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Who Says America Can’t Agree on Anything Anymore: Every US Presidential Candidate is in Favor of U.S. Drone Strikes

by Julian Ku

In a tumultuous U.S. presidential campaign season, it is easy to conclude that the U.S. is hopelessly polarized between a proto-fascism and a proto-communism. But while there may be some truth to that observation with respect to immigration and economic policy, it is worth noting that the presidential candidates of both parties agree on many issues of foreign policy, even those that are controversial among international lawyers.

For instance, it is worth noting that all of the presidential candidates support the current U.S. program of drone strikes against Al-Qaeda and ISIS terrorists.

From a legal perspective, the U.S. program of lethal drone missile strikes against ISIS and Al Qaeda terrorist targets is controversial. Not only is the domestic legal authority to strike at ISIS targets under the September 11, 2001 authorization for the use of military force questionable, but the international legality of such strikes in countries such as Pakistan, Syria, Yemen, and Libya is uncertain because none of those four countries have explicitly given consent to such strikes. More significantly, legal critics of the drone program have questioned whether its use complies with the proportionality and other requirements of international humanitarian law due to the number of civilian casualties injured or killed in such strikes.

All of these legal criticisms are plausible, but none of the remaining U.S. presidential candidates are seriously troubled by these criticisms. None have pledged, for instance, to seek an additional authorization for the use of force from Congress to clarify the legal authority for such strikes against ISIS. None have suggested they would cut back or eliminate the program in any meaningful way.

Both of the remaining Democratic presidential candidates, for instance, have publicly expressed support for the program as it is currently being implemented. Hillary Clinton, as might be expected from a former Obama administration cabinet member, has endorsed such strikes on both a policy and legal basis. But so has her chief Democratic rival Bernie Sanders:

In an interview with NBC’s Meet the Press scheduled for broadcast on Sunday, host Chuck Todd asked the independent senator from Vermont if drones or special forces would play a role in his counter-terror plans.

“All of that and more,” Sanders said.

Asked to clarify, he added: “Look, a drone is a weapon. When it works badly, it is terrible and it is counterproductive. When you blow up a facility or a building which kills women and children, you know what? … It’s terrible.”

Todd asked Sanders: “But you’re comfortable with the idea of using drones if you think you’ve isolated an important terrorist?”

Sanders answered: “Yes.”

 

Indeed, there has arguably been more criticism of the drone program from the Republican presidential candidates, although that criticism is largely that the program doesn’t go far enough.

Republican frontrunner Donald Trump has not specifically addressed the drone program (surprise, surprise!). But Trump has famously called for counter-terrorism activities worse than torture, including the deliberate killing of terrorists’ families (presumably through drone strikes). Although Trump has partially reversed himself in a recent statement pledging to comply with all U.S. “laws and treaties” relevant to counterterrorism operations, none of this suggests he is going to cut back. (But this is Donald Trump, so who the hell knows!)

U.S. Senator Ted Cruz, currently Trump’s main rival, has been primarily concerned with limiting or prohibiting the use of drone strikes against U.S. citizens. Cruz, and has sponsored legislation to prohibit drone strikes on U.S. citizens on U.S. soil (with one exception).

Senator Marco Rubio, currently in third place, has also sponsored legislation to require independent review of drone strikes against U.S. citizens. Governor John Kasich, the last remaining GOP candidate, has proposed shifting drone strikes away from the CIA to the military. This last proposal may be the most significant drone reform proposal on the table from any of the remaining candidates. (Kasich is in fourth place on the Republican side).

So who says Americans can’t agree on anything anymore. The U.S. public, and its leading presidential candidates, want drone strikes to continue. All seem to feel like the current drone program is legal under U.S. and international law.  (I should hasten to add that I agree with them on the legal point, although I do think there are many reasonable questions about the program.)  In any event, for U.S. presidential candidates, the only question is whether to do more, not less.

