This morning I had to print an essay I wrote a couple of weeks back. After I printed it and was scanning it, I thought, "Oh no! Tessa must have saved her essay over mine!" because it was so well written. It turns out that it *was* mine after all.
I don't mean to toot my own horn, but am posting the essay here. As always, when I cut and paste my essays from Microsoft Word, the footnotes and citations do not transfer. If you need cites, please post a comment and I will provide them.
Free Movement of Services (Freedom of Establishment)
One of the pillars of the European Union is the free movement of services (the Freedom of Establishment) within the twenty-seven member states. Many times, this is not controversial (for example, if a French baker wanted to open a bakery in Sofia). However, at other times, states obstruct the free movement of services within their borders until sanctioned by the European Court of Justice. The free movement of legal services required litigation and much negotiation to clarify in what manner member states may regulate admission to the profession without such regulation being an unreasonable burden on the free movement of services.
The regulation of the legal profession differs in many respects from other services. This is because, unlike the baking of bread, the law differs within each territory. States have an interest in ensuring the competency of the members of the bar and protecting their citizen consumers from the potential damage caused by incompetent attorneys practicing with unfamiliar laws in an unfamiliar language. At the same time, members of the legal profession typically are considered officers of the court. As such, courts are cautious in who they allow to represent their institution.
Regulation can take many forms, from bar entrance requirements to the regulation of attorney fees (thereby impeding the free market system and free competition). Regulation by member states is not prohibited, but must serve an important and justifiable state interest; and the regulation must be narrowly tailored to achieve the interest in a way that does not favor their own citizens over citizens of other member states.
Ultimately, after over 30 years of wrangling, permissible regulation of the legal profession under EC/EU treaties was determined to be those that guaranteed consumers competent legal council, but that did not discriminate against foreign attorneys. For example, member states may not require residence or registration with the professional organization in the host member state, but may require that attorneys “observe the rules of professional conduct of the host member state without prejudice to his [home state] obligation.” Some of the basic “rules” governing movement of legal services have been established as follows:
• Member states must mutually recognize the comparable diplomas and professional licensing of other states.
• Attorneys may immediately practice under their home state titles (i.e., a “solicitor” from the U.K. practicing under that title in Rome) or under their migrant state’s title after a suitable period of supervision by a competent attorney within the host state.
• “A migrant lawyer practicing under his home country professional title may ‘give advice on the law of his home Member State, on Community law, on international law and on the law of the host Member State.”
The EU portability differs greatly from the U.S. system. In the United States, each state establishes guidelines for admission to the bar. Another state is not required to accept another state’s attorney licensing and allow that attorney to practice within its jurisdiction. If an attorney wishes to move from one state to another within the United States, that attorney must meet the entrance requirements of the bar of his new state, including taking another bar exam, if required by that state. Of course, for members of the bar of at least one state, practicing solely in Federal Court, this limitation is of no matter because one can practice in any Federal Court in the country so long as one is admitted to the bar in at least one state. However, it is rare for attorneys to have a practice area limited to solely Federal Court and, at a minimum, the vast majority of attorneys are licensed in the states where they reside and have their offices.
The authors of the Syracuse article (from the class reading) believe that “while taking a procedurally different course from that followed in the European Union, the bottom line goals of the EU and the United States are substantially similar.” I disagree. The European Union was developed in order to enhance security and economic vitality of the European Union member states. For this benefit, member states have been willing to exchange a certain amount of their sovereignty, including the right to regulate their own legal professions as they saw fit. Member states must now prove that their regulations are justifiable in relationship to the EC pillar of the free movement of services. States within the United States have no such motivation to cooperate with other states of the union. In fact, the ABA proposed guidelines regarding proposed attorney licensing portability specifically reject a “single nation-wide law license that would eliminate state jurisdictional restrictions.” This rejection cannot be justified by the notion that laws within the individual states vary so much that attorneys cannot be trusted to apply the proper law when practicing. Aside from Louisiana, law and procedure within the other 49 states are substantially similar with only minor variations. Therefore, the rejection of a single nationwide law license can only be based on individual states jealously guarding and protecting their sovereignty, even at the expense of efficiency and productivity.
Monday, September 17, 2007
Wednesday, September 12, 2007
The teeter-totter of immigrant inclusion.
This was a short response paper I wrote for my Comparative Legal Culture course. I scored well. (Too bad it isn't worth more in the final grade.) Also, the footnotes didn't carry over to the blog so much of this text had citations in the original document. If you need citations for any reason, please post a comment and I will include them.
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In her book, “Immigrants at the Margins,” Kitty Calavita sets forth the problem of immigrant inclusion as a two-headed contradiction between the economic necessity of immigrant labor and the “otherness” required to keep immigrants in a lower status that facilitates their exploitation as laborers. However, I see the contradictions of immigrant inclusion as a three-faceted problem. The first two facets are as Calavita sets forth: the economic necessity of the immigrant labor force, whether legal or illegal; and secondly, the necessary “otherness.” I also propose that there is the contradiction between the internal political requirements of balancing each of the first two forces (immigrant labor and the “otherness”) against the external forces and pressures that measure a liberal democracy (i.e., international law, treaties and supranational organizations.)
Italy’s view of immigration is centered on human rights. Article 43 of the Turco-Napolitano Law of 1998 made it illegal to discriminate, defined as “any activity or attitude that compromises a person’s enjoyment of ‘full human rights and liberties in political, economic, social and cultural contexts.’” Italy enacted several regional laws to give force to Turco-Napolitano, focusing many resources on integrating immigrants into Italian society. At the same time, resources also were directed to courses and programs designed to help immigrants retain their original culture and to provide information about immigrants reinsertion into their homelands.
In the implementation of the regional laws, we can see the tension politicians face. Regions and cities must apply for grants from the national government for the various integration and cultural programs for immigrants. However, in the areas where there is most need, there is also the highest likelihood that politicians will not apply for these funds due to the political backlash from the general population who wish to keep immigrants out. However, the areas most hostile to immigrants are not always the ones that shun funds for immigrant programs. Sometimes, economic realities and the needs of business in the most socially conservative regions intervene to ensure that politicians secure these funds. A comparison of two politically and ideologically different regions in Italy found that their immigration policies were surprisingly similar, even though the rhetoric differs.
Spain’s immigration policies are also built upon a foundation of human rights. Its integration policies specifically mention “the right of (legal) immigrants to access all of the fundamental human rights that Spaniards claim; their access to social services; and the importance of tolerance, ‘respect for cultural diversity,’ and ‘the fight against racism and xenophobia.’” Despite Spain’s rhetoric about “respect for cultural diversity” and the fight against xenophobia, Spain has translated this concern into a focus on protecting domestic culture and languages, like in Catalonia.
Prior to coming to study in Rome, I spent time with a French family that I lived with when I was sixteen years old. I asked them their views of immigration in France. Despite the family’s overall liberal view of immigration, one thing that they mentioned was the need to preserve French culture and language. This is a common theme in France. For example, people will watch the evening news and fault the newscasters for not using proper (i.e., old) French and incorporating any new slang or American terms into their language. So, while some French welcome immigrants, many retain a concern over guarding their own culture and customs.
The United States’ view of immigration has little to do with international human rights, international law or treaties. This is not surprising in a country that has made the very few human rights treaties it has signed non-self-executing, giving their own citizens absolutely no right of redress if the U.S. government fails to fulfill their treaty obligations. Both Italy and Spain’s integration policies specifically mention fundamental human rights, which are extended to immigrants by virtue of their status as human beings. Conversely, there was legislation proposed in Washington State this spring to limit Medicaid benefits to the children of undocumented immigrants. Washington H.B. 1441. This law would actually violate the Convention of the Rights of the Child. Article 24, section 1, states:
States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right to access such health care services.
