JURIST - Forum

Keeping America in the Dark

2010-03-10T10:42:00.002-05:00

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says a recent effort by a conservative advocacy website to besmirsch the reputations of current DOJ lawyers who previously represented detainees should not distract the US government from criminally prosecuting DOJ lawyers from the past administration who made torture possible....

I recently came across an effort by a group calling itself Keep America Safe to pressure DOJ lawyers who once represented detainees by outing them as the “Al Qaeda 9”. This new twist smacks of the “Cully” Stimson's effort in the last administration to “pressure” law firms that had lawyers working pro bono for the defense on those cases. After an uproar, Stimson resigned.

Keep America Safe and its surrogates appear to be conducting a thinly veiled effort to question the patriotism of those lawyers who represented detainees in resisting violations of the Geneva Conventions and bringing to light, in FOIA requests and litigation, the torture in the prior administration.

This kind of chilling effect on dissent from outrageous policy is nothing new under the sun. Its natural impact is to attempt to intimidate both those who take on these cases and those who would hire such people after they take on these cases, especially those entering the government to serve the public trust. Too much “controversy” about them.

A further twist is an open letter in “support” of the lawyers, recently described here. Among the signatories are a laundry list of persons who in the prior administration’s time were strong advocates for torture (whatever the euphemism used at the time). Of course, the zen of this letter is to try to put the current DOJ lawyers who defended detainees on the same level as the former DOJ lawyers who advocated for torture and thus rehabilitate the former DOJ lawyers.

Sorry folks, even here in Toledo we can see that game and it will not work. The former DOJ lawyers clearly advocated for a crime to be committed (though the OPR report glaringly did not even look at that canon of ethics in any meaningful sense). The current DOJ lawyers advocated for the defense in adversarial proceedings. These are fundamentally different animals and no effort at equivalence should be allowed to succeed to keep Americans in the dark.

Look, my fellow Americans, you either resist torture or you acquiesce to it. There is no middle ground. If you are so fearful that you are willing to think torture is OK, then you are just joining a long line of Americans in our history who in moments of hysteria were willing to give up everything. If you are, like the top military JAG officers in that time, willing to see the detrimental consequences of torture for America and that a state crime was committed, then I would ask that you stand with people like me and seek the criminal prosecution of the DOJ lawyers from the past administration so we can wash our very dirty laundry here at home rather than in some court overseas in Spain.

I recognize the effort to get you to acquiesce to torture is sophisticated and relentless. That is what people who advocate for torture do to avoid a day of reckoning in court. And those who you do not see named are the high-level civilians who were pushing for torture in the NSC Principals, the White House, and Congress. These persons have a stake in Americans not being aware of what they really did and also in not having what they did – whether Democrat or Republican – brought out for the world to see. I would even wager that there are leaders or former leaders of other countries that helped us who do not want to see their efforts to support torture come out in the public.

But so what for the egos and reputations of these people? They besmirched their reputations by putting torture in place, by perverting our soldiers to do their bidding, and then letting the grunts at the bottom take the fall when the Abu Ghraib scandal erupted.

They are perfectly willing to instrumentalize anything, anything to prevent themselves from being prosecuted. Do not let yourself be kept in the dark. Ask for light to be brought in the cold brilliance of a court room. It may not be good politics for this or that administration, but it would be a good thing for America. When it comes out we will all know who was quiet and who took a stand against torture. And that is the choice each American has to make when the forces are attempting to spin the problem into something else so that we sweep this all under the rug.

This is not going under a rug. Not if I can help it.

Benjamin Davis is a professor at the University of Toledo College of Law

Panic Legislation: The Wrong Response

2010-03-08T10:50:00.011-05:00

JURIST Guest Columnist Amos Guiora of the University of Utah College of Law says that the McCain-Lieberman military detention bill recently introduced in the Senate is yet another unfortunate instance of US national security legislation being driven by panic instead of principle.....

The "Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010," introduced last Thursday by Senator John McCain and Senator Joseph Lieberman, is but the latest example of panic-based legislation. As the debate over where to try terrorists intensifies in the wake of the attempted Detroit airplane bombing and the Obama Administration’s announcement that it is going to reconsider its decision to try those responsible for 9/11 in federal court, it is clear that panic is once more driving policy.

The proposed bill mandates that any person detained on suspicion of terrorist acts or material support for terrorism be placed in military custody. The detainee will not be entitled to Miranda rights and will remain in detention – and can be interrogated – while the Executive Branch makes a status determination. If determined to be an unprivileged enemy belligerent, the detainee will be held until the end of hostilities. Needless to say, unlike the POW in the war paradigm, for detainees, end of hostilities in the terrorism paradigm is a euphemism for ‘indefinite detention’.

The legislation’s panic response can be seen not only in the due process and rights denied, but in the categories of persons it addresses. By encompassing those suspected of material support for terrorism – a federal crime indeed but never part of the law of war – the bill subjects an extraordinarily broad group of persons to indefinite detention.

The proposed legislation’s impact would be a fundamental miscarriage of justice created by the unconstitutional denial of the right to counsel, the right to remain silent, the right to be free from arbitrary, let alone indefinite detention, and the right to a day in court.

Past practice in the US and abroad demonstrates, unfortunately, that panic and the desire to respond plays a dominant role over legitimate national security interests, respect for constitutional and international law considerations and careful analysis of the threat posed. That is, the response becomes what is important; its legitimacy and justification take a back seat. While terrorism poses a threat, that threat does not justify throwing our principles out the door in panic.

After the December 13, 2001 attack on the Indian parliament, the Prevention of Terrorism Act (POTA) created an overly broad definition of terrorism, and provided for detention of suspects for up to three months without charge. On September 17, 2004, the new elected Indian government of Prime Minister Manmohan Singh announced that it would honor its election pledge to repeal the POTA, which dispensed with the presumption of innocence, allowed the compulsory denial of bail, and enabled the admissibility of confessions despite the rampant use of torture and coercion by police and security forces.

In the aftermath of the Passover eve bombing in Netanya, Israel, considered one of the worst terrorist attack in the nation’s history, Israel extended the time for detention of Palestinians suspected of involvement in terrorism to 18 days without judicial review. In striking down the law, the High Court of Justice made two key observations. First, the legislation was a classic example of a short-term response that did not address the long-term impact or issues of morality and legality. Second, democracies must adopt self-imposed restraints, recognizing that they must fight terrorism with “one arm behind their backs.”

Republicans and Democrats alike have failed to articulate, create and implement a lawful interrogation, detention and trial regime for post-9/11 detainees. That is shameful and reflects negatively on two Presidents, the Congress and the Supreme Court.

The real issue runs deeper: how does American society define itself in the context of terrorism – by the rule of law or the rule of fear? The proposed McCain-Lieberman bill suggests a problematic stop-gap measure that significantly violates the rights of suspects. The examples from India and Israel highlight the danger of panic legislation, ultimately overturned.

Although we must address - and resolve – the trinity of detention, interrogation and trial, discarding core principles is not the way. I have proposed the establishment of national security court in conjunction with Miranda guarantees for detainees. A protectionless interrogation regime predicated on indefinite detention does not contribute to counterterrorism. All it does is reflect panic. That has not worked before – why should it work now?

Amos N. Guiora is Professor of Law at SJ Quinney College of Law, the University of Utah; his latest book is Freedom from Religion: Rights and National Security (Oxford University Press, 2009).

The Qom Enrichment Facility: Was Iran Legally Bound to Disclose?

2010-03-05T10:50:00.005-05:00

JURIST Guest Columnist Daniel Joyner of the University of Alabama School of Law says that, reflective of the central tension between nonproliferation and peaceful use, Iran has not clearly violated any legal obligations incumbent upon it in the timing of its disclosure of the existence of an intended uranium enrichment facility at Qom....

Since Iran’s disclosure of the existence of its intended uranium enrichment facility at Qom in September 2009, one of the points of debate among international observers has been whether in the timing of this disclosure, Iran violated its obligations under its legal agreements with the International Atomic Energy Agency (IAEA).

Iran argues that its disclosure was perfectly consistent with its legal obligations under its Safeguards Agreement with the IAEA (INFCIRC/214), as implemented through a Subsidiary Arrangements agreement which Iran entered into with the IAEA in 1976.[1] Under the provisions of this Subsidiary Arrangements agreement known as “Code 3.1,” Iran argues that it is only obligated to disclose the existence of new enrichment facilities “normally not later than 180 days before the facility is scheduled to receive nuclear material for the first time.”

In an opinion piece on the Carnegie Endowment’s website, however, James Acton has made the case that Iran did in fact violate its international obligations by not disclosing the existence of the Qom facility earlier.[2] He argues that Iran agreed by exchange of letters with the IAEA in 2003 to a new and revised set of Subsidiary Arrangements, known as “modified Code 3.1,” which provide that preliminary design information on new enrichment facilities is to be provided “as soon as the decision to construct or to authorize construction has been taken, whichever is earlier.”

The crux of the dispute regarding which of the versions of Code 3.1 is applicable to Iran’s actions in and around September 2009 centers on Iran’s March 29th, 2007 letter to the IAEA in which Iran declared its intention to “revert” to the original 1976 Code 3.1 formulation. The IAEA Legal Advisor's office issued an opinion in March 2009 in which it rejected Iran’s unilateral declaration of reversion, and maintained that the agreed modified Code 3.1 provisions remained in force between Iran and the IAEA. As the Legal Advisor’s office concluded:

The implementation of the provisions of Subsidiary Arrangements can only be amended or suspended with the agreement of both parties to them. . . The provisions cannot be amended or suspended unilaterally by the state. Thus Iran’s failure to provide design information in accordance with the modified Code 3.1 as agreed to by Iran in 2003 is inconsistent with Iran’s obligations under the Subsidiary Arrangements to its Safeguards Agreement.

This statement by the IAEA Legal Advisor's office is generally in harmony with Articles 54-58 of the 1969 Vienna Convention on the Law of Treaties, which address the termination or suspension of treaties. Pursuant to these rules, a bilateral treaty without an explicit termination or suspension provision normally cannot be terminated or suspended unilaterally by one party to it.

However, all of this analysis by the IAEA Legal Advisor’s office, and by commentators like James Acton, assumes that the Subsidiary Arrangements agreement is in fact a treaty, or a legally binding agreement in and of itself, and is thus on par with the Safeguards Agreement. But this is not clearly the case.

Article 39 of Iran’s Safeguards Agreement with the IAEA provides that “The Government of Iran and the Agency shall make Subsidiary Arrangements which shall specify in detail, to the extent necessary to permit the Agency to fulfill its responsibilities under this Agreement in an effective and efficient manner, how the procedures laid down in this Agreement are to be applied.” From this mention alone, it is not at all clear that the subsidiary arrangements to be subsequently concluded between Iran and the IAEA in order to implement the Safeguards Agreement are conceived of by the parties as constituting a treaty.

While terminology is not per se dispositive of legal character, the term “arrangements” is not one of the terms commonly employed by international lawyers to denote a legally binding treaty. It is more commonly used to refer to non-binding international accords, such as the Basel I & II standards issued by the Basel Committee on Banking Supervision, or the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe.

The dispositive test for determining whether an international agreement is a legally binding treaty is found in Articles 11-17 of the 1969 Vienna Convention on the Law of Treaties. Essentially this test boils down to the intent of the parties. If the parties to an agreement intend that agreement to constitute a legally binding treaty, and if that intention is manifest through the forms and procedures for concluding the agreement, then the agreement is legally binding. However, if that intent cannot be found manifest in the forms of concluding the agreement, the agreement is not legally binding, and is simply an accord or understanding between two parties.

Looking at the provisions of Iran’s Safeguards Agreement, it is manifestly clear that the Safeguards Agreement itself was intended to be a treaty. Its entry into force as a legally binding instrument is expressly contemplated by the parties in Article 25 of the agreement. As Article 25 states:

This Agreement shall enter into force on the date upon which the Agency receives from the Government of Iran written notification that Iran’s statutory and constitutional requirements for entry into force have been met.

Furthermore, amendments to the Safeguards Agreement are provided in Article 24 only to enter into force upon conclusion of the same procedure, i.e. upon notification that the amendment has been accepted by the domestic lawmaking authorities in Iran. This formal process involving the acceptance of the agreement by domestic authorities is consistent with a manifestation of intent by Iran and the IAEA that the Safeguards Agreement itself is to be considered a legally binding instrument. Indeed, according to Article 77 of Iran’s Constitution, "International treaties, protocols, contracts, and agreements must be approved by the by the Islamic Consultative Assembly." Mindful of this limitation on their domestic authority, Iranian negotiators would have been sure to require this domestic approval as a prerequisite for the entry into force of any legally binding treaty or amendment thereto.

However, with regard to Subsidiary Arrangements, the Safeguards Agreement states in Article 39 that “The Subsidiary Arrangements may be extended or changed by agreement between the Government of Iran and the Agency without amendment of the Agreement.” While Article 40 of the Safeguards Agreement mentions the entry into force of the Subsidiary Arrangements, it gives no specifications on the process by which such entry into force is to be accomplished. This absence of specification regarding the process for entry into force of the Subsidiary Arrangements, in light of the detailed specification of the process for entry into force of the Safeguards Agreement and amendments to it, including the constitutionally required consent of the Iranian domestic lawmaking institutions, is probative textual evidence that Iran did not intend for the Subsidiary Arrangements to be legally binding per se. Rather, the Subsidiary Arrangements would appear to be more accurately characterized as agreed guidelines or understandings for implementation of the Safeguards Agreement by the parties, of a non-binding legal character.

Again, not all international agreements are treaties. States and other holders of international legal personality very frequently choose to conclude international agreements on a non-legally-binding basis. This is particularly true when the subject of the agreements is detailed and technical, and/or subject to foreseeable change over time in light of technological and other circumstantial dynamics. States do this for many reasons, including so that they do not have to seek the consent of their domestic lawmaking authorities for changes to such relatively minor agreements whenever they are needed.

It is, unfortunately, not possible for international observers generally to analyze either the Subsidiary Arrangements agreement between Iran and the IAEA, or the 1976, 2003, and 2007 letters exchanged between Iran and the IAEA relative to the Subsidiary Arrangements, as these documents have not been made public by the parties. This is unfortunate because these documents would provide important additional evidence regarding the intent of the parties. However, the text of the Safeguards Agreement between Iran and the IAEA seems to indicate that the Safeguards Agreement itself, which established the broad contours of the agreement between Iran and the IAEA, was intended to be a legally binding treaty, but that the Subsidiary Arrangements which were to follow by agreement between Iran and the IAEA were likely intended, at least by Iran, to comprise non-binding guidelines for implementation of the treaty, which could be modified by simple agreement between Iranian officials and IAEA officials without the requirement of consent from Iran’s domestic lawmaking authorities.

If this analysis is correct, neither Code 3.1 nor modified Code 3.1 of the Subsidiary Arrangements would constitute an international legal obligation. Thus, it would not be possible for Iran to have breached any such obligation by the timing of its disclosure regarding the existence of the Qom facility.

If the various Subsidiary Arrangements agreements between Iran and the IAEA were in fact non-legally-binding in character, the only legal obligation with regard to the disclosure of design details for enrichment facilities incumbent upon Iran would be the provision in Article 42 of its Safeguards Agreement which states that “such information shall be provided as early as possible before nuclear material is introduced into a new facility.”

It is uncontested that no nuclear material had, as of September 2009, been introduced into the Qom facility. Indeed, no centrifuges had at that time been installed in the facility. Thus, again if the analysis presented herein is correct, Iran’s September 2009 disclosure of the existence of the facility to the IAEA would indeed have been consistent with all applicable legal obligations contained in its agreements with the IAEA.

It is likely impossible for general international observers to make a final determination of the legality of Iran’s disclosure of the Qom facility due to the closed source nature of several of the primary documents relevant to this analysis. However, from an analysis of the sources that are open to general review, and in particular the Safeguards Agreement itself which is the only source clearly comprising legal obligations for Iran regarding the disclosure of enrichment facilities, it is not at all clear that Iran violated any legal obligations incumbent upon it in the timing of its Qom declaration.

So what does this legal analysis mean for the relationship between Iran and the West/Israel going forward? It may serve as an illustration of the intelligence and diplomatic savvy of Iranian leaders, and their ability to go right up to the line of Iran’s treaty obligations without clearly crossing over it, and thereby deny the members of the Security Council, and Israel in particular, clear justification to significantly increase economic pressure on Iran or act militarily against it. If Iran continues this strategy of legal brinksmanship, it could even potentially achieve a viable nuclear hedging position without formally breaching its Non-Proliferation Treaty (NPT) and Safeguards Agreement legal obligations.[3]

If this is Iran’s intention, the fact that it can do so within its nonproliferation treaty obligations is a cause for concern.[4] Indeed, some have termed this ability of NPT Non-Nuclear Weapon States parties to achieve a nuclear breakout capability, while remaining formally compliant with the NPT and their Safeguards Agreement obligations, a “loophole” in the NPT normative regime.[5] In the end, however, this “loophole” has much more to do with the fundamentally dual use nature of fissile materials, and the complex reflection of this reality in the grand bargain codified by the NPT, than with poor drafting of the NPT itself. This central tension between nonproliferation and peaceful use, as well as the related tensions between these principles and the principle of disarmament, make for a thoroughly bedeviling issue area for international legal regulation. But that is the nature of the nuclear beast.

Notes

[1] "IAEA: Iran Broke Law by Not Revealing Nuclear Facility,” CNN.com, September 30, 2009

[2] “Iran Violated International Obligations on Qom Facility.” Available at http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=23884

[3] Nuclear hedging means having the capacity to produce a sufficient amount of weapons grade fissile material, and the knowledge and capability to manufacture the warhead hardware of a nuclear weapon, possibly in a matter of weeks once the political decision to construct a weapon has been made. See Ariel Levite, Never Say Never Again: Nuclear Reversal Revisited, INTERNATIONAL SECURITY, Volume 27.3, Pgs. 59-88 (2002-2003).

[4] Iran is currently in violation of U.N. Security Council resolutions, including Resolution 1696 which ordered Iran to cease its uranium enrichment activities. For more on this aspect of the legal situation, see Daniel H. Joyner, INTERNATIONAL LAW AND THE PROLIFERATION OF WEAPONS OF MASS DESTRUCTION, Pg. 50 (2009).

[5] Joseph Pilat, Introduction, in Joseph Pilat, ed., ATOMS FOR PEACE: A FUTURE AFTER FIFTY YEARS?, Pg. 4 (2007).

Daniel Joyner is an Associate Professor at the University of Alabama School of Law, where he writes and researches in the area of proliferation studies. He is the author of International law and the Proliferation of Weapons of Mass Destruction (Oxford University Press, 2009)

Defining Democracy in Iraq

2010-03-04T15:50:00.004-05:00

JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that while democracy in Iraq may look one way in second Iraqi general election on Sunday, it may evolve to look very different when the next election cycle rolls around and the American troops are gone...