Surprise Hearing in Haiti Cholera Case Appeal

by Kristen Boon

In a surprise announcement late last week, the Second Circuit granted a hearing in the Haiti Cholera Case.  The hearing will take place tomorrow, and the lawyers will have had only 4 days to prepare.    While no reasons were given as to why the hearing was granted so suddenly, the speculation is that upon reading the papers, at least one or more judges decided a hearing was warranted.

If you are in New York on March 1, and want to attend the hearing here are the details:

What: Second Circuit appeals hearing in Georges v. United Nations.

When: Tuesday, March 1, 2016 at 2pm

Where: Thurgood Marshall U.S. Courthouse 17th Floor, Room 1703 40 Foley Square New York, New York 10007

Each side will be granted 10 minutes.

As soon as a transcript is available, I will post it on OJ.

St. John’s Law School Search: Assistant Dean for Graduate Studies

by Peggy McGuinness

St. John’s University School of Law in New York City is conducting a search for a new Assistant Dean for Graduate Studies to head up our LLM programs and other international non-JD programs and initiatives.  Here is the formal announcement with key contact information, but feel free to reach out to me directly if you are interested in learning more about it.

St. John’s Law School is now looking for an Assistant or Associate Dean for Graduate Studies, who will be the senior administrator responsible for the development and management of initiatives related to non-J.D. degrees and programs at the Law School. The ADGS will oversee four existing LL.M. programs: (1) U.S. Legal Studies for Foreign Trained Lawyers (which qualifies graduates to sit for the New York bar exam); (2) Transnational Legal Practice; (3) International Sports Law Practice; and (4) Bankruptcy.  We are looking for candidates with a strong entrepreneurial spirit and keen business sense to develop new degree programs and opportunities as market conditions permit. This is primarily a leadership/management position and will not lead to a tenure-track appointment. The ADGS will develop linkages and partnerships with foreign and domestic educational institutions, bar associations, law firms, and other institutions. The ADGS will also be the senior administrator in the graduate programs area and will manage an office that includes three directors (including one who spends significant time recruiting students in Asia), an office assistant, and a Europe-based consultant.

A J.D. (or J.D.-equivalent from a foreign jurisdiction) and admission to practice law in at least one U.S. jurisdiction and/or significant experience in higher education administration is required.

Interested candidates should submit letters of inquiry and CVs to lawfac [at] stjohns [dot] edu

One more time all together: Obama wants to close Gitmo

by Jens David Ohlin

Just a minute ago, President Obama announced yet again his intention and desire to close the detention facility at Guantanamo Bay. There are no particular surprises here. From what I heard listening to his comments, the plan is merely a renewed push to get Congress to cooperate on closing the prison. Specifically, Obama suggested that the detainees who cannot be released should be transferred to a domestic facility, though he declined to specify which one.

Obama made several points in defense of this plan. He conceded that some members of the public are scared about the possibility of detaining terrorists on US soil, though he noted that we already do that because several terrorists convicted in Article III courts are already housed in federal prisons. Moreover, the federal government has housed them in the US without incident, which demonstrates, according to Obama, that domestic detention is safe.

Furthermore, Obama also tried appealing to fiscal conservatives, noting that the transfers would save the government between $65 milliion to $85 million per year. Over a span of 20 years, that adds up to a $1.7 billion savings. So domestic detention is not only safe, it’s cheaper too.

Obama also announced that although military commissions would remain an option for detainees who are captured on the battlefield in active theaters, for all others, Article III courts are the preferred option for terrorism prosecutions.

There was little discussion of how to clear the political log jam that remains over the fate of Guantanamo, though the President said that he was “clear-eyed” about the challenges of achieving the result he wanted: “The politics of this are tough,” he said, but “this plan deserves a fair hearing.” He noted that even George W. Bush wanted to close the prison.