In addition, Article 2, section 1, states:
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Finally, Article 3, section 1, states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Emphasis added.)
These provisions, read together, would ban legislation that would prevent children from accessing basic healthcare based on their parent’s status as undocumented immigrants. However, the United States, along with Somalia, has not ratified this treaty. One could argue that by virtue of the ratification by all member states, save two, that the rights enshrined in this treaty rise to the level of customary international law. However, like most international human rights law violated by the United States, redress is not readily accessible.
Conversely, Spain and Italy have, at least on the books, laws that enable immigrants to access healthcare, housing and other basic human needs. However, despite having the proper legislation that fulfills their treaty obligations, Calavita demonstrates that both Spain and Italy have serious problems “on the ground” with implementation of these laws at the local level.
In viewing these three countries’ policies broadly, one can see similarities in how Italy, Spain and the United States deal with the tensions between the need for immigrant labor and the need to exclude “others” from their societies. However, there is a stark contrast between how Italy and Spain view their obligations to uphold basic international human rights, and the United States where human rights does not appear to be part of the discourse, either for immigrants or its own citizens.
_____________________________________________
In her book, “Immigrants at the Margins,” Kitty Calavita sets forth the problem of immigrant inclusion as a two-headed contradiction between the economic necessity of immigrant labor and the “otherness” required to keep immigrants in a lower status that facilitates their exploitation as laborers. However, I see the contradictions of immigrant inclusion as a three-faceted problem. The first two facets are as Calavita sets forth: the economic necessity of the immigrant labor force, whether legal or illegal; and secondly, the necessary “otherness.” I also propose that there is the contradiction between the internal political requirements of balancing each of the first two forces (immigrant labor and the “otherness”) against the external forces and pressures that measure a liberal democracy (i.e., international law, treaties and supranational organizations.)
Italy’s view of immigration is centered on human rights. Article 43 of the Turco-Napolitano Law of 1998 made it illegal to discriminate, defined as “any activity or attitude that compromises a person’s enjoyment of ‘full human rights and liberties in political, economic, social and cultural contexts.’” Italy enacted several regional laws to give force to Turco-Napolitano, focusing many resources on integrating immigrants into Italian society. At the same time, resources also were directed to courses and programs designed to help immigrants retain their original culture and to provide information about immigrants reinsertion into their homelands.
In the implementation of the regional laws, we can see the tension politicians face. Regions and cities must apply for grants from the national government for the various integration and cultural programs for immigrants. However, in the areas where there is most need, there is also the highest likelihood that politicians will not apply for these funds due to the political backlash from the general population who wish to keep immigrants out. However, the areas most hostile to immigrants are not always the ones that shun funds for immigrant programs. Sometimes, economic realities and the needs of business in the most socially conservative regions intervene to ensure that politicians secure these funds. A comparison of two politically and ideologically different regions in Italy found that their immigration policies were surprisingly similar, even though the rhetoric differs.
Spain’s immigration policies are also built upon a foundation of human rights. Its integration policies specifically mention “the right of (legal) immigrants to access all of the fundamental human rights that Spaniards claim; their access to social services; and the importance of tolerance, ‘respect for cultural diversity,’ and ‘the fight against racism and xenophobia.’” Despite Spain’s rhetoric about “respect for cultural diversity” and the fight against xenophobia, Spain has translated this concern into a focus on protecting domestic culture and languages, like in Catalonia.
Prior to coming to study in Rome, I spent time with a French family that I lived with when I was sixteen years old. I asked them their views of immigration in France. Despite the family’s overall liberal view of immigration, one thing that they mentioned was the need to preserve French culture and language. This is a common theme in France. For example, people will watch the evening news and fault the newscasters for not using proper (i.e., old) French and incorporating any new slang or American terms into their language. So, while some French welcome immigrants, many retain a concern over guarding their own culture and customs.
The United States’ view of immigration has little to do with international human rights, international law or treaties. This is not surprising in a country that has made the very few human rights treaties it has signed non-self-executing, giving their own citizens absolutely no right of redress if the U.S. government fails to fulfill their treaty obligations. Both Italy and Spain’s integration policies specifically mention fundamental human rights, which are extended to immigrants by virtue of their status as human beings. Conversely, there was legislation proposed in Washington State this spring to limit Medicaid benefits to the children of undocumented immigrants. Washington H.B. 1441. This law would actually violate the Convention of the Rights of the Child. Article 24, section 1, states:
States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right to access such health care services.
In addition, Article 2, section 1, states:
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Finally, Article 3, section 1, states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Emphasis added.)
These provisions, read together, would ban legislation that would prevent children from accessing basic healthcare based on their parent’s status as undocumented immigrants. However, the United States, along with Somalia, has not ratified this treaty. One could argue that by virtue of the ratification by all member states, save two, that the rights enshrined in this treaty rise to the level of customary international law. However, like most international human rights law violated by the United States, redress is not readily accessible.
Conversely, Spain and Italy have, at least on the books, laws that enable immigrants to access healthcare, housing and other basic human needs. However, despite having the proper legislation that fulfills their treaty obligations, Calavita demonstrates that both Spain and Italy have serious problems “on the ground” with implementation of these laws at the local level.
In viewing these three countries’ policies broadly, one can see similarities in how Italy, Spain and the United States deal with the tensions between the need for immigrant labor and the need to exclude “others” from their societies. However, there is a stark contrast between how Italy and Spain view their obligations to uphold basic international human rights, and the United States where human rights does not appear to be part of the discourse, either for immigrants or its own citizens.
Thursday, August 23, 2007
Final Essay from Amsterdam Program *UPDATED*
This is the final for “Principles and Institutions in International Criminal Law and International Human Rights.”
This examination consists of a single essay question, which might also be viewed as a writing assignment. You’re answer to the question may either be typed, and printed on A-4 paper, in which case it should not be any longer than ten (10) double-spaced, single-sided pages. If your exam is written by hand, it should be written on University of Amsterdam examination paper, and should not exceed twenty (20 single-sided pages in length. Any part of any answer that exceeds the specified length will be disregarded. Your answer to the question should be written legibly, in normal size script, with reasonable margins. THE EXAMINATION IS “OPEN BOOK,” that is, you may use any materials whatsoever that were assigned in any of your courses in answering these questions. You should not do additional research for this examination, other than to read the case, which is attached to this exam.
Question:
Historically, international law, and in particular international criminal law and international human rights law, have been criticized for being impotent, or ineffectual. Much of this criticism has come from judges and academics in the United States, who have argued that international law was little more than whatever the strongest country wanted it to be.
In 1999, the ICJ handed down the decision in the “CASE CONCERNING LEGALITY OF USE OF FORCE” (Yugoslavia v. Belgium (NATO) 1999 I.C.J. 124. A copy of this decision is attached. In 2004, Judge Eric Posner wrote:
[This decision] demonstrated just how incapable the court is of resolving disputes, and what little the new International Criminal Court has to do much better. First, there is no doubt that, in strictly legal terms, NATO’s intervention violated international standards…[T]he court was in an unenviable position: if it had held against the NATO) states, they would surely have ignored the judgment. By holding in favor of these states, the court showed its irrelevance.
Eric A. Posner, All Justice, Too, Is Local, NY Times (Dec. 30, 2004).