American Ambassador Christopher Hill said this coming Sunday’s general election in Iraq will “determine the quality of Iraqi democracy.” His frank statement in an interview with NPR’s Tom Ashbrook begs the question: who exactly determines the quality of Iraqi democracy? Is there a fixed standard? Not to my knowledge. True, the general election in Iraq will seat a new government that is selected by the people at large. In that sense, democracy is achieved. The level of violence that accompanies the process and the degree of public acceptance of the results is probably what Ambassador Hill is referring to – less violence and more acceptance equals higher quality of democracy. So stability seems to be a key benchmark for determining a democracy’s maturity. This is only Iraq’s second general election. Isn’t that a bit unrealistic? The country is still occupied by U.S. forces and remains largely split along sectarian lines (Sunni Kurds, Sunni Arabs and Shiite Arabs).

Webster’s authoritatively defines democracy as “a: government by the people; especially: rule of the majority b: a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.” The Oxford English Dictionary offers a more egalitarian version: “Government by the people; that form of government in which the sovereign power resides in the people as a whole, and is exercised either directly by them (as in the small republics of antiquity) or by officers elected by them. In modern use often more vaguely denoting a social state in which all have equal rights, without hereditary or arbitrary differences of rank or privilege.”

Those who seek to define “democracy” face the same inherently inescapable dilemma as those who seek to define “terrorism.” Experiential and perspective-laden differences yield a general lack of agreement. How, then, can we prescribe democracy as the antidote for what ails all societies? As Iraqis go the polls on Sunday, the casual observer might pause to ponder that question. The U.S. was roundly criticized for attempting to deliver democracy to the Middle East at the end of a rifle barrel – both in Iraq and Afghanistan. The corrupt government of Hamid Karzai in Afghanistan, recently re-elected, but supported by drug money and warlords, is hardly a poster-child for democracy. Yet the impulse to provide for self-determination of peoples, noble as it is, remains strong.

So which version of democracy is right for a complex society like Iraq? They currently use a parliamentary democratic structure within a nominally federal system. Power distribution runs along ethnic/religious lines so that the president, the prime minister and the speaker are never of the same ethnic/religious sector. The current distribution places a Sunni Kurd as president, a Shiite Arab as prime minister, and a Sunni Arab as speaker. The models that states can use for democracy are varied – from presidential to parliamentarian. And they can exist within unitary or federal structures. Indeed, recent history has seen the advent of new descriptors such as “-style” democracies: western-style democracy rests atop a foundation of civil society and the rule of law, Latin-style democracy is more fluid yet subject to sudden economic and military disruptions, African-style democracy is chaotic, tribal, and often relies on local strongmen, and of course Russian or Chinese-style democracy isn’t democracy at all.

Western states argue that what’s missing from these less stable forms of democracy is the healthy degree of civil society and respect for the rule of law that buttresses Western systems. And they have a point. But those societies place a high priority on such values. Inculcating similar priorities in dissimilar societies is problematic. Without such values, democratic elections can produce non-democratic results (e.g. the national socialists in Germany – 1933, or Hamas in Palestine – 2006, or Russia today) – proving Fareed Zakaria’s central point in The Future of Freedom: Illiberal Democracy at Home & Abroad that elections, in and of themselves, do not democracies make.

So is this a reflection of who is ready for democracy and who is not? According to many international law scholars and the human rights community, democracy is a right accorded to everyone on the planet. That’s a fine ideal, and one that I certainly sympathize with. People should have the right to self-determine in both the systemic sense and the larger Wilsonian sense. But the real world offers divergent and sometimes discouraging examples. Was the Belgian Congo ready for democracy when King Leopold quit the Dark Continent in 1960? Or India and Pakistan when King George VI withdrew from the British Raj in 1947? No. Massive social cleavages sometimes result and no one can predict when and whether democracy will take root, let alone in what form or for how long. India has since become a model of democratic ideals, Pakistan much less so. Congo remains a disaster.

Moreover, while democracy in Iraq may look one way in this second general election on Sunday, it may evolve to look very different when the next election cycle rolls around and the American troops are gone. Democracy is not static. It is perhaps more situational. Prime Minister Nouri al-Maliki complained this week about massive amounts of foreign money coming into the campaigns from Iran and Saudi Arabia in an attempt to influence the outcome of the election. Perhaps this same dynamic will play out in the United States in our November 2010 mid-term elections, given the Supreme Court’s recent ruling in Citizens United freeing up corporate campaign contributions, with Exxon and Microsoft playing the role of the Iranians and Saudis? Ambassador Hill will be watching the Iraqi elections on Sunday to “determine the quality of Iraqi democracy,” but many will also likely have to do a bit of navel-gazing here in the U.S. come November.

Michael J. Kelly is Professor of Law and Associate Dean for Faculty Research & International Programs at Creighton University in Omaha, Nebraska. He served as Chair of the Association of American Law Schools Section on National Security Law in 2009-2010, and is the author of Ghosts of Halabja: Saddam Hussein & the Kurdish Genocide (2008).

Japanese Whaling: When Diplomacy Fails, Call the ICJ

2010-03-03T09:38:00.000-05:00

JURIST Guest Columnist Don Rothwell of Australian National University College of Law says that in the context of unpromising diplomatic negotiations between Japan and Australia with regard to Japanese whaling in the Southern Ocean area, the Australian government will likely be left with no choice but to file suit against Japan in the International Court of Justice....

After more than 20 years of diplomatic confrontation over Japan’s Southern Ocean whaling program, Australia has finally set a deadline for the Japanese to cease all whaling by the start of the 2010-11 whaling season or otherwise prepare to front up to the International Court of Justice (ICJ). Australia’s position was outlined by Prime Minister Kevin Rudd when on 19 February he stated on national television that “what we’re putting to the Japanese is to take where they are now, which is the slaughter of some hundreds of whales each year and reduce that to zero. If we don’t get that as a diplomatic agreement … we’ll be going to the International Court of Justice.” Rudd set the deadline for a Japanese reduction of the whale catch to zero by November 2010, just before the start of the annual Japanese Southern Ocean whaling season.

How has it come to this? To a degree, the seeds for the current dispute were sown in 1977 when the Liberal Coalition Government of Malcom Fraser took the then courageous step of banning all commercial whaling in Australian waters. Australia then commenced an international campaign alongside other conservation minded countries to halt commercial whaling and found success in the International Whaling Commission which endorsed a moratorium on commercial whaling that took effect in 1985-86. In response Japan commenced its first scientific whaling program in the Southern Ocean – known as JARPA – which ran until 2005 and which focused on an annual take of between 300-450 minke whales. For the 2005-06 Antarctic season, Japan announced it was commencing JARPA II which effectively doubled the annual take of whales to 950 including minke whales and a small number of threatened and endangered fin and humpback whales. JAPRA II became operational from the 2007-08 season and whilst the take of humpbacks was suspended as a result of diplomatic intervention by the US, hunting for minke and fin whales has continued.

Maintaining the moratorium on commercial whaling has virtually became a bipartisan article of faith for Australian governments since 1986, and while Iceland and Norway have sought to avoid the ban, Japan has come under particular scrutiny because its Southern Ocean whaling is effectively seen as being in Australia’s backyard. The declaration of an Australian Whale Sanctuary, which prohibits whaling out to 200 miles from the mainland, offshore islands, and the Australian Antarctic Territory, has given the issue further prominence. Notwithstanding a 2008 Australian Federal Court ruling that Japan’s actions were illegal under Australian law, the Japanese have defied the court orders insisting that as they do not recognize Australia’s Antarctic claim, they are not bound to respect Australian law. The Rudd government, not wanting to risk a challenge to Australian sovereignty over Antarctica, has not actively pursued enforcement of these court orders.

In response to these developments, the International Fund for Animal Welfare (IFAW) commissioned several legal advices which were provided first to the Howard and then to the Rudd government outlining international legal arguments which could be mounted to halt the Japanese whaling program. At the core of these legal opinions was that Japan’s interpretation of the 1946 International Convention for the Regulation of Whaling allowing for ‘special permit’ scientific research whaling was an abuse of right and inconsistent with Article 8 of the Convention. If the ICJ option was pursued it was recommended that Australia first seek provisional measures to immediately halt the Japanese hunt until such time as the court rules on the merits.

The election of the Rudd Labor government in November 2007 brought great expectations that Australia would pursue these legal options; however, diplomatic options were initially favored. Mindful perhaps of the implications for the future of the International Whaling Commission, Australia brought forward an ambitious reform agenda seeking to place significant constraints on the unilateral special permit Japanese whaling program. At the 2008 IWC meeting this agenda gained traction, but since then has become bogged down in endless diplomatic wrangling. A March 2010 IWC inter-sessional meeting planned for Florida may provide some indication as to where this reform agenda is heading, but Prime Minister Rudd’s recent comments suggest the Australian government has had enough of Japan’s failure to engage in this process in good faith. Given the nature of IWC politics and procedure, the June 2010 IWC annual meeting in Morocco looms as the decisive moment for assessing whether a diplomatic breakthrough is possible.

Japan’s Foreign Minister, Katsuya Okada, recently visited Australia for bilateral talks. There was a polite agreement-to-disagree over whaling and a commitment from both governments to try and ensure that the whaling dispute would not derail what are otherwise excellent bilateral relations. Okada said that Japan seeks “a diplomatic solution to this issue through understanding of culture and position of each party”. However, these statements fail to appreciate that Japan’s actions on whaling run counter to the spirit of a global moratorium on commercial whaling, and its JARPA II program has only heightened suspicions that Japan is actually engaging in a form of commercial and not scientific whaling. It is beginning to look increasingly likely that Australia will finally call Japan’s bluff and politely say “see you in court.”

Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University. In November 2006 he chaired the Report of the Sydney Panel of Independent International Legal Experts on Japan’s Special Permit (“Scientific”) Whaling Under International Law, and in November 2008 chaired the Canberra Panel addressing the same issue.

Learning from Toyota's Troubles - Where's the Board?

2010-02-23T07:13:00.002-05:00

JURIST Guest Columnist Bruce Aronson of Creighton University School of Law says that Japanese automobile manufacturer Toyota's current safety crisis - now the subject of Congressional hearings - should prompt the company to address its seriously flawed system of governance more than just its public image....

The next phase in Toyota’s crisis will be the appearance of the President of Toyota Motor Corporation, Akio Toyoda, before the House Committee on Oversight and Government Reform on February 24th.

His message will likely reflect an opinion he published in the Washington Post on February 9th entitled “Toyota’s Plan to Repair its Public Image.”

In it he outlines a number of steps he is taking to address Toyota’s current crisis, including internal and external reviews of operations and quality controls, more vigorous investigation of consumer complaints, more effective internal sharing of information, and better communications with regulators.

Conspicuously absent from this list of worthy measures is any mention of the role of the board of directors in corporate governance. The structure and function of a typical Japanese corporate board reinforces the penchant for corporate secrecy in Japan, which is often cited as a cause of Toyota’s problems.

In both the United States and Japan, the board of directors has a legally mandated function to ensure a corporation’s compliance with law. In both countries, case law provides that directors have a duty of oversight—as part of their fiduciary duties owed to the corporation and its shareholders—to establish and monitor an information and reporting system designed to ensure such compliance. In the United States the duty of oversight in Delaware stems from the well-known Caremark decision, while in Japan it results from a shareholder derivative suit related to the $1.1 billion trading loss scandal in Daiwa Bank’s New York branch in 1995 (see my law review article analyzing this case and its impact in Japan). Statutes in both countries also provide for broader systems of internal controls. In this case Toyota’s systems failed badly.

In Japan the legal duty of oversight often clashes with the traditional structure of Japanese boards—large, hierarchical boards in which directors are all insiders and retain “line” management responsibilities. As a result, any problem can appear to be limited to the director(s) “in charge” of a particular area despite the common fiduciary duty owed by each director.

The Toyota case is particularly interesting because Toyota has been held out in Japan as the prime example of the strength of this “traditional” system of Japanese corporate governance. This system relies on competition in product markets, team production alliances with suppliers, and “main banks” to monitor the performance of corporate management, as opposed to “Western” approaches such as independent directors and a market for corporate control.

A “Western” approach appeared in Japan in 2002 as part of an ongoing debate on reform of corporate governance following Japan’s “lost decade” of the 1990s. An amendment to Japan’s corporate law at that time provided Japanese companies with an option to replace their German-inspired, traditional positions of representative director (a director chosen by the board to represent the corporation, much like a president) and internal corporate auditor (elected by shareholders to monitor directors’ performance) with an “American-style” system of executive officers and board committees with independent directors. Not many Japanese companies have adopted this new system, although the number is slowly increasing.

Until recently the Japanese often contrasted the success of Toyota, the champion of traditional Japanese governance, with the poor performance of Sony, which adopted the “American-style” board committee system and now has a foreigner as its CEO. This popular comparison was always somewhat exaggerated. For example, in 2003 Toyota modified its system through the introduction of “non-board managing officers” and a reduction in the number of directors on its board (from over 40 to 29). However, even today every area of the company is represented by a senior manager on the board of directors and there are no outside directors. Given Toyota’s current problems and its prominence, it will be interesting to see if other Japanese companies will now reconsider this traditional system and incorporate a greater element of independent monitoring of management.

This is not to suggest that the apparent downfall of Toyota condemns the entire system of Japanese corporate governance. Every system has its corporate scandals. The result of scandals such as Enron in the United States has been an even greater emphasis on independent directors in the Sarbanes-Oxley Act and elsewhere. Such measures were not effective in preventing new scandals, such as those accompanying the financial crisis of 2008. For example, one oft-cited weakness at Citigroup was the board’s lack of industry expertise and experience, and its resulting inability to monitor traders’ risk management practices concerning complex financial products.

Nevertheless, Toyota’s response to its current troubles is striking because it has maintained its rather narrow emphasis on manufacturing quality and production issues in the face of a full-fledged crisis. A problem of this magnitude is not simply a matter of a technical fix or of repairing Toyota’s public image. There were also significant flaws in Toyota’s governance system. Perhaps Mr. Toyoda and his colleagues should also consider a plan for a greater role of the board of directors, compliance with law, and corporate governance issues within “the Toyota Way.”

The House Oversight Committee might even be interested in hearing about it.

Bruce Aronson is Associate Professor at Creighton University School of Law and was formerly a practicing attorney who represented Japanese clients.

SCOTUS Memo: Challenging the 'Material Support' Laws

2010-02-22T12:37:00.000-05:00

JURIST Special Guest Columnists Sharon Bradford Franklin, senior counsel at the Constitution Project, and Karen Bloom, legal fellow with the Constitution Project, say that the US Supreme Court's decision in the upcoming Holder v. Humanitarian Law Project case challenging the constitutionality of laws prohibiting “material support” to terrorist groups may have serious implications for our First Amendment protections....

Would you consider any of the following to be criminal acts: advocating non-violent means of resolving conflicts, teaching English, educating a group about its humanitarian obligations, or providing legal services?

They might be, if the U.S. Supreme Court upholds the current form of federal laws prohibiting “material support” to terrorist groups. On February 23rd, the Court is scheduled to hear oral argument in Holder v. Humanitarian Law Project, a case which challenges the constitutionality of certain provisions of these laws. Under those provisions, it is a criminal act to provide services, training, expert advice or assistance, or personnel to groups the government has designated as “terrorist.”

Although the material support statutes provide an important counter-terrorism tool, the existing law is so broad that the government has essentially maintained that all acts in support of designated organizations further their terrorist ends and are impermissible. As such, even humanitarian organizations’ attempts to convince the designated groups to abandon violent tactics in pursuit of peace could be found to violate the laws.

In addition to being vague and over-broad, the “material support” laws also run afoul of the First Amendment because they restrict association rights and discriminate between types of speech. For example, providing religious materials (even if they are intended to further terrorist activity) is exempted from the prohibitions, but all provision of political aid (even if it is designed to counter-terrorism and promote peace) is prohibited.

The district court and Court of Appeals that heard this case on its way to the Supreme Court recognized the constitutional problems with the “material support” laws. Both courts ruled that parts of the “material support” laws are unconstitutional in certain contexts because they could cover activities protected by the First Amendment.

Nevertheless, the government maintains that the broad prohibition is necessary to its counter-terrorism efforts. Without question, cutting off support for terrorist activity is an essential part of the U.S.’s counter-terrorism strategy. Our government must have the tools needed to apprehend and punish those who work to facilitate and enable acts of terrorism, not just terrorist leaders. However, in providing the legal authority to prohibit and punish such conduct, it is essential that the law respect constitutional freedoms.

Moreover, criminalizing even attempts to discourage the terrorist activities of designated groups not only violates the Constitution, but is counter-productive. Outlawing the very advocacy that is most likely to neutralize the threat of groups designated as “terrorist” undermines, rather than advancing, our counter-terrorism objectives.

To address these issues, late last year the Constitution Project’s bipartisan Liberty and Security Committee proposed a series of reforms to the “material support” laws that would better tailor them to our counter-terrorism objectives and would ensure that they do not violate fundamental constitutional rights. The consensus recommendations of this Committee, which is composed of prominent policy experts, former government officials, and legal scholars from across the political spectrum, are contained in its report, Reforming the Material Support Laws: Constitutional Concerns Presented by Prohibitions on Material Support to “Terrorist Organizations.”

The Committee, among other proposals, called on Congress to (1) provide that pure speech may be punished only if it intended to further illegal conduct, and (2) exempt from the definition of “material support” humanitarian aid items such as medical services, civilian public health services and—if provided to noncombatants—food, water, clothing and shelter. Based upon this report, the Constitution Project filed an amicus brief in the Supreme Court in the Humanitarian Law Project case, arguing that the challenged provisions of the material support statute chill free speech and association in violation of the First Amendment.

The Committee’s proposals would go a long way toward making clear that counter-terrorism initiatives must not overstep constitutional restrictions and to ensure that the “material support” laws do not infringe on First Amendment rights. As the Constitution Project urged in its amicus brief, the Court should strike down the challenged provisions as unconstitutional. And hopefully Congress will soon revisit and revise the “material support” laws to address the remaining constitutional flaws not at issue in the Humanitarian Law Project case.

Sharon Bradford Franklin is senior counsel at the Constitution Project in Washington DC. Karen Bloom is a legal fellow with the Project.

The Yoo/Bybee Report: Let a Jury Decide

2010-02-21T04:03:00.001-05:00

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that the guilt or innocence of "enhanced interrogation" memo writers John Yoo and Jay Bybee should be determined in state or federal court by a jury of their peers, rather than under the forgiving gaze of the Office of Professional Responsibility....

