Transnational Law Blog

Libya, Lockerbie, and the Hazy Line Between Law and Politics

Several news sources are reporting that the five Bulgarian nurses and Palestinian Doctor convicted of infecting hundreds of Libyan children with HIV have had their death sentences commuted to life in prison by Libya's highest court. The case, which has been moving through Libya's court and appeals system for more than eight years, has become the focus of intense international scrutiny, as many countries and international health organizations have questioned the strength of the evidence against the convicted medical workers.

The ruling today was hailed as a step in the right direction by Bulgaria, the EU, and the US, but there has been no final decision on whether the medical workers will be allowed to return to Bulgaria. The commutation of the sentences came as the families of the infected children agreed to a final settlement of the payment of $1 million US dollars for each child infected.

Something that has received somewhat less attention, however, is the apparent link between the trial of the six medical workers and the trial and conviction of Abdelbaset Ali Mohmed Al Megrahi, a former Libyan intelligence officer, in the bombing of Pan Am flight 103 in 1988. The Los Angeles Times reported in 2001 on a speech given by Libyan leader Moammar Kadafi suggesting that the CIA or Israeli intelligence service was behind the "experiment on the[] children" and promised the medical workers would face "an international trial, like the Lockerbie trial." And, according the Bulgaria's foreign minister, from 2001 to 2005 Kadafi repeatedly offered to exchange the six medical workers for Al Megrahi. In a somewhat surprising twist of events, last month the Scottish Criminal Cases Review Commission agreed to allow a reopening of the case against Al Megrahi, citing new evidence that has come to light since his conviction.

Conceding that there may be the makings of a conspiracy theory entwined in the facts just stated, both cases (the Lockerbie trial and that of the Bulgarian/Palestinian medical workers) serve as examples of just how intensely political cases against foreign nationals can become. The fairness of the trial and validity of the evidence against the accused have been strongly questioned in both cases. For these accused, it seems the line between the law and politics may be incredibly difficult to ascertain.

Trials of Henry Kissenger

Evaluating the Cambodian Officials in the Khmer Rouge Tribunal

One of the most divisive issues concerning the Khmer Rouge Tribunal is the horrendous background plaguing many of the Cambodian officials who are now.  As noted by the Open Society Justice Initiative, a New York-based law group, "Cambodian court personnel, including judges, must kick back a significant percentage of their wages to Cambodian government officials in exchange for their positions on the court." Absent from the OSJI report, and absent from all of the literature and reports on the KRT, is the simple fact that many of the Cambodian officials simply are not suitable nor appropriate to sit on the KRT.  Take Nil Nonn for example, a Lower Court Judge for the KRT and President of the Battambang Court, a provincial court in Cambodia.  In his own words, Nonn has admitted to taking bribes. 

Many of the judges for the KRT also have a record of stifling human rights in their own courts.  Mong Mony Chakriya, a reserve judge for the Supreme Court and President of the Cambodian Military Court, convicted and sentenced two minors to jail despite photo evience that their confessions were extracted under torture. Ney Thol, was the judge who presided over the trial of Cheam Channy, a Cambodian politician and member of parliament for the opposition Sam Rainsy Party, charged with creating an illegal army. The trial is one of the biggest shams in recent Cambodian history and was condemned by the UN, Human Rights Watch, the European Parliament, Amnesty International and the US State Department.  One can easily argue that over half of those appointed to the KRT are officials with dubious records,  inadequate legal education, and a significant history of corruption.  Thus, their appointment to the KRT cuts against basic principles of international human rights law guaranteed fairness and justice in judicial proceedings.

ASIL: International Law in Brief

Author's note: once every two weeks the American Society on International Law (ASIL) sends out a list of cases and briefs concerning the development of international law.  The following information  was prepared by the Editorial Staff of International Legal Materials.

TREATIES, AGREEMENTS AND RELATED DOCUMENTS          

Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention).

Click here for document.

The Protocol on Explosive Remnants of War takes effect on 12 November 2006.  It requires all parties to an armed conflict to clear all unexploded munitions that threaten civilians, peacekeepers, and other humanitarian workers once fighting is over. The United States is not currently a party to the protocol, but it has been forwarded to the United States Senate for action.  The Protocol developed out of an expert meeting held in Nyon, Switzerland in September 2000 where the International Red Cross called upon states to create a more robust legal framework in this area.

