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ISRAEL: Judicial Appointments, Standing and Political Questions
11:07 AM ET
Jonathan Cohen, Pitt Law '12, studied in Jerusalem as part of a program hosted by the Touro College Law Center and sponsored by Pitt's Center for International Legal Education. He writes about the differences between Israel and the United States in the areas of judicial appointments and judicial review...
 This June, I took courses at the Agron Guest House in the heart of Jerusalem while on a study abroad program hosted by Touro College Law Center. I feel fortunate that I had a group of professors who clung tightly to the idea that "if you don't learn anything outside of the classroom, there is no reason to be in another country." Our professors took this seriously, and took us on many excursions that justified studying abroad in Israel. We toured the Supreme Court of Israel and the Knesset, which is Israel's parliament. I also saw first-hand the separation fence, settlements in the West Bank, such as Ma'ale Adumim, and tours focusing on the region's contentious geopolitics, especially at the Temple Mount. While we learned much about the Israeli-Palestinian conflict, we also spent a lot of time comparing the Israeli legal system with the American legal system, and I found this to be one of the most interesting parts of the program. In discussions with a current judge, a former Supreme Court Justice, and during a tour of the Supreme Court, we found that Israel's process of selecting judges by nomination panel, rather than by executive appointment or judicial election as in the United States, would be a recurring theme of the course. The differences between the Supreme Court of Israel and the Supreme Court of the United States formed another frequent topic of discussion.
In the United States, federal judges are appointed by the President, and many state and county judges gain their seats in competitive elections. However, Israel follows the example of many other countries and selects its judges by nomination. While Israel does not yet have a formal constitution, the principle of a strong independent judiciary is enshrined in the Basic Law: The Judiciary, which will most likely be included in a formal constitution. The Basic Law sets up a Judges' Election Committee (JEC) with nine members. The committee includes the President of the Supreme Court, two other Supreme Court Justices, the Minister of Justice, two members of the Knesset, and two members of the Israel Bar Association. Once a candidate has been nominated by the JEC, the candidate must then be approved by the Prime Minister. Like federal judges appointed under Article III of the US Constitution, Israeli judges have a lifetime appointment, subject to removal in limited circumstances. However, Israeli judges are subject to mandatory retirement at the age of 70.
 While federal judges in the United States are generally given lifetime appointments after a nomination and confirmation process, the election of some judges at the county and state levels has been, and continues to be, controversial. This controversy has led to a long-standing debate in the United States about judicial selection procedures. Late last year, I reported [JURIST Report] for JURIST's Paper Chase service on how former Supreme Court Justice Sandra Day O'Connor and the Institute for the Advancement of the American Legal System (IAALS) encouraged states to move from direct judicial elections to a merit-based selection process. The switch to merit-based nominations is also backed by US Supreme Court Justice Ruth Bader Ginsburg, who lent her support to O'Connor's movement while delivering a speech [JURIST Report] to the National Association of Women Judges. The O'Connor Judicial Selection Initiative (OJSI) is concerned that "politics don't belong in the courtroom and justice should not be for sale."
There is not only a difference in the judicial selection process between Israel and the United States, but also in the operation of the highest courts. To bring a case before a court in the United States, a person must have standing, which is met by a showing of injury and causation. One must also appeal their case through a series of lower courts before even petitioning the Supreme Court.
In stark contrast to the American requirement of standing, Israeli law permits anyone to bring a challenge against almost any law. This was not always the case. Israel formerly required claimants to have standing in order to bring a case before the court, but then-Chief Justice Barak liberalized the requirement of standing in Israel in Ressler v. Minister of Defence [PDF], a landmark case which ruled that the "legal standing of a petitioner before the High Court will be recognised if he can show that there is a reasonable prospect that an interest of his (not necessarily amounting to a right) which may be shared by a great number of others, has been prejudiced." Former Chief Justice Aharon Barak clarified the Israeli view of standing in Iad Ashak Mahmud Marab et al. v. IDF Commander in the West Bank [PDF], which discussed detention policies in the occupied territories: "[U]nder our approach to the issue of standing, any person or organization interested in the fate of the detainee" has a right to file suit. "Indeed, the petition before us was submitted by, among others, seven associations or organizations that deal with human rights." The court also acts as the High Court of Justice, a court of first and last instance in suits against the government, allowing some claimants to file directly with the court.
 Justice Barak also expanded the idea of which cases are justiciable in Israel. This doctrine of justiciability is more narrowly interpreted in the United States than in Israel. If a court, American or Israeli, decides that an issue is non-justiciable, it may refuse to hear a case on the basis that it cannot grant relief for the claim. One of the most common effects of this doctrine, especially in wartime, is to allow a court to evade an issue by declaring it to be a political question. When an American court invokes the political question doctrine, it refuses to hear a case because it believes that the Constitution has given decision-making power to another branch of government, that it does not have proper standards in place to decide the case, or that interference would otherwise be unwise.
However, under Justice Barak's expanded view of justiciability, the Supreme Court of Israel, sitting as the High Court of Justice, heard cases that would most likely not be heard under similar circumstances in the United States. One such example is the High Court of Justice's opinion in The Public Committee Against Torture In Israel v. The Government Of Israel [PDF], a case where the court had to decide on the legality of Israel's policy of targeted killings. After gathering intelligence on who was behind terrorist attacks, the Israeli military would use preventive strikes to eliminate those found responsible. Much to my surprise, the High Court actually heard and decided this case, something I couldn't imagine the Supreme Court of the United States doing. The US Supreme Court would likely hold that the non-governmental organizations bringing suit in Public Committee Against Torture in Israel lacked standing, not to mention that they would likely avoid addressing issues of specific military tactics. In this case, the High Court's decision constituted a severe limitation of what the military could do or how it could do it. Because Barak liberalized the doctrines of standing and justiciability in Israel, he has been criticized for his "judicial activism" by University of Chicago Law School Lecturer and Seventh Circuit Judge Richard Posner in an article in the New Republic.
While Justice Barak and his views are not commonly known in the United States, they have been the center of some controversy in the country. Supreme Court nominee Elena Kagan has called Barak her "judicial hero," a move that has led critics to label her as a judicial activist. While opponents of judicial elections in the United States often worry about judicial activism, Barak's example seems to show that judges with lifetime appointments can be activists as well.
Photos: Jonathan Cohen
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CANADA: Corporate Accountability for the Extractive Industry
11:07 AM ET
Megan McKee, Pitt Law '12, is currently an intern with Montreal's Social Justice Committee (SJC). She writes about the SJC's advocacy for corporate accountability in the extractive industries...
 In May I began working for the Social Justice Committee (SJC) of Montreal as a corporate accountability intern. The SJC is an independent human rights organization promoting education and advocacy in the areas of global poverty and inequality. In terms of corporate accountability, the SJC is currently advocating for passage of Bill C-300, also known the Corporate Accountability of Mining, Oil, and Gas Corporations in Developing Countries Act. This private member's bill currently before the Canadian parliament seeks to create a mechanism that would allow for the filing of complaints against Canadian extractive companies operating in developing countries if they are believed to be in non-compliance with agreed upon international environmental and human rights standards.
As July 22 marks the second annual Global Day of Action Against Open Pit Mining, and FAO Montreal has organized a march to commemorate the day, it seems appropriate to take a closer look at the Canadian mining industry and its actions abroad. Canada is home to over 75 percent of the world's largest mining and extraction companies. However, the existing mechanisms to ensure that these corporations, which receive support from the Government of Canada, act in compliance with international environmental best practices and with Canada's commitments to human rights, are toothless at best and non-existent at worse.
