JURIST - Dateline

Friday, August 27, 2010

APPALACHIA: Coal Law and Property Rights
10:08 AM ET

Joseph Schaeffer, Pitt Law '12, recently attended a Coal Law Short Course sponsored by the Energy & Mineral Law Foundation and hosted at the West Virginia University College of Law...

In Appalachia, Coal is King. Coal-fired power plants provide the majority of the region's electricity, and it's difficult to find someone from the major coal states of West Virginia and Kentucky who doesn't have a close friend or relative involved in the coal industry. Coal provides power and jobs to the region, and politicians who attack the coal industry do so at their own risk. Nevertheless, there are significant challenges to the coal industry from regulatory agencies, such as the EPA, and in the form of legal challenges by environmental organizations. For instance, the Obama Administration has announced plans [PDF] to undo changes to the Stream Buffer Zone rule that were made during the George W. Bush Administration, and the US Army Corps of Engineers has suspended [PDF] Nationwide Permit 21 grants - permitting discharge of dredged or fill material into waterways for surface mining activities - in the Appalachian Region. In the courts, the Sierra Club won a judgment in the US District Court for the Southern District of West Virginia in February 2010 against Powellton Coal Company, and there is pending litigation related to the April 5, 2010, Upper Big Branch mining disaster.

The Coal Law Short Course covered all of these issues and more, and while the speakers uniformly represented coal companies and their interests, the emphasis was on diligent representation of the client. This often takes the form of strict adherence to legal and regulatory requirements, since the coal industry, as J. Thomas Lane (Bowles, Rice, McDavid, Graff & Love) pointed out, is the most regulated industry in America. Compliance with safety, employment, and environmental regulations can be costly, but it's good business, particularly when repeated violations can lead to the loss of crucial permits. For the coal industry, however, the most basic legal issue is securing the property right to mine the coal.

Almost universally, first year law students learn in property law that cuius est solum, eius est usque caelum et ad inferos (for whoever owns the soil, it is theirs up to Heaven and down to Hell). This Latin phrase describes the principle of complete ownership in fee simple, but in reality, property rights are often severed between two or more owners. In the context of coal, a single piece of property might be split between the owner of the surface rights and the owner of the mineral rights. In more complex cases, one party might own the surface rights, another the oil and gas rights, and yet another the coal rights. Property law in the coal industry can be labyrinthine. Mining operations extend across hundreds of properties, property owners might have severed property rights decades prior, and deeds can be wrong or go missing.

Consequently, a company that wants to develop a coal seam must ensure that it owns the mineral rights for the property it wishes to mine. Where the property is owned in fee simple, ascertaining ownership is easy, but it becomes more difficult where property rights are severed. Researching deeds can be such an extensive undertaking that lawyers often prioritize, ensuring property rights in the area where mining will begin before turning to those sections to be mined later.

Once a coal company has confirmed ownership of mineral rights, it must ensure the right of access to the coal. Generally, mineral rights include the right of access, whether explicitly defined in the lease or deed or implied. The West Virginia Supreme Court of Appeals held in Squires v. Lafferty, 95 W.Va. 307, 121 S.E. 90 (W. Va. 1924), that the mineral owner may act in a way that places a "reasonable burden" on the surface owner and is "fairly necessary" for the extraction of the mineral. In practice, this means that the mineral owner may take reasonable measures necessary for extracting the mineral, such as the construction of mine shafts. There are limits on these rights, however. If a mine operator constructs a coal cleaning facility on the property, its right to use the facility is implied only for coal mined from that property, not for coal transported from other mines. Also, surface mining rights are almost never implied. As Lane pointed out, absent explicit provisions for surface mining in the lease, surface mining will almost never pass the "reasonable burden" test, even where it is "fairly necessary" to access the minerals. As with every aspect of the law, though, there are exceptions. In Large v. Clinchfield Coal Co., the court implied surface mining rights where the land was rough and undeveloped, and reclamation processes would leave the land virtually undistinguishable from its prior condition. Courts have also been more willing to imply surface mining rights to leases signed when the parties could have "reasonably contemplated" the use of surface mining to extract the minerals.