It has been 8 years since the opinion in Yugoslavia v. Belgium. Drawing on any and all materials you have been assigned, in any of your course, or to which you have been exposed by virtue of the orientation course, or the field trip [to the Hague], or otherwise, write an essay refuting Judge Posner, by addressing the developments in international criminal law and international human rights law during the last 8 years. To put it another way, construct the most persuasive argument possible for the position that regardless of what the case was in 1999, that as of today international criminal law and international human rights law are real, have power, have meaning, and have a future.
End of exam.
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Answer:
Following the International Court of Justice’s ruling in the Case Concerning Legality of Use of Force (Yugoslavia v. Belgium) [NATO], Judge Eric Posner cited the Court’s decision as proof of its “irrelevance” on the international stage, and by virtue of the court’s irrelevance, the impotence of international law. There is no doubt the court’s decision was designed to avoid confrontation with the world’s superpowers. However, international law, and in particular international criminal law and international human rights law, is an expanding field. The coercive or enforcement powers of this body of law are weak in comparison to domestic criminal law, but do have real and effective power to curb war crimes and human rights violations, and to remedy those wrongs when they occur.
The Development of International Criminal Law and International Human Rights Law
This brief examination of the history and development of international criminal law and international human rights law shows the growth and continuing strengthening of these bodies of law.
Early Development: Creation of the Nation State, Sovereignty and Pre-World War II Treaties.
From 1648 when the Thirty Years War ended by the treaties of Westphalia, the nation-state has been the “major structural units of the legal-political order of the planet.” The notion that nation-states are the sole players in international relations is the foundation for international law. Central to the state’s power is “sovereignty,” which give the nation-state sole power to govern issues within its borders or in territories under the state’s control. In 1648, the treaties granting nation-states sovereignty ended dueling structures of authority within territories; and were intended to end wars of religion. As an unintended consequence, states were able to abuse their own citizens as they saw fit without consequence up until the recent past. In fact, until recently, individuals had no standing to prosecute (or be prosecuted) for violations of international law. Unfortunately, more recent developments of international law that extend international jurisdiction to the internal affairs of a state, have continued the tension between the authority of international law and states’ claims of sovereignty.
The first area of international law to be substantially developed involved the rules of war. The Hague Conventions of 1899 and 1907 governed and protected those participating directly in combat. These conventions prohibited certain acts during warfare, such as the inhumane treatment of prisoners, use of poisoned weapons, improper use of truce flags, etc. The “modern” idea, but not reality, of an international criminal court is attributed to the first Hague Convention of 1899. The Hague convention of 1899 succeeded in creating the first institution of international dispute resolution with the creation of the Permanent Court of Arbitration, for which the Peace Palace was constructed. Unfortunately, one year following the Peace Palace’s opening, World War I broke out.
Following World War I, there was movement on the international stage to prosecute Kaiser Wilhelm II for offences against “international morality and the sanctity of treaties.” That same year, the Allies established a special commission to investigate crimes against humanity and acts of war. However, the increasing authority of international law diminished within a short period. The special commission wanted to include violations of the laws of humanity (specifically acts that occurred in the Armenian genocide) in any international criminal court’s jurisdiction, but U.S. opposition prevented this type of conduct from consideration. Within four years, the Treaty of Lausanne gave perpetrators of the Armenian genocide amnesty from prosecution. There is evidence that the world community’s failure to establish a court and prosecute the Armenian genocide led Hitler to believe that he too would have impunity for his actions.
Also following the end of World War I, the League of Nations was created, whose goals were to promote the collective security of states through diplomacy and disarmament. Unfortunately, the United States did not join the League of Nations and the organization did not have the force it might have had with U.S. participation. Despite this, one particular event was significant to later prosecutions of violators of international law. The September 24, 1927 Declaration of the Assembly of the League of Nations (including German, Italian and Japanese delegates) denounced wars of aggression. The Nuremburg tribunal cited this declaration as part of their decision to establish that international law was the basis for prosecution of Nazi war criminals.
Post World War II: The “Modern” Era of International Law
The atrocities and numbers of deaths in World War II, estimated to be 75 million, forced the world community to acknowledge that states could no longer have de facto impunity from prosecution for war crimes and crimes against humanity, which resulted from past failures to prosecute these offenses. From the period of 1945 to the present, there has been an explosion of international law and accountability, including the extension of rights and duties to individuals and the creation of supranational organizations to enforce the laws. However, due to the very same tensions between sovereignty and the authority of these bodies, enforcement remains relatively weak.
Nuremburg Tribunal - The Nuremburg tribunal was not the first military tribunals established following conflict to prosecute war criminals. However, it was significantly the first tribunal to include prosecution of “crimes against humanity” committed during international war. Although these “crimes against humanity” were not codified in any treaties, per se, the Nuremburg tribunal established that individuals could be prosecuted for violations of customary international law and jus cogens offenses.
Geneva Conventions – Also following World War II, the 1949 Geneva Conventions extended protections during international warfare to those hors du combat, including civilians and wounded, captured or surrendered soldiers. These protections include prohibitions against willful killing; torture or inhumane treatment; willfully causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property; taking hostages or unlawful deportation; or transfer or unlawful confinement, among others. Significant to international law’s encroachment on state sovereignty, Common Article 3 to the Geneva Conventions regulate armed conflict not of an international character and include prohibitions against violence to life and person, including murder; mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment; taking hostages and extrajudicial executions.
International Court of Justice – As part of the creation of the United Nations, the International Court of Justice (also known as the World Court) was established. The ICJ statute was taken “virtually verbatim from the League of Nations Statute of the Permanent Court of International Justice.” The court has jurisdiction over many international agreements and Article 94 of the United Nations charter mandates that each member state “undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” The court’s decisions are final and without appeal, but have no binding force except between the parties in relation to the particular dispute being adjudicated. The statute giving the court authority specifically mandates the court to consider international law in its decisions in the following hierarchy:
1. International conventions;
2. International custom, as evidenced of a general practice accepted as law;
3. The general principles of law recognized by civilized nations;
4. Judicial decisions and teachings, as subsidiary means for the determination of the law.
It is important to note that having international custom and general principles as binding authority is not specific to the International Court of Justice. Many nations’ constitutions make their domestic laws subordinate to international law, including: The Philippine Constitution of 1987; The Russian Constitution of 1993; The German Constitution of 1949; The Italian Constitution of 1959; The Greek Constitution of 1975; The Slovenia Constitution of 1997; as well as the Irish, Japanese and Hungarian Constitutions.
The Extension of Rights to Individuals and During Peacetime
One of the most significant developments in international law has been the extension of specific rights to individuals, during both times of war and peace.
The United Nations adopted the Universal Declaration of Human Rights in 1948, which by virtue of their membership, states agree that:
THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Following the Universal Declaration of Human Rights, in 1966 the U.N. adopted the “Bill of Human Rights:” the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These Covenants gave individuals both negative rights, prohibiting the state from infringing on certain rights, such as the right to vote, to self-determination, to due process of law, etc., and positive rights, such as the right to economic and social security.
Since the creation of the “Bill of Human Rights,” the U.N. adopted and entered into force other treaties such as:
• The Convention against Genocide (passed by U.N. 1948)
• The Convention on the Rights of the Child (passed by U.N. 1998)
• The Convention Against Torture (passed by U.N. 1984)
• Convention on the Elimination of All Forms of Discrimination Against Women (passed by U.N. in 1979)
From the creation of the nation-state with exclusive sovereignty over the internal affairs of its nation to the “modern” creation of the United Nations and multi-lateral treaties governing states’ conduct towards their citizens, the progression and strength of international law is clear.