 Starting in 2006, the Canadian government held a series of National Roundtables on Corporate Social Responsibility (CSR). The roundtables concluded with the release of a final report [PDF] authored by a multi-stakeholder Advisory Group, which included members from industry, civil society, academia, labor, and the responsible investment sector. In essence the report called for the development of a Canadian CSR framework. The Advisory Group urged the Government of Canada to work with key stakeholders to adopt a set of CSR standards that Canadian extractive companies operating abroad would be expected to abide by, and that would be reinforced by appropriate reporting, compliance, and other mechanisms.
In March of 2009, the government released its official response [PDF] to the roundtable report, and it included no effective complaints mechanism and no mechanism to sanction companies in non-compliance with agreed upon guidelines. Rather, the government's CSR strategy called for the creation of a CSR Counsellor, a position that suffers from serious limitations. Namely, it lacks enforcement powers and may only investigate complaints with the express consent of corporations. In short, the government failed to effectively take into account the key recommendations of the roundtable report, and did little more than endorse current CSR standards. The government's CSR strategy would do little more than create a toothless administrative mechanism to generate a façade of accountability.
Following the government's failure to seriously respond to the roundtable report, legislation in the form of a private member's bill became the only viable means by which to regulate Canadian corporations engaged in mining, oil or gas activities abroad.
Liberal MP John McKay introduced private member's Bill C-300 to Parliament in February of 2009. C-300 seeks to implement a number of the key recommendations from the roundtable report. Although the bill pre-dates the government's official response to the roundtables, it largely picks up the slack where the government's response fell short.
In summary, if Bill C-300 is passed it would:
- Regulate the relationship between Canadian government agencies such as, Export Development Canada, the Department of Foreign Affairs and International Trade, and the Canadian Pension Plan, and Canadian extractive companies operating in developing countries.
- Develop guidelines that articulate corporate accountability standards for political and financial support provided to Canadian extractive companies by the aforementioned government agencies. These guidelines are to include standards consistent with international human rights and environmental standards.
- Create a complaints mechanism by which complaints are filed with the Ministers of Foreign Affairs and International Trade. The complaint, if entertained, would lead to an investigation of the company and its compliance with the guidelines set forth by C-300. The investigation would culminate with the release of a public report within eight months of the complaint.
- Provide a mechanism for removing a company's government support as long as it is in non-compliance with the guidelines.
 Private member's bills cannot require the support of a budget. As such, C-300 faces some limitations of its own. Namely, the bill may not include a provision for an ombudsperson or independent investigations. However, C-300 would directly forward complaints to the Minister of International Trade and Foreign Affairs, which would be followed by an investigation of the alleged violations. If evidence of a CSR violation is found, then the company would be required to submit annual reports to the House of Commons and Senate, where the reports would be reviewed to determine whether the company is in non-compliance with the guidelines. If a company is held to be in non-compliance, Export Development Canada funding, Canada Pension Plan funding, and consular and embassy support could be withdrawn.
The bill has passed its first reading in the House of Commons. In the second reading, the House referred the bill to the Standing Committee on Foreign Affairs and International Development, which studied the bill and heard testimony from public witnesses during the spring and early summer. When the House of Commons resumes sitting on 20 September, one of the first items on the agenda will be to debate and consider the bill as amended, and it is anticipated that the third reading vote will take place sometime in October. If the bill passes through the third reading, it will be sent to the Senate for consideration, and, if passed by the Senate, it will require Royal Assent (presentment to the Governor General who may assent to the bill in the Queen's name, withhold assent, or reserve assent) to become law.
 Although this legislation proposes only a modest mechanism by which corporations receiving support from the Government of Canada can be held accountable for their practices overseas, it has stirred up a great deal of controversy. The mining sector, Canada Pension Plan, Export Development Canada (both heavy investors in the extractive industry), and the Conservative Party oppose the bill. On the other hand, the bill has received support from a wide range of civil society groups, the opposition Liberal Party, the NDP, and the Bloc Quebecois [French]. While the attention that C-300 has received probably far outweighs its potential impact, I believe that Canadians would like to see their politicians choose to hold government-supported corporations to the international environmental and human rights standards Canada claims to support. And, as a Canadian permanent resident, I would like to see Parliament take a step, if only a modest one, toward greater oversight of corporate actions abroad.
Photos: Paul Lemieux
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GERMANY: European Contract Law Harmonization
3:07 PM ET
Andrew Vogeler, Pitt Law '12 and Nordenberg Fellow at the Max Planck Institute for Comparative Private and International Private Law in Hamburg, Germany, writes about attempts to harmonize contract law in the European Union...
Lately, there has been much debate over the proper direction of the European Union in response to the ongoing fiscal and monetary crises. These debates have well demonstrated the difficulty of bringing together a number of economies, and the particular problem of establishing the political arrangements necessary to do so successfully.
 As a Nordenberg Fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg, I have had the chance to study a similarly challenging project that intends to simplify and harmonize the legal systems in Europe in areas key to the development of the Internal Market of the European Union.
My research has focused on the process of developing a Common Frame of Reference, or CFR, for contract law in the European Union. This has, of course, been very useful for getting the "lay of the land" of contract law in Europe, particularly the relationship between the European Community and national law. But it has also provided a powerful example of the dynamics of legal change through comparative study, a model that characterizes the development of international law in the modern world.
My time at the Max Planck Institute has not only provided access to an unmatched collection of scholarship on the topic of contract law harmonization, but has also afforded rare opportunities to interact with leading scholars in European private law, including two of the institutes' directors, Professor Jürgen Basedow and Professor Reinhard Zimmerman. They, and others at the institute, have enriched my understanding of issues facing harmonization of European private law by sharing their experience and knowledge on this topic and offering insight into the dynamic and changing legal culture that accompanies harmonization.
To give a sense of the CFR process, I offer some of my findings and reflections on a topic that, though not widely known in the United States, could have a great impact on international transactions in the future.
The perceived need for contract law harmonization, which has justified the effort to develop a CFR, is essentially twofold. First, the diversity of national laws among the twenty-seven Member States is said to pose an undue obstacle to the Internal Market. It is argued that businesses and consumers are deterred from contracting across borders due to uncertainty in dealing with foreign law and increased transaction costs for hiring foreign law specialists.
Second, where the European Community (Community) has already acted with respect to contracts, mainly in the area of consumer protection, it has taken a fragmentary approach, addressing particular needs as they are perceived. Furthermore, it has mainly acted in the form of Directives, which are not law themselves, but merely set out legal objectives which the Member States are then bound to satisfy through national legislation.
The result is a labyrinth of national legislation accompanied by a patchwork of Community law, which is applied and interpreted differently in the various Member States. In response to this fragmentation, the European Commission (Commission) issued a Communication in 2001 (2001 Communication) calling for the development of a strategy to consolidate and clarify contract law. This 2001 Communication offered four basic choices for Community action, moving forward.
First, the Commission could do nothing and simply allow legal market forces to correct inefficiencies. Second, it could develop common principles of contract law so that member states would have a coherent body of European standards to serve as a model for national-level reform and encourage convergence. Third, it could improve existing legislation by clarifying terminology and consolidating Directives in the interest of coherency. Finally, it could adopt comprehensive legislation or a new instrument at the Community level.
The 2001 Communication thus figured in an ongoing debate about the proper direction any harmonization efforts should take. On the one hand, an eventual European Civil Code was advocated on the basis that the obstacles caused by national law divergence could only be fully eliminated through codification.
On the other hand, skeptics of codification argued that removing all legal diversity would also remove legal competition and would thus remove an important source of innovation for addressing new legal problems in the Community. Furthermore, skeptics noted that since Member states would be reluctant to quickly desert their own contract laws, codification would take place gradually and be subject to implementation and interpretation on the national level. Thus, legal uncertainty could actually be exacerbated, and the problem of divergence would simply take a new form rather than being eliminated.