The long awaited Office of Professional Responsibility (OPR) report on Jay Bybee and John Yoo was released yesterday. In the long cover memo, the US Department of Justice (DOJ) reviewer went to great lengths to explain his decision not to support the intentional misconduct (for Yoo) and misconduct (for Bybee) recommendations of the OPR and not to make a referral to the Bar Associations. At the same time, he leaves the matter up to the Bar Associations to decide whether they should take up the matter.

As happens, I was recently at a National Security Court conference held here at the University of Toledo College of Law at which torture was brought up and discussed. We were favored with the presence of Mr. John Rizzo, former Acting General Counsel of the CIA who just retired after 34 years of service. When questioned on the repeated water-boarding of Khalid Sheik Mohammed, Mr. Rizzo presented the matter (I am paraphrasing) as being one where the people in the agency said that they thought they needed to do these things and that it may be morally wrong but this was the situation.

I spoke from the floor saying that the problem was that some smart lawyers were made to reinterpret various laws and treaties and that based on this we got into this huge mess, and now some people are trying to deal with that by creating a new national security court as a new solution to the mess that has been created. This is an old game with the United States government. Sometimes it is followed by an apology 50 years later or so. I suggested the following plan of action: 1) criminally prosecute the torturers; 2) bring all of these cases we want to try in Article III courts which provide us with transparency; and 3) after we clean that up- look at what we need to do to change. I was met with the view that this is an old argument and that we should move beyond that.

I am just a citizen and I am exercising my little bit of sovereignty in a representational democracy – something I like to call “The Sparkle of Sovereignty.” I am even writing a book about that idea.

My view is that a wide variety of groups of concerned American citizens exercising their respective sparkles of sovereignty should refer the OPR report immediately to the relevant bar associations to determine whether there were ethical violations by Yoo and Bybee.

Beyond that, here is a radical concept for all these DOJ types: let a jury decide. I trust in twelve American jurors weighing the evidence competently presented by a US Attorney, and Yoo and Bybee being represented by competent defense attorneys in 1) an Article III court based on a federal prosecution by a special prosecutor or a state prosecutor pursuant to a federal officer removal act proceeding from state court or 2) in a state court to be able to examine whether these persons have the requisite mens rea and actus reus to have violated federal law and/or state law with regard to torture.

I think it is important in our system of separation of powers and federalism to provide the double security to the protection of the rights of the people so cherished by James Madison in the Federalist Papers. Madison wrote:

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Federalist No. 51 (James Madison)

Within the federal government, it appears clear that DOJ officials tend to have a terrible time handling the pressure as they move up the hierarchy. As one person quoted in the report says, “we freaked out.” As an American citizen, I do not want the people who are subject to the public trust “freaking out” like some fifth grader. During 9/11 I was teaching a class and while there were lots of students who “freaked out,” one of the hallmarks of that class during the attack was a former Navy man who was an older fellow who said that the first thing we have to do is go back to first principles of who we are. That, I would submit, is the kind of thinking we need to embrace. Not panic and hubris.

There is an effort in the OPR report to create space for what I will call the misfeasance at the top/malfeasance at the bottom game that I noted in my article Refluat Stercus. The passive voice of “mistakes were made” — a litany from former people at the top of the Executive and Legislative — is one example of this game. Grunts at Abu Ghraib get court-martialed and the higher ups are just seen to have made “errors of judgment”.

I would like a grand jury of American citizens to hear all the evidence and decide whether to issue an indictment. I would like, if such an indictment is issued, for these defendants and plenty of material witnesses (such as John Rizzo who is named in the OPR report at key junctures) to be heard under oath in a public court providing the kind of record of their statements that helps give meaning to important trials such as Nuremberg. And I would like a jury of their peers to decide on the innocence or guilt of these people—not just the lawyers—so we can have a decision that gives clear guidance as to whether these acts amounted to a crime. Why? So that the next time someone “freaks out” because someone attacks us, when asked to do this kind of OLC memo, they will see a clear US precedent that says as clearly as possible what is a crime under our law. If that conviction fails, it also provides an opportunity to Congress to see whether it should amend out statutes to better capture torture. And, it would provide for those who have entered into international obligations with the United States an opportunity to see whether we are trying to extract ourselves from our international obligations in our compound republic in the manner that our jurisdiction to enforce, prescribe, and adjudicate is put together.

Also, under the doctrine of complementarity, it reduces the possibility of similar cases happening about Americans being brought in other countries. I suspect that even as we speak the OPR report has been sent to the Spanish prosecutor prosecuting the U.S. lawyers who helped orchestrate the torture by the United States. Let’s clean our very dirty laundry at home.

I think this is important because it is clear that whatever the administration, there is a clear manifest need for a criminal prosecution to help the high-level civilians and generals of our government in the past, now and in the future understand that “word games” of reinterpretation on something as serious as torture – will get you into a jail cell. Especially now that we know that we were lied to about some detainees committing suicide down at Gitmo – they were murdered per Scott Horton’s article out yesterday in Harper’s. Enough is enough.

Benjamin Davis is a professor at the University of Toledo College of Law

Pakistan: New 'Judges' Case' in the Making?

2010-02-14T10:39:00.000-05:00

JURIST Guest Columnists Moeen Cheema of Australian National University College of Law and Shahzad Akbar, an advocate practicing at the Lahore High Court in Pakistan, say that since Pakistan President's Zardari's refusal to appoint judges to the Lahore High Court (LHC) seriously undermines the capacity of that key court to provide justice in human rights cases and is a matter of public importance, either the LHC or the country's Supreme Court may eventually direct the president to comply with the Supreme Court's recent holding in the "Judges' Case"....

The threat of an imminent “clash" of the institutions of the state, the executive, and the judiciary appears to have materialized in Pakistan. The President, Asif Ali Zardari, and the Governor of Pakistan’s largest and most populous province of Punjab, Salmaan Taseer, are resisting the appointment of judges recommended by the chief justices of the Supreme Court and the Lahore High Court (LHC).

The president has refused Chief Justice Iftikhar Chaudhry's recommendation for the elevation of Justice Saqib Nisar, the second senior-most judge of the LHC, arguing that it is instead the current chief justice of the LHC who ought to be elevated to the Supreme Court. Until that issue is resolved, Governor Taseer appears determined to stall the appointment of judges against approximately 30 vacancies in the LHC on the recommendation of the current chief justice of the LHC. The historic judgment of the Supreme Court in the Al-jihad Trust Case, popularly known as the Judges' Case, is being distorted and misquoted in order to justify the executive's refusal to appoint the judges.

In 1994, President Farooq Leghari, acting on the advice of Prime Minister Benzair Bhutto, appointed 20 judges to the LHC as well as acting chief justices to the LHC and the High Court of Sindh. This appointment of pro-government judges was resented by all relevant stakeholders, including the Bar Councils around the country. It was in this context that petitions were filed and, finally, the issue was resolved in what we know popularly as the Judges' Case in 1996.

Article 177 of the Constitution states that: "The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice." In the Judges' Case the Supreme Court interpreted this provision to mean that while the president nominally has the power to appoint the chief justice of the Supreme Court, he/she has no discretion in that matter and is obligated to appoint the senior-most judge in the Supreme Court to that post. The court also held that the consultation with the chief justice referred to in the constitutional provision is binding upon the President.

Likewise, Article 193 states that the president shall appoint the judges of the High Courts "after consultation" with the Chief Justice of Pakistan, the Governor of the province and the Chief Justice of the High Court of that province. In appointing the chief justices of the High Courts, the president shall only consult with the chief justice of the Supreme Court and the Governor. Again, it was held that the consultation with the chief justices is binding upon the President. If judicial independence is to be ensured, the executive ought to have no say in the choice of candidates for judicial positions.

As regards the appointment of the Chief Justices of the High Courts and the Supreme Court, it was held that the senior-most judge of that court has a legitimate expectation to be appointed to that position once it becomes vacant. However, the issue currently is very different from that taken up by the Supreme Court in the Judges' Case. Here the president's men are arguing that the senior-most judge of the High Court ought to be elevated to the Supreme Court. The Judges' Case laid down the principle of seniority for appointment of existing judges to the post of the chief justice, but it did not deal with the appointment of new judges to the Supreme Court, and it did not require the chief justices of the High Courts be elevated when a vacancy is created in the Supreme Court.

This specific issue was thoroughly discussed in the case of Supreme Court Bar Association through its President Hamid Khan vs. the Federation of Pakistan (2002) where, once again, a five-member bench examined the appointment of judges in the Supreme Court and the issue of seniority in the High Courts for such appointments. Explaining the spirit of the Judges' Case and subsequent precedents, the Supreme Court held that the contention that the chief justice of a High Court is entitled to be elevated to the Supreme Court due to seniority "is misconceived and travels beyond the parameters indicated in the Judges' Case. In our considered view, the scope of seniority and legitimate expectancy enunciated in those cases is restricted to the appointments of the Chief Justice of a High Court and the Chief Justice of Pakistan, and these issues neither apply nor can be extended to the appointment of Judges of the Supreme Court."

It was categorically stated that there is neither constitutional convention nor past practice to elevate the senior-most judges of a High Court to the Supreme Court. An interesting comparison was also drawn by the Supreme Court between Article 180 of the Constitution of Pakistan, which governs the appointments of acting chief justices of the Supreme Court and where the words "the most senior of the other Judges" are mentioned, and Article 177, which deals with the appointment of a Supreme Court judge and where such language is missing. In the Supreme Court's own words: "the absence of the words 'most senior' in Article 177 for appointment of Judges of the Supreme Court would show that the seniority of a Judge in the High Court is not a sine qua non for his appointment as a Judge of the Supreme Court."

Another argument which undermines the government's argument is that judges may be appointed directly from the bar and not from among the judges of the High Courts. Advocates with 15 years of practice and retired High Court judges may be appointed to the Supreme Court, and we have precedents of several such appointments to the Supreme Court.

The chief justice of the Supreme Court is the head of the judiciary and it is his prerogative to recommend judicial appointments according to the Constitution. His role in judicial appointment is central and his opinion concerning the competence of an individual to serve as a judge is binding upon the executive and the only reason that the executive may withhold an appointment recommended by him is where the governor or the president has adverse information concerning the character or conduct of a recommended candidate. The issues of seniority, suitability, and knowledge of law are areas which are to be judged by the chief justice.

In fairness, this is not the most suitable method in the world for making judicial appointments. For example, judicial appointments may be made upon the recommendation of an independent commission, as done in the UK, or after vetting by Parliament if the US model is followed. However, until the constitutional method for judicial appointments is changed there is a choice to be made between either granting the president a greater say in judicial appointments, as was historically the case, or the chief justice, as has been the situation after the Judges' Case. The latter is clearly preferable.

Given the weight of the precedents and the underlying principles, it should not surprise anyone when the Supreme Court quashes the notification of appointment to the Supreme Court issued by the President in contravention of Chief Justice Chaudhary’s advice. Furthermore, if the president and the governor are under the impression that they can stall the appointments of judges to the LHC indefinitely, they are mistaken. Article 184 empowers the Supreme Court to make an order of the same kind that the High Courts can issue pursuant to their writ jurisdiction if there is "a question of public importance with reference to the enforcement of any of the Fundamental Rights." Article 199(1)(c) empowers a High Court to "make an order giving such directions to any person or authority, including any government…as may be appropriate for the enforcement of any of the Fundamental Rights." Since the refusal to appoint judges to the LHC is seriously undermining the capacity of that court to provide justice in human rights cases and is a matter of public importance, either the LHC or the Supreme Court may eventually direct the president to comply with the Supreme Court's direction.

Moeen Cheema is an Associate Lecturer at the Australian National University's College of Law. Shahzad Akbar is an advocate practicing at the Lahore High Court and a visiting lecturer at the Islamic International University, Islamabad.

Postscript: Contrary to Chief Justice Chaudhary's recommendation, President Asif Ali Zardari issued a notification on February 13 purporting to elevate Justice Khwaja Sharif (Chief Justice of Lahore High Court) as a judge of the Supreme Court and appointing Justice Saqib Nisar as Acting Chief Justice of Lahore High Court.However, both of the judges refused to accept the notification as valid. The Chief Justice of Pakistan, Iftikhar Chaudhary, immediately took suo moto notice of the palpably unconstitutional action of the President and constituted a 3-member bench that suspended the notifications. The government initially defended its actions but relented in the face of rising public pressure and criticism from the bar, opposition political parties, and the media. The government withdrew the notifications on February 17 and the Prime Minister agreed to make all judicial appointments in the Supreme Court and the High Courts according to the recommendations of the Chief Justice of Pakistan.

Torture as Foreign Policy: The Omar Khadr Decision

2010-02-11T00:29:00.006-05:00

JURIST Special Guest Columnist Gail Davidson, Executive Director of Lawyers Rights Watch Canada, says that the Supreme Court of Canada was simply wrong in taking the extraordinary step of denying Canadian Guantanamo detainee Omar Khadr the remedy ordered by the courts below — the only remedy available — based on the arbitrary power of the executive to conduct foreign affairs....

The decision of the Supreme Court of Canada in the Omar Khadr[1] case — which implies that remedies to prevent torture and punish perpetrators are a privilege to be granted or withheld at the pleasure of the Prime Minister — is wrong.

The Supreme Court of Canada confirmed that the government of Canada violated Omar Khadr’s rights under the Canadian Charter of Rights and Freedoms, that those violations continue, and that those violations contribute to his ongoing detention. The court was referring to the fact that officials from Canada’s Department of Foreign Affairs and International Trade (DFAIT) interrogated Omar Khadr at Guantanamo Bay and gave their interrogation records to Khadr’s U.S. captors after being told that U.S. officials had tortured Khadr (by severe sleep deprivation)[2] for three weeks to “make him more amenable and willing to talk” to the Canadians and that he would be placed in isolation after the interrogation.

Ignoring the imperative international duties triggered by these appalling facts, the Supreme Court of Canada went on to rule it appropriate to leave “it to the government to decide how best to respond…”[3] The court set aside the 23 April 2009 order of the Federal Court of Canada — confirmed by the Federal Court of Appeal on 14 August 2009 — compelling the Prime Minister, the Minister of Foreign Affairs, the Commissioner of the RCMP, and the Director of CSIS to "…request that the United States return Mr. Khadr to Canada as soon as practicable."

The Federal Court order was in keeping with the decision made by the Canadian government in March 2009. In June 2008 the Committee struck to study the Omar Khadr case recommended to Parliament “…that the Government of Canada demand Omar Khadr’s release from U.S. custody at Guantanamo Bay to the custody of Canadian law enforcement officials as soon as practical.”[4] On 23 March 2009, Parliament voted by a majority to accept that recommendation, thereby directing the Prime Minister to act to secure Khadr’s release and repatriation.

In setting aside the lower court orders and overriding the will of Parliament, the court cited a need to respect the prerogative power of the executive to conduct foreign affairs, described as the “…arbitrary authority, which at any given time is legally left in the hand of the Crown…”.

To arrive at this conclusion, the court relied on a text published in 1915: long before the prohibition of torture became a norm of jus cogens, a “peremptory norm of general international law” from which no derogation is permitted; long before the “…use of torture…by state authorities…" had come to be regarded as an attack upon the international order[5]; long before the individual’s right to freedom from torture took precedence over the right of states to conduct their affairs free from interference by other states. Under current international law, the duties of states to enact and enforce effective remedies to prevent and punish torture are not subservient to any other domestic or international purpose or circumstance including “comity” between states.

In taking the extraordinary step of denying Khadr the remedy ordered by the courts below — the only remedy available — based on the existence of an arbitrary power not supported by law, the Supreme Court of Canada was simply wrong. It was simply wrong for the court to conclude that characterizing a remedy for torture as a foreign affairs policy matter displaces the imperative legal duties under the Convention against Torture to take effective action. Prime Minister Harper cannot clothe himself with the power to do what is prohibited by international and Canadian law. By law, torture against a Canadian citizen must be remedied through investigation and prosecution of suspects. Obviously the victim — in this case Khadr — must be removed from the control of the perpetrators of crimes against him. Neither the Prime Minister nor “government” has any “residual” right to “speak freely with a foreign state”[6] on the suspension or relaxation of the absolute prohibition against torture.[7] Torture can never be considered a legitimate act of state; neither can suspending or refusing remedies be legitimated as foreign policy.

The language used by the court to describe key facts and principles creates the erroneous impression that U.S. accusations against Omar Khadr are more serious than, and therefore take precedence over, the crimes the U.S. is known to have committed against him.

Here are examples of the misleading language used by the court in the Khadr judgment:

“frequent flyer program” is used to refer to the torture of Khadr by subjecting him to prolonged and severe sleep deprivation to enhance extraction of information by Canadian officials.

“trial” is used to refer to the military commissions process found by the U.S. Supreme Court to illegally violate the right to a fair trial by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

“war crimes” is used to describe charges against Khadr that have been challenged as illegitimate because they are: unknown to the laws of war; created after they are alleged to have been committed, for which reason prosecution is absolutely barred;[8] and inapplicable since as a child Khadr lacked the capacity to consent to involvement in war.

“the trial is proceeding” refers to a delay[9] of almost eight years - a delay that violates the right to be tried within a reasonable time under Canadian and U.S. law.[10] Were Khadr before a regularly constituted court, the prosecution would be stayed on the basis of that delay.

“government” is used to refer to Stephen Harper, the Commissioner of the RCMP, the Minister of Foreign Affairs and the Director of CSIS.[11]

“Mr. Khadr’s rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated” refers to the most grave violations of Khadr’s rights to liberty[12]; due process[13]; freedom from torture and other cruel, inhuman and degrading treatment or punishment[14]; freedom from arbitrary imprisonment[15]; freedom from prosecution for ex post facto crimes; a fair trial; timely and confidential legal representation; determination of criminal charges by an impartial and independent tribunal; habeas corpus for determination of the legality of imprisonment and treatment during imprisonment; equality before the law and equal access to the protection of the law;[16] and, under the Convention on the Rights of the Child, to rehabilitation, education and re-integration into free society.

Finally, the Supreme Court of Canada decision in the Khadr case ignored the legal reality that without remedies there are no rights.[17] The Chief Justice of the Supreme Court of Canada has in the past observed that had freedom from torture and other basic rights been enforced, the Holocaust could not have occurred.[18]

By allowing the Prime Minister to refuse to take the actions required by law and approved by Parliament to stop violations of Omar Khadr’s rights, and by dubbing Mr. Harper’s inaction “foreign affairs,” the Supreme Court of Canada has put the rights of us all at risk.

Gail Davidson is the founder and Executive Director of Lawyers Rights Watch Canada and the Chair and co-founder of Lawyers Against the War.