States parties adopted the Protocol on Explosive Remnants of War on November 28, 2003.  It is the first multilateral agreement to treat the thorny issue of how to dispose of unexploded ordnance after a conflict.

The Protocol applies to both the land territory and the internal waters of its parties.  Falling within its aegis are explosive ordnance that has been primed, fused, armed, or otherwise prepared for use and used in an armed conflict.  Ordnance may have been fired, dropped, launched or projected, and should have exploded but failed to do so.  Where a user of explosive ordnance does not exercise control over the territory, after the end of fighting the user must provide technical, financial, material, and other assistance, either bilaterally or through a mutually agreed third party such as the United Nations, help to remove, and destroy these remnants of war.  The Protocol also requires parties to it and to armed conflicts, to the greatest extent practicable, maintain information on the use of unexploded or abandoned ordance, to facilitiate its destruction after the cessation of hostilities.  Parties are also to make available, subject to "legitimate security interests," information to the party in control of the relevant area, either bilaterally or though a mutually agreed upon third party such as the United Nations or other relevant organizations.  Parties must provide risk education, and mark, clear, and destroy of the remnants.

JUDICIAL AND RELATED DOCUMENTS

European Court of Human Rights:  Case of Klein v. Slovakia, (October 31, 2006).

Click here for document.

The European Court of Human Rights (EHCR) held that Slovakia’s interference with Martin Klein’s right to freedom of expression violated Article 10 of the Convention as it was not justified by either a pressing social need or a legitimate aim pursued, and was not “necessary in a democratic society.”  The court awarded Klein 6,000 Euros in non-pecuniary damages and 5,210 Euros in cost and expenses.

Trying Donald Rumsfeld and Dating Scarlett Johansson

Reporting on the efforts of the Center for Constitutional Rights to bring a case against former Secretary of Defense Donald Rumsfeld in Germany, the San Francisco Chronicle includes the following remark by UC Hastings Prof. Joel Paul:

Since the post-World War II Nuremberg tribunals, it has been clear that "governments have the right to put on trials of (other nations') officials for international crimes."

Now, it's always a stupid idea to criticize a professor, especially based upon a quote in a newspaper.  However, since I don't have any classes with Prof. Paul this or next semester (and I have a lack of common sense), I think I can get away with throwing some stones without too many negative consequences.

I am not sure that Nuremberg is the proper authority for the ability of governments to try the officials of other nations. Yes, German officials were tried for crimes against humanity, but it was not done by an individual country. Nuremberg, in theory at least, was an international tribunal.  As Prof. Paul has said in his international law classes, a far more relevant authority for universal jurisdiction over foreign officials is ex parte Pinochet (see the "Ripple Effect of the Pinochet Case"), but I am just picking nits here. Similarly, it is well settled that government officials can be tried before international tribunals, e.g. Milosevic and Taylor.  The relative success of the Milosevic and Taylor cases as opposed to the Pinochet situation highlights the fundamental problem facing any effort to bring a case against Rumsfeld: politics.

While ex parte Pinochet contributed to international jurisprudence, it doesn't appear that Pinochet will be seeing the inside of a jail cell anytime soon. Belgium's universal jurisdiction statute was scrapped after the US threatened not to participate in a NATO meeting there.  And of course, there is nothing quite as pleasurable as reminding my Dutch colleagues that Congress has given the President the authority to blow them up. Germany bringing a case against Rumsfeld would be as inadvisable as criticising a Professor's quotation in a newspaper. 

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. 

ICC Prosecutor Speaks

Fresh Air, yesterday, aired an interview with Fatou Bensouda, deputy prosecutor for the International Criminal Court.  The ICC is currently moving forward on its first case, prosecuting the Congolese Thomas Lubanga Dyilo for the war crime of enlisting and conscripting children under the age of 15.  He allegedly utilized them to maintain hostilities in the northeastern Democratice Repulic of Congo.

In the interview, (just under 20 minutes,) Ms. Bensouda discusses the reasons for increasing use of child soldiers, worldwide.  She also explains her route to a career in support of human rights, the role of the ICC, and the subsequent rehabilitation of the children forced to fight and serve soldiers.

Know Your Audience - Legal Writing at International Criminal Tribunals

Considering...Noting...Recalling...