The responses to the 2001 Communication came from a wide range of businesses, consumer groups, and interest groups and enabled the Commission to reach a couple of general conclusions for moving forward. First, the problems with the extant contract law were real enough that inaction was not a favorable option. Second, the idea of consolidating and clarifying existing Community law was widely embraced. And third, diversity of law could pose an obstacle, but not to the extent that uniformity would be necessary. Thus, the Commission determined that finding common principles and developing a common terminology might be a useful idea, but that something like codification would not be widely embraced.
In response to these reactions, the European Commission released an Action Plan [PDF] in 2003 that called for improving the acquis, or the body of European contract law, by developing a Common Frame of Reference, or CFR. The CFR is to be a political project through which common principles of European contract law and common terminology will enable a clearer understanding and interpretation of legal concepts by legislators, courts or practitioners throughout Europe.
Additionally, the Action Plan called for reflection on the development of a possible "optional instrument," which would allow parties to subject their agreements to a Community instrument of contract rules, but would also leave national rules intact.
In a 2004 Communication [PDF], the Commission further articulated goals for the CFR: that it would offer clear definitions of legal concepts, articulate fundamental principles of contract law, and develop a coherent set of model rules, based upon the acquis and perceived best practice solutions from the various national laws.
Additionally, the European Commission and Parliament offered possible applications for the CFR. Beyond improving the acquis, it could be used as a "legislator's toolbox," both for adopting EU Directives in a consistent way and in national contract law reforms. It could also provide the European Court of Justice with a persuasive source in disputes concerning Community law. In this sense, it would serve a function quite similar to the American Law Institute's Restatements or the Uniform Commercial Code, and could also draw upon prior projects, such as the Principles of European Contract Law, published by the so-called "Lando Commission" between 1995 and 2003.
Further, the CFR could serve as the basis for an optional instrument available in arbitration cases because it would allow parties to choose a neutral set of rules to govern their contracts, much like the United Nations Convention on Contracts for the Sale of International Goods (CISG) in sales contracts or the International Institute for the Unification of Private Law (UNIDROIT) principles.
In 2005, the Commission charged the Joint Network on European Private Law (Joint Network) to develop a draft CFR, or the DCFR. The Joint Network includes a number of groups, including the successor to the Lando Commission, the "Acquis Group," to draft "Principles of European Law." Additionally, various groups were charged with researching issues ranging from the cultural bases of national laws to the economic impacts of various proposals. A couple of groups, such as the Project Group Restatement of European Insurance Contract Law, which had already been working on developing principles of insurance law, were brought in to support the DCFR's work in particularly important areas.
The Joint Network published an outline edition of the DCFR in 2007 and released a full, multi-volume edition with commentary in 2009 [Outline edition, PDF]. However, while the DCFR represents great progress in the process of harmonization, it has ignited or re-ignited debates in a number of areas. A foundational concern is the competence of the EU to pursue a CFR. It is undisputed that the European Union does not have a general power to act in contract law, which leaves the question of whether its limited ability to affect contract law through areas like consumer protection and the advancement of the Internal Market is sufficient.
There is also concern about the proper scope of the DCFR and future CFR, and how they should be applied. Where is the line between contract law and other areas of private law? Does the DCFR look too much like the beginning of a general law of obligations? Would the proposed optional instrument be "opt-in" or "opt-out?" Would such an instrument supplant national mandatory rules if chosen? If so, would it provide adequate protection of weaker parties? What would its relation be to existing international agreements, such as the CISG? Finally, there could be endless debates about the substantive details of the principles, definitions, and model rules contained in the DCFR.
Questions have also been raised about the manner of developing a CFR on the basis of the DCFR. On the one hand, though academic committees are perhaps best able to develop a comprehensive and coherent set of principles, they are often criticized as being elitist and unaccountable to democratic processes. On the other hand, the compromises necessary to any parliamentary process could threaten the coherency of the principles and undermine their effectiveness.
Nonetheless, if a CFR is created in according to the Commission's goals, it would provide a number of benefits beyond simplifying transactions within the Internal Market. It would provide a useful guide to non-European lawyers in transactions involving European parties. It would provide a potential model for contract law reform in other parts of the world, particularly because it would represent the mixture of diverse legal systems. Finally, it could offer valuable lessons in future international contract law harmonization projects.
To that end, the DCFR represents an important step along the path to harmonization if for no other reason than that it provides a substantive basis upon which the debate can continue. Where prior debates have depended entirely upon speculation as to what kind of harmonization might be possible, let alone its effects or desirability, the DCFR provides a much more substantial basis upon which qualitative and quantitative research and debates can be conducted.
However it might be evaluated directly, therefore, it represents an undeniable step forward for the process of contract law harmonization in Europe and should certainly encourage future progress.
Photo: Andrew Vogeler
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RWANDA: Peter Erlinder's Detention
3:07 PM ET
Ingrid Burke, Pitt Law '11, writes on the detention of Peter Erlinder, law professor and defense counsel at the ICTR, in light of her recent visit to the International Criminal Tribunal for Rwanda...
In a recent piece for JURIST Dateline, I wrote about a visit that I had made to the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, as part of Professor Charles Jalloh's International Criminal Law Seminar. At that time, I argued in favor of the transfer of lower to mid-level ICTR cases to Rwanda's national jurisdiction largely on the basis of Rwanda's improved fair-trial standards and due process guarantees. In light of the recent arrest and detention of renowned international criminal defense attorney, American law professor, and JURIST Forum contributor Peter Erlinder, I feel compelled to revisit my previous argument in an attempt to reconcile my earlier findings with these recent developments.
Background
For a more detailed history of the ICTR, please see my most recent article on case transfers to Rwanda. To summarize, the ICTR has primary jurisdiction over the cases of individuals accused of having committed acts of genocide, war crimes, and crimes against humanity in the territorial and temporal context of the Rwandan genocide.
However, the tribunal's days are numbered. While the closure [PDF] dates of the trial and appeals chambers were recently postponed until the end of 2011 and 2013, respectively, these extensions are insufficient to accommodate the number of cases in progress and those that are yet to begin. Rule 11 bis was introduced to the ICTR Rules of Evidence and Procedure (REP) in order to ease concerns respecting such time constraints. According to Rule 11 bis, the Prosecutor is entitled to apply for the transfer of cases of lower to mid-level indictees to Rwanda's national jurisdiction, which ICTR Prosecutor Hassan Bubacar Jallow has attempted five times to date.
Each of these applications was denied for various reasons, including the appropriateness and applicability of punishments for genocide, the adequacy of protection for defense witnesses, witnesses' ability to enter Rwanda in order to testify, and ethnic biases that could affect the trials' impartiality. The ICTR has sponsored numerous funding and training initiatives in order to effectively reform the Rwandan judiciary, and until very recently, these initiatives appeared to have been paying off. The relevant laws were more narrowly tailored; modern witness protection programs replaced their problematic predecessors; greater assurances were granted to defense witnesses residing outside of Rwanda; and greater independence was bestowed upon the judiciary in order to curb tribunal fears of ethnically prejudicial sentencing.
The arrest and detention of Peter Erlinder, however, sheds new light on these examples of juridical progress and begs the question: would it be irresponsible - despite all of the safeguards guaranteed to transfer cases by way of the Law Concerning Cases of Transfer to the Republic of Rwanda (Transfer Law) for the ICTR to begin transferring cases to Rwanda when clear evidence suggests that such safeguards are denied to individuals whose cases were never initially claimed by way of the ICTR's jurisdictional grant? In other words, can one good law render unimportant the instability of an entire judiciary?
