My Fourth Year of Law School

By: Omar Ha-Redeye · October 28, 2009 · Filed Under International Law, Law Career, Law School · 2 Comments

From the October 2009 issue of Amicus Curiae

Many law students find law school to be so painful that few can understand or relate when I say I actually enjoy the ordeal. They would probably understand even less if I told them that I enjoy it so much that I actually subjected myself to an extra semester of it voluntarily, and not for an LLM.

This is the story of my 2L summer.

I had the opportunity to work for a local law firm during my first year and through my first summer. I had a pleasant enough experience, but I learned all that I could as a law student in that context. For my next summer I decided to do something different.

Most of my time this summer was dedicated to consulting and writing projects. My work projects took me to several locations, including Calgary and B.C. While on the West Coast, I also managed to catch a federal political convention.

Some of my friends outside of law already joke that I do law school on the side. I figured I could probably pick up some legal experience this summer while I was running around. I checked out some summer law abroad programs, and registered for ABA-approved courses at UofT, Bar Ilan in Israel, and Universidad Autonoma de Guadalajara in Mexico.

Before you get any smart ideas, keep in mind that Western doesn’t accept summer transfer credits, even though many other Canadian law schools do. I’m not saying that they should, but if they did I would have graduated before my January term even began. Yes, it was a pretty intense summer.

The trip to Israel had some personal reasons behind it, in addition to my other activities. During my last trip there about 10 years ago I stayed in (primarily Arab) East Jerusalem and the Territories. I enjoyed a rather privileged lifestyle in the primarily Jewish West Jerusalem, staying in Golan resorts overlooking the Galilee, driving through the Negev desert, floating
in the Dead Sea, and swimming on the beaches of Tel Aviv. The tensions within a very complicated country were highlighted with a visit to the assassination site of Yitzak Rabin.

My last summer destination was Mexico. After an unexpected stop in Monterrey when someone decided to have a baby mid-flight, I arrived at my destination in Guadalajara. I soaked up a lot of local culture during my stay including assorted local crafts, Mexican ballet (sans any sign of tutus), Lucha Libra wrestling, and horseback riding along Lake Chapala.

But it seems that politics and law is inescapable no matter where you go. Prime Minister Harper, President Obama, and President Calderon were in town for the North American Leaders’ Summit. Calderon was even staying a few doors down from me at my five-star hotel. One of the major issues on the agenda for them was the North American Free Trade Agreement (NAFTA), which was becoming increasingly contentious to citizens of all countries during the current economic turbulence.

So what exactly did I study while I was running around the world? Most law abroad programs focus on international legal issues, for obvious reasons, so there were courses on the International Criminal Court, environmental law, international economics and NAFTA, cyberspace law and human rights. But I also got some specialized training in Jewish law, holocaust law, and national security issues that I probably would not get anywhere else.

Some of the faculty I studied with included world-renowned rabbis, someone who worked on the Rome Statute through an NGO, and even the infamous Kenneth Starr from the Clinton-Lewinsky case. Starr held a special session to discuss his role in Proposition 8, the same-sex bill that was shot down in California last year.

There is one key lesson unrelated to my summer courses that I would like to impart and share with others. In the summer of your second year you will typically be applying for your articling position. I was extremely fortunate that it worked out for me, but I would not recommend taking your interview call on a Tel Aviv beach, actually doing the interview on a Mexican cell phone, and skipping the law firm reception entirely to tour a Spanish cathedral.

You’ll have a hard time making an impression and competing with candidates who actually bothered to be in the country to interview in person.

And no matter how many excuses you make, or how many times you show them this article, they’re just not going to buy that someone voluntarily subjected themselves to additional law school that they won’t get credit for.

Post tags: 2L, Amicus Curiae, Arab, B.C., Bar Ilan, Calderon, Calgary, clinton, Dead Sea, Galilee, Golan, harper, ICC, International Criminal Court, israel, Jerusalem, Jewish, Kenneth Starr, Lake Chapala, LLM, Lucha Libra, Mexican ballet, Mexico, NAFTA, Negev, North American Free Trade Agreement, North American Leaders’ Summit, obama, proposition 8, rabbis, Tel Aviv, Universidad Autonoma de Guadalajara, UofT, UWO, Western Law, Yitzak Rabin

Goldstone Report Could Lead to ICC Charges

By: Omar Ha-Redeye · September 16, 2009 · Filed Under Criminal Law, International Law · 4 Comments

The report by Justice Richard Goldstone on the Fact Finding Mission on the Gaza Conflict, released yesterday, is raising some interesting legal questions.

The report concluded that both Israel and the Palestinians had committed war crimes, and possibly crimes against humanity. The most obvious question people are asking is the effect of this report on the International Criminal Court (ICC).

The Israeli media has stated that the ICC has no jurisdiction over Israel, as a non-signatory to the Rome Statute. Israeli legal scholars have generally taken a similar position, but this appears to be flawed.

Post tags: anti-semitism, Fact Finding Mission on the Gaza Conflict, Hillel Neuer, ICC, International Criminal Court, israel, Jonathan Kay, Justice Goldstone, Luis Moreno-Ocampo, Naomi Klein, Nicole Goldstone, Palestine, proprio motu, Rahm Emanuel, Robert Goldstone, Rome Statute, sudan

STAND Down on Darfur, You’re Making it Worse

By: Omar Ha-Redeye · June 1, 2009 · Filed Under Civil Rights, Constitutional Law, Criminal Law, Immigration Law, International Law, Law Career, Legal Reform · Add Comment

Liu Guijin, China’s special envoy to Darfur, is currently in Doha meeting with representatives from Britain, France, Russia, United States and the European Union in a 5-day conference on how to deal with the situation in western Sudan.

U.N. backed negotiations between the rebels and the government are also continuing in Doha, and the rebels have released government prisoners in a gesture of good faith. Meanwhile, the government is making advances in Darfur, capturing several towns.

But the key to these recent gains are that the main rebel group, the Justice and Equality Movement (JEM), indicated that they withdrew to avoid further civilian casualties.

It’s the civilian casualties that have created so much concern from the international community, and estimates range from under 9,000 from Sudanese government sources, to 400,000 by some NGOs.

