Transnational Law Blog

In Re Extraordinary Rendition

Paul Cavalluzo is counsel to the Canadian federal commission investigating the extraordinary rendition of Canadian citizen Maher Arar.  In an interview with the Washington Post, Cavalluzo summarized the Arar Commission's findings as follows:

This is really the first report in the Western world that has had access to all of the government documents we wanted and saw the practice of extraordinary rendition in full color... .  The ramifications were that an innocent Canadian was tortured, his life was put upside down, and it set him back years and years.

A brief outline of the Arar Commission's factual findings follows:

• Maher Arar and his wife were wrongly put on a watch list of the US government, being described as "Islamic extremist individuals".  The US placed the Arar's on this list after the Royal Canadian Mounted Police (RCMP) provided incorrect information to US authorities. 
• Arar was detained by US authorities during a layover in New York's JFK Airport, on September 26, 2002, while returning home solo from a family vacation.  He was held in the States for 2 weeks before being flown on a private plane to Jordan.  From Jordan, Arar was driven across the Syrian border where he was tortured and questioned in a notorious Damascus prison.  No charges were ever filed against Mr. Arar.
• In the words of Justice Dennis O'Connor, who authored the Arar Commission's findings, "I am able to say categorically that there is no evidence to indicate that Mr. Arar has committed any offense or that his activities constitute a threat to the security of Canada."  Justice O'Connor concludes, "Canadian investigators made extensive efforts to find any information that could implicate Arar in terrorist activities... .  The results speak for themselves: they found none."

Double Standard for Local Terrorist Organization

I’ve written several times about my distrust of several news sources by hard-line monarchists or the Mojahedin-e Khalq Organziation (a.k.a MKO, MEK, National Council of Resistance of Iran, NCRI, People's Mojahedin of Iran, PMOI, etc.) as well as those who rely on these sources as "news". Reading news from one of these agencies isn't about reflecting on different interpretive accounts of events. This isn’t like choosing between the New York Times and Washington Post where there are different “spins” on the same source of information. Both the Times and the Post believe they are being objective, but in different ways. Relying on news sources by hardline monarchists and the MKO, is about choosing an agency that absolutely lies or exaggerates incidents in order to enhance their own political objective. Let us take Iran Focus as an example. In the past I have noted that Iran Focus is a agency run by the MKO for various reasons:

1) The current executive director of Iran Focus is Mohammad Hanif Jazayeri. Hanif is the son of Hassan Jazayeri. Until three years ago, Hassan Jazayeri was rumored to have died in 1980 as a result of being abandoned by MKO and Iraqi trainers. Later the story was changed to Hassan being executed by the Iranian regime for his membership with the MKO. Given Iran and the MKO's history of human rights abuses, I won't argue which is the correct account. Before Iran Focus was ever created, Hanif has time after time advocated his support for the MKO. In fact, about a year ago Hanif was engaged in a campaign to remove the MKO from the UK’s list of terrorist organizations (it is worth noting that the MKO is also included in the State Department's list of terrorist organizations.).

Additionally, in various posts dated in 1998 and 1999, Hanif has advocated his support for the MKO as Iran’s only "democratic alternative."

Hanif's signature also appears on this petition supporting the MKO cause.

2) Iran Focus along with its sister site Iran Terror (look at the website designs and stories as well as the website for the MKO and you can easily see they're created by the same designer) are registered in London and Paris respectively. In fact both organizations, including the MKO, tried to allege that the Human Rights Watch report illustrating all the human rights abuses committed by the organization was a result of some conspiracy between HRW and agents in the Iranian government. A response to the allegation can be found here. I'd like to add that the "Gulf 2000 list" which Iran Focus and Iran Terror refers to is a listserv with hundreds of academics, politicals, and thinkers on the Persian Gulf with different political viewpoints. Nevertheless, the Iran Terror email refers to emails sent in the listserv as "secret emails" which they had intercepted.

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. 