Peter Erlinder
Over the course of his career, Peter Erlinder has defended numerous high-profile - and often highly unpopular - clients, served as lead council on various defense teams at the ICTR, and taught various courses at William Mitchell College of Law.
However, Erlinder was arrested last month, one day after his arrival in Kigali, Rwanda, on charges of espousing genocide ideology. In an official press release [PDF], the Rwandan government stated: Perhaps Mr. Erlinder thought that his citizenship, academic standing or media profile would protect him - why else would a law professor so knowingly and deliberately break the law by entering Rwanda? But he failed to understand that genocide defenders and deniers - however rich, powerful or well-connected - are regarded by Rwandans as serious criminals hell-bent on destabilizing our nation. While Erlinder has since been released on bail and has returned to the United States, the Rwandan government continues to plan to file charges [PDF] against him. These charges are based on the highly controversial Law Relating to the Punishment of the Crime of Genocide Ideology (Genocide Ideology Law). Since its passage in 2008, this law has been criticized by numerous international organizations, foreign governments, and NGOs for its far reaching implications. For example, Article 19 - an organization aimed at promoting freedom of expression and freedom of information - recently filed a report [PDF] with the United Nations criticizing the Genocide Ideology law: ARTICLE 19 is alarmed by the Genocide Ideology Law principally because the central concept of "genocide ideology" is extraordinarily broad and would catch a whole range of forms of expressions concerning genocide.... Furthermore, the system of penalties also breaches international human rights law, particularly with respect to children.
Problems with the Genocide Ideology Law
Article 3 establishes the criteria for charges of supporting genocide ideology. One subsection of the article includes the following list of prohibited behaviors: "marginalizing, laughing at one's misfortune, defaming, mocking, boasting, despising, degrading, creating confusion aiming at negating the genocide which occurred, stirring up ill feelings, taking revenge, altering testimony or evidence for the genocide which occurred."
The penalties imposed by the articles of the Genocide Ideology Law are strict, and the text of the law is replete with negative implications for free speech. For instance, the subsection of Article 3 quoted above implies that history cannot be questioned. I see no major problem with this as far as acknowledging the deaths of between 800,000 and 1,000,000 victims is concerned. However, a key element of justice is transparency, and impunity can only be detrimental. As such, a law which effectively prohibits questions related to the liability of former rebel leaders does a disservice to the goals of justice and reconciliation.
Furthermore, Article 9 of the Genocide Ideology Law allows Rwandan authorities to send children under the age of 12 accused of having espoused genocide ideology - be it for "mocking, boasting, or despising" the wrong child on the playground - to rehabilitation camps for up to 12 months. This article establishes a punishment too close in nature and purpose to the First Nations reservations schools in Canada (Assembly of First Nations) to be reconcilable with international human rights law, such as Article 18 of the International Covenant on Civil and Political Relations and Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide.
Implications for the Stability of Rwanda's Judiciary and for Rule 11 bis transfers
While fair trial and due process concerns have traditionally blocked Prosecutor Jallow's efforts to transfer cases to Rwanda's national jurisdiction, the introduction of the Transfer Law seemed to alleviate such concerns. Under the Transfer Law, transfer-case defendants are guaranteed fair trial and due process rights that are in line with international standards. Furthermore, the ICTR is able to implement monitoring mechanisms in order to ensure that transfer cases are adjudicated properly. In effect, the Transfer Law creates a safe haven within Rwanda's judiciary for the cases of lower to mid-level ICTR defendants.
Outside of that safe haven, however, juridical conditions are shakier. Among other issues, most high-level genocide cases are tried in Rwanda's Gacaca court system. Among other points of concern, the Gacaca courts have been harshly criticized by Human Rights Watch and Amnesty International reports for a lack of public access to trials, the dangerously low educational and professional standards required of judges, and extremely lax witness protection rights. Rwandan prisons are sorely lacking in terms of due process concerns - such as indefinite pre-trial detention - and basic sanitation and living standards, according to a report from World Prisons Brief at King's College London. Finally, the Erlinder case reflects poorly on Rwandan judicial independence in light of Erlinder's well-publicized conflict with President Kagame in his role as opposition candidate Victoire Ingabire's counsel in the midst of the upcoming presidential elections.
It is arguable that the aforementioned problems are irrelevant to the question of Rwanda's readiness for ICTR Rule 11 bis transfers. After all, the Transfer Law guarantees international fair trial and due process norms to transfer defendants, and the Tribunal is entitled to keep tabs on these cases in order to verify their fairness. Furthermore, since cases transferred from the ICTR are limited to the Tribunal's subject matter jurisdiction, which excludes "genocide ideology", the ICTR could choose to overlook the problems posed by Erlinder's arrest.
However, in a recent press release, Amnesty International's Erwin van der Borght summarized the troublesome issue of Rwanda's persevering susceptibility to juridical instability well in saying: We have documented a number of incidents of intimidation and harassment of opposition groups in Rwanda in recent months....[n]ow with the arrest of a potential presidential candidate a few months ahead of the election, we call on the government to demonstrate that this is not another such case.
Ultimately, considering the ICTR's stated goals of contributing to the "process of national reconciliation and to the restoration and maintenance of peace," I think it is imperative for the ICTR to question the appropriateness of transferring cases - even if such cases will be protected by defense rights and international monitoring - to a judiciary that, despite progress over the past several years, has shown itself to suffer from a dangerous amount of political influence in the lead-up to this year's presidential elections.
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TANZANIA: Transferring Cases from the ICTR to Rwanda Courts
10:06 AM ET
Ingrid Burke, Pitt Law '11, traveled to the ICTR in Tanzania with Professor Charles Jalloh through Pitt Law's Center for International Legal Education...
As part of a group of Pitt Law students, I recently had the opportunity to spend three days observing the inner workings of the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania. During my visit, I met numerous ICTR representatives, including members of the Office of the Prosecutor (OTP), the Registry, and various defense teams and judicial chambers. However, I was most excited by the opportunity to meet with Prosecutor Hassan Bubacar Jallow and defense counsel representatives because of my curiosity about the status of the cases remaining to be decided by the ICTR.
The ICTR was created in 1994 by the United Nations Security Council to prosecute violations of international law committed during the Rwandan genocide. To date, the ICTR Trial Chambers have completed the trials of 50 accused individuals and are in various stages of completing an additional 16 trials. At present, 11 fugitives remain at large. The ICTR Appeals Chamber in the Hague has completed the trials of 31 accused individuals and expects to complete another 19 trials by the end of 2013. While the Appeals Chamber has another two and a half years to reduce its caseload, the ICTR's trial chamber has only until the end of 2011, in accordance with the Tribunal's most recent Report on the completion strategy of the ICTR (closure report). This leaves open an important question: are Rwandan courts suitable for the transfer of lower to mid-level, at-large indictees?
 Even before visiting the ICTR, I had formed an opinion on this question. While Rwanda's ability to fairly try and punish genocide defendants has been debated in recent years, I believed that it would be most beneficial for the Tribunal to transfer its remaining lower to mid-level cases to Rwanda's national jurisdiction upon closure. While Prosecutor Jallow reaffirmed this belief, it was challenged by representatives of the defense counsel.
Procedurally, the ICTR has primary jurisdiction over individuals charged with genocide, war crimes, and
crimes against humanity. While Rwandan courts may exercise jurisdiction over genocide suspects by indicting and prosecuting them, the ICTR retains the right to request the transfer of such individuals to its chambers for prosecution. This broad jurisdictional grant was deemed necessary for the sake of uniformity and the Tribunal's ultimate effectiveness. However, the ICTR now has an interest in transferring cases of lower to mid-level indictees to the Rwandan national courts due to its impending closure. Key ICTR officials have manifested this interest in both express and implied actions. For instance, Prosecutor Jallow sought to refer five cases to Rwandan national courts, but in each case, the Prosecutor's transfer request was denied on the basis of fair trial concerns. The ICTR has also implied a desire to transfer appropriate cases to Rwandan national courts pending reform of the country's judicial system. The Prosecutor and the Tribunal's president have given speeches on the topic, and the ICTR has published press releases concerning its efforts to rebuild the Rwandan judicial system.
