Transnational Law Blog

The International Criminal Court's First Case

The International Criminal Court (ICC) began the first prosecution of its short history yesterday, in the case of a Democratic Republic of the Congo militia leader, Thomas Lubanga.  Lubanga, who once led the powerful and ruthless militia Union Congolese Patriots (UPC) , has been charged with "conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities", essentially turning them into killers in the Congo's eastern Ituri region.  Judges at the ICC are to decide whether Lubanga should stand trial for allegedly recruiting child soldiers. 

Prosecutors said that at the height of the conflict, many of the child soldiers were themselves killed during the fighting.  As many as 30,000 children, both boys and girls, were part of Mr. Lubanga's militia.  The children served as fighters, cooks, carriers and sex slaves, some as young as ten years old.  A estimate of four million people were killed during the four year war in DRC.

Lubanga was transferred to ICC custody on March 17, 2006 by Congolese authorities.  The purpose of the hearing is to determine whether there is enough evidence to establish substantial grounds to believe that Lubanga committed the crimes with which he is charged.  If the judges confirm the charges, the case will proceed to trial - marking the first time an individual is brought before an international court soley on the basis of these crimes.  "The case is a landmark in the fight against impunity for these crimes affecting children in the DRC and worldwide," said Chief Prosecutor Luis Moren-Ocampo, an Argentinian who started his career in international human rights prosecuting top military commanders for mass killings and large-scale human rights abuses in his home country.  Deputy prosecutor Fatou Bensouda of Gambia explained, "regardless of the outcome of the proceedings, this case exposes the destructiveness of forcing children to fight adult wars, a practice that puts their lives at risk and jeaopardizes entire communities."  The hearings are expected to last until the end of the month. 

The ICC was created as a permanent institution to end the need to continuously creat ad hoc war crimes tribunals, like those for the former Yugoslavia and Rwanda, both of which have been prosecuting war crimes, crimes against humanity, and genocide for the past ten years. 

NYT reported, that some question whether the focus on child soliders is the "right" first case for the ICC.  Rights groups, which strongly support the court, have criticized the charges against Lubanga, saying the focus on child soldiers overlooked the many grave crimes of his militia like ethnic massacres, murder, torture, rape and mutilation.  "Recruiting children has been practiced in many places in Africa since the 1960s and many Congolese don't consider this as serious as massacres and other atrocities," said Geraldine Mattioli, a lawyer at Human Rights Watch who followed the Congolese war. 

Islam and Europe - Can They Coexist?

Islam is widely considered Europe's fastest growing religion, with immigration and above average birth rates leading to a rapid increase in the Muslim population.  There has been much debate about solving the problem of "Europe's angry young Muslims."  Since the terrorist bombings of London and Madrid, many fear that the anger and frustration of the new generation of young, alienated Muslims may grow into a new homegrown crop of radicalists.  In the past year we have seen fierce protests throughout Europe over caricatures depicting the Prophet Muhammad, Berlin's Deutsche Oper's rendition of Mozart's opera,  newspaper essays, veils and school customs.  This begs the question whether such growth of the Muslim faith in Europe is compatible with Western European values?  Or is Europe on the verge of a clash of civilizations? 

Stephanie Giry says that assimilation of the Muslim population in France is possible and indicative for the rest of Europe.  Thus, a so-called clash of civilizations is avoidable.  Whether or not the necessary steps will be taken is entirely another question.  "These events are evidence that the immigration and integration policies of several European countries have failed," writes Stephanie Giry in France and Its Muslims.  While Giry maintains that the question of homegrown terrorism is a serious one, it obscures the fact that the vast majority of Europe's 15-20 million Muslims have nothing to do with radical Islam and are struggling hard to fit in, not opt out.   