The discrepancy is explained by Sudan as exaggerations by the media and some western NGOs, a stance that has been given greater validity by other more neutral organizations. The vast majority of people dying in Darfur are from the humanitarian situation, not directly from the conflict. Thierry Durand, director of operations for Doctors Without Borders, said,

The magnitude of violence in Darfur has been huge, but it’s not genocide. The situation on the ground has not been an emergency since 2004. The real problem is the dependency in the camps. But the whole thing has become over-politicized.

Canada has it’s own NGO lobby on the Darfur issue, one of the largest in the world. STAND Canada started right here at my University of Western Ontario in 2005, after things had considerably improved in Darfur, by students with surprisingly little background in African history and conflicts, or humanitarian and civil rights issues. They claim to be the “leading organization in Canada for youth led anti-genocide advocacy and activism.”

And according to at least some, activists like STAND and other like-minded western NGOs with inadequate background are making the situation exponentially worse.

A Race to a Politicized Conflict
Emily Wax highlighted some of the problems with well-intentioned but misled activists in a 2006 Washington Post article, one of the most poignant pieces explaining the misconceptions about the Darfur conflict:

Nearly everyone is Muslim
Everyone is black
It’s all about politics
This conflict is international
The “genocide” label made it worse

Some activists have unfortunately used the linguistic differences between the Khartoum government and the Fur people as a slur against Baggara (pastoralist) Arabs (from which the Janjaweed come from) in the former murdering black Africans, out of some supposed racial-based animosity between the two, leading to these charges of genocide that would demand Western intervention (presumably militarily).

The reality is quite different.

Abdalla Adam Khater, a resident of Darfur who lost 100 extended family members in 2003, said,

This isn’t like the Nazis or Bosnia or Rwanda. This isn’t about hatred. It’s more about power, money and land.

The Darfur region was one of the earliest in Sub-Saharan African to be introduced to Islam, from the Zaghawa diaspora of the descendants of Uqba ibn Nafi in the 7th c. CE, and more formally through the Tunjur people in the 14th c.

The Nile was ruled by the Christian Nobotia and Makuria kingdoms, until they gradually adopted the Arabic language and the Muslim religion through trade during the 12-15th c. When the Sudan had their anti-colonial Islamic Mahdist revolt against the British during the 19th c., it was largely based out of Darfur, and not the Nile, by uniting both the Baggara and the Fur.

This complex history still plays itself out in the modern conflict.

The Tunjur still inhabit Darfur and speak the Arabic language (and are thus “Arab”), and are just as victimized as others in Darfur despite the linguistic affinities with the Baggara and others. The Justice for Equality Movement (JEM), one of the main rebel groups in Darfur, is Islamic fundamentalist in orientation.

The political origins of the conflict can be traced as far back as 1999, when a man named Hasan Al-Turabi, whose father was a Sudanese judge and legal expert, found himself in a confrontation with Sudanese President Omar Al-Bashir.

Turabi himself studied law, earning a PhD from Sorbonne in Paris, and introduced sweeping reforms that included more rights for women, greater political participation, and most importantly, a coalition that sought to include as many of Africa’s largest country’s 597 tribes and over 400 different languages and dialects as possible.

One of the problems was that the Sudanese South felt alienated by the largely Muslim-dominated government, which led to a civil war for over 20 years. Although the South is largely animist, western groups and NGOs attempted to portray it as a Muslim-Christian clash (only about 5% of Sudan’s population follow these forms of Christianity), and proselytizing groups did arm (and convert) people in the South.

The other problem in this interim period was Turabi’s open immigration policy, an anomaly in the Middle East. He saw a vision for Sudan as a refuge for all those facing political persecution, a political openess that has never been seen anywhere in the region, and will probably never be seen any time soon.

This open approach to political rights did have its disadvantages, as individuals like Osama bin Ladin also found their way to the Sudan. But Sudan was far from a “haven” for terrorists, and after some Egyptian nationalists participated in a failed assassination of their President they were expelled from the country.

The 9/11 Commission Report reviewed the negotiations and tensions that arose between Sudan and other countries during this time,

In late 1995, when Bin Ladin was still in Sudan, the State Department and the CIA learned that Sudanese officials were discussing with the Saudi government the possibility of expelling Bin Ladin. U.S. Ambassador Timothy Carney encouraged the Sudanese to pursue this course.The Saudis, however, did not want Bin Ladin, giving as their reason their revocation of his citizenship.

But these policy tensions led to cracks internally in the Sudanese government when in 1999 Turabi proposed and amendment that would further democratize Sudan, but would reduce the power of Omar Al-Bashir from President to Prime Minister.

Bashir retaliated by placing Turabi on house arrest and disbanding his coalition, which included significant representation from Darfur. Turabi’s followers in Darfur, frustrated by their lack of political participation and representation, picked up arms and helped found JEM, starting yet another civil war.

Bashir’s government, still compelled to fill barracks in the South to enforce a shaky truce, resorted to desperate measures by enlisting the support of pro-government militias from among the Arabic-speaking Baggara. These untrained non-conscript civilian forces, backed sporadically by a thinly-spread military, did engage in the killing and raping of civilians, which led to accusations of war crimes and genocide.

The Most Aggravated Crime Against Humanity

On Sept. 9, 2004, U.S. Secretary of State Colin Powell stood before the Senate Foreign Relations Committee and said that a genocide was occurring in Sudan, specifically invoking Article VIII of the 1948 Genocide Convention, which essentially would give rise to an armed intervention in Sudan (the US is no longer a signatory to the ICC),

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article 3.

Just a year and a half earlier, Powell presented a case for invasion to the United Nations that Iraq unequivocally had weapons of mass destruction that it was hiding from the world.

Unlike his statements in Iraq, Powell’s position on Darfur has not received as much scrutiny. Perhaps the most controversial and contentious position by groups like STAND are their accusations of genocide in the Sudan, one that does not include the very complex political background behind the situation in Darfur.

The Darfur Commission decided in 2005 after a thorough inquiry that there was insufficient evidence for genocide in Darfur because there was no state plan or policy to kill or target an ethnic, national, racial or religious group. What NGOs like stand fail to recognize is that all of these groupings can be found on both sides of the conflict.

