Transnational Law Blog

Keeping Things Civil: The Hybrid Tribunal in Lebanon

It is interesting times for regional international criminal tribunals.  Kevin Jon Heller of Opinio Juris has a post discussing the failure of the Cambodian Tribunal to reach an agreement on the Rules and Procedure.  And, on November 15th, Secretary-General Kofi Annan released a report detailing the establishment of a special tribunal for Lebanon to investigate the assassination of former Prime Minister Hariri.   

Although building upon the hybrid model used in Sierra Leone, there are several interesting, and perhaps controversial, innovations in the design of the Lebanon tribunal.  More so than previous hybrid models, the Lebanon tribunal looks to the domestic legal system and incorporates elements of the civil law system of Lebanon.

Most significantly, the tribunal increases the role of the judiciary in investigating the case and allows for trials in absentia.  While the investigative judge is a basic element of civil law systems and was used in the Iraqi High Tribunal, the trial in absentia provision is sure to garner criticism.  The report justifies the provision by noting a similar provision in the Lebanese legal system and citing European Court of Human Rights jurisprudence.  Moreover, the provision provides that where a suspect is tried in absentia, the Defence Office will provide defence council for the case.  However, with the difficulties of the Defence Office in Cambodia and the jury still out on the Defence Office in Sierra Leone, it should be interesting to see whether the Defence Office can adequately function in Lebanon.    

The design of the Lebanon tribunal is sure to ignite a debate over international standards of due process.  With the varying standards of the Iraqi High Tribunal, the Cambodia Tribunal and the Lebanon tribunal, it would seem that some of the fundamental conflicts between civil and common law systems that expose themselves in international litigation (juries, discovery, judicial control, etc.) remain in the field of international criminal law.  It will be interesting to follow whether the ICC will establish a singular concept of due process standards or whether the continued use of hybrid tribunals will signal a rationalization of due process standards for international criminal law.

Happy Takes-giving: Anecdotes from the PRC

[This post was initially published on June 16, 2006 from Beijing, at a now defunct forum.  I thought it worthy of recycling in light of Travis' recent post, and the potential for a painfully punny title.  The photographs are some of the innumerable, jaw-dropping landscapes Travis and I witnessed in Beijing, last summer.]

chai: v. (1) tear open; take apart. (2) pull down; dismantle.

Over the past few weeks, some classmates and I have enjoyed lunch in the same Beijing alley almost everyday. It has been a true respite from the grimy existence found elsewhere in Beijing. This Haidian District alley is veiled in the shade of tall leafy trees. We were always the only foreigners in view, happy to pay the 4 RMB (U$ 0.50) for a bowl of spicy noodles. The 16 year-old server dropped out of school to work here for her aunt and uncle. She sends money back to her family in the countryside each chance she gets.

----

China is home to about 70% of current construction sites in the world. Life in Beijing (and elsewhere in China) occurs against the incessant backdrop of this construction. Dust allies with less benign particulates to blacken the inside of one's sinuses. From sunrise through sunset, the lullabies of cranes and sledgehammers wax and wane. In this ancient and crowded city, such a scale of development can only occur to the detriment of pre-existing structures and the individuals and communities that call them home.

The Communist Party's rash employment of eminent domain, and its effect in disincentivizing productive use of land have long been a blemish on both the economy and human rights in the People's Republic of China. (See The Economist's survey of China from March 23, 2006.) This post only endeavors to encapsulate the injustice such a practice embodies.

Yesterday, [June 15, 2006,] we emerged from classes seeking the solace of a nice cool plate of la mian (spicy wheat noodles.) We turned the corner into "the alley" only to find our daily lunch destination in tatters. Cooking equipment, plates, and half-cooked food covered the patio. Exhibiting a Chinese cultural obligation not to share your misfortunes with others, one of the owners and her neice/waitress stood amongst the mayhem with forced smiles. (The photos below are of "the alley" yesterday.)