The UN Should Recognize Taiwan's Right to Representation

The Volokh Conspiracy Blog has an excellent post entitled, "Taiwan's Right to Representation in the UN". Amongst numerous historical arguments, the post elucidates several reasons why Taiwan deserves its own representation in the UN. The basic argument is not that Taiwan should represent China in the UN but simply that Taiwan deserves it's own seat as an independent, sovereign nation. In 1971, Twenty-two years after Chiang Kai-shek and his armies fled mainland China to Taiwan, the UN determined that Beijing and not Taipei should represent China at the UN. However, UN Resolution 2758 only addressed the question of whether the Mao or the Chiang regime should hold the seat and it was silent about the matter of Taiwan's independence.

The post stated that "it is important for the public and the diplomatic community to recognize the illegitimacy of Taiwan being denied its rightful place in the United Nations." Article 4 of the UN Charter says that "Membership in the United Nations is open to all other [non-founding] peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations." As the Volokh Conspiracy Blog pointed out:

Taiwan is indisputably a "peace-loving" state — in marked contrast to China, which not only makes threats against Taiwan, but supplies arms and financial support to warlords, dictators, and genocidaires around the world, including in Sudan.

Military Coup in Thailand - A Necessary Evil?

Members of the Royal Thai Army staged Thailand's first coup d'etat in 15 years against the government of Prime Minister Thaksin Shinawatra this week, reminding many of old times in Bangkok.  (Thailand has suffered 18 coups since it became a constitutional monarchy in 1932.)  The military, led by army chief, General Sonthi Boonyaratglin, also canceled the upcoming elections scheduled for October, abrogated the Constitution, censured and suppressed media outlets, and terminated both houses of Parliament, the cabinet and the Constitutional Court (see here).  The military leader said that power was seized to end the turmoil under Thaksin's leadership, to wipe out rampant corruption and to rehabilitate a divided nation.  Almost immediately following the coup, Sonthi announced that a new prime minister would be installed within two weeks to lead the country until elections are held in October 2007.  Although the coup only took place a few days ago, a new PM has yet to be named. 

King Bhumibol, who is highly revered among the Thai, endorsed the coup leaders adding tremendous legitimacy to their actions among the Thai people, whom remained calm and unfazed through the initial ordeal.  Given the reserve powers retained by the King, his endorsement also gives legal authority to Sonthi's position as head of the Council for Political Reform - the name the coup leaders have given themselves.  "The role of the king is critical in the crisis," said Thitinan Pongsudhirak, a professor of political science at Chulalongkorn.  Sulak Siwalak, a well-known social critic, further stated "Without his involvement, the coup would not have been impossible."  Although the kings' power to influence political events is limited, he yields immense power in practice.  Recent polls show that about three-quarters of the population think that this move will clear the way for important reforms and make political institutions more efficient although Thaksin's rural supporters were reportedly underrepresented.  But as time marches on, the Thai are growing more restless with increasing "temporary" bans on civil liberties and democratic rights.

Clinton Toots TLB's Horn

Though he didn't mention TLB by name, Bill Clinton made this remark, in Tuesday's interview with FT: "I'm not sure you won't see some positive things come out of the Middle East in the next sixty days."  (H/T: FP Passport.)  Granted, Clinton's comment falls somewhat short of an all-out endorsement for the optimism proffered here, by TLB, but we will take (take I tell you) what substantiation we get. 

In other news, some contributors to TLB are currently exploring job opportunities for the coming summer, and beyond.  Does anyone know if Hillary is taking C.V.'s for positions in her Administration?

Criminal Sentencing Done by Computers in China

Courts in China have begun using computer software to determine criminal sentences (H/T China Law Blog). The Sentencing Law and Policy Blog said, "The Chinese have come up with something even more efficient and effective than the federal sentencing guidelines and the presumption of reasonableness for imposing sentences."  The post challenges skeptics of computer assisted sentencing to consider "why China should not be lauded for the perfecting, rather than bastardizing, the concept of guideline sentencing."

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

Is a Geostrategic Theory of Constitutional Interpretation a Threat to Liberty?

Akhil Reed Amar expounds a bit of his geostrategic theory of liberty in conjunction with the 9/11 tragedy in an article entitled, "A Mid-September Meditation: How September 11 Mapped Onto the Framers' Theory of Geostrategic Theory of Liberty" (H/T Opinio Juris). He makes the resounding point that the Framers' wrote the Constitution with the intent that the United States would be separated from the old world and, consequently, the troubles of the old world, by the Atlantic ocean, and, eventually, the Pacific ocean. He argues that the geostrategic invulnerability of the United States is an essential ideological truss supporting the tenets of the Constitution and the Bill of Rights. However, that truss buckled when the WTC toppled and American blood was spilled on the soil of the continental United States for the first time in 150 years.