Rise of Supranational Organization
The creation and ratification of multi-lateral human rights and international criminal law treaties are not the only developments solidifying the place and importance of international law. The United Nations was “based on the principle of the sovereign equality of all its members.” Therefore, by virtue of its charter, the U.N. maintains the age-old struggle between sovereignty and international law. However, since the creation of the United Nations, more and more nations have been willing to enter into multi-lateral treaties and create supranational organizations with real enforcement power. The European Union is a supranational organization designed to promote the well-being of Europe and peace among those states, for which those states exchange a certain amount of their sovereignty. This is in essence a re-structuring of the “social contract” from being a contract between citizens and their state to being between states and the supranational organization. In addition, Europe created the European Court of Human Rights in 2003. Europe has not been reticent, as the United States has, in giving their citizens a direct right of and access to redress in the event they cannot obtain relief in that state’s courts for wrongs by their government.
Recent Developments in International Criminal Law
The idea of military tribunals to prosecute war criminals is not new. Even though the Hague Conventions of 1899 and 1907 prohibited certain acts during warfare, they did not specifically designate such acts as “criminal.” However, military tribunals still punished war criminals under the authority of those laws. As stated previously, the Nuremburg Tribunal extended prosecution to “crimes against humanity” committed during wartime.
There was not another international tribunal for 50 years following Nuremburg until the creation of the International Criminal Tribunal for the Former Yugoslavia. The ICTY was set up to prosecute “serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.” Ater inception of the ICTY, there has been a “cascade” of international tribunals, with the creation of the International Criminal Tribunal for Rwanda, and the tribunals for Cambodia and Sierra Leone. However, these tribunals are expensive and cumbersome.
Therefore, to streamline prosecutions of “the most serious international crimes,” member nations of the U.N. created the International Criminal Court by a treaty in 1998 (The Rome Statute). Most world powers are members of the court; however, the second Bush Administration has declined U.S. participation. Nevertheless, some effects of the International Criminal Court are already becoming apparent. The U.N. Security Council referred the “situation” in Darfur to the International Criminal Court for investigation. Since the ICC’s report found crimes against humanity, (even though acts meeting the definition of “genocide” were not found), certain Sudanese perpetrators of crimes against humanity in Darfur are willing to negotiate a peace agreement in exchange for immunity from prosecution by the International Criminal Court. This is a testament to the ICC’s strength on the world stage.
United States Participation
If viewed from a U.S-centric lens, Judge Posner’s opinion that international law and the international courts are “irrelevant” has merit. However, the strength of international treaties, laws, supranational organizations and courts has always been derived from states’ willingness to relinquish sovereignty in exchange for the stability and good those entities provide. The United States has been less willing to exchange its sovereignty for these benefits, probably because of the 75 million people who died in World War II, “only” 406,000 were Americans. If the United States had first-hand experience of the devastation that governments can cause to each other and on their own citizens, America would probably be more willing to participate. However, as it stands, the Unites States has:
• Ratified the International Covenant on Civil and Political Rights, while reserving the right to execute its own citizens, and making the treaty non-self-executing.
• Ratified the Convention against Torture, while reserving the right to “define” torture as “cruel and unusual punishment” as interpreted by the Supreme Court, instead of the more broad treaty definition of “cruel, inhumane or degrading” treatment.
• Failed to ratify the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of Discrimination Against Women; and the Convention on the Rights of the Child (the most ratified treaty, with only the United States and Sudan failing to be parties).
• Went to war with Iraq without Security Council approval under the new “doctrine of preemption” to justify the invasion.
• Failed to hold those up the chain of command accountable for breaches of international law at Abu Ghraib
• Been given relative impunity for the legal “black hole” that is the detention center at Guantanamo Bay, by holding “unlawful enemy combatants” without the protections required by either the Hague Conventions or the Geneva Conventions;
• Been given relative impunity for actions of the CIA in performing “extraordinary renditions” of terror suspects to states where they are likely to be tortured, in contravention of the Convention Against Torture, or detaining those suspects in “secret prisons.”
However, despite the United States’ failure to ratify many treaties and participate like an equal player in supranational organizations, its actions themselves verify the validity and strength of international law. The United States has consistently attempted, in recent years, to “justify” its actions. For example, President Bush withdrew the United States signature to the Rome Statute under the guise that it could be used to disproportionately prosecute United States Servicemen. Following the International Criminal Court’s decision in the Mexico v. United States (Avena) case, the United States withdrew from the optional protocol to the Vienna Convention on Consular Relations, which gave the ICJ jurisdiction to hear disputes arising from the treaty. The Bush Administration has likewise attempted to justify its actions regarding the prisoners at Guantanamo Bay by “redefining torture” and arguing that the prisoners do not fall within the purview of The Hague or Geneva Conventions. If international law and courts were irrelevant as Judge Posner asserts, the United States government would not go to such pains to present their actions as lawful under international law.
While still nascent, international criminal law and international human rights law is now the context in which most developed nations view their laws and duties, both foreign and domestic. As more and more nations are willing to subscribe to this view (for peace, for economic reasons or whatever other self-interest that drives states), these bodies of law will only grow in strength. Rather than being “irrelevant” as described by Judge Posner, the actions of nation-states in conforming, or at least in attempting to justify their behavior as being in conformance, with international law, have proven the power of the International Court of Justice and international law.
This examination consists of a single essay question, which might also be viewed as a writing assignment. You’re answer to the question may either be typed, and printed on A-4 paper, in which case it should not be any longer than ten (10) double-spaced, single-sided pages. If your exam is written by hand, it should be written on University of Amsterdam examination paper, and should not exceed twenty (20 single-sided pages in length. Any part of any answer that exceeds the specified length will be disregarded. Your answer to the question should be written legibly, in normal size script, with reasonable margins. THE EXAMINATION IS “OPEN BOOK,” that is, you may use any materials whatsoever that were assigned in any of your courses in answering these questions. You should not do additional research for this examination, other than to read the case, which is attached to this exam.
Question:
Historically, international law, and in particular international criminal law and international human rights law, have been criticized for being impotent, or ineffectual. Much of this criticism has come from judges and academics in the United States, who have argued that international law was little more than whatever the strongest country wanted it to be.
In 1999, the ICJ handed down the decision in the “CASE CONCERNING LEGALITY OF USE OF FORCE” (Yugoslavia v. Belgium (NATO) 1999 I.C.J. 124. A copy of this decision is attached. In 2004, Judge Eric Posner wrote:
[This decision] demonstrated just how incapable the court is of resolving disputes, and what little the new International Criminal Court has to do much better. First, there is no doubt that, in strictly legal terms, NATO’s intervention violated international standards…[T]he court was in an unenviable position: if it had held against the NATO) states, they would surely have ignored the judgment. By holding in favor of these states, the court showed its irrelevance.
Eric A. Posner, All Justice, Too, Is Local, NY Times (Dec. 30, 2004).
It has been 8 years since the opinion in Yugoslavia v. Belgium. Drawing on any and all materials you have been assigned, in any of your course, or to which you have been exposed by virtue of the orientation course, or the field trip [to the Hague], or otherwise, write an essay refuting Judge Posner, by addressing the developments in international criminal law and international human rights law during the last 8 years. To put it another way, construct the most persuasive argument possible for the position that regardless of what the case was in 1999, that as of today international criminal law and international human rights law are real, have power, have meaning, and have a future.
End of exam.
__________________________________
Answer:
Following the International Court of Justice’s ruling in the Case Concerning Legality of Use of Force (Yugoslavia v. Belgium) [NATO], Judge Eric Posner cited the Court’s decision as proof of its “irrelevance” on the international stage, and by virtue of the court’s irrelevance, the impotence of international law. There is no doubt the court’s decision was designed to avoid confrontation with the world’s superpowers. However, international law, and in particular international criminal law and international human rights law, is an expanding field. The coercive or enforcement powers of this body of law are weak in comparison to domestic criminal law, but do have real and effective power to curb war crimes and human rights violations, and to remedy those wrongs when they occur.