Of course, one solution, which he did not discuss, would be the use of an executive order to close the Guantanamo facility. I’m very curious to hear readers’ thoughts regarding this possibility. One, I’m interested in predictions about whether he might take such a drastic step in the last months of his presidency. Second, I’m interested in whether it would provoke a miniature constitutional crisis, with Obama using his executive power to close the facility but Congress using its spending power to prevent detainee transfers to domestic soil. What result then?

UPDATE: Transcript of the Background Press Call is here.

New Edition International Law Frameworks

by Kristen Boon

Chimene Keitner has revised and updated David Bederman’s 2006 treatise on International Law Frameworks. This highly readable (and short) text addresses key cases, core disputes, and essential treaties in international law. Following Professor Bederman’s passing in 2011, Keitner was asked to step in and take over the production of a new edition.   In the preface to this 4th edition, Chimene describes how she has updated and adapted the book:

The approach of this edition is consistent with that of previous editions, but I have modified the structure in places and added substantial discussion of recent developments. The volume is still divided into four parts. The first part provides an overview of the international legal system and discusses the nature, history, and sources of international legal rules, including treaties and custom. It also introduces mechanisms for the peaceful resolution of international disputes, including the role of the World Court (previously saved for the end of the book).

The second part focuses on the subjects of international law, including but not limited to States. Although somewhat exaggerated, there is much truth to the view that the “old” law of nations considered only States to be worthy of legal attention. Today, individuals, juridical persons (including business associations), and organizations may also be considered “subjects” of international law that can bear both rights and responsibilities.

The third part canvasses substantive areas of international legal regulation, including human rights (with a new discussion of global migration), as well as “objects” of international control such as land and maritime boundaries, the international environment, and the global economy. It also considers the law of countermeasures and the laws governing the resort to, and use of, armed force. The chapters on the use of force and armed conflict include new reflections on the role of government lawyers and consider new developments in substantive law in an era of drones and “cyberwarfare.”

The fourth and final part considers the relationship between domestic law and international law. This is the portion of the book most closely geared to the demands of U.S. law practice. At the same time, it introduces readers to other countries’ views on issues such as jurisdiction, immunities, and related considerations in the conduct of foreign policy. A new concluding chapter reflects on key challenges and opportunities for today’s international lawyers, including managing global pandemics, regulating cyberspace, and addressing global inequality.

Many of us have used this book as a supplement, a primer, or even as a core textbook to be read in conjunction with primary source materials.  If you would like to pre-order or request a complementary copy of the book, here is the link.

Justice Scalia’s Rule of Law Efforts

by Duncan Hollis

Scalia photo

Justice Scalia’s passing comes as a shock and is generating tributes across ideological lines. Indeed, whether you agreed with his opinions or not (and I was not a fan of his thinking on cases like Sosa or Bond), Justice Scalia’s opinions deserved to be read.  Lines like “never-say-never jurisprudence” and “oh-so-close-to-relevant cases” are some of my personal favorites.  Readers should feel free to add their own in the comment section.

In the meantime, I wanted to pay tribute to a side of Justice Scalia that has garnered relatively little attention — his dedication to promoting the rule of law.  For the last sixteen years, Temple Law has run a rule of law program in Beijing hosted at Tsinghua University’s School of Law.  We offer an LLM to classes of 50 Chinese judges, prosecutors and lawyers, in an effort to acquaint them with the U.S. legal system and the rule of law more generally.  As part of the program, the Chinese students visit Philadelphia for the summer, which includes a day trip to D.C.  And nearly every year the highlight of that D.C. trip was an hour long private audience with Justice Scalia.  Justice Scalia would speak for a few minutes but most of the time was devoted to answering student questions. We conducted the sessions off the record, so I do not feel comfortable opining on who said what, but I always came away impressed by the honesty, vigor and intellectual quality of the exchange. I was universally impressed with Justice Scalia’s wit and candor.  He offered the students a true model of free speech in the U.S. legal tradition.  I don’t know if Temple’s China program was the only time he did this, or if this effort was one of many to expand the rule of law.  But I can say it was a highly effective one.  And so, as the nation mourns the passing of one of its most opinionated justices, I wanted to offer my own small tribute of appreciation to a man who, for whatever else he believed, was committed to the idea of democracy and the values of liberty and equality on which it stood.