The proprietors received 48 hours notice that their livelihood would be taken out from under them. Not believing the Party would mobilize at such short notice, they were serving lunch when the demolition crew arrived. The crew gave them 30 minutes to remove everything of value from the restaurant. The proprietors told us that they are being given no compensation or relocation assistance. Professor Alfred Palaez, a Chinese law expert at Duquesne University School of Law, guesses that their next destination will be the suburbs of Beijing. The economic opportunities available there are certain to fall short of their formerly popular hang-out in the Haidian District.

Every restaurant on the same block of "the alley" was in a similarly subjected to chai, (defined atop this post.) This is not at all uncommon in Beijing, ahead of 2008. Some of us just discovered another strip of restaurants in Haidian District, off of Xueyuan Lu, where locals congregated in the hundreds to watch the World Cup on about a dozen 19-inch televisions. The character, chai, painted in red upon the stubborn wall atop this post. Chai also adorns the still-intact walls of those restaurants entertaining the local football/soccer fans, just down the street. This strip, too, is set for demolition by the end of June. Again, the locals assert that no compensation or relocation assistance is being extended by the Party.

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.

China-India Nuclear Cooperation Deal

Today China and India announced a civilian nuclear cooperation deal, an agreement that may be seen as an attempt by China to rival the recent nuclear deal between the US and India. The announcement comes on the heels of US Senate approval of the nuclear cooperation deal between US President Bush and Indian Prime Minister Manmohan Singh made in July 2005. The US-India deal, to be implemented via legislation passed through the Senate last week, is poised to end the US moratorium on the sale of nuclear fuel and reactor components to India. That moratorium has been in effect since India's surprise nuclear test in 1974; India is one of only three states (among Israel and Pakistan, and now possibly North Korea) known to have nuclear warheads and remain nonsignatories to the Nuclear Non-Proliferation Treaty.

While the Senate legislation passed 85 to 12, Indian officials had expressed concern over a key provision in the Senate legislation that required the US President to declare that India had joined the multinational efforts to contain Iran's nuclear program. The Senate bill still needs to be reconciled with the corresponding House bill that was passed in July. Further, the International Atomic Energy Agency must sign off on the US-India deal. The deal has provoked criticism from nuclear nonproliferation circles, but was seen, at the same time, as a way for the US to counterbalance China's political ascendancy.

Now, on day three of President Hu JinTao's four-day visit to India, China has seemingly stymied US efforts to align India more closely to itself. While India is already reported to have enough fissile material for 150 warheads, the deal with the US will raise its yearly nuclear missile production capacity from 7 to 40. However, India does not have enough naturally occurring uranium reserves to support both its nuclear weapons program and its civilian nuclear power program. And, as the Carnegie Endowment for International Peace reports: "Given its huge energy requirements, the growing pressures to avoid burning dirty coal in order to protect the environment, and the need to reduce carbon emissions that exacerbate global warming, New Delhi has little alternative but to rely increasingly on nuclear power." The new deal with China should allow India greater flexibility in its nuclear program.

Unjust Land Seizures in China

The following video reminded me of events I witnessed while I was in Beijing last summer. In particular, the government seizure and demolition of a noodle restaurant that I frequented with friends. Since we ate lunch there nearly everyday, we befriended the owners, a family of suburbanites that had come into Beijing to make extra money to supplement the income of their relatives. We spent our mornings in class studying Chinese law, which has due process rules similiar to our Fifth Amendment takings law. However, in China the government owns all of the land; consequently, everyone in China is renting their land from the government. When the government takes the land back, it is breaking its contract with the lessee, whom it compensates. The people that are not compensated are the people that have leased from the lessee and there is literally no recourse for these people.

Our friends at the noodle shop found themselves in this very predicament, and imagine our shock when our idealistic American world of just compensation was pummeled to rubble as we watched men with sledge hammers smashing the restaurant walls still adorned with simple framed pictures of China's majestic landscape. The former restauranteurs stood outside a cordon of police nonplussed-- their dishware shattered and their oven overturned-- we're still doing our best to make sense of the situation. This was my first experience of China's eminent domain policy and it certainly wasn't the last. The video may seem incredible, fantastical, and unbelievable, but it is an accurate depiction of a harsh reality.