Charges of genocide require dolus specialis, or a special intent, according to Article 6 of the Rome Statute. And even if some Janjaweed could be identified as perceiving ethnic differences between the two, there was no proof of motive on behalf of the government that would give rise to the mens rea requirement for what is reserved as the “most aggravated crime against humanity.”

What the International Criminal Court (ICC) was able to conclude was that the Darfur situation did consist of war crimes and crimes against humanity. A specific warrant was issued for Bashir on,

• five counts of crimes against humanity: murder – Article 7(1)(a);
extermination – Article 7(1)(b); forcible transfer – Article 7(1)(d); torture -
Article 7(1)(f); and rape – Article 7(1)(g);

• two counts of war crimes: intentionally directing attacks against a
civilian population as such or against individual civilians not taking part in
hostilities -Article 8(2)(e)(i); and pillaging – Article 8(2)(e)(v).

While government complicity in Janjaweed activity, and the extent of the activities meeting these definitions are not under dispute, the political prudence of using the ICC to resolve this situation is.

Immediately after the warrant was issued, Bashir expelled 10 of the major humanitarian organizations in the region. But Bashir had justifiable paranoia about some of these NGOs, as just weeks earlier he had expelled a Texan-based charity, Thirst No More (TNM), run by an Iraqi war veteran. They describe their mission:

With a history of proven success in distributing bottled water with the “Pure” message of salvation along with other unique products – we’ve become your resource for evangelism and missions. Thirst No More^TM is a faith based ministry, dedicated to honoring and glorifying Christ.

TNM was supposed to be drilling wells in Darfur. Not a single well was built, but plenty of Bibles were discovered in violation of Sudan’s 2006 Organization of Humanitarian and Voluntary Work Act.

In addition to the prosyletizing, there was the arming of JEM and Darfur rebels by foreign powers, some pointing to France via Chad, the same country that armed the Hutu in Rwanda. It’s in this backdrop of that key nations in the region have resisted the ICC charge,

The African Union (AU), the Arab League, the Organisation of the Islamic Conference, and an influential UN bloc of developing nations known as the Group of 77 and China have all backed Sudan’s calls for the ICC prosecution to be dropped, with some officials arguing that it smacks of “white man’s justice”.

They say an attempt to arrest Bashir could destabilise Sudan and endanger international aid and peacekeeping missions…

Sudanese officials say they cannot be held responsible if the UN or foreign organisations become the focus of “public outrage” over an indictment.

Justice Radhabinod Pal of India issued similar anti-colonialist misgivings in his dissent before the International Military Tribunal for the Far East, which was banned from publication until 1952.

“Those bearing the greatest responsibility” (a term coined during the Special Court for Sierra Leone), or founding the conflicts in the first place, are unlikely to be held accountable, despite this statement by the Prosecutor in a 2003 report, Paper on some policy issues before the Office of the Prosecutor,

One important area of investigation will involve financial links with crimes. The investigation of financial transactions, for example for the purchase of arms used in murder, may well provide evidence proving the commission of atrocities…
Such prosecutions will be a key deterrent to the commission of future crimes, if they can curb the source of funding.

So although victims of terrorism may be able to sue terrorists according to a new Bill the Conservatives intend to introduce this week, the victims of state terror or atrocities committed by states using weapons sold to them by Western entities are unlikely to see similar relief.

Canada’s Role in the Conflict

Of course well-intentioned people want to make a difference in the world, and do genuinely care about people dying and suffering around the world. But the best way to prevent these conflicts from happening may be in an entirely unexpected way, through combating climate change.

The socio-economic background to the Darfur crisis that is also often ignored is the displacement of the Baggara from their pastoralist lands into the agricultural holdings of Darfur due to desertification. The Sahara dessert is expanding, primarily due to carbon emissions from the United States and Canada.

The Darfur crisis is just one of many conflicts in the 21st c. that will erupt over food and water due to climate change that will primarily affect the developing world, who are the most vulnerable to these changes. Activists tend to be selective about the causes they take up.

Jan Egeland, head of UN Office for the Coordination of Humanitarian Affairs, has proclaimed that the situations in Congo and Uganda have each exceeded Darfur as humanitarian crises, but the world has not paid it equal attention, even though he noted there is even more of an opportunity to save lives in these other situations. Not even the “leading organization in Canada for youth led anti-genocide advocacy and activism” took note.

Canada also played a much more direct role in creating the backdrop to the conflict when it pulled out Talisman Energy from the Sudan, due to pressure from church groups interested in destabilizing the government further out of their interests to strengthen the (potentially Christian) rebels. Instead, Canada could have used its role and influence over the Sudanese government to observe human rights standards.

This weekend a Canadian envoy could be heading to Doha, with the whole world looking to us for a peaceful solution.

Criticisms by STAND activists about normalized relations with the Sudanese government are easily countered by pointing out that during the Darfur situation Sudan obtained 87 per cent of its arms from Russia, not the Chinese who replaced Canadian commercial interests in the country.

The shift in attitude is best encompassed by the contrast between policies espoused on Darfur by George W. Bush and Bill Clinton at a talk in Toronto on May 29 that I attended with Garry Wise.

Bush disclosed that his reasons for not sending an armed intervention to Darfur was that NGOs more intimately aware of the region and its issues strongly urged him not to invade, given the backdrop of Afghanistan and Iraq.

In an apt mid-20th c. African rendition of Macbeth by Des McAnuff I saw at the Stratford Festival yesterday, Lady Macbeth exclaims this sentiment quite well in Act V Scene I,

Here’s the smell of the blood still; all the perfumes [or oil] of Arabia will not sweeten this little hand. Oh, oh, oh!

Clinton, on the other hand, more acutely captured the notion that although African Union peacekeepers were limited in their capabilities, only countries understanding the local faith and cultures in the conflict should even attempt to mediate it.

Bush still insisted that his (faith-based) NGOs were the solution to all the problems in the world.