International Law Movies

by Kristen Boon

After attending a great panel at ESIL in 2014 on International Law and Film, I’ve been thinking about how to integrate film into my public international law class. I’ve compiled a list of international law films (with help from colleagues and fellow bloggers) that make for excellent viewing.  In a subsequent post, I’ll offer some thoughts about teaching international law through film.

Dramatizations

Zero Dark Thirty (Bin Laden)

Team America (Terrorism, North Korea and WMDs) (not on the serious side of international law movies!)

The Interpreter (filmed in the UN)

Argo (Iran Hostage Crisis)

The Reader (War Crimes Trial in Germany)

Battle of Algiers (Algerian War of Independence)

Hotel Rwanda (Genocide in Rwanda)

Woman in Gold (Nazi Art Theft, FSIA)

The Whistleblower (Post-War Bosnia)

Captain Phillips (Piracy)

Blood Diamond (Conflict Diamonds)

Lord of War (Arms Dealing)

War Witch (Child Soldiers)

Star Wars (Trade Dispute prompts Armed Conflict in Outer Space) J

Bridge of Spies (Cold War)

The Constant Gardener (Diplomacy, Pharmaceuticals, British High Commission in Kenya)

Judgment at Nuremberg (Nuremberg Trials)

Documentaries

The Reckoning (The ICC)

Last Station before Hell (UN peacekeeping)

Sons of the Clouds:  The Lost Colony (Western Sahara)

The Gatekeepers (Shin Bet)

Taxi to the Darkside (Torture, Afghanistan)

All Rise (Jessup Competition)

 

An alternate list of international law films compiled by Lyonette Louis-Jacques at the University of Chicago Law Library with more foreign / older content available is here.

Do you have additional movie ideas?  Please add other titles using the comments box below.

The First Annual Michael Lewis Memorial Teleforum on “Defining the Law of War”

by Julian Ku

As many of our readers may recall, the late Professor Michael Lewis was a great friend of this blog and an important voice in U.S. international law and national security scholarship.  To honor his memory, the Federalist Society has recently launched the first annual Michael Lewis Memorial Teleforum in his honor.  The podcast features Maj. Gen. Charles Dunlap (Professor of the Practice of Law Executive Director, Center on Law, Ethics and National Security, Duke University School of Law) and Prof. Michael A. Newton (Professor of the Practice of Law, Vanderbilt University Law School).

The law of war is of fundamental importance to the Armed Forces of the United States. The law of war is part of who we are.” So begins the new U.S. Department of Defense Law of War Manual, published last June, which had not been updated for nearly 60 years. At 1180 single-spaced pages and with 6,916 footnotes, the manual would seem to be thorough and exhaustive. Our experts will critique the Department of Defense Manual. Does it provide the guidance necessary to troops on the ground, commanders, and all actors in between? How does it address modern warfare, terrorism, and asymmetrical war? How does it define lawful and unlawful belligerents? What does it say about interrogation and detention? These and other questions were addressed by our experts.

It’s a wonderful way to remember a great guy, but continuing to discuss and debate those issues about which he cared the most.

Eichmann Called Himself an Instrument

by Jens David Ohlin

The New York Times reported yesterday that Adolf Eichmann apparently wrote, by hand, an 11th-hour request to the Israeli President for a pardon of his conviction for crimes against humanity (or commutation of his death sentence). The request was denied and Eichmann was executed a few days later–the only execution ever carried out by the Israeli criminal justice system. The letter had been filed in archives and was only recently rediscovered as papers were being prepared for digitization.