Notes

1. Prime Minister of Canada, Minister of Foreign Affairs, Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police v. Omar Ahmed Khadr, Supreme Court of Canada, January 29, 2010

2. Sleep deprivation used to extract information from a prisoner is torture according to a variety of authorities. UN experts, reviewing international law, confirmed in a 2006 report on Guantanamo Bay that sleep deprivation, even for several consecutive days, is torture. The U.S. Army Field Manual on Interrogation in force in 2004 listed sleep deprivation as a form of torture. The Canadian government publication, Torture & Abuse Awareness, lists the U.S. as one of the ten countries worldwide known to engage in torture and lists sleep deprivation as a form of torture.

3. “…in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs and the inconclusive state of the record. The appropriate remedy in this case is to declare that K’s Charter rights were violated, leaving it to the government to decide how best to respond in light of current information, its responsibility over foreign affairs, and the Charter.” Supra note 1 at para. 39.

4. OMAR KHADR Report of the Standing Committee on Foreign Affairs and International Development: Subcommittee on International Human Rights, June 2008, para. 3, page 6.

5. R v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet; R v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, [1999] UKHL 17, House of Lords. Lord Millet.

6. Supra, note 1 at para. 33.

7. Instruments that impose a mandatory duty to provide effective remedies against torture include the: Geneva Conventions; Rome Statute of the International Court; International Covenant on Civil and Criminal Rights; Convention against Torture and other Cruel, Inhuman or Degrading Punishment or Treatment; Basic Principles and Guidelines on the Right to Remedy and Reparations for Victims of Violations of International Human Rights and Serious Violations of International Humanitarian Law; The Vienna Declaration and Programme of Action, articles 56 and 60; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

8. Freedom from ex post facto prosecutions is absolute and cannot be displaced by any authority under any
circumstances.

9. Factors contributing to the delay include: rulings by the U.S. Supreme Court that the military commissions are illegal; dismissal of the charges; non-disclosure by the prosecution; leaked documents indicating falsification of evidence by the U.S. military; the Pentagon sacking of the military “Presiding Officer” in charge of the Khadr case; investigation of professional misconduct complaints against Khadr’s lead military attorney; a 120-day adjournment imposed by President Obama in January 2009 for a review the process; and a four month suspension imposed by the president in May 2009 to alter the military commissions.

10. The U.S. Constitution, art. VI, cl.2 guarantees a trial within a reasonable time, as does the Speedy Trial Act. In Canada this right is guaranteed by the Charter of Rights and Freedoms s. 11(b). The Supreme Court of Canada recently ruled that a two year delay violated Charter rights and that the appropriate remedy was to stay the prosecution. (R. v. Godin, 2009 SCC 26)

11. Supra note 4, a para. 3, page 6.

12. The right to liberty and not to be deprived thereof except in accordance with the principles of fundamental justice is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; and the Universal Declaration of Human Rights.

13. Due Process rights, including rights to a lawyer, notice of charges and evidence, a fair trial before a competent and independent tribunal, habeas corpus, an appeal, the presumption of innocence are guaranteed by a number of Canadian statutes and international instruments binding on Canada, e.g., the Canadian Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; Third Geneva Convention; Crimes against Humanity and War Crimes Act; Convention on the Rights of the Child; Hague Conventions, Annex, art. 23(h).

14. Freedom from torture is a non-derogable right of all humankind that cannot be displaced by any circumstances, guaranteed by the Convention against Torture and Other Cruel and Inhuman Treatment or Punishment; the Criminal Code; the Crimes against Humanity and War Crimes Act; the Rome Statute of the International Court; the Geneva Conventions; the Convention on the Rights of the Child; and other laws binding on Canada and the U.S.

15. Freedom from arbitrary imprisonment is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; the Convention on the Rights of the Child; the Third Geneva Convention; the Universal Declaration of Human Rights; and the Magna Carta.

16. Rights to equality before the law and equal access to protection by law and to legal remedies for the prevention and punishment of violations is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; and the Convention on the Rights of the Child

17. “Our High Commissioner has reminded us that "Rights which are violated or ignored are rights in name only." It is in this spirit that we must abolish the culture of impunity. States that fail to prosecute human rights abusers are failing in their 'responsibility to protect'.” Canada’s International Human Rights Policy website (accessed 2 August 2005).

18. “The most basic human rights are those guaranteed by the criminal law – the right to life; to liberty; to freedom from arbitrary detention, abuse and torture…Rights, that had they been in place and in force, would have made impossible the atrocities of the holocaust.” The Right Honourable Beverley McLachlin P.C. Chief Justice of Canada, The Changing Face of International Criminal Law p.14.

A Solomonic Judgment on Elections in Iraq

2010-02-08T06:51:00.001-05:00

JURIST Guest Columnist Chibli Mallat, professor of law at the University of Utah and Saint Joseph's University, Lebanon, says that for the sake of stability in Iraq's upcoming elections, it's imperative that all parties respect the Iraqi judiciary's recent decision on candidate eligibility....

It took the US Supreme Court 180 pages to issue the controversial — and by most accounts, poor — Citizens United decision which equated corporations with individual human beings and which threw overboard a carefully crafted bipartisan law meant to reduce the power of money in US elections.

In its ‘Abd al-Amir decision of February 3, 2010, it took the Iraqi Cassation Chamber ten lines to bring hope to an endangered electoral process in Iraq. It was published on February 4 on the Higher Judicial Council's website, and is available here in English.

I have argued that last month's Citizens United decision repeated the ill-bent precedent of the infamous Bush v. Gore decision of December 2000 in the sense that the judges appeared to act as mere political agents for the parties of the presidents who appointed each of them. At great cost to the judiciary's credibility, both cases split down the middle politically, with 5 Republicans against 4 Democrats. Hence the finesse, in contrast, of the Iraqi judiciary's ‘Abd al-Amir decision.

In an occasionally endearing ruling about the risk of being a judge in a country like Iraq, the Cassation Chamber admitted the appeals lodged by some 500 candidates on the basis of their exclusion from the electoral lists. That exclusion was decreed by the Accountability and Justice Committee on account of the candidates' organic ties with the previous Baath regime. The Court declared that it did not have time to examine the appeals, and that while candidates had a constitutional right to run for elections, the Court could cancel the results in case of success if the 'democratic credentials' required by the anti-Baath law had not been met.

At the origins of the electoral turmoil in Iraq was the precedent created by the botched Afghani presidential election, which saw the rigging of the election of incumbent president Hamid Karzai go unpunished.

Challenges to the stability of the electoral system in Iraq started with the late approval of the electoral law on November 8, 2009. From the start, this appeared to be a harbinger of fishy dealings because it left candidates with little time to establish their tactics and coalition strategy. Then Tareq al-Hashimi — one of the three members of the Iraqi Presidency Council — unreasonably vetoed the law on November 18, pushing the date beyond the January deadline requested by an earlier ruling of the Federal Supreme Court. In a country with deep national and sectarian divisions, this was perceived as a Sunni ploy — Hashimi being Sunni. The unease was continued by rumblings of the president of the Kurdish region, Mas'ud Barzani, who threatened that same week to boycott the elections if certain Kurdish demands were not met. This was perceived as a Kurdish ploy. As soon as the date was finalized in the wake of a last-minute compromise between Hashimi and the Kurds, the crisis of the excluded candidates was set by the decision of the Accountability and Justice Commission on 19 January 2010. Since almost one-sixth of the candidates were excluded, the crisis became national. This was perceived as a Shi'i ploy.

At the heart of the last crisis lie two conflicting basic principles: the candidate's freedom to run, and the public's right to be shielded from self-styled advocates of the Baath system.

The Court rendered nothing less than a Solomonic judgment. Tempers run high in elections, and Iraq is no exception. The Accountability and Justice Commission certainly erred in delaying the examination of candidates' credentials until so late in the day, and disqualified too many people for its decision not to appear excessive so close to the elections.

On the other hand, in a country where some politicians continue to boast about a ruthless 'resistance' which continues to kill dozens of innocent civilians at a time when American troops are anxious to leave the country, there is a legitimate question as to whether some of the unrepentant Baathists should be allowed to use what they decry as "US-imposed democracy" to run for elections. By holding that their democratic credentials might still be examined after the elections, because it simply did not have the time to thoroughly and professionally examine every file, the Cassation Chamber achieved a Pyrrhic victory that saves the elections, but only if its writ is widely accepted in the country.

It should be. The Seven-member court was appointed by the Higher Judicial Council on the request of Parliament in order to give the candidates banned by the Commission the right to see their appeals adjudicated in a court of law. The judges simply did not have time to examine several hundred cases, nor did the law allow them to accept candidates who supported or who continue to support the members or advocates of the former regime, which was rightly described by Tony Blair as "monstrous" in his recent appearance before the Chilcot commission. Candidates whose rights to run were reinstated should take the decision seriously and should avoid triumphalism during the campaign. Similarly, all factions in Iraq must abandon posturing and must run a decent campaign which has for all intents and purposes fully started, while the brutal bombings meant to derail them continue and intensify.

When the ill-advised decision Bush v. Gore was issued, losing candidate Al Gore expressed impressive democratic poise when he stated on December 13, 2000: "Now the U.S. Supreme Court has spoken." In a far better decision, Iraq should be shielded from further uncertainties created by suspicious candidates and parties who should now accept that the Iraqi Court has spoken. The Iraqi judiciary gave Iraqis a respite which will only take effect if its decision is appreciated for its extraordinary humane and legal quality.

Chibli Mallat is professor of law at the University of Utah and Saint Joseph's University, Lebanon. He is the author of numerous studies on Iraq, including three books, The Renewal of Islamic Law (Cambridge 1993), Dalil al-Dustur al-‘Iraqi (‘Guide to the Iraqi Constitution’, Baghdad 2009) and Iraq: Guide to Law and Policy, which has just appeared at Aspen. He is a regular JURIST columnist and edits the Lebanese Daily Star law page.

Constructive Criticism: Presidential Opposition to Supreme Court Rulings

2010-02-02T11:50:00.001-05:00

JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says that although a president should naturally be careful to avoid demonstrating disrespect for the Supreme Court, the remarks President Obama recently made about the Court's decision in Citizens United v. Federal Election Commission during the State of the Union address did not in any way derogate judicial independence or encourage any defiance of the Court’s decision....

President Obama’s pungent criticism of a very recent and highly controversial U.S. Supreme Court decision during his State of the Union address last week raises important questions about the proper manner in which a president should express objections to the Court’s decisions. Many Americans, including many Democrats, believe that Obama’s remarks about the Court’s five-to-four January 21 decision invalidating certain limitations on corporate spending in political campaigns were disrespectful to the Court and insensitive to the doctrines of judicial independence and separation of powers, particularly since the Justices were present at the State of the Union address. Considered in context, however, Obama’s remarks were not improper, although they might have been somewhat imprudent.

First, it is important to point out that Obama criticized only one judicial decision, Citizens United v. Federal Election Commission. He did not attack the Court itself or impugn the good faith or motives of any individual justice. Although he objected to the manner in which the Court exercised its power of judicial review in a particular case, he did not express any objection to the Court’s power of judicial review or even remotely imply that he supported any kind of curtailment of the Court’s institutional powers. In contrast with earlier periods of American history, when controversial Supreme Court opinions often provoked calls for abridgment or abolition of the power of judicial review, the adverse reaction to Citizens United has not generated any assault on the Court itself.

To the extent that Obama believes that Citizens United could have baneful consequences for the integrity of American democracy, he appropriately used the “bully pulpit” of a State of the Union address to warn about the decision’s deleterious impact and to call for measures to counteract it. Obama is hardly alone, for his dismay over Citizens United is shared by countless Americans and by many members of Congress, who are trying to formulate legislation that will overcome or at least ameliorate its effects. Indeed, one of the harshest criticisms of the decision originated on the Court itself. Justice Stevens, in a dissent joined by Justices Ginsberg, Breyer, and Sotomayor, warned that the decision “will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process.”

Moreover, Obama’s remarks about Citizens United, which displayed a forthrightness that many of his liberal critics found refreshing, were far from intemperate. Here is what Obama actually said:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well, I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’d urge Democrats and Republicans to pass a bill that helps corrects some of these problems.

Despite the widespread commentary about Obama’s remarks about Citizens United in his State of the Union address, Obama’s far more trenchant remarks on the day on which the Court announced Citizens United have attracted little notice or criticism. In this statement, Obama declared that “With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Obama may have felt that he needed to tone down his remarks for the highly formal occasion of the State of the Union address, particularly because the Supreme Court justices were present.

Obama’s words arguably were more moderate than many passages of Stevens’s dissenting opinion. In addition to his warning about “corporate domination of the political process,” Stevens disparaged the Court’s opinion as “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”

Although some critics of Obama’s speech contend that Obama lied about the Court’s decision insofar as he alleged that it could permit foreign corporations to bankroll American elections, many lawyers and scholars believe that the decision could have exactly this effect even though the decision technically addressed only a provision of the Bipartisan Campaign Reform Act of 2002 that concerned domestic corporations and even though the decision did not overturn restrictions on direct campaign contributions. The danger of foreign influence would appear to be particularly significant since even many “domestic” corporations actually are owned mostly or largely by foreign interests. Indeed, in his dissent Stevens warned that the decision “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.” While one might disagree with Obama’s statement about foreign corporations--as did Justice Samuel Alito, who indignantly mouthed “not true” when Obama made this allegation–-it is not fair to say that Obama lied. It also is unfair for some of Obama’s critics to claim that he lied by alleging that Citizens United reversed a century of precedent. Although the decision technically rejected precedents dating back no farther than 1990, Justice Stevens explained in his dissent that “[t]he Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).” If Obama lied, then so did Stevens and the three other dissenters.

There is likewise little basis for objecting to Obama’s criticism of even one individual decision on the basis that any presidential criticism of a judicial decision tends to discredit the Court and hinder the enforcement of its decisions. Obama’s criticism of Citizens United does not create such a danger, although this kind of a threat could arise in other types of cases. Since the Court--as Alexander Hamilton famously pointed out in No. 78 of The Federalist--has neither the power of the purse nor the power of the sword, it is dependent upon the goodwill of the executive and legislative branches of the federal and state governments and of the American people for the enforcement of its decisions. A president therefore should be particularly careful about criticizing any decision that could encounter widespread defiance.

For example, enforcement of the Supreme Court’s controversial decisions during the 1960s expanding the procedural rights of criminal defendants depended upon compliance by countless police officers and state judges. Although there is no indication that Lyndon Johnson opposed these decisions, any criticism by him of decisions such as Miranda v. Arizona (1966) while he was president could have encouraged law enforcement officials to ignore, evade, or even defy the Supreme Court’s rulings. Similarly, the Supreme Court’s widely unpopular decision barring prayer in public school, Engel v. Vitale (1962), required compliance by tens of thousands of schools and hundreds of thousands of teachers. The decision was difficult to enforce, and at least some schools ignore it even today. President Kennedy was wise to publicly urge respect for the decision, explaining to its opponents that there was an “easy remedy” insofar as “we can pray a good deal more at home, we can attend our churches with a good deal more fidelity, and we can make the true meaning of prayer much more important in the lives of our children.” Likewise, the Supreme Court’s principal school desegregation decision, Brown v. Education (1954), required the goodwill of countless parents and compliance by a wide array of school boards, state legislators, and governors. President Eisenhower, who had severe misgivings about Brown, has been criticized for making public endorsements of the decision that were so lukewarm and ambiguous that they may have discouraged compliance. Efforts to compel public officials to comply with Brown often required costly and protracted litigation by civil rights groups that had difficulty financing such litigation. Similarly, the costs of efforts to enforce Engel or the Court’s criminal procedure decisions would have had to have been borne in many cases by under-financed religious minorities or impoverished criminal defendants.

In stark contrast to these earlier cases, Citizens United is not a decision that the Supreme Court should have any difficulty enforcing. The Federal Elections Commission is the only agency that could directly frustrate the Court’s decision, and any attempt by the Commission to try to enjoin the types of activity permitted by the Court’s decision would attract widespread public attention and provoke litigation by well financed corporations.

Finally, complaints about Obama’s criticism of Citizens United are misplaced to the extent that they underestimate the extent to which previous presidents have criticized the Court and its decisions. Although presidents usually have been circumspect about making public comments concerning Supreme Court decisions, presidential criticism of such decisions has been far from unknown. In 1989, for example, President George Bush advocated a constitutional amendment to overturn the Court’s decision in Texas v. Johnson, which nullified a state statute that criminalized flag burning. Although Bush signed a federal statute to criminalize flag burning, he continued to express preference for a constitutional amendment. When the Court two years later invalidated a similar federal law in United States v. Eichman, Bush immediately advocated another constitutional amendment.

Presidential criticism of the Court’s decisions probably would be even more common if presidents had not so often agreed with the outcome of decisions or had not believed that criticism could offend important blocs of voters. Franklin D. Roosevelt, for example, generally refrained from criticism of the Court after the Court during 1935 and 1936 nullified several of his New Deal measures because he feared that such criticism could backfire. In a press conference in 1935, he complained that the Court’s decisions were relics of the “horse and buggy definition of interstate commerce,” but he otherwise was silent until early in 1937, when his Court-packing proposal and his harsh remarks about the Court inspired widespread disapproval that culminated in congressional rejection of his plan to add up to six justices to the Court.

Although Obama’s criticism of Citizens United in his State of the Union address probably is the strongest statement that a president ever has made about a recent Supreme Court decision in any State of the Union speech, other presidents have used the State of Union to make points about judicial decisions. As recently as 2004, President Bush tacitly criticized the Supreme Judicial Court of Massachusetts’s recent decision on same-sex marriage, alleging that “activist judges have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.” Bush implied that he supported a constitutional amendment to overturn the decision. Although President Reagan never mentioned Roe v. Wade by name or directly criticized the Supreme Court in his State of the Union addresses, he impliedly criticized Roe in his 1984 and 1986 addresses. In his 1988 State of the Union speech, Reagan advocated a constitutional amendment to allow prayer in public schools, but he did not specifically refer to Engel v. Vitale or any other Court’s school prayer decisions. In 1922, President Harding called for an amendment to restrict child labor which would have had the effect of overturning the Court’s decisions in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture (1922), although Harding did not mention these decisions or the Court by name.

Until Obama’s speech last week, perhaps the most piquant remark concerning the U.S. Supreme Court in any State of the Union message was made by Franklin D. Roosevelt in January 1937, only a few weeks before he announced his infamous Court-packing proposal. Roosevelt expressed hope that “we can meet new national needs with new laws consistent with an historic constitutional framework clearly intended to receive liberal and not narrow interpretation.” Implying that he opposed constitutional amendments but would work for some other method to ensure judicial approval of economic regulatory legislation, Roosevelt declared that “[t]he vital need is not an alteration of our fundamental law, but an increasingly enlightened view with reference to it,” and that “[m]eans must be found to adapt our legal forms and our judicial interpretation to the actual present needs of the largest progressive democracy in the world.” The Justices were absent from this State Union address, even though Roosevelt had expected them to attend. Secretary of the Interior Harold L. Ickes speculated in his diary that they stayed away because they had "received a tip as to the contents of the message".