While Surface Mining often receives the most attention from regulators, the press, and environmental groups, emerging technologies in carbon capture and storage (alternatively, carbon capture and sequestration) promise to keep property lawyers busy for years to come. Carbon capture and storage (CCS) is the injection of carbon dioxide, captured from coal-burning power plants, among other sources, into geological formations. This is analogous to the storage of oil and gas reserves, but is particularly attractive because of its environmental benefits (reduction in CO2 emissions) and potential for facilitating additional oil and gas extraction. On the property side, however, there are important questions as to who owns underground geological formations. Coal, oil, and gas companies would like to use empty mineral beds to sequester carbon, but there is an argument that mineral rights end when mining has ceased. Therefore, once mineral owners have extracted the coal, oil, or gas, they no longer have a right to the porous spaces for purposes of CCS.

CCS is still an emerging technology, and it is possible for the law to go either way on this issue. Previous cases involving the use of empty spaces have generally held that the mineral owner has a reasonable right of use. For instance, in Ross Coal Co. v. Cole, the US District Court held that a mine owner had the right to bring coal from one underground tract to another through underground passageways. However, it further held that the mine owner did not have the right to bring that coal to the surface through a mine shaft on property owned by the defendant Cole. With respect to CCS, the courts could either find use of porous spaces as attendant to the mineral owner's rights or as an interest which reverts back to the surface owner upon removal of mineral deposits.

Environmental groups and the coal industry have a mutual interest in resolving this uncertainty. The simple fact is that coal is still King in Appalachia, and it will continue to play a major role in America's energy future. CCS not only reduces the amount of greenhouse gases released into the atmosphere, but it can assist in extracting oil and gas reserves. When one considers that only 20% of all available oil is removed using current drilling technologies, this could be an environmentally sound method of increasing energy production in America. Environmentalists might argue that CCS technologies continue to rely on "dirty" rather than "clean" energy, and that money should be spent on renewable energy technologies. There's also the argument that sequestered carbon will be stored for hundreds or thousands of years, outlasting any company or regulatory scheme. These are all valid concerns, but they miss the forest for the trees. The shift to clean technology will not take place overnight, and even then, coal will remain an energy source so long as it's commercially viable. Until America has completely transitioned to renewable energy sources, it simply makes sense to mitigate the environmental impact of coal-fired power plants. Carbon sequestration does this, and it can provide good jobs to Americans at a cost that's spread across consumers (estimates place the cost of carbon sequestration at 17 cents per kW/h). However, companies won't invest in CCS facilities if the legal right to carbon sequestration is unknown. Congress and state governments need to take action and provide for a clear property right to porous spaces before decisions in the federal and state courts result in inconsistent laws across jurisdictions. While the coal industry would prefer to retain the right to porous spaces for purposes of carbon sequestration, nothing kills innovation like uncertainty, and any consistent standard would be an improvement.

It's important to act quickly. According to recent estimates, China is building two power stations every week, including one "clean" coal-fired plant each month. In contrast, the United States has only one integrated plant (power plant and CCS plant on same site), and it just opened in 2009. This is progress, but the United States needs to make a commitment to CCS technology. The knowledgebase is here, and American research centers, like the Natural Resource Analysis Center at WVU (full disclosure: former employer), have worked closely with Chinese companies on CCS technologies.

Coal is still a major part of America's energy supply and will continue to be so for the foreseeable future. It is good sense, both for business and the environment, to invest in coal capture technologies that mitigate environmental damage, create new jobs, and potentially aid in extraction of current oil and gas reserves. However, this won't happen until Congress and state legislatures resolve property law issues so as to resolve uncertainty and encourage investment.

Photos: Peter Schaeffer

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Friday, August 20, 2010

FRANCE: Constitutional and Cultural Issues Surrounding the Burqa Ban
4:08 PM ET

Kirk Knutson, Pitt Law '12, studied law at the Université de Paris-Sorbonne in Summer 2010 through the Paris Summer Institute hosted by Cornell Law School. He shares his knowledge of the debate surrounding France's measures to ban the wearing of full Islamic veils...