Eichmann’s arguments are disturbing. Here is an excerpt:

There is a need to draw a line between the leaders responsible and the people like me forced to serve as mere instruments in the hands of the leaders… I was not a responsible leader, and as such do not feel myself guilty.

What is striking about the letter, in addition to its obvious obliviousness to his own moral responsibility, is the invocation of the language of “instrumentalities” in the argument. The notion of an “instrument”–a human instrument, analogous to a weapon or other physical object–was incredibly important for Claus Roxin, the German criminal law theorist who used the Eichmann case as an inspiration for the development of his theory of indirect perpetration, called Organisationsherrschaft, which translated means roughly “indirect perpetration through an organized apparatus of power.”

For Roxin, Eichmann was a classic case of someone who used others as instruments to perpetrate his crimes. But instead of simply using other individuals, Eichmann used an organization–which was characterized by the fungibility of its members and the automaticity of its execution of orders received from above. In that sense, the organization became the “through element” by which the order was carried out and the criminal plan brought to fruition by Eichmann.

The ironic thing is that in Eichmann’s letter, he claims that he was the mere instrument–presumably an instrument in the hands of Hitler himself. Obviously the Israeli Court disagreed and viewed Eichmann as something more than a mere instrument–they concluded that he was an active participant and indeed architect of the specifics of the so-called “Final Solution,” the extermination of Jews in Germany, Europe, and beyond.

Although Eichmann’s factual argument is implausible and self-serving (and inconsistent with the facts), it does raise, in the abstract, a complex legal question: how to treat the responsibility of mid-level or upper-level perpetrators who control subordinates below them but who are arguably not at the top of the chain of command. Should Organisationsherrschaft (and the Control Theory more broadly) apply to them?  How should we model individual criminal responsibility in this context?

Incidentally, this issue is discussed by Kai Ambos in Volume 1 of his treatise, pages 115-116, especially with regard to a case in Argentina that declined to apply Organisationsherrschaft for similar reasons (the court concluded that it could only be applied to the top-level Junta, and not subordinate officers below the top level). I’m curious what others think of this argument.

The ICC and Mainstream TV: A Recent Episode of The Blacklist

by Kristen Boon

I was watching a recent episode of the TV show The Blacklist the other day, when much to my surprise there was a segment on the International Criminal Court.

As the summary recounts:  “The Director wakes up on the Venezuelan president’s jet, where Foreign Minister Diaz arrests him. Red calls Hitchin to say they’re on their way to the Hague, where The Director will be tried for crimes against humanity…”

On the one hand, there is an accurate back and forth about whether the ICC has jurisdiction over The Director, because the US is not a party to the ICC. (Venezeula, of course, is).

On the other hand, the writers glossed over the fact that “delivering” a high level US government official to the ICC’s front door does not equal a referral – the ICC has the power to determine whether its jurisdictional requirements are met under Arts. 12 & 13 of the Rome Statute.

The other creative fiction of the show is that the ICC has an ongoing investigation into US activities (drones, torture, and rendition).    In reality, the ICC has opened an investigation into the situation in Afghanistan, which implicates the US.   It was first reported in the press two years ago.   The 2015 Report on OTP activities (at p. 31) indicates this investigation is still ongoing.  (Hat tip to Kevin Heller for confirming the current status of this probe).  Nonetheless, any ongoing ICC investigations are far narrower  than what the TV show suggests.

I confess to great satisfaction in watching the ICC enter popular culture, even if some creative liberties are being taken as to its jurisdiction and potential reach over American officials.

Spoiler alert: here is the relevant part of the script!