Underground Video Of Tyranny In China - video powered by Metacafe

China Plans to Expand Nuclear Cooperation with Pakistan in Response to US-India Nuclear Cooperation Deal

China's decision to help Pakistan expand its nuclear power program is undoubtedly motivated by the US Senate's recent approval of a US-India nuclear cooperation deal. China's impending deal with Pakistan represents the Chinese mindset about the downfall of America. The positioning of global players by China is meant to ensure that the US will be in no position to stop China if/when the time comes for it to invade and conquer Taiwan.

India and Pakistan both staged nuclear explosions in 1998 and have refused to joined the Non-Proliferation Treaty (NPT) that would oblige them to give up atomic weapons. Regarding the US congressional-executive agreement to provide India with nuclear power technology, Opinio Juris said:

This deal no doubt reflects the importance of India as a strategic ally for the U.S. It also represents a shift in U.S. strategy for controlling the use of nuclear weapons. The old U.S. strategy: no one gets nukes unless they submit to international treaty regimes. The new U.S. strategy: friends like India get help in peacefully controlling their nukes, enemies like Iran and North Korea get ugly threats of sanctions even if neither India, Iran, nor North Korea are currently part of the international non-proliferation treaty regime.

Chinese President Hu Jintao is expected to unveil an expansion of nuclear power cooperation with Pakistan when he visits next week, testing China's balance between Pakistan and India, according to an article by Reuters. "But even a vague agreement will remind the world that China values its 'all-weather friend' Pakistan, even while Beijing courts India, a sometimes bitter rival of both countries." 

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. 

Register Your Company in China NOW

The Chinese government is increasing its efforts to crack down on unregistered foreign companies doing business in China, according to a post by China Law Blog entitled,  "URGENT ALERT: Register Your Company in China NOW".  This has never had more truth to it than it does now as the government in China is attempting to alleviate Chinese resentment toward foreign businesses. Many foreigners operating businesses in China are under the assumption that their local connections will help avoid any legal problems, but this is just not true. China Law Blog summarized it well when it said:

In many emerging market countries, local businesses take advantage of corruption to avoid complying with laws. This may work for the locals, but it won't work for you. The easiest way for a local rival to drive you out is for you to do something illegal. Neither you nor your government will have good grounds to complain if your rival gets your business closed down due to your illegal activity. It might even be your own partner who reports you so he can assume full ownership and control of your business.

China Law Blog points out that the locals will tell the foreign business owner not to comply with the laws because this gives them leverage. "If your local people in China are telling you this is not how Chinese business is conducted, you need to remind them you are not Chinese and the government will treat you differently."

For more information we recommend reading:

1. URGENT ALERT: Register Your Company in China NOW
2. Chinese Law: Smoke and Mirrors
3. That's China and It Still Ain't Pretty

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. 

China's Reaction to The Democrats Taking Congress

The Chinese media is frenetically speculating about the affect the recent elections will have on China-U.S. relations. With Nancy Pelosi as the new Speaker of the House and the recent resignation of Donald Rumsfeld, China is anticipating changes but, in the spirit of a country with 5,000 years of history, it's not panicking.

The Chinese expect Vice President Dick Cheney to resign for health reasons, following the departure of US Defense Secretary Donald Rumsfeld, according to China Confidential in a post entitled, "Chinese Speculate About Baker Replacing Cheney." China Confidential said, "Some Chinese reporters and think tank researchers see former US Secretary of State James Baker as a possible Cheney replacement."

Baker is leading the Iraq Study Group, a bipartisan group charged with making a "forward-looking assessment of the situation in Iraq." During an appearance on "This Week with George Stephanopoulos" Baker said that the current Iraqi government is capable of sustaining peace in the war-torn region (see here). On the separate but pressing issue of North Korea's latest threats of another nuclear missile test, Baker disagreed with the Bush administration's refusal to engage directly in bilateral talks with the rogue nation.