This summer, I had the opportunity to take courses in international criminal law, international human rights law, comparative legal studies, comparative family law, and international trade and development at the Université de Paris-Sorbonne. The power of cultural influences on the law became apparent to me during my studies here, particularly with respect to the current debate in France surrounding the potential ban of the burqa, the full body veil worn by women in some Islamic traditions.

On July 13th, the French National Assembly passed a law [French] prohibiting women from wearing a burqa in public by a vote of 336-1. Before gaining legal effect, the law must also be passed by the French Senate, which I had the chance to visit as part of the Cornell program. However, I was told by our tour guide that the Senate consists of a much more conservative body than the National Assembly, which suggests the likely passage of the law. As written, violation of the burqa ban would result in either a fine of 150 Euros or required attendance at a citizenship class. The uniformity of legislative support for the ban has been described as resulting from a range of perspectives, from the liberation of women from a perceived oppressive religious regime to the preservation of French culture and its secular tradition. The proposed ban has received wide support in France, where approximately 70 percent of the population is in favor of it. I've noticed that the passage of the Burqa ban through the National Assembly has received relatively little notice in the national media, which reflects the lack of controversy surrounding the law among the French public. This lack of discussion contrasts sharply with the extended national debate - encountered upon my arrival - that focused on increasing in the age of eligibility for government employee pension benefits from 60 to 62.

Even if both houses of the French Parliament pass the burqa ban, the Constitutional Council, the body responsible for reviewing laws passed by the legislature for possible constitutional violations, immediately expressed concern that the proposed ban violates the French Constitution's protection of the free exercise of religion, and is currently reviewing its legality. The Constitutional Council's objection comes despite the fact that prior to voting on the law, the National Assembly sought the Council of State's help in drafting a law that would be as broad as possible while also withstanding constitutional review. The Council of State is the highest administrative appeals court in France and is also responsible for providing legal advice to the government.

While at the University of Paris, I attended a presentation by Edouard Geffray, a conseilleur at the Council of State, who provided insight into the legal position of the French government on the ban. According to Geffray, while previous restrictions on the free exercise of religion in areas run by the government have been rooted in the French concept of "laïcité" - the strict separation of power between the church and state stemming from the French revolution - the proposed ban is founded on the relatively new legal concept of maintaining public order. Justifying the burqa ban on principles of public order contrasts with past restrictions on religious expression in France, such as the ban on religious clothing in public schools [French], he explained that the ban on religious clothing in public schools was rooted in the perceived need for clear restrictions on overtly religious practices in public life, and it gave school officials broad authority to prohibit religious clothing that they perceived as combative or disruptive. If a student refuses to comply with a school order to stop wearing a prohibited religious symbol or clothing item, he or she will be expelled from public school. These restrictions have resulted in de facto bans of some expressions of Islamic faith, such as the partial veil, while allowing students to wear discreet religious symbols, such as a small cross. The disproportionate effect on Muslims by "laïcité" laws, such as the religious clothing ban, raises questions about whether the Parliament truly intended to enact neutral restrictions on religious practice in state-run institutions.

In contrast, the complete ban on the burqa passed by the National Assembly is founded on maintaining the public order (a relatively new and loosely defined legal concept) and promoting dignity and sexual equality. The French government has taken the position that the burqa is a custom designed to subject women to patriarchal control rather than a legitimate expression of any religious belief. The government views the burqa as an attack on French culture and its wearing as an expression of a refusal to assimilate to French society. This perceived attack stems from the growing Muslim community in France, which has led to tensions between the culture of the "European" French population and the beliefs of Muslim immigrants who largely come from former French colonies. The increasing presence of Muslims in France has further revealed the cultural gaps between these two communities, and, from a 'European' French perspective, appears as a growing threat to French cultural homogeneity.

Legally, though, the ban is premised on the need to easily identify anyone in a public place in order to maintain public safety and order. Geffray acknowledged that the imposition of legal penalties for failing to assimilate into French society reflects fundamental cultural differences in France. It is notable that there has been little discussion of the burqa's significance - whether cultural or religious - from the perspective of the women who themselves wear it. It is also impossible to ignore the fact that the Council of State, by defining the burqa in terms of custom rather than religion, conveniently avoided the constitutional question of whether the ban violates the free exercise of religion protected by the French Constitution. Whether the Constitutional Council accepts the wearing of the burqa as a matter of custom rather than religious expression will be fascinating to see in the coming months.