The Post-Bush Doctrine

The notion of sovereignty often appears far more disposable when dealing specifically with developing nations, especially in recent years. Yasuki Nesiah highlights this problem in From Berlin to Bonn to Baghdad: A Space for Infinite Justice,

Ian Williams has warned that “we should not let” George W. Bush’s “misappropriation of humanitarian intervention alienate the concept from its natural owners, the left.”[5] Lamenting the Bush-Blair duet regarding the humanitarian goals that guided their policies in the second Gulf War, proponents of humanitarian internationalism are anxiously seeking to formulate universal principles to distinguish illegitimate from legitimate intervention, conquest from protection, and militarism from humanitarianism.

…Michael Ignatieff anguishes that “almost everyone who tries . . . has a bad conscience; no one is quite sure whether our engagement makes things better or worse.”[26]

A more effective approach to dealing with Darfur is encapsulated with a shift from “Save Darfur” to “Empower Darfur.” Richard Haass, currently with the Council on Foreign Relations, said in Sovereignty: Existing Rights, Evolving Responsibilities,

Sovereignty has been a source of stability for more than two centuries. It has fostered world order by establishing legal protections against external intervention and by offering a diplomatic foundation for the negotiation of international treaties, the formation of international organizations, and the development of international law. It has also provided a stable framework within which representative government and market economies could emerge in many nations. At the beginning of the twenty-first century,
sovereignty remains an essential foundation for peace, democracy, and prosperity.

At the same time, sovereignty is being challenged from both within and without. Weak states struggle to exercise legitimate authority within their territories. Globalization makes it harder for all nations to control their frontiers. Governments trade freedom of action for the benefits of multilateral cooperation. And outlaw regimes jeopardize their sovereign status by pursuing reckless policies fraught with danger for their citizens and the international community. We need to adjust our thinking and our actions to these new realities.

The only two other previous cases referred to the ICC before Sudan was with Congo and Uganda, both referred by a non-signatory state for an internal conflict, a situation not envisioned by the drafters of the Rome Statute. These states were struggling with maintaining the civil order, and sought the help of the international community.

Justice Louis Moreno-Ocampo, former ICC Prosecutor for the ICC signaled the role of the court in creating peace in Uganda, a conflict peripherally related to that of Sudan. Others criticized that the ICC was ignoring abuses by the Ugandan government.

The arrest warrants were an important part of the reason why the Lord’s Resistance Army (LRA) came to the negotiating table with the government. In the Fifth Session of the Assembly of State Parties, Moreno-Ocampo said,

This case shows how arrest warrants issued by the Court can contribute to the prevention of atrocious crimes. The Court’s intervention has galvanized the activities of the states concerned. Uganda and the DRC, parties to the Rome Statute and legally bound to execute the arrest warrants, have expressed their willingness to do so. The Sudan, a non‐State Party, has voluntarily agreed to enforce the warrants. Thanks to the unity of purpose of these states, the LRA has been forced to flee its safe haven in southern Sudan and has moved its headquarters to the DRC border.

As a consequence, crimes allegedly committed by the LRA in Northern Uganda have drastically decreased. People are leaving the camps for displaced persons and the night commuter shelters which protected tens of thousands of children are now in the process of closing. The loss of their safe haven led the LRA commanders to engage in negotiations, resulting in a cessation of hostilities agreement in August 2006.

But when U.N. peacekeepers in February 2006 attempted to enforce the warrants and arrest LRA leaders in the Congo they failed, and several were killed.

And when Uganda’s security minister, Amama Mbabazi, asked for the ICC to withdraw the charges because they were in the way to reaching a peace deal, the international community retaliated.

Justice Richard Goldstone,former chief prosecutor for the Bosnia and Rwanda, said,

It would be fatally damaging to the credibility of the international court if [Ugandan President] Museveni was allowed to get away with granting amnesty. I just don’t accept that Museveni has any right to use the international criminal court like this.

If you have a system of international justice you’ve got to follow through on it. If in some cases that’s going to make peace negotiations difficult that may be the price that has to be paid. The international community must keep a firm line and say are we going to have a better world because of the international court or not.

The LRA currently indicate that no peace is possible until the ICC warrants are dropped.

Similar critiques that war crimes by rebels in Darfur are not equally investigated are also being raised.

Similar concerns of peace being stonewalled are being raised now with the talks between JEM and Bashir. Although Turabi has called for Bashir to turn himself in, he has stated he will never surrender.

Discharging the Secrets of Infected Minds

Resolving this dilemma might be possible by better clarifying when a country’s sovereignty can be infringed upon. The relationship between human rights and state immunity was summarized by Lee M. Caplan in The American Journal of International Law:

state immunity arises not out of the fundamental right of statehood but, rather out of the concession of a forum state’s right of adjudicatory jurisdiction; and
foreign states are not entitled to immunity under customary international law as to most, if not all, activity that constitutes human rights offenses.

Sudan is not a signatory to the Rome Statute, but strangely was referred to the ICC by states that are not signatories either, or states directly involved in arming the respective parties. Despite the absence of any concession for adjudicatory jurisdiction, the ICC may still have a role, given the nature of the alleged crimes.

International lawyer Heny Schermers said,

Under international law we are most often confronted with the idea that sovereignty of a State means that the State has unlimited power and is subjected to only those rules of international law which it has expressly accepted. Neither other states nor the United Nations have any right to intervene in matters which are essentially within the domestic jurisdiction of a State. This aspect of sovereignty has been seriously weakened during the second half of the twentieth century.

…the world community takes over sovereignty of territories where national governments completely fail and that therefore national sovereignty has disappeared in those territories. The world community by now has sufficient means to step in with the help of existing States and has therefore the obligation to rule those territories where the governments fail.

But where the international community, or even those states attempting to intervene, has expressly contributed to the failing of a government, such intervention hardly seems warranted.

Even worse, it could easily backfire.

One of the unintended but easily plausible outcome of this situation is an independent Darfur could be an impoverished and unstable state that really is a haven for terrorists, both anti-American and rabidly Israeli, despite support the latter has extended to rebel groups.

Calls to further weaken Sudan with no-fly zones, sanctions, or even armed troops should be firmly rejected as a tactic that has been tried and failed elsewhere, and at huge expense of lives.