Theodore Roosevelt, however, holds the record for criticism of courts in State of the Union addresses. In his 1906 and 1908 State of the Union addresses, Roosevelt made extensive and stinging remarks about state and federal judges who invalidated economic regulatory legislation and who issued injunctions against the legitimate activities of labor unions. In his 1908 address, Roosevelt declared that “[j]udges of this stamp do lasting harm by their decisions because they convince poor men in need of protection that the courts of the land are profoundly ignorant of and out of sympathy with their needs.” Similarly, in his 1906 address, Roosevelt complained about “flagrant wrongs committed by judges in connection with disputes.” In both addresses, in which Roosevelt devoted thousands of words to discussing judicial issues, Roosevelt professed strong respect for the majority of state and federal judges and for judicial independence, but he warned that the continuation of strong judicial institutions required a wise exercise of judicial power that elevated the rule of law over special interests.

Roosevelt did not make these remarks in front of any judges because State of the Union addresses were not delivered in person between 1801 and 1913. Much of the criticism of Obama’s remarks last week are based not on what he said but on where he said it. Many critics of Obama’s remarks about Citizens United complain that Obama was unfair to the Court to the extent that the justices had no immediate way to respond, other than in the ill-advised manner used by Alito. But while extrajudicial comments by judges about their own decisions are inappropriate, there are plenty of lawyers, journalists, scholars, and pundits who can defend the Court’s opinions. Although a president naturally should be careful to avoid demonstrating any disrespect for the Court, particularly when the justices are present, Obama’s remarks in his State of the Union address were limited to only one case and did not in any way derogate judicial independence or encourage any defiance of the Court’s decision. Indeed, such measured criticism of the Court can actually enhance public respect for the judiciary. As Theodore Roosevelt observed in his 1906 State of the Union address, “just and temperate criticism” of the judiciary helps to prevent “that intemperate antagonism towards the judiciary which...if it became widespread among the people...would constitute a dire menace to the Republic.”

William G. Ross is a professor of law at the Cumberland School of Law of Samford University. His publications include several studies of political controversies involving the U.S. Supreme Court. His website is williamgeorgeross.com.

Good News About GTMO and Bagram

2010-02-01T02:39:00.001-05:00

JURIST Contributing Editor Jeffrey Addicott of St. Mary's University School of Law, formerly a Lieutenant Colonel in the US Army Judge Advocate General's Corps, says President Obama's inability to close the lawful Guantanamo prison is actually good news, but so is the Afghan government's agreement to take over the new Bagram detention facility by the end of 2010....

One of the key issues in the long running “War on Terror” (as recently as January 7, 2010, President Obama acknowledged that the United States was in a “War with Al-Qa’eda”) revolves around the detention of so-called al-Qa’eda and Taliban enemy combatants. With the 2006 release of the 14 “high-value” al-Qa’eda detainees held by the CIA in “undisclosed” locations, all enemy combatant detainees are currently held either at Bagram Air Force Base in Afghanistan (about 800) or the American run detention facility, Camp Delta, at Guantanamo Bay (GTMO), Cuba (about 200).

Under the rule of law associated with armed conflict, all al-Qa’eda and Taliban detainees are unlawful enemy combatants or "unprivileged enemy belligerents", as the recently passed 2009 Military Commissions Act labels them. As such, these individuals are not entitled to Miranda rights, nor are they entitled to the special protections associated with prisoners of war.

Under the law of war, the purpose of detaining these unprivileged enemy belligerents is to ensure that they do not return to join enemy forces and, in this unique situation, to allow American officials the opportunity to gather any necessary intelligence about the terrorists’ organizational infrastructure, financial network, communication system, weapon supply lines, and plans for future terror attacks. As is the practice in all wars, the purpose of detention is not to punish the enemy combatant, but to protect the host nation from future acts of violence by the enemy.

The first good news in the detention issue is that President Obama has not been able to fulfill his stern promise to close the detention facility at GTMO by January 2010, or sooner, because of the “perception” that the United States is in some way acting outside of the rule of law. Of course, this reasoning is incorrect. In reality we are at “War with Al-Qa’eda” and GTMO is therefore perfectly lawful. Indeed, closing GTMO would only provide a significant propaganda victory to our enemies, not a public relations victory.

In addition, during the first year of the Obama Administration, few seemed the least bit curious about where we were sending al-Qa’eda detainees if not to GTMO. In fact, they were and are being sent to join the hundreds and hundreds of al-Qa’eda and Taliban unprivileged enemy belligerents at Bagram, Air Force Base. The same legal authority that allows the United States to lawfully detain al-Qa’eda and Taliban fighters at GTMO is used at Bagram. In other words, if President Obama believes that we need to apologize for GITMO and close it down, then we certainly need to apologize for the far larger detention facility at Bagram and close it down.

To be sure, this double standard has not been lost on detainees at Bagram. In the past year, at least four separate lawsuits were filed in the federal district court in Washington DC by individuals captured outside Afghanistan seeking, among other things, the right of habeas review of their status as “enemy combatants.” When the cases were consolidated, the Obama Administration strongly argued that the four were not entitled to habeas review because they were in fact enemy combatants and lawfully detained under the applicable law of war and Congress’s 2001 Authorization for Use of Military Force (AUMF). Unfortunately for the United States, in each case (except for a detainee who was a citizen of Afghanistan), the federal court ruled against the Obama Administration. Relying on Boumediene v. Bush (2008), the federal district court held that the Constitution guarantees habeas rights to Bagram detainees.

Clearly, the granting of habeas to unprivileged enemy belligerents in far off Afghanistan poses serious difficulties for the Obama Administration, but this matter may well be overcome by the second piece of good news associated with detention issues. In early January 2010, the Afghan Defense Ministry announced that it had agreed to take over the new 60-million-dollar (US funded) Bagram detention facility by the end of 2010. This means that the Afghan government would be solely responsible for detaining and prosecuting all detainees. If this comes to pass, the United States may be able to close a significant chapter in dealing with the vast majority of the unprivileged enemy belligerents captured in the War on Terror. Good news indeed.

Jeffrey F. Addicott [Lt. Col. (ret.) US Army] is a Distinguished Professor of Law and the director of the Center for Terrorism Law at St. Mary’s University School of Law, San Antonio, Texas. He has served as an expert advisor to the government on the military commissions’ process. Addicott also served as the senior legal advisor to the U.S. Army Special Forces. He recently testified before the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts hearing entitled: “What Went Wrong, Torture and the Office of the Legal Counsel in the Bush Administration,” in Washington, DC.

Indefinite Detention: Campaign Promises Meet Political Realities

2010-01-28T08:05:00.001-05:00

JURIST Guest Columnists Victor Hansen and Lawrence Friedman of New England School of Law say that despite his campaign promises, it seems that President Obama has made the political calculation that anything other than the indefinite detention of 49 current Guantanamo detainees is simply not worth the political risk....

Last week, a presidential task force charged with assessing the feasibility of prosecuting suspected terrorists currently detained at Guantanamo Bay finished its evaluation of the cases. Relying upon the work of the task force, President Obama has concluded that of the remaining detainees, 110 should be repatriated or released to a third county, 40 should be tried either in federal court or by military commission, and 49 should be detained indefinitely without trial because they are too difficult to prosecute and too dangerous to release.

The decision to detain these individuals without trial is not unexpected. In spite of then-candidate Obama’s promises, it seems President Obama has made the political calculation that to provide these suspects any additional legal process is simply not worth the political risk.

Indeed, the administration’s decision was foreshadowed by an earlier action last spring. Before assuming office and in his first few months thereafter, President Obama acknowledged that there may be some detainees at Guantanamo who could not be tried or released. The President indicated that he would seek additional Congressional authorization to develop criteria, and standards to govern the indefinite detention of these individuals. Just a few months later, the President announced that he would not seek additional authorizations, and that the Authority to Use Military Force (AUMF), enacted immediately after September 11, afforded him the necessary authority to detain individuals without trial indefinitely.

The reason for the change may lie in the anticipation of the political opposition the President faced from both parties when he announced that some of the Guantanamo detainees would be moved to the United States as part of his plan to close the detention facility. Congress even took steps to deny the President funding to transfer detainees to the United States, as well as imposing a notice requirement.

The vocal and swift opposition to the President’s plan may suggest a lack of political will to deal with the thorny issue of indefinite detention.

To be sure, among the many difficult issues raised by the Guantanamo detentions, the question of what to do with individuals who cannot be tried or released is particularly challenging. We do not know very much about these 49 detainees. They may be the worst of the worst—or at least the worst of the rest—but it also may be that the United States can no longer bring them to justice for practical reasons.

Consider that trying some of these individuals could expose intelligence sources, as well as intelligence-gathering means and methods—though that risk is significantly reduced under the new military commission rules that establish procedures for dealing with sensitive information. Consider also that some of these detainees likely were subjected to interrogation techniques so coercive as to taint any evidence that could be brought against them in federal court or in military commissions.

At the same time, the decision not to seek additional Congressional authorization for the indefinite detention of these 49 detainees, and those similarly-situated terrorism suspects the United States may capture in the future, is troublesome. At the most fundamental level, it sets a dangerous precedent that can be repeated and expanded any time the Executive determines that indefinite detention or similar action is in the best interests of national security.

In addition, the President’s decision not to seek and obtain Congressional support and authorization for such action makes that decision much more likely to be subjected to challenge in the courts. If we have learned anything from the testing of President George W. Bush’s terrorism policies before the courts, it is that Congressional involvement from the start likely would have resulted in less wasted effort in developing the legal means to address terrorism suspects and detainees.

Further, the lack of transparency in President Obama’s decision-making leaves us to wonder about the real reasons for the continued detention of these individuals, fostering continued doubts about the government’s ability to make accurate assessments of such individuals. At this point, we may rightly ask whether, in light of the many policy failures over the past eight years and the government’s poor record of deciding which terror suspects are in fact the “worst of the worst,” these 49 detainees really pose the kind of threat that the government alleges.

Finally, the President’s decision once again backseats Congress on a major issue of national security, an issue that may have a serious domestic impact. Clear statutory authority from Congress permitting the President to indefinitely detain those who pose a danger to the citizens of the United States would go a long way toward alleviating the expressed fears about trying some terror suspects in Article III courts, and about closing the detention facility at Guantanamo.

Victor Hansen teaches criminal law and criminal procedure and Lawrence Friedman teaches constitutional law and state constitutional law at New England School of Law. Their book, The Case for Congress: Separation of Powers and the War on Terror, was published in 2009 by Ashgate..

'Ben Bernanke Should Be Reappointed Fed Chair: Discuss'

2010-01-27T08:45:00.007-05:00

JURIST Guest Columnist Victor Williams, clinical assistant professor at Catholic University of America School of Law and a practicing attorney in Washington, D.C. says that the debate over Ben Bernanke's potential reappointment as Chairman of the Federal Reserve is illustrative of a broken Senate confirmation process in which nominee defamation and floor vote delay are commonplace....

The raging debate over the Federal Reserve Chair’s reappointment would make a fun thought exercise for a Law and Economics class: “Make the Case that Ben Bernanke be reappointed as Chair of the Federal Reserve Board of Governors.”

If it were an open resource exercise, students could have easily found material for their answer with a Google search revealing the transcript of President Obama’s announcement of Bernanke’s nomination.

When Barack Obama interrupted his well-earned Martha’s Vineyard summer vacation in August 2009, he made the case for his selection of Bernanke. Obama explained that Bernanke, a scholar of the Great Depression during his tenure in academia, had helped save the nation from entering another such historic economic calamity.

Inside the island’s Oak Bluffs Elementary School, Bernanke was standing by Obama’s side, as the president recited how the Fed Chair had saved “a financial system on the verge of collapse with calm and wisdom, with bold action and out-of-the-box thinking that has helped put the brakes on our economic free fall." The president gave extra credit to the Fed Chair for “bold, persistent experimentation [that] has brought our economy back from the brink."

Acting on a law professor’s instinct, Obama summarized his argument for the reappointment in a simple four-part test: Bernanke was being reappointed “because of his background, his temperament, his courage, and his creativity.” It is five months later and the four-part test still proves true. But, now we are just days away from the January 31 expiration of his appointment. With the additional resource of the fulsome analysis of Ben Bernanke provided by Time Magazine’s 2009 Person of the Year issue, the exercise could be quickly completed by detailing each of the four criteria.

Of course the Fed chief has made a few missteps, but that just means he’s human. Some critics say he did too much; others say too little. But, have no doubt, he was exactly the right person to calmly and creatively lead the Fed during the worst financial crisis that the nation has faced in the last seventy years. And, he is exactly the right person to finish the job of unwinding his creative economic interventions as the nation’s economy slowly improves.

According to his own speech at the Oak Bluffs Elementary School, Bernanke is fully committed to continuing to “promote growth and prosperity” while maintaining “an environment of price stability.” Ben Bernanke knows well from his South Carolina roots the generational tragedy of job losses. Dr. Bernanke well knows his economic history regarding how inflation can quickly burn out of control. He will strike the right balance.

But for full credit, the exercise answer should perhaps break the rules and challenge the completeness of the question. The raging debate over Bernanke’s reappointment is also about the broken Senate confirmation process wherein nominee defamation and floor vote delay are commonplace. Most troubling is the increasing occurrence of individual senators placing procedural holds – a type of mini-filibuster – against a nomination which requires a 60 vote cloture process.

This Senate rule requirement of a 60-vote confirmation process runs counter to the Constitution’s Article II, Section 2 design according to which the president nominates and the Senate is limited to ratifying or rejecting the choice by a simple majority vote. Many thoughtful people both inside and outside the Republic’s upper chamber are asking that this rule be changed. When the rule change was fully debated in 2005, it was misnamed the ‘Nuclear Option,” but it would have been better branded as the “Constitutional Option.”

In hindsight, perhaps President Obama, while at the Oak Bluffs Elementary School last August, should have taken advantage of recess. Our founders wisely provided an alternative process for federal appointments. Clause 3 of Article II, Section 2 states that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session." Alexander Hamilton explained in Federalist No. 67 that this “auxiliary method of appointment” was needed for those vacancies “which it might be necessary for the public service to fill without delay."

As President Obama considers the 300 other federal executive, regulatory, and judicial vacancies, this might be an answer worth considering. The two law professor nominees whose DOJ jobs will be to establish legal policy and help pick federal judges (Dawn Johnsen for OLC and Christopher Schroeder for OLP) have been blocked by partisan Senate obstruction for months. It is past time to call recess.

As open book exercise answers are usually limited in word count, however, there may not be enough space to detail the validity, history, and practicality of the recess commissioning process.

Victor Williams is a clinical assistant professor at Catholic University of America School of Law and an attorney in Washington, D.C. He teaches Law and Economics and Lawyering Skills.

'Liberal' Fundamentalism in Pakistan: Objecting to Islamic Arguments in NRO

2010-01-20T07:30:00.002-05:00

JURIST Guest Columnists Moeen Cheema of Australian National University College of Law and Shahzad Akbar, an advocate practicing at the Lahore High Court in Pakistan, say that liberal lawyers and rights advocates historically supportive of the superior courts’ public interest and fundamental rights jurisprudence are among the staunchest objectors to the Supreme Court of Pakistan's recent NRO judgment....

The Pakistan Supreme Court’s judgment in the NRO case has ruffled quite a few feathers. The governing PPP, in particular the President’s men, are up in arms given not only the political embarrassment caused by the apex court’s verdict and the revelation of damaging information in the course of hearings on NRO, but also the direct threat of prosecution and disqualification posed to the President’s inner circle, if not the President himself.

However, some of the criticism has come somewhat unexpectedly from a particular quarter of the lawyers’ fraternity that had actively pushed for the restoration of the judiciary: liberal rights advocates who have been historically supportive of the superior courts’ public interest and fundamental rights jurisprudence. The grievance appears to be the inclusion of reference to arguments based in Islamic law by the court in its short order amongst the grounds for declaring the NRO to be unconstitutional. Such a reaction reeks of a fundamentalist (i.e. uncompromising and simplistic) aversion to the entirety of Islamic legal discourse, and while it comes from a segment of society professing a liberal rights oriented ideology, it is inherently, fundamentally, and irreconcilably illiberal in that its starting point is a denial of the possible validity of another worldview.

There is no denying that Pakistan’s particular experience with the Islamization of laws has been problematic in multiple ways. The enactment of the Hudood and the Qisas & Diyat laws, for example, led to several kinds of miscarriages of justice and created room for the abuse of powers by police as well as misuse by private individuals. Furthermore, the enactment of these laws played havoc with the doctrinal foundations of Pakistan’s laws with the result that it took the courts and the Parliament three decades to bring many of the controversies to an uneasy rest.

What has arguably been an even more sinister aspect of the Islamization of laws is the further legitimation of existing cultural practices and social attitudes that are inherently discriminatory and misogynistic. This resulted in the adoption by the non-Shariat courts, trial as well as appellate, of positions explicitly and implicitly discriminatory towards women and religious minorities. The Lahore High Court’s decision in a case denying a woman the right to marry without her wali’s consent is a notable and by no means singular example.

What is missing from this picture of Islamization, however, is a narrative of the evolution of a jurisprudence of Islamic public rights initially by the Shariat courts and later on by the High Courts and the Supreme Court of Pakistan. Whilst there is no denying that the Shariat courts’ jurisprudence regarding minorities’ rights has been problematic and that these courts have thus far failed to take up the case for womens rights, the Shariat courts managed to develop a robust doctrinal base for the Islamic right to equality, the independence of the judiciary and, most relevant to the NRO controversy: the principle of the accountability of the executive.

A prime example of the development and enforcement of the Islamic right to equality is the Federal Shariat Court’s decision in ‘In Re: Islamization of Laws’ (PLD 1985 FSC 193). The court declared section 4 of the Members of the National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance 1963 to be null and void for repugnance to the injunctions of Islam. This statute exempted members of parliament from preventive detention and personal appearance before a civil court while parliament was in session.

It must be noted that the exemption was meant to be temporary and related primarily to appearance before civil courts. Nonetheless, the Federal Shariat Court (and in 1991, the Shariat Appellate Bench of the Supreme Court) struck down even this limited protection on the basis of an Islamic right to equality noting that as regards the administration of justice, Islam “requires that justice be rendered regardless of the status of the parties.” Considering that the NRO sought permanent (as opposed to temporary) exemption from appearance before the courts in criminal (as compared to civil) cases, it did not stand a chance in the light of the principles laid down by the Federal Shariat Court nearly two and a half decades ago.

As Martin Lau observes in his recent book The Role of Islam in the Legal System of Pakistan, the Islamic right to equality is stronger than the fundamental right to equality provided in Article 25 of the Constitution as it is rooted in a distrust of the executive. It must also be noted that the Federal Shariat Court’s jurisprudence on Islamic rights (even during the rule of General Zia, to whom the court was presumed to owe an allegiance) was stronger than the rights jurisprudence of the High Courts and the Supreme Court: “a most extraordinary result considering that the implementation of Islamic law is normally associated with a loss of fundamental rights.”