Muslims desire to assimilate has sometimes been met with a form of discrimination fueled by nativism and a deep distrust of Islam that has made it more difficult for them to find homes and jobs.  But what has turned such vexing problems into crushing burdens is the economic stagnation that has afflicted the whole country and defied reform for three decades.  The greater problem is that the debate over how to ease these difficulties is now ideologically polarized, having been hijacked by public intellectuals and politicians out of touch with the country's realities.  The front-runners of France's 2007 presidential and parliamentary elections seem more interested in using the issue of Muslim integration for their own electoral ends.  Some have resorted to scaremongering about security and immigration and have conflated those issues with Muslim integration (sound familiar?). 

Despite fears that Muslims would display less than complete loyalty to French values, Muslims have largely acted as independent citizens, keeping their religious beliefs in line with French republicanism.  To the extent that they constitute a distinct community, it is only in the eyes of politicians angling for an edge or of those who stigmatize them for religion or countries of origin.  If discrimination continues to go unaddressed, there is real danger that French Muslims might get used to being treated as though their religious and ethnic identity was decisive and then start resorting to a kind of defensive identity politics.  Such a result would be a self inflicted one for France and an unnecessary one. 

France could find a way to both expect and facilitate the full incorporation of French Muslims into national life while respecting both traditional French values and a modern Muslim identity.  [In order to do this, the author suggests a bit of public education to demystify Islam, as well as abandoning inflated republican rhetoric].

Giry's article is an insightful look into the successes and failures of Muslim integration into French society with important implications of future integration in Europe as a whole. While I agree with her analysis that it is the political and intellectual elite who so often manipulate the Muslim population, as well as other minorities, for their own political purposes, I think the solution is much more complex than public education and abandoning republican rhetoric.  Really,  it is the whole of French society that needs to create avenues for reform in the private and public sectors.  It is the minds and attitudes of the French people that need to change. 

Ex-CIA Operative: 1. US, Cuba, Venezuela: 0

Luis Posada Carriles' distinguished career of hiding, detention, and escapes was capped by Magistrate Judge Garney's 24-page opinion, obliging U.S. Immigration and Customs Enforcement (ICE) to let Posada loose.  Venezuela and Cuba have demanded his extradition, but the US has been less than cooperative.  The official reason for US refusal to extradite Posada is the belief that Venezuela and/or Cuba would torture this alleged international terrorist.   [Insert punch line here.]

On the fifth anniversary of 9-11, U.S. Magistrate Judge Norbert Garney, in El Paso, Texas ordered the supervised release of 79-year-old exile, last week, from ICE custody.  Posada Carriles is a CIA-trained Venezuelan citizen, wanted by both Cuba and Venezuela in connection with the 1976 bombing of a Cuban plane off Barbados, killing 73 people, and a 2000 plot to assasinate Fidel Castro. 

Cuba initially acquitted Posada for his invovlement in the assassination plot, but Posada escaped prison for El Salvador before the Cuban government could appeal the case.  In El Salvador, Posada worked for the Nicaraguan Contra resupply network, operated by then White House national security council staffer Oliver North.  Later, Posada was detained in Panamanian prison for his involvement in the assasination conspiracy.  Upon being freed, he hid in Honduras, before sneaking into the US in March 2005.  The Miami Herald reports that he was captured by the ICE that May, "when federal immigration agents detained him in Miami-Dade county hours after appearing at an invitation-only news conference". 

[Subsequently,] Posada sued ICE in federal court when the Homelands Security agency denied his release March 22, arguing he was a "danger to the community" and posed a "risk to the national security of the United States."

But Garney wrote in his opinion Monday that the ICE statement was not enough to keep Posada in detention.  According to Garney, the law requires for indefinite detention a formal certification by the U.S. attorney general [sic] that a detainee is a terrorist or threat to the community.  "In this case, petitioner was never certified by the Attorney General as a terrorist or danger to the community or national security," wrote Garney, adding the government also had not "moved to detain petitioner under any special circumstances".

Magistrate Judge Garney's opinion only holds the weight of a recomendation, prior to approval by Article III Judge Philip Martinez.  Judge Martinez's opnion is expected soon.  According to Reuters, the US can not find another country to take Posada, where he will be free from torture.  So, the court's only option in this case is to free him within in the US, or find a legal reason to continue his detention