However, the immediate concerns that the Constitutional Council has expressed about the law cannot be encouraging to its proponents. If the Constitutional Council rules that the burqa ban is unconstitutional, the National Assembly would presumably have the option of re-drafting the law and beginning the process again. In the event that the Constitutional Council approves the current version or some future, revised version, there is the possibility of other challenges, such as in the European Court of Human Rights, which also protects the free exercise of religion under Article 9 of the European Convention on Human Rights [PDF]. Given the strong French support for the ban, and the international debate it has caused, it is an issue that will likely remain unresolved for some time. It will also continue to expose the inevitable role of cultural norms and history in international law and politics.

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Friday, August 13, 2010

KOSOVO: The ICJ on a Declaration of Independence
11:08 AM ET

Zana Berisha and Kutjesa Nezaj, both 2010 graduates of the Pitt Law LL.M. program, are Kosovar citizens and write about the International Court of Justice's recent decision on their country's Declaration of Independence...

When the International Court of Justice (ICJ) rendered its decision on the legality of Kosovo's Declaration of Independence on July 22, 2010, we had already returned to our home country of Kosovo after a wonderful year spent obtaining our LL.M. degrees at the University of Pittsburgh School of Law. Despite being happy to be home after a long time away, we felt anxious because the ICJ was deciding on the Declaration of Independence undertaken by us, the people of Kosovo.

To give context to the ICJ's July 22 opinion, we must discuss the events that led up to it. On February 17, 2008, the Kosovo Assembly approved the Declaration of Independence [PDF], which declared Kosovo an independent and sovereign state. The Declaration of Independence reflects the will of Kosovo's people for an independent, sovereign, democratic, secular, and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law. Notably, it is also in full accord with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement [PDF].

In response to Kosovo's Declaration of Independence, Serbia filed a request [PDF] for an ICJ advisory opinion at the United Nations on August 15, 2008 on the question: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" On September 30, 2008, the United Nations General Assembly granted the Serbian request. All UN member states then had the right to submit written statements to the ICJ in which they provided their position on the legality of the approval of the Unilateral Declaration of Independence (UDI) by the Kosovo Assembly. By the submission deadline of April 17, 2009, 35 UN member states had submitted written statements. Public hearings in the ICJ began on December 1, 2009, and those states that had submitted written statements were permitted to orally present their positions. Kosovo and Serbia also submitted their statements and presented their oral arguments.

Oral proceedings ended on December 11, 2009, and until the issuance of the ICJ advisory opinion on July 22, 2010, no one was sure of what the court's opinion would be. Naturally, each involved party, particularly Kosovo and Serbia, hoped that the ICJ opinion would be in its favor. Based on previous ICJ rulings, however, most observers believed that this particular question would be decided neutrally, with the ICJ trying to satisfy the interests of both parties.

As a result, when ICJ President, Justice Hisashi Owada, read the Court's opinion [PDF] holding that the UDI does not violate international law, the involved parties were surprised that the Court ruled firmly in favor of Kosovo. For Kosovo, the ICJ opinion acknowledges that its declaration of independence is in accord with international norms. It is also symbolic of what Kosovo's people believe is a just and proper world opinion regarding their long struggle for freedom and independence. States that had already recognized Kosovo's independence welcomed the decision and called on other states to recognize her, as well. States that have withheld recognition now have legal justification to recognize Kosovo as an independent and sovereign state. After achieving the necessary number of recognitions, Kosovo will become a UN member state, and be eligible to join the European Union. To Kosovars, it was particularly important that the Justices upheld the UDI with 10 votes in favor and 4 against, representing more than a simple majority of the justices. The 10-4 decision represents a strong endorsement of Kosovo's legal right to independence from the highest international court.

Not all reactions to the ICJ's opinion were positive. States that had opposed Kosovo's independence maintained their position on non-recognition, arguing that the opinion is narrowly drawn and speaks only to the legality of the UDI rather than to its legal consequences, such as the creation of the new state. Serbian representatives at the ICJ appeared to be disappointed with the opinion's support of Kosovo's position, particularly given its specificity, and declared that Serbia will continue its current policy of treating Kosovo as Serbian territory.