The Supreme Court’s decision in a 1992 case (PLD 1994 SC 412) demonstrates further how the High Courts and the Supreme Court took the baton from the Shariat Courts and the extent to which Public Interest Litigation (PIL) jurisprudence is indebted to the Shariat Courts’ rights jurisprudence. The Supreme Court disqualified a member of National Assembly for having used his political position to obtain a loan on favourable terms in disregard of the established rules. The court based its jurisdiction and authority on principles of Islamic law and Article 2-A of the constitution. To quote Martin Lau again: "Accountability of public officials … was one example of the positive impact of Islamic law.”

To the extent that the Supreme Court has incidentally referred to principles rooted in Islamic law in its short order invalidating the NRO, the court’s position is neither novel nor a departure from established law. Those who have suggested otherwise are either ignorant of the particular strand of Islamic legal doctrine or, as is more likely, the anxiety with Islamic public law principles arises on an altogether different count. If the established principles of Islamic public law discussed above are taken to their logical conclusion several members of the President’s coterie face political demise. Worse still, the President himself may find his constitutional protection from criminal prosecution to be less secure than a plain reading of the text of Article 248 suggests.

It is an established principle of constitutional interpretation that when two provisions of the constitution are seemingly in conflict these must be read together and harmoniously interpreted. On the one hand Article 248 promises the President protection from criminal proceedings in any court during the term of his office; on the other Article 2-A brings in principles of Islamic law including the accountability of the head of the executive. Ironically, in their opposition to the entirety of Islamic legal discourse, those who have campaigned long and hard against the victimization of the poor and disenfranchised now stand on the side of the rich and powerful.

Moeen Cheema is an Associate Lecturer at the Australian National University's College of Law. Shahzad Akbar is an advocate practicing at the Lahore High Court and a visiting lecturer at the Islamic International University, Islamabad.

Keeping Same-Sex Marriage in the Dark

2010-01-15T12:22:00.004-05:00

JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law says in rejecting the broadcast of the Proposition 8 same-sex marriage trial, conservative justices of the United States Supreme Court are using procedural excuses to push a critical issue back into the closet ...

On Wednesday, a conservative majority of the Supreme Court overturned a ruling made by a federal trial judge that would have allowed limited television coverage of a trial that will decide the fate of California’s Proposition 8. The trial, which is currently proceeding in San Francisco, is one of the most significant civil rights cases of our time. The plaintiffs are seeking to overturn a ballot initiative that makes same-sex marriage illegal in California.

It was unusual that the Supreme Court even decided to hear this case. The high court takes very few cases. It generally decides issues about which the state or federal courts are in conflict or cases that raise important questions of federal law. Yet relying on the Supreme Court’s “supervisory power” over the lower courts, the five conservative justices – Roberts, Scalia, Thomas, Alito and Kennedy – joined in an unsigned 17-page decision and chided Chief Judge Vaughn Walker for seeking to broadcast the trial without a sufficient notice period for public comment.

Justice Breyer wrote in the dissent joined by Justices Stevens, Ginsburg and Sotomayor that he could find no other case in which the Supreme Court had intervened in the procedural aspects of local judicial administration. Indeed, Breyer cited a case in which Scalia wrote, “I do not see the basis for any direct authority to supervise lower courts.”

Moreover, in the comment period that Walker did allow, he received 138,574 comments, and all but 32 favored transmitting the proceedings.

The majority concluded that the same-sex marriage opponents would suffer “irreparable harm” if the trial were broadcast to five other federal courts around the country. But all the witnesses who allegedly might be intimidated by the camera were experts or Prop 8 advocates who had already appeared on television or the Internet during the campaign.

No one presented empirical data to establish that the mere presence of cameras would negatively impact the judicial process, Breyer wrote. He cited a book that I authored with veteran broadcast journalist David Dow, Cameras in the Courtroom: Television and the Pursuit of Justice. It describes studies that found no harm from the camera, and one which found that witnesses “who faced an obvious camera, provided answers that were more correct, lengthier and more detailed.”

The five justices who denied camera coverage noted at the outset that they would not express “any view on whether [federal] trials should be broadcast.” Toward the end of their decision, however, they stated that since the trial judge intended to broadcast witness testimony, “[t]his case is therefore not a good one for a pilot program.”

In my opinion, it is no accident that the five majority justices are the conservatives who, in all likelihood, oppose same-sex marriage. Why don’t those who oppose same-sex marriage want people to see this trial?

Perhaps they are mindful of the sympathy engendered by televised images of another civil rights struggle. “It was hard for people watching at home not to take sides,” David Halberstam wrote about Little Rock in The Fifties. “There they were, sitting in their living rooms in front of their own television sets watching orderly black children behaving with great dignity, trying to obtain nothing more than a decent education, the most elemental of American birthrights, yet being assaulted by a vicious mob of poor whites.”

The conservative justices may think that televising this trial will have the same effect on the public. Witnesses are describing their love for each other in deeply emotional terms. Religious fundamentalists who oppose them will testify about their interpretation of scripture. Gay marriage is one of the hot button issues of our time. Passions run high on both sides. This is not a jury trial in which jurors might be affected by the camera or a criminal case where the life or liberty of the defendant is at stake.

In spite of what the conservative majority claims, the professional witnesses are not likely to be cowed by the camera. Modern broadcast technology would allow the telecast without affecting the proceedings in the courtroom.

There is overwhelming public interest in this case. It will affect the daily lives of millions of people. The decision denying limited broadcast coverage at this point effectively eliminates any possibility that it will be allowed before the trial is over. The conservative judges are using procedural excuses to push this critical issue back into the closet.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and co-author, with David Dow, of Cameras in the Courtroom: Television and the Pursuit of Justice.

Back to the Future: The Pakistan Supreme Court's NRO Judgment

2010-01-14T06:42:00.003-05:00

JURIST Guest Columnist Moeen Cheema, Associate Lecturer at the Australian National University College of Law, says that the Pakistan Supreme Court's December ruling in the NRO case reopens a long-running clash between the country's executive and the judiciary, a conflict that the executive cannot constitutionally win....

On December 16, 2009, the Supreme Court of Pakistan declared the country's controversial National Reconciliation Ordinance, popularly known as the NRO, unconstitutional on a number of grounds and decided that it was void ab initio. As a result, the court ordered that all cases that had been terminated under the NRO would be reinstated, including the money-laundering case against Asif Ali Zardari, current President of Pakistan, which was being pursued in Switzerland. The Supreme Court’s decision is a landmark decision but one whose real ramifications and deeper political significance cannot be fully understood in the absence of an awareness of an intriguing period of Pakistan’s history within which the NRO saga is unfolding.

The NRO was promulgated by Pakistan’s military strongman, General Pervez Musharraf, on October 5, 2007. Through this ordinance the President sanctioned the automatic dismissal of thousands of criminal cases including corruption charges against the current President and several key politicians of his party as well as serious criminal cases against members of a main coalition party, the Muttahida Qaumi Movement (MQM). The re-opening of these cases by the Supreme Court has caused significant embarrassment to the federal government and creates the possibility that many leading members of these coalition parties, including some ministers, may be convicted and hence disqualified from being members of the Parliament.

It may be recalled that the General had earlier attempted to remove the Chief Justice of the Supreme Court in March 2007, but this attempt failed as the Chief Justice was reinstated by the Supreme Court in July that year after a movement by Pakistan’s lawyers. Having passed the NRO pursuant to a political deal with the Pakistan Peoples’ Party (PPP) of late Benazir Bhutto, the President sought reelection for a third term on October 6, 2007, at which point the PPP’s abstention paved the way for the General’s success. The NRO was challenged before the Supreme Court and on October 12 the apex court of Pakistan issued an order directing that the operation of the NRO be suspended until such time as the court reviews the ordinance in detail and pronounces its verdict on its constitutionality.

Musharraf’s reelection was also challenged in the Supreme Court and, fearing an adverse decision, the General dismissed the entire superior judiciary and imposed an extra-constitutional state of emergency on November 3. Musharraf then announced the holding of elections for the national parliament under international pressure. However, upon the assassination of Benazir Bhutto in mysterious circumstances in December 2007 the elections were initially postponed and finally held in February 2008. The PPP, then headed by Asif Ali Zardari, late Benazir Bhutto’s widower, rode a sympathy wave and won the most seats in the National Assembly. Later the PPP formed the federal government in coalition with a number of political parties, including one of General Musharraf’s main backers, the MQM. Musharraf made a host of appointments to fill the vacancies created by the unconstitutional removal of a majority of the judges of the superior courts.

The PPP government initially accepted General Musharraf as the President of Pakistan. However, under pressure from the main opposition parties, the PPP relented and Musharraf was forced to give up the office of the President under a threat of impeachment in August 2008. In subsequent elections for the Presidency, Asif Ali Zardari emerged as the surprise candidate and won the elections comfortably. He was sworn in as Pakistan’s 11th President in September 2008. Mr. Zardari's ascent to the Presidency was paved by two actions of the loyalist Supreme Court created by Musharraf–also known widely and unceremoniously as the ‘Dogar Court’ after the pretender Chief Justice Abdul Hameed Dogar. In one decision the Dogar Court declared the requirement of holding an undergraduate degree to be eligible to become a parliamentarian or a President to be unconstitutional. In another set of decisions, the Dogar Court vacated corruption charges against the President in March and April 2008 pursuant to the NRO, with which that court found no fault.

From March 2008 to March 2009 the PPP government refused to reinstate Iftikhar Chaudhry as the legitimate Chief Justice of Pakistan along with other judges who had been unconstitutionally removed by General Musharraf. A movement for the restoration of the legitimate court progressively gained momentum but was thwarted by the PPP government led by Asif Ali Zardari. The movement reached a crescendo as the retirement date of Abdul Hameed Dogar in March 2009 neared. This also coincided with the second anniversary of the CJ Chaudry’s unconstitutional dismissal. A ‘Long March’ was called for by the lawyers in which Pakistan’s emerging civil society, opposition political parties and the broader public wholeheartedly participated. The Long March threatened to destabilize Pakistan’s elected government which finally succumbed and announced the restoration of Iftikhar Chaudhry and other judges.

With the reinstatement of CJ Chaudhry a new era in Pakistan’s judicial history began to unfold. Contrary to the government’s fears, the Chaudhry Court did not seek vengeance. Instead the court went about putting its own house in order. Pursuant to a constitutional petition, the court first declared General Musharraf’s emergency actions to be unconstitutional but did not immediately strike down all legislative measures passed in the emergency period. The court gave the government some time to seek parliamentary approval of the legislative enactments made by General Musharraf during the emergency period. The court also declared all judicial appointments made in that period to be unconstitutional with the result that in one stroke all Musharraf and Zardari appointees (and loyalists) were weeded out of Pakistan’s superior judiciary.

When the PPP government subsequently failed to muster parliamentary backing for the NRO, the Supreme Court began hearings on the validity of this unpopular ordinance in early December. Embarrassed by its failure to get the NRO passed by Parliament, the PPP government refused to defend the ordinance before the Supreme Court. This wasn’t the end of the matter however, as when the Supreme Court sought information concerning the details of NRO beneficiaries, the government made futile attempts to mask such information. The revelation of the nature and extent of the charges and the names of the beneficiaries, many of whom continue to occupy key positions within the government, have caused significant erosion of the political credibility of the PPP government in general, and of President Zardari in particular.

The NRO saga hasn’t ended. In fact, it has only just begun. In the coming months corruption charges will be pursued against several key PPP ministers and leading members. The media, the public, and the superior courts are expected to keep a close watch on the prosecution of these cases to see whether the government is able to steer the judicial process in favor of the accused. Questions shall also be raised about the eligibility of Mr. Asif Ali Zardari to hold the office of the Presidency. All of this may lead to a clash between the executive and the judiciary, a conflict that the executive cannot constitutionally win. The government’s strategy in such circumstances would be to politicize the judiciary and create an impression that the Supreme Court is allying with Pakistan’s military establishment in an effort to displace yet another elected government.

Timeline of Events:

March 2007: First dismissal of CJ Iftikhar Chaudhry

July 2007: Reinstatement of Iftikhar Chaudary by the Supreme Court

October 5, 2007: Promulgation of NRO

October 6, 2007: General Musharraf’s reelection as President

October 12, 2007: Supreme Court’s interim order barring benefit under NRO

November 3, 2007: Musharraf imposes emergency and dismisses CJ Chaudhry and judges

December 2007: Assassination of Benazir Bhutto

February 2008: Elections for Parliament

April 2008: The Dogar Court paves the way for dropping of charges against Zardari

August 2008: Musharraf resigns as President for fear of impeachment

September 2008: Asif Ali Zardari becomes President of Pakistan

March 2009: Long March and re-instatement of the Chaudhry Court

December 16, 2009: Supreme Court’s final verdict on NRO

Moeen Cheema is an Associate Lecturer at the Australian National University's College of Law.

New Wars, New Rules? Not So Fast...

2010-01-12T14:03:00.004-05:00

JURIST Guest Columnist Laurie Blank of Emory Law's International Humanitarian Law Clinic says that while the challenges posed by "new wars" are admittedly vast, we should not let those define us and our values. Rather, she suggests, we should use the law to rise to those challenges....

This is a new kind of war, with a new kind of enemy. The old rules of international law are antiquated and no longer apply. So says Judge Janice Brown of the D.C. Circuit Court of Appeals in Al-Bihani v. Obama. These assertions echo the claims used by the Bush Administration to argue that the Geneva Conventions are “quaint” and “obsolete.”

We are in a new kind of war. Where once nations fought nations, now we fight insurgents, shadowy terrorist groups and other non-state entities. Where we once measured combat by the number of tanks or fighter jets destroyed, now we count roadside bombs and suicide bombers.

But does this new kind of war necessarily demand new rules? Those who say yes point to the fact that the Geneva Conventions entered into force in 1949, only four years after World War II – ancient history in terms of the nature of conflict.

Before we confine the law of war to the dustbin of history, however, let’s just be sure that we don’t really need them. The Geneva Conventions, and the law of war for centuries before that, are based on four key principles: distinction, proportionality, military necessity, and humanity.

The principle of distinction requires all parties in a conflict to distinguish between those who are fighting and those who are not and to target only the former when launching attacks. It also requires those who are fighting to distinguish themselves from innocent civilians. Distinction has a simple but noble purpose – to protect innocent civilians from unnecessary suffering during conflict. It also protects soldiers by helping them understand whether persons they encounter are hostile or innocent.

The principle of proportionality seeks to balance military goals with protection of civilians. It prohibits an attack when the expected civilian casualties will be excessive compared to the anticipated military advantage. In essence, a commander must believe that the stated military goal is reasonable in light of any foreseeable incidental civilian casualties.

Military necessity recognizes that the goal of war is the complete submission of the enemy as quickly as possible and allows any force necessary to the achievement of that goal as long as such force is not forbidden by the law. Destroying enemy capabilities is legitimate, therefore; wanton killing and destruction is not.

Humanity aims to minimize suffering in armed conflict. To that end, the infliction of suffering or destruction not necessary for legitimate military purposes is forbidden. This principle stems from the code of chivalry, itself an early manifestation of the laws of war.

Those who argue that we need new rules for these new wars must consider exactly which of these principles we no longer want or need. Are we so anxious to kill terrorists and jihadists that we are willing to disregard the need to figure out whether our targets are in fact terrorists before we shoot? Perhaps instead we’ll decide we can destroy as many villages as it takes to get that one elusive insurgent.

The uncertainties and complexities of fighting against insurgents and terrorists do indeed increase the challenges in applying and adhering to the laws of war. These same complexities make conflict ever more deadly for innocent civilians and soldiers alike. Throwing out the very rules designed to minimize suffering in conflict hardly seems to be the right choice at a time when that suffering is only increasing.

Instead, let’s focus on making the law work better in unpredictable and difficult circumstances. For example, we need to sharpen our ability to differentiate between friends and foes so that we know who is dangerous and who we must protect. Our enemies may not wear uniforms, but that does not give us the right to shoot innocents in their stead.

We need to examine how to better protect civilians caught up in the zone of combat while still enabling effective military operations. When insurgents seek shelter in local villages, we cannot simply choose between bombing the whole village or letting the insurgents walk free for fear of civilian casualties, but need to develop operational tactics that enable more surgical strikes.

We need to learn more about how insurgents and terrorists operate so we can target their facilities while still protecting civilian buildings and infrastructure. The fact that our enemies make roadside bombs in residential basements and store munitions in mosques or hospitals does not excuse our obligation to distinguish between military and civilian objects. Nor does it make this obligation obsolete. Rather, it means that we must marry a more discerning analysis of when a building becomes a legitimate target with more sophisticated intelligence information.

The key principles of the international law of war are sound and timeless in their purpose – and critical to our ability to carry out effective military operations. Judge Brown seeks to discard the “old wineskins of international law” and “demands new rules be written.” But which of these principles would she give up? The challenges new wars pose are vast, but rather than let them define us and our values, let’s use the law to rise to the challenge.

Laurie R. Blank is the Acting Director of Emory Law's International Humanitarian Law Clinic.

For the Sake of Fair and Speedy Trials: A Confirmation Plea

2010-01-08T06:36:00.001-05:00

JURIST Guest Columnist Carl Tobias of the University of Richmond School of Law says that in order for the US Court of Appeals for the Second Circuit to function properly, the Senate must confirm Judge Denny Chin as soon as possible after returning from recess, and President Obama should promptly nominate candidates for the other three vacancies on the court....

When President Barack Obama assumed office, the U.S. Court of Appeals for the Second Circuit experienced a vacancy in one of the tribunal’s 13 judgeships. Since then, the Senate has confirmed Judge Gerard Lynch for that opening. However, the chief executive has elevated Judge Sonia Sotomayor to the Supreme Court while three additional Second Circuit judges have assumed senior status. Thus, it is critical that the administration expeditiously fill these vacancies. The White House has adopted practices to facilitate appointments, but the four seats remain unoccupied.

An instructive example of this problem is Southern District of New York Judge Denny Chin’s nomination to the Second Circuit. Because the four vacancies can undermine prompt, economical, and fair disposition of appeals, the Senate must swiftly approve Judge Chin while the President should expeditiously submit - and the upper chamber must promptly confirm - nominees for the three other empty judgeships. Indeed, the Senate ought to approve Judge Chin as soon as it reconvenes in January because the tribunal needs all of its members to deliver justice.

The Second Circuit is the final stop for 99 percent of appeals from Connecticut, New York, and Vermont. The court hears many significant business disputes, a number of which are important to United States economic recovery. The current vacancies in four of its 13 positions could impede speedy, inexpensive, and equitable appellate resolution. For example, the tribunal now requires more time to decide appeals than all but one of the 12 regional circuits.