Red: Oh, your God can’t help you now, Peter. You’re traveling over the Atlantic, on the Venezuelan President’s Airbus, – on your way to The Hague.
The Director: You’re insane.
Red: I wouldn’t know. But you’re going to have the distinguished honor of becoming the first American official ever to be charged with even a single war crime, let alone the slew of them you will undoubtedly be accused of – before the week is out.
The Director: This won’t happen. United States isn’t party to the Rome Treaty. We don’t recognize its authority.
Diaz: But Venezuela does. And cases can be referred to the court by any country that is a signatory. You know as well as I do, even better given your position, the international court has been investigating the US government and the CIA for any number of alleged crimes. The drone program, the rendition of foreign citizens, torture as a means of interrogation.
Mr Diaz: The Chief Prosecutor has made it clear. He does not need American permission to move forward.
Red: He needs an American in the flesh. The court will not try anyone in absentia. So far, no country has had the courage to deliver one of your countrymen to the court until now. You’re a trendsetter, Peter. Who knew?
Director: I am the CIA Director of Clandestine Services. Do you have any idea what’s gonna happen to you? This is an act of war. My government will never let it stand.
Red: Precisely what I’m counting on.  …..

Red: Laurel, Raymond here. Here’s where we stand. In a handful of hours, this jet will land in Rotterdam, it will be met by the Dutch federal police, who will escort the Director to ‘S-Gravenhage, where the global spectacle of a high-ranking American official charged with war crimes will begin.

Guest Post: 2015 at the African Court on Human and Peoples’ Rights–A Year in Review

by Oliver Windridge

[Oliver Windridge is a British lawyer specializing in international human rights and international criminal law. Oliver is founder of The ACtHPR Monitor, an independent blog and website dedicated to the African Court on Human and Peoples’ Rights, on twitter @acthpr_monitor. In June 2014 he was one of five non-African lawyers to be appointed to the Court’s inaugural list of Legal Aid Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organization affiliated to the author.]

Following some positive feedback from last year’s post rounding up the activities of the African Court on Human and Peoples’ Rights in 2014, I thought a review of some of the Court’s key 2015 events may be of interest.

For those who are not familiar with the Court, it was established by the African Union (AU) to hear cases relating to alleged violations of the African Charter on Human and Peoples’ Rights (African Charter) and other international human rights instruments. The Court is based in Arusha, Tanzania and is separate to its cousin the African Commission on Human and Peoples Rights. Two key instruments to keep in mind are the Court’s Protocol, ratification of which gives the Court jurisdiction to hear cases referred to it by the African Commission, from the country itself, from other AU members states and from African Intergovernmental Organizations. The other instrument is the “Special Declaration”, found in Article 5 (3) and Article 34 (6) of the Protocol, which must be signed by the member state in addition to the Protocol to allow individuals and NGOs from that member state to petition the Court directly.

May: the Court’s 37th Ordinary Session

At its 37th Ordinary Session the Court held public hearings in two cases concerning Tanzania. In Onyango et al v Tanzania the Applicants, all citizens of Kenya, allege they were kidnapped in Mozambique and taken to Tanzania where they were charged with murder and three charges of armed robbery. In Abubakari v Tanzania, the Applicant challenges a conviction and 30 year sentence for two counts of armed robbery. Judgement in both cases is pending.

June: Zongo and others v Burkina Faso reparations judgement

Having handed down judgment on the merits in March 2014 in Zongo and others v Burkina Faso, in which the Court found that with regards to the alleged assassination of investigative journalist Norbert Zongo and colleagues in December 1998, Burkina Faso violated several articles of the African Charter and Article 66 of the ECOWAS Treaty by failing to take measures to ensure the families of the deceased the right to be heard by a competent national court, the Court handed down its judgement on reparations. This judgement is the first in which the Court has awarded reparations to successful applicants. The judgement solidified the Court’s initial findings in June 2014 in the Mtikila v Tanzania reparations judgement that the Court has the power to award reparations to the victims of human rights violations. Zongo builds on this by actually doing so. In fact, the Court awarded the entire amount claimed in reparations by the applicants who consisted of the spouses, children and parents of the deceased. The Court also awarded a symbolic payment to the NGO who assisted in bringing the case and ordered costs for lawyer’s fees, travel and accommodation. As I have written elsewhere, the award of reparation should cement Zongo and others v Burkina Faso as another landmark case for the Court.