The Development of International Criminal Law and International Human Rights Law
This brief examination of the history and development of international criminal law and international human rights law shows the growth and continuing strengthening of these bodies of law.
Early Development: Creation of the Nation State, Sovereignty and Pre-World War II Treaties.
From 1648 when the Thirty Years War ended by the treaties of Westphalia, the nation-state has been the “major structural units of the legal-political order of the planet.” The notion that nation-states are the sole players in international relations is the foundation for international law. Central to the state’s power is “sovereignty,” which give the nation-state sole power to govern issues within its borders or in territories under the state’s control. In 1648, the treaties granting nation-states sovereignty ended dueling structures of authority within territories; and were intended to end wars of religion. As an unintended consequence, states were able to abuse their own citizens as they saw fit without consequence up until the recent past. In fact, until recently, individuals had no standing to prosecute (or be prosecuted) for violations of international law. Unfortunately, more recent developments of international law that extend international jurisdiction to the internal affairs of a state, have continued the tension between the authority of international law and states’ claims of sovereignty.
The first area of international law to be substantially developed involved the rules of war. The Hague Conventions of 1899 and 1907 governed and protected those participating directly in combat. These conventions prohibited certain acts during warfare, such as the inhumane treatment of prisoners, use of poisoned weapons, improper use of truce flags, etc. The “modern” idea, but not reality, of an international criminal court is attributed to the first Hague Convention of 1899. The Hague convention of 1899 succeeded in creating the first institution of international dispute resolution with the creation of the Permanent Court of Arbitration, for which the Peace Palace was constructed. Unfortunately, one year following the Peace Palace’s opening, World War I broke out.
Following World War I, there was movement on the international stage to prosecute Kaiser Wilhelm II for offences against “international morality and the sanctity of treaties.” That same year, the Allies established a special commission to investigate crimes against humanity and acts of war. However, the increasing authority of international law diminished within a short period. The special commission wanted to include violations of the laws of humanity (specifically acts that occurred in the Armenian genocide) in any international criminal court’s jurisdiction, but U.S. opposition prevented this type of conduct from consideration. Within four years, the Treaty of Lausanne gave perpetrators of the Armenian genocide amnesty from prosecution. There is evidence that the world community’s failure to establish a court and prosecute the Armenian genocide led Hitler to believe that he too would have impunity for his actions.
Also following the end of World War I, the League of Nations was created, whose goals were to promote the collective security of states through diplomacy and disarmament. Unfortunately, the United States did not join the League of Nations and the organization did not have the force it might have had with U.S. participation. Despite this, one particular event was significant to later prosecutions of violators of international law. The September 24, 1927 Declaration of the Assembly of the League of Nations (including German, Italian and Japanese delegates) denounced wars of aggression. The Nuremburg tribunal cited this declaration as part of their decision to establish that international law was the basis for prosecution of Nazi war criminals.
Post World War II: The “Modern” Era of International Law
The atrocities and numbers of deaths in World War II, estimated to be 75 million, forced the world community to acknowledge that states could no longer have de facto impunity from prosecution for war crimes and crimes against humanity, which resulted from past failures to prosecute these offenses. From the period of 1945 to the present, there has been an explosion of international law and accountability, including the extension of rights and duties to individuals and the creation of supranational organizations to enforce the laws. However, due to the very same tensions between sovereignty and the authority of these bodies, enforcement remains relatively weak.
Nuremburg Tribunal - The Nuremburg tribunal was not the first military tribunals established following conflict to prosecute war criminals. However, it was significantly the first tribunal to include prosecution of “crimes against humanity” committed during international war. Although these “crimes against humanity” were not codified in any treaties, per se, the Nuremburg tribunal established that individuals could be prosecuted for violations of customary international law and jus cogens offenses.
Geneva Conventions – Also following World War II, the 1949 Geneva Conventions extended protections during international warfare to those hors du combat, including civilians and wounded, captured or surrendered soldiers. These protections include prohibitions against willful killing; torture or inhumane treatment; willfully causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property; taking hostages or unlawful deportation; or transfer or unlawful confinement, among others. Significant to international law’s encroachment on state sovereignty, Common Article 3 to the Geneva Conventions regulate armed conflict not of an international character and include prohibitions against violence to life and person, including murder; mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment; taking hostages and extrajudicial executions.
International Court of Justice – As part of the creation of the United Nations, the International Court of Justice (also known as the World Court) was established. The ICJ statute was taken “virtually verbatim from the League of Nations Statute of the Permanent Court of International Justice.” The court has jurisdiction over many international agreements and Article 94 of the United Nations charter mandates that each member state “undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” The court’s decisions are final and without appeal, but have no binding force except between the parties in relation to the particular dispute being adjudicated. The statute giving the court authority specifically mandates the court to consider international law in its decisions in the following hierarchy:
1. International conventions;
2. International custom, as evidenced of a general practice accepted as law;
3. The general principles of law recognized by civilized nations;
4. Judicial decisions and teachings, as subsidiary means for the determination of the law.
It is important to note that having international custom and general principles as binding authority is not specific to the International Court of Justice. Many nations’ constitutions make their domestic laws subordinate to international law, including: The Philippine Constitution of 1987; The Russian Constitution of 1993; The German Constitution of 1949; The Italian Constitution of 1959; The Greek Constitution of 1975; The Slovenia Constitution of 1997; as well as the Irish, Japanese and Hungarian Constitutions.
The Extension of Rights to Individuals and During Peacetime
One of the most significant developments in international law has been the extension of specific rights to individuals, during both times of war and peace.
The United Nations adopted the Universal Declaration of Human Rights in 1948, which by virtue of their membership, states agree that:
THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Following the Universal Declaration of Human Rights, in 1966 the U.N. adopted the “Bill of Human Rights:” the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These Covenants gave individuals both negative rights, prohibiting the state from infringing on certain rights, such as the right to vote, to self-determination, to due process of law, etc., and positive rights, such as the right to economic and social security.
Since the creation of the “Bill of Human Rights,” the U.N. adopted and entered into force other treaties such as:
• The Convention against Genocide (passed by U.N. 1948)
• The Convention on the Rights of the Child (passed by U.N. 1998)
• The Convention Against Torture (passed by U.N. 1984)
• Convention on the Elimination of All Forms of Discrimination Against Women (passed by U.N. in 1979)
From the creation of the nation-state with exclusive sovereignty over the internal affairs of its nation to the “modern” creation of the United Nations and multi-lateral treaties governing states’ conduct towards their citizens, the progression and strength of international law is clear.
Rise of Supranational Organization
The creation and ratification of multi-lateral human rights and international criminal law treaties are not the only developments solidifying the place and importance of international law. The United Nations was “based on the principle of the sovereign equality of all its members.” Therefore, by virtue of its charter, the U.N. maintains the age-old struggle between sovereignty and international law. However, since the creation of the United Nations, more and more nations have been willing to enter into multi-lateral treaties and create supranational organizations with real enforcement power. The European Union is a supranational organization designed to promote the well-being of Europe and peace among those states, for which those states exchange a certain amount of their sovereignty. This is in essence a re-structuring of the “social contract” from being a contract between citizens and their state to being between states and the supranational organization. In addition, Europe created the European Court of Human Rights in 2003. Europe has not been reticent, as the United States has, in giving their citizens a direct right of and access to redress in the event they cannot obtain relief in that state’s courts for wrongs by their government.