 The ICTR's interest in transferring cases to Rwandan courts can also be traced to evolving language in the ICTR's Rules of Procedure and Evidence (RPE). The RPE were amended to include Rule 11 bis, which gives the Tribunal discretion to transfer cases to appropriate national jurisdictions. Rule 11 bis serves the dual purpose of granting the Tribunal jurisdiction over the most notorious indictees while allowing it to reduce its caseload by transferring indictees charged with less serious crimes to other jurisdictions. In the rule's original form, there were only a few jurisdictions designated as appropriate for the transfer of ICTR cases. In its amended form, Rule 11 bis establishes three options for transferring cases at the ICTR President's discretion. The ICTR may transfer the case to the state where the crime was committed, the state where the defendant was arrested, or a state that has jurisdiction and is willing and able to hear the case. The language of Rule 11 bis has changed several times since being added to the RPE, and each evolution seems to be intended to ease the transfer of cases to Rwanda.
As mentioned above, the Prosecutor has unsuccessfully attempted to transfer cases to Rwanda's national courts on five separate occasions. These cases were rejected for several reasons, including concerns over the appropriateness and applicability of punishments for genocide, the adequacy of protection for defense witnesses, witnesses' ability to enter Rwanda to testify, and ethnic biases that could affect the trials' impartiality. Nevertheless, when I asked Prosecutor Jallow about future attempts to transfer cases to Rwanda under Rule 11 bis, he seemed confident that the cases would be accepted. At the time, he had planned to file another Rule 11 bis case early this summer. However, according to the most recent closure report, he now expects to hold off on filing a new Rule 11 bis request for the transfer of cases to Rwanda until the end of 2010:
Consultations are ongoing with Rwanda with a view to resolving a number of issues related to witness protection and other matters raised by the Trial Chambers and the Appeals Chamber in their decisions on prior requests for referrals under Rule 11 bis. The Prosecutor intends to file further applications for referral of fugitives' cases to Rwanda. It is expected that the applications will be made towards the last quarter of 2010. Some of the concerns surrounding the original transfer requests have been alleviated, as the Tribunal recently trained Rwandan legal professionals and established a witness protection program with video link capabilities. However, the recent arrest of American defense counsel and JURIST Forum contributor Peter Erlinder may have thrown the Prosecutor's plans into disarray.
 The Tribunal's various defense teams were less assured about Rwanda's capacity to fairly adjudicate cases. They expressed concern about the fairness of trials, citing a well-documented trend of difficulties faced by defense counsel in locating and obtaining evidence. Rwanda also has a history of witness intimidation and harassment, which poses a serious threat to defense teams and their ability to fairly advocate for their clients.
The ICTR is currently divided on the issue of case transfers. On the one hand, Rule 11 bis seems to be constructed with the intention of ultimately transferring cases to Rwanda. On the other hand, the language of Rule 11 bis is contradicted by case law, i.e., the five previous refusals of Rule 11 bis cases.
 In light of Rwanda's progress, concern expressed by defense counsel, while well-founded, is likely outdated. In reality, the ICTR has done a great deal to address the problems that led to fair trial concerns in the five previous Rule 11 bis cases. Accordingly, it is my opinion that transfer of the Tribunal's lower to mid-level cases to Rwanda is in the best interest of both Rwanda and the international community. As a consequence of the genocide, Rwanda's government was dismantled, and afterward, the judiciary was forced to rebuild. Since the end of violence, the Tribunal has played an active role in rebuilding Rwanda's institutions by providing funding, training, and promises of future monitoring. If Rwanda accepts the transfer cases, its judicial infrastructure will become more stable and experienced. In turn, judicial stability will promote reconciliation and peace, because the judiciary has proven itself as the sole governmental body capable of treating the issues that have plagued the country's recent past. Rwandan courts will also have easier access to evidence and witnesses than the ICTR. Currently, there are costs associated with transporting witnesses and evidence from Rwanda to Tanzania. In addition to wasting money and prolonging the judicial process, these costs could be burdensome for other jurisdictions if Rwanda declines to accept the transfer cases. Finally, there are public policy grounds for supporting the transfers of suitable cases to Rwanda. The international community's recognition of Rwanda's judicial and political stability will promote foreign investment and trade, thereby facilitating economic growth and, ultimately, domestic business and entrepreneurship.
 The international community will benefit from the transfer of cases to Rwanda, as well. A successful closure to the ICTR would constitute a welcome return on the international community's investment, since the ICTR has been funded by foreign governments since its inception. Furthermore, it would lend legitimacy to international criminal tribunals. Prior to 1994, tribunals like the ICTR and the International Criminal Tribunal for the Former Yugoslavia (ICTY) did not exist. The United Nations Security Council based these tribunals' creation on its Chapter VII power to take non-military action to restore international peace and security. This was a tenuous basis for authority, and there was a significant risk that the tribunals' legitimacy would be challenged. However, the tribunals have had many successes, and their legacies have important implications for the future of international criminal law. The satisfaction of the Security Council's original goals of national reconciliation and restored peace in Rwanda would set an important precedent for the effective adjudication of future international atrocities.
While it is impossible to predict the outcome of the Prosecutor's Rule 11 bis case, I side with Prosecutor Jallow in hoping that it will be successfully transferred to Rwanda. This is in the best interest of both the Rwandan judiciary's stability and the benefit of international criminal law in the future.
Photos: David Kaplan
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TANZANIA: Meeting the ICTR Chief Prosecutor
10:06 AM ET
Brittany Conkle, Pitt Law '10, recently visited the International Criminal Tribunal for Rwanda in Arusha, Tanzania, as part of a program sponsored by the University of Pittsburgh School of Law and the Center for International Legal Education. She shares her perspective...
I would be deliberately nonchalant if I neglected to say how excited I was to meet with Chief Prosecutor Hassan B. Jallow on our class trip to the International Criminal Tribunal for Rwanda (ICTR). Although other activities were planned, I knew from the minute the meeting was announced that it would be one of the highlights of my trip. It isn't every day that a person has the opportunity to meet an internationally respected prosecutor and jurist and to soak up their knowledge and experience. For a law student fascinated by international law and, specifically, the evolving state of international criminal law, this was big.
While I would normally classify my luck as uneven to bad, my fortune changed when the University of Pittsburgh hired Professor Charles C. Jalloh before the start of my third year. Professor Jalloh has worked as counsel in the Crimes Against Humanity and War Crimes Section of the Canadian Department of Justice and as the Legal Advisor to the Office of the Principal Defender at the Special Court for Sierra Leone. In addition, he has clerked for two judges at the ICTR and has written insightful scholarly articles on many topics. Given his impressive accomplishments, when I saw that Professor Jalloh was teaching an International Criminal Law Seminar in my last semester as a law student, I couldn't sign up fast enough. At that time, I was unaware that there would be a special component to the class: an optional trip to the ICTR in Arusha, Tanzania, over spring break. This was not just a sightseeing trip with a few hours spent at the ICTR. Rather, it was planned down to the minute and included lectures and presentations from every department of the Tribunal, in addition to informal opportunities to meet other young lawyers and ask questions about their experiences as interns at the Tribunal.