Several reasons explain why the court lacks 30 percent of its members. Judge Chester Straub assumed senior status in July 2008, and President George W. Bush nominated Southern District of New York Judge Loretta Preska on September 9 of that year, but he consulted only minimally with New York’s Democratic Senators Charles Schumer and Hillary Clinton. September was also too late in a presidential election year for confirmation, and the 110th Senate adjourned without considering the jurist. Moreover, Judge Chin is the only candidate whom the Obama White House has nominated for the existing vacancies.

President Obama has applied several techniques in order to expeditiously fill the current openings. He promptly consulted the home-state senators prior to actual nominations. Most senators have cooperated with the administration and swiftly proposed candidates who are very smart, ethical, independent, hard working and even-tempered. Obama specifically requested the guidance of New York Democratic Senators Schumer and Gillibrand who both strongly advocated Judge Chin. The chief executive nominated the jurist on October 6, while he received a November 18 Senate Judiciary Committee hearing at which both New York senators appeared and expressed their enthusiastic support. The Judiciary panel approved Chin on a December 10 voice vote.

The White House carefully selected Judge Chin because he had compiled an excellent record as a trial judge in the Southern District over the last decade and a half. Illustrative was Chin’s expert handling of the Bernard Madoff criminal proceeding. The jurist earned the highest ABA rating of well qualified. Moreover, the two New York senators have lauded the nomination.

Given Chin’s distinguished service, the Senate must promptly schedule him for a floor debate and vote. Senator Patrick Leahy (D-Vt.), the Judiciary Committee Chair, and Senator Jeff Sessions (R-Ala.), the ranking member, should work together on confirming the nominee. For instance, Senator Sessions could urge Senator Mitch McConnell (R-Ky.), the Minority Leader, to cooperate with Senator Harry Reid (D-Nev.), the Majority Leader, in swiftly arranging Judge Chin’s floor consideration.

Carl Tobias is the Williams Professor at the University of Richmond School of Law.

Freedom from Religion: Learning from the Attack on Flight 253

2010-01-06T09:42:00.002-05:00

JURIST Guest Columnist Amos Guiora of the University of Utah College of Law says that in the wake of the thwarted Christmas Day terrorist attack on a US airliner bound for Detroit, we must recognize that religious extremism poses an immediate danger and that religious extremists no longer deserve immunity predicated on faith.....

Umar Farouk Abdul Mutallab tried to blow up Northwest Airlines Flight 253 on Christmas Day. Unless you live under a rock, you know this. Innumerable talking heads are lambasting federal agencies for seemingly egregious mistakes. Some demand that President Obama fire Secretary of Homeland Security Janet Napolitano; others decry lessons not learned from 9/11.

Although something clearly went very wrong, we must be cautious when pointing fingers and reaching sweeping conclusions. While airport security and intelligence coordination seem to be the immediate culprits here, the problem lies far deeper than that.

We face a stark reality. An Islamic extremist, Mutallab was bent on killing innocent passengers, including fellow Moslems, regardless of their faith. Moderate Moslems in Detroit have condemned the attack. But religious extremists remain committed to our destruction, including extremists right here in the US.

Radical imams send the Mutallabs of the world to their fiery death promising glory and virgins in martyrdom. Indeed, these Mutallabs are in our midst; Somali ‘lost boys’ radicalized in Minneapolis mosques and sent to Pakistan for suicide bombing training are proof enough. Terror in the name of God is our reality. Religious extremism presents the single greatest danger to national security – we must regain the initiative. And yet we must guard against capricious and arbitrary measures, and distinguish between religion and religious extremism.

What can we do? I suggest several proactive measures in my recent book, Freedom from Religion: Rights and National Security. Although counterintuitive in a vibrant democracy, limiting the free speech of those inciting violence in the name of religious extremism is legitimate. Constitutional law scholars are extremely uncomfortable with such limitations, but extremists leave us minimal wiggle room.

First, violence preached in a house of worship loses any immunity based on freedom of speech. We cannot wait for actors influenced by extreme religious sermons to commit dastardly acts – law enforcement must act on the violent extremist speech.

However, imagine the chilling effect if agents attend worship dressed differently from parishioners, holding ‘pen and pencil’ while listening to sermons. A faith leader told me he would therefore prefer FBI agents remain undercover. Although “less honest,” it produces better information and minimizes Free Exercise violations.

Second, we must re-articulate the limits of clergy speech. How often must clergy incite before law enforcement moves in? What words justify monitoring? In Brandenberg v. Ohio, the Supreme Court said states cannot “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The court continued: “The mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”

An extremist religious cleric’s power is, potentially, extraordinary. In Brandenburg’s three-prong test—imminence, likelihood, intent— an extremist religious authority determined to encourage his congregation to act almost certainly meets the first two requirements. A listener is likely to obey the words of his ultimate spiritual authority and a “critical mass” of regular violent sermons will make his act imminent.

Third, while celebrating religion and religious freedom, we must immediately resolve critical issues at the confluence of religion and national security: will airport security officers worldwide require women in full-length burkhas to lift their veils for identification purposes; will they ask individuals with Arabic-sounding names additional questions; will they subject individuals going to or coming from Middle East countries to additional scrutiny?

Many of us instinctively recoil at affirmative answers to these questions; others suggest we have no alternative but to fundamentally re-articulate how we protect ourselves. Winston Churchill would have said we must ‘look the tiger in the eye’. The question – how we balance powerful competing rights: the right to religion and the right to self-defense.

The direct, undeniable connection between terrorism and extremist religious speech demands that we seek answers. But we must be extraordinarily cautious lest we overreact. American history is replete with examples, from the internment of innocent Japanese-Americans after Pearl Harbor to the torture-based interrogation regime after 9/11. Both represent the very worst in Presidential decision-making and Supreme Court and Congressional acquiescence; in essence, a complete failure of checks and balances and separation of powers.

Finger-pointing is always endemic to Washington. The immediate and future danger posed to innocent individuals demands that our President – restrained by an active judiciary and Congressional oversight – demonstrate courageous and bold leadership. We must recognize that religious extremism poses an immediate danger and that religious extremists no longer deserve immunity predicated on faith.

Impositions on extremist faith are indeed controversial, but may be inevitable. Inevitable – just like the next religious extremist-motivated terrorist attack.

Amos N. Guiora is Professor of Law at SJ Quinney College of Law, the University of Utah; his latest book is Freedom from Religion: Rights and National Security (Oxford University Press, 2009).

Questionable Precedent: The First Ruling by the African Court on Human and Peoples' Rights

2009-12-21T05:56:00.001-05:00

JURIST Guest Columnist Roland Adjovi of Arcadia University in Arusha, Tanzania, says that to gain and maintain credibility in the wake of its first judgment, the African Court on Human and Peoples' Rights should streamline its policy rationale and procedure, thereby expediting its decision-making process....

On December 15, 2009, the African Court on Human and Peoples’ Rights issued its first ever judgment. The Court convened to consider a petition filed by Michelot Yogogombaye encouraging the dismissal of charges pending in Senegal against former Chadian president Hissein Habre. Yogogombaye is believed to have been a minister for a short time under Habre’s former regime.

Yogogombaye was born on October 1, 1959. He is the founding president of the Rassemblement Démocratique pour la Paix et la Liberté au Tchad (RDPL), an opposition political party in Chad. He is also the self proclaimed president of the military rebellion in Europe against the current Chadian regime. In the late 1980’s, while Habré was still in power, Yogogombaye was arrested but freed some two weeks later, even though he seems to have been a supporter of Habre’s regime. In December 1990, after Idriss Déby won the presidential election against Hissein Habré, Yogogombaye maintained some political activities until 1992 when he quickly fled the country for Switzerland, where he currently resides. It appears therefore that he has consistently and openly supported Habré. In August 2008, he even stated that he was ready to testify before the Senegalese judges to support “[his] President, El-Hadj Hissein Habré”.

The purpose of the preceding consideration of the applicant is twofold. First, it is difficult to make sense of the interest Yogogombaye has in the case again Habré which would have supported his application, thus giving him standing. In addition, it is clear that Yogogombaye has a political agenda which led him to file the application in the first place. In that context, his adherence to the military opposition against the current regime in Chad is a key additional element. In his application, Yogogombaye argued that being a citizen of Chad is sufficient grounds for the jurisdiction ratione personae of the Court, and such argument could have been easily dismissed.

The application was dated August 18, 2008, delivered to the African Union Commission (AUC) by e-mail on August 19, 2008, and addressed to the African Court both directly and indirectly (through the AUC). But it was only effectively delivered to the African Court on December 29, 2008 (with a cover letter dated November 2008 from the Legal Counsel) through the African Union Commission. In the application, Yogogombaye requested that the African Court order the discontinuance of the case against Habré in Senegal, particularly on the bases of a purported violation of the non-retroactivity principle and alleged political abuse of the universal jurisdiction principle. Yogogombaye also requested the use of Ubuntu, a typically African means for conflict resolution. The aim of the application is certainly to put an end to the saga against Habré and to free Habre after years of house arrest.

The pleadings of the Republic of Sénégal were centered on the Court’s lack of jurisdiction on the basis that Senegal has not consented to the right of individuals to lodge cases against it before the Court.

The Court’s December 15th judgment seems quite straightforward as well as in line with the pleadings of Sénégal. The 1998 Protocol establishing the Court states that an individual can only lodge a case against States who have made a declaration to the effect of granting individuals such right. In the present case, despite a statement by the applicant to the contrary, the Court found that the Republic of Senegal has never granted individuals the right to lodge any case against it before the Court.

Such a simple response does not warrant six months of deliberation, let alone nearly twelve months of deliberation. In fact, in his separate opinion Judge Ouguergouz, producing a reason very much enriched by his prior experience at the International Court of Justice, stated that the Applicant ought to know why it took so long for the Court to come to a decision.

Judge Ouguergouz went on to detail his own thorough analysis of the complexity of the case as far as jurisdiction is concerned. In that framework, he developed the concept of forum prorogatum, which would have led the Judges to think that the Republic of Sénégal, through its attitude, seems to have consented to the proceedings. He consequently questioned whether any application should ever have just been dismissed by the Registry when it could not be excluded that the State would consent to such application. While the argument remains technical – even though quite well explained – it is difficult for one to satisfy oneself with this first judgment of the Court.

Although the simplicity of the questions posed by the Court would seem to warrant simple and clear responses, it took almost a year for the Court to come up with a decision. In addition, the judgment was only 13 pages long, with some three pages dedicated to an elucidation of the Court’s actual reasons and the remaining pages being devoted to the facts and procedural details. What message does such management of the first case convey to the communities in Arusha, in Africa, and worldwide? Will the Africans and the residents in Africa still believe that the Court is going to do justice to them? The Court will need to improve its pace in deciding cases and the caliber of its reasoning.

In addition, there have been issues with the transparency of the proceedings; for instance, the judgment reveals that some interim orders were made during the course of the proceedings. But none of those orders were ever made public even though nowhere in the Judgment was it stated that they were confidential. Moreover, the references in the judgment to those orders were missing, and one cannot trace them for a comprehensive understanding of the case and the procedure. The same can be said for the case file: the documents of the proceedings (especially the application and the pleadings) have not been published to the best of our knowledge even though the Court has not stated whether they are confidential or not. However, those documents are summarized in the Judgment without any further explanation. Can justice be seen to have been served in such circumstances? The Court will gain respect, prestige, and good publicity if its judges and civil servants streamline the Court’s procedure and policy.

Finally, one might wonder whether the parties were duly informed of the issuance of the Judgment as neither of the two was present. It seems unlikely that such absence should be analyzed by a lack of interest from each of them, especially from the Applicant’s side.

In conclusion, this judgment was slightly deceptive, but one must hold on to the hope hope that in serious cases – possibly regarding Burkina Faso or Mali, the two countries that have granted individuals the power to lodge applications against them – the Court will be able to substantially serve justice.

Roland Adjovi is the academic director of the Nyerere Centre for Peace Research and the Centre for East African Studies of Arcadia University's College of Global Studies in Arusha, Tanzania.

Falling Short: Justice in the New Military Commissions

2009-12-08T09:42:00.006-05:00

JURIST Special Guest Columnist Andrea Prasow of Human Rights Watch says that judging from what she saw at Guantanamo last week, the new system of US military commissions established under the Military Commissions Act of 2009 fails to meet "our highest standards as a nation," despite a recent pledge by US Attorney General Eric Holder...

Last month Attorney General Eric Holder announced that some Guantanamo detainees will be tried in federal court while others will face military commissions. Holder assured the American public that military commissions will be “consistent with our highest standards as a nation.” I am afraid he will be disappointed.

I was in Guantanamo last week to observe the military commissions – the ones
blessed by both Congress and President Obama – which were designed to provide swift justice to terrorism suspects. The hearing that took place under the new system of military commissions was a far cry from what I believe to be the highest standards of our nation.

The defendant appearing before the military commission was Ibrahim Ahmed Mahmoud al Qosi, a middle-aged Sudanese man who allegedly worked as Osama bin Laden’s accountant in Khartoum, and later as his cook in Afghanistan. The prosecution alleges that he also served as bin Laden’s bodyguard and provided logistical support to Al Qaeda. But despite having had more than five years since charges were filed to prepare for the trial, the prosecution showed up this week with a new theory of the case and a new set of charges.

The military commissions were originally created by presidential order in 2001. Al Qosi was first charged before the military commissions in 2004, but those commissions were struck down by the Supreme Court in 2006. The Court ruled that the president lacked congressional authorization to establish the commissions and that they violated basic fair trial standards required by the Geneva Conventions.

Still determined to try terrorism suspects by military commission rather than existing courts – which would have banned evidence obtained through torture and other abuse – the Bush administration went to Congress to get the necessary authorization. Congress quickly passed the Military Commissions Act of 2006, reestablishing the military commissions with slightly improved rules. So Al Qosi was recharged under the new military commissions.

Shortly after taking office, President Obama suspended the military commissions for 180 days. Many critics of the commissions believed the suspension was preparatory to ending the fundamentally flawed commissions. But in May, the president announced that he planned to revive the military commissions with improved rules and asked Congress to draft legislation accordingly. The result is the Military Commissions Act of 2009.

So last week, Al Qosi was in the hilltop courtroom overlooking Guantanamo Bay again, facing charges under the third iteration of military commissions.

At the outset of the hearing, Judge Nancy Paul announced that she would set a trial schedule, since pre-trial motions had been under way for years now. But the prosecution said it wanted to amend the charge sheet. One proposed amendment was relatively minor and necessary for the case to proceed. But the others demonstrated the marked difference between a military commission and established court proceedings, as the prosecution sought to expand the charges against Al Qosi in a way that would never be permitted in a civilian court or even a court-martial.

Under the old Military Commissions Act of 2006, a military commission had jurisdiction over “alien unlawful enemy combatants.” However, the Military Commissions Act of 2009 provides jurisdiction only over “alien unprivileged enemy belligerents.” While this small change in language may not seem significant, a military commission can only try people who fit within the specific terms of its jurisdiction. Therefore, if a defendant is not covered by these terms, his case must be dismissed.

Ordinarily, any minor change to the charges doesn’t require the government to withdraw the charges and refile them (as they plan to do for other detainees), so the prosecution wanted the judge to approve the change without restarting the proceedings. Al Qosi would be charged under one version of a charge sheet today, and a different one tomorrow.

This sort of change is relatively straightforward, and indeed seems to be exactly what Congress intended to happen. But as has frequently been the case at Guantanamo, prosecutors overreached. In addition to changing the language relating to jurisdiction, the prosecution requested permission to add new overt acts to the charge sheet, and to accuse Al Qosi of conduct that took place four years before the current accusations.

The prosecution provided the defense with a draft of its new charge sheet just 20 minutes before the hearing started. Defense counsel understandably appeared taken aback as they perused the proposed changes and discovered that not only did the dates of the alleged crimes go back to 1992 but the prosecution sought for the first time to charge Al Qosi with conduct that occurred in Somalia, Ethiopia and Chechnya. Only the lawyers and the judge were allowed to see the proposed charge sheet, but it seems the prosecution wants to charge Al Qosi with participation in al Qaeda’s world-wide criminal acts simply because they believe he was part of al Qaeda in the early 1990s.

Ultimately, the judge ruled that while the prosecution could make the simple substitution of the words “alien unprivileged enemy belligerent,” it could not “fundamentally alter the charges against the Accused” by expanding the scope and timeframe of the charges. The prosecution is left to proceed with the current charge sheet, or it may choose to withdraw the charges entirely and refile them. If it does so, the proceedings start anew.

Not only are the charges in flux but the procedural rules that are supposed to govern the military commissions don’t even exist yet. According to the legislation Congress passed, the Secretary of Defense has 90 days to issue new regulations, which could result in significant changes to trial procedures relating to the types of evidence that are admissible. Those new regulations are not drafted yet, but Al Qosi’s case is going forward anyway. Judge Paul believes she is bound to apply the old rules until she has new ones. But instead of delaying the case for 90 days until there are new rules, the judge has again made Al Qosi the subject of proceedings that may ultimately be changed out from under him.

Meanwhile, the prosecution appears to have a new theory of Al Qosi’s case – indeed of all the Guantanamo cases. The new military commissions permit jurisdiction over an individual who was “part of al Qaeda” at the time the alleged offense was committed. Because Al Qosi is charged with conspiracy – a wide-ranging charge that is not a traditional violation of the laws of war – the prosecution wants to hold Al Qosi responsible for any crime committed by al Qaeda. It is for this reason that the prosecution wants to back-date Al Qosi’s charge sheet to 1992. Their theory appears to be that if they can show Al Qosi was “part of al Qaeda” in 1992, and Osama bin Laden issued fatwas against the United States in 1992, thereby commencing “hostilities” against the United States, Al Qosi can be held criminally responsible for everything al Qaeda did over the nine-year period before he was captured. While previously the prosecution was required to prove that the defendant’s conduct occurred during “armed conflict,” the new law substitutes the word “hostilities,” which prosecutors seem to believe allows them to reach even more conduct.

And so, instead of the trial date he was supposed to receive last week, Al Qosi now has a new hearing set for January at which time the government will again seek to establish that the military commissions have jurisdiction over him. That is, unless the government withdraws the charges so that they can refile them with new allegations that fit their revised theory of the case.

With no word from Obama or the Department of Defense on where the military commissions will take place in the future, and whether Guantanamo will ever really be closed, it is likely Al Qosi’s trial will begin at Guantanamo shortly after the president misses his deadline to close the prison.

Eight years after he was apprehended and five years since being charged, Al Qosi may yet have his day in court – a court with markedly different rules and procedures than available to the defendants accused of actually planning the 9/11 attacks.