Recent Developments in International Criminal Law
The idea of military tribunals to prosecute war criminals is not new. Even though the Hague Conventions of 1899 and 1907 prohibited certain acts during warfare, they did not specifically designate such acts as “criminal.” However, military tribunals still punished war criminals under the authority of those laws. As stated previously, the Nuremburg Tribunal extended prosecution to “crimes against humanity” committed during wartime.
There was not another international tribunal for 50 years following Nuremburg until the creation of the International Criminal Tribunal for the Former Yugoslavia. The ICTY was set up to prosecute “serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.” Ater inception of the ICTY, there has been a “cascade” of international tribunals, with the creation of the International Criminal Tribunal for Rwanda, and the tribunals for Cambodia and Sierra Leone. However, these tribunals are expensive and cumbersome.
Therefore, to streamline prosecutions of “the most serious international crimes,” member nations of the U.N. created the International Criminal Court by a treaty in 1998 (The Rome Statute). Most world powers are members of the court; however, the second Bush Administration has declined U.S. participation. Nevertheless, some effects of the International Criminal Court are already becoming apparent. The U.N. Security Council referred the “situation” in Darfur to the International Criminal Court for investigation. Since the ICC’s report found crimes against humanity, (even though acts meeting the definition of “genocide” were not found), certain Sudanese perpetrators of crimes against humanity in Darfur are willing to negotiate a peace agreement in exchange for immunity from prosecution by the International Criminal Court. This is a testament to the ICC’s strength on the world stage.
United States Participation
If viewed from a U.S-centric lens, Judge Posner’s opinion that international law and the international courts are “irrelevant” has merit. However, the strength of international treaties, laws, supranational organizations and courts has always been derived from states’ willingness to relinquish sovereignty in exchange for the stability and good those entities provide. The United States has been less willing to exchange its sovereignty for these benefits, probably because of the 75 million people who died in World War II, “only” 406,000 were Americans. If the United States had first-hand experience of the devastation that governments can cause to each other and on their own citizens, America would probably be more willing to participate. However, as it stands, the Unites States has:
• Ratified the International Covenant on Civil and Political Rights, while reserving the right to execute its own citizens, and making the treaty non-self-executing.
• Ratified the Convention against Torture, while reserving the right to “define” torture as “cruel and unusual punishment” as interpreted by the Supreme Court, instead of the more broad treaty definition of “cruel, inhumane or degrading” treatment.
• Failed to ratify the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of Discrimination Against Women; and the Convention on the Rights of the Child (the most ratified treaty, with only the United States and Sudan failing to be parties).
• Went to war with Iraq without Security Council approval under the new “doctrine of preemption” to justify the invasion.
• Failed to hold those up the chain of command accountable for breaches of international law at Abu Ghraib
• Been given relative impunity for the legal “black hole” that is the detention center at Guantanamo Bay, by holding “unlawful enemy combatants” without the protections required by either the Hague Conventions or the Geneva Conventions;
• Been given relative impunity for actions of the CIA in performing “extraordinary renditions” of terror suspects to states where they are likely to be tortured, in contravention of the Convention Against Torture, or detaining those suspects in “secret prisons.”
However, despite the United States’ failure to ratify many treaties and participate like an equal player in supranational organizations, its actions themselves verify the validity and strength of international law. The United States has consistently attempted, in recent years, to “justify” its actions. For example, President Bush withdrew the United States signature to the Rome Statute under the guise that it could be used to disproportionately prosecute United States Servicemen. Following the International Criminal Court’s decision in the Mexico v. United States (Avena) case, the United States withdrew from the optional protocol to the Vienna Convention on Consular Relations, which gave the ICJ jurisdiction to hear disputes arising from the treaty. The Bush Administration has likewise attempted to justify its actions regarding the prisoners at Guantanamo Bay by “redefining torture” and arguing that the prisoners do not fall within the purview of The Hague or Geneva Conventions. If international law and courts were irrelevant as Judge Posner asserts, the United States government would not go to such pains to present their actions as lawful under international law.
While still nascent, international criminal law and international human rights law is now the context in which most developed nations view their laws and duties, both foreign and domestic. As more and more nations are willing to subscribe to this view (for peace, for economic reasons or whatever other self-interest that drives states), these bodies of law will only grow in strength. Rather than being “irrelevant” as described by Judge Posner, the actions of nation-states in conforming, or at least in attempting to justify their behavior as being in conformance, with international law, have proven the power of the International Court of Justice and international law.
Friday, July 27, 2007
The logic of a double-shot decaf nonfat mocha with whip.
On Friday, I was reading this news account of a "Holy Warrier" in Saudia Arabia who has changed his mind regarding his participation in "Jihad" as a result of efforts by the Saudi Government to combat suicide terrorism. It was an interesting story just on a human-interest basis. However, it set forth some facts that I had heard before, but never quite sunk in. For example, most of the 9/11 hijackers were Saudis and Saudis make up nearly half of the foreign detainees in Iraq (fn.1).
Those figures got me thinking (which, I aknowledge, sometimes a dangerous thing). We invaded Iraq because of supposed connections between 9/11 and Sadaam Hussein (fn. 2), which there were not (fn. 3). However, there was never any talk of invading Saudi Arabia - despite it being the true hotbed of terrorists bent on attacking the United States. I'll leave you to draw your own conclusions as to why that is the case.
Then, the day after the first article, another one came out that expressed the Bush Admininstration's current frustrations with Saudia Arabia's role in Iraq. (fn. 4). I'm thinking, "OK, that's interesting, maybe the government is catching on to where the real problem lies."
Then, low and behold! In today's news there is an article detailing how our government is on the verge of a $20 billion arms deal with Saudi Arabia, supposedly to counter the threat of Iran (fn. 5).
A little political science and history for you to put this in context:
In the "Realism" model of international interactions (FYI, Condolezza Rice is a "realist"), the only thing that ensures a nation-state's security against other nation-states is its military might. This is termed the "Balance of Power." Nation-states use different strategies to maintain their status, one of which is "soft balancing." "Bleeding" the enemy is an example of "soft-balancing." This is where, instead of fighting the enemy directly, a nation-state funds another group's fight in order to drain the enemy's military might (fn. 6).
This is what the United States was doing when we funded and trained Osama Bin Laden and his group in their fight against the Soviets in the Afghan-USSR war. Unfortunately, years later, Osama Bin Laden used that same training in his current beef with the US.
Before that, we funded Sadaam Hussein in the Iraq-Iran war, because while he was a dictator, he was secular. We wanted him to defeat the religious fundamentalists that had seized power from the American-friendly Shah. Then, years later, Sadaam Hussein used that US-provided military might to invade Kuwait.
A week or so back, I got an email from my friend, Steve, who was working on a police-reform project in Pakistan. I asked him to explain what he was doing there and this was his reply:
Well things here are very complicated..we (the US) funded a lot of extremists to fight against the Russians a few years back...Pakistan was the staging point for that effort. That grew into Taliban type of pockets in the west of the country. When the Russians were chased away we left them to their own desires and that's when the Taliban took hold in Afghanistan...now of course we need Pakistan again and those extremist we left behind don't like us much. So there is an internal struggle between the moderates and the extremist elements here. The Red Mosque you may have read about is or was part of that problem.,,,to make it worse it was in downtown Islamabad..the capital...so they could not ignore it..and the government is under pressure from the international community to crack down..so things are a bit dicey right now here...luckily I leave in three days..I'm thinking things might get worse before they get better...
So, if you can take all of that history and combine it with the news reports of our government engaging in an arms deal with the currently main source of suicide terrorism directed against the U.S. and the main source of foregin fighters in Iraq, it just doesn't make sense to me. Is this arms deal going to turn out to be a mistake where these very same arms will be used against our own military in 10-15 years?