July: sensitization visit to Lesotho

In July, the Court conducted a one-day sensitization visit to Lesotho. The main objective of sensitization visits being to enhance the protection of human rights in Africa and promote the Court and its activities. As the Court’s press release explained, Court officials met with various government officials, lawyers and NGOs. The visit saw further promises from both government and the NGO sector to work toward signing the Court’s Special Declaration that would individuals and NGOs in Lesotho direct access to the Court.

July: the EACJ ruled on the Court’s Special Declaration

In Democratic Party v Secretary General of the East African Community and others the Appellate Division of the East African Court of Justice (EACJ) ruled on whether signing the Court’s Protocol also creates an obligation on the member state to sign the Special Declaration. The EACJ Appellate Division found that whilst it was able to consider potential violations of the African Charter and the Court’s Protocol under the premise of the East African Community Treaty, the wording of Article 5 (3) and Article 34 (6) of the Protocol contained no requirement that a member state who signs the Protocol must also sign the Special Declaration. This important decision seems to preclude, at least for now, reading any obligations into signing the Protocol that are not clearly spelled out, and keeps the process for granting individuals and NGOs access to the Court a definite two stage process.

August: Cameroon ratifies the Court’s Protocol

In August, Cameroon ratified the Court’s Protocol, taking the number of AU member states who have ratified to 29. Still, only seven AU member states have signed the additional Special Declaration. The AU has a total of 54 members.

September: (Then) President Kikwete visits the Court

Tanzanian President Kikwete, as he was prior to Tanzania’s elections, visited the Court in September. During this visit Kikwete announced that Tanzania was pledging $100,000 towards the Court’s legal aid scheme, which was set up in July 2014. Sadly, some 14 months after the fund’s creation, Tanzania’s pledge appears to be the first and only such donation to the legal aid scheme to date.

October: sensitization visit to South Africa

The Court held a one-day sensitization event in South Africa, including an address by the Court’s President Justice Ramadhani encouraging South Africa, which ratified the Court’s protocol some 13 years ago, to make the Special Declaration. More information on the visit can be seen here and here.

November: 39th Ordinary Session

The Court rendered its judgement on the merits in Thomas v Tanzania at its 39th Ordinary Session, marking another success for an applicant before the Court, this time relating to fair trial rights.

The Applicant was convicted in Tanzania of armed robbery and sentenced to thirty years imprisonment, a sentence he was serving at the time of the application. The Court found that the trial process leading to the Applicant’s conviction and his subsequent attempts to appeal said conviction were riddled with violations of his right to a fair trial. In particular, the Court found Tanzania in violation of Articles 1, 7(1) (a) (The right to an appeal to competent national organs) , (c) (the right to a defence and counsel of choice), and (d) (The right to be tried within a reasonable time by an impartial court or tribunal) of the African Charter as well as Article 14(3)(d) of the ICCPR. However, despite finding these violations, the Court rejected his request for immediate release from prison, since he had not set out “specific or compelling circumstances”. Instead, it called on Tanzania to remedy the violations within six months, specifically precluding retrial or the reopening of the defence case as remedies, given that the Applicant had served 20 out of 30 years in prison; surely an indirect call by the Court for the Applicant to be released. Issues of costs and reparations have been postponed to a later date.

November: 2nd Judicial Dialogue

The Court jointly organized with the AU the second “Continental Judicial Dialogue” which took place in Arusha. The event included delegates from AU member states, including Chief Justices, Presidents of Supreme Courts and Constitutional Courts, members of academia, national judiciaries and media. The theme of the three day event was “Connecting National and International Justice”. Interestingly, amongst the attendees were a number of judge from the Inter-American Court of Human Rights who shared their experiences of sitting on human rights cases.