Then came 9-11. And in a flash it became blindingly clear to me that Publius's vision of America's splendid oceanic isolation--of a New World far removed from the woes of the Old World--cannot serve us well today, or for the centuries to come. Planet Earth is, in truth, One World. Global warming, transcontinental pandemics, deforestation, worldwide poverty, overpopulation, nuclear proliferation, free trade, jet travel, international human rights, the Internet, and, of course, the threat of international terrorism--all these planetary issues require planetary solutions.

Such solutions will require attention not just to individual rights, but also to international structures of cooperation and coordination--structures that will need to be far more effective than the United Nations as currently organized. Such solutions will also need to involve not just judges, but executives and legislatures. So we shall have to go beyond the tired maxims of my teachers, with their exaggerated confidence in Bills of Rights and judicial review.

And we shall also be obliged to go beyond the Founders' vision, based as it was on a geographic foundation that has been washed away. What we need is nothing less than a new generation of Publii offering up creative global solutions for our global challenges. Any visionaries out there?

Yes, there are visionaries out there, but they may not be the kind of visionaries envisioned by Amar. The Bush administration is a set of visionaries that are espousing rhetoric strikingly similar to that found in Amar's article. The key rationale is that the War on Terrorism transcends all national boundaries--even those created by oceans--making the continental United States part of the battlefield.

The Possibility of Peace: Lebanon, Israel, Palestine

Where could one start to outline the possibilities of such peace?  With the facts.

International Law Trampled
Both Hizbullah and Israel have been accused of war crimes in the recent 34-day war.  Amnesty International has called for a UN investigation into both sides' intentional targetting of civilian population centers and Israel's conscious destruction of civilian infrastructure.  Counts invariably place the number of civilians killed by Hizbullah in the dozens, while Israel is considered to have killed hundreds of innocent Lebanese.

This mutual display of blood-spilling in the name of defense builds on Israel's previous cold shoulders to international law.  Israel's Wall, carving strategic masses out of the West Bank, was ruled illegal under international law by the International Court of Justice (ICJ).  In its 2004 advisory opinion to the UN, the ICJ ordered Israel to not only dismantle the obstruction to the peace process, but to pay reparations to those suffering damages from its construction.  The nearly unanimous opinion relied for authority on the Geneva Convention, which bars construction by an occupying force in occupied territory.  Israel's reply was to question the jurisdiction of the ICJ to issue the opinion, though the grounds for the ICJ's jurisdiction are meticulously laid out therein.

Also in contravention of the Geneva Convention are the Israeli settlements in the West Bank.  Though previously vowing unilateral withdrawal from the West Bank, Israeli Prime Minister Ehud Olmert reversed his position on September 4.  In fact, he announced the construction of 690 new homes in existing Israeli settlements in the West Bank, thus expanding Israel's illegal presence in the occupied territory.  The EU responded to Israel's announcement by urging Israel to freeze all settlement activity, noting the illegality of the activity and the detrimental effect on the prospect for regional peace. 

Wanted: New Peace-Broker(s)
The unfortunate quagmire that the United States has unleashed upon itself in Iraq has rendered the former hegemon impotent to deal with challenges currently facing Lebanon, Israel, and Palestine.  The Economist argues that Europe should step forward to fill the void; (sorry, subscribers only.)  Though, Europe's latest involvement in Lebanon began "like a 'three-stooges' show in which Jacques Chirac grandiloquently announces that France will save the world, [and] offers to send three men and a popgun," European leaders have since stepped up their efforts.  France was eventually shamed into sending a hearty 2,000 troops, as part of the 7,000 joining the UN's peacekeeping force from Europe, (expected to number 15,000 by February.)  And in spite of being regarded as "a partner in the killing" by Hizbullah's Sheik Hassan Nasrallah, Prime Minister Tony Blair's heavily protested visit to the country this week signals Europe's commitment to play more than a marginal role in the Middle East.

Not to be outdone, China is making its presence felt, too.