Anyway, if you can explain the logic of a double-shot, decalf, non-fat mocha with whip, maybe you can explain this to me.
Footnotes:
fn. 1: See: http://www.msnbc.msn.com/id/19990697/
fn. 2: See: http://www.pipa.org/OnlineReports/Iraq/IraqMedia_Oct03/IraqMedia_Oct03_pr.pdf fn. 3: See: http://www.9-11commission.gov/report/index.htm
fn. 4: See: http://www.nytimes.com/2007/07/27/world/middleeast/27saudi.html?_r=1&hp&oref=slogin
fn. 5: See: http://www.forbes.com/topstories/home/2007/07/28/saudi-arms-iran-biz-cx_pm_0728armsdeal.html
fn. 6: See: http://en.wikipedia.org/wiki/Balance_of_power_in_international_relations
Those figures got me thinking (which, I aknowledge, sometimes a dangerous thing). We invaded Iraq because of supposed connections between 9/11 and Sadaam Hussein (fn. 2), which there were not (fn. 3). However, there was never any talk of invading Saudi Arabia - despite it being the true hotbed of terrorists bent on attacking the United States. I'll leave you to draw your own conclusions as to why that is the case.
Then, the day after the first article, another one came out that expressed the Bush Admininstration's current frustrations with Saudia Arabia's role in Iraq. (fn. 4). I'm thinking, "OK, that's interesting, maybe the government is catching on to where the real problem lies."
Then, low and behold! In today's news there is an article detailing how our government is on the verge of a $20 billion arms deal with Saudi Arabia, supposedly to counter the threat of Iran (fn. 5).
A little political science and history for you to put this in context:
In the "Realism" model of international interactions (FYI, Condolezza Rice is a "realist"), the only thing that ensures a nation-state's security against other nation-states is its military might. This is termed the "Balance of Power." Nation-states use different strategies to maintain their status, one of which is "soft balancing." "Bleeding" the enemy is an example of "soft-balancing." This is where, instead of fighting the enemy directly, a nation-state funds another group's fight in order to drain the enemy's military might (fn. 6).
This is what the United States was doing when we funded and trained Osama Bin Laden and his group in their fight against the Soviets in the Afghan-USSR war. Unfortunately, years later, Osama Bin Laden used that same training in his current beef with the US.
Before that, we funded Sadaam Hussein in the Iraq-Iran war, because while he was a dictator, he was secular. We wanted him to defeat the religious fundamentalists that had seized power from the American-friendly Shah. Then, years later, Sadaam Hussein used that US-provided military might to invade Kuwait.
A week or so back, I got an email from my friend, Steve, who was working on a police-reform project in Pakistan. I asked him to explain what he was doing there and this was his reply:
Well things here are very complicated..we (the US) funded a lot of extremists to fight against the Russians a few years back...Pakistan was the staging point for that effort. That grew into Taliban type of pockets in the west of the country. When the Russians were chased away we left them to their own desires and that's when the Taliban took hold in Afghanistan...now of course we need Pakistan again and those extremist we left behind don't like us much. So there is an internal struggle between the moderates and the extremist elements here. The Red Mosque you may have read about is or was part of that problem.,,,to make it worse it was in downtown Islamabad..the capital...so they could not ignore it..and the government is under pressure from the international community to crack down..so things are a bit dicey right now here...luckily I leave in three days..I'm thinking things might get worse before they get better...
So, if you can take all of that history and combine it with the news reports of our government engaging in an arms deal with the currently main source of suicide terrorism directed against the U.S. and the main source of foregin fighters in Iraq, it just doesn't make sense to me. Is this arms deal going to turn out to be a mistake where these very same arms will be used against our own military in 10-15 years?
Anyway, if you can explain the logic of a double-shot, decalf, non-fat mocha with whip, maybe you can explain this to me.
Footnotes:
fn. 1: See: http://www.msnbc.msn.com/id/19990697/
fn. 2: See: http://www.pipa.org/OnlineReports/Iraq/IraqMedia_Oct03/IraqMedia_Oct03_pr.pdf fn. 3: See: http://www.9-11commission.gov/report/index.htm
fn. 4: See: http://www.nytimes.com/2007/07/27/world/middleeast/27saudi.html?_r=1&hp&oref=slogin
fn. 5: See: http://www.forbes.com/topstories/home/2007/07/28/saudi-arms-iran-biz-cx_pm_0728armsdeal.html
fn. 6: See: http://en.wikipedia.org/wiki/Balance_of_power_in_international_relations
Saturday, July 21, 2007
Don't you wonder why this even needs clarification?
I am a little confused. Last week there were news stories stating that President Bush "gave the CIA the clarification it was needing" when he stated that "cruel, inhumane or degrading treatment" of terror suspects is banned. (See: "Bush bans terror suspect torture.")
The Convention against Torture was passed by the UN General Assembly in 1984; it was signed by the first President Bush in 1988; and it was finally ratified by the United States' Congress in 1994 (fn. 1). Even before that, the United States was a party to the Hague Conventions and Geneva Conventions, both of which prohibited torture of combatants and those hors du combat during wartime.
Article 2 of the Convention against Torture states:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
When ratifying the Convention, the United States congress further clarified its understanding of the treaty:
(b) That the United States understands that the definition of torture in article 1 is intended to apply only to acts directed against persons in the offender's custody or physical control.
Therefore, can someone please explain something to me. If the United States has not been engaged in illegal torture for the past six years, why exactly does a treaty that we have been a party to since 1994 suddenly need clarification by the President?
Fn. 1: http://www.unhchr.ch/html/menu3/b/h_cat39.htm
The Convention against Torture was passed by the UN General Assembly in 1984; it was signed by the first President Bush in 1988; and it was finally ratified by the United States' Congress in 1994 (fn. 1). Even before that, the United States was a party to the Hague Conventions and Geneva Conventions, both of which prohibited torture of combatants and those hors du combat during wartime.
Article 2 of the Convention against Torture states:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
When ratifying the Convention, the United States congress further clarified its understanding of the treaty:
(b) That the United States understands that the definition of torture in article 1 is intended to apply only to acts directed against persons in the offender's custody or physical control.
Therefore, can someone please explain something to me. If the United States has not been engaged in illegal torture for the past six years, why exactly does a treaty that we have been a party to since 1994 suddenly need clarification by the President?
Fn. 1: http://www.unhchr.ch/html/menu3/b/h_cat39.htm
Sunday, July 8, 2007
Does half the population of the United States have to die before we get it?
Because of the enormous cost to human life (72 million dead) during WWII, the United Nations was created. Originally, the UN's primary focus was to promote peace and security - and has now expanded to include such missions as finance (World Bank) and trade (World Trade Organization), etc.
In regards to Human Rights, the UN adopted the Universal Declaration of Human Rights in 1948. It was not considered to be a binding treaty, however, in recent years some courts have given taken it as binding authority of international human rights norms. All member states of the UN agree that
"THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction."
If you read it, you'd be surprised - even as Americans - of the fundamental human rights that you are denied. Here is the link: http://www.un.org/Overview/rights.html
Following adoption of the Universal Declaration of Human Rights, two treaties were created that make up the "Bill of Human Rights." They are the Covenant on Civil and Political Rights (http://www.hrweb.org/legal/cpr.html) and the Covenant on Economic, Social and Cultural Rights (http://www.hrweb.org/legal/escr.html). Both were adopted by the UN in 1966.