To the uninitiated, the decisions and judgments of the various international criminal tribunals can appear impenetrable and intimidating. The judgments are often in excess of 300 pages and the decisions are prefaced by superfluous vagaries of negligible legal worth: considering, noting, in observance of . . . . Admittedly, some of my impatience arises because this style is incongruent with North American legal education (yes, you too Canada). However, the sprawling and pedantic writing implicates more fundamental concerns about the purpose and focus of international criminal tribunals. Are the tribunals providing understandable accountability to the victims of the atrocities or are they producing rarified jurisprudence for the international community? While these goals are not mutually exclusive, greater efforts are needed to make justice available to the victims of the conflict.

Accessibility has been a fundamental problem for all the tribunals. The working languages of the ICTY are English and French and must be translated into Serbian and Albanian. Both the ICTR and the ICTY are in remote locales, making the publicizing of legal developments difficult. These difficulties have led to later tribunals, like the Special Court for Sierra Leone, to place a greater emphasis on their outreach efforts. But outreach efforts can only go so far to make burdensome legal writing palatable to the local population.

Guilty Before Innocent: The Presumptions Created Under International Law

Overview

The obligation to prosecute or extradite, aut dedere, aut judicare, in turn requires States to create mechanisms of international cooperation in penal matters.[1] As more and more crimes are committed abroad and extraterritorial claims to jurisdiction are formulated, either by expanding the jurisdiction of non-territorial domestic courts or by creating international or regional tribunals, greater inter-state assistance is required to gain access to the perpetrator, victims, or evidence.  As such, different modalities are created to facilitate inter-state cooperation. Despite being founded on universal concerns over accountability for perpetrators of gross crimes, the treaties and institutions that create provisions for mutual assistance remain highly positivist.  Consequently, there is a tension between the customary duty of aut dedere, aut judicare and positivist notions which continue to underline mechanisms of international cooperation in penal matters.  This post will argue that because of these tensions, state, regional and international courts abuse mechanisms of mutual legal assistance and continue to endorse jurisdictional doctrines that ignore the process by which the perpetrator appears before the court. 

Will the Khmer Rouge Tribunal have any significance?

Between April 17, 1975 and January 7, 1979, the Cambodian communist movement, the Khmer People's Revolutionary Party, ruled over Cambodia. Consistent with its policy of agrarian socialism, the Khmer Rouge deported people in massive numbers from urban areas into the countryside and was responsible for the deaths of over 1.5 million people, under the direction of Pol Pot, before the Khmer Rouge’s military defeat by the Vietnamese.  Since that time none of those responsible for the atrocities have been brought to justice. 

In 2004, following immense pressure by non-governmental organizations (NGOs), scholars, and the international community, the Royal Government of Cambodia agreed with the United Nations to establish a tribunal to prosecute a select number of leaders responsible for the atrocities during the Khmer Rouge period.   The Extraordinary Chambers, or Khmer Rouge Tribunal (KRT), was established as a hybrid court composed of both national and international prosecutors and judges. 

However, most of those responsible for the massive atrocities have died off or been given amnesty from prosecution. Only two former Khmer Rouge officials, Kaing Khek Iev (a.k.a. Deuch)  and Ta Mok,  were indicted and placed in custody.  Other senior leaders like Ieng Sary,  Khieu Samphan,  and Nuon Chea  live comfortable lives in Cambodia’s capitol, Phnom Penh, and provincial towns.   Many Khmer Rouge leaders, including the movement’s supreme leader Pol Pot, and senior cadre, such as Son Sen,  Yun Yat,  and Ke Pauk,  have died since the 1975-1979 genocide.  Unlike Chile’s stripping of Pinochet’s immunity, there is no indication that the Hun Sen government in Cambodia has any inclination to strip Ieng Sary or other leaders of their amnesty.   

With Ta Mok's death a few months ago, one has to ask again whether the Khmer Rouge Tribunal will do any good.  With only Deuch being prosecuted, has delayed justice also denied justice?  Transitional justice focuses on a balance between both restorative and retributive theories of justice.  The idea of retributive justice (or lex talionis) stems from the theoretical view that social equality, or fairness, can only be achieved through punishment.  On the other hand restorative justice emphasizes the reconstruction and rehabilitation of a divided society and it involves perpetrators meeting their victims and views the overall criminal justice system as a community-building process.