To move beyond the failed Bush doctrine, countries would be held accountable and encouraged to observe human rights using the principle of complementarity. If a country genuinely tries war crimes internally, there is no admissibility of a situation to the ICC according to Article 17. Instead of undermining weak states, peacekeepers could be used in cooperation and coordination of the new realities of a changing world.

Sudan’s Deputy U.N. Ambassador Omar Bashir Manis appeared willing to cooperate with the international community during Security Council meeting 5459 on June 14, 2006,

…we should point out that the Sudanese Government responded positively to resolution 1593 (2005) and has begun the process of consulting with the Prosecutor and his assistants, including through visits by them to the Sudan. We believe that that communication and cooperation has had a number of positive results, some of which we would like to highlight.

The Prosecutor quickly came to an understanding of the situation. He was briefed on the history of the Sudanese judiciary, its independence and its capacity, along with related judicial organs, with regard to establishing the rule of law. The Prosecutor has understood the reasons for the deterioration of the situation in Darfur and the security vacuum which led to attacks on police stations and the ensuing events, including tribal confrontations and conflict among political factions and elements, which led to an escalation of the situation and the consequent widespread violations, of which everyone is aware.

Our police and prosecutors are prosecuting the perpetrators of those crimes. The Prosecutor learned about a great many cases that have been decided and about charges and allegations that have been followed up since a special prosecutor was appointed to look into those cases in Darfur. Special courts have been established and have handed down many criminal sentences, including execution and life imprisonment. The Prosecutor also had the opportunity to better understand how best to deal with security and tribal problems and disputes.

…There have been meetings with many officials from provinces in Darfur with a view to understanding the general situation and to seeking their views on how to prosecute the accused, and on how to establish the rule of law and mend the social fabric.

There is no doubt that a political settlement is the best possible solution and is the key to achieving stability, justice and peace in Darfur…

Mending the social fabric through efforts aimed at reconciliation, amnesty and the satisfactory resolution of problems among the various Darfur tribes is necessary and of fundamental importance if peace is to be established in Darfur. That is an effort that we hope will enjoy the support and encouragement of the African Union and the international community, including the Security Council, in keeping with paragraph 5 of resolution 1593 (2005).

The Government of the Sudan will continue its efforts to establish the rule of law and justice through the courts and other mechanisms set up in Darfur, to put an end to impunity and to hold accountable all those convicted of violations of human rights and international humanitarian law…

We therefore believe that the current political, security and social conditions in Darfur call for the Security Council’s support for efforts towards an internal dialogue in Darfur with a view to achieving peaceful coexistence. That, in line with all that I have said, is the easiest way to establish the rule of law and lasting peace.
[emphasis added]

The Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General on Jan. 25, 2004 agreed that the best way to resolve the Darfur situation would have been the legal process internally,

568. The normal and ideal response to atrocities is to bring the alleged perpetrators to justice in the courts of the State where the crimes were perpetrated, or of the State of nationality of the alleged perpetrators. There may indeed be instances where a domestic system operates in an effective manner and is able to deal appropriately with atrocities committed within its jurisdiction.

But due to the erosion of the rule of law due to civil wars, other nations that have deliberately sought to weaken the country, and impunity of the executive, the Report also noted that this was impossible in Sudan,

586. The Sudanese justice system is unable and unwilling to address the situation in Darfur. This system has been significantly weakened during the last decade. Restrictive laws that grant broad powers to the executive particularly undermined the effectiveness of the judiciary.
[emphasis added]

A Sudanese solution would seek to restore political coalitions that kept the country together, and rebuild a Sudanese judicial system that would try offenders of war crimes.

This approach has been validated by the international human rights community. In 2006 the Human Rights Council of the General Assembly stated,

…the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings,
[emphasis added]

Instead, we have been dealing with an approach to developing nations that would weaken and destabilize them even further.

Lady Macbeth’s physician speaks of the type of guilt that sullies the situations created by the Bush doctrine to this day,

Foul whisp’rings are abroad; unnatural deeds
Do breed unnatural troubles; infected minds
To their deaf pillows will discharge their secrets.

George Friedman, in his book The Next 100 Years: A Forecast for the 21st Century, discloses America’s “unnatural secret” to a primarily American audience: the “War on Terror” makes absolutely no strategic or military sense. It’s impossible to win.

But, he retorts, America does not have to win as long as it can keep predominantly Muslim countries fighting each other. There are some NGOs, including those involved in Darfur, who take a strategic position not substantially different from this as well.

If the ICC is used to help strengthen countries to be willing and able to address humanitarian issues, encourage accountability for their actions, and enforce the rule of law through a domestic judiciary wherever possible, it will have much more buy-in and credibility from the developing world and unstable regions.

But if it is used to target failing states that have been habitually undermined and weakened, especially by directly aiding rebel groups within a country, it will be seen as nothing more than a tool of neo-colonialism as charged by Bashir and envisioned many years ago by Justice Pal.

Yet here’s a spot.

Cross-posted from Slaw

Post tags: 9/11 Commission Report, Abdalla Adam Khater, African Union, Amama Mbabazi, Arab League, Baggara, Bosnia, carbon emissions, China, Colin Powell, Congo, Council on Foreign Relations, Darfur, Darfur Commission, Des McAnuff, Doctors Without Borders, Doha, dolus specialis, Emily Wax, Evolving Responsibilities, Garry Wise, George Friedman, Group of 77, Hasan Al-Turabi, Heny Schermers, human rights, International Criminal Court, International Military Tribunal for the Far East, iraq, Janjaweed, JEM, Justice for Equality Movement, Lee M. Caplan, Liu Guijin, Lord’s Resistance Army, Louis Moreno-Ocampo, LRA, Macbeth, Mahdist, Makuria, Medicans Sans Frontiers, Michael Ignatieff, Museveni, Muslim, nazis, Nobotia, Omar Al-Bashir, Osama bin Ladin, Radhabinod Pal, Richard Goldstone, Richard Haass, Rome Statute, Rwanda, Save Darfur, Sovereignty: Existing Rights, Special Court for Sierra Leone, STAND, STATE IMMUNITY, Stratford Festival, Students Taking Action Now: Darfur, sudan, Talisman Energy, The American Journal of International Law, The Next 100 Years, the Organisation of the Islamic Conference, Thirst No More, Tunjur, Uganda, United Nations, University of Western Ontario, Uqba ibn Nafi, Zaghawa

Could George W. Bush Be Charged With War Crimes?