The United States didn't sign either treaty until 1977 when finally signed by President Carter. However, the Covenant on Civil and Political Rights didn't have legal force until 1992 when finally ratified by Congress. Of course, we reserved the right - along with Human Rights Powerhouses China and Saudi Arabia - to execute our own citizens. Congress has never ratified the Covenant on Economic, Social & Cultural Rights. This is not surprising given our country's long history and present state of racism - and our cultural values that poor people somehow deserve to be poor because they haven't "pulled themselves up by their bootstraps like the rest of us."
Following passage of the two "pillars," other treaties were passed such as:
The Convention against Genocide (passed by UN and signed by US president 1948; finally ratified by congress in 1988 - yes, it's not a typo - it took our Congress 40 years to agree that Genocide was bad.)
The Convention on the Rights of the Child (passed 1998, signed 1995 by US president; never ratified by Congress. There are only two countries in the entire world who have not ratified this convention: The United States and Sudan. But, why care about those little pip-squeaks anyway? After all, they don't vote.)
The Convention Against Torture (passed 1984, signed 1988; ratified by Congress 1994 with the following reservation, "... nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States." This basically means that if the United States determines that torture is permissible under the Constitution, the United States cannot be held accoutable under the terms of the treaty. Makes you feel really safe doesn't it that your own government is going to be the one to decide whether their torture of you is legal?)
Convention on the Elimination of All Forms of Discrimination Against Women (passed 1979, signed by US president 1980; never ratified by Congress. Why should they? After all, congress is primarily composed of rich white men, not to mention most Corporate officers and executives.)
I could go on and on and on....
By contrast, most European nations have signed every single one of these treaties and more. Rather than having the petulant "YOU CAN'T TELL ME WHAT TO DO!" (stomp right foot here!) attitude of the United States, many European Countries have provisions in their constitutions making the laws of their lands subordinate to International Human Rights treaties. For example:
The Australian Constitution of 1928 states, "The generally recognized principles of international law are integral parts of the Federal Law."
The Phillippine Constitution of 1987 states, "The Phillippines...adopts the generally accepted principles of international law as part of the law of the land."
The Russian Constitution of 1993 states, "The commonly recognized principles and norms of international law and the international treaties of the Russian Federation shall be a component part of its legal system."
The German Constitution of 1949 states, "The general rules of public international law constitutes an integral part of federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory."
The Italian Constitution of 1959 states, "Italy's legal system conforms with the generally recognized principles of international law." (Conformity between the two means that rules of municipal law which are contrary to customary international law "must be eliminated.")
The Greek Constitution of 1975 states, "The generally recognized rules of international law...shall be an integral part of domestic Greek law and shall prevail over any contrary provision of law."
The Slovenia Constitution of 1997 states, "Statutes and other legislative measures shall comply with generally accepted principles of international law..."
The Irish constitution, Japanese constitution and Hungarian constitutions all have similiar provisions.
One interesting bit of information is that not only has Europe adopted these treaties and standards as part of their national law, they created the European Court of Human Rights, which gives their citizens a right to redress wrongs by the government. Where would you go as an American if your human rights (but not civil rights) were violated? That's right - NOWHERE.
As I mentioned before, WWII claimed 75 million lives, of which "only" 406,000 were Americans. To put this in perspective for you, it would be as if, given current population numbers, one-half of the United States was wiped out in 4-6 years' time. Remember, this came within two decades after WWI - "The War to End All Wars - which had similiar devastating effects.
Would we then be more willing to cooperate on an international level? I hope that it doesn't have to come to that for us to see the light.
In regards to Human Rights, the UN adopted the Universal Declaration of Human Rights in 1948. It was not considered to be a binding treaty, however, in recent years some courts have given taken it as binding authority of international human rights norms. All member states of the UN agree that
"THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction."
If you read it, you'd be surprised - even as Americans - of the fundamental human rights that you are denied. Here is the link: http://www.un.org/Overview/rights.html
Following adoption of the Universal Declaration of Human Rights, two treaties were created that make up the "Bill of Human Rights." They are the Covenant on Civil and Political Rights (http://www.hrweb.org/legal/cpr.html) and the Covenant on Economic, Social and Cultural Rights (http://www.hrweb.org/legal/escr.html). Both were adopted by the UN in 1966.
The United States didn't sign either treaty until 1977 when finally signed by President Carter. However, the Covenant on Civil and Political Rights didn't have legal force until 1992 when finally ratified by Congress. Of course, we reserved the right - along with Human Rights Powerhouses China and Saudi Arabia - to execute our own citizens. Congress has never ratified the Covenant on Economic, Social & Cultural Rights. This is not surprising given our country's long history and present state of racism - and our cultural values that poor people somehow deserve to be poor because they haven't "pulled themselves up by their bootstraps like the rest of us."
Following passage of the two "pillars," other treaties were passed such as:
The Convention against Genocide (passed by UN and signed by US president 1948; finally ratified by congress in 1988 - yes, it's not a typo - it took our Congress 40 years to agree that Genocide was bad.)
The Convention on the Rights of the Child (passed 1998, signed 1995 by US president; never ratified by Congress. There are only two countries in the entire world who have not ratified this convention: The United States and Sudan. But, why care about those little pip-squeaks anyway? After all, they don't vote.)
The Convention Against Torture (passed 1984, signed 1988; ratified by Congress 1994 with the following reservation, "... nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States." This basically means that if the United States determines that torture is permissible under the Constitution, the United States cannot be held accoutable under the terms of the treaty. Makes you feel really safe doesn't it that your own government is going to be the one to decide whether their torture of you is legal?)
Convention on the Elimination of All Forms of Discrimination Against Women (passed 1979, signed by US president 1980; never ratified by Congress. Why should they? After all, congress is primarily composed of rich white men, not to mention most Corporate officers and executives.)
I could go on and on and on....
By contrast, most European nations have signed every single one of these treaties and more. Rather than having the petulant "YOU CAN'T TELL ME WHAT TO DO!" (stomp right foot here!) attitude of the United States, many European Countries have provisions in their constitutions making the laws of their lands subordinate to International Human Rights treaties. For example:
The Australian Constitution of 1928 states, "The generally recognized principles of international law are integral parts of the Federal Law."
The Phillippine Constitution of 1987 states, "The Phillippines...adopts the generally accepted principles of international law as part of the law of the land."
The Russian Constitution of 1993 states, "The commonly recognized principles and norms of international law and the international treaties of the Russian Federation shall be a component part of its legal system."
The German Constitution of 1949 states, "The general rules of public international law constitutes an integral part of federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory."
The Italian Constitution of 1959 states, "Italy's legal system conforms with the generally recognized principles of international law." (Conformity between the two means that rules of municipal law which are contrary to customary international law "must be eliminated.")
The Greek Constitution of 1975 states, "The generally recognized rules of international law...shall be an integral part of domestic Greek law and shall prevail over any contrary provision of law."
The Slovenia Constitution of 1997 states, "Statutes and other legislative measures shall comply with generally accepted principles of international law..."
The Irish constitution, Japanese constitution and Hungarian constitutions all have similiar provisions.
One interesting bit of information is that not only has Europe adopted these treaties and standards as part of their national law, they created the European Court of Human Rights, which gives their citizens a right to redress wrongs by the government. Where would you go as an American if your human rights (but not civil rights) were violated? That's right - NOWHERE.
As I mentioned before, WWII claimed 75 million lives, of which "only" 406,000 were Americans. To put this in perspective for you, it would be as if, given current population numbers, one-half of the United States was wiped out in 4-6 years' time. Remember, this came within two decades after WWI - "The War to End All Wars - which had similiar devastating effects.
Would we then be more willing to cooperate on an international level? I hope that it doesn't have to come to that for us to see the light.
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