War Crimes: A Japanese Legacy

Shinzo Abe, a well-connected, dapper politician of the highest pedigree, is all but certain to take the helm as Japan’s Prime Minister upon the retirement of Junichiro Koizumi, says Reuters.  Abe’s credentials are strong with ruling conservatives, nationalists, and, most importantly, voters.  His unquestioned reputation as a hawk was developed amidst North Korea’s abduction of a handful of Japanese nationals, to which North Korean President Kim Jong-Il admitted in 2002.  Abe’s furious reaction to the admission, and subsequent efforts to repatriate the five surviving abductees, captured the Japanese public's attention.  This saga built Abe’s domestic credentials as a leader that could keep Japan safe in a world where multipolarity is apparently replacing American hegemony.

The shift to a multipolar world permits uncertainty a much greater role in international affairs.  East Asia is not immune to this tidal wave of potential discord.  China’s widely heralded rise as an economic power is tipping the previous balance in the region.  Japan’s rocky relationship with its aspiring neighbor, as well as nearby South Korea, suffers from differences in opinion of Japanese atrocities in China and Korea during World War II.  In short, Japan wishes China and South Korea to let bygones be bygones, while China and South Korea view this treatment of history as flippant, even accusing Japan of celebrating its imperial past at the Yasukuni shrine.

Yasukuni honors the Japanese who gave their lives for their homeland from the birth of Japan as a modern nation-state (dated 1868,) to Japan’s surrender to allied forces on August 15th 1945.  Amongst those buried at Yasukuni are several war criminals convicted by the allied Tokyo tribunal of “crimes against peace”.  The shrine also houses a museum glorifying Japan's militarism of yore. 

Current Prime Minister Koizumi has seriously offended many Chinese and South Korean nationals by fulfilling his 2001 campaign promise to visit the shrine annually.  His most recent visit, on the 51st anniversary of Japan’s WWII, inspired South Korea’s government to be “deeply disappointed and angered” according to an official press release, remarking that “such a chauvinistic attitude has worsened relations between South Korea and Japan”.  As Koizumi’s presumed successor, Abe inherits this fallout.

The Economist argues that Abe may not be susceptible to the domestic political forces that required Koizumi’s visits to Yasukuni.  In an August 15th, 2006 article [sorry—subscribers only], the venerable magazine noted:

What matters is the approach his presumed successor, Shinzo Abe, takes towards Yasukuni. Mr Abe’s right-wing credentials are not in doubt. His grandfather, Nobusuke Kishi, himself an accused war criminal, later became a conservative prime minister. A regular visitor at Yasukuni on August 15th, Mr Abe has even questioned the Tokyo tribunal’s legitimacy. He has no need to prove himself, as did Mr Koizumi, to Japan’s nationalists.

Mr Abe also acknowledges the pressing need for Japan to improve ties with China. A beginning could be made by keeping away from Yasukuni. And perhaps the late Showa emperor, known until his death in 1989 as Hirohito, has given him a break. Last month the diaries were leaked of a former head chamberlain of the imperial palace. They record conversations in which the emperor supposedly said that he had stopped going to Yasukuni because of the war criminals enshrined there in 1978. More than half of those recently polled said they oppose a visit to the shrine by the next prime minister, the first time a majority has been against a national leader going.

Perhaps as a hint at Japan’s turning over a new leaf, the current government is signaling its intent to become a member of the International Criminal Court (ICC).  According to The Daily Yomiuri, Japan is pushing for ratification of the treaty, as a prerequisite to joining next summer.  Though historically supportive of the ICC, Japan balked at the large fees required for membership, in light of American abstention.  But, The Daily Yomiuri reports, Japan’s “Foreign Ministry has earmarked 1.98 billion yen [$16.9m] as contributions to the ICC in its budget request for fiscal 2007.”  Opinio Juris calls this “great news for the ICC”, saying,

Japan’s membership would significantly increase the prestige of the [ICC] and encourage other countries in Asia—currently the most under-represented region—to do likewise.

The ICC seems to be on something of a roll.  Court insiders at the international criminal law conference that [Opinio Juris' Kevin Jon Heller] attended in Christcurch said that China is seriously considering becoming a member in the next couple of years and that India may not be far behind.

Perhaps China’s potential ratification of the ICC would be intended, at least in part, to keep the moral high ground against Japan.  If so, the paradoxical result is that regional strife is actually expanding the reach of international criminal law, rather than testing that reach.  In any case, this will not be the last move in the competition between Japan and its neighbors to advocate their tellings of history.   Japan's virtually imminent election of a Shinzo Abe as Prime Minister introduces a volatile ingredient that may actually secure stability.