By: Contributor · May 29, 2009 · Filed Under Criminal Law, International Law · 3 Comments

George W. Bush and Bill Clinton are coming to Canada on March 29 to speak to an estimated crowd of up to 5,000 people.

David Knowles of the Politics Daily describes the showdown,

The event will consist of the two men seated in chairs between a moderator who has not yet been chosen.

No matter how civil the discourse, the thought of Mr. Bush and Mr. Clinton on stage is bemusing, given the animosity of the past 16 years, and the efforts under way to overcome it…

One thing to keep an eye on is whether the two men will allow questions on torture. Given the legal consequences for former Bush administration figures, this could be one potato too hot for handling. Otherwise, I suspect we’ll hear a cordial conversation with plenty of respectful disagreement..

Former Vice-President Dick Cheney has continued to defend controversial interrogation techniques that many concede as torture.

But the issue of torture is not just theoretical posturing. Canada is a signatory to the International Criminal Court, which is charged with convicting three crimes: genocide, crimes against humanity, and war crimes.

When the release of further photos of Abu Ghraib abuses, including torture and rape, were reported blocked yesterday, Iraqis did call for investigations and charges of crimes against humanity.

Crimes against humanity require widespread or systematic abuses.

The ICC Prosecutor determined there was a reasonable basis that grave breaches had been committed by British troops during the 2003 Iraq invasion for willful killing (8 (2)(a)(i)), and torture or inhumane treatment (8)(2)(a)(ii). But he did not proceed with it because at that time there evidence only demonstrated only 4-12 individuals were subjected to willful killing, and,

[only a] limited number of victims of inhuman treatment totalling in all less than twenty persons.

War crimes, on the other hand, can be covered by even an isolated act by an individual soldier, even without direction or guidance from superiors, which is why Article 8 of the Rome Statute begins with what Hermann von Hebel and Daryl Robinson call a non-threshold threshold in The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, and Results,

1. The Court shall have jurisdiction in respect of war crimes in particular [but not limited to] when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

The United States is not a signatory, and it was Bush himself who instead of ratifying the ICC actually had America’s signature removed. His rationale was “politicized prosecutions and investigations” could result in Americans being brought before the ICC.

Bush’s fears may not have been completely vain, because the ICC does define war crimes to include acts such as torture and inhumane treatment. Other Geneva Conventions that could allegedly be breached include deprivation of a fair trial, willful killing, and wanton destruction of property.

As a signatory to the ICC, Canada could theoretically be asked to bring Bush before it. But that would never happen, given a 2002 Act passed under Bush that allowed the U.S. military to storm the Hague by force and recover any Americans being tried there.

Robert Marquand of the CSM describes the implications of the Act,

Formally titled the American Service Members Protection Act, the measure is widely and derisively known here as the Invasion of The Hague Act.

Odd as it may seem, the law allows the US to constitutionally send jack-booted commandos to fly over fields of innocent tulips, swoop into the land of wooden shoes, tread past threatening windmills and sleepy milk cows into the Dutch capital – into a city synonymous with international law – and pry loose any US troops.

Today, the Dutch mostly treat the issue as a joke, a cowboy American moment. But it is widely felt that if President Barack Obama’s foreign policy team wants to achieve a symbolic break with the previous White House, it could rescind the invasion law.

As a Dutch Ministry of Justice official put it, “I wouldn’t overstate how seriously we take this any more, but it does seem a bizarre symbol.”

The implications for Canada are a little more vague,

One controversial offshoot of the invasion law is called “bilateral immunity” – a policy requiring all states except Israel, Egypt, Taiwan, and those in NATO to sign a waiver stating that they will contravene the ICC if any Americans are arrested. Countries that don’t sign the waiver forfeit US military assistance. The policy pressured small states to comply – whether or not they felt it proper.

Indira A.R. Lakshmanan explains the reason behind this move,

There is a tension in U.S. foreign policy that’s pretty longstanding: The U.S. is far more comfortable as the maker of international rules than as subject to them.

That didn’t stop the Toronto Coalition Against the War from investigating whether Bush could be charged by the ICC. In addition to a planned protest outside the event, the group held an info session last week with Prof. Michael Mandel of Osgoode Hall. Mandel described some of the other challenges of accomplishing such a conviction and the low likelihood of how something like this could happen.

Prof. Mandel mentions the “Crime Against Peace,” or a war of aggression, one which is not fully included under the ICC yet due to lack of consensus by the signatories, but called the “supreme international crime” according to the Nuremberg Tribunal.

However, Attorney General Goldsmith warned Prime Minister Blair in 2003 that the invasion of Iraq could lead to possible prosecution for the crime of aggression because it was recognized by customary international law and therefore imported into the domestic law, a notion later affirmed by the House of Lords in R v. Jones [2006] UKHL 16.

There is another significant barrier to the prosecution of Americans or other allies in Iraq for crimes of aggression that Mandel did not cover. Article 5 of the Rome Statute lists the ratione materiae, or subject matter jurisdiction of the court,

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
[emphasis added]

Article 39 of the Charter of the United Nations states,

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

If acts of aggression can only be defined by the Security Council, then Lionel Yee points out that no permanent member of the Security Council could ever be prosecuted for the crime of aggression.