Our meeting with the Chief Prosecutor was scheduled for our first day in Arusha. We could tell that he was coming before he even made it down the hall to our conference room. There was a flurry of activity outside the door, a woman instructed us to stand when he entered, and the sound of swishing robes filled the room. Then, suddenly, there he was, a tall man with traditional Gambian robes and an inviting smile. While I'm fairly certain that all of us were nervous to be meeting with him, we were put at ease when we noticed that the Chief Prosecutor didn't seem to take himself, or the trappings of his office, too seriously.
I knew that we had only twenty minutes to meet with the Prosecutor, as he was only scheduled to briefly introduce us to the prosecution's perspective on the ICTR before leaving to attend to other business. Professor Jalloh had stressed to us that the Chief Prosecutor is exceptionally busy and that we were lucky to get any time with him. After all, this is a man who must make extremely difficult prosecutorial decisions regarding genocide and other crimes against humanity on a daily basis. Knowing all of this, I assumed that the Prosecutor would breeze in, briefly welcome us to Arusha and the Tribunal, and then go about his busy day.
However, Chief Prosecutor Jallow started the meeting by asking us to introduce ourselves. We went around the room, stated our names and, as prompted by the Prosecutor, named our specific interests in law. I was the first to introduce myself, and thought I could get by with just my name. "And would you like to work in international criminal law when you finish your schooling?" he asked. I blurted out the first thing that came to mind: "I'd actually like to work here." Inwardly, I cringed, but the Prosecutor just smiled and chuckled in a way unique to those who hire others for very desirable positions.
The Prosecutor's opening remarks centered on the ICTR and prosecution's accomplishments to date, in addition to the ICTR's goals for the future. The Prosecutor outlined the prosecution's present focus: to finish the cases remaining on the ICTR's docket, to continue tracking the eleven remaining fugitives from justice and encourage state cooperation in arresting them, to continue working with the Rwandan judiciary in preparation for the transfer of cases to Rwanda, and to preserve evidence in cases against those who have not yet been arrested. In the interest of preserving evidence for future cases, the Prosecutor can now call witnesses prior to trial in order to record their testimony in case of the witnesses' death or unavailability when the fugitive is finally apprehended. Of course, the witness is cross-examined by a lawyer from the defense, as well.
After his remarks, the Prosecutor opened the floor to questions from our group. He answered questions on the disclosure problems existing within the ICTR, as witnesses regularly provide information relevant to many separate cases that must be discovered and disclosed. He also spoke of the problems that the ICTR has faced in relocating witnesses and the difficulty of getting countries to accept them. Finally, he talked about the improvement of Rwanda's judicial system and his hope that the Tribunal judges will allow cases to be transferred to Rwanda.
I could tell from the rapt expressions around the room that the other visitors were also enjoying this rare opportunity to hear from someone who makes such difficult decisions. But what made the meeting truly exciting was that the Prosecutor really seemed to enjoy himself. He encouraged our questions, gave thoughtful and seemingly candid answers, and appeared thoroughly interested in what eleven law students from the University of Pittsburgh had to say. As a result, twenty minutes turned into forty-five. It was only after he finally left the room and we all exhaled that we realized our good fortune. It is a rare opportunity to spend time with a man who is changing and advancing international criminal law every day in his capacity as Chief Prosecutor for the International Criminal Tribunal for Rwanda.
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PITTSBURGH: Terrorism and the Law
11:06 AM ET
Kristine Long, Jurist Student Staff Association (JSSA) President, Pitt Law '11, attended the First Annual JSSA Debate...
The first debate hosted by the JURIST Student Staff Association concerned the heated topics of terrorism and national security. These topics have became increasingly relevant to Americans in the wake of 9/11, as the United States responded to the threat of terrorism by changing airline security procedures, drafting and passing the Patriot Act, and launching Operation Enduring Freedom in Afghanistan. In the nearly 10 years since 9/11, the War on Terror has impacted every American, and, as such, the debate was both timely and important.
The two participants, Jeffrey Addicott, Director of the Center for Terrorism Law at St. Mary's University of Law and Susan Herman, President of the American Civil Liberties Union (ACLU), have written prolifically on national security and terrorism issues. Both have been featured writers on JURIST's Forum service, and it was incredibly fortunate to have both speak about the relevant legal changes in terrorism law. At the beginning of the debate, I incorrectly assumed that the speakers would hold opposing views based on their respective organizations. However, I was pleasantly surprised to find that Addicott and Herman had common concerns and beliefs about terrorism and national security.
Professor Addicott launched the debate with a single question: "Are we at war?" If so, he argued, the United States under both Presidents Bush and Obama has acted in accordance with the laws of war with respect to its treatment of enemy combatants at Guantanamo Bay, Cuba. Addicott said that if the United States is not at war, then the government's actions are illegal and in violation of both domestic and international law. He argued that the United States is indeed at war and said that it is within the President's power to make war under Article I of the Constitution. He further cited a September 20, 2001 address to Congress in which President Bush made clear that the 9/11 attacks were an act of war and that the US government would respond with a War on Terror against Al Qaeda. In addition, he said, both Congress and the Supreme Court have acknowledged a state of war with the creation and affirmation of decisions rendered by Military Tribunals, which are permitted only during times of war.
But even if the question of whether the United States is at war is binary, the process by which the United States finds and tries enemy combatants is not as simple.
This murky and vague process is exactly what concerns Professor Herman. While she does not necessarily question whether the US is at war, she is troubled by the scope with which the US applies its traditional war powers to a non-traditional enemy. In the past, she said, war and enemies were readily discernible - enemies wore distinct uniforms and countries formally declared war on one another. However, terrorism and terrorists do not fit this traditional paradigm. The concern posed by Professor Herman, in response to Professor Addicott's question, is: "What are the limits to the United States' war powers? She said that under the guise of its state of war in Afghanistan, the United States can detain American and foreign citizens, both domestically and internationally. She said that by labeling citizens "enemy combatants," the United States can question and detain them for years with limited rights. Yet, Professor Herman wonders, if the international legal community cannot cohesively define a terrorist act, how can it begin to define the term "enemy combatant"? She did not disagree with Professor Addicott's state-of-war analysis, but she was adamant that the US needed to establish a transparent process by which citizens or enemy combatants can receive a fair trial and due process.
Despite some diverging opinions, both Addicott and Herman agreed that there are differences between criminal and terrorist acts and that the legal community has yet to clearly distinguish between the two extremes. Both participants cited anecdotal evidence that is troubling to either side: a college student was detained and questioned in an airport for merely having Arabic flashcards whereas detainees found innocent and released went on to commit terrorist acts.
Currently, governments are at odds as to how to combat the War on Terror with traditional legal principles, and the US Supreme Court continues to wrestle with the issue of what constitutes fair process. In the cases Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the Court failed to form a majority opinion as to the proper legal position courts should take with respect to enemy combatants. The cases did hold, however, that US citizens have the right to challenge their detention on the basis of due process. In contrast, under the Geneva Conventions, the government has the right to indefinitely detain non-citizens until the end of the war.
The speakers' questions illuminated the difficult task governments and legislatures have in creating terrorism policy. While the participants did not take completely opposite positions, there does appear to be tension between robust national security and individual civil liberties. In my opinion, the two principles must be balanced, but such a balancing act has eluded this government for generations. As Alexander Hamilton stated in Federalist No. 8, "safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates." In maintaining that balance, our government must be aware of the consequences of moving too far in either direction.
The questions posed by legal scholars and governments are integral to how the general public perceives the war on terror. Thus, informed public debates such as this one are vitally important to maintaining America's legal tradition of a marketplace of ideas. The dissemination of information is a positive step toward properly addressing the murky issues of terrorism and national security.
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IRAQ: Environmental Policy
11:06 AM ET
Sara Burhan Abdullah, Pitt Law LLM '08 and JD '11, was an observer to the Iraqi Constitutional Review Committee through the University of Utah Quinney School of Law's Global Justice Project: Iraq. She shares her experiences with the issue of environmental protection in Iraq...