Andrea J. Prasow, senior counterterrorism counsel at Human Rights Watch, was formerly a defense lawyer for the Office of the Military Commissions

The Lisbon Treaty: Who is Europe Still Trying to Impress?

2009-12-01T13:38:00.001-05:00

JURIST Guest Columnist Virginia Keyder, currently teaching European Union law at Bogazici University and Sabanci University in Istanbul, Turkey, says that the Lisbon Treaty on European Union reform that has just entered into force is much more than meets the eye, especially as regards its implications for fundamental rights and EU military policy...

Now that everything that could possibly be said has been said about the new bodies wandering Europe’s opaque corridors of power, isn’t anyone interested in what this Lisbon Treaty that created these positions actually says? If non-Europeans know little about it, Europeans know even less. If Tony Blair’s short run as ‘man most likely to succeed’ in hooking up with the US is over, how will the Lisbon Treaty itself continue this privileged relationship?

Let me count the ways. Some basic info: this Treaty, like its Amsterdam predecessor, is really two treaties: the 58-article Treaty on European Union (TEU) and the 358-article Treaty on the Functioning of the European Union (TFEU), plus 37 protocols and 65 declarations, for simplification. Keeping in mind that the purpose in setting up the original European Economic Community (EEC) in 1957 was to avoid future wars by integrating the economies of the founding six member states, using their particular strengths to create a peaceful and prosperous Europe, it comes as no little surprise to see its progeny display such an emphasis on undemocratic power, has-been neo-liberalism, and military aspirations.

Democracy first. Does anyone really believe that simply by giving already castrated national parliaments access to a total dud of a ‘principle,’ namely subsidiarity (which ranks up there with derivatives for ease of explanation) to express themselves, provided eight of them can agree within eight weeks of ‘being informed,’ is democracy (now known as ‘good governance’)? See Article 12 TEU, Article 3 TFEU and Protocol 1).

Then there’s the ‘citizens initiative.’ The second pillar (this organization loves pillars) of the new democracy provides in Article 11(4) TEU “Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.” These are the treaties that no citizen was permitted to vote on, by the way.

Europeans need to face the fact that the EU Commission (where all legislation is initiated, lest the great unknowing think this happens in parliaments) takes its cues from lobbies, not citizens. And just in time American lobbies (victims of their own success in Washington where the lobbies are now inside the tent, doing what tent insiders do) are in town. Unlike in their previous habitat, these lobbies are totally unregulated in Brussels. No one dares to ask who they are, who their clients are, or how much they are paid. The two-year old voluntary register attracted everyone from the Aberdeen Fish Producers Organization to Young Friends of the Countryside. Lobbies representing Business Software Alliance (BSA), Record Industry Association of America (RIAA), Motion Picture Association of America (MPAA), and various big pharma groups, deftly cloak demands for strong intellectual property protection and extra-judicial enforcement (the last real hold that western powers have on the world economy) with national security jargon and Europeans seem none the wiser or worse .

As for neo-liberalism, most Europeans will be surprised to learn that social services, health, and education are now part of the Common Commercial Policy (an exclusive EU competency under Art. 3(e) TFEU), and may therefore be the subject of binding, possibly secret negotiations (the new Anti-Counterfeiting Trade Agreement is ostensibly about intellectual property, but its ‘national security’ aspects have been stressed as justification for maintaining absolute secrecy about its contents), with (guess which) countries who feel such services, like everything else, should exist only if they are profitable. Article 207 TFEU provides that only where EU commercial agreements “risk seriously disturbing the national organization of such services and prejudicing the responsibility of Member States to deliver them”, will they be subject to unanimity in Council voting. Otherwise they may be decided by qualified majority, with decisions to privatize services able to be made against the will of entire blocks of Member States.

And finally, the nasty little secret about Common Foreign and Security Policy’s (the second ‘pillar’ of the outgoing TEU) new military prowess. The creation of the European Defense Agency in 2004 was a direct result of lobbying by multinational defense companies to procure a larger chunk of EU research funds by claiming the distinction between military and civil research was expensive and artificial. These same corporations were later asked to essentially draft EU defense policy. Articles 42 through 46 TEU ‘constitutionalize’ this perspective. While Article 11 of the outgoing Amsterdam Treaty stated that the goals of CFSP are the defining and implementing of policies covering all areas of foreign and security policy, the objectives of which shall be: “to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the UN Charter, to strengthen the security of the Union in all ways, to preserve peace and strengthen international security in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders, to promote international cooperation, to develop and consolidate democracy and the rule of law and respect for human rights and fundamental freedoms.”

Lisbon restates these objectives in Article 24 as follows:

1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence…

2. Within the framework of the principles and objectives of its external action, the Union shall conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.

3. The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area. The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.

One has to ask, where did all the stuff about democracy, fundamental rights and the rule of law disappear to?

The salient features of new Articles 42 – 46 TEU put meat on the bones of the new EU militarism as follows:

1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.

2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements…

3. Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as "the European Defence Agency") shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities…

5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article 44.

6. Those Member States whose military capabilities fulfill higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 46. It shall not affect the provisions of Article 43.

7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

Article 43

1. The tasks referred to in Article 42(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories…

Article 44

1. Within the framework of the decisions adopted in accordance with Article 43, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the High Representative of the Union for Foreign Affairs and Security Policy, shall agree among themselves on the management of the task.

2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary decisions.

Article 45

1. The European Defence Agency referred to in Article 42(3), subject to the authority of the Council, shall have as its task to:

(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;

(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;

(c) propose multilateral projects to fulfill the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;

(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;

(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.

2. The European Defence Agency shall be open to all Member States wishing to be part of it. The Council, acting by a qualified majority, shall adopt a decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.

Article 46

1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article 42(6), which fulfill the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation, shall notify their intention to the Council and to the High Representative of the Union for Foreign Affairs and Security Policy.

2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the High Representative.

3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the High Representative.

The Council shall adopt a decision confirming the participation of the Member State concerned which fulfills the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the High Representative. Only members of the Council representing the participating Member States shall take part in the vote.

A qualified majority shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.

4. If a participating Member State no longer fulfills the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a decision suspending the participation of the Member State concern...

European citizens didn’t want this Treaty granting expansive military powers to Brussels any more than they want the SWIFT Agreement under which personal data on all their banking and other financial transactions will be handed over to the US (where the concept of data protection hardly exists), or the ultra-secretive ACTA agreement (which recently leaked documents show to include not only Sarkozy’s extra-judicial internet disconnection on the basis of reported downloads but the infamous US law criminalizing the tweaking of software code to circumvent US content-industry mandated technological IP protection). Because Brussels knew European citizens wanted none of these, they specifically weren’t asked. As Charlie McCreevy (Commissioner for Internal Market) has famously stated, “I think all of the politicians of Europe would have known quite well that if a similar question had been put to their electorate in a referendum the answer in 95 per cent of countries would have been ‘No’ as well."

Post-democratic Europe is a reality. In addition to creating a totally non-transparent, non-democratic EU, powers (aka ‘competences’) handed over to Brussels have gone a long way to destroying real national democracy (in which citizens not only vote, but have reason to believe their vote means something) as well, as masterfully articulated in the June 30, 2009 decision of the German Constitutional Court on the constitutionality of Germany’s ratification of the Lisbon Treaty. Subsequent to this, as they say, the pig has been declared kosher.

There is no going back to a Europe of nation states. Economic integration is too far along, and its effects have enriched and enlivened Europeans and their economies. But Lisbon is not the way. Europe needs real democracy both for itself — because the alternative of having rulers who follow the increasingly military, greed-led power that the US has become is a huge step backwards — and in order to defend the concept and practice of democracy around the world. There are real human values at stake here. Remilitarizing Europe and cloaking it in crackpot neo-liberalism is not the solution, it is the problem.

Virginia Keyder teaches European Union law at Bogazici University and Sabanci University in Istanbul, Turkey.

International Law and Palestinian Independence: A View from Palestine

2009-11-27T08:03:00.000-05:00

JURIST Special Guest Columnist Curtis Doebbler of An-Najah National University Faculty of Law in Nablus on the Palestinian West Bank, says that if the UN formally recognizes Palestine as a state it will rightfully validate the views of the Palestinian people and many states in the international community while discouraging the theory that "might makes right" in the context of international border disputes ....

With the Palestinian authorities in Ramallah seeking recognition of a Palestinian state through the United Nations, it is important to consider what this means both to Palestinians and to the rest of the world.

States are the predominant actors in the international community. They are the main actors that create, implement, and are subject to international law—a system of rules initially established by Western states that is now widely accepted as governing relations between all states.

As statehood will have a significant effect on how Palestine is considered, and likely treated, by the international community, it is important to consider Palestinians’ entitlement to statehood and what it means. International law provides a common denominator that can be used to answer this question.

As the UN General Assembly lacks the power to do more than make recommendations, the starting point for Palestinian statehood or independence is not UN General Assembly Resolution 181 which recommended that two states be created on Palestinian territory. Instead it is the right to self-determination that the Palestinian people have as the indigenous people of Palestine. This right is perhaps the most notable human right in the United Nations. It is the only human right expressly recognised in the Charter of the United Nations, where articles 1, 55, and 73 acknowledge it. The right to self-determination is an essential — the most essential for many states — part of customary international law and has been declared one of the most basic principles of customary international law by the UN General Assembly’s Declaration on the Principles of International Law concerning the Friendly Relations and Cooperation among States.

The right to self-determination has been explicitly recognised as applicable to the situation of the Palestinian people by the UN General Assembly for more than 30 years. To this end it established the Committee on the Exercise of the Inalienable Rights of the Palestinian People in 1975 to work towards the realisation of this right. This right provides all peoples, including the Palestinian people, the right to determine their own future. It is a right that Israelis did not enjoy in Palestinian territory when they unilaterally declared their state in violation of Palestinians’ right to self-determination. The Palestinian right to self-determination pre-existed any effort by Israel to occupy Palestinian lands. It is a right that all Palestinians are entitled to exercise according to international law since at least the 1920s. It is thus a right that is enjoyed over all of the territory over which the British Mandate was approved by the League of Nations in 1922.

This does not mean that Palestinians are required to exercise this right, but if they wish to do so they are entitled to do so. They need no permission from anyone else. Indeed, today more than half the states in the international community recognise Palestine as a state.

Although Palestine may already be considered a state by most of the international community, the consequences of recognition by the United Nations General Assembly could add significantly to Palestine’s rights and responsibilities. A good way to understand how and why this will be the case is to reflect on the constituents of statehood and what they mean.

According to established customary international law, which is now reflected in the Montevideo Convention on the Rights and Duties of States dating back to 1933, a state should have: a) a permanent population; b) a defined territory; c) a government; and d) the ability to enter into foreign relations with other states. There can be little doubt that Palestine satisfies all of these criteria. Indeed, on 15 November 1988 when almost all the senior leaders of the Palestine Liberation Organisation (PLO) declared Palestine an independent state to ensure the “everlasting union between itself, its land, and its history,” they undoubtedly believed that all of these criteria were met.

Palestine indeed has a permanent population. This population includes not only the estimated more than four million Palestinians living in the West Bank and Gaza Strip, but also an estimated more than three million additional Palestinians who have been forced from their land or forced to become Israelis by the involuntary inclusion of their lands under Israeli jurisdiction. While Palestinians living in the West Bank and Gaza Strip meet the requirement for a permanent population, all seven million Palestinians in the world are entitled to Palestinian nationality and to live in Palestine if the government of Palestine wishes this to be the case.

Similarly the territory of Palestine is well defined. It was not defined in 1967 or even 1948, but was defined by the right to self-determination of the Palestinian people. The occupation of Palestine is often considered to have begun after the 1967 war. This assumption is based largely on the questionable legality and legitimacy of the United Nations’ handling of this situation. The Security Council’s decision demanding a ceasefire after the 1967 war and the General Assembly’s decision to create two separate states on the territory inhabited by Palestinians 20 years earlier both give the impression that Israel only violated Palestinians’ right to self-determination when it occupied the West Bank and Gaza Strip subsequent to the 1967 war. A better legal date for the start of the occupation is 14 May 1948, when Israel declared a Jewish state. This is the date on which Israel legally took Palestinian land; and acted in a manner that made it clear it intended to deny the Palestinian people the right to self-determination.

That the United Nations subsequently ratified the existence of Israel as a state in the international community cannot abolish the Palestinians’ right to self-determination. By the same token it cannot change the boundaries in which this right may be exercised. Even Israel’s continued and ever-expanding oppressive occupation of the Palestinian people cannot extinguish the Palestinians’ right to self-determination throughout all of the territory under the League of Nations mandate, minus that part in which the indigenous Hashimites founded their own state of Jordan in exercise of their right to self-determination.

Again this does not mean that Palestinians have to claim all of the territory under the League of Nations mandate as their homeland. They can negotiate part of the land away if they wish. But they cannot be denied as having the right to do so in the first place, and the international community cannot, within the realm of international law, deny that Palestine’s borders are legally based on those that existed before 1948 when Israel proclaimed itself a state.

A very important consequence of understanding Palestine’s borders in this way is that any changes should be negotiated from this legal starting point. Thus if Palestinians wish to recognise Israel they should do so knowing that they are ceding rights they have under international law. Perhaps, however, long-lasting peace is worth this trade off.

Thus, it is certainly possible for the Palestinian people to agree to accept the 1948 borders, the 1967 borders or any other borders they wish. It might mean, for example, that if necessary, entirely new territorial boundaries can be negotiated, perhaps to give two states viable, instead of divided, borders. What is clear is that Palestine has defined borders. Whether these borders are disputed is another question that is not a hindrance to statehood because legally these borders exist.

Similarly, despite the ongoing dispute between the Palestinian authorities in Ramallah and those in Gaza, Palestine indisputably has a government. The government is currently divided between the authorities in Gaza who are commonly known by their association to Hamas, a liberation movement whose candidates in the Peace and Change Party were elected in a significant majority to be the government of the Palestinian people. The modality through which these elections took place was based on the Oslo Accords’ provision for a Palestinian Authority with the power to govern Palestinians. These accords have unfortunately been repeatedly ignored, but no one can ignore the fact that Hamas officials were elected by a fair and free election that reflects the will of the Palestinian people.

The other part of the government are the authorities in Ramallah who first refused to cooperate with the elected government and then tried to oust it by force, only to be rebuked and driven out of Gaza. Only the president, Mahmoud Abbas, is elected and his term has already expired without new elections being held, although they are currently scheduled for 2010.

Like Hamas, the Fatah-controlled PLO is a resistance movement. It was founded in 1964. It was recognised as a National Liberation Movement (NLM) having observer status by the United Nations in 1974. The UN has also recognised that NLMs are entitled to struggle against foreign and oppressive occupation, and even to use armed force to do so. Thus while usually assisting the use of force against a member state of the United Nations violates international law, NLM movements fighting for self-determination are an exception to this prohibition, although they are still bound to use force in accordance with the rules of international humanitarian law.

The fact that Hamas and Fatah/the PLO remain divided does not mean that Palestine does not have a government, but merely that the authority of the government is in dispute. The dispute is between Palestinian leaders who have been elected and the unelected leaders of the Palestinian people. The Palestinians will have to resolve this dispute to obtain their full potential, but not necessarily to be recognised as a state.

Finally, Palestine’s ability to enter into foreign affairs is widely recognised. As already pointed out, more than half the states in the international community recognise Palestine as a state. This is the ultimate recognition of the ability to enter into foreign affairs.

The 21 other states of the Arab League, for example, already recognise Palestine as a state. So too do the 56 other member states of the Organisation of the Islamic Conference (OIC). Even the late Palestinian President Yasser Arafat had letterhead that designated him as the president of Palestine.

Palestine is represented in more than a hundred states. Most of these are representatives of the PLO, but the authorities in Gaza are also establishing representative offices abroad. Already in 1982 the UN Office of Legal Affairs was able to conclude that, “[t]he overwhelming majority of states formally recognise the PLO as the representative of the Palestinian people and have established direct links with it on a bilateral basis, sometimes even granting it full diplomatic status.”

While it is rather clear that Palestine meets all the criteria that entitle it to statehood, it is less clear what this means.

In first instance, it means that Palestine will join the international community of states as an equal member entitled to the same respect for its sovereign territorial and political integrity as every other state.

This would likely increase the pressure on Israel to withdraw from at least some Palestinian territory it occupies, but it would also increase the pressure on Palestine to ensure control over all of its territory and the persons acting on it. This latter obligation might not be easy to meet unless Palestinians define their government in a manner that will require all Palestinians living in Palestine to answer to the same unified government.

As a state, Palestine would have the responsibility of exercising its police powers over all of the West Bank and Gaza Strip within the borders that constitute the State of Palestine.

As a state, Palestine would also have strong arguments for removing, by force if necessary, Israeli settlements that are scattered throughout the West Bank.
As a state, Palestine could form its own army and trade goods and arms with any other state.

If the Security Council recommended and the General Assembly, in accordance with article 4 of the Charter of the UN decided to admit Palestine to membership in the UN as a states, Palestine be able to fully participate in the United Nations as it already does in the OIC and Arab League. In fact Palestine is already recognised as a full member of the Asian Group of States in the UN, and often thereby submits and influences UN resolutions. Being a member state would also give the Palestinian representative to the UN the right to vote on General Assembly resolutions, among other UN decisions.

At the moment, the Palestinian representatives to the UN — as are most Palestinian foreign representatives — are chosen by the Fatah-backed PLO. They point out correctly that they represent Palestine as a NLM that has been given observer status. If Palestine becomes a state represented in the UN, then the decision will have to made as to whether to allow the elected representatives of the Palestinian people to decide who represents them at the UN or to continue to allow unelected Palestinians, mostly from the political party that the people of Palestine rejected, to decide who represents the Palestinian people. This is a decision that both the Palestinian people and the member states of the United Nations will have to make.

While the role of Palestine will be enhanced formally within the UN, it would seem hard to improve upon the goodwill that Palestinians already enjoy from the overwhelming majority of states. The fact that Palestine is now a peer inter pares might even lead to political competition that creates a more difficult environment for Palestine at the UN. It will also make Palestine a direct negotiating partner with Israel over issues between those two states, irrespective of whether or not the State of Palestine would recognise Israel as a state. Importantly, this could lead to using the UN — and no longer the biased mediator of the United States or its Western allies — as the forum for negotiations of a final settlement to the dispute between Israel and Palestine. In fact, using any other forum than the UN to end this dispute would appear somewhat odd.

Even the recognition of Palestine as a state by the United Nations General Assembly would enhance the recognition already given to Palestine by the majority of states of the international community. It could also contribute to ending the myth believed by a small minority of the world — and sometimes even the Palestinians themselves — for more than 60 years: That might makes right and Israel is indivisible.

Curtis F.J. Doebbler is a professor of law at An-Najah National University in Nablus, Palestine.