However, the International Court of Justice may have indicated otherwise. In Nicaragua v. United States (1986), the dissenting opinion of Judge Schwebel stated that a Security Council determination of aggression is based on political considerations, and not a legal judgment,

60. Moreover, while the Security Council is invested by the Charter with the authority to determine the existence of an act of aggression, it does not act as a court in making such a determination. It may arrive at a determination of aggression – or, as more often is the case, fail to arrive at a determination of aggression – for political rather than legal reasons.
However compelling the facts which could give rise to a determination of aggression, the Security Council acts within its rights when it decides that to make such a determination will set back the cause of peace rather than advance it. In short, the Security Council is a political organ which acts for political reasons. It may take legal considerations into account but, unlike a court, it is not bound to apply them.
[emphasis added]

The Separate Opinion of Judge Simma in Democratic Republic of the Congo v. Uganda (2005) went further, indicating that Security Council approval was not even necessary for the determination of aggression,

3. It is true that the United Nations Security Council… has never gone as far as expressly qualifying the Ugandan invasion as an act of aggression…
The Council will have had its own ⎯ political ⎯ reasons for refraining from such a determination.
But the Court, as the principal judicial organ of the United Nations, does not have to follow that course. Its very raison d’être is to arrive at decisions based on law and nothing but the law, keeping the political context of the cases before it in mind, of course, but not desisting from stating what is manifest out of regard for such non-legal considerations. This is the division of labour between the Court and the political organs of the United Nations envisaged by the Charter!
[emphasis added]

The ICC is not a body of the UN, but theoretically may work with the ICJ to determine a case of aggression independently of the Security Council. Article 39 determinations may also theoretically be challenged as ultra vires.

The Yugoslav Tribunal Appeals Chamber stated in the Tadic case,

It is clear from this text that the Security Council plays a pivotal role and exercises a very wide discretion under this Article. But this does not mean that its powers are unlimited. The Security Council is an organ of an international organization, established by a treaty which serves as a constitutional framework for that organization. The Security Council is thus subjected to certain constitutional limitations, however broad its powers under the constitution may be. Those powers cannot, in any case, go beyond the limits of the jurisdiction of the Organization at large, not to mention other specific limitations or those which may derive from the internal division of power within the Organization. In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).

In particular, Article 24, after declaring, in paragraph 1, that the Members of the United Nations “confer on the Security Council primary responsibility for the maintenance of international peace and security“, imposes on it, in paragraph 3, the obligation to report annually (or more frequently) to the General Assembly, and provides, more importantly, in paragraph 2, that:

“In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.” (Id., Art. 24(2).)

The Charter thus speaks the language of specific powers, not of absolute fiat.
[emphasis added]

Despite the willingness of many people around the world to have some strong international statement made that these types of military acts in Iraq are inappropriate, these political organs will prevent any determination of war crimes or crimes of aggression.

It’s unlikely that the ICC or other international mechanism will be used in this manner any time in the near future – a conclusion Mandel would likely agree with.

Videos of Prof. Mandel’s talk included below for interest sake below:

Post tags: American Service Members Protection Act, Bill Clinton, Charter of the United Nations, Daryl Robinson, David Knowles, Democratic Republic of the Congo v. Uganda, geneva conventions, George W. Bush, Hermann von Hebel, ICC, indict bush, Indira A.R. Lakshmanan, International Court of Justice, International Criminal Court, Judge Schwebel, Judge Simma, jurisdiction, Nicaragua v. United States, R v. Jones, ratione materiae, Robert Marquand, Rome Statute, Tadic, Toronto Coalition Against the War, torture, Yugoslav Tribunal Appeals Chamber

Black Liquor Sparks New Trade Feud and Old Controversies

By: Omar Ha-Redeye · May 25, 2009 · Filed Under Corporate Law, Immigration Law, International Law, Labour & Employment Law, Politics · 2 Comments

Is Canada listening to calls to assert our national interests?

On Thursday, Canada joined the EU, Brazil and Chile in demanding the withdrawal of tax credits in the U.S. for black liquor.

The credits are estimated at $4-8 billion, passed in 2007, and intended for energy alternatives in paper mills and cogeneration facilities. Paper manufacturers have started mixing F-T diesel with a kraft process byproduct known as black liquor to meet the definition of the tax credit, which Canada claims is hurting Canadian jobs.

Although President Obama wants to terminate the rebate on Oct. 1, Canada and the other countries are threatening action through the World Trade Organization (WTO).

In light of a global recession caused by what some consider fiscal mismanagement and overzealous deregulation in the U.S., Canada’s controversial and convoluted trade relationship with the U.S. warrants greater scrutiny.

Post tags: al-Qaeda, Arturo Sarukhan, “Finlandization”, Barrack Obama, Bowdoin College, Committee on Foreign Affairs, Conference Board of Canada, Congress Doesn’t Respect NAFTA, Council for Canadian Security in the 21st century, Deep integration, Dispatches from the 49th Parallel, Fortress America, Fortress North America, Havana Charter, International Criminal Court, iraq, Jack Granatstein, James Laxer, just-in-time, landmines, Lloyd Axworthy, Lost Decade, Mission Possible, NAFTA, National Missile Defence, Osama bin Laden, Ottawa Treaty, Patrick Rael, Stephen Harper, Sustainable Prosperity for Canada, The Enbridge Northern Gateway Project, Uncertain Access: the Consequences of U.S. Security and Trade Actions for Canadian Trade Policy, UNITED NATIONS CONFERENCE ON TRADE AND EMPLOYMENT

Rae: Canada Has Its Own Voice on the International Scene

By: Omar Ha-Redeye · October 10, 2008 · Filed Under Civil Rights, International Law, Law Career, Law School · 2 Comments

Hon. Bob Rae spoke this morning at the University of Western Ontario Law School on A Changing World: New Directions for Canadian Foreign Policy. What follows are notes (not a transcript) from his talk.

Law Students and Public Policy

Rae said that Canadian foreign policy as an issue that is a significant one in the politics of the country. As soon to be lawyers, the issue of Canada’s role in the world is a critical concern to all of us, and one that has tremendous opportunities as law students.

There is no clearer area of public policy where the ideological contrast between parties can be demonstrated. Western has produced some of the great legal minds of our time. Justice Rand, a former Dean of the school, made considerable contributions to the foreign policy of this country.

What is Canada’s Role?

Rae asked whether Is Canada’s role in the world is to essentially ally itself with the U.S. in terms of American foreign policy and position in the world. Or is Canada’s voice in the world one of greater independence – one in which we look to Canada’ expressing strong support for multilateralism, international law, and support for multilateral institutions in relation to trade relationships.