The environmental catastrophe caused by the oil spill in the Gulf of Mexico reminded me of a vigorous debate concerning environmental protection between members of the Iraqi government and representatives of the autonomous Kurdish Region. As an extern student in Iraq in Summer 2009, I worked closely and regularly with the Iraqi Parliament and attended the meetings of the Constitutional Review Committee ("CRC"), where I had the opportunity to witness this debate. Both sides were passionate about the principle of federalism and how power should be divided between the federal and regional governments. Unfortunately, however, the federal and regional representatives were much less concerned with the actual exercise of this disputed authority in important areas, such as environmental protection.
 The debate occurred within the Constitutional Review Committee while it was considering revision of the federal and regional governments' shared powers under Article 114 of the Constitution [PDF]. The Kurdish representative argued strongly that the Kurdish region should have the sole power to monitor and protect its environment. On the other hand, the federal government argued that primary responsibility for drafting environmental policy should be federal, although implementation could be left to the regions. The CRC members debated this single point for over an hour, with each side attempting to grab as much power as possible. While the Kurdish region has enjoyed some autonomy from the Iraqi central government since 1991, the issue of Kurdish political autonomy is historically contentious and continues to be politically sensitive. As a result, the issue of environmental protection had become a political tug of war between the country's two main governmental authorities - the central government in Baghdad and the Kurdish regional government based in Erbil.
The debate's contentiousness is not surprising given the sensitivity surrounding the proper allocation of power between the Iraqi central government and the Kurdish regional government. The irony, however, is that in the legal context of environmental policy, the tug-of-war between the two governments was over a fiction. Neither the Kurdish nor the federal government has a real environmental protection policy.
 The absence of an environmental protection policy is not due to a lack of laws regulating the environment. Both the federal government and the Kurdish region have passed laws and regulations for environmental protection. The Iraqi Parliament recently enacted Law No. 27 of 2009 [PDF, Arabic], For the Improvement and Protection of Environment, issued in Official Gazette No. 4142 of 2010. This detailed and strict law sets forth punishments for companies and individuals that violate environmental standards. It also upheld and affirmed existing regulations that outline environmental standards in specific detail. The Kurdish region has a similar law, No. 8 of 2008 [PDF, Arabic].
Yet, the reality of environmental protection is somewhat different. While the committee members were in the midst of their debate, I had mental images familiar to every Iraqi currently living in Baghdad -- the Tigris River filled with trash, untreated sewage, and garbage, all in violation of Law 27. In the Kurdish region, the situation is hardly different. The lovely mountains of the Kurdish region, where Iraqis picnic on the weekends, are invariably covered with trash, and thousands of empty bottles lie in unsightly piles on green fields. I started to laugh as I listened to the members' heated arguments, since the passion surrounding policy control was in apparent ignorance of the reality of the country's neglected, serious environmental condition. There just does not seem to be the political will to take the actions necessary to implement a real environmental policy.
The session ended that day with the members having made no progress, divided as ever over who should control a non-existent policy. I decided to prepare a brief documentary report for the committee by taking photos of the country's environment. I wanted the committee to look at environmental problems across the country and then develop a policy or plan to implement and enforce existing laws and related regulations in areas clearly under their control, whether Baghdad for the federal government or Sulaymaniya for the Kurdish government. Then a fight over policy might make more sense. Federalism had become such a sensitive issue that it was provoking debates over who could exercise authority in an area of law - environmental protection - where neither government seemed anxious to actually act.
 I tried to take some photos of the part of the Tigris River that upset me the most - an area near Baghdad's Historic "Suspension Bridge" that I crossed every day, hoping for a nice and relaxing view of the river but instead finding floating garbage and empty bottles. Unfortunately, security regulations prevented me from taking a photograph of the river from that point. I could only secretly take photos of other areas of the river that were farther from checkpoints or other military bases or police stations. Then, during a trip to visit my family in Sulaymaniya, in the heart of the Kurdish region, I had the chance to take photos of the Azmar Mountain's most beautiful picnic area, which is covered by thousands of empty bottles and trash. Some of these photos can be seen in this article, but sadly, I never had the opportunity to submit them to the committee. The committee never met regularly again, and as election time neared, the members became occupied with their reelection.
The litter I saw on the mountains and in the streams represents only a small part of the environmental problems faced by the Iraqi people. The Iraqi government, both regional and federal, has failed to address these problems and other environmental concerns such as the consequences of Saddam Hussein's use of chemical weapons. All contribute to Iraq's water, air, and soil pollution, and affect the health of Iraqi people.
These problems require urgent action by some authority, regional or national. I hope that a younger and more assertive generation will ask more from its leaders and demand that they take a step toward bringing actual policy into force, rather than arguing about who is responsible.
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URUGUAY: Approaches to the Expiry Law
5:06 PM ET
Ekaterina Sivolobova, a student in the Faculty of Law at the University of Buenos Aires, Argentina, writes about the problem of legal impunity in Uruguay...
Without a doubt, legal impunity is a problem affecting Latin America. Most South American states have issued amnesty laws that prevent the investigation of human rights violations committed during dictatorships. Although some of these amnesty laws have already been nullified, others remain valid, allowing human rights violations to go unpunished. One such case is Uruguay's amnesty law.
 The amnesty law of Uruguay, Law 15.848, is also known as the "Ley de Caducidad" (Expiry Law) and was enacted in December 1986 as a result of an agreement between the political parties and the military. This amnesty law has prevented the investigation and adjudication of Uruguay's military and police for illegal detentions, systematic tortures, killings, and forced disappearances committed during the country's civil-military dictatorship.
By enacting the Expiry Law, Uruguay has certainly violated international human rights principles and treaties signed and ratified by the state. The Expiry Law violates the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention of Human Rights, and the Inter-American Convention to Prevent and Punish Torture.
The Expiry Law disregards fundamental legal rights. It obstructs investigations, prevents access to justice, and violates the right to be heard by a competent, independent, and impartial tribunal. Additionally, it contravenes the right to judicial protection by not guaranteeing victims and their families protection against acts that violated fundamental rights recognized by Uruguay's constitution. The Expiry Law also prevents access to the truth, frustrating the investigation of violations of the rights to life, liberty, and physical and psychological integrity. Furthermore, Articles 3 and 4 of the Expiry Law grant the executive the authority to decide, without the right of appeal, whether cases filed in Uruguay's courts would be subject to the Expiry Law. This is in direct contravention of the principle of separation of powers embodied in the Uruguay Constitution. By enacting this law and perpetuating it for 24 years, Uruguay has both guaranteed complete impunity from prosecution for crimes committed during the dictatorship and ignored its obligations as a state.
 Nevertheless, there have been two attempts to use the referendum provision set forth in Article 79 of Uruguay's constitution to overturn the Expiry Law. Article 79 establishes the right to call for a referendum on a given law, and is an institutionalized form of direct democracy that permits the citizenry to enact or nullify a law. On April 1989, the first referendum was called on the legitimacy of the Expiry Law, which had been enacted four years earlier. By a popular vote, the Expiry Law was upheld with 57% of the votes in its favor. This disappointing decision was attributed to the then-current transition to democracy, institutional instability, and tensions between the military and civilian government. As a result of this referendum, human rights violations and criminal impunity went unaddressed for 20 years.