For states that have not yet recognized Kosovo's independence, the ICJ's decision raises the troubling question of whether the case of Kosovo can be used as precedent for other regions seeking independence. However, the drafters of Kosovo's Declaration of Independence foresaw this concern, and the preamble of the UDI contains a provision stating that, due to the circumstances in which it found itself during the dissolution of Yugoslavia, Kosovo is a special case and should not serve as precedent for other peoples. Furthermore, Kosovo has been treated differently by the rest of the international community since the beginning of Yugoslavia's collapse and especially during the Kosovo conflict in 1998-1999.

As part of the former Yugoslav Federation (until 1989), Kosovo was a constituent part of Yugoslavia and had the right to self-determination and declaration of independence. In 1990, Serbia adopted a new constitution that fully abolished the autonomy of two Yugoslav provinces, Kosovo and Vojvodina, and as early as 1992, the Organization for Security and Cooperation in Europe (OSCE) verification mission in Kosovo voiced deep concern about escalating violence and human rights violations in that province. After the Federal Republic of Yugoslavia (SFRY) declined to give its consent to an extension of the OSCE mission's mandate, the United Nations Security Council expressed deep concern in Resolution 855 (1993) about the SFRY's position and called upon it to reconsider. Finally in March 1999, NATO became actively involved in attacking Serbian military targets in order to end the ongoing humanitarian crisis in Kosovo. We believe that these actions by the international community, and particularly NATO's involvement, give Kosovo the status of a special case. Moreover, it is our opinion that the ICJ will decide the legality of future declarations of indepence by taking into consideration the entire body of facts particular to each case.

We are of a similar opinion to Marko Attila Hoare, the Section Director for the European Neighborhood of the Henry Jackson Society, who argued that democratic societies should not fear "separatism," and that only those states aware of their non-democratic nature should fear that people living under their rule may wish to separate. For now we can only wait to observe how the world will react to future declarations of independence elsewhere. It is simply unpredictable.

As for Kosovo and its citizens, the day of the ICJ ruling will remain the day when Kosovo's people made a mark on international history. On July 22, 2010, the right of Kosovo's people to independence became internationally validated. Next to the Declaration of Independence on February 17, 2008, Kosovars will celebrate the day of the ICJ's ruling as the second most important day in Kosovo's history.

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Friday, August 06, 2010

TANZANIA: Prosecution of Rwanda Gender Crimes at the ICTR
10:08 AM ET

Emma Founds, Pitt Law '11, traveled to the International Criminal Tribunal for Rwanda (ICTR) through Pitt's Center for International Legal Education and reports on the ICTR's difficulty in prosecuting gender-based crimes, such as rape and sexual assault...

While there have been major advancements in the prosecution of gender crimes internationally, the ICTR has been lax in adjudicating sex crimes, such as rape and sexual enslavement for the majority of its existence. Hassan Bubacar Jallow, who filled the Office of the Prosecutor in 2003, sought to reinvigorate attention to gender crimes. While the Prosecutor's efforts were laudable, the Tribunal's impending closure, together with its dismal record of prosecuting gender crimes, makes it likely that Rwandan women will feel only a small sense of justice as a result of the Tribunal's work.

While the Tribunal failed to address the pervasive use of rape as a weapon of the Rwandan genocide during its first four years of existence, the indictment of a former bougmestre, or mayor, in Prosecutor v. Akayesu for inciting sexual violence drew praise from the international community. Akayesu was a groundbreaking decision that defined rape under international law and declared sexual violence and rape to be crimes against humanity. Additionally, Akayesu was the first decision to include rape and sexual violence in the definition of genocide. Despite being a major victory for women, the subsequent paucity of indictments for gendered crimes weakened Akeyasu's impact on the ICTR's prosecutions of sexual violence.

After Akayesu, the ICTR missed opportunities to obtain indictments for rape. In Prosecutor v. Kajelijeli the defendant was a bougmestre who allegedly conspired with subordinates to commit genocide, including the rape and assault of Tutsi women. Kajelijeli was convicted of genocide, but acquitted of the rape charges. Despite the likelihood that the rape charges would have been reinstated, the Prosecutor's Office missed the deadline for appeal.