It seems over the past 50 years there has been an implicit debate in the country over these issues, and that Harper has now made this debate explicit. His view in the world is quite simple: Canada is a country whose values and interests are tied up with the U.S., who is our most important trade partner. Our primary role is therefore to be an ally and supporter of the U.S. Other areas of foreign policy are all subordinate to that. That is the key relationship, the driving force between Canada’s role in the world.

This is a view that puts a great deal of emphasis on military power, and expects that Canada has to play a much stronger role in the military side of the equation. It downplays Canada’s traditional role at UN in supporting international institutions. Our efforts against land mines and in support of the International Criminal Court are examples of this.

War in Iraq

Rae pointed to two speeches of by Howard Hampton and Stephen Harper at time of Iraq war. His point was made by a choice made by Chretien at the time – Canada was not willing to participate in invasion of Iraq. Harper saying yes we will. Interesting enough, the words he used were borrowed from President of Australia.

Canada’s decision not to participate in the Iraq war was a defining moment, and was based on two major factors:

The existence of WMDs
An imminent threat

The Canadian government did not believe Saddam had WMDs, or that the evidence supporting assertion was in any way adequate. The U.S. relying on secret information, but the information provided from Hans Blix could not justify assertion.

If Canada didn’t have that information, it would still have to establish some other idea as to why it is justified as act of outside invasion. Canada’s position was clear – but the U.S. and U.K. was emphatically on the other side that whether or not there were WMDs, the risk justified invasion.

It took courage for Chretien and Graham to explain to Canadians why we were not joining our two closest allies. Now people say it’s a no-brainer – because we look at it retrospectively at the mess it created. It was controversial at time, and the criticism came mostly from Harper, who bought Bush/Blair doctrine. Harper insisted that was where Canada’s interests lay, where our values should take us.

Economic Relations

When it comes to trade relations it was Mulroney, following Royal Commission Report, that took the great leap towards negotitiations on free trade that eventually became NAFTA. Mulroney believed that if we could get from out underneath the U.S. trade umbrella and trade harrassment it would be a great deal for Canada. We would benefit from coming firmly within an America economic framework, and at the same time free ourselves from trade harassment.

By way of contrast, many people believe our long term protection is not in bliateral protection but with many countries that include the Americans. The history of our free trade is well-known, and we are going to experience its full effects in the next major while.

And we have not been able to free ourselves from trade harassment. The U.S. Senate is based on states where less than 20 percent of population control 50 percent of Senate, and is therefore dominated by agriculture and natural resource interests. The U.S likes to portray itself as supportive of free trade, but it actually relies far less on free trade than any of its trading partners.

This is just another example of where our decisions to make a special deal has actually proved short sighted.

A Foreign Policy that is Our Own Voice

Whether it is on the economic or political side, do we want to have a foreign policy where we find our own voice, or do we see ourselves as essentially being the junior partners in the American enterprise?

In recent days that choice has become very clear and sharp, and a clear example of that is the case of Omar Khadr, a Canadian citizen. He grew up in Afghanistan and was eventually captured and charged in the efforts to kill an American soldier, and has since been incarcerated in Guanatanamo Bay for that last few years.

We have to try to understand what this issue means for Canada. It’s not just about the politics of do we like what he did or was accused of doing. There are two major issues:

What do we do with child soldiers?
What do we do with Canadians in these situations?

There have been enormous procedural delays in his trial, with the head of the military tribunal recently being replaced. There have been two recent Supreme Court cases in the U.S. critical of Guantanamo, and how it is being administered by the American government.

They stated that the law of habeas corpus does apply, and that it is not simply possible to incarcerate people without letting them know what htey have been charged with. These are fundamental principles of our justice system. The second case is worth reading simply to review the very basics of habeas corpus and its role in the legal system.

Canada is a signatory to the international treaty aimed at rehabilitating child soldiers. It’s fundamental to get these people out to rehabilitate them to let them continue on with their lives.

Sri Lanka has an issue with this on the rebel side, where people can be recruited as young as 12 and sent into battle by the age of 14 or 15. If you capture them, what do you do? Do you treat them as a soldier, as a child, or as a child soldier?

There are protocols that have to be followed. The U.S. military tribunal has said we are not interested in this, and it does not pertain to the treatment of Omar Khadr.

The Question for Canada

The question for Canada is that we’ve gone along for a long time to see what kind of justice people like Omar Khadr can get. We said, let’s hold judgment until we see what kind of treatment he gets.

And frankly, we’ve seen quite enough.

Senator Obama and McCain have both said they would close Guantanamo, and find another method to try people that are there.

We can also look at the issue of members of the Uighur community of Xinjiang in Western China, which has long issues with the extent of which it is being ruled and human rights issues. How do we respond as a country when dealing with the possibility of courts where we disagree with their approach to a legal system?

In the case of Guantanamo, it puts us in a ridiculous position where the only person thinking Omar Khadr should stay in the U.S. and would get a fair trial in the U.S. is Stephen Harper.

Again, even McCain says it should be closed. This is an absurd position for Canada to be in.

Differing with America is not Anti-Americanism

Mr. Rae also distinguished the mission in Afghanistan from that in Iraq. The U.N. agreed to the mission. contrary to Iraq. We believed we were going there to help set up a new government and support them.

The Liberals would like to change the focus to reflect this interest, away from military activities to training the Afghan army and politically helping the government create a more stable arrangement. The 2011 withdrawal date was what was initially agreed upon by parliament, and when all countries said the mission would come to an end.

These are the principles we should try to apply: that we intervene when we believe it is lawful to do so, and when it is justified by international law.

Canada is not a superpower. It is not an empire, and we do not have imperial ambitions. All we want to do is participate in a stable international world order.

That is why we’ve been such strong supporters of the U.N. The Universal Declaration of Human Rights was drafted by a Canadian after all.

Our interests as a small country, a relatively small power, are different from that of our neighbours. It means we will agree and disagree from time to time. It does not mean we are anti-American, it just means we have different interests.

Get Involved as Law Students

There are many ways you can be involved and engaged in this world.

Your generation has more opportunity to see more, to do more, to be more engaged than any generation in hum history.

Try to make a difference. Find out what gives you passion, and take those ideals and interests wherever you may go.