December: sensitization visit to Chad and the results of the Court’s inaugural moot court competition

The Court undertook its third sensitization visit of the year to Chad. From this visit, we received the encouraging promise that Chad will sign the Court’s Protocol and, crucially for access issues, the Special Declaration. Although at the time of writing this has not yet happened, the public declaration will hopefully serve to see Chad go on to fulfil its promise sooner rather than later.

Finally, the Court announced the winners of its inaugural moot court competition, with Moi University in first place, the University of Zambia a close second and Makerere University third.

Conclusion

The Court continued to promote itself with sensizitation visits AU to Leshoto, South Africa and Chad, with this last visit resulting in the promise that Chad will sign the Court’s Protocol and Special Declaration imminently. Whilst there were also rumblings in Uganda about signing the Special Declaration, it is worth noting that no AU member state actually signed the Special Declaration in 2015, meaning further engagement with member states is clearly needed. On actual cases before the Court, applicants continue have a 100% success rate, having now gone a perfect 4-for-4 before the Court, showing that when jurisdictional issues are overcome the Court is not afraid to make findings against member states.

Above all, 2015 felt like a year in which the Court continued to mature and begin to seriously promote itself across Africa. The President of Court himself has been vocal in urging AU members states to sign the Protocol and Special Declaration allowing individuals and NGOs direct access to the Court as can be seen here, here, here, and here. Of course, what continues to hamper the Court is the number of individuals and NGOs who can actually access the Court. To make the Court a truly continental one, AU member states must sign up and embrace the Court in 2016 and beyond.

Parsing the Syrian-Russian Agreement Concerning Russia’s Deployment

by Chris Borgen

The Washington Post asks (and answers) the following:

When you are a major nuclear power and you want to make a secretive deployment to a faraway ally, what is the first thing you do? Draw up the terms, apparently, and sign a contract.

That’s what the Kremlin did with Syria in August, according to an unusual document posted this week on a Russian government website that details the terms of its aerial support for Syrian President Bashar al-Assad.

Among other revelations in the seven-page contract dated Aug. 26, 2015, the Kremlin has made an open-ended time commitment to its military deployment in Syria, and either side can terminate it with a year’s notice.

The “Agreement between the Russian Federation and the Syrian Arab Republic on deployment of an aviation group of the Russian Armed Forces on the territory of the Syrian Arab Republic” is similar in purpose to status of forces agreements (SOFAs) that the U.S. signs with countries in which it has military bases. (For an overview of US SOFA practice, see this State Department document (.pdf). ) The agreement sets out issues concerning immunities, transit rights, the movement of property, and so forth.

However, every international agreement is a product of the political and strategic concerns in a particular bilateral relationship. Consequently, there can be a variety of SOFA practice even among the agreements drafted by a single country.  Concerning US practice, GlobalSecurity.org explains:

Status-of-forces agreements generally come in three forms. These include administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status; a “mini” status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement. The appropriate arrangement is dependent upon the nature and duration of U.S. military activity within the host country, the maturity of our relationship with that country, and the prevailing political situation in the host nation.

To take one example from US practice, the 2008 Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq (the “2008 Iraq SOFA” (.pdf))  was made after the US was already in Iraq for five years; it was in part about responding to tensions between the Iraqi government and the US as well as the mechanics of withdrawal. By contrast, the Russian/Syrian agreement was made early in an intervention of undefined length and scope. responding to issues that already existed, the 2008 Iraq SOFA is twenty-four pages long, covering more topics and also with more provisions within each article. (The 2008 Iraqi SOFA is no longer in force, but I will use it as a comparator.)

By contrast, the Russian/Syrian agreement is a very brief seven pages. But, besides being quite short, the main characteristic of the agreement is that it maximizes Russian prerogatives and flexibility. Article 2 has the transfer “without charge” from Syria to Russia of  “Hmeimim airbase in Latakia province, with its infrastructure, as well as the required territory agreed upon between the parties” for the use of the Russian aviation group to be deployed in Syria.  Article 5 entitles Russia: (more…)