A number of problems hindered the ICTR's prosecution of gender crimes. The Tribunal's location in Arusha, Tanzania, as well as the absence of widespread community outreach and education in Rwanda, meant that many Rwandan women were unaware of its existence and their right to redress. Further, stigmatization of rape in Rwanda meant that most women stated that they would report an incidence of sexual violence to a female investigator, but not to a male. However, until 1998, the ICTR employed only male investigators. Cultural nuances also hindered investigators, who had not been trained to recognize euphemisms and specific phrases used by Rwandan women to express sexual violence. For example, "he sat down with me" or "he married me," were used as euphemisms for rape. In some instances, words did not even exist in Kinyarwanda, one of Rwanda's official languages, to explain the sexual acts that had occurred.

Recent efforts by the Prosecutor's Office have led to an increase in the number of indictments that include rape allegations. As a result of Prosecutor Jallow's efforts, including motions to amend indictments to add rape charges, there have been 17 cases that include allegations of sexual violence. It remains to be seen how many of these indictments will prove successful, as they are currently in progress. However, a recent success came in the Muhimana [PDF] case, where the defendant was convicted of rape as an act of genocide and as a crime against humanity. The accused was found guilty of raping Tutsi women with the intent of degrading the entire Tutsi population. Most significantly, in charging Muhimana with rape as a crime against humanity, the court expanded the definition of rape as "non-consensual sexual intercourse," paying particular attention to the element of consent.

The court recognized that coercion was implicit when rape was prosecuted under theories of genocide, war crimes, and crimes against humanity. It held that the mechanical definition of rape, in which coercion was an element, did not reflect the realities of rape during times of conflict. The Muhimana court determined that the prosecution did not have to prove coercion, and that coercion would henceforth be presumed in cases of rape under international law. Although Muhimana is a victory for women's rights and enhances the ICTR's legacy, the repeated failure to prosecute rape and sexual assault limits the positive effects that these cases may have otherwise had. Further, the ICTR's impending closure limits opportunities to provide the actual victims with justice and redress.

To ensure that the recent changes in the ICTR positively impact victims, it is necessary to conduct community outreach and educate citizens about the ICTR's activities. By providing victims and witnesses with information about the outcomes of ICTR trials, citizens can share in the accomplishment of convicting perpetrators of genocide. Emphasizing the victim's role in achieving convictions would help to achieve redress for the wrongs committed.

Additionally, culturally-sensitive community education about rape, sexual violence, and associated stigma should be conducted. Such programs would inform communities that rape is not the victim's fault and could help change societal attitudes towards sexual violence. While it is likely that the success of community education programs will be limited due to the Tribunal's impending closure, at a minimum, these programs would provide victims of sexual violence with a source of comfort and reinforce that they were not at fault for the atrocities that they experienced.

It would be a tragedy if the ICTR were to fail to conduct community outreach and education about sexual violence in the final stages of its existence. While Prosecutor Jallow's measures to reinvigorate attention to gender crimes are laudable, the actual effect of such efforts will likely be limited due to the Tribunal's bleak track record in prosecuting sexual crimes. In addition, the ICTR's imminent closure may limit the effect of the Tribunal's renewed focus on crimes of sexual violence. While Muhimana is important for recognizing gendered crimes as violating international law, it will be of little meaning to Rwandan women unless community outreach is conducted. Despite the ICTR's poor track record in prosecuting gender crimes, it still has time to refocus its efforts and make a difference for victims of sexual violence in Rwanda. By educating Rwandans about sexual violence and informing communities about the ICTR's successes, the Tribunal will have reached its ultimate goal - providing justice and redress to the victims of the Rwandan genocide.

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Friday, July 30, 2010

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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Wednesday, July 21, 2010

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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Thursday, July 15, 2010

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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Wednesday, July 07, 2010

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.

Wednesday, June 30, 2010

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?

Rwanda (1).jpg 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.

Rwanda (2).jpg 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.

Rwanda (3).jpg 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.

Rwanda (4).jpg 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.

Rwanda (5).jpg 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

Monday, June 28, 2010

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.