written by an anonymous friend for those who have suffered from human trafficking and for those who advocate on their behalf.

Cruel Window No More

Colored panes of glass, once collected,
Good and evil, gently refracted.

Purveyor of harm enters in,
muffled alarm, tragic din.

The deed is done, young soul plucked,
Life shattered, filthy muck.

Stained glass, broken body,
Nature’s law suspended.

Shards of life, colors bleed,
Love’s dance upended.

Corrupted inquisitor, shadow valley,
Rotten misery.

Timely advocate, verdant pasture,
Quenching remedy.

Shutters open, warm air,
Cleansing counsel, gentle care.

Broken glass reframed,
Child reborn, strengthened claim.

Colored pane restored,
Cruel window no more.

Welcome to the Blogosphere, Geographical Imaginations!

by Kevin Jon Heller

I’m sorry I didn’t discover it until he linked to me, but Derek Gregory — the Peter Wall Distinguished Professor and Professor of Geography at the University of British Columbia — has recently started a blog entitled Geographical Imaginations: War, Space, and Security. Gregory is one of the great political geographers of his or any generation; I can’t recommend the book from which the blog gets its name highly enough.  Fortunately, the blog promises to be just as good, with recent posts ranging from emergency cinema to the history of bombing to teaching the arts at military academies.

I’ve added Geographical Imaginations to my RSS reader.  You should, too!

RIP, Eric Hobsbawm (1917-2012)

by Kevin Jon Heller

I am very sad to report that the eminent British historian has passed away at 95.  He lived an amazing life, as recounted in the Guardian‘s lengthy obituary today.  Here is a snippet:

If Eric Hobsbawm had died 25 years ago, the obituaries would have described him as Britain’s most distinguished Marxist historian and would have left it more or less there. Yet by the time of his death at the age of 95, Hobsbawm had a achieved a unique position in the country’s intellectual life. In his later years Hobsbawm became arguably Britain’s most respected historian of any kind, recognised if not endorsed on the right as well as the left, and one of a tiny handful of historians of any era to enjoy genuine national and world renown.

Unlike some others, Hobsbawm achieved this wider recognition without in any major way revolting against either Marxism or Marx. In his 94th year he published How to Change the World, a vigorous defence of Marx’s continuing relevance in the aftermath of the banking collapse of 2008-10. What is more, he achieved his culminating reputation at a time when the socialist ideas and projects that animated so much of his writing for well over half a century were in historic disarray, and worse – as he himself was always unflinchingly aware.

In a profession notorious for microscopic preoccupations, few historians have ever commanded such a wide field in such detail or with such authority. To the last, Hobsbawm considered himself to be essentially a 19th-century historian, but his sense of that and other centuries was both unprecedentedly broad and unusually cosmopolitan.

I had the pleasure of taking European history with Hobsbawm when I was a graduate student at the New School for Social Research in the early 90s — when he was already in his 70s.  He was an amazing lecturer, a very nice person, and could drink his students under the table with ease.

I’ve been planning for some time to re-read Hobsbawm’s magisterial “Age” series: The Age of Revolution: 1789-1848 (1962); The Age of Capital: 1848-1875 (1975); The Age of Empire: 1875-1914 (1987); and The Age of Extremes: 1914-1991 (1994).  They are phenomenal books; I can’t recommend them highly enough.

He will be missed.

My Encounter with a Chevron Subpoena — and the ACLU’s Assistance (Updated)

by Kevin Jon Heller

Last week, while I was participating in a conference, I received an email from Google with a puzzling subject line: “Subpoena Notice from Google (Internal Ref. No. 257121).”  I opened the email, assuming that it was some kind of sophisticated phishing attempt.  It wasn’t.  It was Google informing me — more than a little cryptically — that Chevron had subpoenaed my account information and that it intended to comply unless I filed a motion to quash.  Here is Google’s email, with only some identifying information redacted:

Hello,

Google has received a subpoena for information related to your Google account in a case entitled Chevron Corp. v. Steven Donziger, et al., United States District Court for the Northern District of California, 11 Civ. 0691 (LAK) (Internal Ref. No. 257121).

To comply with the law, unless you provide us with a copy of a motion to quash the subpoena (or other formal objection filed in court) via email at [Google email address] by 5pm Pacific Time on October 7, 2012, Google may provide responsive documents on this date.

For more information about the subpoena, you may wish to contact the party seeking this information at:

[Attorney name]
Gibson, Dunn & Crutcher LLP
200 Park Ave
New York, New York 10166-0193
[Attorney phone number]

Google is not in a position to provide you with legal advice.

If you have other questions regarding the subpoena, we encourage you to contact your attorney.

Thank you,
Google Legal Support

My first reaction was shock.  As regular readers know, I have often criticized Chevron’s actions in Ecuador.  But I could not imagine why Chevron was subpoenaing my private information; the sum total of my interaction with Steven Donziger, the Ecuadorian plaintiffs’ lead attorney and the defendant in Chevron’s lawsuit, consisted of two emails, neither of which contained anything substantive.  What did Chevron think I had that would help them?  Or were they simply trying to intimidate me?

My second reaction was anger.  I am — obviously — a blogger.  I am also, as a blogger, a journalist.  I have sources who provide me with confidential information on a wide variety of issues; those sources could lose their jobs if their identities were ever revealed.  It infuriated me that Chevron would try to obtain my account information — and I was equally frustrated that Google apparently had no intention whatsoever of protecting my privacy.

There was never any doubt in my mind that I would resist the subpoena.  But this wasn’t my area of law, so I immediately wrote for advice to my friend and Guardian blogger Glenn Greenwald, who has passionately defended the rights of bloggers and journalists.  Glenn put me in touch with Ben Wizner, the Director of the ACLU’s fantastic Speech, Privacy & Technology Project. To my relief, the ACLU quickly agreed to help me…

An Introduction to the Oxford Guide to Treaties

by Duncan Hollis

Here’s a quick follow-up to my book announcement last week.  With OUP’s kind permission, I’ve posted the Introduction to the Oxford Guide to Treaties on SSRN.  So, for those looking for a more detailed explanation of the book, its goals, and its methodology, feel free to download it there. Here’s the abstract:

From trade relations to greenhouse gasses, from shipwrecks to cybercrime, treaties structure the rights and obligations of states, international organizations, and individuals. For centuries, treaties have regulated relations among nation states. Today, they are the dominant source of international law. Thus, being adept with treaties and international agreements is an indispensable skill for anyone engaged in international relations, including international lawyers, diplomats, international organization officials, and representatives of non-governmental organizations.

This Introduction introduces readers to the Oxford Guide to Treaties, a volume that seeks to provide a comprehensive review of the rules and practices surrounding the making, interpretation, and operation of these instruments. Leading experts provide essays designed to introduce the law of treaties and offer practical insights into how treaties actually work. Foundational issues are covered, including what treaties are and when they should be used, alongside detailed analyses of treaty formation, application, interpretation, and exit. Special issues associated with treaties involving the European Union and other international organizations are also addressed. These scholarly treatments are complimented by a set of model treaty clauses. Real examples illustrate the approaches treaty-makers can take on topics such as entry into force, languages, reservations, and amendments. The Oxford Guide to Treaties thus provides an authoritative reference point for anyone involved in the creation or interpretation of treaties or other forms of international agreement.