A second referendum on the Expiry Law was called on October 25, 2009. Once again, the referendum failed to pass, with 53% of the votes supporting its validity and 47% calling for its nullification. This result has been attributed to Uruguayans' ignorance of the referendum due to a lack of information available in the media. The continued validity of the Expiry Law has been a disappointment to the victims of the Uruguayan dictatorship and their families. However, as Jose Miguel Vivanco, Americas director at Human Rights Watch, has said, "the plebiscite results are disappointing, but let's not forget that accountability is not a popularity contest that should be decided by majorities, [...] Uruguay has an international legal obligation to investigate, prosecute, and try those responsible for heinous crimes, and the courts should continue to prosecute appropriate cases."
After two failed attempts to overturn the Expiry Law through referendums, opponents have discussed other possibilities. Currently, the discussion has centered on whether this law could or should be reinterpreted, derogated, or declared null and void. Without addressing the implications of international human rights law, the discussion persists due to different political interests. Because these three options vary widely in legal effect, it is important to clearly understand each when considering Uruguay's obligations.
A reinterpretation of the Expiry Law would examine and clarify the law's textual meaning. Generally, reinterpretation presupposes different or contradictory interpretations and applications among courts. Until 2005, however, Uruguay's Expiry Law had been interpreted and applied uniformly. Nevertheless, if this law were to be reinterpreted, its new reading would only take effect from that date forward, with no application to previously concluded cases. Those cases would remain covered by the amnesty law. Furthermore, reinterpretation would not nullify the Expiry Law, but rather affirm its validity and purpose. Because re interpretation of the Expiry Law would result in the law's continued legal force, it should not be considered a serious option.
 A second option is to derogate the Expiry Law. Derogation would result in the Expiry Law's cancellation and prevent its application to future cases. However, just like reinterpretation, derogation would not have any effect on previously concluded cases. Furthermore, to derogate the amnesty law would imply that the law has legal status, whereas the Expiry Law should not be given any legal credence. Because derogation of the Expiry Law would preserve prior legal impunity, it should also be rejected.
The third option is to declare the Expiry Law null and void. This would imply that the amnesty law, because it violates jus cogens (compelling law) norms, is, and always has been, illegitimate. Therefore, nullification of the amnesty law would extinguish all of its effects, including decisions from previous cases. This would return to victims the right to truth, the right to justice, and the right to reparations. As a result, I hope that nullification is the course chosen by Uruguay.
Nullification is a valid option, as the Uruguayan Constitution gives the legislature the power to issue new laws, modify existing ones, and declare laws unconstitutional. Using this power, Uruguay's legislature has previously declared at least 2 laws null and void, setting a precedent for nullification of the Expiry Law.
The Expiry Law's 20 year history in Uruguay has constituted a continuous violation of human rights, contravening fundamental rights granted by the Constitution and by the international human rights treaties to which Uruguay is a party. Uruguay has an obligation to remove all obstacles to the investigation and punishment of those responsible for the tortures, killings, illegal detentions, and forced disappearances during the dictatorship - including those cases that have already been decided. Uruguay must adopt the necessary legislative measures to comply with international standards and provide retributive and restorative justice to the victims of the Uruguayan civil-military dictatorship.
Photos: Ekaterina Porras Sivolobova
Mentioned in this article:
Uruguay Expiry Law, in Spanish
The Universal Declaration of Human Rights
International Covenant on Civil and Political Rights
American Convention on Human Rights (Pact of San Jose)
Inter-American Convention to Prevent and Punish Torture
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SERBIA: Belgrade and Kosovo
10:05 AM ET
Kristine Long, Pitt Law '11, traveled to Belgrade, Serbia, for a pre-moot prior to the Willem C. Vis International Commercial Arbitration Moot in Vienna, Austria...
The conflict between Kosovo and Serbia is so contentious that it seemed appropriate to follow my recent article about Kosovo's independence with an article from the Serbian perspective. Luckily, I had the opportunity to travel with my moot team to Belgrade, where the University of Belgrade School of Law hosts one of the more prestigious pre-moots prior to the Vis competition in Vienna. Although I already begun to learn about Kosovo in the United States, my time in Belgrade provided me with first-hand experience as to how the two countries interact.
 During my first cab ride through the city, I was immediately exposed to Belgrade's city center and its unique history. Perhaps the cab driver knew that we were Americans and consequently gave us a scenic tour, but he drove through the most historically significant and awe-inspiring parts of the city. When driving or walking through Belgrade, one is constantly reminded of NATO's 1999 bombing of the city by the destroyed buildings interspersed among new construction. While I had read about the Kosovo conflict and the NATO bombings in the United States, it was entirely different to see the long-term consequences of the international community's response. While most people remember the conflict from past classes or news stories, it was quite evident that the Serbs confront daily reminders of their conflict with their neighbors.
Belgrade is interesting because of how it juxtaposes conflict with daily life. There are many parts of the city where one can forget that Belgrade was the site of protests and conflict only several years ago. However, the members of the Kosovo team, which traveled with our Pitt Law team, were sensitive to the continuously strained relationship between Serbia and Kosovo. Currently, the ICJ is deliberating as to whether Kosovo's declaration of independence is in compliance with international law, and it will render a highly anticipated decision by the end of 2010. While Kosovo and Serbia have the strongest interest in the decision, other countries have chosen sides because of the ICJ opinion's possible implications on international relations. Of particular interest is whether a ruling in Kosovo's favor will allow other contested territories to declare independence, as well.
While the ICJ opinion will have important implications for both Kosovars and Serbs, these groups face real issues outside the scope of the ICJ case. For instance, the Serbian government does not recognize Kosovar passports as valid travel documentation, so only half of Kosovo's team - those members with a second passport - were permitted to travel to Belgrade. This is but one example of the challenges Kosovars face in this region. While Kosovo's statehood is recognized by 65 other countries, until it is universally accepted, Kosovar citizens can and will continue to face discrimination.
 The ICJ has an important role in determining Kosovo and Serbia's fate. However, as Kosovo's advocates have previously stated, the question before the ICJ is too narrow to reflect the full conflict between these two countries. While I supported Kosovo's statehood before traveling to Belgrade, my experience in Serbia solidified my belief that Kosovo should remain an independent state. In Kosovo's two years of independence, it has begun to rebuild its economy and government, in addition to asserting its independence in smaller ways. Kosovo's government has created a new flag, a new national anthem, and instilled ideas of nationalism and statehood in its citizens. However, Serbia's refusal to recognize Kosovar passports made me wonder how many laws and policies each country would need to change in order for the two countries to truly move forward.
 From my observation, Belgrade can be part of this change, as it appears that some of its citizens have already moved on. Only a few years ago, Belgrade's streets were filled with protestors and anti-Kosovo propaganda, but the Belgrade I visited was peaceful and mostly accepting of the group of Kosovars and Americans traveling together. For example, the Belgrade faculty gracefully permitted the Kosovar team to participate in the pre-moot rounds in the interest of promoting international unity and competition. Although a small step toward permanent peace, granting Serbian and Kosovar students the opportunity to work together is instrumental in shaping their countries' future relationship. The participants in the pre-moot are their countries' future legal minds, and Belgrade was the perfect site for these young, bright scholars to begin to set their differences aside and learn to work together.
While the ICJ's final decision will inevitably have its supporters and detractors, it will allow the ICJ to solidify Kosovo's status. If the ICJ upholds Kosovo's declaration of independence, Kosovo and its citizens will be better able to address discrimination and assert those rights universal to all citizens. Finally, the ICJ's decision will bring closure to a conflict that has spanned many years and hopefully convince both populations to pursue a more harmonious future.
Photos: Kristine Long
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JURIST's new and improved Dateline service features fresh first-hand perspectives on legal issues arising around the world.
In the past, Dateline featured anecdotal pieces written by University of Pittsburgh law students studying or working outside the United States. These personal accounts gave an outsider's perspective on current issues in foreign legal cultures and provided students with an outlet to share their views and experiences.
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